United States v. Rogers

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4455
GRAHAM C. ROGERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CR-00-90-BR)
Submitted: November 29, 2001
Decided: December 20, 2001
Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Dennis M. Duffy, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. ROGERS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Graham C. Rogers was convicted by jury of one count of submit-
ting a false claim to the United States Department of Treasury, in vio-
lation of 18 U.S.C. § 287 (1994). The district court sentenced him to
five years’ probation. On appeal, Rogers argues that the district court
erred in admitting testimony from two Secret Service agents that a
latent print lifted off a check Rogers claimed he never received
matched an exemplar obtained from him. Both agents were properly
qualified as experts in the field of latent fingerprint examination. The
district court overruled Rogers’ objection at trial, finding that the fin-
gerprint analysis met the standards of reliability established by Dau-
bert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Rogers argues that the agents’ testimony should have been sup-
pressed because it was based upon unreliable principles and methods
and thus cannot comply with Fed. R. Evid. 702.* We review the dis-
trict court’s decision to admit expert testimony for abuse of discre-
tion. See Benedi v. McNeil-PPC, Inc., 66 F.3d 1378, 1385 (4th Cir.
1995). In Daubert, the Supreme Court announced five factors for
evaluating the relevancy and reliability of expert testimony as fol-
lows:
whether the theory or technique can be and has been tested;
whether it has been subjected to peer review and publica-
tion; whether there is a high known or potential rate or error;
whether there are standards controlling the technique’s oper-
ation; and whether the theory or technique enjoys general
acceptance within a relevant scientific community.
*The rule permits an expert witness "qualified . . . by knowledge, skill,
experience, training, or education" to testify when specialized knowledge
will assist the trier of fact to understand the evidence or to determine a
fact in issue.
UNITED STATES v. ROGERS 3
Daubert, 509 U.S. at 592-94. However, the Daubert Court also
emphasized that this inquiry should be flexible. See id. at 594. See
also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (con-
cluding that the testing of reliability should be flexible and the five
factors delineated in Daubert neither necessarily nor exclusively
apply to every expert).
We find that the district court did not abuse its discretion by admit-
ting the challenged testimony. While Rogers contends the underlying
theory of fingerprinting evidence, that all fingerprints are unique, is
untested and unproven, the Government’s expert testified to the exis-
tence of numerous studies supporting this conclusion. Further, Rogers
cites no evidence suggesting that fingerprint evidence is unreliable.
To the extent that fingerprint analysis involves some measure of sub-
jective interpretation by the examiner, the possibility of error was mit-
igated in this case by having two experts independently review the
evidence. And although Rogers also claims no uniform standards
exist to pinpoint exactly when a fingerprint match can be declared,
such standards do exist through professional training, peer review,
presentation of conflicting evidence and double checking, which is
standard operating procedure with latent print examiners. See United
States v. Havvard, 117 F. Supp. 2d 848, 854, aff’d, 260 F.3d 597 (7th
Cir. 2001). Moreover, both agents in this case found seven corre-
sponding characteristics between the two thumbprint samples, which
is adequate to meet modern criteria for a definitive match.
Finally, virtually every circuit and district court, both before and
after Daubert, have a longstanding tradition of allowing fingerprint
examiners to state their opinion and conclusions, subject to rigorous
cross examination. Many courts have even refused to hold an eviden-
tiary hearing for such an inquiry, finding such testimony scientifically
reliable. See, e.g., United States v. Havvard, 260 F.3d 597 (7th Cir.
2001); United States v. Sherwood, 98 F.3d 402 (9th Cir. 1996);
United States v. Reaux, 2001 WL 883221 (E.D. La. July 13, 2001)
(relying on United States v. Havvard, 260 F.3d 597 (7th Cir. 2001));
United States v. Joseph, 2001 WL 515213, *1 (E.D. La. May 14,
2001) (holding that an evidentiary hearing was not necessary because
"fingerprint analysis has been tested and proven to be a reliable sci-
ence over decades of use for judicial purposes"); United States v.
Martinez-Cintron, 136 F. Supp. 2d 17 (D.P.R. 2001).
4 UNITED STATES v. ROGERS
Moreover, even assuming a Daubert error does exist, we agree
with the Government that any such error is harmless because, inde-
pendent of the fingerprint evidence, the evidence supporting Rogers’
conviction is overwhelming in this case. The Government presented
two eyewitness identifications from employees at the pawn shop
where Rogers cashed the check. Both clearly identified Rogers as
being the customer who cashed the check. Both employees also testi-
fied to details of Rogers’ life that they could only have known had
they encountered him. Furthermore, the Government presented evi-
dence that Rogers had no money in his bank account, yet bought a car
with $4000 in cash only days after the check had been cashed at the
pawn shop.
We therefore conclude that even if the district court erred by allow-
ing the fingerprint evidence to be heard, such error was harmless
under Fed. R. Crim. P. 52(a). Accordingly, the judgment of the dis-
trict court is affirmed. We deny Rogers’ motion to file a pro se formal
supplemental brief. We dispense with oral argument, because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED