United States v. Velasquez , 64 F.3d 844 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-31-1995
United States v Velasquez
Precedential or Non-Precedential:
Docket 93-7236
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-7236
UNITED STATES OF AMERICA;
GOVERNMENT OF THE VIRGIN ISLANDS
v.
EDWIN VELASQUEZ,
Appellant.
On Appeal from the District Court of the Virgin Islands,
Division of St. Croix
(D.C. Criminal Action No. 91-cr-00014-01)
Argued April 17, 1995
Before: BECKER, NYGAARD and ROTH, Circuit Judges
(Opinion Filed August 31, 1995)
Michael A. Joseph, Esq. (Argued)
52A Company Street, Suite 1
Christiansted, St. Croix
Virgin Islands 00820
Attorney for Appellant
W. Ronald Jennings
United States Attorney
James R. Fitzner (Argued)
Assistant U. S. Attorney
1108 King Street - Suite 201
Christiansted, St. Croix
1
U. S. Virgin Islands 00820
Attorneys for Appellees
OPINION OF THE COURT
ROTH, Circuit Judge:
In this appeal, defendant, Edwin Velasquez, challenges
the district court's exclusion of the expert witness he proffered
to testify on his behalf on the subject of handwriting analysis
and the lack of standards in that field of expertise. Velasquez
was convicted on six counts of drug related offenses, including
Count VIII, engaging in a continuing criminal enterprise. He
appeals only his conviction on Count VIII.
At Velasquez's criminal trial, the Government relied
upon a handwriting expert, Lynn Bonjour, to link two of
Velasquez's accomplices to certain drug transactions. As a part
of his defense, Velasquez proposed to call Mark P. Denbeaux, a
Professor of Law at Seton Hall University and an expert "critic"
of the field of handwriting analysis, to assist the jury in
understanding the limitations of the Government's handwriting
testimony. The district court refused to admit Professor
Denbeaux's testimony.
In his appeal, Velasquez contends that, if Denbeaux's
testimony had been admitted, the Government might not have
2
convinced the jury that Velasquez had managed or organized a
continuing criminal enterprise involving at least five other
people. Velasquez asserts that Denbeaux's proposed testimony
might have persuaded the jury to discount the testimony of Lynn
Bonjour in which she identified the handwriting on two mailing
labels as that of two of Velasquez's associates. Because we find
that Professor Denbeaux is qualified to testify as an expert on
the limitations of handwriting analysis and because we conclude
that the exclusion of his testimony may very well have affected
the jury's verdict on Count VIII, we will reverse Velasquez's
judgment of conviction on the continuing criminal enterprise
offense and remand this case for a new trial on that count.0
I. BACKGROUND AND FACTS
0
Because we are remanding, we will not go on to consider
Velasquez's contention that the district court erred by
permitting DEA Agent Gregory Thrash to testify regarding the
manner in which cocaine is used and distributed and the manner in
which drug organizations operate between the Virgin Islands and
Florida. In particular, Velasquez asserts that Thrash testified
as an expert and that the Government failed to give the required
notice of that testimony to the defense.
We conclude that parts of Thrash's testimony do appear
to fall within the bounds of expert opinion. He testified not
just about the facts of this specific case but generally, from
his experience, about drug trafficking organizations, including
the persons required to perform different functions in such an
organization.
At the time of the trial in 1991, however, the
Government was not required to give notice of its expert
witnesses. Although Federal Rule of Criminal Procedure
16(a)(1)(E) was amended to require such notice in 1993, even the
amended rule requires the Government to give such notice only
"[a]t the defendant's request." Fed. R. Crim. P. 16(a)(1)(E). In
this appeal, Velasquez fails to allege that he made such a
request.
If, at the time of retrial, the defense should request
notification of expert witnesses, the Government will have the
opportunity to give such notice in a timely manner.
