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G o o d   M o r n i n g !
via THE WEEKLY DETAIL
 
Monday, April 26, 2004

The purpose of the Detail is to help keep you informed of the current state of affairs in the latent print community, to provide an avenue to circulate original fingerprint-related articles, and to announce important events as they happen in our field.


Breaking NEWz you can UzE...
compiled by Jon Stimac
 

Fingerprints as ID - Good, Bad, Ugly? REGISTER, UK - April 19, 2004 ...the author of "Are Fingerprints Really Infallible" attempts to answer his letters...

Game's Afoot in the Fight Against Crime THE SCOTSMAN, UK  - April 23, 2004 ...a lecturer in podiatry has devised a way of working out a suspect’s weight and height through their footprints...

Expert Leaves Imprint on Crime HAMPTON ROADS DAILY PRESS  - April 23, 2004 ...in 27 years with police, the master of identification has helped solve hundreds of cases...

Old Prints Solve 1999 Case NO. BRUNSWICK SENTINEL, NJ  - April 22, 2004 ...a set of fingerprints of a security guard applicant helped solve a five-year-old case…

 

Last week, there was a glitch in the Topica sending process, and I'm not sure the Detail was even published to the entire list.  I also realized later in the week that I forgot to publish the updates to the site.  It's all OK... it was the first glitch in quite a while.

Last week, I attempted to publish the results of the T-shirt slogan contest!  The top three slogans were:

40%
(Fingerprint)
"I was CSI before CSI was cool"

26%
(Fingerprint)
"I didn't see what you did, but I know who you are"

22%
(Fingerprint with vodka bottle in the core)
"Absolute Certainty"

I'll have "I was CIS before CSI was cool" printed up on t-shirts within the next couple of months.  GREAT JOB Tracy Saur for contributing the winning slogan!!  Tracy will be getting two free t-shirts this year.  She can either give one to her trusty office companion (and Smiley Czar) or she can auction it off on Ebay.  I think I'll send hers a week early so she has a jump on the action.  :)


Last week, Craig Coppock brought us a great paper on what a fingerprint identification means.  If you didn't get to read it, make sure you check out the Detail Archives to read his article.  This week we look at an excellent ruling out of the Ninth Circuit Appellate Court on Daubert issues.  Although the case revolved around questioned documents, the well-structured ruling could have related directly to fingerprints.

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 02-30375 Plaintiff-Appellee,

D.C. No. v. CR-01-00310-RSL

MICHAEL STEFAN PRIME, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted February 4, 2004—Seattle, Washington
Filed April 16, 2004 Before: Stephen S. Trott, Richard A. Paez, and Marsha S. Berzon, Circuit Judges. Opinion by Judge Trott

COUNSEL
Anna M. Tolin, Siderius Lonergan & Martin, Seattle, Washington, for the defendant-appellant.
Michael T. Sennott, Siderius Lonergan & Martin, Seattle, Washington, for the defendant-appellant.
Bruce F. Miyake, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.

OPINION
TROTT, Circuit Judge:

OVERVIEW

Michael Prime (“Prime”) was charged with, and convicted of, one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371; one count of conspiracy to manufacture counterfeit securities, in violation of 18 U.S.C. § 371; and three counts of possessing, manufacturing, and uttering counterfeit securities, in violation of 18 U.S.C. § 513(a). Prime raises four issues on appeal: 1) whether the district court properly denied his motion for a Franks hearing;1 2) whether the court abused its discretion in allowing the testimony of an expert handwriting analyst; 3) whether the court abused its discretion in not allowing Prime to substitute counsel; and 4) whether the jury’s potential exposure to extrinsic evidence was grounds for a new trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm all of the district court’s orders and decisions.

BACKGROUND

Between April and June 2001, Prime, along with three coconspirators, David Hiestand (“Hiestand”), Juan Ore-Lovera, and Jeffrey Hardy, sold non-existent items on eBay, purchased items using counterfeit money orders created by the group, sold pirated computer software, and stole credit card numbers from software purchasers. To facilitate this operation, Prime and his cohorts used a credit card encoder to input the stolen data on their own credit cards, set up post office boxes under false names, manufactured false identifications, and used a filter bank account to hide proceeds of the crimes. At trial, numerous victims testified as to the details surrounding how they had been defrauded by Prime’s various scams. In addition, co-conspirators Hiestand and Hardy both extensively testified as to the details of the conspiracy, implicating Prime in all of the crimes charged. The prosecution also elicited the expert opinion of Kathleen Storer (“Storer”), a forensic document examiner with the Secret Service. She testified that Prime was the author of as many as thirty-eight incriminating exhibits, including envelopes, postal forms, money orders, Post-it notes, express mail labels and postal box applications. Prime took the stand in his own defense and claimed that despite all of the evidence linking him to the various scams, including admissions that his fingerprints were on several items linked to the crimes, he was simply attempting to engage in legal entrepreneurial ventures. Prime also confirmed that he had previously been convicted of first and second degree theft, two counts of possession of stolen property in the second degree, and forgery. The jury found Prime guilty on all counts.

