United States v. Varian Scott

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

NOV 16, 2010

No. 09-16457 JOHN LEY

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 08-00495-CR-2-CAP-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VARIAN SCOTT,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(November 16, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:

Varian Scott appeals his convictions and sentences for conspiracy to commit

health care fraud and 20 counts of health care fraud. On appeal, Scott argues that

the district court violated his Sixth Amendment right to confrontation when it

allowed the government to introduce a CD of Medicaid claims data without

affording him an opportunity to cross-examine the employee who prepared the CD.

He also asserts that he was deprived of a fair trial because the district court

admitted unreliable expert testimony concerning fingerprint examination. Finally,

he contends that his sentences are substantively unreasonable because the district

court did not give sufficient weight to the need to avoid unwarranted disparities

between his sentences and the sentences given to his co-conspirators. For the

reasons set forth below, we affirm Scott’s convictions and sentences.

I.

Scott was charged in a superseding indictment with 1 count of conspiracy to

commit health care fraud, in violation of 18 U.S.C. § 1349, and 20 counts of health

care fraud, in violation of 18 U.S.C. §§ 1347 and 2. Prior to trial, Scott filed a

motion in limine to exclude the testimony of a government fingerprint expert,

Jessica LeCroy. He argued that fingerprint examination is too unreliable to be

admissible under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court

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took Scott’s motion under advisement.

The government’s chief witness at trial was a cooperating codefendant,

Hezron Collie. Collie explained that he and Scott entered into a plan to forge

prescriptions for HIV and cancer medications, fill those prescriptions using

Medicaid numbers belonging to others, and sell the medications to another source

for a profit. Collie’s testimony was corroborated by Wendell Shoemaker, a

pharmacist, and Theresa Bradley, a pharmacy technician, both of whom admitted

filling prescriptions for Scott and Collie in exchange for money.

Scott’s defense was that Collie was responsible for the fraudulent

prescriptions, and that he himself had no involvement in the conspiracy. In his

opening statement, Scott explained, “The issue in this case is really not about

whether false prescriptions were submitted to Medicaid and filled. They were.

The issue in this case is whether Mr. Scott knew and whether he knowingly and

willfully participated.” Similarly, during closing arguments, Scott stated, “This

case is not about whether there was health care fraud . . . This case is solely about

whether Mr. Scott knowingly and willfully conspired with Mr. Shoemaker, Ms.

Bradley, and Mr. Collie, and whether he knowingly and willfully committed health

care fraud.”

The Confrontation Clause issue relates to a CD of Medicaid claims data that

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the government introduced into evidence on the first day of trial. Michael Johnson,

a former supervisor with the Georgia Department of Audits and Accounts,

explained that the CD contained approximately 17,000 out of the 1 million claims

processed annually in the state of Georgia. The CD was based on records kept by

the Department of Audits in the regular course of its business. Although Johnson

reviewed the data on the CD for accuracy, he did not create the CD himself.

Scott objected to the introduction of the CD into evidence. He argued that,

under the Confrontation Clause of the Sixth Amendment, he had the right to

cross-examine the employee who actually prepared the CD. The government

conceded that the CD was prepared in anticipation of litigation, but it asserted that

the CD was nonetheless admissible because it was based on regularly kept business

records. The court overruled Scott’s objection and admitted the CD into evidence.

During Scott’s trial, the district court held a Daubert hearing concerning the

government’s expert fingerprint evidence. The fingerprint examiner, LeCroy,

explained that she analyzed fingerprints using the ACE-V method, which consists

of four steps: analysis, comparison, evaluation, and verification. Under the analysis

step, the examiner determines if a partial, or latent, print has sufficient unique

features, known as “minutia,” to be compared to another fingerprint. At the

comparison step, the examiner compares the latent fingerprints to a known set of

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fingerprints. Under the evaluation step, the examiner reaches one of three

conclusions: (1) identification or individualization, meaning that both the latent

prints and the inked prints were made by the same individual; (2) exclusion,

meaning that the known individual did not make the latent prints; or (3) an

inconclusive result. After the examiner makes an evaluation, her work is reviewed

by a second examiner in the verification step. If both examiners come to the same

conclusion, the results are officially reported. During her five years as a

fingerprint examiner, LeCroy had made 1 technical error and 20 to 30

administrative errors.

