United States v. Diaz

United States Court of Appeals
For the First Circuit

No. 01-1904
UNITED STATES OF AMERICA,

Appellee,
v.
FRANKLIN DIAZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before
Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.

Thomas M. Dickinson, with whom Pine & Cantor was on brief for
appellant.

Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Stephanie S.
Browne, Assistant United States Attorney, were on brief for
appellee.

August 20, 2002
 LIPEZ, Circuit Judge. On February 1, 1999, there was a

fire at a restaurant owned by defendant-appellant Franklin Diaz.

Thereafter, Diaz was charged by a federal grand jury in a six-count

indictment with malicious destruction by fire of property used in

interstate commerce (arson) in violation of 18 U.S.C. §§ 844(i) and

2 (Count I); mail and wire fraud in violation of 18 U.S.C. §§ 1341,

1343 and 2 (Counts II-IV); and use of fire to commit a federal

felony in violation of 18 U.S.C. §§ 844(h)(1) and 2 (Counts V-VI).

After a six-day trial, a jury convicted Diaz on the arson charge in

Count I and acquitted him on the remaining counts. The district
court sentenced Diaz to five years of imprisonment.

Diaz now appeals his arson conviction, primarily
challenging the district court's admission of expert opinion
testimony as to the cause of the fire. That challenge requires us

to consider whether the defendant properly advised the court of
the nature of his objection under Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579 (1993), to expert testimony presented by the

prosecution. We conclude that he did not. For that reason and
others, we affirm the conviction.

I.

We describe the facts in the light most favorable to the

verdict. See United States v. Van Horn, 277 F.3d 48, 54 (1st Cir.

2002). Diaz was the owner and operator of Franklin's Prestigio

Restaurant, located at 247 Reservoir Avenue in Providence, Rhode

Island. The restaurant occupied part of a building at 241-247

Reservoir Avenue that consisted of several adjacent storefronts.

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Diaz leased one of these storefronts and the basement below it from

the Camparone family, whose estate owned the building.

The government introduced evidence at trial casting doubt
on the financial viability of Diaz's business. For instance, in

1994 and 1995, the restaurant operated at a loss. As of December

31, 1998, its balance sheet reflected assets of only $21,444. Diaz
had expressed interest in selling the business and had complained

about having few customers.

In the summer of 1998, the Camparone family began efforts

to sell 241-247 Reservoir Avenue. Because Diaz had been in the

building longer than the other tenants, the Camparones gave him the

right of first refusal to buy the building. Diaz explored the

possibility of buying the building. He spoke with Jaime Aguayo, a
Small Business Administration ("SBA") representative, about

arranging financing for the purchase. The SBA advises small

businesses on how to obtain bank loans and (if certain conditions
are met) guarantees up to 80 percent of the ultimate loan.

According to Aguayo's trial testimony, Diaz expressed concern that,

if the Camparones sold the building to another tenant, he would be

evicted. Despite these initial inquiries, however, Diaz never

submitted a completed business plan or copies of his tax returns,

a necessary step in the SBA application process.

At some point in October or November of 1998, Diaz had

still not succeeded in obtaining financing and Rocco Camparone told

him that he would sell the building to someone else. The

Camparones then entered into an agreement to sell the building to

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one of the other tenants. A closing was scheduled for February 7,

1999. The government introduced evidence that Diaz was aware of

the pending sale and was upset about it. However, Diaz denied any
such knowledge in his deposition testimony (which was admitted into

evidence at trial). Diaz did not testify at the trial.

In mid-November 1998, Diaz applied for business insurance
through Joseph Mazzotta, an insurance agent who had secured other

insurance coverage for Diaz. Prior to that time, Mazzotta was

unable to persuade Diaz to purchase business insurance coverage.

Diaz had always said that he could not afford it. In December

1998, Lloyd's of London issued an insurance policy that provided

$100,000 of coverage for the contents of the restaurant and $21,000

of coverage for business interruption. In late January 1999, about
a week and a half before the fire, Diaz phoned Mazzotta several

times to confirm that the insurance policy was in effect and

visited Mazzotta's office to obtain a copy of the policy.
On Monday, February 1, 1999, just before midnight, a

passerby reported to a nearby fire station that the restaurant was

on fire. When the firemen arrived, they found the restaurant

locked with no sign of a break-in. Forcing their way into the

building, they discovered that the fire was in the basement. The

fire was ultimately suppressed, though not before causing

significant damage to the basement.

