United States v. Billings , 61 M.J. 163 ( 2005 )

UNITED STATES, Appellee
v.
Jacqueline BILLINGS, Specialist
U.S. Army, Appellant
No. 03-0568
Crim. App. No. 9900122
United States Court of Appeals for the Armed Forces
Argued February 8, 2005
Decided June 15, 2005
CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. ERDMANN, J.,
filed a separate opinion, concurring in part and in the result.
Counsel
For Appellant: Captain Doug J. Choi (argued); Colonel Mark
Cremin, Colonel Robert D. Teetsel, Lieutenant Colonel Mark
Tellitocci, Major Allyson G. Lambert, and Captain Mary E. Card
(on brief).
For Appellee: Captain Michael D. Wallace (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, Major
Natalie A. Kolb, and Captain Janine P. Felsman (on brief);
Lieutenant Colonel Margaret B. Baines.
Military Judge: Stephen R. Henley
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Billings, No. 03-0568/AR
Judge CRAWFORD delivered the opinion of the Court.
Pursuant to her pleas, Appellant was convicted of carrying
a concealed weapon, in violation of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2000). Contrary to
her pleas, a general court-martial comprising officer and
enlisted members, convicted her of conspiracy to commit assault
consummated by a battery (in violation of Article 81, UCMJ, 10
U.S.C. § 881 (2000)), conspiracy to commit robbery (in violation
of Article 81), robbery with a firearm (in violation of Article
122, UCMJ, 10 U.S.C. § 922 (2000)), two specifications of
assault consummated by a battery (in violation of Article 128,
UCMJ, 10 U.S.C. § 928 (2000)), and engaging in organized
criminal activity (in violation of Article 134). On January 14,
1999, she was sentenced to be dishonorably discharged and
confined for twenty-seven years. She was credited with 726 days
of confinement. The convening authority approved the adjudged
sentence. The United States Army Court of Criminal Appeals
affirmed the findings and sentence on June 13, 2003.
This Court granted review of the following issue:
WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
APPEALS ERRED IN UPHOLDING THE MILITARY JUDGE’S
DECISION TO (1) ACCEPT A JEWELER CALLED BY THE
GOVERNMENT AS AN EXPERT IN “CARTIER WATCH
IDENTIFICATION”; (2) ALLOW THAT JEWELER TO IDENTIFY
A WATCH IN A PICTURE AS SOLID GOLD (RATHER THAN GOLD
PLATE); AND (3) ALLOW THAT JEWELER TO TESTIFY THAT THE
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WATCH IN ONE PICTURE IS THE SAME STYLE AS THE WATCH IN
A DIFFERENT PICTURE.
We hold that, under the circumstances of this case, the
military judge erred in allowing the jeweler to identify a watch
as solid gold from a photograph. This error was harmless,
however. Therefore, we affirm the decision of the Army Court of
Criminal Appeals.
FACTS
Specialist Jacqueline Billings was the leader of a group in
Killeen, Texas, known variously as the “Gangster Disciples” and
as “Growth and Development.” In the summer of 1997, the gang
killed two people and committed a series of other offenses,
including an armed robbery at the management office of the
Monaghan Apartments. While Robert G. Monaghan and the apartment
manager were bound, the Gangster Disciples stole approximately
$2,500 in cash and absconded with Mr. Monaghan’s gold watch,
which he valued at $18,500. The police never recovered Mr.
Monaghan’s property.
At trial, the Government called several rank-and-file
members of the Gangster Disciples as witnesses. The Government
also produced two photographs of Appellant wearing a gold-
colored watch that were admitted into evidence. The Government
then called Mr. Monaghan to establish the value of his stolen
watch by testifying that the watch depicted in a Cartier Tank
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Française advertisement was identical to his watch. Mr.
Monaghan testified that he had bought the watch in Rome for the
equivalent of just under $15,000. He stated that it “was a
bargain to [him] because here, in the States, that watch sells
for $18,500.00 plus tax.” The Government also offered receipts
to help establish the value of the watch.