3
Edwin Velasquez was charged with eight counts of
criminal activity related to narcotics trafficking: Count I -
conspiracy to distribute a controlled substance in violation of
21 U.S.C. §§ 841(a)(1), 845, 846 and 963; Count II - possession
of a controlled substance with intent to distribute in violation
of 21 U.S.C. § 841(a)(1); Count III - possession of a controlled
substance on board an aircraft departing from the United States
in violation of 21 U.S.C. §§ 955 and 963; Count IV - importation
of a controlled substance into the custom territory of the United
States in violation of 21 U.S.C. §§ 952(a) and 963; Count V -
possession of a firearm in relation to a drug trafficking crime
in violation of 18 U.S.C. § 924(c); Count VI - simple possession
of a firearm in violation of V.I. Code Ann. tit. 14, § 2253(a);
Count VII - engaging in monetary transactions in property derived
from specified unlawful activity in violation of 18 U.S.C. §§ 2
and 1957(a); and Count VIII - engaging in a continuing criminal
enterprise in violation of 21 U.S.C. § 848.
During a five-day jury trial, the Government called
Lynn Bonjour to testify as an expert on handwriting analysis.0
0
Ms. Bonjour's qualifications are extensive. At the time of the
trial, Ms. Bonjour was employed as a Forensic Document Analyst
with the U.S. Postal Inspection Service and had been so employed
for fourteen and one half years. In conjunction with her
employment, the Postal Inspection Service had certified her as an
expert in the field of document analysis. Previously, she had
been employed by the U.S. Treasury Department, Bureau of Alcohol,
Tobacco and Firearms as a Document Analyst/Document Analyst
Trainee for four years. App. 125. In addition to her on-the-job
training, Ms. Bonjour had attended courses and seminars
throughout the country on handwriting identification and related
subjects, including classes at Georgetown University and George
Washington University and courses with the Secret Service and
FBI. She was a member of the Mid-Atlantic Association of
4
Defense counsel immediately objected to the admissibility of her
testimony, contending that handwriting analysis lacked measurable
standards and could not be considered a legitimate science.
Following voir dire examination on the admissibility of Ms.
Bonjour's testimony, the trial court rejected the defense's
arguments that handwriting analysis did not constitute a valid
field of scientific expertise. In so doing, the court relied, in
part, on Ms. Bonjour's testimony regarding the standards and
methodology of handwriting analysis.0
The court then permitted Ms. Bonjour to testify as an
expert in the field of questioned documents/handwriting analysis.
App. 138. Ms. Bonjour testified that, in her opinion, both
Velasquez's girlfriend, Glenda Arrindell, and one of his alleged
accomplices, Walter McKay, had written a mailing label which had
been used to ship drugs. App. 144, 171.
Forensic Scientists and a past president of the Questioned
Document section of that organization. She has testified as a
handwriting expert in approximately 100 court cases in twenty-six
different states.
0
Ms. Bonjour described the procedures that she, and other experts
in the field of handwriting analysis, employ as follows: First,
the expert determines whether a questioned document contains a
sufficient amount of writing and enough individual
characteristics to permit identification. After determining that
the questioned document is identifiable, the expert examines the
submitted handwriting specimens in the same manner. If both the
questioned document and the specimens contain sufficient
identifiable characteristics, then the expert compares those
characteristics, e.g., the slant of the writing, the shapes of
the letters, the letter connections, the height of letters, the
spacing between letters, the spacing between words, the "i" dots
and "t" crosses, etc. App. 136. After making these comparisons,
the expert weighs the evidence, considering both the similarities
and differences in the handwriting and determines whether or not
there is a match.
5
To counter Ms. Bonjour, the defense proferred Mark P.
Denbeaux, a Professor of Law at Seton Hall University, to testify
on two facets of handwriting analysis: as a critic of the field
of handwriting analysis or, in the alternative, as a handwriting
analyst himself. At the voir dire examination to determine the
admissibility of Denbeaux's testimony, he opined that handwriting
analysis is not a valid field of scientific expertise because it
lacks standards to guide experts in weighing the match or non-
match of particular handwriting characteristics. App. 189-194.
By way of example, Denbeaux pointed out that Ms. Bonjour had
relied on spacing characteristics (the spacing between lines) to
match Velasquez's accomplices with the shipping labels but had
failed to consider or explain why other non-matching aspects of
spacing (e.g., how the writing was located on the page both
vertically and horizontally, indentation, etc.) were not relevant
or as persuasive in forming her opinion. App. 205.
