United States v. Byran Protho

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-2092

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRYAN PROTHO,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17-cr-827 — Andrea R. Wood, Judge.

____________________

ARGUED FEBRUARY 24, 2022 — DECIDED JULY 20, 2022

____________________

Before ROVNER, KIRSCH, and JACKSON-AKIWUMI, Circuit

Judges.

KIRSCH, Circuit Judge. Bryan Protho grabbed a child off the

sidewalk and assaulted her in his vehicle. A jury found Protho

guilty of kidnapping, and Protho has raised many issues on

appeal. Finding no error, we affirm.

2 No. 21-2092

I

Days before winter break at her Calumet City, Illinois

school, a ten-year-old girl named Amani walked home after

class. She started her usual six- or seven-block route with two

friends. When those friends turned in a different direction,

Amani still had a few blocks left to go. At that point, she no-

ticed a red truck exit a parking lot, pass her, and pull into a

driveway. A man got out, walked toward the road, and pre-

tended to use a cellphone. When Amani got close enough, the

man grabbed her, pushed her into the vehicle’s passenger

side, and drove off. In the vehicle, Amani kicked, screamed,

and prayed. The man hit her eye and lip and threatened to kill

her.

After driving a few blocks, the man parked in an alley and

ordered Amani to pull her leggings down. She refused. The

man pulled them down himself and touched her inside of her

underwear. Amani got out and ran down the alley. She

knocked on three unanswered doors and then flagged down

a passing car with her coat. In tears, Amani explained to the

driver that she had been sexually assaulted, and the driver

called 911.

A week after the incident, police arrested Bryan Protho. A

grand jury later indicted him for kidnapping in violation of

the Federal Kidnapping Act (18 U.S.C. § 1201(a)(1) and (g)(1)).

For this charge, the court held a nine-day jury trial. Twenty-

nine witnesses, including Amani and Protho, testified. The

trial focused on the kidnapper’s identity, not on whether the

kidnapping took place (that was uncontested). The jury found

Protho guilty, and the district court sentenced him to 38 years’

imprisonment and ordered him to pay restitution that in-

cluded $87,770 for Amani’s psychotherapy needs.

No. 21-2092 3

Protho has appealed. Below, we discuss the many issues

he has raised, filling in the relevant facts as we go.

II

Protho contends that six trial errors entitle him to acquittal

or a new trial. We address and reject each in turn.

A

First, Protho moved to exclude testimony from three ex-

pert witnesses. In performing its gatekeeping function under

Federal Rule of Evidence 702 and Daubert v. Merrell Dow

Pharm., 509 U.S. 579 (1993), the district court found each ex-

pert qualified and their testimony relevant and reliable. Fed.

R. Evid. 702(b)–(c) (an expert’s testimony must rest on “suffi-

cient facts or data” and “reliable principles and methods”). It

thus denied Protho’s pre- and post-trial motions challenging

the admissibility of the experts’ testimony. On appeal, Protho

has renewed his challenges to the admission of these experts’

testimony. We review the district court’s decision to admit or

exclude an expert’s testimony for abuse of discretion and find

none. United States v. Godinez, 7 F.4th 628, 637 (7th Cir. 2021);

see Kumho Tire Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

1

We start with the first challenged expert: Ashley Baloga,

an FBI forensic scientist specializing in the examination of fi-

ber evidence. As Baloga explained, fiber examination aims to

determine whether different fibers are consistent with one an-

other by exhibiting the same microscopic characteristics and

optical properties. First, to identify a particular fiber, a foren-

sic scientist uses a high-magnification, transmitted-light mi-

croscope to look at the fiber’s color, shape, lumen, scales, di-

ameter, delustrant particles, and voids. Then, to compare two

4 No. 21-2092

fibers to determine consistency with one another, a forensic

scientist uses five methods in sequential order, stopping if she

finds two fibers inconsistent: (1) view two samples side-by-

side in the same visual field with high-powered microscopes;

(2) use controlled light settings to observe the orientation of

polymers on a fiber’s axis; (3) illuminate light wavelengths to

observe color and intensity of fluorescence; (4) compare the

intensity of a fiber’s light absorption at different wavelengths

against a known spectra; and (5) analyze the fiber’s chemical

composition through infrared light. Using this methodology,

Baloga compared fibers recovered from Protho’s vehicle and

residence with fibers obtained from the clothing Amani wore

on the day of the kidnapping and testified that the fibers were

consistent, though she acknowledged that her results could

not definitively identify fibers as coming from the same

source. Indeed, Baloga disclosed that fiber analysis can

“never” associate “a single item to the exclusion of all others”

and that consistency alone “is not a means of positive identi-

fication.”

Protho argues that the government did not offer enough

evidence that Baloga’s methods had been or could be tested,

were subjected to peer review and publication, had a known

error rate, or were generally accepted by the scientific com-

munity. Although the government—not Protho—had the

burden to support Baloga’s testimony, Protho did not do

much to help his case. He did not meaningfully question

Baloga’s methods beyond listing the Daubert factors and did

not cite any contradictory scientific information. Probably for

good reason: The National Academy of Sciences, which “was

created by Congress … for the explicit purpose of furnishing”

scientific advice to the government, Pub. Citizen v. U.S. Dep't

of Just., 491 U.S. 440, 460 n.11 (1989) (citation omitted), has

No. 21-2092 5

concluded that fiber analysis can produce “class” evidence,

meaning that it can show whether two fibers may have “come

from the same type of garment, carpet, or furniture,” Nat’l Re-

search Council, Strengthening Forensic Science in the United

States: A Path Forward 163 (2009); see United States v. Herrera,

704 F.3d 480, 484–87 (7th Cir. 2013) (relying on the same Na-

tional Academy of Sciences report to hold that “responsible

fingerprint matching is admissible evidence”). According to

the report, “there are standardized procedures” for fiber anal-

ysis, these “analyses are reproducible across laboratories,”

and fiber analysts routinely take proficiency tests on the sub-

ject. Strengthening Forensic Science, at 163.

In finding Baloga’s opinion admissible here, the district

court relied upon Baloga’s background, experience, expert re-

port, testimony, and upon the regular admission of fiber-ana-

lyst testimony in courts across the country. Specifically, the

district court found that the conclusions reached by fiber anal-

ysis were falsifiable; another expert could undertake the same

series of steps to reach her own conclusions about the con-

sistency of two fibers. The court also found that fiber analysis

was generally accepted in the relevant scientific community

because fiber experts were regularly qualified as expert wit-

nesses in federal court and that their methods were com-

monly employed. And it found that the scope of Baloga’s tes-

timony was appropriately confined because she candidly

acknowledged the limitations of her analysis, which could

show only whether fibers were consistent with each other and

thus could have come from the same source.

In undertaking their gatekeeping role, district judges must

assess whether the reasoning or methodology underlying an

expert’s testimony meets “the same level of intellectual rigor

6 No. 21-2092

that characterizes the practice of an expert in the relevant

field.” Kumho Tire, 526 U.S. at 141, 149–52 (citation omitted

and cleaned up). This calls for a “flexible” approach “tied to

the facts of a particular case.” Id. Indeed, “Daubert makes clear

that the factors it mentions do not constitute a definitive

checklist or test.” Id. at 150 (citation omitted and cleaned up).