According to Diaz's deposition testimony, the restaurant

was closed on the day of the fire. Diaz testified that he had been

in the restaurant that day and he had locked it and activated the

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burglar alarm before departing. Diaz and his wife were the only

ones who possessed keys to the restaurant and only they and their

daughter knew the access code for the alarm.
On the night of the fire, Joseph Dorsey, a fire

investigator with the Providence Fire Department, arrived to

examine the scene and to investigate the cause of the fire. Based
on this initial investigation, Dorsey surmised that the fire might

have been caused by an electrical malfunction associated with the

radio in the basement.

A few days later, on February 5, insurance investigator

Thomas Haynes surveyed the scene of the fire at the insurance

company's request. His investigation in the basement revealed

unusual burn patterns inconsistent with normal fires as well as
material on the floor that smelled like paint thinner. Based on

his investigation, he concluded that the fire was deliberately set.

On February 10, 1999, both Dorsey and Haynes returned
together to the scene to conduct a joint investigation. Dorsey

testified that what he observed on this day caused him to

reevaluate his initial determination that the fire was accidentally

set. According to their testimony at trial, Dorsey and Haynes

observed on this day that the burn patterns were consistent with an

accelerant being used in the fire. As part of the investigation,

a rug sample from underneath a fallen ceiling tile was sent out for

lab testing. That sample was found to contain some type of

accelerant, such as paint thinner or gasoline. Based upon these

-5-
findings, Haynes and Dorsey opined that the fire was set

intentionally.

II.

On March 9, 2001, one business day before trial began,

defense counsel filed a two-page "Pretrial Memorandum."1 That

memorandum contained the following sentence: "The only anticipated

legal issue potential would be the qualification of the experts,

so-called, under the standards of the Daubert trilogy: Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); General Electric
Company, et al. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire v.
Carmichael, 526 U.S. 137 (1999)."

At trial, the government called fire investigator Dorsey
to the witness stand. Dorsey described his qualifications as an
expert in determining the cause and origin of fires. He also

discussed some of the methods used in reaching such determinations.
Dorsey then proceeded to testify as to the February 1 investigation
of the restaurant's basement. He testified that, while

firefighters were still busy spraying water in the basement, he
surveyed the basement with another investigator who had arrived on
the scene earlier. That investigator called Dorsey's attention to

a melted-down radio and to burn damage to a nearby bed and a wall
containing the wiring going to the outlet into which the radio was
plugged. Based on that initial examination, he concluded that the

1
For some reason, the docket sheet does not reflect that
filing. However, the parties do not appear to dispute that such a
document was filed.

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fire might have been caused by an electrical problem associated

with the radio in the basement.

Dorsey testified that, after his second examination,
conducted jointly with Haynes on February 10, he discovered the

evidence that prompted his reevaluation of this conclusion. At

this point in the direct examination, the prosecutor asked Dorsey
for his present opinion concerning the cause of the fire. Defense

counsel's objection on grounds of "foundation" was sustained,

apparently because Dorsey had not yet explained what he saw during

the second examination that changed his opinion. Dorsey then

explained that he detected the odor of something like paint thinner

and he observed irregular burn patterns indicative of the use of an

accelerant. He also observed that the wall where the radio had
been plugged in did not burn through to the other side, causing him

to eliminate the radio or some other electrical component as a

possible cause of the fire.
The government then asked Dorsey again for his present

opinion on the cause of the fire, prompting defense counsel to

object on the following grounds:

Competency to render the opinion. And I
didn't have a chance to cross-examine as to
the complete elements of the fire scene
investigation before I have had the
opportunity. He can answer at some later
point.

The court overruled the objection, stating: "It goes to the weight

and not admissibility and you can cross-examine on that." Dorsey

then opined that the fire was "deliberately set." On cross-

examination, defense counsel challenged Dorsey's credibility,

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questioning him at length on his qualifications as a cause-and-

origin expert, the standards and methods he employed in his

analysis, and the factual basis for his opinion on the cause of the
fire.

Thomas Haynes, the investigator retained by the insurance

company to examine the restaurant premises after the fire, also
testified as an expert at trial. After describing his credentials

as a cause-and-origin expert, he testified that, on February 5, his

investigation in the basement lasted about four hours and revealed

unusual burn patterns inconsistent with normal fires as well as

material on the floor that smelled like paint thinner. Based on

these factors, he concluded that the fire was an "incendiary fire",

meaning that it was deliberately set. According to his testimony,
he took a sample of the carpet in the basement during this visit

and sent it out for testing; that carpet sample ultimately tested

positive for the presence of a high-level concentration of mineral
spirits.

