United States Court of Appeals
For the First Circuit
No. 05-2826
UNITED STATES OF AMERICA,
Appellee,
v.
VÍCTOR R. VARGAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Charles P. McGinty, Federal Defender Office, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
December 22, 2006
TORRUELLA, Circuit Judge. On June 13, 2001, the
defendant-appellant (the "defendant") applied for a United States
passport. Thereafter, the defendant was charged by a federal grand
jury in a three-count indictment with making a false statement in
a passport application, in violation of 18 U.S.C. § 1542; misuse of
a social security number, in violation of 42 U.S.C. § 408(a)(7)(B);
and possession of an unlawful identification document with intent
to defraud the United States, in violation of 18 U.S.C.
§ 1028(a)(4). After a two-day trial, a jury convicted the
defendant on all three counts.
The defendant now appeals his conviction on the ground
that the district court improperly admitted expert testimony
identifying the defendant as someone other than the person listed
on the passport application on the basis of fingerprint analysis.
After careful consideration, we affirm the conviction because we
conclude that the district court did not err in admitting the
expert testimony.
I. Factual Background
On June 13, 2001, a man identifying himself as Samuel
Ortiz submitted an application for a United States passport ("the
application") at a post office in Dorchester, Massachusetts. The
application indicated that the applicant Samuel Ortiz was a United
States citizen born in Puerto Rico on May 24, 1963. The applicant
signed the name "Samuel Ortiz" on the application in the presence
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of the window clerk and submitted supporting documents, including
a Puerto Rican birth certificate and a Massachusetts identification
card bearing the applicant's picture, both under the name "Samuel
Ortiz." The clerk accepted the application and forwarded it for
processing.
The application was reviewed at the National Passport
Center in Portsmouth, New Hampshire by a passport specialist who
testified at trial that aspects of the application led her to
believe it was fraudulent.1 She forwarded it to a fraud program
manager in the Boston Passport Agency. The program manager
testified that she also observed indications of fraud and sent a
letter to the applicant requesting additional documentation. She
received no response, so she referred the application for
investigation by the Diplomatic Security Service ("DSS"), a law
enforcement branch of the United States Department of State
responsible for passport and visa fraud investigation.
On March 5, 2003, two DSS officers went to the address
provided on the Massachusetts identification card submitted with
the application -- an address different from the one written on the
application. The agents identified themselves to the woman who
answered the door and, showing her the picture that had been
1
The passport specialist testified that she suspected fraud
because the picture identification card and the birth certificates
submitted with the application were recently issued, and because
Ortiz printed his signature, which she thought was inconsistent
with a Puerto Rican education.
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submitted with the passport application, asked to see the person
depicted in the picture. The woman led the agents inside the
apartment to a man who one of the agents identified at trial as the
defendant.2 The agents questioned the man about the application
and accompanying photograph. The man denied submitting the
application, telling the agents that his name was Víctor Vargas
("Vargas") and that he was from the Dominican Republic. Vargas
gave his birth date as July 25, 1960, and provided the names of his
parents.
The agents requested that Vargas provide identification.
Vargas responded that he did not have any with him, but that he
might have identification at his mother's house. The agents
offered to take Vargas to his mother's house to get the
identification, and asked if they could take his fingerprints.
Vargas provided two sets of fingerprints. He then went with the
agents to the address he had given as his mother's home. The
agents found no one at that location.
An investigation revealed that the Bureau of Citizenship
and Immigration Service had an alien file ("A-file") for Víctor
Vargas, born in the Dominican Republic on July 25, 1960. The date
2
At trial, the agent testified that during this encounter, he
noticed that the man they questioned had a mole on his left earlobe
matching that shown in the picture submitted with the passport
application. On cross-examination, the agent acknowledged that he
did not mention the identifying mole in his contemporaneous notes
of the March 5, 2003 meeting.
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of birth and names of parents on file matched those provided by
Vargas to the agents in March 2003. The A-file established that
Vargas had been admitted to the United States as a legal permanent
resident in December 1990 and remained a legal permanent resident
in June 2001, when the passport application was submitted. The A-
file contained an index fingerprint for Víctor Vargas.