Given this flexibility, district courts have “broad latitude” in

deciding both “how to determine reliability” and in “the ulti-

mate reliability determination.” Id. at 142 (emphasis omitted).

Once a district judge properly finds an expert’s testimony rel-

evant and reliable, any challenge to it goes to its “weight, …

not its admissibility.” Lees v. Carthage Coll., 714 F.3d 516, 525

(7th Cir. 2013); see Deputy v. Lehman Bros., 345 F.3d 494, 506

(7th Cir. 2003) (“[W]hether an expert’s theory is correct is a

factual question for the jury to determine.”).

Here, we have been given no reason to second-guess the

district court’s conclusion that Baloga’s methods met the

same level of rigor as others in her field. Based on our own

review of Baloga’s testimony and expert report, it’s clear that

her testimony stayed within reliable scientific bounds. See

Lapsley v. Xtek, Inc., 689 F.3d 802, 814 (7th Cir. 2012) (affirming

admission of expert testimony based on the expert’s own “re-

port, calculations, and deposition testimony”). Indeed, we

think Baloga reached her opinion with the “soundness and

care” expected of experts. Schultz v. Akzo Nobel Paints, LLC,

721 F.3d 426, 431 (7th Cir. 2013). And although the validity of

fiber analysis can—like other scientific evidence—still be

questioned in future cases, we do not doubt the district

judge’s conclusion here that the relevant scientific community

has generally accepted this type of fiber analysis. Nor do we

doubt that the results reached by this kind of analysis are “fal-

sifiable,” i.e., that the same samples could be re-examined,

No. 21-2092 7

and the original results shown to be accurate or not. See, e.g.,

State v. Fukusaku, 946 P.2d 32, 43–44 (Haw. 1997) (“The princi-

ples and procedures underlying … fiber evidence are over-

whelmingly accepted as reliable.”) (listing cases and second-

ary sources); Strengthening Forensic Science, at 161–63.

2

Protho next challenges the testimony of Anthony Imel, an

FBI photographic technologist who analyzed surveillance

videos that were admitted at trial. Imel testified on the image

enhancements he made to the surveillance videos and on the

subjects captured in those videos. The court also allowed Imel

to testify about visual characteristics of the kidnapper’s vehi-

cle, Protho’s vehicle, the kidnapper, and Protho.

Protho argues that the testimony did not rest on any relia-

ble or generally accepted scientific standards and did not em-

ploy peer-reviewed methods. But Imel had extensive experi-

ence and specialized expertise in reviewing visual evidence

(which Protho has not challenged), and “no one denies that

an expert might draw a conclusion from a set of observations

based on extensive and specialized experience.” Kumho Tire,

526 U.S. at 156; see Fed. R. Evid. 702 advisory committee’s

note to 2000 amendments (“In certain fields, experience is the

predominant, if not sole, basis for a great deal of reliable ex-

pert testimony.”); United States v. Parkhurst, 865 F.3d 509, 516–

17 (7th Cir. 2017) (holding scientific methodologies and peer

review unnecessary for expert’s experience-based testimony

on online strategies used by child predators); Metavante Corp.

v. Emigrant Sav. Bank, 619 F.3d 748, 761–62 (7th Cir. 2010) (“An

expert’s testimony is not unreliable simply because it is

founded on his experience rather than on data[.]”).

8 No. 21-2092

Protho also argues that Imel usurped the jury’s role. But

Imel testified about demonstrative videos he created as peda-

gogical summaries to aid the jury in its understanding of ad-

mitted evidence. See United States v. White, 737 F.3d 1121, 1135

(7th Cir. 2013). And for demonstrative exhibits allowed by a

district judge under Federal Rule of Evidence 611(a), the tes-

tifying witness may generally offer conclusions, opinions, and

“reveal inferences drawn in a way that would assist the jury.”

Id. (citation omitted). Imel’s testimony thus only aided—not

usurped—the jury’s factfinding task.

3

Last, Protho challenges the admission of testimony from

Matthew Fyie, a manager of the Design Analysis Engineering

Department at Ford. Fyie testified about the make, model, and

year of the kidnapper’s vehicle identified in the surveillance

videos. On appeal, Protho argues that the district court

abused its discretion by allowing Fyie to testify because he

lacked expertise on Ford products.

Yet we fail to see how that could be. Fyie has a master’s

degree in mechanical engineering from the University of

Michigan and has worked for Ford for nearly 30 years. Fyie’s

position, engineering education, and nearly three decades at

Ford make him abundantly qualified to opine on the appear-

ance and identity of Ford’s products. And nothing suggests

any unreliability in Fyie’s straightforward, experience-based

testimony identifying a specific Ford vehicle. See Kumho Tire,

526 U.S. at 156; Fed. R. Evid. 702 advisory committee’s note to

2000 amendments; Parkhurst, 865 F.3d at 516–17; Metavante

Corp., 619 F.3d at 761–62.

No. 21-2092 9

B

We next review Protho’s contention that the government

struck two prospective Black jurors based on their race in vi-

olation of Batson v. Kentucky, 476 U.S. 79 (1986). Prosecutors

“may not discriminate on the basis of race when exercising

peremptory challenges against prospective jurors in a crimi-

nal trial.” Flowers v. Mississippi, 139 S. Ct. 2228, 2234 (2019); see

United States v. Hughes, 970 F.2d 227, 230 (7th Cir. 1992) (not-

ing that Batson “extends to the federal government through

the Due Process Clause of the Fifth Amendment”). To deter-

mine whether such discrimination has occurred, courts use

the familiar, three-step Batson framework. First, the defendant

can establish a rebuttable presumption of purposeful racial

discrimination by showing that: (1) he is a member of a cog-

nizable racial group; (2) the prosecution exercised peremp-

tory challenges to remove potential jurors of the defendant’s

race; and (3) other facts support an inference that the prose-

cutor used its peremptory strikes to exclude potential jurors

on account of their race. Batson, 476 U.S. at 96. Second, if a

defendant makes that showing, the government has the bur-

den to come forward with a neutral, reasonably specific ex-

planation for striking the juror. Id. at 97–98 & n.20. Third, once

the government satisfies its step two burden, the trial court

then has the duty to determine whether the government was

“motivated in substantial part by discriminatory intent.”

Flowers, 139 S. Ct. at 2244 (citation omitted); see Batson, 476

U.S. at 98.

Protho raised Batson challenges to peremptory strikes of

Jurors 16 and 46, both of whom were Black. Because the

seated jury included no Black jurors, the district court found

that Protho had cleared the “low bar” for establishing a prima

10 No. 21-2092

facie Batson violation, which shifted the burden to the govern-

ment to offer a race-neutral reason for striking the two chal-

lenged jurors.

The government stated that it struck Juror 16 because she

worked from 11:00 p.m. to 7:00 a.m., served as the primary

caretaker for four children, was “too stoic” after hearing the

criminal allegations, and gave one-word answers to most

questions at voir dire. And second, the government stated

that it struck Juror 46 (a 75-year-old Black woman with a

Ph.D.) because she had her eyes closed during voir dire,

seemed to have trouble hearing, did not seem to follow along,

and trailed off during answers to the court’s questions.

