United States v. Vargas

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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