United States v. Billings

UNITED STATES, Appellee

v.

Jacqueline BILLINGS, Specialist
U.S. Army, Appellant

No. 03-0568

Crim. App. No. 9900122

United States Court of Appeals for the Armed Forces

Argued February 8, 2005

Decided June 15, 2005

CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. ERDMANN, J.,
filed a separate opinion, concurring in part and in the result.

Counsel

For Appellant: Captain Doug J. Choi (argued); Colonel Mark
Cremin, Colonel Robert D. Teetsel, Lieutenant Colonel Mark
Tellitocci, Major Allyson G. Lambert, and Captain Mary E. Card
(on brief).

For Appellee: Captain Michael D. Wallace (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, Major
Natalie A. Kolb, and Captain Janine P. Felsman (on brief);
Lieutenant Colonel Margaret B. Baines.

Military Judge: Stephen R. Henley

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Billings, No. 03-0568/AR

Judge CRAWFORD delivered the opinion of the Court.

Pursuant to her pleas, Appellant was convicted of carrying

a concealed weapon, in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2000). Contrary to

her pleas, a general court-martial comprising officer and

enlisted members, convicted her of conspiracy to commit assault

consummated by a battery (in violation of Article 81, UCMJ, 10

U.S.C. § 881 (2000)), conspiracy to commit robbery (in violation

of Article 81), robbery with a firearm (in violation of Article

122, UCMJ, 10 U.S.C. § 922 (2000)), two specifications of

assault consummated by a battery (in violation of Article 128,

UCMJ, 10 U.S.C. § 928 (2000)), and engaging in organized

criminal activity (in violation of Article 134). On January 14,

1999, she was sentenced to be dishonorably discharged and

confined for twenty-seven years. She was credited with 726 days

of confinement. The convening authority approved the adjudged

sentence. The United States Army Court of Criminal Appeals

affirmed the findings and sentence on June 13, 2003.

This Court granted review of the following issue:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
APPEALS ERRED IN UPHOLDING THE MILITARY JUDGE’S
DECISION TO (1) ACCEPT A JEWELER CALLED BY THE
GOVERNMENT AS AN EXPERT IN “CARTIER WATCH
IDENTIFICATION”; (2) ALLOW THAT JEWELER TO IDENTIFY
A WATCH IN A PICTURE AS SOLID GOLD (RATHER THAN GOLD
PLATE); AND (3) ALLOW THAT JEWELER TO TESTIFY THAT THE

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WATCH IN ONE PICTURE IS THE SAME STYLE AS THE WATCH IN
A DIFFERENT PICTURE.

We hold that, under the circumstances of this case, the

military judge erred in allowing the jeweler to identify a watch

as solid gold from a photograph. This error was harmless,

however. Therefore, we affirm the decision of the Army Court of

Criminal Appeals.

FACTS

Specialist Jacqueline Billings was the leader of a group in

Killeen, Texas, known variously as the “Gangster Disciples” and

as “Growth and Development.” In the summer of 1997, the gang

killed two people and committed a series of other offenses,

including an armed robbery at the management office of the

Monaghan Apartments. While Robert G. Monaghan and the apartment

manager were bound, the Gangster Disciples stole approximately

$2,500 in cash and absconded with Mr. Monaghan’s gold watch,

which he valued at $18,500. The police never recovered Mr.

Monaghan’s property.

At trial, the Government called several rank-and-file

members of the Gangster Disciples as witnesses. The Government

also produced two photographs of Appellant wearing a gold-

colored watch that were admitted into evidence. The Government

then called Mr. Monaghan to establish the value of his stolen

watch by testifying that the watch depicted in a Cartier Tank

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Française advertisement was identical to his watch. Mr.

Monaghan testified that he had bought the watch in Rome for the

equivalent of just under $15,000. He stated that it “was a

bargain to [him] because here, in the States, that watch sells

for $18,500.00 plus tax.” The Government also offered receipts

to help establish the value of the watch.

