United States v. Foust

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 2, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-6161
JUSTIN LANE FOUST,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:18-CR-00011-F-1)
_________________________________
Howard A. Pincus, Assistant Federal Public Defender (and Virginia L. Grady, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.
Jessica L. Perry, Assistant United States Attorney (and Timothy J. Downing, United
States Attorney, with her on the brief), Oklahoma City, Oklahoma, for Plaintiff -
Appellee.
_________________________________
Before McHUGH, KELLY, and EID, Circuit Judges.
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KELLY, Circuit Judge.
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Defendant-Appellant Justin Foust appeals from his conviction on six counts of
wire fraud, and one count each of aggravated identity theft and money laundering.
He was sentenced to 121 months’ imprisonment and three years’ supervised release.
Briefly, Mr. Foust’s company, Platinum Express, LLC, submitted false and
fraudulent invoices to its customer, Chesapeake Energy Corporation (“Chesapeake”).
Chesapeake identified more than $4.5 million that it had paid out on these invoices.
Mr. Foust did not deny that the invoices were improper and that Platinum Express
had not performed the work. But he denied that he had forged the signatures and
employee identification numbers of Chesapeake employees. A handwriting expert
testified otherwise regarding invoices associated with Chesapeake employee Bobby
Gene Putman.1 The jury convicted Mr. Foust on the wire-fraud and aggravated-
identity-theft counts associated with these invoices.
On appeal, Mr. Foust argues that the district court abused its discretion by
allowing the handwriting expert to testify at trial. He contends that (1) the
government did not adequately show that the expert’s methodology was reliable and
(2) the handwriting expert used unreliable data in reaching his opinion. This court
has jurisdiction under 28 U.S.C. § 1291, and we affirm.
Background
Mr. Foust was a production foreman at Chesapeake where he operated oil and gas
wells. In 2011, he left Chesapeake to start Platinum Express, which performed water-
hauling services for oil and gas companies. Not long after forming, Platinum Express
1
Both the government and Mr. Foust use the spelling “Putnam” in their briefs,
but at trial his name was spelled “Putman.” 3 R. 85. We will use “Putman” in this
opinion.
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entered into a contract with Chesapeake. A few years later, Chesapeake employees
discovered the fraudulent invoices submitted by Platinum Express. Chesapeake began
investigating the matter and told Mr. Foust that it was going to exercise its contractual
right to examine Platinum Express’ computers and business records. But while
Chesapeake investigators were travelling to the Platinum Express office, Mr. Foust told
them that someone had broken into the office and stolen two computers. The
investigating sheriff’s deputy believed the break-in was staged by Mr. Foust. Chesapeake
decided to turn the investigation over to the FBI.
When the FBI initially talked to Mr. Foust, he blamed the fraudulent invoices on
Mr. Lucas, Platinum Express’ general manager, and Ms. Lucas, the office manager.
However, the agents could not connect the Lucases to the fraudulent invoices, so they
determined that Mr. Foust was likely involved. The FBI learned, among other things,
that: Mr. Foust had access to and controlled the Platinum Express account; all of the
checks from Chesapeake were traced into the Platinum Express account and the Fousts
used that account for personal expenses; the Fousts received business profits; and Mr.
Foust was knowledgeable of Chesapeake’s practices due to his previous employment
there.
Prior to trial, Mr. Foust requested a Daubert hearing to determine whether the
government’s handwriting expert, Arthur Linville, would be allowed to testify. Mr.
Linville is an experienced, board-certified forensic document examiner and was initially
retained by Chesapeake during its investigation. During the hearing he explained his
methodology, which consists of comparing the known writing with “exemplars of the
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suspect’s writing.” 2 R. 15. He looks for common characteristics between the exemplars
as well as any unexplained differences. When comparing exemplars, Mr. Linville
considers their “[q]uantity, quality and comparability.” Id. at 29. He first determines the
number of exemplars needed for a comparison, which depends on the range of variation
in an individual’s handwriting. He considers whether an exemplar was written “in the
normal course of business” and prefers “relatively contemporaneous” writings “within a
year or two” of each other. Id. at 28–29. However, Mr. Linville explained that the
necessary timing can vary noting that change in handwriting over time is “somewhat
overstated.” Id. at 43–44. Mr. Linville follows American Society for Testing and
Materials (“ASTM”) standards but conceded at the hearing that they are “pretty basic”
and not “hard-and-fast rules.” Id. at 57–59. Finally, he mentioned that studies have
found that forensic document examiners had a less than 1% error rate, while lay people
had a 6.5% error rate.
While explaining his analysis of this case, Mr. Linville sorted the invoices by the
type of forgery, which included “cut and paste” forgeries and “freehand” forgeries. Id. at
18. The fraudulent invoices associated with another Chesapeake employee (Jeff Willis)
were cut-and-paste forgeries. Mr. Linville could not provide an opinion on these
forgeries and the jury ultimately hung on the counts associated with them. On the other
hand, the invoices with Bobby Gene Putman’s signatures were freehand forgeries. Mr.
