United States v. Velasquez

Opinions of the United

1995 Decisions States Court of Appeals

for the Third Circuit

8-31-1995

United States v Velasquez

Precedential or Non-Precedential:

Docket 93-7236

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-7236

UNITED STATES OF AMERICA;

GOVERNMENT OF THE VIRGIN ISLANDS

v.

EDWIN VELASQUEZ,

Appellant.

On Appeal from the District Court of the Virgin Islands,

Division of St. Croix

(D.C. Criminal Action No. 91-cr-00014-01)

Argued April 17, 1995

Before: BECKER, NYGAARD and ROTH, Circuit Judges

(Opinion Filed August 31, 1995)

Michael A. Joseph, Esq. (Argued)

52A Company Street, Suite 1

Christiansted, St. Croix

Virgin Islands 00820

Attorney for Appellant

W. Ronald Jennings

United States Attorney

James R. Fitzner (Argued)

Assistant U. S. Attorney

1108 King Street - Suite 201

Christiansted, St. Croix

1

U. S. Virgin Islands 00820

Attorneys for Appellees

OPINION OF THE COURT

ROTH, Circuit Judge:

In this appeal, defendant, Edwin Velasquez, challenges

the district court's exclusion of the expert witness he proffered

to testify on his behalf on the subject of handwriting analysis

and the lack of standards in that field of expertise. Velasquez

was convicted on six counts of drug related offenses, including

Count VIII, engaging in a continuing criminal enterprise. He

appeals only his conviction on Count VIII.

At Velasquez's criminal trial, the Government relied

upon a handwriting expert, Lynn Bonjour, to link two of

Velasquez's accomplices to certain drug transactions. As a part

of his defense, Velasquez proposed to call Mark P. Denbeaux, a

Professor of Law at Seton Hall University and an expert "critic"

of the field of handwriting analysis, to assist the jury in

understanding the limitations of the Government's handwriting

testimony. The district court refused to admit Professor

Denbeaux's testimony.

In his appeal, Velasquez contends that, if Denbeaux's

testimony had been admitted, the Government might not have

2

convinced the jury that Velasquez had managed or organized a

continuing criminal enterprise involving at least five other

people. Velasquez asserts that Denbeaux's proposed testimony

might have persuaded the jury to discount the testimony of Lynn

Bonjour in which she identified the handwriting on two mailing

labels as that of two of Velasquez's associates. Because we find

that Professor Denbeaux is qualified to testify as an expert on

the limitations of handwriting analysis and because we conclude

that the exclusion of his testimony may very well have affected

the jury's verdict on Count VIII, we will reverse Velasquez's

judgment of conviction on the continuing criminal enterprise

offense and remand this case for a new trial on that count.0

I. BACKGROUND AND FACTS

0

Because we are remanding, we will not go on to consider

Velasquez's contention that the district court erred by

permitting DEA Agent Gregory Thrash to testify regarding the

manner in which cocaine is used and distributed and the manner in

which drug organizations operate between the Virgin Islands and

Florida. In particular, Velasquez asserts that Thrash testified

as an expert and that the Government failed to give the required

notice of that testimony to the defense.

We conclude that parts of Thrash's testimony do appear

to fall within the bounds of expert opinion. He testified not

just about the facts of this specific case but generally, from

his experience, about drug trafficking organizations, including

the persons required to perform different functions in such an

organization.

At the time of the trial in 1991, however, the

Government was not required to give notice of its expert

witnesses. Although Federal Rule of Criminal Procedure

16(a)(1)(E) was amended to require such notice in 1993, even the

amended rule requires the Government to give such notice only

"[a]t the defendant's request." Fed. R. Crim. P. 16(a)(1)(E). In

this appeal, Velasquez fails to allege that he made such a

request.

If, at the time of retrial, the defense should request

notification of expert witnesses, the Government will have the

opportunity to give such notice in a timely manner.