The Government then called Floyd R. Pagel, a jeweler, as an
expert witness. Before Mr. Pagel testified, defense counsel
asked for a hearing pursuant to Article 39(a), UCMJ, 10 U.S.C.
§ 839(a)(2000), to examine Mr. Pagel’s qualifications, as well
as the necessity of any expert testimony at all on the topic.
At that hearing, the military judge denied the defense counsel’s
request for a full hearing pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), but did set limits
on the scope of Mr. Pagel’s testimony. The military judge ruled
that Mr. Pagel could describe characteristics of Cartier watches
and state whether he recognized any of them in the watch
Appellant was wearing in the Government’s photographic exhibits
but would not be allowed to say whether the watch pictured was a
genuine Cartier watch. The military judge expressly barred Mr.
Pagel from stating whether the watch in the Government’s photos
was Mr. Monaghan’s.
Mr. Pagel testified that he had been in the jewelry
business for about twenty-five years. He was largely self-
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taught but had attended several training courses, and regularly
read professional periodicals. He stated that he had been a
member of the National Jewelers Association of Appraisers, a
peer-elected group, for about four years. He conducted
appraisals of jewelry in the course of his business, and
insurance companies have accepted his appraisals to determine
value.
Mr. Pagel testified that he attended professional watch
shows and was familiar with Cartier watches. He described
certain characteristics of those watches and stated that they
were relatively easy to identify because of those features.
The trial counsel then asked Mr. Pagel to examine the
Government’s exhibits depicting Appellant and to tell the panel
what to look for in determining whether the watch in those
photos was a Cartier Tank Française. After an objection,
defense counsel was permitted to voir dire Mr. Pagel.
During that questioning, Mr. Pagel admitted that he did not
sell Cartier watches. He also admitted that he had never
actually seen a Cartier Tank Française. Finally, he stated that
he was not certified by the Gemological Institute of America, an
organization that licenses jewelers who sell diamonds and
colored stones. At the conclusion of this questioning, the
trial counsel offered Mr. Pagel as an expert. Over defense
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objection, the military judge recognized Mr. Pagel as an expert
in the field of Cartier watch identification.
Mr. Pagel then examined the Government’s photos of
Appellant with the aid of a ten-power magnification loupe and
stated that the watch reflected many of the unique
characteristics of Cartier watches. He added that the color of
the watch worn by Appellant in the photos suggested that it was
solid gold, rather than gold plated. He based this conclusion
partly on comparison with a watch worn by another person also
shown in one of the Government’s exhibits.
On cross-examination, Mr. Pagel admitted that he would not
be surprised to learn of fake Tank Françaises. He stated that
he rarely attempts to evaluate the quality of watches using
photographs alone, and noted two specific drawbacks to
identifying the watch solely from these photographs: lighting
can distort the color of the metal, and the word “Cartier” is
not visible on the watch in the photographs of Appellant.
DISCUSSION
Military Rule of Evidence (M.R.E.) 702 governs testimony by
expert witnesses. This Court reviews military judges’ decisions
regarding expert witnesses for abuse of discretion. See United
States v. Griffin, 50 M.J. 278, 284 (1999); see also General
Electric Co. v. Joiner, 522 U.S. 136, 139 (1997).
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The granted issue here is divided into three parts. We
examine each in turn.
A. Military Judge’s Acceptance of Expert
This Court must determine whether the military judge was
justified in concluding that Mr. Pagel had sufficient
specialized knowledge to testify as to the characteristics of
Cartier watches. M.R.E. 702 states that:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
Thus, an “expert” witness may testify if he or she is
qualified and testimony in his or her area of knowledge would be
helpful. This Court asks the proponent of expert testimony to
demonstrate that expert’s qualifications by establishing the six
factors articulated in United States v. Houser: (1) the
qualifications of the expert; (2) the subject matter of the
expert testimony; (3) the basis for the expert testimony; (4)
the legal relevance of the evidence; (5) the reliability of the
evidence; and (6) that the probative value of the expert’s
testimony outweighs the other considerations outlined in M.R.E.