The Government then called Floyd R. Pagel, a jeweler, as an

expert witness. Before Mr. Pagel testified, defense counsel

asked for a hearing pursuant to Article 39(a), UCMJ, 10 U.S.C.

§ 839(a)(2000), to examine Mr. Pagel’s qualifications, as well

as the necessity of any expert testimony at all on the topic.

At that hearing, the military judge denied the defense counsel’s

request for a full hearing pursuant to Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), but did set limits

on the scope of Mr. Pagel’s testimony. The military judge ruled

that Mr. Pagel could describe characteristics of Cartier watches

and state whether he recognized any of them in the watch

Appellant was wearing in the Government’s photographic exhibits

but would not be allowed to say whether the watch pictured was a

genuine Cartier watch. The military judge expressly barred Mr.

Pagel from stating whether the watch in the Government’s photos

was Mr. Monaghan’s.

Mr. Pagel testified that he had been in the jewelry

business for about twenty-five years. He was largely self-

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taught but had attended several training courses, and regularly

read professional periodicals. He stated that he had been a

member of the National Jewelers Association of Appraisers, a

peer-elected group, for about four years. He conducted

appraisals of jewelry in the course of his business, and

insurance companies have accepted his appraisals to determine

value.

Mr. Pagel testified that he attended professional watch

shows and was familiar with Cartier watches. He described

certain characteristics of those watches and stated that they

were relatively easy to identify because of those features.

The trial counsel then asked Mr. Pagel to examine the

Government’s exhibits depicting Appellant and to tell the panel

what to look for in determining whether the watch in those

photos was a Cartier Tank Française. After an objection,

defense counsel was permitted to voir dire Mr. Pagel.

During that questioning, Mr. Pagel admitted that he did not

sell Cartier watches. He also admitted that he had never

actually seen a Cartier Tank Française. Finally, he stated that

he was not certified by the Gemological Institute of America, an

organization that licenses jewelers who sell diamonds and

colored stones. At the conclusion of this questioning, the

trial counsel offered Mr. Pagel as an expert. Over defense

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objection, the military judge recognized Mr. Pagel as an expert

in the field of Cartier watch identification.

Mr. Pagel then examined the Government’s photos of

Appellant with the aid of a ten-power magnification loupe and

stated that the watch reflected many of the unique

characteristics of Cartier watches. He added that the color of

the watch worn by Appellant in the photos suggested that it was

solid gold, rather than gold plated. He based this conclusion

partly on comparison with a watch worn by another person also

shown in one of the Government’s exhibits.

On cross-examination, Mr. Pagel admitted that he would not

be surprised to learn of fake Tank Françaises. He stated that

he rarely attempts to evaluate the quality of watches using

photographs alone, and noted two specific drawbacks to

identifying the watch solely from these photographs: lighting

can distort the color of the metal, and the word “Cartier” is

not visible on the watch in the photographs of Appellant.

DISCUSSION

Military Rule of Evidence (M.R.E.) 702 governs testimony by

expert witnesses. This Court reviews military judges’ decisions

regarding expert witnesses for abuse of discretion. See United

States v. Griffin, 50 M.J. 278, 284 (1999); see also General

Electric Co. v. Joiner, 522 U.S. 136, 139 (1997).

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The granted issue here is divided into three parts. We

examine each in turn.

A. Military Judge’s Acceptance of Expert

This Court must determine whether the military judge was

justified in concluding that Mr. Pagel had sufficient

specialized knowledge to testify as to the characteristics of

Cartier watches. M.R.E. 702 states that:

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.

Thus, an “expert” witness may testify if he or she is

qualified and testimony in his or her area of knowledge would be

helpful. This Court asks the proponent of expert testimony to

demonstrate that expert’s qualifications by establishing the six

factors articulated in United States v. Houser: (1) the

qualifications of the expert; (2) the subject matter of the

expert testimony; (3) the basis for the expert testimony; (4)

the legal relevance of the evidence; (5) the reliability of the

evidence; and (6) that the probative value of the expert’s

testimony outweighs the other considerations outlined in M.R.E.

