FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
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
Thompson, Selya and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
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.
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
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.
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.
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.
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
A. Expert Testimony
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
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).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 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.
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.
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)).
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.
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
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.
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.
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.
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.
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.
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.
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
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
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.
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. This omission, Tavares
submits, rendered the testimony too general to be relevant.
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.
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 ...