As to the joint investigation with Dorsey on February 10,

Haynes testified that he showed Dorsey the irregular burn patterns

in the basement area. Haynes explained how he examined with Dorsey

the electrical components in the room, including the copper wiring

and the condition of the radio itself. Finding insufficient signs

of electrical activity, Haynes ruled out the theory that the fire

was electrical.

Based upon the two examinations and his burn pattern

analysis, Haynes testified that he had reached a settled opinion as

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to the cause and origin of the fire. When the prosecutor asked

what that opinion was, defense counsel made the following brief

objection: "Objection. Da[u]bert." The court overruled the
objection, allowing Haynes to answer. Haynes then testified that

he believed that the "origin of the fire was within the office in

the basement area, and it was the result of a deliberate, human act
of arson."

On cross-examination, defense counsel questioned Haynes

at length on his qualifications as an expert, his methodology and

the basis for his ultimate opinion. On redirect, Haynes testified

without objection that, based upon the burn patterns he observed,

his opinion on the cause and origin of the fire would have remained

the same even if no evidence of mineral spirits or other accelerant
had been found.

At the close of the government's case, Diaz moved for

judgment of acquittal under Fed. R. Crim. P. 29. His defense
counsel stated that: "I submit to the court that both were

qualified by the Court [and] accepted, in terms of their

qualifications, by the Court as experts on origin and

cause . . . ." He then proceeded to his Rule 29 argument that the

testimony of Dorsey and Haynes conflicted in places, and he

attacked the experts' investigation into what caused the fire.

Based on these deficiencies in the expert witness testimony, he

argued that there was insufficient evidence that the fire was

deliberately set:

[T]here is [a discrepancy between the two
experts' testimony] and . . . in fact, Mr.

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 Dorsey's opinion specifically followed more
closely the scientific method, but even that
opinion significantly diverged from that which
is the appropriate way and the suggested way
and the followed way of the scientific method,
to such an alarming degree that, in fact, the
Court cannot allow the Jury to make a decision
on something in which the scientific method
was not used when it was able to have been
used . . . .

He did not mention Daubert at this time.

The court denied Diaz's motion for acquittal, observing

that counsel had "challenged their qualifications, which he's

entitled to do, and the court has found that they were both well

qualified to express the opinion." The court stated that because

both witnesses had testified that the fire was of incendiary
origin, "the Jury would be well within its rights to find beyond a

reasonable doubt that the fire was of incendiary origin." The

court then explained how the evidence was sufficient with respect
to other elements of the government's case.

After recalling Haynes for limited testimony as a defense

witness,2 the defense rested. During a chambers conference later

that day, defense counsel renewed his Rule 29 motion for judgment

of acquittal "for the same reasons that [he had] previously

stated." He also stated without elaboration: "In addition, I make

a motion under Rule 702 that the opinions of the two experts be

excluded under the Daubert analysis as I have previously

2
Defense counsel asked Haynes to identify several
photographs that he had taken in the course of his investigation of
the fire. These photographs were admitted into evidence in the
defendant's case. On cross-examination, Haynes testified that
there was nothing in those photographs that was inconsistent with
his opinion as to the cause and origin of the fire.

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mentioned." The court denied Diaz's motion to exclude the

testimony of the two experts and reserved judgment on the Rule 29

motion. On March 19, 2001, after the jury had rendered its guilty
verdict on the arson charge, the court denied the motion for

judgment of acquittal.

On March 29, 2001, ten days after the jury's verdict,
defense counsel filed a motion for a new trial. In that motion,

Diaz argued for the first time that the expert testimony of Dorsey

and Haynes should be stricken under Fed. R. Evid. 702 not because

they were unqualified to testify as experts but because the actual

testimony that they gave did not satisfy Rule 702's three numbered

criteria.3 Diaz specifically argued, inter alia, that the

investigation was deficient under those Rule 702 criteria insofar
as there was no comparative testing of rug samples and the experts

did not follow standard procedures and protocols in their cause-

and-origin investigations. The court denied Diaz's motion.

III.