403. 36 M.J. 392, 397 (C.M.A. 1993). Houser slightly predates
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Daubert and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999),
which made it clear that Daubert applied to nonscientific
subjects like this one. Houser, however, is consistent with the
later cases, and this Court has continued to use the Houser
factors in analyzing the admissibility of expert testimony.
See, e.g., United States v. Dimberio, 56 M.J. 20, 26 (C.A.A.F.
2001); Griffin, 50 M.J. at 284.
Addressing the first part of the granted issue, Appellant
attacks Mr. Pagel’s qualifications. M.R.E. 702 does not require
Mr. Pagel to have any formal training, but Appellant argues that
Mr. Pagel does not even have any relevant experience: he does
not sell Cartier products and had never seen a Tank Française.
Appellant also points out that trial counsel handed Mr. Pagel
the advertisement to look at while describing the unique
characteristics of Cartier watches and asserts that it is
impossible to know whether his testimony could have been as
detailed without that aid. Appellant contends that the panel
easily could have performed the same analysis as Mr. Pagel and
that therefore the military judge abused his discretion by
qualifying Mr. Pagel as an expert.
During the Article 39(a) hearing before Mr. Pagel’s
testimony, the defense counsel had argued that “[trial counsel]
should simply submit the pictures . . . and you let the jury go
back there and look at it. That’s what juries are for, to
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decide these kinds of issues.” The military judge asked the
trial counsel why the panel needed Mr. Pagel. The trial counsel
replied that “what [Mr. Pagel] would give the panel is what to
look for on which to base their opinion.” The trial counsel
gave several examples: the pattern of loops on the watch band,
the size of the band in proportion to the face, the color of
“real gold” as distinguished from gold plate, the distinctive
color of the face and the use of Roman numerals, and the
placement of a jewel on the watch’s “stem.”1 The military judge
ruled that Mr. Pagel could describe characteristics of Cartier
watches and state whether he saw those characteristics in the
watch worn by Appellant in the Government’s photos, but would
not be allowed to say whether the watch in those photos is a
real Cartier watch.
Mr. Pagel is a jeweler, and the panel members presumably
are not. It is safe to say that, even though he has little
personal experience dealing with Cartier watches, Mr. Pagel’s
time in the industry has given him “specialized knowledge,” in
accordance with M.R.E. 702, that could assist the panel. As we
explained in Houser, the test is not whether a jury could reach
any conclusion without expert help, “but whether the jury is
qualified without such testimony to determine intelligently and
1
We note that Mr. Pagel consistently referred to the placement
of a jewel on a watch’s “crown” -– the term used by jewelers.
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to the best possible degree the particular issue without
enlightenment from those having a specialized understanding of
the subject.” Houser, 36 M.J. at 398 (citations and internal
quotation marks omitted).
As Kumho Tire Co. emphasized, the trial judge enjoys a
great deal of flexibility in his or her gatekeeping role: “the
law grants a district court the same broad latitude when it
decides how to determine reliability as it enjoys in respect to
its ultimate reliability determination.” 526 U.S. at 142. The
military judge held an Article 39(a) hearing on the matter and
came to a reasonable conclusion, based on Mr. Pagel’s level of
knowledge relative to that of the panel members. Therefore, he
did not abuse his discretion in permitting Mr. Pagel to testify
as an expert witness.
B. Evaluation of Gold From a Photograph
In considering the second and third parts of the granted
issue, our analysis turns from Mr. Pagel’s qualifications to his
testimony itself. Appellant attacks both Mr. Pagel’s method of
evaluation and his conclusions.