403. 36 M.J. 392, 397 (C.M.A. 1993). Houser slightly predates

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Daubert and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999),

which made it clear that Daubert applied to nonscientific

subjects like this one. Houser, however, is consistent with the

later cases, and this Court has continued to use the Houser

factors in analyzing the admissibility of expert testimony.

See, e.g., United States v. Dimberio, 56 M.J. 20, 26 (C.A.A.F.

2001); Griffin, 50 M.J. at 284.

Addressing the first part of the granted issue, Appellant

attacks Mr. Pagel’s qualifications. M.R.E. 702 does not require

Mr. Pagel to have any formal training, but Appellant argues that

Mr. Pagel does not even have any relevant experience: he does

not sell Cartier products and had never seen a Tank Française.

Appellant also points out that trial counsel handed Mr. Pagel

the advertisement to look at while describing the unique

characteristics of Cartier watches and asserts that it is

impossible to know whether his testimony could have been as

detailed without that aid. Appellant contends that the panel

easily could have performed the same analysis as Mr. Pagel and

that therefore the military judge abused his discretion by

qualifying Mr. Pagel as an expert.

During the Article 39(a) hearing before Mr. Pagel’s

testimony, the defense counsel had argued that “[trial counsel]

should simply submit the pictures . . . and you let the jury go

back there and look at it. That’s what juries are for, to

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decide these kinds of issues.” The military judge asked the

trial counsel why the panel needed Mr. Pagel. The trial counsel

replied that “what [Mr. Pagel] would give the panel is what to

look for on which to base their opinion.” The trial counsel

gave several examples: the pattern of loops on the watch band,

the size of the band in proportion to the face, the color of

“real gold” as distinguished from gold plate, the distinctive

color of the face and the use of Roman numerals, and the

placement of a jewel on the watch’s “stem.”1 The military judge

ruled that Mr. Pagel could describe characteristics of Cartier

watches and state whether he saw those characteristics in the

watch worn by Appellant in the Government’s photos, but would

not be allowed to say whether the watch in those photos is a

real Cartier watch.

Mr. Pagel is a jeweler, and the panel members presumably

are not. It is safe to say that, even though he has little

personal experience dealing with Cartier watches, Mr. Pagel’s

time in the industry has given him “specialized knowledge,” in

accordance with M.R.E. 702, that could assist the panel. As we

explained in Houser, the test is not whether a jury could reach

any conclusion without expert help, “but whether the jury is

qualified without such testimony to determine intelligently and

1
We note that Mr. Pagel consistently referred to the placement
of a jewel on a watch’s “crown” -– the term used by jewelers.

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to the best possible degree the particular issue without

enlightenment from those having a specialized understanding of

the subject.” Houser, 36 M.J. at 398 (citations and internal

quotation marks omitted).

As Kumho Tire Co. emphasized, the trial judge enjoys a

great deal of flexibility in his or her gatekeeping role: “the

law grants a district court the same broad latitude when it

decides how to determine reliability as it enjoys in respect to

its ultimate reliability determination.” 526 U.S. at 142. The

military judge held an Article 39(a) hearing on the matter and

came to a reasonable conclusion, based on Mr. Pagel’s level of

knowledge relative to that of the panel members. Therefore, he

did not abuse his discretion in permitting Mr. Pagel to testify

as an expert witness.

B. Evaluation of Gold From a Photograph

In considering the second and third parts of the granted

issue, our analysis turns from Mr. Pagel’s qualifications to his

testimony itself. Appellant attacks both Mr. Pagel’s method of

evaluation and his conclusions.

