United States v. Havvard, Wade

In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1092

United States of America,

Plaintiff-Appellee,

v.

Wade M. Havvard,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00 CR 43--David F. Hamilton, Judge.

Argued June 13, 2001--Decided July 18, 2001

Before Bauer, Coffey, and Kanne, Circuit
Judges.

Bauer, Circuit Judge. A jury found Wade
M. Havvard guilty of one count of
possessing a firearm after a felony
conviction in violation of 18 U.S.C. sec.
922(g)(1), and the district court
sentenced him to 120 months’
imprisonment, three years’ supervised
release, a $1000 fine, and a $100 special
assessment. On appeal Havvard argues that
the district court erred in admitting a
fingerprint expert’s opinion that a
latent print lifted from a gun recovered
at the house where Havvard was arrested
matched an exemplar obtained from him. We
affirm.

On June 23, 1998, Indiana State Police
officers and members of the FBI Fugitive
Task Force executed a search warrant at
the residence of Havvard’s grandmother.
Law enforcement officials believed that
Havvard was currently staying there, and
when he did not respond to requests to
come downstairs, the officers searched
the home and eventually located him
hiding in a closet in a second-floor bed
room. Several firearms and rounds of
ammunition were recovered from the
second-floor bedrooms, including the bed
room where Havvard was found. A latent
fingerprint lifted from one of the
handguns was later matched to an exemplar
fingerprint obtained from Havvard.

Prior to trial Havvard moved to exclude
the government’s offer of expert
testimony that the fingerprints matched,
arguing as relevant here that the
government had not established the
scientific reliability of fingerprint
comparisons to render such evidence
admissible under Federal Rule of Evidence
702. The district court ordered a hearing
based on the standards for admitting
expert testimony established in Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993), and Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999). At that hearing the
government called FBI fingerprint expert
Stephen Meager to explain the general
process of latent print identification.
Meager, who has studied the success rates
of fingerprint comparisons in national
research surveys, described the physical
characteristics of fingerprints and
detailed the three-step process by which
latent prints are compared with
exemplars.

According to Meager, the examiner first
determines whether the flow of the
ridges--the lines and grooves observable
on the fingertips--follows the same
pattern on both the latent print and the
exemplar. During this initial phase the
examiner also determines the orientation
of the imprint left by the fingerprint
ridges. Meager pointed out, however, that
at this first level of study an examiner
can only exclude prints that do not share
these basic similarities; a match cannot
be made without more in-depth,
individualized comparison.

Next, the examiner studies each separate
ridge in the fingerprint and determines
its relationship to the other ridges in
the print. Four elements of each ridge--
location, type, direction, and
relationship--are considered in the
aggregate at this stage. Meager stated
that this closer analysis allows the
examiner to begin individualizing
fingerprints and possibly match a latent
print with an exemplar.

Finally, in the third phase, the
examiner compares individual ridges to
determine whether those in the latent
print match each ridge in the exemplar.
Meager explained that at this level the
examiner will also compare the unique
sweat pores in each print.

Meager also testified that the error
rate for fingerprint comparison is
essentially zero. Though conceding that a
small margin of error exists because of
differences in individual examiners, he
opined that this risk is minimized
because print identifications are
typically confirmed through peer review.
Meager did acknowledge that fingerprint
examiners have not adopted a single
standard for determining when a
fragmentary latent fingerprint is
sufficient to permit a comparison, but he
suggested that the unique nature of
fingerprints is counterintuitive to the
establishment of such a standard and that
through experience each examiner develops
a comfort level for deciding how much of
a fragmentary print is necessary to
permit a comparison.

The government presented no other
witnesses, and Havvard offered no
evidence. At the close of the hearing,
Havvard argued that, because there is no
objective standard defining when a latent
print is sufficient for a comparison,
fingerprint analysis is simply the
subjective assessment of the individual
examiner and not a scientific process
that can satisfy the Daubert/Kumho
standard for admission under Rule 702.