On cross-examination, LeCroy acknowledged that there were no studies

showing that latent fingerprints are unique. In certain cases, fingerprint evidence

has produced incorrect identifications. Although fingerprint examiners describe

their conclusions in absolute terms, there are no scientific studies as to how

complete a latent print needs to be in order to be unique. Unlike DNA evidence,

there is no known percentage error rate for fingerprint examination. Fingerprint

examination is based on published methodologies, but it is subjective in that the

comparison is being made by a human. No two prints are exactly identical. The

examiner must determine whether any differences between the prints are caused by

factors such as pressure or distortion or whether the two prints are actually unique.

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Although the ACE-V method has been in use for 15 to 20 years, it is not based on

scientific or statistical studies.

The district court ruled that LeCroy’s testimony was admissible under

Daubert. The court concluded that fingerprint examination was reliable because it

was based on “eighty years of statistical study and analysis.” The court also noted

that LeCroy had followed the standard protocol adopted by the laboratory, which

had been tested. The court observed that Scott would be able to raise his

arguments concerning the accuracy of the fingerprint examination by cross-

examining LeCroy in the presence of the jury.

In her trial testimony, LeCroy explained the ACE-V process to the jury. She

stated that she detected a number of latent prints on prescription pads seized by the

government, and had matched five of those latent prints to Scott’s known

fingerprints. Scott cross-examined LeCroy concerning the possible flaws and

drawbacks of fingerprint examination.

The jury found Scott guilty with respect to all 21 counts of the superseding

indictment. At the sentencing hearing, the district court determined that Scott had

an advisory guideline range of 135-168 months’ imprisonment. Scott urged the

district court to consider the need to avoid unwarranted sentencing disparities. He

observed that Collie, who had not yet been sentenced, was likely to get a relatively

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low sentence even though he had prior fraud convictions. He also noted that

Shoemaker would receive a sentence of no more than five years, and that Bradley

had not been charged at all. Scott asserted that a sentence of five years would be

sufficient to serve the purposes of sentencing. The government responded that

Scott should receive a sentence at the high end of the guideline range, 168 months,

based on the nature of his offense, his criminal history, and the need for deterrence.

The district court noted that Medicare and Medicaid fraud is a growing

problem. The court recognized that there might be a disparity between Scott’s

sentence and the sentences given to others, but it observed that “two wrongs do not

make a right.” The court explained that it would “set a sentence in accordance

with the particular individual’s participation.” The court sentenced Scott to a term

of 120 months as to Count 1, and concurrent terms of 24 months’ imprisonment as

to each of Counts 2 through 21, to be served consecutively to the sentence for

Count One, for a total term of 144 months’ imprisonment. The court stated that it

had considered all of the 18 U.S.C. § 3553(a) factors, and had focused in particular

on the need for incapacitation, Scott’s prior criminal record, the kinds of sentences

available, and the need for a sentence that reflected the seriousness of the offense.

The district court later sentenced codefendant Collie to a total term of 18 months’

imprisonment.

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II.

Whether evidence is testimonial for purposes of the Confrontation Clause is

a question of law that we review de novo. United States v. Caraballo, 595 F.3d

1214, 1226 (11th Cir. 2010). Violations of the Confrontation Clause are subject to

harmless-error analysis. Id. at 1229 n.1. A Confrontation Clause violation is

harmless if it is “clear beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained.” Id. (quotation omitted).

The Confrontation Clause prohibits the admission of testimonial hearsay

statements in a criminal case unless the declarant is unavailable and the defendant

had a prior opportunity to cross-examine the declarant. Crawford v. Washington,

541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). In Crawford,

the Supreme Court declined to provide a comprehensive definition of what

statements are testimonial, see id. at 68, 124 S.Ct. at 1374, but it did list business

records as an example of statements that, “by their nature,” are not testimonial, see

id. at 56, 124 S.Ct. at 1367.

Recently, the Supreme Court has clarified that forensic and laboratory

reports prepared for use during litigation are testimonial in nature. Melendez-Diaz

v. Massachusetts, 557 U.S. ___, ___, 129 S.Ct. 2527, 2531-32, 174 L.Ed.2d 314

(2009). In Melendez-Diaz, the defendant objected to the admission of three

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“certificates of analysis” showing that seized substances contained cocaine. Id. at

___, 129 S.Ct. at 2530-31. The Supreme Court concluded that the certificates were

testimonial statements because they were made under oath for the purpose of

establishing some fact and “under circumstances which would lead an objective

witness reasonably to believe that [they] would be available for use at a later trial.”