The method in question here is the examination of a watch

in photos, rather than a watch in one’s hand. The military

judge had decided earlier at the Article 39(a) hearing to allow

Mr. Pagel “to relate what to look for in a Cartier watch,

[including] . . . color and quality of the gold.” Mr. Pagel

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then testified that the color of the watch worn by Appellant in

the photos suggested that it was “natural” or solid gold, rather

than gold plated. Resolving this second portion of the granted

issue, then, requires the Court to determine whether the

military judge was justified in implicitly finding that this

method would enable Mr. Pagel to derive “sufficient facts or

data,” M.R.E. 702, to distinguish solid gold from gold plate.

Appellant points out that Mr. Pagel admitted that

evaluating gold from photos is not his usual technique and that

lighting easily could distort the appearance of metals in

photos. The Government argues that Mr. Pagel was, nevertheless,

experienced enough to be able to distinguish solid gold from

gold plate in this way. Appellant’s objection, the Government

contends, concerns the weight of the evidence, not its

admissibility.

As with our consideration of the first granted issue, this

Court must review the military judge’s decision to allow the use

of photos in this way for an abuse of discretion. Although

Kumho Tire Co. and our own precedents suggest that a military

judge is due a great deal of leeway, there clearly are

significant drawbacks when he or she allows a witness to use

photos to distinguish solid gold from gold plate. We hold that

the military judge abused his discretion in allowing Mr. Pagel

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to determine from photos that the watch Appellant wore in the

Government’s photographic exhibits was solid gold.

In Joiner, the Supreme Court emphasized that Daubert does

not require a trial judge “to admit opinion evidence which is

connected to existing data only by the ipse dixit of the expert.

A court may conclude that there is simply too great an

analytical gap between the data and the opinion proffered.” 522

U.S. at 146. Kumho Tire Co. emphasized the trial judge’s

“gatekeeping function” to “‘ensure that any and all . . .

[expert] testimony . . . is not only relevant, but reliable.’”

Kumho Tire Co., 526 U.S. at 147 (quoting Daubert, 509 U.S. at

589). The Court observed that this gatekeeping function

“applies not only to testimony based on ‘scientific’ knowledge,

but also to testimony based on ‘technical’ and ‘other

specialized’ knowledge.” Id. at 141 (citing Fed. R. Evid. 702).

When expert “testimony’s factual basis, data, principles,

methods, or their application are called sufficiently into

question, . . . the trial judge must determine whether the

testimony has ‘a reliable basis in the knowledge and experience

of [the relevant] discipline.’” Id. at 149 (quoting Daubert,

509 U.S. at 592) (bracketed alteration in original). The Court

also stated in Kumho Tire Co. that “a trial court should

consider the specific factors identified in Daubert where they

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are reasonable measures of the reliability of expert testimony.”

526 U.S. at 152.

Those four factors are: (1) whether a theory or technique

can be or has been tested; (2) whether the theory or technique

has been subjected to peer review and publication; (3) the known

or potential rate of error in using a particular scientific

technique and the standards controlling the technique’s

operation; and (4) whether the theory or technique has been

generally accepted in the particular scientific field. Daubert,

509 U.S. at 593-94.

Our analysis of Mr. Pagel’s testimony is concerned with the

application of Kumho Tire Co. and the four Daubert factors to

his method of distinguishing solid gold from gold plate based on

a photograph.

Under Daubert, the proponent of expert testimony must be

able to establish both the expert’s qualifications and the

reliability of the expert’s basis for forming an opinion. “The

proponent of evidence has the burden of showing that it is

admissible.” United States v. Palmer, 55 M.J. 205, 208

(C.A.A.F. 2001). The Government did not carry that burden.

Instead, it relied on the mere “ipse dixit of the expert.”

Kumho Tire Co., 526 U.S. at 157.

The Government met none of the four Daubert criteria for

determining the reliability of expert testimony, nor did it

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identify any alternative indicia of reliability. The Government

thus failed to satisfy its burden as the proponent of Mr.

Pagel’s testimony to establish his opinion’s reliability.