Finding that the government had met its burden at step

two, the district court turned to the key question: had Protho

established purposeful discrimination? The court found that

he had not, giving several reasons. The court found the gov-

ernment’s desire to have a juror who reacts more strongly to

criminal allegations than Juror 16 a race-neutral (if not en-

tirely judicious) reason for exercising the peremptory strike.

The court found the two white jurors identified by Protho as

“stoic” differently situated because, unlike Juror 16 who

stated that she participated in “no activities,” the two white

jurors shared more about their activities and interests on their

juror forms. And the court found Juror 46 similarly situated

to another 75-year-old white juror with an advanced degree

for whom the government also exercised a peremptory strike.

On appeal, Protho argues that the district court erred in

making these findings. We review a district court’s factual

findings about a prosecutor’s discriminatory intent in a Batson

challenge for clear error. See United States v. Lovies, 16 F.4th

493, 500 (7th Cir. 2021); Rice v. Collins, 546 U.S. 333, 338 (2006)

No. 21-2092 11

(“On direct appeal in federal court, the credibility findings a

trial court makes in a Batson inquiry are reviewed for clear er-

ror.”).

Starting with Juror 16, Protho repeats his argument made

below about two similarly “stoic” white jurors not struck by

the government. But the district court credited the govern-

ment’s account that it had more information about those ju-

rors’ activities and interests than Juror 16, and we see no basis

in the record to hold that factual finding clearly erroneous.

Second, Protho argues that the government’s insistence

that it struck Juror 16 because she did not react strongly

enough to the alleged crime reveals pretext for race discrimi-

nation. In his view, this explanation contradicts the govern-

ment’s stated commitment to being fair and impartial during

the trial. We do not necessarily see anything inconsistent with

striking jurors who seem unsympathetic to one’s view of the

case and wanting a trial to be fair. And although we share

Protho’s concerns about the wisdom of permitting stoicism

alone to support striking a prospective juror, there’s nothing

inherently race-based in that explanation. We understand that

a decision to strike a Black woman as a prospective juror

based on stoicism alone could, in some cases, arise from racial

and gender biases. But the district judge also independently

observed that Juror 16’s demeanor was “stoic,” and we have

not been given reason to question that finding. See United

States v. Tsarnaev, 142 S. Ct. 1024, 1034 (2022) (“[J]ury selection

falls particularly within the province of the trial judge” “be-

cause a trial judge’s appraisal is ordinarily influenced by a

host of factors impossible to capture fully in the record, such

as a prospective juror’s inflection, sincerity, demeanor, can-

dor, body language, and apprehension of duty”) (citations

12 No. 21-2092

omitted and cleaned up). Besides, stoicism alone was not the

sole motivation for the government’s strike of Juror 16. The

government expressed concern that she worked as a night-

shift manager at McDonald’s (indeed, she worked until 3:00

a.m. on the day of the voir dire), was the primary caretaker

for four children, and did not offer information about her out-

side activities on her juror form. For these reasons, we hold

that the district court did not clearly err in denying Protho’s

Batson challenge to Juror 16.

As for Juror 46, Protho sees pretext in the government’s

explanation that it struck her for inattentiveness. If that were

so, Protho argues, then the government would have struck

her for cause. But the government explained that it did not

challenge Juror 46 for cause because it had thought the effort

futile. The district court had already denied one of its for-

cause strikes with a stronger foundation (the potential juror

had said that he generally didn’t believe law enforcement).

The district court had a right to credit that neutral explana-

tion. In short, the district court did not clearly err in handling

either of Protho’s Batson challenges.

C

Pursuant to 18 U.S.C. § 3509, the district court allowed

Amani (who was twelve years old at the time of trial) to testify

via closed-circuit television from another location within the

courthouse. When Amani first tried to take the witness stand,

outside the jury’s presence, she saw Protho and broke down.

Her breakdown required her to exit the courtroom and, after

reaching the hallway, she collapsed.

On appeal, Protho contends that the district court improp-

erly applied § 3509 and that this manner of testimony also

No. 21-2092 13

violated the Sixth Amendment’s Confrontation Clause. We re-

view legal issues relating to § 3509 and the Sixth Amend-

ment’s Confrontation Clause de novo and any factual deter-

minations underlying these legal issues for clear error. See

United States v. Jackson, 940 F.3d 347, 351 (7th Cir. 2019); United

States v. Bell, 925 F.3d 362, 375–76 (7th Cir. 2019) (reviewing

factual findings for alleged Sixth Amendment speedy trial

right violation for clear error).

1

“In a proceeding involving an alleged offense against a

child,” a court may “order that the child’s testimony be taken

in a room outside the courtroom and be televised by 2-way

closed circuit television.” 18 U.S.C. § 3509(b)(1). To do so, the

court must make a factual “find[ing] that the child is unable

to testify in open court in the presence of the defendant” for

any of four specified reasons, including an inability to testify

“because of fear.” Id.

The day after Amani broke down on the stand, the district

court held an evidentiary hearing on this issue and heard tes-

timony from two witnesses who were with Amani during her

courtroom appearance and subsequent breakdown. After the

evidentiary hearing, the court made the following factual

findings. In her preparations for trial (including a visit to the

courtroom), Amani had an upbeat disposition and expressed

an interest in courtroom proceedings. On the day of the inci-

dent, Amani entered the courtroom, took the witness stand

(outside the presence of the jury), looked “right at Protho,”

started having trouble breathing, and “broke down into

tears.” After several minutes, “it was apparent that [Amani]

would not be able to testify,” and she was escorted out of the

courtroom. Upon exiting the courtroom, Amani “collapsed to

14 No. 21-2092

the floor,” “sobbed,” and “appeared to be in a state of shock.”

Amani was then taken to an empty courtroom nearby, and the

adults caring for her noticed that “[h]er eyes were darting all

over the place” and that she “repeatedly” stated that “she felt

like she was back in the car in which she was kidnapped.”

Amani later stated that “she was shocked upon seeing Protho

and could not control herself” and that she was expecting him

to be wearing an orange prisoner jumpsuit. Given these facts,

the district court found Amani “afraid not just of testifying

but of testifying in the same room as Protho” and that testi-

mony by two-way CCTV was “necessary to protect [Amani’s]

welfare” because calling her to testify in Protho’s presence

“would cause her substantial emotional trauma.”

Protho argues that the evidentiary record is at best ambig-

uous as to what happened and why or how it happened. But

we cannot overturn a district court’s factual findings based on

an alleged ambiguity; only a clear error allows for that. In any

event, we see no error—let alone a clear error—in the district

court’s findings. It’s obvious what happened in this case. A

twelve-year-old girl was quite certain she saw the man who

had kidnapped and sexually assaulted her sitting before her

in the courtroom, and she understandably suffered severe

fear, which rendered her unable to testify in his presence.

Protho also argues that the district court relied on hearsay

statements in making these findings. Yet he failed to object to

any statements at the evidentiary hearing on hearsay

grounds, so he has forfeited any objection absent plain error.

United States v. Franklin, 197 F.3d 266, 270 (7th Cir. 1999). And

Protho has shown no such plain error because hearsay rules

do not apply to preliminary examinations in a criminal case.

