United States v. Mahone

United States Court of Appeals
For the First Circuit
_______________
No. 05-1492

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL ANTHONY MAHONE,

Defendant, Appellant.
_____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

______________________

Before

Lipez and Howard, Circuit Judges,
and Hug,* Senior Circuit Judge,
______________________

Richard L. Hartley for appellant.
F. Mark Terison, Senior Litigation Counsel, United States
Attorney’s Office, with whom Paul D. Silsby, United States
Attorney, was on brief, for appellee.

July 5, 2006

*
Of the Ninth Circuit, sitting by designation.
 HUG, Senior Circuit Judge: Defendant Michael Mahone

(“Mahone”) appeals his criminal conviction for attempted armed

robbery and his restitution sentence for interstate transportation

of a stolen motor vehicle. Mahone argues that the district court

erred in admitting footwear impression expert testimony that was

key to the jury’s attempted robbery verdict, and that the district

court abused its discretion in calculating his restitution by

undervaluing the stolen vehicle that was recovered.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a), and we affirm the district court.

I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

On November 10, 2003, a man attempted to rob the Gardiner

Federal Credit Union in Maine. He was armed with a knife and gun

and dressed in black. He wore gloves and a ski mask, with white

makeup around the eyes. Black clothing that Mahone admitted

wearing was found in a garbage bag near the credit union. Mahone’s

DNA was found on latex gloves, a ski mask, and shoes found near the

credit union. Mahone’s fingerprints were found on makeup kits

discarded in a nearby dumpster. Mahone’s car was discovered near

the credit union. Three weeks after the robbery, Mahone was found

in New Hampshire with a stolen Ford Explorer in his possession.

Prior to Mahone’s trial, on June 25, 2004, the district court

conducted a daylong hearing on Mahone’s motion in limine to exclude

Maine State Police Crime Laboratory forensic scientist Cynthia

-2-
Homer’s testimony that footwear impressions taken inside the credit

union matched the shoe found with Mahone’s DNA. The district court

denied the motion in a comprehensive published order. United

States v. Mahone, 328 F. Supp. 2d 77 (D. Me. 2004). The district

court accepted Homer as an expert in footwear impression collection

and analysis, found her methodology for analyzing footwear

impression evidence reliable, and concluded that her proffered

testimony was admissible under Fed. R. Evid. 702 and Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Mahone,

328 F. Supp. 2d at 89-92.

At trial, Mahone’s counsel raised no objections to allowing

Homer’s expert testimony, “subject to prior rulings by the court.”

Homer testified to her opinion that the shoe found with Mahone’s

DNA had made the impressions found on a stairway and a teller

counter inside the credit union.

On October 4, 2004, the jury convicted Mahone of attempted

bank robbery and interstate transportation of a stolen vehicle, in

violation of 18 U.S.C. §§ 2113 and 2312, respectively. On March

24, 2005, the district court sentenced Mahone. Mahone’s sentence

included imprisonment and restitution of $5,477.75 for the

financial loss borne by the stolen vehicle’s insurer. He timely

appealed.

-3-
II. DISCUSSION

A. Admission of footwear impression expert testimony

We review the trial judge’s decision to admit expert testimony

for abuse of discretion. United States v. Mooney, 315 F. 3d 54, 62

(1st Cir. 2002). Mahone objected to Homer’s testimony by motion in

limine, without subsequent, contemporaneous objection at trial.

Under earlier law in this circuit, this would have allowed review

only for plain error. See Clausen v. Sea-3, Inc., 21 F.3d 1181,

1190 (1st Cir. 1994). However, under Federal Rule of Evidence

103(a) as amended in 2000, a party need not renew an objection once

the court makes a “definitive ruling” on the record admitting

evidence before trial. In Mahone’s case, the district court

definitively determined that the expert testimony was “admissible

under the standards set forth both in Rule 702 and Daubert.”

Mahone, 328 F. Supp. 2d at 92. Mahone’s objection was preserved.

See, e.g., Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th

Cir. 2002).

Before accepting expert testimony, a district court must

determine that a witness is “qualified as an expert by knowledge,

skill, experience, training, or education.” Fed. R. Evid. 702.