Id. at ___, 129 S.Ct. at 2531-32 (quotation omitted).

Here, we need not decide whether a summary or excerpt of business records

prepared for use in litigation constitutes a testimonial statement for the purposes of

the Confrontation Clause because we agree with the government that any error in

admitting the CD was harmless. The CD merely established that Georgia Medicaid

was billed for certain prescriptions. At trial, Scott did not dispute the fact that

Medicaid fraud occurred. Rather, his defense was that Collie and others carried

out the conspiracy by themselves, and that he had no knowledge of or personal

involvement in the scheme. Because the CD merely corroborated a fact that Scott

conceded, and did not shed any light on the key factual dispute at trial—whether

Scott was personally involved in the conspiracy—the admission of the CD could

not have had an impact on the jury’s verdict. Thus, any Confrontation Clause error

in this case was harmless. See Caraballo, 595 F.3d at 1229 n.1.

III.

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We review a district court’s decision to admit expert testimony for an abuse

of discretion. United States v. Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005).

Under the abuse of discretion standard, the district court is allowed a range of

choice, and we will affirm unless the district court applied the wrong law, followed

the wrong procedure, relied on clearly erroneous facts, or committed a clear error

in judgment. Id. at 1265-66. Because the issue of whether to admit expert

testimony requires a case-specific and fact-intensive inquiry, we give particular

deference to the district court’s decision to admit or exclude such testimony. Id.

Under the Federal Rules of Evidence, expert testimony is admissible if:

(1) the expert is qualified to testify regarding the subject matter of his testimony;

(2) the methodology that the expert used to reach his or her conclusions is

sufficiently reliable; and (3) the expert’s testimony will assist the trier of fact in

understanding the evidence or in determining a fact at issue. United States v.

Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc); Fed.R.Evid. 702. Before

permitting expert testimony, the district court must make a preliminary

determination as to whether the expert’s methodology is reliable. Brown, 415 F.3d

at 1266. The Supreme Court has provided a non-exclusive list of factors for the

district court to consider:

(1) whether the expert's theory can be and has been tested; (2) whether

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

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known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community.

Frazier, 387 F.3d at 1262. These factors are only general guidelines, and the trial

judge has “considerable leeway in deciding in a particular case how to go about

determining whether particular expert testimony is reliable.” Kumho Tire Co., Ltd.

v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999).

We previously have upheld the admission of expert fingerprint evidence

under Daubert. United States v. Abreu, 406 F.3d 1304, 1307 (11th Cir. 2005). In

Abreu, we observed that the government had presented information about the error

rate of fingerprint examination, and had shown that examiners follow a uniform

methodology. Id. In addition, we explained that the district court did not clearly

err by giving significant weight to the general acceptance of fingerprint evidence.

Id. Other Circuits have upheld the admission of expert testimony concerning

fingerprint examination as well. See, e.g., United States v. Pena, 586 F.3d 105,

110-11 (1st Cir. 2009) (the district court did not abuse its discretion by permitting

expert testimony that was based on the ACE-V method); United States v. Mitchell,

365 F.3d 215, 221-22, 246 (3d Cir. 2004) (same); United States v. Baines, 573 F.3d

979, 983, 989-92 (10th Cir. 2009) (same); United States v. Crisp, 324 F.3d 261,

266-70 (4th Cir. 2003) (upholding admission of fingerprint evidence under

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Daubert, and noting that “[f]ingerprint identification has been admissible as

reliable evidence in criminal trials in this country since at least 1911.”); United

States v. Havvard, 260 F.3d 597, 600-02 (7th Cir. 2001) (testimony concerning

latent fingerprint examination was properly admitted under Daubert).

In this case, the district court did not abuse its discretion by admitting expert

testimony concerning fingerprint examination. At the Daubert hearing, the

government established that fingerprint testing follows a formal, established

methodology. Although there is no scientifically determined error rate, the

examiner’s conclusions must be verified by a second examiner, which reduces,

even if it does not eliminate, the potential for incorrect matches. The ACE-V

method has been in use for over 20 years, and is generally accepted within the

community of fingerprint experts. Based on this information, the district court did

not commit an abuse of discretion by concluding that fingerprint examination is a

reliable technique.