See Fed. R. Evid. 1101(d)(3).

No. 21-2092 15

Finally, Protho contends that the district court should

have required Amani to testify about her breakdown. Again,

Protho did not object to the district court holding the eviden-

tiary hearing in Amani’s absence, so we review only for plain

error. See Franklin, 197 F.3d at 270. Protho cites no authority

requiring a child’s direct testimony before entering a § 3509(b)

order, and as we noted above, hearsay is admissible, so we

see no plain error. The district court did not err in finding that

Amani was prevented from testifying in person “because of

fear” under § 3509(b)(1).

2

The Sixth Amendment guarantees the accused in a crimi-

nal prosecution “the right … to be confronted with the wit-

nesses against him.” U.S. Const. amend. VI. The Constitution

thus protects a defendant from the admission of testimonial

evidence absent confrontation. Crawford v. Washington, 541

U.S. 36, 68 (2004). Protho argues that Amani’s out-of-court tes-

timony violated his confrontation right, which includes the

opportunity to cross-examine an adverse witness, id., and

generally requires a witness’s physical presence at trial under

oath and the chance for the jury to observe the witness’s de-

meanor, see Maryland v. Craig, 497 U.S. 836, 845–46 (1990).

Amani’s testimony had all but one of these components. She

was under oath and cross-examined in person by Protho’s

counsel, who was in the same room with Amani. Protho, the

judge, and the jury contemporaneously viewed Amani’s tes-

timony in the courtroom, and Amani, in turn, could see and

hear the judge and Protho. And Protho had the opportunity

to text his attorney during Amani’s testimony to ask questions

and express his thoughts. Amani’s physical presence in the

courtroom was the only thing missing.

16 No. 21-2092

Yet face-to-face confrontation at trial “is not the sine qua

non of the confrontation right.” Id. at 847. And the Supreme

Court has “never insisted on an actual face-to-face encounter

in every instance in which testimony is admitted against a de-

fendant.” Id.; see California v. Green, 399 U.S. 149, 165 (1970);

Mattox v. United States, 156 U.S. 237, 243–44 (1895). Nor have

we found a lower court holding that, under similar circum-

stances, a witness’s physical absence from the courtroom vio-

lates the Confrontation Clause. In fact, the Supreme Court has

upheld a state’s more restrictive alternative to the procedure

used here against a Confrontation Clause challenge. In Craig,

the Supreme Court upheld a state law allowing child wit-

nesses to testify against defendants via a one-way closed-cir-

cuit television (the witness could not see the defendant) rather

than the two-way closed-circuit television procedure here

(Amani and Protho could see one another). 497 U.S. at 851–52.

The Court held that the government has a compelling interest

in protecting minor victims of sex crimes from further trauma

and embarrassment. Id. at 852–58. It also held that this interest

outweighs a defendant’s right to face his accuser when a dis-

trict court makes three findings: (1) the procedure “is neces-

sary to protect the welfare of the particular child witness who

seeks to testify”; (2) “the child witness would be traumatized,

not by the courtroom generally, but by the presence of the de-

fendant”; and (3) “the emotional distress suffered by the child

witness in the presence of the defendant is more than de min-

imis, i.e., more than mere nervousness or excitement or some

reluctance to testify.” Id. at 852–58 (citation omitted). The dis-

trict court made those findings here. It found testimony by

two-way CCTV “necessary to protect [Amani’s] welfare” be-

cause calling her to testify in Protho’s presence “would cause

her substantial emotional trauma.” And it found that Amani

No. 21-2092 17

was “afraid not just of testifying but of testifying in the same

room as Protho.”

Protho’s contrary argument asks this court to ignore the

holding in Craig based on the Supreme Court’s later decision

in Crawford v. Washington, 541 U.S. 36 (2004). But “Crawford

did not overturn Craig.” United States v. Wandahsega, 924 F.3d

868, 879 (6th Cir. 2019). And we lack power to depart from an

on-point Supreme Court precedent. See, e.g., Bosse v. Okla-

homa, 137 S. Ct. 1, 2 (2016) (per curiam) (“Our decisions re-

main binding precedent until we see fit to reconsider them,

regardless of whether subsequent cases have raised doubts

about their continuing vitality.”) (citation omitted). Crawford

involved a declarant’s tape-recorded statement to the police

describing the stabbing for which the defendant was on trial.

541 U.S. at 38. The trial court allowed the jury to hear the tape

even though the defendant had no opportunity for cross-ex-

amination of the declarant, and the Supreme Court held that

this violated the defendant’s right to confrontation. Id. at 38,

68. In contrast, Protho’s counsel had the ability to (and did)

fully cross-examine Amani, as required by the Confrontation

Clause. So Crawford is inapt, and Craig governs here. To that

end, we hold that Protho suffered no Sixth Amendment vio-

lation.

D

Next, we address Protho’s Commerce Clause challenge.

After the government rested its case, Protho moved for ac-

quittal. In his view, the prosecution failed to offer evidence of

a nexus between his actions and interstate commerce. Protho

also objected to the government’s tendered instruction on the

Federal Kidnapping Act’s interstate-commerce element on a

similar ground. The district court rejected both arguments.

18 No. 21-2092

We review whether a criminal statute is constitutionally ap-

plied and whether a challenged jury instruction accurately

summarizes the law de novo. See United States v. Burrows, 905

F.3d 1061, 1062–63 (7th Cir. 2018); United States v. Erramilli,

788 F.3d 723, 730 (7th Cir. 2015).

The Constitution vests Congress with the power “[t]o

make all Laws which shall be necessary and proper for carry-

ing into Execution” its authority “[t]o regulate Commerce …

among the several States.” U.S. Const. art. I § 8. This power

allows Congress to “regulate and protect the instrumentali-

ties of interstate commerce, or persons or things in interstate

commerce, even though the threat may come only from intra-

state activities.” United States v. Lopez, 514 U.S. 549, 558 (1995)

(listing cases); see Cleveland v. United States, 329 U.S. 14, 19

(1946) (“The power of Congress over the instrumentalities of

interstate commerce is plenary[.]”). Wielding this authority,

Congress amended the Federal Kidnapping Act in 2006 to

criminalize any person who:

unlawfully … kidnaps, abducts, or carries away

… and holds for ransom or reward or otherwise

any person … when … the offender … uses …

any means, facility, or instrumentality of inter-

state or foreign commerce in committing or in

furtherance of the commission of the offense.

18 U.S.C. § 1201(a)(1); see Adam Walsh Child Protection and

Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 616–17.

Convicting Protho thus required answering whether he

“use[d] any means, facility, or instrumentality of interstate …

commerce in committing or in furtherance of the commission

of” Amani’s kidnapping. The answer was yes, according to

No. 21-2092 19

the district court, if the jury found that Protho had used a ve-

hicle to commit the kidnapping. The court thus gave the fol-

lowing jury instruction:

The defendant used a means, facility, or instru-

mentality of interstate commerce if he used an

automobile in committing or in furtherance of

the commission of the offense.