Diaz makes three related (albeit procedurally distinct)
arguments on appeal. First, he challenges the admission of expert
testimony of Dorsey and Haynes, attacking the validity and

reliability of the methodology underlying their testimony. Second,
he challenges the court's denial of his Rule 29 motion for judgment
of acquittal. Third, he claims that the district court erred in

denying his Rule 33 motion for a new trial.

3
See infra Section III.A.

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A. Admission of Expert Testimony

1. Gatekeeping Under Daubert

Rule 702 of the Federal Rules of Evidence governs the

admissibility of expert testimony. As recently amended, it provides

that a proposed expert witness must be sufficiently qualified to

assist the trier of fact, and that his or her expert testimony must

be relevant to the task at hand and rest on a reliable basis:

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. See 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein's Federal Evidence § 702.02[3] (2002). The three

numbered criteria were added to Rule 702 in a recent amendment
codifying the Supreme Court's decision in Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993) and its progeny, including Kumho

Tire Co. v. Carmichael, 526 U.S. 137 (1999). See Fed. R. Evid. 702

Advisory Committee Note to 2000 Amendments.
The Supreme Court asserted in Daubert that trial courts

perform a gatekeeping role in regulating the admission of expert
testimony under Fed. R. Evid. 702. 509 U.S. at 589-95.4 That

4
In Kumho Tire, the Court made clear that the trial court's
"gatekeeper" function applies to all expert testimony. 526 U.S. at
141, 147-49. See Seahorse Marine Supplies, Inc. v. Puerto Rico Sun

-12-
screening function entails a preliminary evaluation of the

proffered expert testimony for both reliability and relevance. See

Daubert, 509 U.S. at 591-595; Ruiz-Troche v. Pepsi Cola of Puerto

Rico Bottling Co., 161 F.3d 77, 80 (1st Cir. 1998) (citing

Daubert). The review for reliability encompasses an assessment of

"whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology

properly can be applied to the facts in issue." Daubert, 509 U.S.

at 592-93. As to the relevancy criterion, "expert testimony must

be relevant not only in the sense that all evidence must be

relevant, but also in the incremental sense that the expert's

proposed opinion, if admitted, likely would assist the trier of

fact to understand or determine a fact in issue." Ruiz-Troche, 161
F.3d at 81 (citation omitted) (citing Daubert, 509 U.S. at 591-92).

The Rule 702 inquiry is a "flexible one," Daubert, 509

U.S. at 594, and there is no particular procedure that the trial
court is required to follow in executing its gatekeeping function

under Daubert. In Kumho Tire, the Supreme Court stated:

The trial court must have the same kind of
latitude in deciding how to test an expert's
reliability, and to decide whether or when
special briefing or other proceedings are
needed to investigate reliability, as it
enjoys when it decides whether that expert's
relevant testimony is reliable. . . .
Otherwise, the trial judge would lack the
discretionary authority needed both to avoid
unnecessary "reliability" proceedings in

Oil Co., Nos. 01-1791, 01-1792, 2002 WL 1431766 at *10 (1st Cir.
Jul. 9, 2002) (noting that a trial court's gatekeeping function
"applies to technical and other specialized knowledge in addition
to scientific testimony").

-13-
 ordinary cases where the reliability of an
expert's methods is properly taken for
granted, and to require appropriate
proceedings in the less usual or more complex
cases where cause for questioning the expert's
reliability arises.

526 U.S. at 152. As the Ninth Circuit has determined, "[a]lthough
the [Daubert] Court stated that the inquiry is a 'preliminary' one,

to be made 'at the outset,' this does not mean that it must be made

in a separate, pretrial hearing, outside the presence of the jury."

United States v. Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000)

(quoting Daubert, 509 U.S. at 592) (finding voir dire of expert in

presence of jury to be permissible under Daubert); see also United

States v. Nichols, 169 F.3d 1255, 1262-1264 (10th Cir. 1999) (trial
court has discretion not to hold pretrial evidentiary reliability

hearing in carrying out its gatekeeping function).

2. Availability of Appellate Review for Diaz's
Challenge to the Admission of Expert Testimony

Diaz argues that the district court improperly admitted

expert testimony by Dorsey and Haynes on the contested issue of

causation of the fire. Specifically, he claims that this expert
testimony did not satisfy the three numbered criteria in Rule 702.

The government, however, maintains that Diaz failed to properly

preserve this claim below, thus losing his right to raise that
issue on appeal.