The first Daubert factor is concerned with whether the

technique can be, or has been, tested. 509 U.S. at 593. The

Government presented no evidence that the method of

distinguishing solid gold from gold plate on the basis of

photographs has been tested.

The second Daubert factor focuses on whether the “technique

has been subjected to peer review and publication.” 509 U.S. at

593-94. The Government presented no evidence that the

photographic distinction technique employed here had been peer

reviewed or published.

The third Daubert factor looks to a technique’s known or

potential rate of error and whether standards exist to control

the technique’s operation. 509 U.S. at 594. The record

contains no indication of whether or how often the photographic

distinction technique would lead to an erroneous conclusion.

The fourth Daubert factor considers whether the technique

enjoys general acceptance within the relevant expert community.

509 U.S. at 594. Again, the record is silent except for Mr.

Pagel’s own comment that “[t]here’s not much call for”

identification of gold from photos alone. Thus, nothing in the

record supports the conclusion that Mr. Pagel’s opinion was

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based on a reliable technique. The military judge, therefore,

erred by allowing Mr. Pagel to offer his opinion that the watch

worn by Appellant in the Government’s photographic exhibits was

solid gold rather than gold plate.

C. Testimony Comparing Watches in Photographs

In the third and final part of the granted issue, we are

asked to determine whether the military judge abused his

discretion when he permitted Mr. Pagel to point out Cartier

characteristics in the Cartier advertisement, and then turn to

the Government’s photographic exhibits and indicate which of

those characteristics could be found in the watch worn by

Appellant in the photos.

Appellant argues that the fact that the photos of her were

undated allows for no inference that she was involved in the

robbery at all. Also, she asserts, Mr. Pagel was too unfamiliar

with the Cartier Tank Française to be able to identify such a

watch reliably through photos alone.

The Government contends that Mr. Pagel was sufficiently

familiar with the watch type in question. It also argues that,

in compliance with M.R.E. 401, Mr. Pagel’s testimony made a fact

of consequence -- Appellant’s involvement in the robbery -- more

probable than it would have been without that evidence. The

Government goes on to note that Mr. Pagel never testified that

Appellant was wearing the watch stolen from Mr. Monaghan. In

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any event, the Government asserts, Appellant’s arguments are

relevant to the weight of the evidence, not its admissibility.

When this Court reviews a military judge’s decision for an

abuse of discretion, “[t]he challenged action must . . . be

found to be ‘arbitrary, fanciful, clearly unreasonable,’ or

‘clearly erroneous’ in order to be invalidated on appeal.”

United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)(quoting

United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)(citation

omitted). Appellant is correct in her contention that Mr. Pagel

was not an authority on the Tank Française. Nonetheless, as we

have explained, his knowledge met the standard required by

M.R.E. 702. Appellant’s arguments are relevant to the weight of

this evidence, rather than to its admissibility. The military

judge did not abuse his discretion in permitting this testimony.

DECISION

Appellant is correct in her contention that the military

judge erred by allowing Mr. Pagel to testify on the

identification of gold in a photograph. We hold that this error

was harmless, however. We base our conclusion on a variety of

factors.

First, Mr. Pagel’s qualification as a witness did not

result in any new photo evidence before the jury. The

prosecution did not need Mr. Pagel to authenticate the Cartier

advertisement or the photos of Appellant wearing a watch; all of

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the prosecution’s exhibits had been admitted by the time he

began his testimony.

Next, defense counsel was able to explore that testimony.

The voir dire and cross-examination2 demonstrated the

shortcomings of both Mr. Pagel’s expertise and his method of

comparison. As the Federal Rules of Evidence Advisory Committee

explained:

A review of the caselaw after Daubert shows that the
rejection of expert testimony is the exception rather
than the rule . . . . [T]he trial court’s role as
gatekeeper is not intended to serve as a replacement
for the adversary system. As the Court in Daubert
stated: “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’s note (discussion of 2000

amendments)(quoting Daubert, 509 U.S. at 595) (other internal

quotation marks and citations omitted). Those “traditional and

appropriate means” were available to Appellant as weapons

against Mr. Pagel’s testimony. It appears that defense counsel

used them energetically.