Regarding this threshold inquiry, Mahone argues that Homer’s

qualifications are insufficient, simply because she is not

qualified as a footwear examiner through the International

Association for Identification (IAI). This argument has no merit.

-4-
The district court did not abuse its discretion.

Homer is sufficiently qualified as an expert. She is a trained

forensic professional with a specialty in impressions. She has a

masters degree in forensic science. At trial, she stated that she

had made more than 11,000 footwear comparisons. She had worked as

a “latent impressions” specialist for more than two years and had

twice testified in court as an expert in footwear impressions. She

had also taken a 40-hour FBI course in footwear and tire impression

evidence analysis. She is subject to annual proficiency testing by

an outside agency. Although Homer was an active member in the IAI,

she lacked the requisite three years’ professional experience to

qualify for voluntary certification through IAI’s footwear analysis

program. It is not required that experts be blue-ribbon

practitioners with optional certifications. See United States v.

Rose, 731 F.2d 1337, 1346 (8th Cir. 1984) (holding, pre-Daubert,

that “[a]n expert witness need not be an outstanding practitioner

in the field nor have certificates of training in the particular

subject”).

At the in limine hearing and at trial, Homer thoroughly

described the “ACE-V” method (analysis, comparison, evaluation, and

verification) for assessing footwear impressions, and described her

use of the method in Mahone’s case. Mahone argues, however, that

the ACE-V method “utterly lacks in objective identification

standards” because: 1) there is no set number of clues which

-5-
dictate a match between an impression and a particular shoe; 2)

there is no objective standard for determining whether a

discrepancy between an impression and a shoe is major or minor; and

3) the government provided “absolutely no scientific testing of the

premises underlying ACE-V.” At issue is Fed. R. Evid. 702(2)’s

requirement that an expert may testify if “the testimony is the

product of reliable principles and methods.” Mahone’s arguments

lack merit.

From the outset, it is difficult to discern any abuse of

discretion in the district court’s decision, because other federal

courts have favorably analyzed the ACE-V method under Daubert for

footwear and fingerprint impressions. See United States v. Allen,

207 F. Supp. 2d 856 (N.D. Ind. 2002) (footwear impressions), aff’d,

390 F.3d 944 (7th Cir. 2004); United States v. Mitchell, 365 F.3d

215, 246 (3d Cir. 2004) (favorably analyzing ACE-V method under

Daubert in latent fingerprint identification case); Commonwealth v.

Patterson, 840 N.E.2d 12, 32-33 (Mass. 2005) (holding ACE-V method

reliable under Daubert for single latent fingerprint impressions).

Even by looking only to the record in the instant case, no

abuse of discretion is evident. The district court explicitly

considered the four guiding factors laid out as guidance by the

Supreme Court in Daubert: 1) whether the underlying method can be

or has been tested; 2) whether the method has been subject to peer

review and publication; 3) the method’s known or potential error

-6-
rate; and 4) the level of the method’s acceptance within the

relevant discipline. See Mahone, 328 F. Supp. 2d at 88-92. Our

review of the record confirms that these factors support

admissibility of ACE-V. The method has been tested in published

studies and has been the subject of widespread publication,

including books devoted to footwear impressions, although it is not

clear that there have been rigorous peer-reviewed articles. Homer

offered a potential error rate of zero for the method, stating that

any error is attributable to examiners. Finally, ACE-V is clearly

highly accepted in the forensics field; the same method is used for

latent impression analysis of fingerprints.

Even if there were cause for concern with the ACE-V method,

Daubert emphasized that “[v]igorous 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.” Daubert, 509 U.S. at 596.1 Under this

1
The First Circuit has noted that:

Daubert does not require that a party who proffers expert
testimony carry the burden of proving to the judge that
the expert’s assessment of the situation is correct. As
long as an expert’s scientific testimony rests upon good
grounds, based on what is known, it should be tested by
the adversary process - competing expert testimony and
active cross-examination - rather than excluded from
jurors’ scrutiny for fear that they will not grasp its
complexities or satisfactorily weigh its inadequacies.
In short, Daubert . . . demands only that the proponent
of the evidence show that the expert’s conclusion has
been arrived at in a scientifically sound and
methodologically reliable fashion.

