United States v. Ford

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

3-29-2007

USA v. Ford

Precedential or Non-Precedential: Precedential

Docket No. 05-4998

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 05-4998

UNITED STATES OF AMERICA

v.

KELVIN FORD,

Appellant

_____________________

On Appeal from the United States District Court

for the District of New Jersey

District Court No.: 04-cr-562

District Judge: The Honorable Jerome B. Simandle

_____________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

February 15, 2007

Before: SMITH, FISHER, Circuit Judges, and

DOWD, District Judge *

*

The Honorable David D. Dowd, Jr., Senior District Judge

for the Northern District of Ohio, sitting by designation.

(Filed: March 29, 2007)

Ralph A. Jacobs

Jacobs & Associates LLC

34 Tanner Street

Haddonfield, NJ 08033

Counsel for Appellant

Christopher J. Christie

Sabrina G. Comizzoli

George S. Leone

970 Broad Street

Newark, NJ 07102

Counsel for Appellee

_____________________

OPINION OF THE COURT

_____________________

SMITH, Circuit Judge.

A jury convicted Kelvin Ford of participating in the

robbery of two New Jersey banks on June 11, 2003 and June 12,

2003. The District Court sentenced him to 460 months of

incarceration for these offenses. He now appeals two issues

2

relating to his conviction and sentence.1 First, Ford asserts that

the District Court abused its discretion in permitting the

testimony of the Government’s shoeprint expert. Second, Ford

challenges the application of the Career Offender provision in

United States Sentencing Guideline § 4B1.1(a).

I.

According to the evidence established at Ford’s trial, on

June 11, 2003, Ford, Donald Johnson, and Christopher Howard

robbed the Fleet Bank in Mays Landing, New Jersey, stealing

$9,802. On June 12, 2003, the trio robbed the Commerce Bank

in Somers Point, New Jersey, absconding with $10,330. The

Government presented evidence that during the Fleet Bank

robbery, Howard cased the bank, and Ford and Johnson

committed the robbery and then fled to a getaway car driven by

Howard. The robbery of the Commerce Bank was executed in

a similar fashion, except that Howard only cased the bank,

Johnson alone committed the robbery, and Ford drove the

getaway car. There is no dispute that as Johnson fled the

Commerce Bank, Ford, who was driving out of a fast food

restaurant, stopped to pick him up. Before Ford was able to

collect Johnson, however, he hit another vehicle whose driver

1

The District Court had subject matter jurisdiction pursuant

to 18 U.S.C. § 3231. This Court has jurisdiction over Ford’s

challenge to his conviction under 28 U.S.C. § 1291 and his

sentence under 18 U.S.C. § 3742.

3

was able to identify Ford’s automobile. Ford’s car was later

spotted by a police officer in Egg Harbor Township as it pulled

into a car dealership parking lot. Ford and Johnson left the

vehicle and fled on foot. While they hid, Ford used his cell

phone to contact Howard. Ford and Johnson were seen running

through a wooded area, and police pursued them, apprehending

both. A search of Ford revealed that he had $2,967 in cash. The

police recovered $7,376 from Johnson. The currency stolen from

the Fleet Bank branch was not recovered.

In addition to the testimony of co-defendants Johnson

and Howard that Ford had been involved in the Fleet Bank

robbery, the Government presented evidence that three partial

shoeprints lifted from the counter in the bank were similar to the

type of imprints that would be made by the shoes that Ford was

wearing when he was apprehended. The jury convicted Ford of

both bank robberies.

At sentencing, the Government sought the application of

the Career Offender provision to Ford on the basis of two prior

convictions for crimes of violence. One of those crimes was an

escape he attempted while incarcerated at Lorton Reformatory

in Virginia. The District Court found Ford’s escape to be a

crime of violence and agreed with the computation of his

criminal history category as a VI under the Guidelines.

4

II.