Protho agrees that automobiles are generally treated as in-

strumentalities of interstate commerce. Even so, he argues

that an automobile can only qualify as an instrumentality of

interstate commerce when evidence shows that the specific

automobile at issue was, at some point, used for that purpose.

In other words, he argues that courts must view automobiles

individually—rather than as a class—when deciding their in-

strumentality status.

Even if we were to accept Protho’s legal argument, how-

ever, there’s no doubt that the Ford Explorer at issue was used

in interstate commerce. On the day of the kidnapping, Protho

drove the Ford Explorer interstate (from his home in East Chi-

cago, Indiana, to the site of the kidnapping in Calumet City,

Illinois). Protho also testified that, on the same day, he crossed

state lines in the Ford Explorer to conduct a drug deal in Illi-

nois and to obtain medical services at an Indiana hospital.

And Protho regularly drove the Ford Explorer from his home

in Indiana to his employer in Illinois. So the Ford Explorer at

issue was used in interstate commerce.

But we do not agree with Protho’s view that the Com-

merce Clause asks us to consider each automobile’s specific

use in interstate commerce. Instead, it’s the nature of the reg-

ulated object’s class (here, automobiles) rather than the

20 No. 21-2092

particular use of one member of that class (Protho’s Ford Ex-

plorer) that matters. We made this clear when interpreting a

similar statute, 18 U.S.C. § 1958(a), which criminalizes the use

of “any facility of interstate or foreign commerce” in a mur-

der-for-hire scheme. See United States v. Mandel, 647 F.3d 710,

720, 722 (7th Cir. 2011) (“[F]ederal jurisdiction is supplied by

the nature of the instrumentality or facility used, not by sepa-

rate proof of interstate movement.”) (citation omitted).

Nearly all circuits have followed this course when faced

with similar questions, and no circuit has adopted Protho’s

proposal. See, e.g., United States v. Bishop, 66 F.3d 569, 590 (3d

Cir. 1995) (“conclud[ing] that motor vehicles are instrumen-

talities of interstate commerce”); United States v. Cobb, 144 F.3d

319, 322 (4th Cir. 1998) (holding that “[c]ars, like trains and

aircraft” are instrumentalities of interstate commerce because

they are “inherently mobile and indispensable to the inter-

state movement of persons and goods”); United States v.

McHenry, 97 F.3d 125, 126–27 (6th Cir. 1996) (holding that cars

are instrumentalities of interstate commerce); United States v.

Robinson, 62 F.3d 234, 236–37 (8th Cir. 1995) (holding that mo-

tor vehicles are “item[s] in interstate commerce”); United

States v. Oliver, 60 F.3d 547, 550 (9th Cir. 1995) (“[C]ars are

themselves instrumentalities of commerce, which Congress

may protect.”); cf. United States v. Morgan, 748 F.3d 1024, 1034

(10th Cir. 2014) (holding that cellphones, the internet, and

GPS devices are instrumentalities of interstate commerce for

purposes of the Federal Kidnapping Act); but see Garcia v.

Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1250 (11th Cir.

2008) (passing over the question of whether automobiles are

“per se instrumentalities of commerce”). We thus have no

trouble holding that the district court correctly denied Pro-

tho’s motion of acquittal on this basis and properly instructed

No. 21-2092 21

the jury on the interstate-commerce element of the Federal

Kidnapping Act.

E

Protho’s next argument relates to a comment made by the

prosecutor during closing arguments. During the govern-

ment’s closing rebuttal argument, the prosecutor stated:

And I’m sorry that a 12 -- a 12-year-old girl

doesn’t want to be in the same room as the man

who took her off the street and sexually as-

saulted her. Next time pick an older victim.

Protho’s counsel objected, and the district court sustained that

objection in front of the jury:

Yeah, I’m going to sustain that objection, and

I'm going to instruct the jury to disregard that

portion of the argument. And, [prosecutor],

you’re getting close to the line there. I think that

was actually a little across the line. Don’t do that

again.

Protho moved for a mistrial based on the prosecutor’s

comment. In his view, the comment deprived him of his right

to due process. The district court found the prosecutor’s com-

ment improper but denied the motion for mistrial based on a

lack of prejudice because: (1) the court sustained the objection

and issued a curative instruction for the jury to disregard the

comment; (2) the jury had heard multiple times that the law-

yers’ arguments did not qualify as evidence; (3) the prosecu-

tor’s comment lacked specificity and was encompassed

within an argument on a different point; and (4) “[t]he evi-

dence at trial overwhelmingly indicated that Protho

22 No. 21-2092

committed the crime and his alibi defense was, to put it

lightly, less than convincing.”

On appeal, Protho contends that the district court erred by

denying his motion for a mistrial. We review a district court's

decision to issue a cautionary instruction after sustaining a

defendant’s objection to a comment in closing argument and

to deny a defendant’s motion for a new trial based on that

comment for abuse of discretion. See United States v. Chavez,

12 F.4th 716, 727–28 (7th Cir. 2021); United States v. Miller, 199

F.3d 416, 421–24 (7th Cir. 1999). In evaluating whether a pros-

ecutor’s comments made during closing arguments violate a

defendant’s Fifth Amendment right to due process, this court

asks first “whether the comments themselves were improper”

and, if so, whether the statements, “taken in the context of the

entire record, deprived the defendant of a fair trial.” United

States v. Sandoval, 347 F.3d 627, 631 (7th Cir. 2003); see United

States v. Common, 818 F.3d 323, 331 (7th Cir. 2016). Like the

parties, we assume (without deciding) that the prosecutor’s

arguments were improper. So we focus on prejudice. To de-

termine whether a prosecutor’s comment is prejudicial, we as-

sess, after considering the entire record, (1) the nature and se-

riousness of the prosecutorial misconduct; (2) whether de-

fense counsel invited the misconduct; (3) the adequacy of the

district court’s jury instructions; (4) the defense’s opportunity

to counter the improper argument; and (5) the weight of the

evidence supporting the conviction. See Common, 818 F.3d at

332–33; Sandoval, 347 F.3d at 631.

Protho focuses on the first prejudice factor: the nature and

seriousness of the prosecutorial misconduct. He argues that

the comments wrongfully suggested that Amani was both fa-

miliar with and fearful of him. But Amani’s testimony—not

No. 21-2092 23

the prosecutor’s comment—already made it abundantly clear

that she feared Protho, whom she had identified as her at-

tacker. Protho also argues that the prosecutor’s comment pro-

vided an excuse and explanation for Amani’s failure to iden-

tify Protho in court. Yet the district court had instructed the

jury that Amani was testifying by videoconference from an-

other location because of her age. So the jury already had an

explanation for why Amani was not present in the courtroom

to make an in-court identification. We see little reason for

thinking the jury made much of this passing comment.

