United States v. Varian Scott

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 16, 2010
No. 09-16457 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00495-CR-2-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VARIAN SCOTT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 16, 2010)
Before EDMONDSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Varian Scott appeals his convictions and sentences for conspiracy to commit
health care fraud and 20 counts of health care fraud. On appeal, Scott argues that
the district court violated his Sixth Amendment right to confrontation when it
allowed the government to introduce a CD of Medicaid claims data without
affording him an opportunity to cross-examine the employee who prepared the CD.
He also asserts that he was deprived of a fair trial because the district court
admitted unreliable expert testimony concerning fingerprint examination. Finally,
he contends that his sentences are substantively unreasonable because the district
court did not give sufficient weight to the need to avoid unwarranted disparities
between his sentences and the sentences given to his co-conspirators. For the
reasons set forth below, we affirm Scott’s convictions and sentences.
I.
Scott was charged in a superseding indictment with 1 count of conspiracy to
commit health care fraud, in violation of 18 U.S.C. § 1349, and 20 counts of health
care fraud, in violation of 18 U.S.C. §§ 1347 and 2. Prior to trial, Scott filed a
motion in limine to exclude the testimony of a government fingerprint expert,
Jessica LeCroy. He argued that fingerprint examination is too unreliable to be
admissible under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court
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took Scott’s motion under advisement.
The government’s chief witness at trial was a cooperating codefendant,
Hezron Collie. Collie explained that he and Scott entered into a plan to forge
prescriptions for HIV and cancer medications, fill those prescriptions using
Medicaid numbers belonging to others, and sell the medications to another source
for a profit. Collie’s testimony was corroborated by Wendell Shoemaker, a
pharmacist, and Theresa Bradley, a pharmacy technician, both of whom admitted
filling prescriptions for Scott and Collie in exchange for money.
Scott’s defense was that Collie was responsible for the fraudulent
prescriptions, and that he himself had no involvement in the conspiracy. In his
opening statement, Scott explained, “The issue in this case is really not about
whether false prescriptions were submitted to Medicaid and filled. They were.
The issue in this case is whether Mr. Scott knew and whether he knowingly and
willfully participated.” Similarly, during closing arguments, Scott stated, “This
case is not about whether there was health care fraud . . . This case is solely about
whether Mr. Scott knowingly and willfully conspired with Mr. Shoemaker, Ms.
Bradley, and Mr. Collie, and whether he knowingly and willfully committed health
care fraud.”
The Confrontation Clause issue relates to a CD of Medicaid claims data that
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the government introduced into evidence on the first day of trial. Michael Johnson,
a former supervisor with the Georgia Department of Audits and Accounts,
explained that the CD contained approximately 17,000 out of the 1 million claims
processed annually in the state of Georgia. The CD was based on records kept by
the Department of Audits in the regular course of its business. Although Johnson
reviewed the data on the CD for accuracy, he did not create the CD himself.
Scott objected to the introduction of the CD into evidence. He argued that,
under the Confrontation Clause of the Sixth Amendment, he had the right to
cross-examine the employee who actually prepared the CD. The government
conceded that the CD was prepared in anticipation of litigation, but it asserted that
the CD was nonetheless admissible because it was based on regularly kept business
records. The court overruled Scott’s objection and admitted the CD into evidence.
During Scott’s trial, the district court held a Daubert hearing concerning the
government’s expert fingerprint evidence. The fingerprint examiner, LeCroy,
explained that she analyzed fingerprints using the ACE-V method, which consists
of four steps: analysis, comparison, evaluation, and verification. Under the analysis
step, the examiner determines if a partial, or latent, print has sufficient unique
features, known as “minutia,” to be compared to another fingerprint. At the
comparison step, the examiner compares the latent fingerprints to a known set of
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fingerprints. Under the evaluation step, the examiner reaches one of three
conclusions: (1) identification or individualization, meaning that both the latent
prints and the inked prints were made by the same individual; (2) exclusion,
meaning that the known individual did not make the latent prints; or (3) an
inconclusive result. After the examiner makes an evaluation, her work is reviewed
by a second examiner in the verification step. If both examiners come to the same
conclusion, the results are officially reported. During her five years as a
fingerprint examiner, LeCroy had made 1 technical error and 20 to 30
administrative errors.