-7-
analysis, Mahone’s argument regarding the lack of a set number of

clues required for an ACE-V match must fail. We have rejected a

similar argument that a handwriting analysis method impermissibly

lacked a standard for the number of similarities required for a

match. See United States v. Mooney, 315 F.3d 54, 63 (1st Cir.

2002). Here, as in Mooney, such an argument “misunderstands

Daubert to demand unassailable expert testimony.” See id.

Not only did Mahone exercise his right to cross-examine Homer

at trial regarding the alleged shortcomings in ACE-V, he had the

benefit of an earlier Daubert hearing to challenge Homer and ACE-V.

Mahone failed to offer his own expert or any other independent

evidence revealing reliability concerns with ACE-V or Homer’s

findings. The district court did not abuse its discretion.

Mahone also raises an argument under Fed. R. Evid. 702(3),

which requires that an expert witness have “applied the principles

and methods reliably to the facts of the case.” Specifically, he

argues that there are problems with the verification step of the

ACE-V method as applied, because: 1) Homer stated that she had no

idea whether the verifying examiner was “blinded” (had not reviewed

her report before conducting his examination); and because 2) the

government failed to produce the verifying examiner at trial

(instead, Homer testified regarding this examiner’s background and

Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85
(1st Cir. 1998).

-8-
experience).

The district court did not abuse its discretion. Other

federal courts have found ACE-V to be reliable under Daubert, while

noting that verification in ACE-V may not be blinded. See United

States v. Havvard, 117 F. Supp. 2d 848, 853, 855 (S.D. Ind. 2000)

(“[T]he second expert may know from the outset that another

examiner has already made the positive identification . . . .

[L]atent print identification is the very archetype of reliable

expert testimony.”), aff’d, 260 F.3d 597 (7th Cir. 2001); Mitchell,

365 F.3d at 239 (noting that although ACE-V verification may not be

blinded, it still constitutes “peer review” that favors admission

of the method).

At most, Mahone’s first verification argument goes only to

weight, not admissibility, under Daubert and Ruiz-Troche. There is

no evidence that ACE-V mandates blinded verification. Under cross-

examination by Mahone’s trial counsel, Homer acknowledged only “a

lot of debate” over whether a verifying examiner should be blinded.

Mahone’s argument regarding the government’s failure to

produce the verifying expert at trial does not actually contest the

application of the ACE-V method; Mahone does not assert that there

was no verification of Homer’s findings. Instead, Mahone objects

to the government’s litigation approach of not presenting the

verifying expert as a trial witness. If Mahone intended a hearsay

challenge, however, he waived it by failing to make any such

-9-
argument in his opening brief. See Sullivan v. Neiman Marcus

Group, Inc., 358 F.3d 110, 114 n.1 (1st Cir. 2004).

B. The district court’s restitution calculation

We review restitution orders for abuse of discretion and

subsidiary findings of fact for clear error. See United States v.

Burdi, 414 F.3d 216, 221 (1st Cir. 2005).

As part of his sentence for interstate transportation of a

stolen vehicle, Mahone was ordered to pay $5,477.75 in restitution

to an insurance company. The insurer had compensated the vehicle’s

owner $6,227.75, and later received $750 for selling the vehicle

after it was recovered by police. The vehicle was missing for

nearly a month before its recovery.

The district court’s calculation was made under a provision of

the Mandatory Victims Restitution Act (MVRA), 18 U.S.C.

§ 3663A(b)(1), which directs that restitution be equal to the

original value of the property less “the value (as of the date the

property is returned) of any part of the property that is

returned.” The parties stipulated that $6,227.75 represented the

original value of the vehicle, a 1996 Ford Explorer. Mahone argues

that the vehicle’s value as of the date it was returned is far

higher than $750. He notes that the Kelley Blue Book “suggested

retail value” for such a vehicle is $5,760.2 Mahone argues that

2
Mahone also notes that the police incident report for the
vehicle’s recovery lists its condition as good and its value as
$5,000.

-10-
$750 is “simply the amount for which the vehicle was sold,” and

that the government “produced absolutely no evidence that this

figure even approaches this vehicle’s value at the time of its

recovery.”