As a general rule, we review a trial court's decision to
admit or exclude expert testimony under an abuse of discretion

standard. See General Electric Co. v. Joiner, 522 U.S. 136, 138-39

(1997). However, Rule 103(a) of the Federal Rules of Evidence

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provides that a claim of error may not be predicated on the

admission of evidence unless a timely objection is made -- stating

the "specific ground of objection, if the specific ground was not
apparent from the context" -- and the admitted evidence affects a

substantial right of the party. Fed. R. Evid. 103(a). As we have

previously stated, litigants must raise a timely objection to the
validity or reliability of expert testimony under Daubert in order

to preserve a challenge on appeal to the admissibility of that

evidence. See United States v. Gilbert, 181 F.3d 152, 162-63 (1st

Cir. 1999) (declining to consider Daubert validity challenge to

admitted expert testimony where no objection was made to the trial
court on that basis); Cortes-Irizarry v. Corporacion Insular de

Seguros, 111 F.3d 184, 189 (1st Cir. 1997) ("[W]e can envision few,

if any, cases in which an appellate court would venture to
superimpose a Daubert ruling on a cold, poorly developed record

when neither the parties nor the nisi prius court has had a

meaningful opportunity to mull the question."). However, these
statements about the appellate consequences of failing to make a
timely objection to the admission of expert testimony are qualified
by Fed. R. Evid. 103(d): "Nothing in this rule precludes taking

notice of plain errors affecting substantial rights although they

were not brought to the attention of the court." The consequence

of a party's failure to make a timely objection to the admission of

expert testimony is plain error review, not the complete loss of

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any right to review.5 See Macsenti v. Becker, 237 F.3d 1223, 1230-

31 (10th Cir. 2001) (reviewing admission of expert testimony for

plain error where objection as to reliability under Daubert not
timely made); McKnight v. Johnson Controls, Inc., 36 F.3d 1396,

1407 (8th Cir. 1994) (employing plain error review where objection

asserting lack of foundation "fail[ed] to raise any question about
the scientific validity of the principles and methodology

underlying [witness'] testimony").

3. Diaz's Objection at Trial to the Expert Testimony

At trial, Diaz never raised a specific objection to the

reliability of the experts' methodology under Daubert or Rule 702

as a basis for exclusion. In the two-page "Pretrial Memorandum"

filed on the eve of trial, defense counsel made a general reference
to the Daubert trilogy in giving notice of a possible challenge to

the experts' qualifications: "The only anticipated legal issue

potential[ly] would be the qualification of the experts, so-called,
under the standards of the Daubert Trilogy . . . ." By its terms,

5
To support its position that Diaz's failure to make a timely
objection precludes any appellate review whatsoever, the government
cites Diefenbach v. Sheridan Transportation, 229 F.3d 27 (1st Cir.
2000), and United States v. Bruck, 152 F.3d 40 (1st Cir. 1998).
Those cases are clearly distinguishable. In Diefenbach, the
defendant explicitly waived in its appellate reply brief any
possible objection to the validity of expert testimony under
Daubert, stating that it "has not raised the 'scientific
validity[]' objection." 229 F.3d at 30. Having found such an
explicit waiver, we did not have to address any potential Daubert
challenge to the validity of the expert testimony. Id. In Bruck,
we refused to entertain a challenge to the admission of expert
testimony where the point was perfunctorily raised and the
defendant was not clear in his appellate brief "as to exactly what
testimony [he found] objectionable." 152 F.3d at 47. That is not
this case.

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that statement anticipates that any attack on the expert testimony

would be limited to the witness's qualifications.

During the direct examination of Dorsey, defense counsel
raised an objection, stating: "Competency to render the opinion.

And I didn't have a chance to cross-examine as to the complete

elements of the fire scene investigation before I have had the
opportunity. He can answer at some later point." In objecting to

Haynes's testimony, counsel raised a one-word objection:

"Objection. Da[u]bert." The court overruled both these

objections.

Lumping these pre-trial and trial objections together,

Diaz argues that he adequately apprised the court that he was

seeking an opportunity to make an inquiry outside the presence of
the jury challenging not only the experts' qualifications, but also

the validity and reliability of the methodology underlying the

experts' testimony. We disagree. Daubert assigns to the district

court the function of evaluating the proffered expert testimony

pursuant to the requirements of Rule 702. See 509 U.S. at 589-95.