We review the District Court’s decision for abuse of

discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39

(1997); Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316,

320 (3d Cir. 2003); United States v. Sokolow, 91 F.3d 396, 402

(3d Cir. 1996). Ford argues that the District Court abused its

discretion in admitting the testimony of Government expert Eric

Gilkerson regarding the shoeprint because the testimony failed

to meet the standard for admissibility prescribed in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and

Federal Rule of Evidence 702.2 Ford asserts that because

Gilkerson could not provide a more conclusive opinion

2

Rule 702 provides 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.

F ED. R. E VID. 702.

5

regarding the likelihood that the shoeprint on the bank counter

was left by the soles of Ford’s shoes than mere similarity

between the prints and Ford’s shoes, the testimony lacked

probative value and should have been excluded under Federal

Rule of Evidence 401. Ford’s contentions find no support in

settled principles of evidence law.

Gilkerson was permitted to testify that the characteristics

of Ford’s shoes put them in the class of shoes that could have

made the impression on the counter. Before admitting

Gilkerson’s testimony, the District Court conducted a Daubert

hearing. The two fundamental requirements of Daubert are (1)

reliability and (2) relevance. 509 U.S. at 590-91. The second

requirement should be evaluated under the standard expressed

in Rule 401. See, e.g., United States v. Prince-Oyibo, 320 F.3d

494, 504 (4th Cir. 2003) (“What Rule 702 does require ... is that

the district court make initial determinations that the proffered

evidence possesses sufficient evidentiary reliability to be

admissible as scientific, technical, or other specialized

knowledge and that the proffered evidence is relevant in the

sense that it will assist the trier of fact to understand the

evidence or to determine a fact in issue.” (emphasis added));

Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265

(2d Cir. 2002) (“In fulfilling this gatekeeping role, the trial court

should look to the standards of Rule 401 in analyzing whether

proffered expert testimony is relevant....”). The District Court

exercised its gatekeeping function and determined that the

testimony was based on a reliable methodology, and that it

6

would assist the trier of fact in determining the fact at issue.3

Daubert, 509 U.S. at 592-93; Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 149, 152 (1999). The District Court

properly found that the expert shoeprint testimony was based on

valid specialized knowledge and would aid the jury in making

comparisons between the soles of shoes found on or with the

defendant and the imprints of soles found on surfaces at the

crime scene. Id.; see, e.g., United States v. Rose, 731 F.2d 1337,

1345-47 (8th Cir. 1984).

In particular, the District Court evaluated the “reliability

of the methods and reliability of their application to the case at

hand to determine ... whether there is a suitable fit between the

proffered opinion and the facts of the case and, second, whether

the opinion will be of assistance to the jury.” The Court found

that there was general acceptance of shoeprint analysis in both

the federal courts and the forensic community, the theory has

been subject to peer review and publication, the potential error

rate is known, 4 and there are standards and techniques

3

The defendant did not challenge Gilkerson’s qualifications.

4

Courts have admitted shoeprint identification evidence for

a long time. See generally T ERRENCE F. K IELY, F ORENSIC

E VIDENCE: S CIENCE AND THE C RIMINAL L AW 281-314 (2d ed.

2006). However, the rate of error in shoeprint identifications has

not been firmly established. In evaluating the expert testimony,

the District Court stated that “[t]he potential error rate is known

and it appears to be quite low, only dependent upon an error

7

commonly employed in the analysis.5 The Court agreed that

made by an examiner rather than an error underlying [the]

theory.” Ford does not attack the admission of the evidence on

the basis of a lack of a sufficient error rate for the field as a

whole. His objections are to the method employed by the expert

and to the lack of confidence expressed by the expert in his own

conclusions.

5

We note the distinction between the forensic identification

sciences and the type of science typically at issue in Daubert

cases. Expert testimony based on empirical science “does things

like determining what substance something is (e.g., what is that

white powder?) or measuring the quantity of something (e.g.,

how much alcohol is in the murder victim’s blood?).” Michael

J. Saks, Banishing Ipse Dixit: The Impact of Kumho Tire on

Forensic Identification Science, 57 W ASH. & L EE L. R EV. 879,

881 (2000). Forensic identification science has a different

objective. Forensic identification evidence serves to “connect a

crime scene object or mark to the one and only source of that

object or mark.” Id. The reliability of these sciences rests upon

the experience and observational powers of their practitioners.

