107 F.3d 1147 (6th Cir. 1997), 95-6096, United States v. Jones

Docket Nº:95-6096.
Citation:107 F.3d 1147
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kathleen Kremser JONES, Defendant-Appellant.
Case Date:March 03, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1147

107 F.3d 1147 (6th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kathleen Kremser JONES, Defendant-Appellant.

No. 95-6096.

United States Court of Appeals, Sixth Circuit.

March 3, 1997

Argued May 24, 1996.

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J. Edgar Schmutzer, Asst. U.S. Attorney (argued and briefed), Knoxville, TN, for plaintiff-appellee.

Elizabeth B. Ford, Asst. Federal Public Defender (briefed), Leah J. Prewitt (argued), Knoxville, TN, for defendant-appellant.

Before: KRUPANSKY, DAUGHTREY, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KRUPANSKY, J. (pp. 1165-71), delivered a separate opinion concurring in part and dissenting in part.

MOORE, Circuit Judge.

Appellant Kathleen Jones appeals her numerous criminal convictions, all of which stemmed from her involvement in credit card fraud. In addition, she also appeals her sentence

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imposed by the district court. She contends that the district court erred in two of its evidentiary rulings relating to documents that purportedly contained her signature, and that it erred by enhancing her sentence based on time she spent in home detention. We conclude that the district court did not err in its evidentiary rulings, and thus affirm her convictions in all respects, but we reverse the enhancement of her sentence based on her time spent in home detention and remand for resentencing.

I. BACKGROUND

Appellant Kathleen Jones stole a credit card application from the mailbox of her son-in-law's aunt and uncle, fraudulently applied for the credit card under their names, and made twenty charges on the credit card between July 8, 1991, and July 21, 1991, for ATM withdrawals and hotel visits. The total amount charged on the credit card was $3,748.08. J.A. at 110. Jones was convicted of one count of mail fraud, in violation of 18 U.S.C. § 1341; two counts of using a fictitious or false name in order to carry on a scheme to defraud by mail, in violation of 18 U.S.C. § 1342; one count of using an unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2); one count of possessing stolen mail, in violation of 18 U.S.C. § 1708; and one count of obstruction of correspondence, in violation of 18 U.S.C. § 1702. J.A. at 30-31.

One of the government's primary arguments at trial was that Jones's signature was on: (1) the credit card application; (2) a post-office box registration form for the post-office box to which the card was sent; and (3) two Howard Johnson's motel registration forms, which contained the fraudulently procured Visa number at issue. To prove that these items contained Jones's signature, Grant Sperry, a forensic document analyst for the United States Postal Service, testified as an expert witness for the government. He compared the three signatures at issue with documents purportedly written by Jones and concluded that her signature was on all of the documents. The parties stipulated to the admissibility of two of the writings used by Sperry, Government Exhibit 11, known business writings of defendant, and Government Exhibit 12, handwriting exemplars obtained by postal inspectors. The defendant, however, refused to stipulate to the admissibility of a third document used by Sperry, a card allegedly sent by Jones to Bruce Cronin, whose son is married to Jones's daughter. The card was admitted into evidence through Cronin, who testified that while he was not familiar with Jones's signature, he knew the card was sent by Jones based on its content.

Appellant contends that the district court erred in admitting the card because Cronin, a lay witness, was not familiar with her signature. She also asserts that Sperry's expert testimony was inadmissible under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), because it was not sufficiently reliable. In addition to appealing her convictions on the various charges, appellant contends that the district court miscalculated her criminal history score under the United States Sentencing Guidelines by counting as a prior "sentence of imprisonment" a sentence she served in home detention pursuant to Tennessee's Community Alternatives to Prison Program ("CAPP"). We first address the district court's evidentiary rulings.