The method in question here is the examination of a watch
in photos, rather than a watch in one’s hand. The military
judge had decided earlier at the Article 39(a) hearing to allow
Mr. Pagel “to relate what to look for in a Cartier watch,
[including] . . . color and quality of the gold.” Mr. Pagel
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then testified that the color of the watch worn by Appellant in
the photos suggested that it was “natural” or solid gold, rather
than gold plated. Resolving this second portion of the granted
issue, then, requires the Court to determine whether the
military judge was justified in implicitly finding that this
method would enable Mr. Pagel to derive “sufficient facts or
data,” M.R.E. 702, to distinguish solid gold from gold plate.
Appellant points out that Mr. Pagel admitted that
evaluating gold from photos is not his usual technique and that
lighting easily could distort the appearance of metals in
photos. The Government argues that Mr. Pagel was, nevertheless,
experienced enough to be able to distinguish solid gold from
gold plate in this way. Appellant’s objection, the Government
contends, concerns the weight of the evidence, not its
admissibility.
As with our consideration of the first granted issue, this
Court must review the military judge’s decision to allow the use
of photos in this way for an abuse of discretion. Although
Kumho Tire Co. and our own precedents suggest that a military
judge is due a great deal of leeway, there clearly are
significant drawbacks when he or she allows a witness to use
photos to distinguish solid gold from gold plate. We hold that
the military judge abused his discretion in allowing Mr. Pagel
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to determine from photos that the watch Appellant wore in the
Government’s photographic exhibits was solid gold.
In Joiner, the Supreme Court emphasized that Daubert does
not require a trial judge “to admit opinion evidence which is
connected to existing data only by the ipse dixit of the expert.
A court may conclude that there is simply too great an
analytical gap between the data and the opinion proffered.” 522
U.S. at 146. Kumho Tire Co. emphasized the trial judge’s
“gatekeeping function” to “‘ensure that any and all . . .
[expert] testimony . . . is not only relevant, but reliable.’”
Kumho Tire Co., 526 U.S. at 147 (quoting Daubert, 509 U.S. at
589). The Court observed that this gatekeeping function
“applies not only to testimony based on ‘scientific’ knowledge,
but also to testimony based on ‘technical’ and ‘other
specialized’ knowledge.” Id. at 141 (citing Fed. R. Evid. 702).
When expert “testimony’s factual basis, data, principles,
methods, or their application are called sufficiently into
question, . . . the trial judge must determine whether the
testimony has ‘a reliable basis in the knowledge and experience
of [the relevant] discipline.’” Id. at 149 (quoting Daubert,
509 U.S. at 592) (bracketed alteration in original). The Court
also stated in Kumho Tire Co. that “a trial court should
consider the specific factors identified in Daubert where they
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are reasonable measures of the reliability of expert testimony.”
526 U.S. at 152.
Those four factors are: (1) whether a theory or technique
can be or has been tested; (2) whether the theory or technique
has been subjected to peer review and publication; (3) the known
or potential rate of error in using a particular scientific
technique and the standards controlling the technique’s
operation; and (4) whether the theory or technique has been
generally accepted in the particular scientific field. Daubert,
509 U.S. at 593-94.
Our analysis of Mr. Pagel’s testimony is concerned with the
application of Kumho Tire Co. and the four Daubert factors to
his method of distinguishing solid gold from gold plate based on
a photograph.
Under Daubert, the proponent of expert testimony must be
able to establish both the expert’s qualifications and the
reliability of the expert’s basis for forming an opinion. “The
proponent of evidence has the burden of showing that it is
admissible.” United States v. Palmer, 55 M.J. 205, 208
(C.A.A.F. 2001). The Government did not carry that burden.
Instead, it relied on the mere “ipse dixit of the expert.”
Kumho Tire Co., 526 U.S. at 157.
The Government met none of the four Daubert criteria for
determining the reliability of expert testimony, nor did it
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identify any alternative indicia of reliability. The Government
thus failed to satisfy its burden as the proponent of Mr.
Pagel’s testimony to establish his opinion’s reliability.