The district court refused to permit Professor Denbeaux
to testify either as to the limitations of handwriting analysis
generally or as to the limitations of Ms. Bonjour's particular
opinions concerning this case. The court explained that "whether
or not handwriting expertise is admissible in a courtroom" is a
"legal" question that was resolved against the defense when the
court permitted Ms. Bonjour to testify as a qualified expert in
the field of handwriting analysis. App. 182; see also Court's
Order and Memorandum, App. 31-34 (Because the court found "that
there are standard procedures in the field of handwriting
6
analysis, it refused to admit the testimony of Professor Denbeaux
to contradict the court's legal conclusion.").
The defense then sought to have Professor Denbeaux
qualified as an expert in handwriting analysis so that he could
compare the mailing labels with the handwriting specimens and
offer his opinion regarding the authorship of the labels. Again,
the court refused to allow Professor Denbeaux to testify. In
particular, the court relied on the Professor's lack of formal
training and inadequate practical experience in performing
handwriting analysis. Although the record reflects that the
Professor had considerable knowledge of the field of handwriting
analysis,0 he had never undertaken formal training in handwriting
analysis, had never been to a seminar on the subject, and had
never been a member of any related professional organization. In
addition, Denbeaux had "never been retained to give an opinion
about authorship." App. 201. Although on approximately 12
occasions, he had compared handwriting exemplars for the purposes
0
Professor Denbeaux testified that he had conducted eight years
of self-directed research on handwriting analysis, during which
he had read nearly all of the literature on the subject; had
spent four years as a statistical social scientist; had been
involved in some capacity regarding handwriting analysis in
approximately four court cases; had been named an American Bar
Association Fellow for his research related to the creation of a
testing mechanism to certify handwriting analysts and validate
the accuracy of their identifications; and had collaborated with
two co-authors to publish a work challenging the entire field of
handwriting analysis based on the lack of empirical testing,
selectively chosen premises, and inadequate standards and
procedures, see D. Michael Risinger, Mark P. Denbeaux, & Michael
J. Saks, Exorcism of Ignorance as a Proxy for Rational Knowledge:
The Lessons of Handwriting Identification "Expertise", 137 U. Pa.
L. Rev. 731 (1989).
7
of making his own identifications, none of these comparisons had
been independently corroborated for accuracy. App. 213.
At the end of the trial, the jury convicted Velasquez
on Counts I, II, III, IV, VI and VIII. The court declared a
mistrial as to Counts V and VII. On July, 10, 1992, Velasquez
was sentenced to 292 months imprisonment, a $250 special
assessment and a $25,000 fine. Almost two years later, on May
16, 1994, the court reduced Velasquez's term of imprisonment to
180 months and five years of supervised release, in recognition
of cooperation with the government.
Velasquez has appealed only his conviction on Count
VIII, illegally engaging in a continuing criminal enterprise
involving at least five people other than himself. He contests
the district court's exclusion of Professor Denbeaux's testimony
criticizing the field of handwriting analysis. Velasquez claims
that, if Professor Denbeaux had been permitted to testify, the
jury might not have accepted Ms. Bonjour's testimony which was
essential in connecting two of the necessary five persons to
Velasquez's drug operations.0
Although Velasquez did not file a formal notice of
appeal, he sent a letter to the district court judge shortly
0
Because the limited record on appeal does not expressly identify
the number of people involved in the criminal enterprise, we
assume that Ms. Bonjour's testimony connecting these two
participants with the Defendant's criminal activities was
necessary to obtain Defendant's conviction on Count VIII of the
indictment, which required that the Defendant occupy a position
of control in a ongoing criminal enterprise involving five or
more individuals. See 21 U.S.C. § 848 (1982). This assumption
is bolstered by the Government's failure to allege otherwise in
its brief to this Court.