Investigators also discovered that the passport
application submitted in June 2001 contained four latent
fingerprints. The government conducted fingerprint analysis
comparing the fingerprints obtained by the agents in March 2003
with the prints from Vargas's A-file and the latent prints from the
passport application. The analysis revealed that the fingerprints
obtained by the agents matched both the fingerprint in Vargas' A-
file and the latent prints lifted off the passport application.
The government then brought charges against the defendant
on the theory that he had fraudulently submitted the passport
application under the name "Samuel Ortiz," when he was really
Víctor Vargas.
At trial, the defendant took the position that his name
was Samuel Ortiz and that he had submitted a truthful passport
application. To contradict this, the government sought to
introduce the expert testimony of Thomas Liszkiewicz, a senior
fingerprint specialist with the Department of Homeland Security
("DHS"). Liszkiewicz had analyzed the fingerprints at issue in
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this case and, on the basis of that analysis, identified the
individual who submitted the passport application under the name
Samuel Ortiz as the legal permanent resident Víctor Vargas.
Several months before trial, the government notified the defendant
of Liszkiewicz's proposed testimony and provided him with a report
of Liszkiewicz's conclusions. The government also made the
passport application available to the defendant for independent
analysis. The defendant did not request a hearing on the
admissibility of Liszkiewicz's fingerprint testimony nor did he
make any pre-trial motions with respect to Liszkiewicz's proposed
testimony.
At trial, Liszkiewicz first testified about his
qualifications. Liszkiewicz stated that he had been a senior
fingerprint specialist at the DHS for two and a half years. He had
previously spent nineteen to twenty years as a fingerprint examiner
for the Wilmington, Delaware police department. Liszkiewicz
testified that, as part of his training while with the Delaware
police, he took courses and attended conferences on fingerprint
identification methods, including two forty-hour FBI-sponsored
courses in basic and advanced fingerprint comparison. He also
received training as an intern to court-accepted fingerprint
examiners in Delaware. Liszkiewicz testified that he is certified
as a fingerprint examiner in Delaware and has served there as an
instructor and trainer of fingerprint identification. He stated
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that he has also been certified by the Forensic Document Lab at the
DHS. Liszkiewicz also testified that he has performed "hundreds of
thousands" of fingerprint comparisons and provided expert testimony
on more than one hundred occasions.
After Liszkiewicz testified about his background in
fingerprint analysis, the government moved to qualify Liszkiewicz
as an expert. The defendant objected to Liszkiewicz's
qualifications. The judge did not rule on that objection, and the
defendant appears to have reserved the objection for cross-
examination. Before allowing the prosecution to proceed, the court
briefly addressed the jury, discussing the court's role in
admitting expert testimony but also noting the jury's independent
responsibility to consider "whether you think [the expert's]
qualifications are sufficient to persuade you that he can give this
opinion about fingerprints in this case."
Liszkiewicz went on to explain certain terminology and
procedures of fingerprint identification. He described to the jury
the difference between "inked" prints, produced intentionally to
"reproduce" the patterns on the fingers, and "latent" fingerprints,
obtained from objects that a person touches. He described the
"analysis, comparison, evaluation and verification," or "ACEV,"
method of fingerprint comparison he had been trained to use to
determine whether two fingerprints were made by the same person.
Liszkiewicz explained that this method requires the analyst to
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first ensure that the prints involved are sufficiently clear to
observe their characteristics, and if so, to compare the prints by
looking at both their individual characteristics and the overall
pattern. The analyst looks for matching characteristics and
patterns and identifies any points of difference between the
prints. An observation of at least eight matching characteristics
and no unexplainable points of difference is necessary to indicate
that two prints come from the same person. If the reviewer
believes a match has been identified, she submits the conclusion to
another examiner for verification.