3

Edwin Velasquez was charged with eight counts of

criminal activity related to narcotics trafficking: Count I -

conspiracy to distribute a controlled substance in violation of

21 U.S.C. §§ 841(a)(1), 845, 846 and 963; Count II - possession

of a controlled substance with intent to distribute in violation

of 21 U.S.C. § 841(a)(1); Count III - possession of a controlled

substance on board an aircraft departing from the United States

in violation of 21 U.S.C. §§ 955 and 963; Count IV - importation

of a controlled substance into the custom territory of the United

States in violation of 21 U.S.C. §§ 952(a) and 963; Count V -

possession of a firearm in relation to a drug trafficking crime

in violation of 18 U.S.C. § 924(c); Count VI - simple possession

of a firearm in violation of V.I. Code Ann. tit. 14, § 2253(a);

Count VII - engaging in monetary transactions in property derived

from specified unlawful activity in violation of 18 U.S.C. §§ 2

and 1957(a); and Count VIII - engaging in a continuing criminal

enterprise in violation of 21 U.S.C. § 848.

During a five-day jury trial, the Government called

Lynn Bonjour to testify as an expert on handwriting analysis.0

0

Ms. Bonjour's qualifications are extensive. At the time of the

trial, Ms. Bonjour was employed as a Forensic Document Analyst

with the U.S. Postal Inspection Service and had been so employed

for fourteen and one half years. In conjunction with her

employment, the Postal Inspection Service had certified her as an

expert in the field of document analysis. Previously, she had

been employed by the U.S. Treasury Department, Bureau of Alcohol,

Tobacco and Firearms as a Document Analyst/Document Analyst

Trainee for four years. App. 125. In addition to her on-the-job

training, Ms. Bonjour had attended courses and seminars

throughout the country on handwriting identification and related

subjects, including classes at Georgetown University and George

Washington University and courses with the Secret Service and

FBI. She was a member of the Mid-Atlantic Association of

4

Defense counsel immediately objected to the admissibility of her

testimony, contending that handwriting analysis lacked measurable

standards and could not be considered a legitimate science.

Following voir dire examination on the admissibility of Ms.

Bonjour's testimony, the trial court rejected the defense's

arguments that handwriting analysis did not constitute a valid

field of scientific expertise. In so doing, the court relied, in

part, on Ms. Bonjour's testimony regarding the standards and

methodology of handwriting analysis.0

The court then permitted Ms. Bonjour to testify as an

expert in the field of questioned documents/handwriting analysis.

App. 138. Ms. Bonjour testified that, in her opinion, both

Velasquez's girlfriend, Glenda Arrindell, and one of his alleged

accomplices, Walter McKay, had written a mailing label which had

been used to ship drugs. App. 144, 171.

Forensic Scientists and a past president of the Questioned

Document section of that organization. She has testified as a

handwriting expert in approximately 100 court cases in twenty-six

different states.

0

Ms. Bonjour described the procedures that she, and other experts

in the field of handwriting analysis, employ as follows: First,

the expert determines whether a questioned document contains a

sufficient amount of writing and enough individual

characteristics to permit identification. After determining that

the questioned document is identifiable, the expert examines the

submitted handwriting specimens in the same manner. If both the

questioned document and the specimens contain sufficient

identifiable characteristics, then the expert compares those

characteristics, e.g., the slant of the writing, the shapes of

the letters, the letter connections, the height of letters, the

spacing between letters, the spacing between words, the "i" dots

and "t" crosses, etc. App. 136. After making these comparisons,

the expert weighs the evidence, considering both the similarities

and differences in the handwriting and determines whether or not

there is a match.

5

To counter Ms. Bonjour, the defense proferred Mark P.

Denbeaux, a Professor of Law at Seton Hall University, to testify

on two facets of handwriting analysis: as a critic of the field

of handwriting analysis or, in the alternative, as a handwriting

analyst himself. At the voir dire examination to determine the

admissibility of Denbeaux's testimony, he opined that handwriting

analysis is not a valid field of scientific expertise because it

lacks standards to guide experts in weighing the match or non-

match of particular handwriting characteristics. App. 189-194.

By way of example, Denbeaux pointed out that Ms. Bonjour had

relied on spacing characteristics (the spacing between lines) to

match Velasquez's accomplices with the shipping labels but had

failed to consider or explain why other non-matching aspects of

spacing (e.g., how the writing was located on the page both

vertically and horizontally, indentation, etc.) were not relevant

or as persuasive in forming her opinion. App. 205.

