United States v. Adams

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-10-2006
USA v. Adams
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2108
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 03-2108
UNITED STATES OF AMERICA
vs.
JACOB S. ADAMS, JR.,
Appellant
No. 03-2152
UNITED STATES OF AMERICA
vs.
CARLTON EWELL,
Appellant
On Appeal from Judgments and Sentences of the United States District Court
for the District of New Jersey
(Crim. No. 00-697)
District Judge: The Honorable Garrett E. Brown, Jr.
______________
Submitted Under Third Circuit LAR 34.1(a)
May 7, 2004
Before: SLOVITER and FUENTES, Circuit Judges.
and POLLAK,* District Judge.
(Filed: July 10, 2006)
*
Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.
1
______________
OPINION
______________
POLLAK, District Judge.
In these consolidated appeals, we are asked to review the convictions and sentences
of Carlton Ewell and Jacob S. Adams, co-defendants who were tried for a series of armed
bank robberies. A jury convicted Ewell of four counts of bank robbery, in violation of 18
U.S.C. § 2113, and four counts of using a firearm during the commission of a crime of
violence, in violation of 18 U.S.C. § 924(c). Adams, who participated in three of the four
bank robberies for which Ewell was convicted, was found guilty of three counts of bank
robbery, in violation of 18 U.S.C. § 2113, and three counts of using a firearm during the
commission of a crime of violence, in violation of 18 U.S.C. § 924(c). The District Court
sentenced Ewell to 910 months incarceration, and Adams to 610 months incarceration.
On appeal, Ewell and Adams raise multiple claims of error. All but three of these
allege errors infecting the guilt phase of the trial. We had held this case C.A.V. pending
resolution of United States v. Trala, 386 F.3d 536 (3d Cir. 2004). For the reasons
expressed below, we find that the District Court did not abuse its discretion or commit
plain error in admitting expert testimony based upon STR/PCR DNA testing.1 Thus, we
1
Ewell and Adams also make the following contentions: Ewell contends that audiotapes
of his telephone conversations while in prison should not have been admitted into evidence, that
a mistrial and severance should have been granted after Adams testified about an uncharged
homicide, that a letter from Ewell which was sent to an accomplice should not have been
admitted into evidence, that a new trial should have been granted based on insufficiency of
evidence, and that the sentence imposed on Ewell constitutes cruel and unusual punishment; and
2
affirm the convictions of Ewell and Adams and, under our decision in United States v.
Davis, 397 F.3d 173 (3d Cir. 2005), we remand the sentences for reconsideration in light
of United States v. Booker, 543 U.S. 220 (2005).
I.
Inasmuch as we write only for the parties, it is not necessary to recite the facts of
this case in detail. Appellants’ convictions were based, at least in part, on DNA evidence
obtained from masks used at the crime scene, which linked appellants to the crime. Prior to
trial, the District Court held a Daubert hearing on the admissibility of evidence obtained
from STR/PCR DNA analysis that linked the masks to Ewell and Adams. The District
Court decided to admit the evidence, and the central question on appeal is whether the
District Court’s decision constitutes an abuse of discretion. In particular, Ewell and Adams
argue that the testimony regarding STR/PCR DNA analysis violated FED. R. EVID. 7022
Adams contends that the prosecutor improperly vouched for a government witness during
summation, that two government witnesses improperly bolstered the testimony of another, that
the prosecutor improperly questioned Adams about statements Adams made to police at the time
of his arrest, that the District Judge inappropriately made a comment during a sidebar that was
audible to the jury, that the District Court erred by sentencing Adams based on facts not found
by a jury, and that the sentence imposed on Adams constitutes cruel and unusual punishment.
Some of these contentions are not properly preserved for appeal, and the remainder clearly lack
merit. We decline to address them at any length here.
2
“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.” FED. R. EVID. 702.
3
because it is unreliable, and FED. R. EVID. 6023 and the Confrontation Clause of the Sixth
Amendment because it was provided by a witness who did not conduct the tests himself
and who thus did not have personal knowledge of the matter about which he testified.