Liszkiewicz then testified to the comparisons he
performed in the analysis at issue. First, he described a
comparison of latent prints found on the passport application to
the prints obtained by the agents in March 2003. Of the four
latent prints found on the application, Liszkiewicz described his
comparison of two of them -- a left and right thumb print. He used
"chalks" of the latent and inked prints for both the left and right
thumb, and marked five matching characteristics to explain to the
jury. He explained that he had chosen five characteristics for
illustrative purposes, but had found a larger number of points of
identity between the prints -- "into the twenties" with respect the
left thumb print. He testified that he had found no points of
difference between the latent and inked fingerprints. On the basis
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of his analysis, he concluded that the latent and inked thumb
prints "were made by one and the same individual."
Liszkiewicz further testified that he compared the index
fingerprint obtained by the agents to the corresponding fingerprint
in the Vargas A-file. Liszkiewicz noted the presence of a "tented
arch," a particularly significant characteristic because it appears
in "less than five percent, more like three to two percent of the
population." He testified that other matching characteristics for
the index finger "were positively identified." On the basis of his
comparison, he testified that the two prints "were made by one and
the same individual to the exclusion of all others."
The defendant cross-examined Liszkiewicz on several
aspects of his testimony. The defendant questioned him about his
educational background and experience. Liszkiewicz acknowledged
that he did not have an undergraduate degree or an educational
background in science. The defendant asked whether Liszkiewicz had
preserved written notes of his analysis in this case, to which
Liszkiewicz responded that, consistent with the policies of his
department, he had not. The defendant also asked Liszkiewicz about
his reliance on visual inspection to compare fingerprints. In
response, Liszkiewicz testified without objection that the visual
inspection method he used was consistent with his training. The
defendant also questioned Liszkiewicz about the quality of the
prints used. Liszkiewicz testified that while it was his usual
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practice to compare fingerprints using "the best possible image
available," he had used a fax copy of the fingerprints from the A-
file for Vargas because it was sufficiently clear. The defendant
challenged Liszkiewicz's reliance on eight matching characteristics
to find a match in fingerprints, pointing out that other countries
require twelve to sixteen matching characteristics. Finally, the
defendant asked Liszkiewicz if he knew of statistical studies on
the reliability of fingerprint identification. The defendant asked
specifically about studies establishing the "premise" that
fingerprints are unique, the "relative frequencies" of individual
characteristics in the population, and the probability that a given
group of characteristics might occur in multiple individuals.
Liszkiewicz said that he was unable to identify specific studies
addressing these points.
After Liszkiewicz's cross-examination, the defendant
moved, without further explanation, "to exclude Liszkiewicz's
testimony." The district court denied the motion. A redirect and
re-cross followed, after which the government rested its case. At
this point, the defendant requested a sidebar, during which he
renewed his motion to exclude the expert testimony, stating:
Your Honor, I renew my motion to strike the
testimony of this witness on the grounds that
while he testified to common fingerprint
characteristics, he is without knowledge,
information or expertise about the
significance of common characteristics. That
is an extraordinary omission in the offering
of identification or for identification
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testimony by this witness. . . . [W]ithout the
ability to testify as to why those
characteristics are meaningful, based on his
experience, training and education, his
testimony to the jury that there was identity
between those prints is without foundation,
would not survive any Daubert standard in the
world because he can't testify to whether
these standards of identification are based on
any identifiable science, are in any way
tested by -- in the literature. There's
utterly no foundation for this.
The government responded that fingerprint identification had been
"accepted science for years in courts" and that Liszkiewicz was a
recognized expert with relevant training and education. The court
expressed agreement with the government's position and denied the
defendant's motion. The defendant then moved for a judgment of
acquittal "on that ground." The district court reserved a ruling
on the motion. The defendant rested his case without calling any
witnesses.
In his closing argument, the defendant asked the jury to
disregard Liszkiewicz's testimony, once again attacking aspects of
Liszkiewicz's testimony: Liszkiewicz's ignorance about the
frequence of certain fingerprint characteristics in the population,
his reliance on eight matching characteristics, his method of
"eyeballing" prints, and his lack of "scientific" training. After
closing arguments, the district court charged the jury to
independently review and consider the expert testimony in light of
all the evidence presented. The jury returned a verdict of guilty
on all counts.