For the other factors, Protho’s counsel didn’t invite this er-

ror (factor 2) and didn’t get the chance to counter the prose-

cutor’s argument since it was made in rebuttal (factor 4). But

the other remaining factors strongly weigh against finding

prejudice here. The district court promptly instructed the jury

to disregard the comment and reprimanded the prosecutor in

front of the jury (factor 3). Cf. United States v. Warner, 498 F.3d

666, 683 (7th Cir. 2007) (“There is a general presumption that

juries follow their instructions.”). And we agree with the dis-

trict court that overwhelming evidence supports Protho’s

guilt (factor 5). A surveillance video captured the kidnapping;

that video and others showed a Ford Explorer with distinctive

features matching Protho’s, the one in which he was arrested

one week later; and Protho admitted that he drove it near the

area within minutes of the kidnapping. Amani described her

attacker in a way that generally matched Protho’s appearance

on the day of the kidnapping (as captured in surveillance foot-

age), and she correctly identified Protho as her kidnapper in

a photo array. Moreover, the FBI’s fiber expert testified about

potential fiber transfer between clothing from Protho and

Amani.

24 No. 21-2092

But even with all of this evidence, what makes us most

confident about Protho’s guilt is his own trial testimony. Pro-

tho’s tale was, in the district court’s words, “patently unbe-

lievable.” Protho testified about a three-location, attempted

but ultimately failed, marijuana purchase from a childhood

friend named “Ell” (with an unknown last name and no evi-

dence of his existence) on the day of the kidnapping. That

friend happened to match the kidnapper’s appearance to the

“T.” Two years after the kidnapping, Protho remembered the

color of the drawstrings on Ell’s sweatshirt worn on the day

Amani was kidnapped. Ell also happened to borrow—for the

first time in their fifteen-year friendship—Protho’s Ford Ex-

plorer, the vehicle used by the kidnapper, on the day, and in-

deed, during the very period the kidnapping took place. To

boot, Protho also could not keep his story straight. A week

after the kidnapping, Protho told investigators that no one

had used his Ford Explorer the prior week. Yet at trial, he tes-

tified that Ell had borrowed it on the day of the kidnapping.

And when Protho visited an emergency room on the night of

the kidnapping, he told them he had hurt his hand on his car’s

hood. But on the stand, he testified that his fingernail came

loose after a fight with Ell. And even if we could accept Pro-

tho’s version of events suggesting that Ell—not Protho—re-

ally kidnapped Amani, a jury would have to believe that

Amani wrongly picked Protho out in the photo array but hap-

pened to correctly select the man whose Ford Explorer was

used by her real kidnapper. None of that makes sense. So even

if the prosecutor’s comment were improper (an issue we do

not decide), we agree with the district court that Protho suf-

fered no prejudice from it. We thus hold that the district court

did not abuse its discretion in denying Protho’s motion for a

mistrial.

No. 21-2092 25

F

For the last alleged trial error, Protho argues that the dis-

trict court improperly responded to an evidentiary question

during jury deliberations. We “review a decision to answer a

question from the jury as well as the language used in the re-

sponse for an abuse of discretion.” United States v. Hewlett, 453

F.3d 876, 880 (7th Cir. 2006).

A few hours after starting deliberations, the jury submit-

ted the following note to the court:

Can someone ask the US Attorney to confirm

which video shows the defendant getting out of

his car, walking around for a few seconds, then

getting back in car[?] Showed him from waist

down. Could be an extract of an original video.

Protho agreed that Government’s Exhibit 13 addressed this

request. Over Protho’s counsel’s objection, the court decided

to substantively respond to the note. Otherwise, the jury

would have to “go on sort of a hunt for truffles amongst all of

the videos to try to find the one that they’re looking for when

they seem to have a very specific item in mind.” The judge

then proposed language responding to the note, and Protho’s

counsel did not object to it. The court sent the jury the follow-

ing note:

The third file of Government Exhibit 13 shows

an individual from the waist down exiting and

subsequently reentering a vehicle as described

in juror note No. 2.

On appeal, Protho contends that no substantive response

to a jury’s evidentiary question is permissible and, alterna-

tively, even if a response is generally permissible, the court’s

26 No. 21-2092

response here was not. To Protho’s first argument, the district

court has discretion on both whether and how to answer a

jury’s question. See Hewlett, 453 F.3d at 880. As Protho points

out, a district court cannot “attempt[] to override or interfere

with the jurors’ independent judgment in a manner contrary

to the interests of the accused.” United States v. Martin Linen

Supply Co., 430 U.S. 564, 572–73 (1977). But Protho has pro-

vided no authority supporting his argument that merely iden-

tifying an exhibit which the jury specifically requested some-

how interferes with the jury’s independence.

As to his second argument, Protho has waived any chal-

lenge to the instruction’s language by failing to object below.

After the court decided to provide a substantive response to

the note, Protho’s counsel agreed with the response’s pro-

posed language. Indeed, Protho’s counsel even requested a

change to the court’s proposed instruction, which the court

then made. This approval of the instruction’s language

waived any appellate challenge to it. Cf. United States v. Edge-

worth, 889 F.3d 350, 355 (7th Cir. 2018) (approval of a jury in-

struction waives appellate challenge to that instruction). We

thus hold that the court did not abuse its discretion in re-

sponding to the jury’s note.

III

Having found no error at or before trial, we next consider

Protho’s sentence. He contends that the district court erred by

awarding $87,770 in restitution based on the projected cost of

Amani’s psychotherapy. A district court’s restitution order

may require the defendant to pay any victim harmed by the

defendant’s offense the cost of necessary medical and related

professional services for psychiatric and psychological care.

See 18 U.S.C. §§ 3663, 3663A; United States v. Danser, 270 F.3d

No. 21-2092 27

451, 455 (7th Cir. 2001) (holding that similar language in 18

U.S.C. § 2259 “allows for restitutionary damages for the fu-

ture costs of therapy”). We review a district court’s restitution

calculation for abuse of discretion, taking the evidence in the

light most favorable to the government. United States v. Al-

verez, 21 F.4th 499, 502–03 (7th Cir. 2021) (citation omitted).

On Amani’s need for psychotherapy, the district court

found the government’s expert, Dr. Diana Goldstein, a li-

censed clinical neuropsychologist, “very well qualified in her

field” and thus gave her testimony a “significant amount of

weight.” Dr. Goldstein’s expert report noted that a child in

Amani’s position would require, as a conservative estimate,

24 months of outpatient treatment. But Dr. Goldstein also tes-

tified that some patients in Amani’s position could need treat-

ment and struggle for the rest of their lives. Moreover, Dr.

Goldstein testified that Amani may have suffered a dissocia-

tive experience (a type of psychosis related to post-traumatic

stress disorder) during her trial breakdown. Amani had al-

ready received more than 24 months of treatment, and the dis-

trict court found it “pretty clear that an additional period of

time [wa]s warranted” because Amani was still suffering the

effects of the trauma based on her reaction to seeing Protho.

The court found that Amani would need a substantial amount

of therapy going forward based on her age and the event’s

traumatic nature. The district court therefore projected that

Amani would need therapy for eight more years (ten years

total), which would cost $87,770.