Perhaps most important, the Government marshaled a variety

of strong evidence, including Mr. Pagel’s testimony, against

Appellant on this charge. For example, the Government produced

several witnesses to describe the actions that resulted in the

theft of Mr. Monaghan’s watch. They stated that Appellant was

2
Some cases may require a Daubert hearing, as well.

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the leader of the Gangster Disciples’ local chapter, that no

member of the Gangster Disciples will undertake action without

the approval of his or her leader, that Appellant was aware of

the robbery, and that, when a robbery yielded a major trophy,

such as a gold watch, it would go to the senior leader. The

Government then introduced Mr. Monaghan’s receipts to prove the

value of the stolen watch.

As we stated in United States v. Thomas, “we need not

decide whether the military judge properly performed his

gatekeeping function, because any error in admitting this

evidence was harmless in light of the overwhelming evidence

against appellant.” 49 M.J. 200, 204 (C.A.A.F. 1998)(citing

Article 59(a), UCMJ, 10 U.S.C. § 859(a)).

The decision of the United States Army Court of Criminal

Appeals is affirmed.

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ERDMANN, Judge (concurring in part and in the result):

I agree with the majority that the military judge

erred by allowing Mr. Pagel to testify that the metal

reflected in a photograph was solid gold rather than gold

plate. Further, I agree that any error in Mr. Pagel’s

testimony was harmless in light of the abundant evidence

supporting the charge of robbery.

I respectfully disagree, however, that Mr. Pagel

possessed the necessary expertise in either Cartier

products or in the Cartier Tank Française watch in

particular to render expert opinions about the

characteristics of Cartier products. While Mr. Pagel was a

jeweler and had some passing familiarity with Cartier

watches, he did not deal in Cartier products and testified

that he had not seen the particular model Cartier watch he

was asked to identify. A Buick car dealer may be an expert

in Buicks, but that does not necessarily make him an expert

on a Mercedes SL600 Roadster, particularly if he has never

even seen a SL600 Roadster before. In my view, Mr. Pagel

did not possess specialized “knowledge, skill, experience,

training, or education” to support a claim that he was an

expert in Cartier products or in the Cartier Tank Française

watch in particular. Military Rule of Evidence 702.

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Nor do I believe that his testimony on the

characteristics of the Cartier watch was necessary. The

members of the court could have just as easily examined the

Cartier advertisement and the photograph of the watch worn

by Billings and drawn their own conclusions. The members

were “qualified without such testimony ‘to determine

intelligently and to the best possible degree the

particular issue.’” United States v. Houser, 36 M.J. 392,

398 (C.M.A. 1993) (quoting State v. Chapple, 135 P.2d 1208,

1219-20 (Ariz. 1983)). The members had no need for alleged

expert assistance in comparing two photographs and

determining whether the watches depicted were the same or

similar.

Although I believe that the military judge abused his

discretion in qualifying Mr. Pagel as an expert and in

admitting his testimony as a whole, I agree that any error

in this respect was harmless. Billings’s criminal

liability for robbery flowed from her status as a co-

conspirator. See Manual for Courts-Martial, United States

(2002 ed.), pt. IV, ¶ 5c(5). There was substantial

evidence of a conspiracy and that Billings was a member of

the conspiracy: Billings was the leader of the Gangsters

Disciples at Fort Hood and directed the activities of the

gang; she was present when the robbery of the Monaghan

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Properties office was discussed by the gang; gang members

committed the robbery; and Mr. Monaghan testified that his

Cartier Tank Française watch was stolen during the robbery

and he identified a photo of a Tank Française watch as an

exact picture of the watch that was stolen. The testimony

about solid gold versus gold plate and the “expert” picture

comparison of watches was unnecessary.

3