United States v. Williams , 235 F. App'x 925 ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-7-2007
    USA v. Williams
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-4267
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    Recommended Citation
    "USA v. Williams" (2007). 2007 Decisions. Paper 992.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/992
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 04-4267
    UNITED STATES OF AMERICA
    v.
    DARRYL WILLIAMS,
    Appellant
    Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal No. 03-cr-00700)
    District Judge: Honorable Michael M. Baylson
    Submitted Under Third Circuit LAR 34.1(a)
    May 10, 2007
    Before: RENDELL, JORDAN and ALDISERT, Circuit Judges
    (Filed: June 7, 2007 )
    OPINION OF THE COURT
    RENDELL, Circuit Judge.
    Darryl Williams was convicted by a jury of two counts of bank robbery in violation
    of 
    18 U.S.C. § 2113
    (a). After an initial mistrial due to a hung jury, a new trial yielded a
    guilty verdict. Williams was sentenced to a term of imprisonment of 108 months, 3 years
    supervised release, a $1,000 fine, restitution in the amount of $862, and a $200 special
    assessment. Williams appeals his conviction. He argues that the District Court erred in
    admitting the testimony of a “reverse projection photogrammetry” expert because the
    government failed to demonstrate that the expert’s technique satisfies any of the
    admissibility criteria set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
     (1993), or possesses any other indicia of reliability. We have jurisdiction over
    Williams’ appeal pursuant to 
    28 U.S.C. § 1291
     and we will affirm.
    I.
    Williams was charged with robbing two banks in June 2003. In the first robbery
    on June 6, a man entered Sovereign Bank in Folsom, Pennsylvania, demanded money
    from a teller and ran out after receiving $640. This robbery was captured on the bank’s
    surveillance camera. In the second robbery on June 18, a man who, witnesses say, bore a
    resemblance to the Sovereign robber, entered a Citizens Bank in Glenolden,
    Pennsylvania. This man demanded money from the teller station but grabbed $422 from
    the teller before she could comply.
    The primary issue at trial was the height of the bank robber in each of these
    robberies. Witnesses to the robberies testified that the robber was anywhere from 5'2" to
    5'7" tall. Williams is 6' tall. The government sought to introduce the expert testimony of
    FBI agent Paul Smith concerning the height of the Sovereign Bank robber. Based on the
    video footage from the surveillance camera, Smith determined that the suspect was closer
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    to 5'11" than 5'2" by applying “reverse projection photogrammetry.” This method is on
    occasion employed by the FBI to determine the height of individuals depicted on
    surveillance cameras like the one that captured images of the Sovereign Bank robber.
    Smith testified that there is an error rate of about 1" in this type of height analysis. After
    holding a Daubert hearing to determine the admissibility of this evidence, the District
    Court determined that Smith’s testimony was admissible.
    Williams challenges the District Court’s admission of Smith’s testimony
    concerning reverse projection photogrammetry on the grounds that the technique fails to
    satisfy any of the five Daubert criteria for admission of expert testimony. The District
    Court found under the preponderance standard that Smith’s testimony met the
    requirements of Federal Rule of Evidence 702. Specifically, the Court found that the
    testimony was based on sufficient facts or data as recounted by the expert, the testimony
    was a product of reliable principals and methods, that the expert had adequate training in
    the technique and that he has review within the FBI, which, in the trial judge’s opinion,
    was sufficient under the applicable test. Additionally, the District Court found that the
    witness applied the principals and methods reliably to the facts of the case.
    II.
    We review the District Court’s decision for abuse of discretion. United States v.
    Velasquez, 
    64 F.3d 844
    , 847 (3d Cir. 1995). Although the Supreme Court has made clear
    that federal trial judges, pursuant to Fed. R. Evid. 702, have a “gatekeeping” obligation to
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    insure that only reliable and relevant expert testimony be presented to jurors, the trial
    judge is granted a certain degree of latitude to determine whether the Daubert factors or
    any other set of reasonable reliability criteria are reasonable measures of reliability in a
    particular case. Daubert, 
    509 U.S. at 593
    .
    Rule 702 sets forth requirements for the admission of expert testimony: (1) the
    proffered witness must be an expert; (2) the expert must testify to scientific, technical or
    specialized knowledge; and (3) the expert’s testimony must assist the trier of fact.
    Velasquez, 
    64 F.3d at 848
    . The overriding consideration with regard to these three factors
    is that expert testimony should be admitted if it will assist the trier of fact. 
    Id. at 849
    .
    The parties do not dispute that Smith’s testimony satisfies the first and third
    requirements of Rule 702. Here, Smith presented evidence that the FBI trained him in the
    reverse projection photogrammetry technique and that he has employed the technique on
    numerous prior occasions. Additionally, it is clear that Smith’s testimony is relevant to
    the primary issue of height in this case and that admission of his testimony would aid the
    trier of fact in making a determination of height.