Rule 702 encompasses an array of expert witness issues, including

the qualifications of the witness, the relevance of the proffered

testimony, the adequacy of the facts or data underlying an opinion,

the scientific reliability of the witness's methodology, and the

reliability of the witness's application of that methodology to the

facts. Fed. R. Evid. 702. Diaz's general references at trial to

Daubert or competency, particularly in light of a pretrial

challenge limited to the qualifications of the experts, was

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woefully deficient for the purpose of advising the district court

that Diaz was raising a challenge to the reliability of the

experts' methods and the application of those methods under Rule
702.

To the contrary, the court reasonably understood that

Diaz's Rule 702 objections were addressed only to the experts'
qualifications.6 Indeed, in denying Diaz's Rule 29 motion for

acquittal, the court observed that counsel had "challenged their

qualifications, which he's entitled to do, and the court has found

that they were both well qualified to express the opinion." During

arguments on the Rule 29 motion, defense counsel expressed a

similar understanding of his Rule 702 objections: "I submit to the

court that both were qualified by the Court [and] accepted, in
terms of their qualifications, by the Court as experts on origin

and cause . . . ." In renewing his Rule 29 motion at the March 16,

2001, chambers conference, Diaz's counsel stated that his renewed
motion was "for the same reasons that [he had] previously stated."

He then stated, without elaboration: "In addition, I make a motion

under Rule 702 that the opinions of the two experts be excluded

under the Daubert analysis as I have previously mentioned." This

generic reference to "the Daubert analysis" could reasonably be

understood to relate back to his attack on the experts'

qualifications. Thus, Diaz's objections at trial failed to

adequately preserve his substantive challenge to the reliability of

6
Diaz does not challenge on appeal the experts'
qualifications.

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the expert witness testimony, leaving him only with plain error

review on that claim.

4. Plain Error Analysis

To establish plain error in the admission of the experts'

testimony, Diaz must demonstrate "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

United States v. Lemmerer, 277 F.3d 579, 591 (1st Cir. 2002)

(internal quotation marks omitted). As noted, the criteria of Rule

702 require that (1) an expert's testimony is "based upon

sufficient facts or data"; (2) the testimony is the "product of

reliable principles and methods"; and (3) the expert apply "the
principles and methods reliably to the facts of the case." Fed. R.

Evid. 702. Here, both Dorsey and Haynes examined first-hand the

basement where the fire took place. These examinations yielded
numerous details supporting their theories and refuting alternate

explanations for the cause of the fire. Moreover, Dorsey and

Haynes explained in detail the methods and principles they employed

in determining the cause and origin of fires, emphasizing the

significance of various burn patterns. They articulated their

bases for eliminating alternative explanations for the fire. We

note that other courts have allowed the use of similar cause-and-

origin testimony. See, e.g., Travelers Prop. & Casualty Corp. v.

General Electric Co., 150 F.Supp.2d 360, 366 (D.Conn. 2001)

(challenged expert testimony found to be "product of reliable

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principles and methods" where cause-and-origin opinion based upon

analysis of burn patterns); Abu-Hashish v. Scottsdale Ins. Co., 88

F.Supp.2d 906 (N.D.Ill. 2000). Cf. United States v. Ruiz, 105 F.3d
1492, 1497 (1st Cir. 1997) (noting significance of burn-pattern

testimony in ruling on sufficiency of evidence to support arson

conviction).
Diaz claims that Dorsey and Haynes should have collected

additional samples of the basement carpet for testing and arranged

for testing of the electrical outlet. Haynes, however, explained

that he eliminated the possibility of an electrical fire based

upon, inter alia, (1) the condition of the radio and (2) the

absence of melted copper wiring (often associated with electrical

activity) in the electrical components in the room. Diaz also
complains of the experts' failure to investigate the contents of a

metal pot apparently found at the scene after suppression of the

fire.
We note that Diaz explored these points and others in his

cross-examination of the experts. See Daubert, 509 U.S. at 596

("Vigorous cross-examination, presentation of contrary evidence,

and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible

evidence."); Fed. R. Evid. 702 Advisory Committee Note to 2000

Amendments ("[T]he trial court's role as gatekeeper is not intended

to serve as a replacement for the adversary system.") (internal

quotation marks omitted). Whatever deficiencies there may have

been in the work of Dorsey and Haynes (and we do not imply that

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there were any), we are confident that there was no plain error in

the admission of their testimony.7

B. Rule 29 Motion for Judgment of Acquittal

At the close of the government's case, defense counsel

moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29.