On cross-examination, LeCroy acknowledged that there were no studies
showing that latent fingerprints are unique. In certain cases, fingerprint evidence
has produced incorrect identifications. Although fingerprint examiners describe
their conclusions in absolute terms, there are no scientific studies as to how
complete a latent print needs to be in order to be unique. Unlike DNA evidence,
there is no known percentage error rate for fingerprint examination. Fingerprint
examination is based on published methodologies, but it is subjective in that the
comparison is being made by a human. No two prints are exactly identical. The
examiner must determine whether any differences between the prints are caused by
factors such as pressure or distortion or whether the two prints are actually unique.
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Although the ACE-V method has been in use for 15 to 20 years, it is not based on
scientific or statistical studies.
The district court ruled that LeCroy’s testimony was admissible under
Daubert. The court concluded that fingerprint examination was reliable because it
was based on “eighty years of statistical study and analysis.” The court also noted
that LeCroy had followed the standard protocol adopted by the laboratory, which
had been tested. The court observed that Scott would be able to raise his
arguments concerning the accuracy of the fingerprint examination by cross-
examining LeCroy in the presence of the jury.
In her trial testimony, LeCroy explained the ACE-V process to the jury. She
stated that she detected a number of latent prints on prescription pads seized by the
government, and had matched five of those latent prints to Scott’s known
fingerprints. Scott cross-examined LeCroy concerning the possible flaws and
drawbacks of fingerprint examination.
The jury found Scott guilty with respect to all 21 counts of the superseding
indictment. At the sentencing hearing, the district court determined that Scott had
an advisory guideline range of 135-168 months’ imprisonment. Scott urged the
district court to consider the need to avoid unwarranted sentencing disparities. He
observed that Collie, who had not yet been sentenced, was likely to get a relatively
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low sentence even though he had prior fraud convictions. He also noted that
Shoemaker would receive a sentence of no more than five years, and that Bradley
had not been charged at all. Scott asserted that a sentence of five years would be
sufficient to serve the purposes of sentencing. The government responded that
Scott should receive a sentence at the high end of the guideline range, 168 months,
based on the nature of his offense, his criminal history, and the need for deterrence.
The district court noted that Medicare and Medicaid fraud is a growing
problem. The court recognized that there might be a disparity between Scott’s
sentence and the sentences given to others, but it observed that “two wrongs do not
make a right.” The court explained that it would “set a sentence in accordance
with the particular individual’s participation.” The court sentenced Scott to a term
of 120 months as to Count 1, and concurrent terms of 24 months’ imprisonment as
to each of Counts 2 through 21, to be served consecutively to the sentence for
Count One, for a total term of 144 months’ imprisonment. The court stated that it
had considered all of the 18 U.S.C. § 3553(a) factors, and had focused in particular
on the need for incapacitation, Scott’s prior criminal record, the kinds of sentences
available, and the need for a sentence that reflected the seriousness of the offense.
The district court later sentenced codefendant Collie to a total term of 18 months’
imprisonment.
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II.
Whether evidence is testimonial for purposes of the Confrontation Clause is
a question of law that we review de novo. United States v. Caraballo, 595 F.3d
1214, 1226 (11th Cir. 2010). Violations of the Confrontation Clause are subject to
harmless-error analysis. Id. at 1229 n.1. A Confrontation Clause violation is
harmless if it is “clear beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” Id. (quotation omitted).
The Confrontation Clause prohibits the admission of testimonial hearsay
statements in a criminal case unless the declarant is unavailable and the defendant
had a prior opportunity to cross-examine the declarant. Crawford v. Washington,
541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). In Crawford,
the Supreme Court declined to provide a comprehensive definition of what
statements are testimonial, see id. at 68, 124 S.Ct. at 1374, but it did list business
records as an example of statements that, “by their nature,” are not testimonial, see
id. at 56, 124 S.Ct. at 1367.