II. AUTHENTICATION THROUGH LAY WITNESS TESTIMONY

Appellant asserts that the district court erred by allowing into evidence the card allegedly written by Jones to Cronin because it had not been properly authenticated. According to her, because Cronin was a non-expert who was unfamiliar with Jones's handwriting, he could not testify regarding the genuineness of the card. Whether a document has been properly authenticated is a preliminary determination to be made by the district court. See United States v. Carriger, 592 F.2d 312, 316 (6th Cir.1979); Fed.R.Evid. 901(a) advisory committee's note. In reviewing a ruling by the district court regarding the authenticity of a document, we will affirm that ruling unless the district court abused its discretion. United States v. Maldonado-Rivera, 922 F.2d 934, 957 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111

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S.Ct. 2811, 115 L.Ed.2d 984 (1991), and cert. denied, 501 U.S. 1233, 111 S.Ct. 2858, 115 L.Ed.2d 1025, 1026 (1991).

Under Federal Rule of Evidence 901(a), "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(b) in turn lists the following examples of authentication or identification conforming with the requirements of this rule:

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

....

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

It is clear that Rule 901(b)(2) does not apply, because Cronin himself admitted that he was not familiar with Jones's handwriting. J.A. at 162. Appellee argues, however, and we are convinced, that Rule 901(b)(4) applies. "[A] document ... may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him...." Fed.R.Evid. 901(b)(4) advisory committee's note. In Maldonado-Rivera, the Second Circuit stated:

In accordance with Rule 901(b)(4), "the contents of a writing may be used to aid in determining the identity of the declarant," United States v. Wilson, 532 F.2d 641, 644 (8th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976), if, for example, the writing "deal[s] with a matter sufficiently obscure or particularly within the knowledge of the persons corresponding so that the contents of the [writing] were not a matter of common knowledge[.]" 5 J. Weinstein & M. Berger, Weinstein's Evidence, p 901(b)(4), at 901-49 (1990).

922 F.2d at 957. See also United States v. Newton, 891 F.2d 944, 947 (1st Cir.1989) (concluding that a document which contained statements "from which it could be inferred that [the defendant] authored the document" was properly authenticated). In the present case, Cronin expressed the opinion that the card was written by Jones because the card was signed "Kathie Jones" and because the card contained references to Cronin's daughter-in-law and granddaughter that no one else could have written. J.A. at 160-61. In light of this testimony, we conclude that the district court did not abuse its discretion by finding that the card allegedly written by Jones to Cronin met the authentication requirements in Rule 901. 1

III. ADMISSIBILITY OF EXPERT TESTIMONY

  1. Standard of Review

    Appellant contends the district court erred by allowing into evidence testimony from the government's expert witness, Grant Sperry, a forensic document analyst. She argues that because handwriting analysis has never been validated as credible scientific or technical knowledge, the district court abused its discretion in determining that the evidence was sufficiently reliable. In particular, she states, "[c]learly Mr. Sperry is not an 'expert' in handwriting analysis, and this type of 'analysis' is not a credible scientific or technical knowledge." Appellant's Br. at 21.

    Federal Rule of Evidence 702 provides the requirements for admissibility of expert testimony:

    If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

    This circuit has traditionally reviewed a district court's ruling regarding the admissibility

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    of expert testimony under Rule 702 for abuse of discretion. See, e.g., American & Foreign Ins. Co. v. General Elec. Co., 45 F.3d 135, 137, 139 (6th Cir.1995); United States v. Bonds, 12 F.3d 540, 554 (6th Cir.1993); United States v. Montgomery, 980 F.2d 388, 391 (6th Cir.1992); United States v. Pearce, 912 F.2d 159, 163 (6th Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 978, 112 L.Ed.2d 1063 (1991); McGowan v. Cooper Indus., Inc., 863 F.2d 1266, 1271 (6th Cir.1988); Hanson v. Parkside Surgery Ctr., 872 F.2d 745, 750 (6th Cir.), cert. denied, 493 U.S. 944, 110 S.Ct. 349, 107 L.Ed.2d 337 (1989); Mannino v. International Mfg. Co., 650 F.2d 846, 849 (6th Cir.1981); see also Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962) ("[T]he trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action...

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