See, e.g., K IELY, supra note 4, at 293 (“The value of any such

impressions depends on its integrity and the preservation

methods used by police and forensic technicians.”). While a

strict application of the Daubert factors to forensic identification

sciences might be a fruitless exercise, due to the inherently

experiential nature of this type of expertise, the District Court

will be in the best position to make this determination. Kumho

instructs us that “relevant reliability concerns may focus upon

8

Gilkerson followed the recognized techniques.

The District Court found that Gilkerson’s opinion that the

class characteristic comparison showed similarity between

Ford’s shoe and the print was an acceptable opinion for

shoeprint experts to express under Daubert. The Court found

that “although the latent prints were not complete, ... there is

clearly sufficient underlying information to reliably express the

careful opinion ... regarding the similarity of characteristics and

the inability to rule out based upon any difference.”

The Court then turned to the assistance that Gilkerson’s

testimony would provide the jury, and evaluated “whether it

provides in a reliable way some probative piece of evidence that

would be helpful to a lay jury in understanding the case and

personal knowledge or experience,” 526 U.S. at 150, which

counsels against any presumption for or against the admission

of evidence derived from forensic identification science. We

review these determinations under an abuse of discretion

standard, and recognize some of the difficulties inherent in this

type of science. See Craig M. Cooley, Reforming the Forensic

Science Community to Avert the Ultimate Injustice, 15 S TAN. L.

& P OL’Y R EV. 381, 391 (2004); Note, Reliable Evaluation of

Expert Testimony, 116 H ARV. L. R EV. 2142, 2154-60 (2003); see

generally W ILLIAM J. B ODZIAK, F OOTWEAR IMPRESSION

E VIDENCE: D ETECTION, R ECOVERY, AND E XAMINATION (2d ed.

2000). As we explained above, the District Court did not abuse

its discretion.

9

reaching a reliable conclusion.” The Court determined that it

did, stating that “[w]hat he brings to this that a lay jury does not

is his knowledge of ... shoeprint and forensic comparison in

general, [and] second, his ability to make the examination,

including [making] the direct print from the shoes themselves

for purposes of comparison and, third, his ability to overlay the

direct print and the lifted print....”

By engaging in this evaluation, the District Court

followed the gatekeeping process contemplated in Daubert and

Kumho. The District Court assessed both the reliability and

helpfulness or relevance concerns expressed in Daubert. With

respect to reliability, the District Court heard Gilkerson’s

explanation of his methodology and found that it sufficiently

conformed to the Daubert factors. The Court’s relevance

determination was also proper. As the Supreme Court explained,

“Rule 702 further requires that the evidence or testimony ‘assist

the trier of fact to understand the evidence or to determine a fact

in issue.’ This condition goes primarily to relevance.” Daubert,

509 U.S. at 591. Gilkerson’s testimony, although cautious and

tempered, went directly to a key factual question in the case:

Whether the print on the counter was made by the shoes worn by

Ford on the day he was apprehended. This Court has previously

expressed the view that “the standard for this [relevancy] factor

‘is not that high.’” Lauria v. Nat’l R.R. Passenger Corp., 145

F.3d 593, 600 (3d Cir. 1998) (quoting In re Paoli R.R. Yard

10

PCB Litigation, 35 F.3d 717, 745 (3d Cir. 1994)).6 Gilkerson’s

6

The discussion of “fit” in Paoli indicated that the standard

for analyzing the fit of an expert’s analysis to the case at hand is

“not that high,” but is “higher than bare relevance.” Id. at 745.

That statement remains sound law inasmuch as it requires that

experts who purport to apply their principles and methods to the

facts of the case do so in a reliable manner. The Paoli Court’s

discussion of fit requires that expert opinions that apply

principles or methods to the facts of the case and produce

conclusions that have a debatable connection to the question in

issue be predicated on a reliable methodology. Id. This is the

critical import of Paoli’s discussion of fit within the context of

reliability. Outside of this relatively narrow setting, “fit” is a

relevance concern.