Prime moved for a new trial based on the improper submission of extrinsic evidence to the jury. The district court denied the motion, and this appeal follows.

ADMISSIBILITY OF EXPERT TESTIMONY

Prime moved in limine to exclude Storer’s expert testimony. The court held a Daubert hearing where both sides were allowed to offer voluminous materials and expert testimony regarding the reliability of the proposed testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). After careful consideration, the court denied the motion, see United States v. Prime, 220 F. Supp. 2d 1203 (W.D. Wash. 2002), and Storer testified that, in her opinion, Prime’s handwriting appeared on counterfeit money orders and other incriminating documents. On appeal, Prime contends that the admission of expert testimony regarding handwriting analysis was unreliable under Daubert, and thus the court abused its discretion by allowing Storer to testify.

Handwriting Analysis

[1]
In Daubert, the Supreme Court set forth the guiding principle that “under [Federal Rule of Evidence 702]2 the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589. In order to assist the trial courts with this task, the Court suggested a flexible, factor-based approach to analyzing the reliability of expert testimony. Id. at 593-95. Although not an exclusive list, these factors include: 1) whether a method can or has been tested; 2) the known or potential rate of error; 3) whether the methods have been subjected to peer review; 4) whether there are standards controlling the technique’s operation; and 5) the general acceptance of the method within the relevant community. Id. at 593-94.

[2]
Kumho Tire Co. v. Carmichael resolved any post-Daubert uncertainty that the trial judge’s responsibility to keep unreliable expert testimony from the jury applies not only to “scientific” testimony, but to all expert testimony. 526 U.S. 137, 148 (1999). As a result, this “basic gatekeeping obligation” applies with equal force in cases, such as this one, where “non-scientific” experts wish to relate specialized observations derived from knowledge and experience that is foreign to most jurors. Id. Kumho Tire also makes it clear that “the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable,” as well as the ultimate determination of whether the proposed expert testimony is reliable. Id. at 152. Accordingly, we review the district court’s decision to admit or deny expert testimony for abuse of discretion. Id. In accordance with Kumho Tire, the broad discretion and flexibility given to trial judges to determine how and to what degree these factors should be used to evaluate the reliability of expert testimony dictate a case-by-case review rather than a general pronouncement that in this Circuit handwriting analysis is reliable. As the Supreme Court concluded, we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue. Id. at 150; see also United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000) (quoting Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606, 618 (5th Cir. 1999) (“Whether Daubert’s suggested indicia of reliability apply to any given testimony depends on the nature of the issue at hand, the witness’s particular expertise, and the subject of the testimony. It is a fact-specific inquiry.”) (internal citations omitted)).

In this case, Storer was given 112 pages of writing known to be Prime’s, 114 pages of Hiestand’s, and 14 pages of Hardy’s. She was then asked whether the handwriting on 76 documents associated with the alleged conspiracy, such as envelopes, postal forms, money orders, Post-it notes, express mail labels and postal box applications, belonged to any of the co-conspirators.3 Storer “identified” Prime’s handwriting on 45 of the documents.

Following the Daubert hearing, the district court issued a brief order concluding that the proposed forensic document examination testimony was reliable. After the conclusion of the trial, the district court issued a more detailed Order Regarding Defendant’s Motion in Limine, which thoroughly and specifically analyzed the reliability of Storer’s testimony with respect to each of the Daubert factors. See Prime, 220 F. Supp. 2d 1203.

1. Whether the theory or technique can be or has been tested

Handwriting analysis is performed by comparing a known sample of handwriting to the document in question to determine if they were written by the same person. The government and Storer provided the court with ample support for the proposition that an individual’s handwriting is so rarely identical that expert handwriting analysis can reliably gauge the likelihood that the same individual wrote two samples. The most significant support came from Professor Sargur N. Srihari of the Center of Excellence for Document Analysis and Recognition at the State University of New York at Buffalo, who testified that the result of his published research was that “handwriting is individualistic.” With respect to this case in particular, the court noted that Storer’s training credentials in the Secret Service as well as her certification by the American Board of Forensic Document Examiners were “impeccable.” The court also believed that Storer’s analysis in this case was reliable given the “extensive” 112 pages containing Prime’s known handwriting.

2. Whether the technique has been subject to peer review and publication

The court cited to numerous journals where articles in this area subject handwriting analysis to peer review by not only handwriting experts, but others in the forensic science community. Additionally, the Kam study, see infra, which evaluated the reliability of the technique employed by Storer of using known writing samples to determine who drafted a document of unknown authorship, was both published and subjected to peer review. The court also noted that the Secret Service has instituted a system of internal peer review whereby each document reviewed is subject to a second, independent examination.