8
after his sentencing on July 13, 1992, challenging his
conviction. In October of 1992, he requested that the district
court treat his July 13, 1992, letter as notice of appeal or, in
the alternative, as a motion to file a notice of appeal out of
time. The district court granted his motion on March 31, 1993,
and he filed his notice of appeal with this Court on April 5,
1993. We have jurisdiction over his appeal pursuant to 28 U.S.C.
§ 1291.
II. STANDARD OF REVIEW
We review the trial court's ruling on the admissibility
of Professor Denbeaux's testimony for abuse of discretion, "``but
to the extent the district court's ruling turns on an
interpretation of a Federal Rule of Evidence our review is
plenary.'" In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717,
749 (3d Cir. 1994) (quoting DeLuca v. Merrell Dow
Pharmaceuticals, Inc., 911 F.2d 941, 944 (3d Cir. 1990)), cert.
denied, 115 S. Ct. 1253 (1995) ("Paoli II"). We review the
district court's findings of fact under a clearly erroneous
standard. Sheet Metal Workers Int'l Ass'n Local 19 v. 2300
Group, Inc., 949 F.2d 1274, 1278 (3d Cir. 1991).
III. DISCUSSION
The district court refused to admit Professor
Denbeaux's testimony criticizing the lack of standards in the
field of handwriting analysis because the court had already
concluded that expert testimony concerning handwriting analysis
evidence was sufficiently reliable to be admitted pursuant to
Federal Rule of Evidence 702. We believe, however, that, even
9
though the district court had recognized handwriting analysis as
a field of expertise, the court erred as a matter of law in
denying the defense the opportunity to criticize the standards
employed in that field of expertise.0 Professor Denbeaux's
testimony as a critic of handwriting analysis would have assisted
the jury in evaluating the Government's expert witness. In
excluding Denbeaux's critique, the court ignored the fact that
the same considerations that inform the court's legal decision to
admit evidence under Rule 702 may also influence the factfinder's
determination as to what weight such evidence, once admitted,
should receive. The Government conceded as much, stating that
evidence that handwriting analysis is not scientifically credible
"goes to [the] weight" that such handwriting evidence should
receive. App. 123. The district court even acknowledged, in its
preliminary consideration of the admissibility of Ms. Bonjour's
expert testimony, that Professor Denbeaux's proposed criticism of
0
In his opening brief to this Court, Velasquez also challenges
the district court's refusal to qualify Professor Denbeaux as an
expert in conducting handwriting analysis. In his reply brief,
however, Velasquez recants this argument, stating unequivocally
that "Professor Denbeaux is not an expert in the identification
of questioned writings." Reply Br. at 1; see also Reply Br. at
n.1 ("Trial Court erroneously understood that Professor Denbeaux
was being put forward as an handwriting expert"). Because of
this concession, we need not address the issue of whether
Professor Denbeaux was qualified to testify as to his ability -or
inability - to identify the handwriting on the exemplars
proferred by the Government. We note, however, that there
appears to be a close link between the ability, or not, of an
expert generally to recognize the characteristics of handwriting
which are described as helpful in identifying the scrivener of an
exemplar and the ability, or not, of an expert in a specific case
to identify the scrivener of a particular document through the
recognition of those same characteristics.
10
the lack of standards in handwriting analysis might go "to the
weight" of the Bonjour testimony. App. 133.
The axiom is well recognized: the reliability of
evidence goes "more to the weight than to the admissibility of
the evidence." See, e.g., United States v. Jakobetz, 955 F.2d
786, 800 (2d Cir. 1992) ("DNA profiling evidence should be
excluded only when the government cannot show [a] threshold level
of reliability in its data. . . . [T]he court in exercising its
discretion should be mindful that this issue should go more to
the weight than to the admissibility of the evidence."), cert.
denied, 113 S. Ct. 104 (1992). Because Professor Denbeaux's
proffered testimony called into doubt the reliability and
credibility of Lynn Bonjour's handwriting testimony, the jury
should have been permitted to hear his testimony in order to
properly weigh the testimony of Ms. Bonjour.