In a published entry, see United States
v. Havvard, 117 F. Supp. 2d 848 (S.D.
Ind. 2000), the district court concluded
that because the fingerprint evidence was
obviously relevant--an expert matched a
latent print found on one of the firearms
with Havvard’s left index finger--the
only issue was its reliability. See id.
at 850. The district court further found
that claims of the uniqueness and
permanence of fingerprints are
"scientific"claims because those
assertions can be "falsified," id., and
that much of the fingerprint comparison
process is "completely objective," id. at
853. The district court also observed
that the methods of comparison are easily
testable such that both parties can
subject prints to comparison to verify a
purported match. See id. at 854.
Furthermore, the district court noted
that the peer-reviewed results of
fingerprint comparisons, although not
often published as scholarly articles,
have been used in "adversarial testing
for roughly 100 years," which offered a
greater sense of the reliability of
fingerprint comparisons than could the
mere publication of an article. See id.
Emphasizing the minimal error rate of
fingerprint comparisons, though
acknowledging that fingerprint analysis
lacks a unified objective standard for
determining when a latent print is
adequate to allow comparison, the
district court concluded that fingerprint
analysis is sufficiently reliable to
satisfy the Daubert/Kumho standard and
denied Havvard’s motion.

At trial the government called Officer
Michael Knapp, a fingerprint expert
employed by the Indianapolis Police
Department. After relating his extensive
knowledge, training, and experience with
fingerprint identifications, Officer
Knapp described the general scientific
basis for fingerprint analysis and the
particular comparison techniques he uses
to match fingerprints. He then stated
that a latent print found on the .45
caliber pistol recovered at the time of
Havvard’s arrest matched an exemplar
print of Havvard’s left index finger.
Havvard cross-examined Officer Knapp but
did not offer a fingerprint expert of his
own. The jury ultimately found Havvard
guilty of one count of possession of a
firearm by a felon.

In this court Havvard first argues that
the district court did not properly
conduct its Daubert hearing to determine
the admissibility of fingerprint evidence
under Rule 702, a determination that we
review de novo. See United States v.
Cruz-Velasco, 224 F.3d 654, 659 (7th Cir.
2000). Specifically, he contends that
fingerprint evidence is inadmissible
under Daubert because it is not
"scientifically" based. The standards of
Daubert, however, are not limited in
application to "scientific" testimony
alone. See Kumho, 526 U.S. at 147
(holding that "the basic gatekeeping
obligation" of Daubert applies to all
expert testimony). Therefore, the idea
that fingerprint comparison is not
sufficiently "scientific" cannot be the
basis for exclusion under Daubert. Nor do
we accept Havvard’s argument that Daubert
completely supplanted the general
acceptance test of Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), because the
Supreme Court in Kuhmo still identified
"general acceptance" as a relevant
consideration, see Kuhmo, 526 U.S. at
150. Instead, the Daubert standard offers
a list of flexible factors to be used as
appropriate for various types of expert
testimony in determining the reliability
of the proffered testimony. See
Nutrasweet Co. v. X-L Eng’g Co., 227 F.3d
776, 788 (7th Cir. 2000).

The issue of the reliability of
fingerprint evidence after Daubert
appears to be one of first impression in
this circuit, and few other courts have
addressed this question. Those discussing
the issue have not excluded fingerprint
evidence; instead, they have declined to
conduct a pretrial Daubert hearing on the
admissibility of fingerprint evidence,
see United States v. Martinez-Cintron,
136 F. Supp. 2d 17 (D.P.R. 2001) (relying
on the district court’s order in this
case); United States v. Cooper, 91 F.
Supp. 2d 79, 82-83 (D.D.C. 2000), or have
issued brief opinions asserting that the
reliability of fingerprint comparisons
cannot be questioned, see United States
v. Sherwood, 98 F.3d 402, 408 (9th Cir.
1996); United States v. Joseph, 2001 WL
515213 (E.D. La. May 14, 2001).
For his part Havvard argues that
fingerprint comparisons are not reliable
because the government admits that the
basic premise that all fingerprints are
unique remains unproven, and because
there are no objective standards for
defining how much of a latent fingerprint
is necessary to conduct a comparison or
for evaluating an individual examiner’s
comparison. Havvard relies heavily on a
National Institute of Justice
solicitation, issued in March 2000, which
sought proposals for fingerprint research
studies to be performed and published
under its guidance. The National
Institute of Justice’s stated goal was
"to provide greater scientific foundation
for forensic friction ridge (fingerprint)
identification," which Havvard
characterizes as an "admission" by the
government that more research needs to be
done in the area of fingerprint
analysis./1 This document, however, was
not part of the record in the district
court and cannot now be relied upon here.
See McClendon v. Ind. Sugars, Inc., 108
F.3d 789, 795 (7th Cir. 1997). The same
is true for a 1995 report of the
Collaborative Testing Service, which
Havvard cites to suggest a higher error
rate for fingerprint comparisons than was
testified to by Meager. Like the National
Institute for Justice solicitation, the
Collaborative Testing Services’s study
was available prior to the Daubert
hearing and could have been made part of
the district court record or been used as
a basis to cross-examine Meager.