At sentencing, the district court acknowledged “the rather

extreme variation” between $5,760 and $750, but stated, “[I]t’s

more likely than not that the value was actually the value

reflected in the price that the insurance company paid and received

as a consequence of its dealings with the automobile.” The

district court then explained:

I take it as a given that the insurance company is not in
the business of paying to its insureds more money than
the value of the vehicles it has insured. And I also
take it as a given that the insurer has every incentive
to receive full value for any vehicle that it receives
title to that has been damaged or stolen. In this case,
absent some information that . . . [the insurer’s] sale
of the vehicle was conducted under less than optimal
circumstances, the court really has to conclude that the
$750 for whatever reason is what [the insurer] could have
received on the date of sale since it is what it did in
fact receive.

Otherwise, the court is left to speculate on the
condition of the vehicle, the impact that its being
stolen may have on its value, the impact of its being
held in police custody for an extended period of
time . . . and absent some indication that the auction or
sale . . . was not fair market value and circumstances
that would indicate another value, I am going to accept
[the $750 figure].

As the district court noted, the government did produce

evidence of the vehicle’s value – the price for which it was

actually sold upon recovery. The seller insurer had, moreover, a

-11-
common-sense incentive to regain as much as possible of the

$6,277.75 it had given to its insured for the original theft of the

vehicle.

We recently held, moreover, that “absolute precision is not

required” in calculating restitution under the MVRA. Burdi, 414

F.3d at 221. In interpreting the MVRA, Burdi looked to our

analysis of the Victim and Witness Protection Act (VWPA), 18 U.S.C.

§ 3663, a separate restitution statute with an identical

restitution calculation method and other close similarities to the

MVRA. United States v. Vaknin, 112 F.3d 579 (1st Cir. 1997).3

Vaknin concluded that only “a modicum of reliable evidence” is

required to establish a restitution award; “an award cannot be

woven solely from the gossamer strands of speculation and surmise.”

Id. at 587. Vaknin added that “the legislative history [for the

VWPA] clearly signals a congressional preference for rough remedial

justice, emphasizing victims’ rights.” Id. Specifically, Vaknin

held that Congress intended to authorize expeditious and reasonable

3
Because the VWPA and the MVRA have identical restitution
calculation language, Burdi reasoned, “it is appropriate for us to
turn to Vaknin for guidance” in interpreting the MVRA. 414 F.3d at
221 n.6 (internal quotation omitted).

Several other circuits have noted the very strong similarities
between the two statutes. As a result of this similarity, “courts
interpreting the MVRA may look to and rely on cases interpreting
the VWPA as precedent.” United States v. Gordon, 393 F.3d 1044,
1048 (9th Cir. 2004). Because of the statutes’ similarity, “court
decisions interpreting the language of the VWPA are helpful in
construing the language of the MVRA.” United States v. Randle, 324
F.3d 550, 556 n.3 (7th Cir. 2003).

-12-
calculations of restitution “by resolving uncertainties with a view

towards achieving fairness to the victim,” rather than by requiring

that district courts exercise “great precision in fixing the amount

of restitution due.” Id.

Relying on Vaknin’s interpretation of the VWPA, and applying

it to the identically-worded restitution calculation language in

the MVRA, we conclude that the district court made a proper

determination of the restitution due by using the actual selling

price of the vehicle and correctly emphasizing the victim insurer’s

rights.4

CONCLUSION

The district court did not abuse its discretion in admitting

the footwear impression expert testimony. In addition, it did not

abuse its discretion in calculating Mahone’s restitution.

AFFIRMED.

4
Examining the legislative history of the MVRA reveals that
Congress clearly intended that it build on the victim protections
of the VWPA, which was enacted in 1982:

[W]hile significant strides have been made since 1982
toward a more victim-centered justice system, much
progress remains to be made in the area of victim
restitution.
. . . .
The committee believes that the need for finality and
certainty in the sentencing process dictates that [the
restitution] determination be made quickly.

S. Rep. No. 104-179, at 13, 20 (1995), reprinted in 1996
U.S.C.C.A.N. 924, 926, 933.

-13-