United States v. Rutland

• Court: Court of Appeals for the Third Circuit
• Decided: June 23, 2004
• Docket: 03-3915
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

6-23-2004

USA v. Rutland Precedential or Non-Precedential: Precedential

Docket No. 03-3915

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Recommended Citation "USA v. Rutland" (2004). 2004 Decisions. Paper 540. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/540

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL George S. Leone Office of United States Attorney UNITED STATES 970 Broad Street, Room 700 COURT OF APPEALS Newark, NJ 07102 FOR THE THIRD CIRCUIT ____________ Glenn J. Moramarco (Argued) Office of United States Attorney No. 03-3915 Camden Federal Building & Courthouse ____________ 401 Market Street, 4 th Floor P.O. Box 2098 UNITED STATES OF AMERICA Camden, NJ 08101 Attorneys for Appellee v. ____________

CHRIS RUTLAND OPINION OF THE COURT ____________ Christopher H. Rutland, FISHER, Circuit Judge. Appellant Defendant Christopher H. Rutland ____________ appeals from his judgment of sentence, arguing that it was unfairly prejudicial to On Appeal from the allow the government’s exceptionally- United States District Court qualified handwriting expert to testify to for the District of New Jersey the ultimate issue of authorship of key (D.C. No. 02-cr-00494-01) documents. The Advisory Committee District Judge: Note to Rule 403 of the Federal Rules of Honorable Dickinson R. Debevoise Evidence states, unfair prejudice “means ____________ an undue tendency to suggest decision on an improper basis, commonly, though not Argued: March 29, 2004 necessarily, an emotional one.” It is not unfairly prejudicial to allow an expert to Before: ALITO, FISHER testify to the ultimate issue. Jurors may and ALDISERT, Circuit Judges. properly take an expert’s impressive experience and credentials into account (Filed : June 23, 2004) when determining the weight of the expert’s testimony. Therefore, we will Kenneth W. Kayser (Argued) affirm the decision of the district court. P.O. Box 2087 I. Background Livingston, NJ 07039 Attorney for Appellant Rutland was a financial advisor with Citicorp Financial Services when he met Helen Constans, an elderly widow, in 1990. Constans trusted Rutland to invest forging checks drawn on Constans’ her money, and Rutland had access to account made payable to Rutland or Constans’ financial information, including Grams. the numbers and locations of her bank Rutland and Grams were each accounts as well as her social security charged with one count of conspiring to number. Rutland later prepared Constans’ obtain money and property through a tax returns. fraudulent scheme, in violation of 18 Constans wa s eve ntually U.S.C. § 371. hospitalized, and later placed in a long- The district court held a Daubert 1 term care facility in September of 1995. hearing to determine the qualifications of Her niece, Dorothy McCosh, attempted to both the government’s handwriting expert locate and sort Constans’ financial and the defendants’ expert, a critic of the documents. McCosh found an annuity field of handwriting analysis. The district statement that listed Barbara Grams as the court found that both experts were annuitant. McCosh did not know anyone sufficiently qualified to testify at trial as by the name of Grams. Because McCosh expert witnesses. knew that Rutland had been Constans’ financial advisor, McCosh twice contacted Prior to trial, Rutland filed a motion Rutland. Although Rutland and Grams in limine to prevent the government’s had been dating since 1987, Rutland handwriting expert from opining regarding claimed each time that he did not know the authenticity of Constans’ signature on Grams, and that the annuity statement that the documents completed by Rutland and listed Grams as the annuitant must have Grams. The district court denied the been a clerical error. motion. Rutland and Grams defrauded At trial, the government’s Constans of more than $637,000. They handwriting expert testified regarding his bought luxury automobiles, built a home in extensive qualifications and impressive Arizona, and took vacations in Europe, past experience.2 Then, he explained Las Vegas, Florida, and the Carribean with Constans’ money. They perpetrated the 1 fraud by forging Constans’ signature on Daubert v. M e rrell D ow multiple financial forms, including: Pharmaceuticals, Inc., 509 U.S. 579 change of address forms changing (1993). Constans’ address to Rutland’s or Grams’ 2 The government’s handwriting address; change of ownership forms expert, Gus Lesnevich, testified that he transferring ownership of Constans’ had been employed as a forensic document financial accounts to Rutland or Grams; examiner, or a handwriting expert, for documents to open accounts naming approximately 34 years. He began Grams as a joint owner with Constans; and working in this field while serving in the