The district court refused to permit Professor Denbeaux

to testify either as to the limitations of handwriting analysis

generally or as to the limitations of Ms. Bonjour's particular

opinions concerning this case. The court explained that "whether

or not handwriting expertise is admissible in a courtroom" is a

"legal" question that was resolved against the defense when the

court permitted Ms. Bonjour to testify as a qualified expert in

the field of handwriting analysis. App. 182; see also Court's

Order and Memorandum, App. 31-34 (Because the court found "that

there are standard procedures in the field of handwriting

6

analysis, it refused to admit the testimony of Professor Denbeaux

to contradict the court's legal conclusion.").

The defense then sought to have Professor Denbeaux

qualified as an expert in handwriting analysis so that he could

compare the mailing labels with the handwriting specimens and

offer his opinion regarding the authorship of the labels. Again,

the court refused to allow Professor Denbeaux to testify. In

particular, the court relied on the Professor's lack of formal

training and inadequate practical experience in performing

handwriting analysis. Although the record reflects that the

Professor had considerable knowledge of the field of handwriting

analysis,0 he had never undertaken formal training in handwriting

analysis, had never been to a seminar on the subject, and had

never been a member of any related professional organization. In

addition, Denbeaux had "never been retained to give an opinion

about authorship." App. 201. Although on approximately 12

occasions, he had compared handwriting exemplars for the purposes

0

Professor Denbeaux testified that he had conducted eight years

of self-directed research on handwriting analysis, during which

he had read nearly all of the literature on the subject; had

spent four years as a statistical social scientist; had been

involved in some capacity regarding handwriting analysis in

approximately four court cases; had been named an American Bar

Association Fellow for his research related to the creation of a

testing mechanism to certify handwriting analysts and validate

the accuracy of their identifications; and had collaborated with

two co-authors to publish a work challenging the entire field of

handwriting analysis based on the lack of empirical testing,

selectively chosen premises, and inadequate standards and

procedures, see D. Michael Risinger, Mark P. Denbeaux, & Michael

J. Saks, Exorcism of Ignorance as a Proxy for Rational Knowledge:

The Lessons of Handwriting Identification "Expertise", 137 U. Pa.

L. Rev. 731 (1989).

7

of making his own identifications, none of these comparisons had

been independently corroborated for accuracy. App. 213.

At the end of the trial, the jury convicted Velasquez

on Counts I, II, III, IV, VI and VIII. The court declared a

mistrial as to Counts V and VII. On July, 10, 1992, Velasquez

was sentenced to 292 months imprisonment, a $250 special

assessment and a $25,000 fine. Almost two years later, on May

16, 1994, the court reduced Velasquez's term of imprisonment to

180 months and five years of supervised release, in recognition

of cooperation with the government.

Velasquez has appealed only his conviction on Count

VIII, illegally engaging in a continuing criminal enterprise

involving at least five people other than himself. He contests

the district court's exclusion of Professor Denbeaux's testimony

criticizing the field of handwriting analysis. Velasquez claims

that, if Professor Denbeaux had been permitted to testify, the

jury might not have accepted Ms. Bonjour's testimony which was

essential in connecting two of the necessary five persons to

Velasquez's drug operations.0

Although Velasquez did not file a formal notice of

appeal, he sent a letter to the district court judge shortly

0

Because the limited record on appeal does not expressly identify

the number of people involved in the criminal enterprise, we

assume that Ms. Bonjour's testimony connecting these two

participants with the Defendant's criminal activities was

necessary to obtain Defendant's conviction on Count VIII of the

indictment, which required that the Defendant occupy a position

of control in a ongoing criminal enterprise involving five or

more individuals. See 21 U.S.C. § 848 (1982). This assumption

is bolstered by the Government's failure to allege otherwise in

its brief to this Court.

8

after his sentencing on July 13, 1992, challenging his

conviction. In October of 1992, he requested that the district

court treat his July 13, 1992, letter as notice of appeal or, in

the alternative, as a motion to file a notice of appeal out of

time. The district court granted his motion on March 31, 1993,

and he filed his notice of appeal with this Court on April 5,

1993. We have jurisdiction over his appeal pursuant to 28 U.S.C.

§ 1291.