More generally, federal courts routinely have upheld the admissibility of

fingerprint evidence under Daubert. See Abreu, 406 F.3d at 1307; Pena, 586 F.3d

at 110-11; Mitchell, 365 F.3d at 246; Baines, 573 F.3d at 989-92; Crisp, 324 F.3d

at 266-70; Havvard, 260 F.3d at 600-02. The district court did not commit a clear

error in judgment by reaching the same conclusion in this case. Finally, we note

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that Scott was able to cross-examine the government’s expert at trial concerning

the possible flaws in her methodology. The district court’s decision to admit the

fingerprint expert’s testimony, subject to a searching cross-examination, did not

fall outside the permissible “range of choice” in this case. See Brown, 415 F.3d at

1265. Accordingly, we find no abuse of discretion in the admission of the expert

testimony concerning fingerprint examination.

IV.

We review a sentence imposed by a district court for reasonableness, using

an abuse-of-discretion standard. United States v. Livesay, 587 F.3d 1274, 1278

(11th Cir. 2009). We follow a two-step process in reviewing a sentence. First, we

must ensure that the district court did not commit a significant procedural error.

Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L.Ed.2d 445

(2007). If the district court’s sentencing decision is procedurally sound, we must

then determine whether the sentence is substantively reasonable in light of the 18

U.S.C. § 3553(a) factors. Id. at 51, 128 S.Ct. at 597.

The party challenging the sentence has the burden of showing that it is

unreasonable in light of the record and the § 3553(a) factors. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[W]e recognize that there is a range

of reasonable sentences from which the district court may choose,” and ordinarily

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expect a sentence within the defendant’s advisory guideline range to be reasonable.

Id. We “will defer to the district court’s judgment regarding the weight given to

the § 3553(a) factors unless the district court has made a clear error of judgment.”

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (quotation

omitted), cert. denied, 129 S.Ct. 2848 (2009).

In this case, the district court did not abuse its discretion by sentencing Scott

to a total term of 144 months’ imprisonment. Scott played a leading role in a

fraud scheme that resulted in a loss of over $1 million to Georgia Medicaid. Thus,

a longer term of imprisonment was needed to reflect the serious nature of his

offenses. See 18 U.S.C. § 3553(a)(1). In addition, Scott previously was

incarcerated for his involvement in a similar scheme to defraud Florida Medicaid.

Therefore, a longer sentence was justified based upon Scott’s personal history and

characteristics, the need to promote respect for the law, and the need to protect the

public from further crimes committed by Scott. See 18 U.S.C. § 3553(a)(1),

(a)(2)(A), (a)(2)(C). Scott’s sentences also have the effect of deterring others from

committing health care fraud offenses. See 18 U.S.C. § 3553(a)(2)(B). Also,

Scott’s total term of imprisonment is within the advisory guideline range, which

we ordinarily expect to be reasonable. See Talley, 431 F.3d at 788.

Although Scott asserts that the district court should have given more weight

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to the need to avoid unwarranted sentencing disparities, see 18 U.S.C.

§ 3553(a)(6), he has not demonstrated that he was similarly situated to the

co-conspirators who received shorter sentences. Collie, Shoemaker, and Bradley

eventually admitted to their participation in the conspiracy and cooperated with the

government. We have explained that a sentencing disparity is not unwarranted if it

reflects the fact that one of the defendants pled guilty and cooperated with the

government. United States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008).

Also, Scott played a greater role in the conspiracy than Collie, Shoemaker, or

Bradley, as he planned, organized, and funded the conspiracy. Finally, Scott did

not show that Collie, Shoemaker, or Bradley had criminal histories that were

similar to his own. Because Scott did not establish that he was similarly situated to

his co-conspirators, the district court did not have to give significant weight to the

need to avoid unwarranted sentencing disparities. When all of the § 3553(a)

factors are taken into consideration, Scott’s total sentence of 144 months’

imprisonment is substantively reasonable.

Accordingly, we affirm Scott’s convictions and sentences.

AFFIRMED.

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