Havvard also relies on three district
court cases as support for his contention
that fingerprint analysis is not
scientific and is thus unreliable. These
cases reject under Daubert expert
analysis of handwriting and hair fibers,
and Havvard relies on these three
decisions to suggest that fingerprint
analysis is similarly inadmissible. But
in each decision, the district court
contrasts the rejected technique with
latent print identification and
specifically credits the greater
reliability of fingerprint evidence. See
United States v. Santillan, No. CR-96-
40169, 1999 WL 1201765, at *5 (N.D. Cal.
Dec. 3, 1999) ("It is apparent to the
Court that handwriting opinion testimony
on unique identification does not have
the validity and reliability of
fingerprints or DNA evidence."); United
States v. Starzecpyzel, 880 F. Supp.
1027, 1046 (S.D.N.Y. 1995) ("By way of
comparison [to handwriting analysis,]
objective standards are employed in
fingerprint analysis."); Williamson v.
Reynolds, 904 F. Supp. 1529, 1554 (E.D.
Okla. 1995) (government’s expert
"admitted that hair comparisons are not
absolute identifications like
fingerprints"), rev’d on other grounds,
110 F.3d 1508 (10th Cir. 1997). Thus, we
are at a loss to understand Havvard’s
reliance on these decisions.

Havvard further contends that the
district court improperly required him to
disprove the validity of fingerprint
evidence at the Daubert hearing, rather
than requiring the government to identify
a scientific basis for fingerprint
analysis. We think Havvard reads too much
into the district court’s observation
that he had "offered no evidence in this
case undermining the reliability of the
methods in general." See Havvard, 117 F.
Supp. 2d at 854. The district court
recognized that establishing the
reliability of fingerprint analysis was
made easier by its 100 years of
successful use in criminal trials, and
appropriately noted that nothing
presented at the hearing undermined
Meager’s testimony. Most importantly, it
is clear from the district court’s
thorough order that it properly
considered the Daubert factors in
analyzing Havvard’s motion and concluded
that fingerprinting techniques have been
tested in the adversarial system, that
individual results are routinely
subjected to peer review for
verification, and that the probability
for error is exceptionally low. See
Kumho, 526 U.S. at 150.

Finally, Havvard argues that the
district court erred in allowing Officer
Knapp to testify because his testimony
"was presented as an ipse dixit, the
government asked the jury to find that
the fingerprint was Mr. Havvard’s simply
because it was Patrolman Knapp’s opinion
that it was his fingerprint." Havvard is
incorrect, however, in suggesting that
the district court could not admit
Officer Knapp’s conclusion without more
elaboration, see Fed. R. Evid. 705; Mid-
State Fertilizer Co. v. Exch. Nat’l Bank,
877 F.2d 1333, 1339 (7th Cir. 1989)
("Rule 705 . . . allows experts to
present naked opinions."); see also
United States v. Lawson, 653 F.2d 299,
302 (7th Cir. 1981); uncovering the basis
for that opinion was a matter for cross-
examination, see Fed. R. Evid. 705; see
also Symbol Techs., Inc. v. Opticon,
Inc., 935 F.2d 1569, 1575 (Fed. Cir.
1991) (collecting cases).

Because we find no error, the judgment
of the district court is AFFIRMED.

FOOTNOTE

/1 At oral argument, the government stated that this
solicitation was withdrawn, but the National
Institute of Justice’s website, at
http://www.ojp.usdoj.gov/nij/ (last visited June
26, 2001), does not indicate that funding for
this program has been discontinued.