On appeal, Protho does not contest the estimated annual

therapy cost ($8,777) or dispute that Amani had undergone

treatment for two years. But he argues that the district court’s

estimate that Amani would need treatment for eight more

28 No. 21-2092

years lacked adequate evidentiary support. After viewing the

evidence in the light most favorable to the government, we

find that the district court did not abuse its discretion in pro-

jecting that Amani would require treatment for eight more

years. See Alverez, 21 F.4th at 502–03. Determining the dura-

tion of future psychological treatment, as a prediction, neces-

sarily prevents any conclusion based on mathematical cer-

tainty. Cf. Danser, 270 F.3d at 455–56 (rejecting the defendant’s

argument that restitution calculation for the victim’s future

psychiatric therapy “was not determined with a degree of rea-

sonable certainty”). And the district court’s finding that

Amani would require treatment at least until she was 20 years

old does not strike us as an unreasonable duration for some-

one in her position, as a child snatched by a total stranger on

her walk home from school, threatened with death, and sex-

ually assaulted. Indeed, Dr. Goldstein’s expert testimony and

report suggested that Amani may have suffered from a form

of psychosis when she first tried to testify in court, even after

two years of therapy, and that some similar patients may re-

quire treatment for life.

AFFIRMED

No. 21-2092 29

JACKSON-AKIWUMI, Circuit Judge, concurring in part. I

agree with much of the lead opinion’s analysis, except that I

would hold that the district court abused its discretion when

it admitted the testimony of the government’s fiber-analysis

expert, FBI Forensic Examiner Ashley Baloga. Although the

court reasonably concluded that Baloga was qualified to give

opinions about fiber comparison, the government failed to

make any showing that the methods she employed were reli-

able. I nonetheless join my colleagues in affirming Protho’s

conviction because Baloga’s testimony was only a small part

of the evidence supporting the jury’s guilty verdict, rendering

the error harmless.

As with the lead opinion, my analysis starts with Rule 702

of the Federal Rules of Evidence and Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579 (1993). Rule 702 has four require-

ments: (a) the witness must be qualified as an expert with sci-

entific, technical, or other specialized knowledge that will

help the jury; (b) the testimony must be based on sufficient

facts or data; (c) the testimony must be “the product of reliable

principles and methods”; and (d) the expert must have relia-

bly applied those principles and methods to the facts of the

case. Fed. R. Evid. 702(a)–(d). The government satisfied re-

quirements (a), (b), and (d): it supplied evidence of Baloga’s

qualifications, that she relied on data culled from the crime

scene, and that she applied a “five-step process” to reach her

conclusions. But the government failed to present any evi-

dence regarding the reliability of that “five-step process.”

When a proponent of expert testimony fails to satisfy Rule

702(c)’s requirement of showing that an expert’s methods are

reliable, Rule 702’s remaining requirements are meaningless.

Even the most assiduous adherence to an established method

30 No. 21-2092

will not produce reliable results if the underlying method is

flawed. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151

(1999) (explaining that the application of methods generally

accepted within a discipline will not establish reliability if

“the discipline itself lacks reliability, as, for example, do the-

ories grounded in any so-called generally accepted principles

of astrology or necromancy”).

To assess the reliability of an expert’s methods, courts ap-

ply the standards described in Daubert. The Supreme Court

outlined four factors that govern a court’s evaluation: (1)

whether the scientific theory can be and has been tested;

(2) whether the theory has been subjected to peer-review or

academic publication; (3) whether the theory has a known or

potential rate of error; and (4) whether the theory is generally

accepted in the relevant scientific community. Daubert, 509

U.S. at 593–94. This list is “neither exhaustive nor manda-

tory”; reliability is assessed on a case-by-case basis. C.W. ex

rel. Wood v. Textron, Inc., 807 F.3d 827, 835 (7th Cir. 2015).

None of the Daubert factors were present here. Baloga’s ex-

pert report is barebones. It does not explain whether her fiber-

comparison methods have been tested, have been peer re-

viewed or published in an academic journal, or have a known

error rate. Nor does it provide any evidence from which the

district court could conclude that her methods are generally

accepted in the scientific community. Baloga’s report does not

even clarify whether she followed all five steps in her five-

step method; the report merely states that “[m]icroscopic ex-

amination of textile fibers is accomplished by using one or more

analytical techniques [mentioned in the report]” (emphasis

added). And although Baloga describes each step of her pro-

cess, she does so only in an attached slideshow presentation

No. 21-2092 31

and only in broad, jargon-laden terms. For example, her

presentation notes that “fluorescence microscopy” means to

“[i]lluminate fiber with various wavelengths of light to ob-

serve color and intensity of fluorescence.” She provides no

further explanation, and it is not clear whether “fluorescence

microscopy” involves more than simply shining a light on fi-

bers while magnifying them.

The district court nonetheless concluded that Baloga’s

methods were reliable for two reasons: (1) her conclusions are

falsifiable; and (2) fiber-evidence experts with similar qualifi-

cations have been admitted in other cases. Both reasons fall

well below the Daubert standard.

First, the district court’s finding that Baloga’s conclusions

are falsifiable was insufficient on its own to conclude that her

methods were reliable. Falsifiability is the idea that a predic-

tion can, in principle, be proven to be false. United States v.

Mitchell, 365 F.3d 215, 235 (3d Cir. 2004). It is a cornerstone of

modern science and part of what separates science from other

fields of human inquiry. See Daubert, 509 U.S. at 593. I agree

with the district court that Baloga’s fiber-analysis methods are

falsifiable in the abstract sense that they could be disproven by

showing that two matched fibers did not come from the same

source. But falsifiability alone is not an indicator of reliability.

Consider a real-life example: History is rife with failed

doomsday predictions from religious leaders and others who

predicted with confidence the date of the end times. 1 These

predictions were falsifiable because one could simply wait to

1 See Encyclopedia Britannica, 10 Failed Doomsday Predictions,

https://www.britannica.com/list/10-failed-doomsday-predictions (last

visited July 13, 2022).

32 No. 21-2092

see if the world ended on the predicted date. Often, the prog-

nosticators relied on what they claimed were rigorous meth-

ods, such as astrology or esoteric readings of the Bible. The

falsifiability of the predictions, however, did not make those

methods reliable. Testing showed they were not.

Accordingly, the Supreme Court did not refer to only hy-

pothetical falsifiability when it described falsifiability as an

indicium of reliability in Daubert. Rather, it explained that a

scientific methodology “is based on generating hypotheses

and testing them to see if they can be falsified,” and so a “key

question to be answered in determining whether a theory or

technique is scientific knowledge that will assist the trier of

fact will be whether it can be (and has been) tested.” Daubert,

509 U.S. at 593 (emphasis added). See also Nease v. Ford Motor

Co., 848 F.3d 219, 232 (4th Cir. 2017) (holding that court erred

in admitting expert testimony because, although expert had a

plausible hypothesis for car’s mechanical failure, expert had

not tested that hypothesis). Maybe Baloga or the FBI con-

ducted tests to determine the error rate of their fiber-analysis

process, but the government did not provide any evidence of

such testing to the district court. The falsifiability of Baloga’s

methods is meaningless without some indication of further

testing.

The district court’s only other, and primary, reason for

finding Baloga’s opinions reliable was that similar fiber evi-

dence has been admitted in other cases. The lead opinion and

the government also adopt this position. I disagree that any

of the fiber-evidence cases presented by the government or

cited in the lead opinion are evidence of Baloga’s reliability. I

see nothing in those decisions to suggest that the expert in

No. 21-2092 33

each case applied the same five-step method used by Baloga. 2

And court rulings on the reliability of other experts, who may

or may not have applied the same methods, do not establish

the reliability of Baloga’s analysis. Even when the same wit-

ness has been qualified as an expert in prior cases, we have

warned courts not to assume the reliability of that witness’s

testimony in a new case. See United States v. Godinez, 7 F.4th

628, 637–38 (7th Cir. 2021) (court erred by concluding that wit-

ness’s qualification as expert in prior case weighed toward re-

liability when prior case did not include challenge to expert’s

methods).