The first Daubert factor is concerned with whether the
technique can be, or has been, tested. 509 U.S. at 593. The
Government presented no evidence that the method of
distinguishing solid gold from gold plate on the basis of
photographs has been tested.
The second Daubert factor focuses on whether the “technique
has been subjected to peer review and publication.” 509 U.S. at
593-94. The Government presented no evidence that the
photographic distinction technique employed here had been peer
reviewed or published.
The third Daubert factor looks to a technique’s known or
potential rate of error and whether standards exist to control
the technique’s operation. 509 U.S. at 594. The record
contains no indication of whether or how often the photographic
distinction technique would lead to an erroneous conclusion.
The fourth Daubert factor considers whether the technique
enjoys general acceptance within the relevant expert community.
509 U.S. at 594. Again, the record is silent except for Mr.
Pagel’s own comment that “[t]here’s not much call for”
identification of gold from photos alone. Thus, nothing in the
record supports the conclusion that Mr. Pagel’s opinion was
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based on a reliable technique. The military judge, therefore,
erred by allowing Mr. Pagel to offer his opinion that the watch
worn by Appellant in the Government’s photographic exhibits was
solid gold rather than gold plate.
C. Testimony Comparing Watches in Photographs
In the third and final part of the granted issue, we are
asked to determine whether the military judge abused his
discretion when he permitted Mr. Pagel to point out Cartier
characteristics in the Cartier advertisement, and then turn to
the Government’s photographic exhibits and indicate which of
those characteristics could be found in the watch worn by
Appellant in the photos.
Appellant argues that the fact that the photos of her were
undated allows for no inference that she was involved in the
robbery at all. Also, she asserts, Mr. Pagel was too unfamiliar
with the Cartier Tank Française to be able to identify such a
watch reliably through photos alone.
The Government contends that Mr. Pagel was sufficiently
familiar with the watch type in question. It also argues that,
in compliance with M.R.E. 401, Mr. Pagel’s testimony made a fact
of consequence -- Appellant’s involvement in the robbery -- more
probable than it would have been without that evidence. The
Government goes on to note that Mr. Pagel never testified that
Appellant was wearing the watch stolen from Mr. Monaghan. In
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any event, the Government asserts, Appellant’s arguments are
relevant to the weight of the evidence, not its admissibility.
When this Court reviews a military judge’s decision for an
abuse of discretion, “[t]he challenged action must . . . be
found to be ‘arbitrary, fanciful, clearly unreasonable,’ or
‘clearly erroneous’ in order to be invalidated on appeal.”
United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)(quoting
United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)(citation
omitted). Appellant is correct in her contention that Mr. Pagel
was not an authority on the Tank Française. Nonetheless, as we
have explained, his knowledge met the standard required by
M.R.E. 702. Appellant’s arguments are relevant to the weight of
this evidence, rather than to its admissibility. The military
judge did not abuse his discretion in permitting this testimony.
DECISION
Appellant is correct in her contention that the military
judge erred by allowing Mr. Pagel to testify on the
identification of gold in a photograph. We hold that this error
was harmless, however. We base our conclusion on a variety of
factors.
First, Mr. Pagel’s qualification as a witness did not
result in any new photo evidence before the jury. The
prosecution did not need Mr. Pagel to authenticate the Cartier
advertisement or the photos of Appellant wearing a watch; all of
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the prosecution’s exhibits had been admitted by the time he
began his testimony.
Next, defense counsel was able to explore that testimony.
The voir dire and cross-examination2 demonstrated the
shortcomings of both Mr. Pagel’s expertise and his method of
comparison. As the Federal Rules of Evidence Advisory Committee
explained:
A review of the caselaw after Daubert shows that the
rejection of expert testimony is the exception rather
than the rule . . . . [T]he trial court’s role as
gatekeeper is not intended to serve as a replacement
for the adversary system. As the Court in Daubert
stated: “Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.”