II. STANDARD OF REVIEW

We review the trial court's ruling on the admissibility

of Professor Denbeaux's testimony for abuse of discretion, "`but

to the extent the district court's ruling turns on an

interpretation of a Federal Rule of Evidence our review is

plenary.'" In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717,

749 (3d Cir. 1994) (quoting DeLuca v. Merrell Dow

Pharmaceuticals, Inc., 911 F.2d 941, 944 (3d Cir. 1990)), cert.

denied, 115 S. Ct. 1253 (1995) ("Paoli II"). We review the

district court's findings of fact under a clearly erroneous

standard. Sheet Metal Workers Int'l Ass'n Local 19 v. 2300

Group, Inc., 949 F.2d 1274, 1278 (3d Cir. 1991).

III. DISCUSSION

The district court refused to admit Professor

Denbeaux's testimony criticizing the lack of standards in the

field of handwriting analysis because the court had already

concluded that expert testimony concerning handwriting analysis

evidence was sufficiently reliable to be admitted pursuant to

Federal Rule of Evidence 702. We believe, however, that, even

9

though the district court had recognized handwriting analysis as

a field of expertise, the court erred as a matter of law in

denying the defense the opportunity to criticize the standards

employed in that field of expertise.0 Professor Denbeaux's

testimony as a critic of handwriting analysis would have assisted

the jury in evaluating the Government's expert witness. In

excluding Denbeaux's critique, the court ignored the fact that

the same considerations that inform the court's legal decision to

admit evidence under Rule 702 may also influence the factfinder's

determination as to what weight such evidence, once admitted,

should receive. The Government conceded as much, stating that

evidence that handwriting analysis is not scientifically credible

"goes to [the] weight" that such handwriting evidence should

receive. App. 123. The district court even acknowledged, in its

preliminary consideration of the admissibility of Ms. Bonjour's

expert testimony, that Professor Denbeaux's proposed criticism of

0

In his opening brief to this Court, Velasquez also challenges

the district court's refusal to qualify Professor Denbeaux as an

expert in conducting handwriting analysis. In his reply brief,

however, Velasquez recants this argument, stating unequivocally

that "Professor Denbeaux is not an expert in the identification

of questioned writings." Reply Br. at 1; see also Reply Br. at

n.1 ("Trial Court erroneously understood that Professor Denbeaux

was being put forward as an handwriting expert"). Because of

this concession, we need not address the issue of whether

Professor Denbeaux was qualified to testify as to his ability -or

inability - to identify the handwriting on the exemplars

proferred by the Government. We note, however, that there

appears to be a close link between the ability, or not, of an

expert generally to recognize the characteristics of handwriting

which are described as helpful in identifying the scrivener of an

exemplar and the ability, or not, of an expert in a specific case

to identify the scrivener of a particular document through the

recognition of those same characteristics.

10

the lack of standards in handwriting analysis might go "to the

weight" of the Bonjour testimony. App. 133.

The axiom is well recognized: the reliability of

evidence goes "more to the weight than to the admissibility of

the evidence." See, e.g., United States v. Jakobetz, 955 F.2d

786, 800 (2d Cir. 1992) ("DNA profiling evidence should be

excluded only when the government cannot show [a] threshold level

of reliability in its data. . . . [T]he court in exercising its

discretion should be mindful that this issue should go more to

the weight than to the admissibility of the evidence."), cert.

denied, 113 S. Ct. 104 (1992). Because Professor Denbeaux's

proffered testimony called into doubt the reliability and

credibility of Lynn Bonjour's handwriting testimony, the jury

should have been permitted to hear his testimony in order to

properly weigh the testimony of Ms. Bonjour.

If the jury had had the opportunity to credit

Denbeaux's testimony, criticizing handwriting analysis in general

and Ms. Bonjour's testimony in particular, the jury might have

discounted Ms. Bonjour's testimony and thereby found that the

Government had failed to prove beyond a reasonable doubt that

Velasquez's continuing criminal enterprise involved at least five

other people -- a necessary element of his conviction on Count

VIII. Thus, we hold that the district court's determination on

the admissibility of Ms. Bonjour's handwriting analysis testimony

should not be permitted to preclude the jury from hearing other

relevant evidence attacking the reliability of her testimony.