3. The known or potential rate of error

In concluding that the type of handwriting analysis Storer was asked to perform had an acceptable rate of error, the court relied on studies conducted by Professor Moshe Kam of the Electrical and Computer Engineering Department at Drexel University. Professor Kam’s studies demonstrated that expert handwriting analysts tend to be quite accurate at the specific task Storer was asked to perform — determining whether the author of a known writing sample is also the author of a questioned writing sample. When the two samples were in fact written by the same person, professional handwriting analysts correctly arrived at that conclusion 87% of the time. On the other hand when the samples were written by different people, handwriting analysts erroneously associated them no more than 6.5% of the time. While Kam’s study demonstrates some degree of error, handwriting analysis need not be flawless in order to be admissible. Rather, the Court had in mind a flexible inquiry focused “solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. As long as the process is generally reliable, any potential error can be brought to the attention of the jury through cross-examination and the testimony of other experts.

4. The existence and maintenance of standards controlling the technique’s operation

The court recognized that although this area has not been completely standardized, it is moving in the right direction. The Secret Service laboratory where Storer works has maintained its accreditation with the American Society of Crime Laboratory Directors since 1998, based on an external proficiency test. Furthermore, the standard nine-point scale used to express the degree to which the examiner believes the handwriting samples match was established under the auspices of the American Society for Testing and Materials (“ASTM”). The court reasonably concluded that any lack of standardization is not in and of itself a bar to admissibility in court.

5. General acceptance

The court recognized the broad acceptance of handwriting analysis and specifically its use by such law enforcement agencies as the CIA, FBI, and the United States Postal Inspection Service.

[3]
Given the comprehensive inquiry into Storer’s proffered testimony, we cannot say that the district court abused its discretion in admitting the expert handwriting analysis testimony. The district court’s thorough and careful application of the Daubert factors was consistent with all six circuits that have addressed the admissibility of handwriting expert testimony, and determined that it can satisfy the reliability threshold. See United States v. Crisp, 324 F.3d 261, 269-70 (4th Cir. 2003); United States v. Mooney, 315 F.3d 54, 63 (1st Cir. 2002); United States v. Jolivet, 224 F.3d 902, 906 (8th Cir. 2000); United States v. Paul, 175 F.3d 906, 911 (11th Cir. 1999); United States v. Jones, 107 F.3d 1147, 1161 (6th Cir. 1997); United States v. Velasquez, 64 F.3d 844, 850-52 (3d Cir. 1995).

1
In order to receive a Franks hearing, the defendant must make a nonconclusory and “ ‘substantial preliminary showing’ that the affidavit contained actual falsity, and that the falsity either was deliberate or resulted from reckless disregard for the truth.” United States v. Chesher, 678 F.2d 1353, 1360 (9th Cir. 1982) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)). There is no evidence that the immaterial inaccuracies contained in the affidavit were either deliberate or made with reckless disregard for the truth, and thus this issue on appeal is without merit.

2“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 . . .” FED. R. EVID. 702.

3Prime has not raised as an issue, and we have no reason to believe, that the questioned writing samples were of insufficient length to support a valid analysis.

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To discuss this Detail, the message board is always open: (http://www.clpex.com/phpBB/viewforum.php?f=2)

More formal latent print discussions are available at onin.com: (http://www.onin.com)


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FUNNY FINGERPRINT FIND

At the "Cursor Mania" website www.cursormania.com under the subject "people" you can find a tab called “body parts”. There you can find a cursor made from a fingerprint. If clicked on it your cursor changes in a fingerprint.

Hans van den Nieuwendijk,
www.fingerprints.tk


(From CLPEX webguru:  I did not verify the security of the cursormania website, nor did I install the software on my computer to do this... please don't take this posting as an endorsement of the cursormania website by the webguru or CLPEX.)
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MANAGEMENT CIRCLE

When you need to correct the boss


Your boss has implemented a policy that's causing unforeseen problems in the department.  You feel you must point it out, but you don't know how.  Challenging superiors is always risky, but if you deliver your advice the right way, your boss will value you as a trusted member of the team.  Use these tips for telling your boss how things really are:

Make sure you're right.  It takes time to determine whether a new initiative is working.  Organizational changes don't occur without bumps and glitches.  Make sure you've given the new policy a chance before you critique it. 

Ask for permission.  Before launching into the discussion, ask the boss if it's OK to proceed.  People want some warning before hearing criticism.  The timing might not be right.  The boss could be occupied with other issues.  If you don't get permission, back off and try another time.

Offer evidence. 
If all you have to offer is complaints, don't bother.  Think through the specific objectives you want to accomplish by talking to your boss.  Stay focused on your goals and provide supporting data to prove your point.  Often, you're closer to a problem than the boss is, and you may have information the boss lacks.

Listen carefully.  Don't do all the talking.  Engage the boss in a dialogue about the issue that concerns you.  There could be reasons for the initiative that you haven't been told about.  By listening, you'll not only show your concern for the company's well-being, you'll build your boss's trust.  You might also gain insights into the company's future direction.

Back off if the boss draws the line.  If your boss remains unconvinced, give it up.  Make sure your exit is gracious and professional.  Thank the boss for letting you share your views and say that you respect the boss's position.

-Adapted from "How Do You Tell the Boss He's Wrong?" by Joanna L. Krotz, via Communication Briefings, March, 2004, 800.722.9221, briefings.com.

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UPDATES ON CLPEX.com


Updated the Detail Archives

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Until next Monday morning, don't work too hard or too little.

Have a GREAT week!