If the jury had had the opportunity to credit
Denbeaux's testimony, criticizing handwriting analysis in general
and Ms. Bonjour's testimony in particular, the jury might have
discounted Ms. Bonjour's testimony and thereby found that the
Government had failed to prove beyond a reasonable doubt that
Velasquez's continuing criminal enterprise involved at least five
other people -- a necessary element of his conviction on Count
VIII. Thus, we hold that the district court's determination on
the admissibility of Ms. Bonjour's handwriting analysis testimony
should not be permitted to preclude the jury from hearing other
relevant evidence attacking the reliability of her testimony.
11
Our conclusion that Professor Denbeaux's expert
testimony was admissible is consistent with the "strong and
undeniable preference for admitting any evidence having some
potential for assisting the trier of fact" which is embodied in
the Federal rules of Evidence. DeLuca v. Merrell Dow
Pharmaceuticals, Inc., 911 F.2d 941, 956 (3d Cir. 1990). Rule
702, which governs the admissibility of expert testimony,
specifically embraces this policy. See Fed. R. Evid. 702
advisory committee's note (expert testimony should be admissible
if it will assist trier of fact); Paoli II, 35 F.3d at 741 (Rule
702 has "liberal policy of admissibility").
Rule 702 has three major requirements: (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.0 Paoli II, 35
F.3d at 741-42. Because Federal Rule of Evidence 104(a) requires
district courts to make preliminary determinations "concerning
the qualification of a person to be a witness, [and] . . . the
admissibility of evidence," a district court, when faced with a
proffer of expert testimony, must make a preliminary
determination as to all of these elements of Rule 702. See
Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, 2796
(1993) ("Faced with a proffer of expert scientific testimony, . .
0
Rule 702 provides: "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." Fed. R. Evid. 702.
12
. the trial judge must determine at the outset, pursuant to Rule
104(a), whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact to
understand or determine a fact in issue.") (footnotes omitted).
These preliminary determinations are intended to ensure the
reliability of the expert testimony as well as its relevance. Id.
at 2795; Downing, 753 F.2d at 1237.
The first requirement of Rule 702 -- that the proposed
witness be an expert -- has been liberally construed by this
Court. Paoli II, 35 F.3d at 741. "We have held that a broad
range of knowledge, skills, and training qualify an expert as
such," and have "eschewed imposing overly rigorous requirements
of expertise." Id.; see also Hammond v. International Harvester
Co., 691 F.2d 646, 653 (3d Cir. 1982) (permitting engineer with
sales experience in automotive and agricultural equipment, who
also taught high school automobile repair, to testify in products
liability action involving tractors).
The second requirement of Rule 702 -- that the expert
testify to scientific, technical or other specialized knowledge -
- is intended to ensure the reliability or trustworthiness of the
expert's testimony. Daubert, 113 S. Ct. at 2795-96.
In Daubert, the Supreme Court held that a district
court, when presented with a proffer of expert "scientific"
testimony, must make a "preliminary assessment of whether the
reasoning or methodology underlying the testimony is
scientifically valid," by considering all relevant factors that
13
may bear on the reliability of the proffered evidence.0 113 S.
Ct. at 2796-97; Paoli II, 35 F.3d at 742. Scientific evidence is
deemed sufficiently reliable if the expert has "good grounds" for
his or her testimony, i.e., the expert's opinions are "based on
the ``methods and procedures of science' rather than on
``subjective belief or unsupported speculation.'" Paoli II, 35
F.3d at 742 (quoting Daubert, 113 S. Ct. at 2795). We have
cautioned, however, against applying the reliability requirement
too strictly, explaining that "the reliability requirement must
not be used as a tool by which the court excludes all
questionably reliable evidence. The ultimate touchstone [of
admissibility] is helpfulness to the trier of fact." Id. at 744
(internal quotations and citation omitted).
The third requirement of Rule 702 is to ensure that the
evidence is relevant or "fits" under the facts of the case.
Daubert, 113 S. Ct. at 2795-96. There must be a valid connection
between the expertise in question and the inquiry being made in
the case. Paoli II, 35 F.3d at 743. When dealing with
"scientific" evidence, this element is satisfied if there is a
0
Courts should consider the following suggested factors, in
addition to any other applicable factors, in making a preliminary
determination regarding the reliability of scientific testimony:
(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.