Following Paoli, this Court reiterated the helpfulness

discussion in Daubert, and noted the Supreme Court’s

explanation that “[f]it is not always obvious, and scientific

validity for one purpose is not necessarily validity for other

unrelated purposes.” In re TMI Litigation, 193 F.3d 613, 670 (3d

Cir. 1999) (quoting Daubert, 509 U.S. at 591). We emphasized

again that “[t]his requirement [of ‘fit’] is one of relevance and

expert evidence which does not relate to an issue in the case is

not helpful.” Id.

In its reconsideration of Daubert on remand, the Ninth

Circuit explained that

[t]he Supreme Court recognized that the “fit”

requirement “goes primarily to relevance,” but it

obviously did not intend the second prong of Rule

702 to be merely a reiteration of the general

11

testimony that Ford’s shoes could not be ruled out as the source

of the prints satisfies the basic relevancy standard in Federal

Rule of Evidence 401, as it makes a fact of consequence more

probable or less probable than it would be without the evidence.

See United States v. Allen, 390 F.3d 944, 949 (7th Cir. 2004)

relevancy requirement of Rule 402. In elucidating

the “fit” requirement, the Supreme Court noted

that scientific expert testimony carries special

dangers to the fact-finding process because it

“‘can be both powerful and quite misleading

because of the difficulty in evaluating it.’”

Federal judges must therefore exclude proffered

scientific evidence under Rules 702 and 403

unless they are convinced that it speaks clearly

and directly to an issue in dispute in the case, and

that it will not mislead the jury.

Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1321 n.17

(9th Cir. 1995) (citations omitted) (emphasis added). Although

we do not adopt the apparent presumption of exclusion

enunciated by the Ninth Circuit, we agree with the spirit of our

sister court’s exhortation. In particular, district courts should

tread carefully when evaluating proffered expert testimony,

paying special attention to the relevance prong of Daubert.

The question of fit here is not debatable, as it was in

Paoli. See Paoli, 35 F.3d at 779-81 (evaluating the fit between

expert testimony on animal studies and the question of human

exposure). Thus, we examine the question of whether

Gilkerson’s conclusions fit the factual question in issue in the

context of our relevance considerations.

12

(finding no abuse of discretion in allowing testimony that a print

could have been made by the defendant’s shoes, and noting that

“an expert need not have an opinion on the ultimate question to

be resolved to satisfy the relevance requirement” (quotation

marks omitted)). Whether the shoes that Ford was wearing

shortly after the June 12 robbery could have made the

impressions found on the bank counter after the June 11 robbery

was probative of Ford’s participation in the robberies, and

expert testimony that aids the jury to make such comparisons is

admissible. See United States v. Ferri, 778 F.2d 985, 988 (3d

Cir. 1985) (admitting testimony of an expert who compared

impressions inside the shoes found at site of attempted arson

with those inside the shoes seized from defendants’ residences,

and with their inked footprints); United States v. Ross, 263 F.3d

844, 846 (8th Cir. 2001); Rose, 731 F.2d at 1346-47.

Ford relies on United States v. Ferreira, 821 F.2d 1 (1st

Cir. 1987), for the proposition that when an expert is unable to

render an opinion more precise than that the shoe impressions

from the bank counter and those made by the shoes the

defendant was wearing were “similar,” the opinion should be

excluded. We do not find Ferreira persuasive. In that case, the

shoeprint expert “testified that it was ‘possible’ but ‘not

probable’ that Ferreira’s Nike sneakers left [the] impression,”