Fed. R. Evid. 702, advisory committee’s note (discussion of 2000
amendments)(quoting Daubert, 509 U.S. at 595) (other internal
quotation marks and citations omitted). Those “traditional and
appropriate means” were available to Appellant as weapons
against Mr. Pagel’s testimony. It appears that defense counsel
used them energetically.
Perhaps most important, the Government marshaled a variety
of strong evidence, including Mr. Pagel’s testimony, against
Appellant on this charge. For example, the Government produced
several witnesses to describe the actions that resulted in the
theft of Mr. Monaghan’s watch. They stated that Appellant was
2
Some cases may require a Daubert hearing, as well.
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the leader of the Gangster Disciples’ local chapter, that no
member of the Gangster Disciples will undertake action without
the approval of his or her leader, that Appellant was aware of
the robbery, and that, when a robbery yielded a major trophy,
such as a gold watch, it would go to the senior leader. The
Government then introduced Mr. Monaghan’s receipts to prove the
value of the stolen watch.
As we stated in United States v. Thomas, “we need not
decide whether the military judge properly performed his
gatekeeping function, because any error in admitting this
evidence was harmless in light of the overwhelming evidence
against appellant.” 49 M.J. 200, 204 (C.A.A.F. 1998)(citing
Article 59(a), UCMJ, 10 U.S.C. § 859(a)).
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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ERDMANN, Judge (concurring in part and in the result):
I agree with the majority that the military judge
erred by allowing Mr. Pagel to testify that the metal
reflected in a photograph was solid gold rather than gold
plate. Further, I agree that any error in Mr. Pagel’s
testimony was harmless in light of the abundant evidence
supporting the charge of robbery.
I respectfully disagree, however, that Mr. Pagel
possessed the necessary expertise in either Cartier
products or in the Cartier Tank Française watch in
particular to render expert opinions about the
characteristics of Cartier products. While Mr. Pagel was a
jeweler and had some passing familiarity with Cartier
watches, he did not deal in Cartier products and testified
that he had not seen the particular model Cartier watch he
was asked to identify. A Buick car dealer may be an expert
in Buicks, but that does not necessarily make him an expert
on a Mercedes SL600 Roadster, particularly if he has never
even seen a SL600 Roadster before. In my view, Mr. Pagel
did not possess specialized “knowledge, skill, experience,
training, or education” to support a claim that he was an
expert in Cartier products or in the Cartier Tank Française
watch in particular. Military Rule of Evidence 702.
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Nor do I believe that his testimony on the
characteristics of the Cartier watch was necessary. The
members of the court could have just as easily examined the
Cartier advertisement and the photograph of the watch worn
by Billings and drawn their own conclusions. The members
were “qualified without such testimony ‘to determine
intelligently and to the best possible degree the
particular issue.’” United States v. Houser, 36 M.J. 392,
398 (C.M.A. 1993) (quoting State v. Chapple, 135 P.2d 1208,
1219-20 (Ariz. 1983)). The members had no need for alleged
expert assistance in comparing two photographs and
determining whether the watches depicted were the same or
similar.
Although I believe that the military judge abused his
discretion in qualifying Mr. Pagel as an expert and in
admitting his testimony as a whole, I agree that any error
in this respect was harmless. Billings’s criminal
liability for robbery flowed from her status as a co-
conspirator. See Manual for Courts-Martial, United States
(2002 ed.), pt. IV, ¶ 5c(5). There was substantial
evidence of a conspiracy and that Billings was a member of
the conspiracy: Billings was the leader of the Gangsters
Disciples at Fort Hood and directed the activities of the
gang; she was present when the robbery of the Monaghan
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Properties office was discussed by the gang; gang members
committed the robbery; and Mr. Monaghan testified that his
Cartier Tank Française watch was stolen during the robbery
and he identified a photo of a Tank Française watch as an
exact picture of the watch that was stolen. The testimony
about solid gold versus gold plate and the “expert” picture
comparison of watches was unnecessary.
3