Linville testified that the invoices with Mr. Putman’s signature “absolutely were not Mr.
Putman’s signature” but were written in the natural hand of the writer — i.e., the author
did not try to recreate the signature. Id. at 26–27. He was able to rule out the Lucases
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because of the different style of numbers and the quality of penmanship. As to Mr.
Foust, Mr. Linville compared the invoices to exemplars of Mr. Foust’s writing from
2002, 2011, and 2017. Mr. Linville opined that Mr. Foust forged Mr. Putman’s signature
because of similarities in pictorial appearance, skill, and other unique characteristics in
the numbers.
Next, the district court laid out the standards it would apply under Rule 702 and
summarized Mr. Linville’s testimony. The court concluded that Mr. Linville was using
an accepted methodology and reliably applied the methodology to the facts of the case.
Although the court noted that handwriting comparison looks like “black magic” to the
“untrained eye,” it was still able to look at the samples and determine whether there were
facts supporting Mr. Linville’s opinion. Id. at 70–71. Therefore, the court concluded that
Mr. Linville’s testimony was admissible.
Discussion
We review the district court’s application of Rule 702 and Daubert for abuse
of discretion. Etherton v. Owners Ins. Co., 829 F.3d 1209, 1216 (10th Cir. 2016).
We give the district court substantial deference, reversing only when its ruling was
“arbitrary, capricious, whimsical or manifestly unreasonable” or when it made “a
clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Id. (quoting Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.
2003)). The district court’s discretion extends to both how it assessed the expert’s
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reliability as well as its “ultimate determination of reliability.” Id. (quoting Goebel
v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987, 990 (10th Cir. 2003)).
Federal Rule of Evidence 702 requires federal courts to ensure that expert
testimony “is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 589 (1993). A district court first determines whether the witness has
the requisite “knowledge, skill, experience, training, or education” to provide an
expert opinion. Fed. R. Evid. 702; United States v. Nacchio, 555 F.3d 1234, 1241
(10th Cir. 2009). Next, it “determine[s] whether the expert’s opinion is reliable by
assessing the underlying reasoning and methodology.” Nacchio, 555 F.3d at 1241. If
either of these steps renders the expert’s opinion unreliable, the testimony is
inadmissible. Id.On appeal, Mr. Foust does not challenge Mr. Linville’s qualifications but
instead raises two arguments aimed at the reliability of his methodology. First, he
argues that the government did not meet its burden of establishing that Mr. Linville’s
methodology was reliable under the Daubert/Kumho Tire test. Second, he argues that
Mr. Linville did not use reliable data — thus, making his method unreliable —
because the exemplars were not sufficiently contemporaneous. We disagree and
conclude the district court did not abuse its discretion in admitting the testimony.
A. Mr. Linville’s Methodology
Beginning with Mr. Foust’s broader argument, he contends that the
prosecution failed to establish that Mr. Linville’s methodology was reliable. In
Daubert, the Supreme Court highlighted a number of considerations relevant to this
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inquiry: (1) whether the theory can be tested; (2) whether it is subject to peer review
and publication; (3) the known or potential error rate; (4) the existence and
maintenance of standards; and (5) the general acceptance in the relevant scientific
community. 509 U.S. at 593–94. However, this list is not exclusive, and the test for
reliability is flexible. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150
(1999). Handwriting analysis is primarily an experience-based expertise, as opposed
to science-based, which could make some Daubert factors less relevant than others.
See id. Still, “some of Daubert’s questions can help to evaluate the reliability even
of experience-based testimony.” Id. at 151.
Turning to the factors, we begin with whether Mr. Linville’s method can be
(and has been) tested. Although it appears that testing of handwriting comparison
“mostly falls short of the rigors demanded by the ideals of science,” it is still subject
to less rigorous forms of testing. See United States v. Baines, 573 F.3d 979, 990
(10th Cir. 2009) (discussing Daubert factors in the context of fingerprint analysis).
Testing may be done through “criminal investigation[ and] court proceedings,” as
well as certification and proficiency exams. Id. Here, Mr. Linville has undergone
years of training, has been certified by organizations of forensic examiners, and has
rendered expert opinions in hundreds of cases. Therefore, this factor provides some
support for admissibility.
Furthermore, the general-acceptance factor weighs in favor of admissibility.
As the district court noted, “based on his description of how his science is practiced
and the way it has apparently been practiced for a good many years, my conclusion is
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[] he is using accepted methodologies.” 2 R. 70. Mr. Linville testified that
handwriting analysis is a comparative process and two fundamental principles
underlie the process: (1) no two individuals’ handwriting is the same and (2) an
individual’s own handwriting is never exactly the same. He has also received
training through forensic organizations and federal agencies, which demonstrates
some consensus in the field. Although, as Mr. Foust argues, acceptance by unbiased
experts is always better, that does not mean this factor cannot support admission. See
Baines, 573 F.3d at 991. And given the widespread acceptance of handwriting
comparison through the years, we think this factor supports admissibility in this case.
See, e.g., United States v. Crisp, 324 F.3d 261, 271 (4th Cir. 2003).
