United States v. Ruth

42 M.J. 730, 1995 CCA LEXIS 186, 1995 WL 450976
CourtArmy Court of Criminal Appeals
DecidedJuly 25, 1995
DocketARMY 9400093
StatusPublished
Cited by2 cases

This text of 42 M.J. 730 (United States v. Ruth) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ruth, 42 M.J. 730, 1995 CCA LEXIS 186, 1995 WL 450976 (acca 1995).

Opinion

OPINION OF THE COURT

GONZALES, Judge:

Contrary to his pleas, the appellant was found guilty, by a general court-martial composed of officer and enlisted members, of attempted larceny (thirty-seven specifications), conspiracy to commit larceny, violation of a lawful general regulation, larceny (nine specifications), forgery (thirty-two specifications), and obtaining services by false pretenses, in violation of Articles 80, 81, 92,121, 123, and 134, Uniform Code of Military Jus[731]*731tice, 10 U.S.C. §§ 880, 881, 892, 921, 923, and 934 (1988) [hereinafter UCMJ]. The convening authority approved the adjudged sentence consisting of a bad-conduct discharge, confinement for four years, forfeiture of all pay and allowances, and reduction to Private El.

Before this court the appellant asserts, inter alia, that the military judge erred by denying a defense request for an expert witness on handwriting analysis. More specifically, the appellant contends that the military judge failed to make a thorough preliminary inquiry into the validity of handwriting analysis, a technique also known as forensic document examination or questioned documents examination, under Military Rule of Evidence 702 [hereinafter Mil.R.Evid.] and Daubert v. Merrell Dow Pharmaceuticals, — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). He argues that the military judge failed to apply the validity factors of Daubert to determine whether the statements and opinions of Special Agent (SA) Richard A. Horton, the government’s examiner of questioned documents, were admissible as expert scientific testimony. He also asserts that this inquiry should have included the testimony of Professor Mark P. Denbeaux, the defense-requested expert witness, who would have challenged the “scientific validity” of the handwriting analysis technique used by SA Horton to identify the author of the questioned signatures in this case. We disagree and affirm.

I. BACKGROUND

The appellant and Private First Class (PFC) Joseph Durocher were the personnel action clerks for their field artillery battalion located in Bamberg, Germany. Using their access to personal information on soldiers in their battalion, the appellant and PFC Duroeher developed a get-rich-quick scheme. They first opened a bank account in Liechtenstein in the fictitious name of “William Cooper,” using a falsified copy of a passport. They then prepared and sent letters to the banks of over thirty soldiers within the battalion requesting a wire transfer of the complete balance in their accounts to the “William Cooper” account effective “one a.m. Eastern Time Zone on 01 May 1992.” The scheme was uncovered when several banks reported receiving fraudulent requests to transfer money after their customers denied having sent the requests.

II. TESTIMONY BY EXPERTS

In Daubert, the Supreme Court ruled that the “general acceptance” standard, articulated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), that an expert’s opinion based on a scientific technique is inadmissible unless the technique is generally accepted as reliable in the relevant scientific community, had been superseded by Federal Rule of Evidence 702 [hereinafter Fed.R.Evid.]. Daubert, — U.S. at-, 113 S.Ct. at 2793. Federal Rule of Evidence 702 focuses on the admissibility of three categories of expert testimony that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” The three categories are “scientific, technical, or other specialized knowledge.”

a. Scientific Knowledge

We note that both Frye and Daubert dealt with “scientific knowledge.” Justice Blaekmun, writing for the majority, began his analysis in Daubert by noting that “[i]n the 70 years since its formulation in the Frye case, the ‘general acceptance’ test has been the dominant standard for determining the admissibility of novel scientific evidence at trial.” Daubert, — U.S. at-, 113 S.Ct. at 2792 (emphasis added). He then construed Fed.R.Evid. 702 as replacing the Frye standard and requiring trial judges to make the following twofold inquiry when “faced with a proffer of expert scientific testimony: ” (1) whether the expert is proposing to testify to “scientific knowledge” and (2) whether such testimony will assist the trier of fact. Id. at-, 113 S.Ct. at 2796 (emphasis added). In determining whether the testimony is “scientific knowledge,” Justice Blackmun made some “general observations” by providing several factors for the trial judge to consider during his inquiry. We [732]*732need not discuss these factors in order to decide this case.1

We need only note that nothing in Justice Blackmun’s opinion indicates that it was intended to reach past the “scientific knowledge” part of Fed.R.Evid. 702 to include “technical” and “other specialized knowledge” as well. In fact, Chief Justice Rehnquist raised this question in his separate opinion when he asked, “Does all of this dicta [also] apply to an expert seeking to testify on the basis of ‘technical or other specialized knowledge’—the other types of expert knowledge to which Rule 702 applies—or are the ‘general observations’ limited only to ‘scientific knowledge’?” Id. at -, 113 S.Ct. at 2800 (emphasis in original). His question was answered in the negative by Justice Blackmun: “Rule 702 also applies to ‘technical, or other specialized knowledge.’ Our discussion is limited to the scientific context because that is the nature of the expertise offered here.” Id. at-n. 8,113 S.Ct. at 2795 n. 8. The Second Circuit has also clearly expressed its judicial view that Daubert is limited to the “scientific knowledge” prong of Fed.R.Evid. 702. See Iacobelli Construction v. County of Monroe, 32 F.3d 19, 25 (2d Cir.1994) and Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir.1993). We agree that Daubert was never intended to apply to any knowledge other than “scientific knowledge.”

b. Handwriting Analysis

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Related

United States v. Elmore
56 M.J. 533 (Navy-Marine Corps Court of Criminal Appeals, 2001)
United States v. Ruth
46 M.J. 1 (Court of Appeals for the Armed Forces, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 730, 1995 CCA LEXIS 186, 1995 WL 450976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ruth-acca-1995.