11

Our conclusion that Professor Denbeaux's expert

testimony was admissible is consistent with the "strong and

undeniable preference for admitting any evidence having some

potential for assisting the trier of fact" which is embodied in

the Federal rules of Evidence. DeLuca v. Merrell Dow

Pharmaceuticals, Inc., 911 F.2d 941, 956 (3d Cir. 1990). Rule

702, which governs the admissibility of expert testimony,

specifically embraces this policy. See Fed. R. Evid. 702

advisory committee's note (expert testimony should be admissible

if it will assist trier of fact); Paoli II, 35 F.3d at 741 (Rule

702 has "liberal policy of admissibility").

Rule 702 has three major requirements: (1) the

proffered witness must be an expert; (2) the expert must testify

to scientific, technical or specialized knowledge; and (3) the

expert's testimony must assist the trier of fact.0 Paoli II, 35

F.3d at 741-42. Because Federal Rule of Evidence 104(a) requires

district courts to make preliminary determinations "concerning

the qualification of a person to be a witness, [and] . . . the

admissibility of evidence," a district court, when faced with a

proffer of expert testimony, must make a preliminary

determination as to all of these elements of Rule 702. See

Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, 2796

(1993) ("Faced with a proffer of expert scientific testimony, . .

0

Rule 702 provides: "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.

12

. the trial judge must determine at the outset, pursuant to Rule

104(a), whether the expert is proposing to testify to (1)

scientific knowledge that (2) will assist the trier of fact to

understand or determine a fact in issue.") (footnotes omitted).

These preliminary determinations are intended to ensure the

reliability of the expert testimony as well as its relevance. Id.

at 2795; Downing, 753 F.2d at 1237.

The first requirement of Rule 702 -- that the proposed

witness be an expert -- has been liberally construed by this

Court. Paoli II, 35 F.3d at 741. "We have held that a broad

range of knowledge, skills, and training qualify an expert as

such," and have "eschewed imposing overly rigorous requirements

of expertise." Id.; see also Hammond v. International Harvester

Co., 691 F.2d 646, 653 (3d Cir. 1982) (permitting engineer with

sales experience in automotive and agricultural equipment, who

also taught high school automobile repair, to testify in products

liability action involving tractors).

The second requirement of Rule 702 -- that the expert

testify to scientific, technical or other specialized knowledge -

- is intended to ensure the reliability or trustworthiness of the

expert's testimony. Daubert, 113 S. Ct. at 2795-96.

In Daubert, the Supreme Court held that a district

court, when presented with a proffer of expert "scientific"

testimony, must make a "preliminary assessment of whether the

reasoning or methodology underlying the testimony is

scientifically valid," by considering all relevant factors that

13

may bear on the reliability of the proffered evidence.0 113 S.

Ct. at 2796-97; Paoli II, 35 F.3d at 742. Scientific evidence is

deemed sufficiently reliable if the expert has "good grounds" for

his or her testimony, i.e., the expert's opinions are "based on

the `methods and procedures of science' rather than on

`subjective belief or unsupported speculation.'" Paoli II, 35

F.3d at 742 (quoting Daubert, 113 S. Ct. at 2795). We have

cautioned, however, against applying the reliability requirement

too strictly, explaining that "the reliability requirement must

not be used as a tool by which the court excludes all

questionably reliable evidence. The ultimate touchstone [of

admissibility] is helpfulness to the trier of fact." Id. at 744

(internal quotations and citation omitted).

The third requirement of Rule 702 is to ensure that the

evidence is relevant or "fits" under the facts of the case.

Daubert, 113 S. Ct. at 2795-96. There must be a valid connection

between the expertise in question and the inquiry being made in

the case. Paoli II, 35 F.3d at 743. When dealing with

"scientific" evidence, this element is satisfied if there is a

0

Courts should consider the following suggested factors, in

addition to any other applicable factors, in making a preliminary

determination regarding the reliability of scientific testimony:

(1) whether a method consists of a testable hypothesis;

(2) whether the method has been subject to peer review;

(3) the known or potential rate of error; (4) the

existence and maintenance of standards controlling the

technique's operation; (5) whether the method is

generally accepted; (6) the relationship of the

technique to methods which have been established to be

reliable; (7) the qualifications of the expert witness

testifying based on the methodology; and (8) the non-

judicial uses to which the method has been put.