The lead opinion relies on a 2009 report from the National

Academy of Sciences as an additional ground for finding that

the relevant scientific community generally accepts fiber evi-

dence. See NAT’L RESEARCH COUNCIL, STRENGTHENING

FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD

162–63 (2009). This report is not the slam dunk the lead opin-

ion suggests. The report actually highlights the lack of re-

search determining the error rate of certain fiber-comparison

methods. And rather than suggesting that Baloga’s five-step

method is a “standardized procedure” used by all fiber-evi-

dence technicians, the report notes that a variety of methods

are used. The lead opinion is correct that the report states that

fiber analysis can be used to associate a given fiber with a class

of fibers; that is, whether two fibers came from the same broad

type of fabric. Id. at 161. The report further clarifies, however,

that “none of the[] characteristics [identified during fiber

2 See United States v. Santiago Santiago, 156 F. Supp. 2d 145, 152 (D.P.R.

2001), United States v. Barnes, 481 F. App'x 505, 514 (11th Cir. 2012), United

States v. Lujan, No. CR 05-0924 RB, 2011 WL 13210238, at *4 (D.N.M. July

14, 2011), and State v. Fukusaku, 946 P.2d 32, 44 (Haw. 1997).

34 No. 21-2092

analysis] is suitable for individualizing fibers (associating a

fiber from a crime scene with one, and only one, source).” Id.

To Baloga’s credit, she did not explicitly state that any two

fibers “matched” or claim to predict the likelihood that they

came from a common source with any statistical precision.

But she implied as much by repeatedly insisting during her

testimony that one would not expect two random fibers to

have all the common characteristics that she identified.

The lead opinion’s reliance on the 2009 report—as well as

its reliance on other authorities that predate that report—also

overlooks the sea change that has occurred in forensic science

over the last decade. The 2009 report was the first in a series

of federal studies on the use of forensic science in criminal in-

vestigations. It revealed systemic problems plaguing the fo-

rensic science community and led to a series of reform initia-

tives and further review of how forensic evidence is used. See

PRESIDENT’S COUNCIL OF ADVISORS ON SCI. AND TECH.,

FORENSIC SCIENCE IN CRIMINAL COURTS: ENSURING SCIENTIFIC

VALIDITY OF FEATURE-COMPARISON METHODS, 34–35, §§ 2.7

and 2.8 (2016) (describing 2009 report’s impact). Hair and fi-

ber evidence came under particular scrutiny. To be clear,

Baloga did not testify about hair; she conducted both fiber-

and hair-comparison analysis for her report, but the govern-

ment decided to present only the fiber analysis at trial. None-

theless, Baloga’s report suggests that her methods for fiber

and hair analysis are similar, with at least some overlapping

steps. The government likewise conflates fiber and hair anal-

ysis in its appellate brief, suggesting that the government also

sees these fields as interrelated. Studies about both types of

evidence are thus relevant to my analysis.

No. 21-2092 35

A 2015 review of the use of forensic evidence by the FBI

and the Department of Justice concluded that forensic experts

had overstated the strength of forensic hair matches in more

than 95 percent of cases. 3 This revelation was followed by a

2016 report from the President’s Council of Advisors on Sci-

ence and Technology, which dug deeper into the history of

hair analysis and concluded that the DOJ’s foundational stud-

ies on hair comparison were flawed. See FORENSIC SCIENCE IN

CRIMINAL COURTS, 118, § 5.7. Public concern about potentially

unreliable forensic evidence has only grown since then, gar-

nering significant media coverage.4

The disintegrating consensus around hair and fiber evi-

dence further highlights the problem with the district court’s

assumption that Baloga’s opinions are reliable because simi-

lar experts have testified in other cases. Science, by its nature,

is always evolving. Forensic testimony that seemed reliable at

one time may later be shown to have been founded in specu-

lation. Courts do the parties a disfavor when they assume that

an expert is reliable merely because her testimony seems su-

perficially similar to testimony admitted in the past. See

FORENSIC SCIENCE IN CRIMINAL COURTS, 143–44 § 9.2

3 See Press Release, Federal Bureau of Investigation, FBI Testimony on

Microscopic Hair Analysis Contained Errors in at Least 90 Percent of

Cases in Ongoing Review, (Apr. 20, 2015),

https://www.fbi.gov/news/press-releases/press-releases/fbi-testimony-

on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-

cases-in-ongoing-review.

4 See Forensic Hair Analysis: A Curated Collection of Links, The Marshall

Project, https://www.themarshallproject.org/records/1234-forensic-hair-

analysis (last visited July 13, 2022) (collecting articles from various publi-

cations).

36 No. 21-2092

(describing how an overreliance on past precedent has led

courts to erroneously assume that various forensic methods

are reliable). The cost of such assumptions can be high: Ac-

cording to statistics compiled by The National Registry of Ex-

onerations at Michigan Law School, about a quarter of all ex-

onerations involve false or misleading forensic evidence as a

contributing factor for the wrongful conviction. 5

I agree with the lead opinion that district courts have

broad discretion in how they determine the reliability of sci-

entific testimony. And I reiterate that Daubert does not impose

a checklist; the absence of any one Daubert factor does not nec-

essarily make evidence unreliable. United States v. Smith, 215

F.3d 713, 720 (7th Cir. 2000). But here, not merely one of Daub-

ert’s factors for assessing reliability was missing—all were. I

am not suggesting that fiber evidence is inadmissible in all

cases, nor do I claim to predict whether the government could

establish that such evidence is reliable in a future case under

the proper standard. Perhaps the lead opinion is right that the

scientific community would still rally around the methods

employed by Baloga and similar experts. But the government

did not make that showing in the district court. And on that

basis, the district court abused its discretion by admitting

Baloga’s testimony.

I nonetheless join the lead opinion in affirming Protho’s

conviction because, as the lead opinion has aptly explained,

the evidence against Protho was overwhelming. An error at

trial is harmless when it appears “beyond a reasonable doubt

5 See % Exonerations by Contributing Factor, The National Registry of

Exonerations, https://www.law.umich.edu/special/exoneration/Pages/Ex-

onerationsContribFactorsByCrime.aspx (last visited July 13, 2022).

No. 21-2092 37

that the error complained of did not contribute to the verdict

obtained.” United States v. Parker, 11 F.4th 593, 596 (7th Cir.

2021) (quoting Mitchell v. Esparza, 540 U.S. 12, 17–18 (2003)).

Because the government introduced video and testimonial

evidence identifying Protho as the perpetrator and establish-

ing that Amani was inside Protho’s car, the fiber evidence

ended up being a relatively small part of the government’s

case. Its exclusion would not have made the government’s

case significantly less persuasive in the mind of the average

juror. See id. (citing United States v. Stewart, 902 F.3d 664, 683

(7th Cir. 2018)).