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United States v. Tavares

United States Court of Appeals, First Circuit

December 1, 2016

VERISSIMO TAVARES, Defendant, Appellee.


          Judith H. Mizner, Assistant Federal Public Defender, with whom Federal Public Defender Office was on brief, for appellant.

          Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

          Before Thompson, Selya and Kayatta, Circuit Judges.

          KAYATTA, Circuit Judge.

         Convicted of being a felon in possession of a firearm, Verissimo Tavares appeals both the conviction and his sentence. He claims that the district court erred in admitting improper and prejudicial expert testimony concerning the absence of fingerprints on the gun that the jury found Tavares to have possessed. He also claims that the district court erred in its guideline sentencing calculations by treating his convictions for resisting arrest and assault and battery with a dangerous weapon as "crime[s] of violence." For the following reasons, we affirm the conviction but remand for reconsideration of the sentence.

         I. BACKGROUND

         Before dawn on August 4, 2013, two Boston police officers responded to a dispatch about a disturbance in a Boston neighborhood. As the officers dispersed the crowd, they heard gunshots emanating from the next street; when they went to investigate the source, they caught sight of a figure, subsequently revealed to be Tavares, riding away on a motor scooter. A chase ensued.

         One of the pursuing police officers testified that he saw an object in Tavares's hands. Another testified that he saw Tavares throw an object into the yard of a nearby dwelling at 71 Clarkson Street. The chase ended when the police took Tavares into custody. Searching for the hurled object, one of the officers discovered a silver handgun in the yard of 71 Clarkson Street. Detectives were summoned to examine the firearm. They determined that the handgun was a semiautomatic firearm, loaded with five rounds of ammunition.

         A federal grand jury charged Tavares as a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He maintained his innocence, and the case went to trial. During the government's case in chief, several police officers testified about the chase, the arrest, and the retrieval of the firearm. The government also presented the testimony of Richard Auclair, a fingerprint expert who held the position of Criminalist II in the Latent Print Unit (the Unit) at the Boston Police Department. The defense rested without presenting any evidence. The jury found Tavares guilty.

         In anticipation of sentencing, the probation department prepared a presentence investigation report (the PSR). The Report recommended that the district court apply a four-level career offender enhancement under the sentencing guidelines, see U.S.S.G. § 2K2.1(a)(2), based on a conclusion that Tavares's prior Massachusetts convictions for resisting arrest, see Mass. Gen. Laws ch. 268, § 32B(a), and for assault and battery with a dangerous weapon (ABDW), see id. ch. 265, § 15A(b), were both "crime[s] of violence." Tavares objected to the classification of his putative predicate offenses as crimes of violence under the residual clause of the sentencing guidelines' career offender provision. See U.S.S.G. § 4B1.2(a)(2) (Nov. 2014 ed.); id. at § 2K2.1(a)(2), cmt. n.1. Relying on our decisions in United States v. Glover, 558 F.3d 71, 80-81 (1st Cir. 2009), and United States v. Almenas, 553 F.3d 27, 33-34 (1st Cir. 2009), the district court overruled this objection. In so doing, the district court deemed both prior convictions to be for crimes of violence under the residual clause. The career offender enhancement, coupled with other adjustments not now in issue, yielded an advisory guideline range of 120-150 months, necessarily capped at 120 months by the ten year maximum applicable to the statute of conviction. See 18 U.S.C. § 924(a)(2). Using the advisory guideline range as a "place to start" and mulling the factors enumerated in 18 U.S.C. § 3553(a), the court imposed an 84-month prison term. This timely appeal followed.

         II. ANALYSIS

         Challenging his conviction, Tavares argues that the district court erred, to his prejudice, by admitting over his objection a portion of Auclair's expert testimony. Alternatively, he argues that the district court erred in calculating his guideline sentencing range by counting his prior convictions as convictions for crimes of violence. We address each argument in turn.

          A. Expert Testimony

         The principal issue at trial was whether Tavares had possessed the gun that the police found in the yard at 71 Clarkson Street. Mainly through cross-examination and argument, Tavares sought to show that the government had not proved his possession of the weapon beyond a reasonable doubt. To bolster this claim, he suggested (among other things) that the police officers' testimony about his involvement with the weapon was inconsistent; that the weapon, when found, did not bear his fingerprints and, thus, had not been in his hands; and that the police had rushed to judgment. The government countered, in part, by presenting Auclair's testimony.

         After being duly qualified as a criminalist, Auclair testified about the significance of the fact that the examination of the gun by the police laboratory revealed only a very partial print that was itself insufficient to implicate or exclude Tavares. Auclair delineated the factors that affect recovery of usable prints (including the quality of ridge skin, the texture of the surface involved, the nature of print deposition, the treatment of the surface after print deposition, and environmental conditions).[1]After explaining the procedures used by the Unit to preserve prints, Auclair testified that the firearm removed from the yard at 71 Clarkson Street did not reveal any usable prints.