Paoli II, 35 F.3d at 742 n.8.

14

"connection between the scientific research or test result to be

presented, and particular disputed factual issues in the case."

United States v. Downing, 753 F.2d 1224, 1237 (3d Cir. 1985); see

also Paoli II, 35 F.3d at 742-43.

Is it, however, appropriate to apply the Daubert tests

for scientific expert testimony to the field of handwriting

analysis? The Daubert tests have been considered by some courts

to be too stringent to employ in considering whether to admit the

expert testimony of accountants and construction experts. See

Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d

Cir. 1994) (Daubert clarified standards for evaluating scientific

knowledge only and, therefore, does not apply to exclude

affidavits of geotechnical and underground-construction experts

who were retained to summarize and interpret voluminous,

technical data); Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53

(accountant's affidavit summarizing his review of payroll records

not inadmissible under Daubert because "that case specifically

dealt with the admissibility of scientific evidence"); United

States v. Starzecpyzel, 880 F. Supp. 1027, 1040-41 (S.D.N.Y.

1995) (Daubert factors of testability, known error rate, peer

review and publication, and general acceptance not applicable to

determination of admissibility of testimony by forensic document

examiner; "Daubert does not impose any new standard, other than

what is found in the text of the Federal Rules of Evidence, for

the admissibility of the testimony of nonscientific experts such

as harbor pilots or real estate appraisers."). However, in an

exercise of caution, we will review Denbeaux's testimony under

15

the Daubert tests because those tests are helpful to assist us in

our consideration of the expertise in question here. We will

therefore examine both Lynn Bonjour's and Prof. Denbeaux's

testimony for qualifications, reliability and fitness as those

factors have been explicated in Daubert.

In the present case, there is no question that the

district court properly admitted Ms. Bonjour's handwriting

analysis testimony because her testimony met all three of the

requirements of Rule 702. See Government of Virgin Islands v.

Sanes, 57 F.3d 338 (3d cir. 1995) (approving district court's

decision to admit testimony of professor of linguistics on issues

of voice identification). First, Ms. Bonjour is clearly

experienced in handwriting analysis. Her qualifications in this

regard are extensive, including her more than fourteen years of

experience as a Forensic Document Analyst for the U.S. Postal

Inspection Service. See supra note 2.

Second, the field of handwriting analysis consists of

"scientific, technical or other specialized knowledge" properly

the subject of expert testimony under Rule 702. The district

court held a hearing at which it made the requisite preliminary

finding that the methodology underlying handwriting analysis was

valid and applicable to the facts of the present case. In

particular, the court questioned Ms. Bonjour as follows:

COURT: Is [there] a standard methodology

when you look at a handwriting specimen?

BONJOUR: Yes.

COURT: Give me a little discussion of what

you look for in your analysis. . . .

16

BONJOUR: First I look at the questioned

writing and look at that to determine whether

it's identifiable, whether it has sufficient

individual characteristics as opposed to

class characteristics. So that it can be

identified. Whether there is a sufficient

amount of the writing for a comparison. And,

once I determine whether or not it is

identifiable, then I look at the submitted

handwriting specimens for the same purposess

[sic], to determine whether they have been

naturally written, whether they contain

identifiable characteristics, individual

characteristics. I then compare the

characteristics.

COURT: What do you mean by characteristics?

BONJOUR: Characteristics are the, [sic]

slant, the shapes of the letters, the letter

connections, the height of the letters, the

spacing between letters, spacing between

words, the i dots, t crosses. Every single

thing in that writing is a characteristic.

They, in order to effect an identification,

they have to be demonstrated and if they do

not match exactly, I have to have a good

reason for why they don't. . . . Once I have

made the comparison, I weigh the evidence I

have seen and determine whether or not this

is a match or probably a match or I don't

know or it is not a match.

COURT: Is this the protocol you follow in

every instance?