Paoli II, 35 F.3d at 742 n.8.
14
"connection between the scientific research or test result to be
presented, and particular disputed factual issues in the case."
United States v. Downing, 753 F.2d 1224, 1237 (3d Cir. 1985); see
also Paoli II, 35 F.3d at 742-43.
Is it, however, appropriate to apply the Daubert tests
for scientific expert testimony to the field of handwriting
analysis? The Daubert tests have been considered by some courts
to be too stringent to employ in considering whether to admit the
expert testimony of accountants and construction experts. See
Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d
Cir. 1994) (Daubert clarified standards for evaluating scientific
knowledge only and, therefore, does not apply to exclude
affidavits of geotechnical and underground-construction experts
who were retained to summarize and interpret voluminous,
technical data); Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53
(accountant's affidavit summarizing his review of payroll records
not inadmissible under Daubert because "that case specifically
dealt with the admissibility of scientific evidence"); United
States v. Starzecpyzel, 880 F. Supp. 1027, 1040-41 (S.D.N.Y.
1995) (Daubert factors of testability, known error rate, peer
review and publication, and general acceptance not applicable to
determination of admissibility of testimony by forensic document
examiner; "Daubert does not impose any new standard, other than
what is found in the text of the Federal Rules of Evidence, for
the admissibility of the testimony of nonscientific experts such
as harbor pilots or real estate appraisers."). However, in an
exercise of caution, we will review Denbeaux's testimony under
15
the Daubert tests because those tests are helpful to assist us in
our consideration of the expertise in question here. We will
therefore examine both Lynn Bonjour's and Prof. Denbeaux's
testimony for qualifications, reliability and fitness as those
factors have been explicated in Daubert.
In the present case, there is no question that the
district court properly admitted Ms. Bonjour's handwriting
analysis testimony because her testimony met all three of the
requirements of Rule 702. See Government of Virgin Islands v.
Sanes, 57 F.3d 338 (3d cir. 1995) (approving district court's
decision to admit testimony of professor of linguistics on issues
of voice identification). First, Ms. Bonjour is clearly
experienced in handwriting analysis. Her qualifications in this
regard are extensive, including her more than fourteen years of
experience as a Forensic Document Analyst for the U.S. Postal
Inspection Service. See supra note 2.
Second, the field of handwriting analysis consists of
"scientific, technical or other specialized knowledge" properly
the subject of expert testimony under Rule 702. The district
court held a hearing at which it made the requisite preliminary
finding that the methodology underlying handwriting analysis was
valid and applicable to the facts of the present case. In
particular, the court questioned Ms. Bonjour as follows:
COURT: Is [there] a standard methodology
when you look at a handwriting specimen?
BONJOUR: Yes.
COURT: Give me a little discussion of what
you look for in your analysis. . . .
16
BONJOUR: First I look at the questioned
writing and look at that to determine whether
it's identifiable, whether it has sufficient
individual characteristics as opposed to
class characteristics. So that it can be
identified. Whether there is a sufficient
amount of the writing for a comparison. And,
once I determine whether or not it is
identifiable, then I look at the submitted
handwriting specimens for the same purposess
[sic], to determine whether they have been
naturally written, whether they contain
identifiable characteristics, individual
characteristics. I then compare the
characteristics.
COURT: What do you mean by characteristics?
BONJOUR: Characteristics are the, [sic]
slant, the shapes of the letters, the letter
connections, the height of the letters, the
spacing between letters, spacing between
words, the i dots, t crosses. Every single
thing in that writing is a characteristic.
They, in order to effect an identification,
they have to be demonstrated and if they do
not match exactly, I have to have a good
reason for why they don't. . . . Once I have
made the comparison, I weigh the evidence I
have seen and determine whether or not this
is a match or probably a match or I don't
know or it is not a match.
COURT: Is this the protocol you follow in
every instance?
BONJOUR: In every instance.
COURT: To your knowledge, in your
association with other people who are in your
field, is this the protocol they follow?