The district court denied that motion, and denied it again upon its

renewal at the close of all the evidence. Diaz now appeals that

ruling.

We typically review challenges to the denial of a Rule 29

motion for judgment of acquittal under a de novo standard.
See, e.g., United States v. Ayala-Ayala, 289 F.3d 16, 21 (1st Cir.

2002). In assessing the sufficiency of the evidence under Rule 29,
"we view the evidence and draw reasonable inferences in the light
most favorable to the verdict." United States v. McGauley, 279

F.3d 62, 66 (1st Cir. 2002); United States v. Benjamin, 252 F.3d

1, 5 (1st Cir. 2001). The evidence is legally sufficient if, taken

as a whole, it warrants a judgment of conviction. Benjamin, 252
F.3d at 5.

7
In a footnote in his brief, Diaz appears to suggest that the
expert testimony also violated Fed. R. Evid. 704(b) which prohibits
an expert witness from stating an opinion as to whether or not a
defendant possessed the requisite mental state relevant to a
charged offense or a defense thereto. Diaz cannot prevail on that
argument. First, Diaz failed to raise any Rule 704(b) objection at
trial. Moreover, Haynes and Dorsey concluded that someone had set
the fire deliberately, not that Diaz had done so with malicious
intent. Neither expert was ever asked, nor did they offer an
opinion, as to whether Diaz set the fire and whether he did so
maliciously.

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 Here, however, Diaz confines his "Rule 29" claim to the

limited argument that, if the trial judge had stricken the expert

testimony by Dorsey and Haynes on causation, the remaining evidence
would have been insufficient to support his conviction and the

court would have been compelled to grant his Rule 29 motion. That

argument is not a Rule 29 sufficiency challenge. Under Rule 29, we
must examine "all the evidence submitted to the jury, regardless of

whether it was properly admitted." United States v. Gonzalez-

Sanchez, 825 F.2d 572, 588 (1st Cir. 1987). "A trial court in

passing on [a Rule 29] motion considers all of the evidence it has

admitted, and . . . it must be this same quantum of evidence which

is considered by the reviewing court." Lockhart v. Nelson, 488

U.S. 33, 41-42 (1988). Thus, although Diaz styles this ground of
appeal as a Rule 29 sufficiency challenge, his argument is

tantamount to the claim that admitting the expert testimony of

Dorsey and Haynes was prejudicial error -- a claim which we have
already rejected. See supra Section III.A. Diaz's appellate brief

is devoid of any allegation that all of the evidence admitted --

including the challenged expert testimony -- is insufficient to

support his conviction. Thus, we need not engage in such an

inquiry.8

8
Even if we were to evaluate the sufficiency argument that
Diaz fails to make -- namely, that all of the evidence admitted at
trial (including the expert testimony) is insufficient to support
his conviction, we would reject that argument. The record
unmistakably contains sufficient evidence to support Diaz's arson
conviction.

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C. Rule 33 Motion for New Trial

Diaz argues that the district court erred in denying his

motion for a new trial under Fed. R. Crim. P. 33. We typically

review a district court's denial of a motion for a new trial under

Fed. R. Crim. P. 33 for a "manifest abuse of discretion." United

States v. Gonzalez-Gonzalez, 258 F.3d 16, 20 (1st Cir. 2001).

However, under Rule 33, Diaz had to file a motion for a new trial

within seven days of the verdict. Fed. R. Crim. P. 33 (new trial

motion based on grounds other than newly discovered evidence must

be filed within seven days of verdict). That rule is
jurisdictional. See United States v. Lema, 909 F.2d 561, 565 (1st

Cir. 1990). Here, Diaz, having filed his new trial motion on March
29, 2001, ten days after the jury's verdict, submitted his motion
one day late. See Fed. R. Crim. P. 45(a) (excluding intermediate

Saturdays and Sundays from computation). Thus, the district court
had no authority to order a new trial pursuant to Rule 33. See

United States v. Fontanez, 628 F.2d 687, 691 (1st Cir. 1980) ("The

district court was clearly correct in finding that the seven-day
filing rule [under Rule 33] is jurisdictional and that it had no
authority to entertain the motion for a new trial, which was one

day late.").

Affirmed.

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