BONJOUR: In every instance.

COURT: To your knowledge, in your

association with other people who are in your

field, is this the protocol they follow?

BONJOUR: Yes, it is.

App. 136-37. Immediately following this colloquy, the Court

admitted Ms. Bonjour as an expert in the field of questioned

documents, i.e., handwriting analysis. App. 138. We agree with

17

the district court that Ms. Bonjour's proposed testimony

concerned "scientific, technical or other specialized knowledge"

and was sufficiently reliable to be admissible.

Ms. Bonjour's testimony also satisfied the third

requirement -- that the expert's testimony assist the trier of

fact. Her testimony, comparing the handwriting of Velasquez's

accomplices with the handwriting on the mailing labels used to

ship drugs, was of assistance to the jury in determining whether

the accomplices had written the labels, a fact at issue in this

case. Specifically, Ms. Bonjour's testimony, if credited by the

jury, linked two people to Defendant's drug activities where one

of the issues at trial was whether Defendant had managed or

organized a continuing criminal enterprise involving at least

five other persons. Accordingly, the district court correctly

admitted Ms. Bonjour's expert testimony on handwriting analysis

under Rule 702.

Similarly, Professor Denbeaux's proffered testimony

meets all three requirements of Rule 702. First, in light of our

liberal interpretation of expertise, the record shows that

Professor Denbeaux has sufficient specialized knowledge of the

limitations of handwriting analysis to be considered an expert in

that regard. See Downing, 753 F.2d at 1229-30 (expert testimony

on limitations of eyewitness perception and memory may under

certain circumstances satisfy helpfulness test of Rule 702). In

particular, we point to the Professor's eight years of self-

directed research on handwriting analysis and his co-authorship

of a law review article on the subject. See supra note 3. The

18

mere fact that the Professor is not an expert in conducting

handwriting analysis to identify particular scriveners of

specified documents does not mean that he is not qualified to

offer expert testimony criticizing the standards in the field.

Second, the Professor's proposed testimony criticizing

handwriting analysis consisted of "scientific, technical or other

specialized knowledge" reliable enough to be admitted under Rule

702. The Professor criticized the lack of standards and the

possibility for error involved in handwriting analysis. These

criticisms could be and, on a limited basis have been, tested;

they have been published and subjected to peer review. See D.

Michael Risinger, Mark P. Denbeaux, & Michael J. Saks, Exorcism

of Ignorance as a Proxy for Rational Knowledge: The Lessons of

Handwriting Identification "Expertise", 137 U. Pa. L. Rev. 731

(1989) (detailing tests conducted to determine accuracy of

handwriting analysts).0 We find that sufficient evidence exists

to show that the Professor had "good grounds" for his rejection

of handwriting analysis.

Finally, the Professor's proffered testimony was highly

relevant to the reliability of Ms. Bonjour's testimony. His

criticisms of the field of handwriting analysis generally, as

well as Ms. Bonjour's analysis in this case, would have assisted

the jury in determining the proper weight to accord Ms. Bonjour's

testimony. His testimony "fits" the facts of the case because

0

Ms. Bonjour acknowledged that she had read Professor Denbeaux's

law review article, although her critique -- "it's a lot of

gibberish" -- was less than glowing. App. 164.

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his opinions, criticizing handwriting analysis and Ms. Bonjour's

conclusions, connect to the issue of whether Defendant's

continuing criminal enterprise involved at least five other

people.

Thus, in light of the liberal standard of admissibility

of Rule 702, Professor Denbeaux's testimony should have been

admitted. Moreover, because his testimony bore on the critical

issue of Ms. Bonjour's identification of the persons who were

required to have participated in Velasquez's "continuing criminal

enterprise," his testimony might very well have affected the

jury's verdict on Count VIII. We cannot conclude that the

district court's decision to exclude that evidence was harmless

error.

IV. CONCLUSION

The district court erred as a matter of law in refusing

to permit Professor Denbeaux to testify as to the limitations of

handwriting analysis. Accordingly, we will vacate Velasquez's

judgment of conviction for engaging in a continuing criminal

enterprise, in violation of 21 U.S.C. § 848, and we will remand

this case to the district court for a new trial on that count.

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