         So far, so good. During direct examination, however, the prosecutor asked Auclair about the percentage of cases in which usable prints were recovered from examined firearms, that is, what percentage of examined guns were found to contain fingerprints with sufficient ridge detail to allow the authorities to make an identification. Over the defendant's objection, the court allowed Auclair to opine, based primarily on the Unit's experience over a period of nearly nine years, that usable prints had been recovered from approximately 16% of firearms examined. Under cross-examination, Auclair explained that his opinion derived in part from a compilation of the Unit's fingerprint analyses completed by an intern: we say "completed" because the Unit regularly kept such data on a series of spreadsheets, and the intern had simply updated those data and tabulated them. Auclair could not say, however, either what procedures were used in the process of compilation or what oversight of the intern was provided by Unit staff. He could opine, however, that the 16% figure was generally consistent with his own personal experience in examining hundreds of guns. After cross-examination, Tavares moved to strike Auclair's opinion. The court denied his motion.

         On appeal, Tavares challenges the court's rulings admitting and refusing to strike this portion of Auclair's testimony. Specifically, Tavares argues, first, that the testimony lacked a proper foundation; and second, that the testimony was both not relevant and unfairly prejudicial.

         We review a trial court's decision to admit or exclude evidence for abuse of discretion. See United States v. Pires, 642 F.3d 1, 10 (1st Cir. 2011); United States v. Stierhoff, 549 F.3d 19, 27 (1st Cir. 2008). In carrying out this task, we afford "broad deference to the determination made by the district court as to the reliability and relevance of expert testimony." Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006). Absent a material error of law, we will not upset such a determination unless it appears that the district court "committed a meaningful error in judgment." Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 83 (1st Cir. 1998) (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)).

         Against this backdrop, we turn first to Tavares's argument that the challenged testimony lacked a sufficient foundation. The touchstone for the admission of expert testimony in federal court litigation is Federal Rule of Evidence 702. The rule provides in relevant part that, as a precursor to giving expert testimony, an expert must be "qualified . . . by knowledge, skill, experience, training, or education" and must possess specialized knowledge that "will help the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. The rule further demands that such opinion testimony rest on "sufficient facts or data." Id.

         These requirements obligate a trial court to act as a gatekeeper in order to ensure, as a condition of admissibility, that proffered expert testimony rests on a sufficiently trustworthy foundation. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). Where, as here, the factual basis of an expert's testimony is called into question, the district court must determine whether the testimony has "a reliable basis" in light of the knowledge and experience of the relevant discipline. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999) (quoting Daubert, 509 U.S. at 592). We, in turn, review such determinations for abuse of discretion. See id. at 142.

         Tavares does not question Auclair's credentials as a fingerprint expert. Nor could he: Auclair earned a master's degree in forensics, underwent additional training upon joining the Unit, worked in the field for several years, and passed a series of annual proficiency tests.

         Expert testimony, however, can for the most part be no better than the information provided to the expert. That principle is summed up in the familiar phrase "garbage in, garbage out." Tavares says that, whatever Auclair's qualifications, he lacked a sufficiently reliable basis for offering an opinion about the rate at which usable fingerprints appear on examined firearms.

         This aspect of Tavares's challenge focuses on the alleged inadequacies of the compilation of data upon which Auclair drew in reaching his opinion about the 16% rate of usable prints recovered from examined firearms. The last step in that compilation was taken by an intern (not working under Auclair's supervision), and Auclair did not profess to know what procedures the intern had followed in compiling and tabulating the data.

         Although Auclair was not aware of the specific procedures used to compile and tabulate the data that went into the intern's report, he made clear that the report was neither an ad hoc nor an informal production. Rather, the report was the latest iteration in ordinary course of a type of statistical compilation that the Unit had periodically produced on earlier occasions. These past reports were kept by the Unit in the ordinary course of its operations and were based on data that the Unit had collected and maintained in spreadsheets over a number of years. These spreadsheets had been prepared by Unit staff (including individuals with responsibility for technical information within the Unit). The district court did not abuse its discretion in finding that Auclair, given his position and expertise, was entitled to rely on these spreadsheets. See United States v. Corey, 207 F.3d 84, 89 (1st Cir. 2000) (approving expert's reliance on "materials maintained at ATF 'research libraries, ' which contained information on approximately five thousand different firearms"); cf. United States v. Smith, 566 F.3d 410, 412 (4th Cir. 2009) (upholding admission of ATF agent's testimony that relied on "an ATF computerized database that had been compiled 'over many, many years as agents have done this practice'" in response to a challenge under the best evidence rule); Clausen v. M/V New Carissa, 339 F.3d 1049, 1059-61 (9th Cir. 2003) (upholding expert testimony that relied on history and reports created by others, even where there was no supported peer-reviewed literature). The intern's report merely updated these spreadsheets and tabulated the results, and it was within the court's discretion to find that Auclair could reasonably rely on that report as well.