2 background information and techniques jury with tools to reach their own used in handwriting analysis to provide the conclusions about the authenticity of the contested signatures. Ultimately, the expert applied his knowledge and opined that the signatures were forgeries. United States Army, and worked under the direct supervision of senior document The defense expert attacked the examiners. He completed a two-year general reliability of handwriting analysis. Department of Defense program, and was The jury convicted Rutland and certified as an examiner of questioned Grams. The district court sentenced documents. Rutland to 51 months imprisonment and After leaving the Army and briefly ordered him to make restitution of $553, working in private practice, Lesnevich was 867. This timely appeal followed. recruited by the Secret Service. He became the senior document examiner for II. Discussion the Secret Service. He eventually left the The issue before this court is Secret Service, and has been employed in narrow – whether expert opinion testimony the private sector since 1981. He had should reach the ultimate issue when the testified as an expert for approximately 32 expert has exceptionally impressive years in approximately 500 criminal and credentials. Rutland argues that in light of civil cases. the expert’s credentials and experience in Lesnevich is a member of several high-profile cases, “the probative value of professional associations and is certified his opinion on authorship was substantially by the Department of Defense and the outweighed by the danger that the jury American Board of Forensic Document would accept his opinion based on his Examiners. Lesnevich has analyzed extraordinary experience rather than on his documents for the governments of the underlying analysis... .” Rutland contends United States, South Korea, South that when the district court permitted the Vietnam, Australia, New Zealand, Great expert to opine that the contested Britain, and France. During Rutland’s signatures were not signed by Constans, trial, Lesnevich testified about some of the the probative value of the testimony was prominent parties involved in cases he substantially outweighed by prejudice to worked on as a handwriting expert: the the defendant. Iran-Contra Affair, Oliver North, Richard Secord, Caspar Weinberger, Michael The district court had subject matter Milken, Leona Helmsley, Imelda Marcos, jurisdiction pursuant to 18 U.S.C. § 3231. the office of Kenneth Starr, and organized We have jurisdiction of this timely appeal crime cases. pursuant to 28 U.S.C. § 1291. Our Lesnevich has testified in both civil applicable standard of review for and criminal cases, for prosecutors as well evidentiary rulings is abuse of discretion. as defense attorneys.

3 Kumho Tire Co. v. Carmichael, 526 U.S. of this risk, the judge in weighing 137, 152-53 (1999); United States v. possible prejudice against probative Velasquez, 64 F.3d 844, 847-48 (3d Cir. force under Rule 403 of the present 1995). rules exercises more control over experts than over lay witnesses.” A witness may testify as an expert if (1) the proffered witness is actually an Daubert, 509 U.S. at 595 (citations expert; (2) the expert testifies to scientific, omitted). technical, or specialized knowledge; and The probative value of expert (3) the expert's testimony assists the trier testimony substantially outweighing the of fact. Fed. R. Evid. 702; Velasquez, 64 danger of unfair prejudice, confusion of F.3d at 849. Additionally, testimony “in issues, or misleading the jury has been the form of an opinion or inference discussed in the context of the substance otherwise admissible is not objectionable of testimony. See generally, In re Paoli because it embraces an ultimate issue to be R.R. Yard PCB Litigation, 113 F.3d 444 decided by the trier of fact.” Fed. R. Evid. (3d Cir. 1997); Soldo v. Sandoz 704(a). In Velasquez, we determined that Pharmaceuticals Corp., 244 F. Supp. 2d handwriting analysis qualifies as scientific, 434 (W.D. Pa. 2003); United States v. technical, or specialized knowledge. Nguyen, 793 F. Supp. 497 (D.N.J. 1992). Velasquez, 64 F.3d at 850-51. A The probative value of expert testimony handwriting expert may testify to the substantially outweighing the danger of ultimate issue in a case. Fed. R. Evid. unfair prejudice has not been addressed in 704(a). the context of the qualifications and Daubert states that many factors credentials of the expert, and Rule 403 has must be considered when admitting expert not been applied to limit an expert’s testimony: testimony based solely upon the expert’s highly impressive credentials. [A] judge assessing a proffer of expert scientific testimony under Rutland suggests that juries accept Rule 702 should also be mindful of expert opinions based upon the strength of other applicable rules. ... Rule 403 the experts’ experience rather than on the permits the exclusion of relevant quality of analysis. He contends that the evidence “if its probative value is probative value of the exceptionally well- substantially outweighed by the qualified expert’s testimony is outweighed danger of unfair prejudice, by unfair prejudice caused solely by his confusion of the issues, or stellar qualifications. We reject Rutland’s misleading the jury... .”... “Expert novel argument. evidence can be both powerful and The term unfair prejudice “means quite misleading because of the an undue tendency to suggest decision on difficulty in evaluating it. Because an improper basis, commonly, though not

4 necessarily, an emotional one.” United States v. Cross, 308 F.3d 308, 324 n.23 (3d Cir. 2002), quoting Advisory Committee Note to Rule 403. An expert’s experience and credentials are properly taken into account by jurors when determining how much weight to give the expert’s testimony. Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 782 (3d Cir. 1996). The past experience of expert witnesses properly influences the weight the testimony should receive. Velasquez, 64 F.3d at 848. Rutland’s suggestion of limiting an expert from testifying to the ultimate issue if the expert has stellar qualifications leads to an absurd result. Parties would be forced to determine if their proposed experts were overly qualified, and find less qualified experts. Expert opinions, valuable to the trier of fact because they are the opinions of highly skilled and qualified experts, would be provided by less qualified experts. This Court will not limit an expert’s testimony based merely upon the expert’s qualifications. III. Conclusion Unfair prejudice suggests a decision on an improper basis. It is not improper for jurors to consider an expert’s experience and credentials whe n determining the weight of the expert’s testimony. Accordingly, the judgment of the district court will be AFFIRMED.