United States v. Prime

431 F.3d 1147, 2005 WL 3416302
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 16, 2004
DocketNo. 02-30375
StatusPublished
Cited by60 cases

This text of 431 F.3d 1147 (United States v. Prime) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Prime, 431 F.3d 1147, 2005 WL 3416302 (9th Cir. 2004).

Opinion

ORDER AND AMENDED OPINION

ORDER

Pursuant to the United States Supreme Court order vacating the judgment and remanding this case back to this Court for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Opinion filed April 16, 2004, slip op. 4979, and appearing at 363 F.3d 1028 (9th Cir.2004), is amended as follows:

On page 1038 of the Opinion, delete AFFIRMED and in its place insert the following terminal paragraphs:

Because the defendant was sentenced under the then-mandatory Sentencing Guidelines, and because we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory, we remand to the sentencing court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005) (en banc). See also United States v. Moreno-Hemandez, 419 F.3d 906, 916 (9th Cir.2005) (“[Djefendants are entitled to limited remands in all pending direct criminal appeals involving unpre-served Booker error, whether constitutional or nonconstitutional”).

Conviction AFFIRMED; sentence REMANDED.

OPINION

TROTT, Circuit Judge.

I

OVERVIEW

Michael Prime (“Prime”) was charged with, and convicted of, one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371; one count of conspiracy to manufacture counterfeit securities, in violation of 18 U.S.C. § 371; and three counts of possessing, manufacturing, and uttering counterfeit securities, in violation of 18 U.S.C. § 513(a). Prime raises four issues on appeal: 1) whether the district court properly denied his motion for a Franks hearing;1 2) whether the court abused its discretion in allowing [1151]*1151the testimony of an expert handwriting analyst; 3) whether the court abused its discretion in not allowing Prime to substitute counsel; and 4) whether the jury’s potential exposure to extrinsic evidence was grounds for a new trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm all of the district court’s orders and decisions.

II

BACKGROUND

Between April and June 2001, Prime, along with three co-conspirators, David Hiestand (“Hiestand”), Juan Ore-Lovera, and Jeffrey Hardy, sold non-existent items on eBay, purchased items using counterfeit money orders created by the group, sold pirated computer software, and stole credit card numbers from software purchasers. To facilitate this operation, Prime and his cohorts used a credit card encoder to input the stolen data on their own credit cards, set up post office boxes under false names, manufactured false identifications, and used a filter bank account to hide proceeds of the crimes.

At trial, numerous victims testified as to the details surrounding how they had been defrauded by Prime’s various scams. In addition, co-conspirators Hiestand and Hardy both extensively testified as to the details of the conspiracy, implicating Prime in all of the crimes charged. The prosecution also elicited the expert opinion of Kathleen Storer (“Storer”), a forensic document examiner with the Secret Service. She testified that Prime was the author of as many as thirty-eight incriminating exhibits, including envelopes, postal forms, money orders, Post-it notes, express mail labels and postal box applications. Prime took the stand in his own defense and claimed that despite all of the evidence linking him to the various scams, including admissions that his fingerprints were on several items linked to the crimes, he was simply attempting to engage in legal entrepreneurial ventures. Prime also confirmed that he had previously been convicted of first and second degree theft, two counts of possession of stolen property in the second degree, and forgery. The jury found Prime guilty on all counts.

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

Ill

ADMISSIBILITY OF EXPERT TESTIMONY

Prime moved in limine to exclude Storer’s expert testimony. The court held a Daubert hearing where both sides were allowed to offer voluminous materials and expert testimony regarding the reliability of the proposed testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). After careful consideration, the court denied the motion, see United States v. Prime, 220 F.Supp.2d 1203 (W.D.Wash. 2002), and Storer testified that, in her opinion, Prime’s handwriting appeared on counterfeit money orders and other incriminating documents. On appeal, Prime contends that the admission of expert testimony regarding handwriting analysis was unreliable under Daubert, and thus the court abused its discretion by allowing Storer to testify.

Handwriting Analysis

In Daubert, the Supreme Court set forth the guiding principle that “under [Federal Rule of Evidence 702]2 the trial [1152]*1152judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589, 113 S.Ct. 2786. In order to assist the trial courts with this task, the Court suggested a flexible, factor-based approach to analyzing the reliability of expert testimony. Id. at 593-95, 113 S.Ct. 2786. Although not an exclusive list, these factors include: 1) whether a method can or has been tested; 2) the known or potential rate of error; 3) whether the methods have been subjected to peer review; 4) whether there are standards controlling the technique’s operation; and 5) the general acceptance of the method within the relevant community. Id. at 593-94, 113 S.Ct. 2786.

Kumho Tire Co. v. Carmichael resolved any post-Daubert uncertainty that the trial judge’s responsibility to keep unreliable expert testimony from the jury applies not only to “scientific” testimony, but to all expert testimony. 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). As a result, this “basic gatekeeping obligation” applies with equal force in cases, such as this one, where “non-scientific” experts wish to relate specialized observations derived from knowledge and experience that is foreign to most jurors. Id. Kumho Tire also makes it clear that “the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable,” as well as the ultimate determination of whether the proposed expert testimony is reliable. Id. at 152, 119 S.Ct. 1167.

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Bluebook (online)
431 F.3d 1147, 2005 WL 3416302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-prime-ca9-2004.