On the other hand, the standards, peer-review, and error-rate factors do not
necessarily support admission. Mr. Foust was correct to point out that Mr. Linville’s
testimony regarding peer review and error rates was lacking. Mr. Linville stated that he
participated as a guest editorial board member on a peer-reviewed forensic journal;
however, there was no testimony regarding whether his own methodology had been peer
reviewed. Mr. Linville also testified generically that forensic examiners have a less than
1% error rate while lay people have a 6.5% error rate, but it is not clear that the study
concerned the process of identifying the author. While there may be available evidence
regarding peer review and error rates, it was not adequately presented at the Daubert
hearing to support admission.
Finally, Mr. Linville follows the ASTM standards for his analysis, but he testified
that these guidelines were “pretty basic” and not “hard-and-fast rules.” 2 R. 59. Much
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like fingerprint analysis, handwriting comparison relies a lot “on the subjective judgment
of the analyst,” which may cut against admissibility. Baines, 573 F.3d at 991. With that
said, the nature of handwriting comparison as an experience-based expertise lends itself
to greater reliance on subjectivity when compared to science-based expertise. So while
this factor does not necessarily support admission, we think it has less relevance in the
specific context of handwriting comparison. See Kumho Tire, 526 U.S. at 150.
On balance, our review of the Daubert factors provided mixed results, however
we recognize that they are “meant to be helpful, not definitive.” Id. at 151. This
understanding is particularly important because handwriting comparison is not a
traditional science, and the Daubert factors do not always correspond perfectly. See
id. at 150. During the hearing, the district court heard extensive testimony about Mr.
Linville’s methodology and analysis in this case and observed that whether the expert
used accepted methodologies really had not been questioned. 2 R. 70. We recognize
that there has been criticism of handwriting expertise in both the courts and academic
literature. See, e.g., Almeciga v. Ctr. for Investigative Reporting, Inc., 185 F. Supp.
3d 401 (S.D.N.Y. 2016); Jennifer L. Mnookin, Scripting Expertise: The History of
Handwriting Identification Evidence and the Judicial Construction of Reliability, 87
Va. L. Rev. 1723 (2001). However, given our standard of review, the district court
did not abuse its discretion in finding Mr. Linville’s methodology reliable.
B. Mr. Linville’s Underlying Data
Mr. Foust next argues that Mr. Linville’s opinion is based on faulty data that
renders his methodology unreliable. Specifically, he highlights Mr. Linville’s use of
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exemplars outside his one-to-two-year range for contemporaneousness, thus violating
his own methodology. We disagree.
To start, Mr. Foust overstates Mr. Linville’s testimony. When discussing the
timing of exemplars, Mr. Linville said, “it would be nice if they were written
relatively contemporaneous in time with the questioned writing, and that can be
within a year or two preceding or following the documents at issue.” 2 R. 29. He
noted that this was his “personal preference” and it was a view “expressed in text that
[he] own[s].” 2 R. 43. He elaborated further that the need for contemporaneous
exemplars varies, explaining that change in handwriting is “somewhat overstated”
but there can be circumstances where very recent exemplars are needed. 2 R. 43–44.
Mr. Foust’s suggestion that the two-year cutoff is a strict rule under Mr. Linville’s
methodology is not supported by the record.
Furthermore, Mr. Linville relied primarily on the 2011 and 2017 exemplars
that were two-and-a-half months and eight-months outside the two-year range. Mr.
Foust’s quarrel about the two-year cutoff goes to the weight, not the admissibility of
Mr. Linville’s testimony. It is “for the jury to evaluate the reliability of the
underlying data, assumptions, and conclusions.” In re Urethane Antitrust Litig., 768
F.3d 1245, 1263 (10th Cir. 2014). Not every issue raised about an expert’s opinion
requires the testimony to be excluded. Instead, many of those concerns can be
addressed through “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596. Indeed,
Mr. Foust used much of his cross-examination to discredit the exemplars’ reliability.
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The district court also instructed the jury that it is not required to accept opinion
testimony and that it is free to give the testimony as much weight as the jury thinks it
deserves. 1 R. 320.
Because we believe this issue concerns the data’s reliability — as opposed to
the methodology’s reliability as a whole — Mr. Foust’s reliance on a nonprecedential
case, Crew Tile, is inapt. See Crew Tile Distrib., Inc. v. Porcelanosa L.A., Inc., 763
F. App’x 787 (10th Cir. 2019) (unpublished). In that case, we concluded that the
district court erred by admitting a handwriting expert’s testimony where the expert
failed to complete the verification step of her methodology. Id. at 797–98. We
reasoned that by skipping that step the expert had “completely changed a reliable
methodology” or “misapplied that methodology.” Id. at 797 (alteration and citation
omitted). Importantly, we noted that the district court did not conduct a Daubert
hearing and the party failed to show that the methodology was still reliable without
the missing step. Id. at 797. Here, the district court conducted a Daubert hearing
where Mr. Linville testified precisely about how the importance of contemporaneous
exemplars can vary. Mr. Linville did not skip a step or change his methodology.
AFFIRMED.
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