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A week after the trial had concluded, the defendant filed
a written motion for judgment of acquittal and for a new trial
pursuant to Federal Rules of Criminal Procedure 29 and 33,
respectively. The defendant argued that Liszkiewicz's testimony
was inadmissible, and for the first time in the case argued that
the expert testimony failed to satisfy the requirements of Federal
Rule of Evidence 702. As support for his argument he noted, among
other things, that Liszkiewicz did not memorialize his fingerprint
comparisons, that he used a faxed copy of a print for one of his
comparisons, and that he "eyeballed" the comparisons. The
defendant expressly stated that he was not challenging the
admission of fingerprint evidence generally, limiting his Rule 702
argument to the adequacy of Liszkiewicz's testimony.
The district court denied this motion, holding that
Liszkiewicz was qualified as an expert in fingerprint
identification, that his "data and methodology . . . were within
the mainstream of forensic fingerprint technology," and that any
flaws in his opinion went to the weight of the evidence, rather
than its admissibility.
II. Discussion
On appeal, the defendant argues Liszkiewicz's testimony
failed to meet three criteria required by Rule 702 for the
admission of expert testimony: that a witness be "qualified as an
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expert by knowledge, skill, experience, training, or education";3
that expert testimony be "based upon sufficient facts or data"; and
that the expert "appl[y] the principles and methods of [fingerprint
analysis] reliably to the facts of the case." Fed. R. Evid. 702.
A. Gate-keeping Under Daubert
Under Rule 702,
[i]f 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.
Id. This rule imposes a gate-keeping role on the trial judge to
ensure that an expert's testimony "both rests on a reliable
foundation and is relevant to the task at hand." Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993); see also Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999) (holding that
Daubert applies to all expert testimony). Expert testimony must be
3
On appeal, the defendant's "specific" argument is that
Liszkiewicz "failed to meet two of the criteria for admission
required by Fed. R. Evid. 702; his testimony was not based upon
sufficient data and he had not applied the relevant methods
reliably to the facts of the case." The defendant does not
explicitly articulate a challenge to Liszkiewicz's qualifications,
but he devotes part of his brief to the argument that Liszkiewicz
"demonstrated little understanding of fingerprint analysis
methodology." We understand this argument to go to Liszkiewicz's
qualifications, and we will address it as such.
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reliable, such that "the reasoning or methodology underlying the
testimony is scientifically valid and . . . that reasoning or
methodology properly can be applied to the facts in issue."
Daubert, 509 U.S. at 592-93. The proffered expert testimony must
also 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 v.
Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 80 (1st Cir. 1998)
(citing Daubert, 509 U.S. at 591-92) (citations omitted).
The inquiry under Rule 702 is a "flexible one." Daubert,
509 U.S. at 594. The trial court enjoys broad latitude in
executing its gate-keeping function; there is no particular
procedure it is required to follow. See id. The Supreme Court has
emphasized the importance of such broad latitude, noting that,
without it, the trial court "would lack the discretionary authority
needed both to avoid unnecessary 'reliability' proceedings in
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." Kumho Tire, 526 U.S. at 152.
B. Liszkiewicz's Qualifications
The defendant argues that Liszkiewicz's inability to
answer questions about the significance of common fingerprint
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characteristics renders him unqualified to offer expert testimony
to the jury. Because the defendant objected to Liszkiewicz's
testimony on this basis at trial, this argument was preserved, and
we review the district court's decision to accept Liszkiewicz's
qualifications for abuse of discretion. See United States v. Díaz,
300 F.3d 66, 74 (1st Cir. 2002)(citing Gen. Elec. Co. v. Joiner,
522 U.S. 136, 138-39 (1997)).
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.