    The second requirement, that the expert testify to scientific, technical or
    specialized knowledge, is at issue here. The Supreme Court clarified in Daubert that this
    requirement is intended to ensure the reliability or trustworthiness of the expert’s
    testimony. See Velasquez, 
    64 F.3d at
    849 (citing Daubert, 
    509 U.S. at 590
    ). Daubert
    enumerates a number of factors to be considered by a district court in its assessment of
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    whether the testimony’s underlying reasoning or methodology is scientifically valid and
    properly can be applied to the facts at issue. Daubert, 
    509 U.S. at 590
    . These factors are:
    (1) whether a method consists of a testable hypothesis; (2) whether the method has been
    subject to peer review; (3) the known or potential rate of error; (4) the existence and
    maintenance of standards controlling the technique’s operation; (5) whether the method is
    generally accepted; (6) the relationship of the technique to methods which have been
    established to be reliable; (7) the qualifications of the expert witness testifying based on
    the methodology; and (8) the non-judicial uses to which the method has been put. In re
    Paoli R.R. Yard PCB Litig., 
    35 F.3d 717
    , 742 (3d Cir. 1994).
    Williams argues that the District Court erred in admitting Smith’s testimony
    because the government failed to proffer evidence demonstrating the reliability of Smith’s
    reverse projection photogrammetery technique as it was used in this case, including
    evidence that the technique has been published or subjected to peer review, evidence as to
    the technique’s error rate, evidence as to the standards controlling the technique’s
    operation, or evidence that the technique, as used in this case, is accepted by anyone
    outside of the FBI. We disagree.
    The trial judge is granted a certain degree of latitude to determine whether the
    Daubert factors or any other set of reasonable reliability criteria are appropriate measures
    of reliability in a particular case. Daubert, 
    509 U.S. at 593
    . All of the Daubert factors do
    not necessarily apply to each case nor are these factors a comprehensive list of all
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    possible measures of reliability. “Daubert’s list of specific factors neither necessarily nor
    exclusively applies to all experts or in every case.” Kumho Tire Co. v. Carmichael, 
    526 U.S. 137
    , 141 (1999). Moreover, depending on the facts of each particular case, the
    factors do not have to be weighed equally. The factors merely guide the judge’s
    determination of the admissibility of evidence, a determination to which we afford great
    deference.
    Under the liberal Daubert standard, the plaintiffs do not have to prove to the judge
    by a preponderance of the evidence that their expert’s testimony is correct, they must only
    show that it is reliable. The requirement of reliability is lower than the standard of
    correctness. A judge can find an expert opinion reliable if it is based on “good grounds”
    or methods and procedures of science rather than on subjective belief or unsupported
    speculation. Daubert, 
    509 U.S. at 590
    . The judge does not have to determine that these
    methods are necessarily the best grounds to ascertain certain facts, but only that the
    evidence presented will help the trier of fact.
    Additionally, the reliability factor is not a strict requirement that should be used to
    exclude all questionably reliable evidence. “The reliability of evidence goes ‘more to the
    weight than to the admissibility of the evidence.’” Velasquez, 
    64 F.3d at
    849 (citing
    United States v. Jakobetz, 
    955 F.2d 786
    , 800 (2d Cir. 1992)). In order to be admissible,
    evidence need only be sufficiently reliable to help the trier of fact. In re Paoli R.R., 
    35 F.3d at 744
    .
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    Here, the government proffered a detailed explanation of the technique of reverse
    projection photogrammetery. Smith testified about the methodology used in the
    technique and detailed how the methods were applied in this case. He also testified that
    he has published articles about the technique and that it is employed by the FBI and by a
    few other law enforcement agencies.
    We conclude that the District Court did not abuse its discretion in determining,
    based on this evidence, that the reverse projection photogrammetry technique is
    sufficiently reliable to satisfy the admission requirements of Rule 702. Because Smith’s
    evidence spoke to the paramount concern in the case – the height of the robber – and
    because the District Court found Smith’s technique to be sufficiently reliable, the District
    Court did not abuse its discretion in admitting Smith’s testimony.
    Once the foundation for admissibility required by Daubert has been established,
    concerns about the validity of an expert’s conclusions should not result in the exclusion of
    the expert’s testimony. Rather, such concerns should be presented to the jury through
    cross examination, presentation of contrary evidence and careful instruction on the burden
    of proof. Rock v. Arkansas, 
    483 U.S. 44
    , 61 (1987).
    III.
    For the reasons set forth above, we will affirm Williams’ conviction.
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