Recently, the Supreme Court has clarified that forensic and laboratory
reports prepared for use during litigation are testimonial in nature. Melendez-Diaz
v. Massachusetts, 557 U.S. ___, ___, 129 S.Ct. 2527, 2531-32, 174 L.Ed.2d 314(2009). In Melendez-Diaz, the defendant objected to the admission of three
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“certificates of analysis” showing that seized substances contained cocaine. Id. at
___, 129 S.Ct. at 2530-31. The Supreme Court concluded that the certificates were
testimonial statements because they were made under oath for the purpose of
establishing some fact and “under circumstances which would lead an objective
witness reasonably to believe that [they] would be available for use at a later trial.”
Id. at ___, 129 S.Ct. at 2531-32 (quotation omitted).
Here, we need not decide whether a summary or excerpt of business records
prepared for use in litigation constitutes a testimonial statement for the purposes of
the Confrontation Clause because we agree with the government that any error in
admitting the CD was harmless. The CD merely established that Georgia Medicaid
was billed for certain prescriptions. At trial, Scott did not dispute the fact that
Medicaid fraud occurred. Rather, his defense was that Collie and others carried
out the conspiracy by themselves, and that he had no knowledge of or personal
involvement in the scheme. Because the CD merely corroborated a fact that Scott
conceded, and did not shed any light on the key factual dispute at trial—whether
Scott was personally involved in the conspiracy—the admission of the CD could
not have had an impact on the jury’s verdict. Thus, any Confrontation Clause error
in this case was harmless. See Caraballo, 595 F.3d at 1229 n.1.
III.
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We review a district court’s decision to admit expert testimony for an abuse
of discretion. United States v. Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005).
Under the abuse of discretion standard, the district court is allowed a range of
choice, and we will affirm unless the district court applied the wrong law, followed
the wrong procedure, relied on clearly erroneous facts, or committed a clear error
in judgment. Id. at 1265-66. Because the issue of whether to admit expert
testimony requires a case-specific and fact-intensive inquiry, we give particular
deference to the district court’s decision to admit or exclude such testimony. Id.Under the Federal Rules of Evidence, expert testimony is admissible if:
(1) the expert is qualified to testify regarding the subject matter of his testimony;
(2) the methodology that the expert used to reach his or her conclusions is
sufficiently reliable; and (3) the expert’s testimony will assist the trier of fact in
understanding the evidence or in determining a fact at issue. United States v.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc); Fed.R.Evid. 702. Before
permitting expert testimony, the district court must make a preliminary
determination as to whether the expert’s methodology is reliable. Brown, 415 F.3d
at 1266. The Supreme Court has provided a non-exclusive list of factors for the
district court to consider:
(1) whether the expert's theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the
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known or potential rate of error of the particular scientific technique;
and (4) whether the technique is generally accepted in the scientific
community.
Frazier, 387 F.3d at 1262. These factors are only general guidelines, and the trial
judge has “considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.” Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999).
We previously have upheld the admission of expert fingerprint evidence
under Daubert. United States v. Abreu, 406 F.3d 1304, 1307 (11th Cir. 2005). In
Abreu, we observed that the government had presented information about the error
rate of fingerprint examination, and had shown that examiners follow a uniform
methodology. Id. In addition, we explained that the district court did not clearly
err by giving significant weight to the general acceptance of fingerprint evidence.
Id. Other Circuits have upheld the admission of expert testimony concerning
fingerprint examination as well. See, e.g., United States v. Pena, 586 F.3d 105,
110-11 (1st Cir. 2009) (the district court did not abuse its discretion by permitting
expert testimony that was based on the ACE-V method); United States v. Mitchell,
365 F.3d 215, 221-22, 246 (3d Cir. 2004) (same); United States v. Baines, 573 F.3d
979, 983, 989-92 (10th Cir. 2009) (same); United States v. Crisp, 324 F.3d 261,
266-70 (4th Cir. 2003) (upholding admission of fingerprint evidence under
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Daubert, and noting that “[f]ingerprint identification has been admissible as
reliable evidence in criminal trials in this country since at least 1911.”); United
States v. Havvard, 260 F.3d 597, 600-02 (7th Cir. 2001) (testimony concerning
latent fingerprint examination was properly admitted under Daubert).