"It is well-settled that 'trial judges have broad discretionary
powers in determining the qualification, and thus, admissibility,
of expert witnesses.'" Diefenbach v. Sheridan Transp., 229 F.3d
27, 30 (1st Cir. 2000) (quoting Richmond Steel Inc. v. Puerto Rican
Am. Ins. Co., 954 F.2d 19, 20 (1st Cir. 1992)).
Liszkiewicz's qualifications as a fingerprint analyst are
considerable. Liszkiewicz testified that he has worked in the
field of fingerprint analysis for over twenty years. He has
completed two FBI courses in fingerprint comparison, as well as
other training courses. He is a certified fingerprint examiner and
police instructor. He has been deemed qualified as a fingerprint
expert in over one-hundred previous cases. Moreover, there is no
evidence that an understanding of statistical studies on the
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significance of recurring fingerprint characteristics is required
by any standard of fingerprint identification analysis.
It is not required that experts be "blue-ribbon
practitioners" with optimal qualifications. United States v.
Mahone, 453 F.3d 68, 71 (1st Cir. 2006). Given the evidence of
Liszkiewicz's training, experience, and skill, the district court
did not abuse its discretion in finding him sufficiently qualified
to testify as an expert on fingerprint comparison, as that ruling
fell within the broad purview of the trial court's discretion.
C. Sufficiency of Liszkiewicz's Data and the Reliability of
Liszkiewicz's Application of Fingerprint Analysis Methods
1. Standard of Review
The defendant also raises an argument under the first and
third prongs of Rule 702 arguing that Liszkiewicz's testimony was
not based upon sufficient facts or data and that he did not apply
the principles and methods of fingerprint analysis reliably to the
facts of this case. However, the defendant failed to object to
Liszkiewicz's testimony on these grounds at trial, therefore our
review is limited to plain error review.
Rule 103(a)(1) of the Federal Rules of Evidence requires
that an objection to the admission or exclusion of evidence be
timely and specific in order to preserve the issue for appeal.
This mandate for specificity requires the objecting party to object
with the degree of detail that will adequately apprise the trial
court of the basis of the objection, unless the specific ground is
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apparent from the context. See Fed. R. Evid. 103(a)(1); see also
United States v. Carrillo-Figueroa, 34 F.3d 33, 39 (1st Cir. 1994)
("Unless the basis for objection is apparent from the context, the
grounds for objection must be specific so that the trial court may
have an opportunity to address the claim later sought to be
presented on appeal."); United States v. Walters, 904 F.2d 765, 769
(1st Cir. 1990) ("The reason for [the specificity] requirement is
to alert the trial court and the other party to the grounds of the
objection so that it may be addressed or cured.").
As with other bases for objecting, "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." Díaz, 300 F.3d at 74.
However, "[n]othing in [Rule 103] precludes taking notice of plain
errors affecting substantial rights although they were not brought
to the attention of the court." Fed. R. Evid. 103(d). Thus, we
review a claim of error not properly preserved below for plain
error. Díaz, 300 F.3d at 74-75.
Our review of the record indicates that the defendant
objected to the admission of Liszkiewicz's expert testimony three
times. His first objection was to Liszkiewicz's qualifications.
The second objection gave no explanation of his grounds for
objecting; he stated simply and without elaboration, "I move to
exclude [Liszkiewicz's] testimony." The third and final objection
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referred to Liszkiewicz's qualifications and, more generally, to
the scientific foundation of fingerprint analysis. None of the
objections made reference to the sufficiency of Liszkiewicz's facts
or his application of fingerprint analysis methods.