“We review the decision to admit or reject expert testimony under an abuse of
discretion standard.” Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d
Cir. 2003). However, because appellants failed to object to the District Court’s alleged
denial of their right to confrontation, we review their Confrontation Clause claim for plain
error. See United States v. Adams, 252 F.3d 276, 283-85 (3d Cir. 2001).
Recently, in United States v. Trala, 386 F.3d 536 (3d Cir. 2004), this court had
occasion to consider the reliability of STR/PCR DNA analysis. There, we held that
“PCR/STR DNA typing ... does in fact meet the standards for reliability and admissibility
set forth in Federal Rule of Evidence 702 and Daubert.” 386 F.3d at 541. As in Trala, the
decision below “provides a thorough and compelling analysis of the court’s rejection of
[Ewell and Adams’] challenges to the DNA evidence.” Id. at 542; see United States v.
Ewell, 252 F. Supp. 2d 104 (D.N.J. 2003). We conclude that the District Court did not
abuse its discretion in finding that the STR/PCR DNA testimony was sufficiently reliable.4
3
“A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence to
prove personal knowledge may, but need not, consist of the witness' own testimony. This
rule is subject to the provisions of rule 703, relating to opinion testimony by expert
witnesses.” FED. R. EVID. 602.
4
Appellants argue that Trala is not dispositive of the issues raised in their briefs because
it did not consider the particular challenges to STR/PCR DNA analysis that appellants advance
here. These challenges, however, go to the weight to be attached to the evidence, and not to its
4
We also find appellants’ Rule 602 challenge to be without merit. Rule 602 “is
subject to the provisions of rule 703.” FED. R. EVID. 602. Rule 703 states that “[t]he facts
or data in the particular case upon which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or before the hearing.” FED. R. EVID.
703. In other words, it is perfectly acceptable for an expert witness to testify, as the
government’s witness did, to facts or data ascertained by persons other than the witness.
Thus, the fact that the government’s witness did not personally conduct the tests about
which he testified is of no moment. The District Court did not violate FED. R. EVID. 602.
Finally, we find that appellants were not denied their constitutional right to
confrontation when the District Court permitted the government’s expert witness to
testify5. Appellants quote Crawford v. Washington, 541 U.S. 36, 38 (2004) in their
supplemental brief as follows: “Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” Appellants contend that, because the government’s
expert witness had no personal knowledge of the details of the testing that was performed
on the masks, appellants were deprived of the opportunity to cross-examine “the actual
witnesses against [them]: the DNA laboratory personnel who had actually performed (or
admissibility. Nothing in appellants’ argument, then, establishes that Trala ought not to govern
here.
5
While we review this claim only for plain error, we find no error of any kind with
respect to this claim, as explained in the text below, and the claim therefore would not give rise
to relief under any standard of review.
5
possibly failed to perform) the tests.” However, because appellants fail to show (or even
argue) that they were somehow prevented from calling these “actual” witnesses
themselves, their reliance on Crawford is untenable. Appellants were able to cross-
examine the government’s expert witness at trial, and if they wanted to question those who
actually performed the tests on the masks, they should have called those individuals as
witnesses. Nothing in appellants’ brief suggests the District Court prevented them from
doing so. We therefore find no violation of appellants’ Sixth Amendment right to
confrontation.
II.
Adams challenges his sentence under Blakely v. Washington, 542 U.S. 296 (2004),
and Ewell challenges his sentence under both Blakely and United States v. Booker, 543
U.S. 220 (2005). This court has determined that the sentencing issues appellants raise are
best determined by the District Court in the first instance. United States v. Davis, 397 F.3d
173, 183 (3d Cir. 2005); see also United States v. Ordaz, 398 F.3d 236, 239 (3d Cir.
2005).
III.
For the foregoing reasons, we will affirm appellants’ judgments of conviction but
vacate their sentences, remanding to the District Court for re-sentencing of both Ewell and
Adams in accordance with Booker.
6