In this case, the district court did not abuse its discretion by admitting expert
testimony concerning fingerprint examination. At the Daubert hearing, the
government established that fingerprint testing follows a formal, established
methodology. Although there is no scientifically determined error rate, the
examiner’s conclusions must be verified by a second examiner, which reduces,
even if it does not eliminate, the potential for incorrect matches. The ACE-V
method has been in use for over 20 years, and is generally accepted within the
community of fingerprint experts. Based on this information, the district court did
not commit an abuse of discretion by concluding that fingerprint examination is a
reliable technique.
More generally, federal courts routinely have upheld the admissibility of
fingerprint evidence under Daubert. See Abreu, 406 F.3d at 1307; Pena, 586 F.3d
at 110-11; Mitchell, 365 F.3d at 246; Baines, 573 F.3d at 989-92; Crisp, 324 F.3d
at 266-70; Havvard, 260 F.3d at 600-02. The district court did not commit a clear
error in judgment by reaching the same conclusion in this case. Finally, we note
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that Scott was able to cross-examine the government’s expert at trial concerning
the possible flaws in her methodology. The district court’s decision to admit the
fingerprint expert’s testimony, subject to a searching cross-examination, did not
fall outside the permissible “range of choice” in this case. See Brown, 415 F.3d at
1265. Accordingly, we find no abuse of discretion in the admission of the expert
testimony concerning fingerprint examination.
IV.
We review a sentence imposed by a district court for reasonableness, using
an abuse-of-discretion standard. United States v. Livesay, 587 F.3d 1274, 1278
(11th Cir. 2009). We follow a two-step process in reviewing a sentence. First, we
must ensure that the district court did not commit a significant procedural error.
Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L.Ed.2d 445(2007). If the district court’s sentencing decision is procedurally sound, we must
then determine whether the sentence is substantively reasonable in light of the 18
U.S.C. § 3553(a) factors. Id. at 51, 128 S.Ct. at 597.
The party challenging the sentence has the burden of showing that it is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[W]e recognize that there is a range
of reasonable sentences from which the district court may choose,” and ordinarily
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expect a sentence within the defendant’s advisory guideline range to be reasonable.
Id. We “will defer to the district court’s judgment regarding the weight given to
the § 3553(a) factors unless the district court has made a clear error of judgment.”
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (quotation
omitted), cert. denied, 129 S.Ct. 2848 (2009).
In this case, the district court did not abuse its discretion by sentencing Scott
to a total term of 144 months’ imprisonment. Scott played a leading role in a
fraud scheme that resulted in a loss of over $1 million to Georgia Medicaid. Thus,
a longer term of imprisonment was needed to reflect the serious nature of his
offenses. See 18 U.S.C. § 3553(a)(1). In addition, Scott previously was
incarcerated for his involvement in a similar scheme to defraud Florida Medicaid.
Therefore, a longer sentence was justified based upon Scott’s personal history and
characteristics, the need to promote respect for the law, and the need to protect the
public from further crimes committed by Scott. See 18 U.S.C. § 3553(a)(1),
(a)(2)(A), (a)(2)(C). Scott’s sentences also have the effect of deterring others from
committing health care fraud offenses. See 18 U.S.C. § 3553(a)(2)(B). Also,
Scott’s total term of imprisonment is within the advisory guideline range, which
we ordinarily expect to be reasonable. See Talley, 431 F.3d at 788.
Although Scott asserts that the district court should have given more weight
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to the need to avoid unwarranted sentencing disparities, see 18 U.S.C.
§ 3553(a)(6), he has not demonstrated that he was similarly situated to the
co-conspirators who received shorter sentences. Collie, Shoemaker, and Bradley
eventually admitted to their participation in the conspiracy and cooperated with the
government. We have explained that a sentencing disparity is not unwarranted if it
reflects the fact that one of the defendants pled guilty and cooperated with the
government. United States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008).
Also, Scott played a greater role in the conspiracy than Collie, Shoemaker, or
Bradley, as he planned, organized, and funded the conspiracy. Finally, Scott did
not show that Collie, Shoemaker, or Bradley had criminal histories that were
similar to his own. Because Scott did not establish that he was similarly situated to
his co-conspirators, the district court did not have to give significant weight to the
need to avoid unwarranted sentencing disparities. When all of the § 3553(a)
factors are taken into consideration, Scott’s total sentence of 144 months’
imprisonment is substantively reasonable.
Accordingly, we affirm Scott’s convictions and sentences.
AFFIRMED.
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