The defendant's first objection went to qualifications,
and thus clearly did not preserve these issues for appeal. The
second objection was a general objection. It did not specify any
grounds for objecting and followed a lengthy cross-examination
covering many subjects, including aspects of Liszkiewicz's
educational background, training, and experience; the methods he
employed for his analysis of the fingerprints; the memorialization
of his analysis; the accuracy of fingerprint analysis generally;
the rigor of the standards he employed as compared to standards
employed in other countries; the reliability of fingerprint
analysis as compared to DNA analysis; and his knowledge of
statistical studies on the reliability of fingerprint
identification. On the heels of such varied questioning, it cannot
be said that the specific grounds of the defendant's objection were
"apparent from the context," such that Rule 103(a) would be
satisfied.4 Thus, the defendant's second objection could not
4
Although the defendant's cross-examination of Liszkiewicz was
itself limited to the expert's qualifications, methodology, the
basis for his ultimate opinion, and the reliability of the
fingerprint analysis in general, subjects that are all governed by
Rule 702, more than 'I move to exclude his testimony' after a
wholesale attack on an expert's testimony is necessary to advise
the trial court of an objection based on the sufficiency of facts
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advise the district court that the defendant was raising a
challenge specifically to the sufficiency of Liszkiewicz's data or
to the application of fingerprint analysis methods under Rule 702.
The defendant's third objection likewise failed to advise
the district court of these challenges to Liszkiewicz's testimony.
This objection addressed Liszkiewicz's qualifications and the
scientific foundation of fingerprint analysis. Although it was
more elaborate than his first insofar as the defendant articulated
some grounds for the motion to strike, it did not call the district
court's attention to Liszkiewicz's data or his application of
fingerprint analysis methods.5 In fact, both the district court
and the government understood the defendant to be challenging the
foundation of fingerprint analysis generally and Liszkiewicz's
qualifications as an expert.6 Because the defendant failed to make
employed by the expert and his application of appropriate methods.
See Díaz, 300 F.3d at 75 (noting that because "Rule 702 encompasses
an array of expert witness issues," an objection on the basis of
one or more of its criteria must advise the court of the specific
Rule 702 provision being challenged).
5
Although the defendant did refer briefly to Daubert, he did not
articulate how the Daubert standard relates to the specific
challenges he brings to our attention on appeal. See Díaz, 300
F.3d at 75 (finding the defendant's references to "Daubert" and
"competency" to be "woefully deficient for the purposes of advising
the district court that [the defendant] was raising a challenge to
the reliability of the experts' methods and the application of
those methods under 702").
6
In response to Vargas's objection, the following colloquy took
place:
THE GOVERNMENT: Fingerprint examination has been an accepted
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a specific objection based on the sufficiency of the data
Liszkiewicz employed or his application of fingerprint analysis
methods, and no such basis of objection could be considered clear
from the context, the defendant's objections at trial failed to
adequately preserve these challenges to the admissibility of
Liszkiewicz's expert testimony. We review these claims for plain
error.
2. Plain Error Analysis
The defendant 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" to establish plain error in the admission of expert
testimony. United States v. Lemmerer, 277 F.3d 579, 591 (1st Cir.
2002)(quoting United States v. Gómez, 255 F.3d 31, 37 (1st Cir.
2001))(internal quotation marks omitted). Nothing of that sort is
implicated here.
a. Sufficiency of the Data
The defendant argues that Liszkiewicz's testimony was not
based on sufficient facts or data because he used a faxed image of
science for years in courts. He has been accepted as an
expert. He has official training and background and education
to testify and give his opinion as to how he made this
identification.
THE COURT: Yes. The motion is denied. It has a certain
plausibility, but it's denied.
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the fingerprint in Vargas's A-file to compare that print with the
fingerprints obtained by the agents rather than the original print
or a photograph of the original.
Liszkiewicz provided unrebutted testimony that the ACEV
method of fingerprint comparison required that the analyst ensure
that the prints being analyzed are sufficiently clear to observe
their characteristics. He also testified that the faxed image of
fingerprint was sufficiently clear to make a comparison. While he
did state that it was his practice to try to use the "best possible
image" of a fingerprint for comparisons, his failure to do so with
respect to one of the prints goes to the weight, not the
admissibility, of his testimony. See Int'l Adhesive Coating, Co.
v. Bolton Emerson Int'l, 851 F.2d 540, 545 (1st Cir. 1988) ("When
the factual underpinning of an expert's opinion is weak, it is a
matter affecting the weight and credibility of the testimony -- a
question to be resolved by the jury."). There was no error, much
less plain error, in the district court's finding that
Liszkiewicz's testimony was based on sufficient facts.