         What is more, Auclair testified that the percentage identified in the report for the Unit as a whole was "generally consistent" with his own long experience and that the scientific publications he had consulted did not affect this assessment. This testimony provided a basis for concluding that the department's report was materially reliable. It also provided an independent basis for the basic point being made: it was by no means unusual to find no usable prints on a gun. On that point, it could have hardly made any difference whether the percentage of guns found to have usable prints was exactly 16% or "generally" 16%. All in all, we think that it was within the district court's discretion to accept Auclair's determination that the updated Unit statistics were reliable.

         We likewise reject the defendant's related argument that Auclair's testimony lacked a proper foundation because he had not performed or supervised the work that produced the compilation. An expert may rely on information not itself admitted into evidence when forming an opinion. See Jones ex rel. United States v. Mass. Gen. Hosp., 780 F.3d 479, 494 n.8 (1st Cir. 2015). So, too, an expert may rely on information that is not independently admissible. See Corey, 207 F.3d at 89. Nor is there any requirement that the information relied on by an expert must have been compiled by him or under his supervision. See Crowe v. Marchand, 506 F.3d 13, 18 (1st Cir. 2007). And though "the entirety of [an expert's] testimony cannot be the mere repetition of 'the out-of-court statements of others, '" United States v. Luna, 649 F.3d 91, 105 (1st Cir. 2011) (quoting United States v. Cormier, 468 F.3d 63, 73 (1st Cir. 2006)), that was not the case here: Auclair's reliance on the compilation represented only a small fraction of his testimony on the subject of unusable prints and was corroborated by his familiarity with past calculations by the Unit and his own experience.

         Tavares's embrace of our decision in United States v. Giambro, 544 F.3d 26 (1st Cir. 2008), does not advance his cause. There, the trial court found that the basis for the expert's testimony was "purely anecdotal, " and was otherwise unreliable. Id. at 33. Our affirmance of that finding as not an abuse of discretion simply does not mean that it was an abuse of discretion to admit Auclair's testimony that rested in its material force on several independent, non-anecdotal grounds.

         To say more on this point would be to paint the lily. In the circumstances here, we think that any question about the factual underpinnings of Auclair's opinion goes to its weight, not to its admissibility. See Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 22 (1st Cir. 2011). So, too, deciding whether the data were of a type that Auclair could reasonably rely upon under Federal Rule of Civil Procedure 703 was well within the trial court's discretion. See Corey, 207 F.3d at 92.

         The defendant's challenge to the relevance of Auclair's testimony is equally unavailing. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed.R.Evid. 401. In this instance, we think that evidence reflecting the overall rate at which usable fingerprints are recovered from firearms was plainly relevant and likely helpful to the jury in determining what significance, if any, should be accorded to the absence of fingerprints on the firearm found at 71 Clarkson Street. Surely, such evidence had a tendency to make a fact of consequence more probable: it suggested that the absence of usable prints did not mean, ipso facto, that the weapon was never in the defendant's hands, or that the police work was shoddy. See, e.g., United States v. Burdeau, 168 F.3d 352, 356-57 (9th Cir. 1999). Seen in this light, the evidence "assisted the jury in understanding that . . . certain objects are not particularly conducive to finding prints." United States v. Glover, 479 F.3d 511, 518 (7th Cir. 2007). Absent Auclair's testimony, "the jury may not have understood how [the defendant] could have possessed the weapon without leaving prints." Id.

         In an effort to deflect the force of this reasoning, Tavares points out that the 16% figure did not distinguish between firearms that were subjected to the so-called "fuming" process before they were sent to the lab (like the firearm in this case) and those that were not.[2] This omission, Tavares submits, rendered the testimony too general to be relevant.

         This argument is futile. There is simply no requirement that statistics must in all instances separately account for every potentially significant variable in order even to be relevant. See Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 468-69 (8th Cir. 2004). That is true of the "fuming" variable here. The defendant had the right--which he exercised--to cross-examine Auclair about the chances that the recovery percentage might differ materially in cases in which fuming was performed earlier. No more was exigible: after all, district courts have "broad latitude . . . with respect to the determination of the admissibility of expert testimony, " Crowe, 506 F.3d at 18--and the limits of that broad discretion were not exceeded here.

         Tavares has a fallback position. He contends that the challenged testimony, even if relevant, ought to have been excluded under Federal Rule of Evidence 403. Rule 403 provides, in pertinent part, that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, " or the like. Fed.R.Evid. 403. The rule is addressed to the district court's informed discretion and its due administration recognizes that "[t]his balancing is best performed by the trial judge, who has an intimate familiarity with the ebb and flow of the case and with its nuances." United Statesv.Raymond, 697 F.3d 32, 38 (1st Cir. 2012). "[O]nly rarely--and in extraordinarily compelling circumstances--will we, from the vista of a cold appellate record, reverse a district ...

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