and the District Court excluded his testimony as lacking in

probative value. Ferreira, 821 F.2d at 5. The First Circuit

concluded only that the District Court’s decision regarding

probative value was not clearly erroneous; it did not hold, as

13

Ford invites us to, that any opinion that is even the slightest bit

lukewarm fails to meet the requirements for admissibility. An

expert opinion that expresses a possibility that a crime scene

impression may have been made by shoes worn by the

defendant, and otherwise comports with the Daubert analysis,

is clearly relevant to the question of whether the defendant was

present at the scene of the crime.7

7

Indeed, due to the inherently closed factual universe created

by the Federal Rules of Evidence and the partisan decisions of

litigants in selecting experts, it is desirable to have expert

witnesses express their degree of confidence accurately. See

Samuel R. Gross and Jennifer L. Mnookin, Expert Information

and Expert Evidence: A Preliminary Taxonomy, 34 S ETON H ALL

L. R EV. 141, 143-44 (2003) (“[T]he degree of certainty

expressed by the witness should reflect both knowledge and its

limits, both what is known and what is not.”); id. at 170-71

(“Normally, a witness’s level of confidence is grist for the

adversarial mill....”); id. at 186. By confining the jury’s

considerations to the facts and opinions presented to them at

trial, the rules circumscribe the amount of available information.

Consequently, especially where expert testimony is concerned,

the Rules may create an artificially polarized world, leaving the

jury to evaluate the often contradictory testimony of dueling

experts. Because the parties are apt to select experts based on

their ability to provide highly favorable testimony, it is

preferable that, where there is cause for doubt as to a particular

opinion, the experts make clear any uncertainty.

14

III.

Ford also contests the District Court’s application of the

Career Offender provision of the Sentencing Guidelines to him.

U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.1 (2004). He

asserts that the District Court erroneously treated his prior

conviction for escape as a crime of violence. Ford recognizes

that established Third Circuit case law in United States v.

Luster, 305 F.3d 199 (3d Cir. 2002), weighs against his

argument, 8 and argues that Luster should no longer be

controlling in light of United States v. Booker, 543 U.S. 220

(2005). Ford correctly acknowledges that Booker does not

directly address whether jury fact finding is necessary on the

question of whether a particular offense is a crime of violence.

Indeed, Booker expressly excludes the fact of prior conviction

from the purview of jury fact finding. Id. at 246 (“Any fact

(other than a prior conviction) which is necessary to support a

8

In fact, the case law of almost all of our sister courts of

appeals also stands in opposition to Ford’s argument. See, e.g.,

United States v. Adewani, 467 F.3d 1340, 1342 (D.C. Cir. 2006)

(“[T]he First Circuit joined us in concluding that escape is a

crime of violence, bringing the total number of circuits so

holding to eleven.”); but see United States v. Piccolo, 441 F.3d

1084, 1088-89 (9th Cir. 2006) (holding that “a walkaway escape

is not a crime of violence,” but noting that “an escapee who

flees a secured facility or the custody of an armed guard presents

a serious risk of injury to himself and others...”).

15

sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable

doubt.”).

One of the facts that brought Ford within the scope of the

Career Offender provision was that he was convicted of the

crime of escape. We have already confirmed that every escape

is a crime of violence for purposes of § 4B1.1 because of its

serious potential to erupt into violence. Luster, 305 F.3d at 202.9

Consequently, no jury fact finding was required.

9

Ford also argues that a categorical approach to whether a

crime is properly considered to be a crime of violence is

inappropriate. We reject this argument. In support of his

contention that individualized fact finding is proper, Ford cites

to United States v. Kenney, 310 F.3d 135 (3d Cir. 2002), where

we looked beyond the mere fact of conviction for possession of

contraband by an inmate to determine the nature of the

contraband. However, Kenney did not involve a conviction for

escape, and in Kenney, we reaffirmed our commitment in Luster

to the categorical approach to escape as a crime of violence. Id.

at 137 (“[C]learly we should review this matter categorically as

the Sentencing Commission was concerned with the ‘nature’ of

the offense.” (emphasis added)). We continue to apply this

approach to the classification of escape for purposes of the

career offender provision.

16

IV.

In conclusion, the District Court did not abuse its

discretion by admitting the expert testimony regarding the

shoeprint evidence. Nor did the Court err in applying the Career

Offender provision of § 4B1.1 to Ford on the basis of his prior

conviction for escape. We will affirm the judgment of the

District Court.

17