b. Reliability of Application of Methodology
The defendant also contends that Liszkiewicz's testimony
should have been excluded because he did not apply the principles
and methods of fingerprint analysis reliably to the facts of this
case. He first argues that the district court "abdicated its
responsibility to assure that the witness applied the appropriate
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methods of his field reliably to the facts of the case" and that it
ultimately erred in finding that Liszkiewicz had applied the
accepted methods of fingerprint analysis reliably.
The defendant claims that the court should have concluded
that Liszkiewicz's testimony was inadmissible because he failed to
memorialize his original analysis with notes, he based one of his
comparisons of a faxed image of a fingerprint, he "eyeballed" the
fingerprints as a means of identification, and he recited an eight-
point standard but only identified five matching characteristics as
to two comparisons and only one matching point for the last
comparison in his testimony to the jury.
The district court's responsibility under Rule 702 and
Daubert is only to find that the expert's conclusion has "a
reliable basis in the knowledge and experience of [the expert's]
discipline." Daubert, 509 U.S. at 592; see also Ruiz-Troche, 161
F.3d at 85 ("[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.").
We have specifically noted that "Daubert does not require that the
party who proffers expert testimony carry the burden of proving to
the judge that the expert's assessment of the situation is
correct." Ruiz-Troche, 161 F.3d at 85. Once the district court
finds that the expert's methodology is reliable, the expert is
allowed to testify as to the inferences and conclusions he draws
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from it. United States v. Mooney, 315 F.3d 54, 63 (1st Cir. 2002)
("We . . . note that Rule 702 specifically allows qualified experts
to offer their opinions, a testimonial latitude generally
unavailable to other witnesses.").
The record shows that Liszkiewicz explained that the
methods and procedures he employed in analyzing fingerprint
identity required him to find at least eight matching
characteristics and no unexplainable points of difference in order
to determine that two fingerprints came from the same person.
Liszkiewicz testified that he examined every set of fingerprints
personally and that each examination yielded sufficient points of
identity to determine that they belonged to the defendant. He
stated that the comparisons yielded no characteristics of
difference, and emphasized the significance of finding more than
twenty points of identity as to one comparison and a matching
"tented arch" characteristic as to another. Liszkiewicz stated
that his use of only five points was for illustrative purposes, and
he never suggested that he relied on fewer than eight points of
identity in declaring a match. He also testified that while
getting the "best possible image" was important, the faxed image of
the print was sufficiently clear to make a comparison. We find
this testimony more than sufficient to support the district court's
determination that Liszkiewicz's conclusions had a reliable basis
in the knowledge and discipline of fingerprint analysis.
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This Court has made clear that
[a]s 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.
Ruiz-Troche, 161 F.3d at 85 (internal quotation marks and citations
omitted); see also 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.").
We note that the defendant questioned Liszkiewicz at
length on all of the alleged deficiencies in his testimony that he
challenges on appeal. He presented the jury with his view of the
inconsistencies and weaknesses in Liszkiewicz's testimony.
Moreover, the district court below instructed the jury that,
notwithstanding the court's decision to admit the evidence, it had
the "separate responsibilit[y] of determining whether [it]
believe[d] him and his opinions, in particular, based on [its]
judgment of his qualifications as a fingerprint analyst and
expert." In light of the district court's cautionary instructions
to the jury, the defendant's vigorous cross-examination of
Liszkiewicz, and his argument to the jury at closing that the
fingerprint evidence should not be credited, we are confident that
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the jury could draw its own conclusions as to the strength of the
support for Liszkiewicz's opinions.
Thus, the defendant is unable to establish the first
prong of the plain error test: there was no error in the district
court's assessment of the reliability of Liszkiewicz's application
of fingerprint analysis methodology to the facts of this case.
III. Conclusion
For the reasons stated above, we affirm.
Affirmed.
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