BONJOUR: Yes, it is.
App. 136-37. Immediately following this colloquy, the Court
admitted Ms. Bonjour as an expert in the field of questioned
documents, i.e., handwriting analysis. App. 138. We agree with
17
the district court that Ms. Bonjour's proposed testimony
concerned "scientific, technical or other specialized knowledge"
and was sufficiently reliable to be admissible.
Ms. Bonjour's testimony also satisfied the third
requirement -- that the expert's testimony assist the trier of
fact. Her testimony, comparing the handwriting of Velasquez's
accomplices with the handwriting on the mailing labels used to
ship drugs, was of assistance to the jury in determining whether
the accomplices had written the labels, a fact at issue in this
case. Specifically, Ms. Bonjour's testimony, if credited by the
jury, linked two people to Defendant's drug activities where one
of the issues at trial was whether Defendant had managed or
organized a continuing criminal enterprise involving at least
five other persons. Accordingly, the district court correctly
admitted Ms. Bonjour's expert testimony on handwriting analysis
under Rule 702.
Similarly, Professor Denbeaux's proffered testimony
meets all three requirements of Rule 702. First, in light of our
liberal interpretation of expertise, the record shows that
Professor Denbeaux has sufficient specialized knowledge of the
limitations of handwriting analysis to be considered an expert in
that regard. See Downing, 753 F.2d at 1229-30 (expert testimony
on limitations of eyewitness perception and memory may under
certain circumstances satisfy helpfulness test of Rule 702). In
particular, we point to the Professor's eight years of self-
directed research on handwriting analysis and his co-authorship
of a law review article on the subject. See supra note 3. The
18
mere fact that the Professor is not an expert in conducting
handwriting analysis to identify particular scriveners of
specified documents does not mean that he is not qualified to
offer expert testimony criticizing the standards in the field.
Second, the Professor's proposed testimony criticizing
handwriting analysis consisted of "scientific, technical or other
specialized knowledge" reliable enough to be admitted under Rule
702. The Professor criticized the lack of standards and the
possibility for error involved in handwriting analysis. These
criticisms could be and, on a limited basis have been, tested;
they have been published and subjected to peer review. See D.
Michael Risinger, Mark P. Denbeaux, & Michael J. Saks, Exorcism
of Ignorance as a Proxy for Rational Knowledge: The Lessons of
Handwriting Identification "Expertise", 137 U. Pa. L. Rev. 731
(1989) (detailing tests conducted to determine accuracy of
handwriting analysts).0 We find that sufficient evidence exists
to show that the Professor had "good grounds" for his rejection
of handwriting analysis.
Finally, the Professor's proffered testimony was highly
relevant to the reliability of Ms. Bonjour's testimony. His
criticisms of the field of handwriting analysis generally, as
well as Ms. Bonjour's analysis in this case, would have assisted
the jury in determining the proper weight to accord Ms. Bonjour's
testimony. His testimony "fits" the facts of the case because
0
Ms. Bonjour acknowledged that she had read Professor Denbeaux's
law review article, although her critique -- "it's a lot of
gibberish" -- was less than glowing. App. 164.
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his opinions, criticizing handwriting analysis and Ms. Bonjour's
conclusions, connect to the issue of whether Defendant's
continuing criminal enterprise involved at least five other
people.
Thus, in light of the liberal standard of admissibility
of Rule 702, Professor Denbeaux's testimony should have been
admitted. Moreover, because his testimony bore on the critical
issue of Ms. Bonjour's identification of the persons who were
required to have participated in Velasquez's "continuing criminal
enterprise," his testimony might very well have affected the
jury's verdict on Count VIII. We cannot conclude that the
district court's decision to exclude that evidence was harmless
error.
IV. CONCLUSION
The district court erred as a matter of law in refusing
to permit Professor Denbeaux to testify as to the limitations of
handwriting analysis. Accordingly, we will vacate Velasquez's
judgment of conviction for engaging in a continuing criminal
enterprise, in violation of 21 U.S.C. § 848, and we will remand
this case to the district court for a new trial on that count.
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