U.S. v. Ferri
| Decision Date | 10 December 1985 |
| Docket Number | 84-3653,I,Nos. 84-3615,No. 84-3615,84-3670 and 84-3671,No. 84-3653,Nos. 84-3670 and 84-3671,J,s. 84-3670 and 84-3671,84-3615,s. 84-3615 |
| Parties | 19 Fed. R. Evid. Serv. 976 UNITED STATES of America, Appellee, v. Francis FERRI, Appellant inohn Regis King, Appellant invan Marra, Appellant in |
| Court | U.S. Court of Appeals — Third Circuit |
George E. Schumacher, Federal Public Defender, James V. Wade (argued), Asst. Federal Public Defender, Pittsburgh, Pa., for appellant F. Ferri.
Edgar M. Snyder, Cynthia M. Danel (argued), Edgar M. Snyder & Associates, P.A., Pittsburgh, Pa., for appellant J. King.
Sally A. Frick (argued), Pittsburgh, Pa., for appellant I. Marra.
J. Alan Johnson, U.S. Atty., Paul J. Brysh (argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellee.
Before SEITZ, BECKER and ROSENN, Circuit Judges.
Francis Ferri, John Regis King, and Ivan Marra appeal sentences imposed after their jury convictions for attempting to damage or destroy a building used in an activity affecting interstate commerce by means of an explosive, 18 U.S.C. Sec. 844(i) (1982), and for conspiring to commit an offense against the United States, 18 U.S.C. Sec. 371 (1982). This court has jurisdiction of their appeals under 28 U.S.C. Sec. 1291 (1982).
At approximately midnight on June 10, 1982, a pedestrian stopped two Pittsburgh police officers and informed them that someone had broken a window in the door of the Buckaroo's Clothing Store ("Buckaroo's"). Upon their arrival at Buckaroo's, the officers noticed that the alarm system was turned off and that all of the broken glass was on the sidewalk outside the shop, indicating that it had been broken from within. The officers then entered the shop, but left immediately when they encountered a strong, sharp odor.
Further investigation by members of the Pittsburgh Fire Department uncovered an arson attempt gone awry. Investigators found fourteen five-gallon plastic containers throughout the store and its basement; all but one had been perforated and were leaking a liquid later identified as a highly flammable mixture of methanol and trichloroethane. They also found a hotplate wrapped in the sleeve of a shirt that had been soaked in the flammable liquid. This calculated effort to destroy Buckaroo's backfired, however, when the arsonists plugged the hotplate into a dead electrical socket. 1
Among the other items found at the scene were two sets of clothing unlike the "Western-wear" sold at Buckaroo's. The first set, found underneath a desk in the rear of the store, included a pair of trousers, four socks, a T-shirt, and a pair of shoes. The second, found in a store dressing room, included a large (fifty-inch waist) pair of trousers and Jockey-style underwear, two socks, a tan cap, and a pair of shoes.
Pittsburgh fire officials then called the Bureau of Alcohol, Tobacco and Firearms ("BATF") into the investigation. A number of search warrants were issued during the course of the BATF investigation, several of which involved defendant King. One authorized the seizure of two pairs of shoes, two English touring caps, one pair of pants, and one pair of Jockey-style underwear with a fifty-inch waist from his residence. Another warrant authorized the seizure of hair and saliva exemplars from King, as well as inked footprints of his left and right feet.
BATF agents also executed two search warrants involving defendant Ferri, one of which authorized the seizure of two pairs of shoes, one pair of pants, and one T-shirt from his residence. In addition, the grand jury subpoenaed Ferri, compelling him to submit his feet and shoes for ink printing.
Eventually, the grand jury returned a two-count indictment naming Francis Ferri, John Regis King, and Ivan Marra as defendants. The first count charged them with conspiring to damage or destroy a building used in an activity affecting interstate commerce by means of an explosive in violation of 18 U.S.C. Secs. 371 and 844(i) (1982); the second count charged them with attempting to damage or destroy a building used in an activity affecting interstate commerce by means of an explosive in violation of 18 U.S.C. Secs. 2 and 844(i) (1982).
A trial was held in the district court, after which the jury returned a guilty verdict against all three defendants on both counts of the indictment. The district court then sentenced the defendants. King received consecutive prison terms of five years on both counts. Marra received consecutive prison terms of five years on the first count and ten years on the second count. Ferri, who was sentenced as a dangerous special offender pursuant to 18 U.S.C. Sec. 3575 (1982), received consecutive terms of five years on the first count and twenty years on the second count; ten years of the latter sentence represents the section 3575 "enhancement." This appeal followed.
Defendants raise numerous objections to their convictions. We first address those based on alleged violations of the Federal Rules of Evidence and the Fourth, Fifth, and Sixth Amendments to the United States Constitution.
At trial, the government introduced into evidence the expert testimony of Dr. Louise Robbins, a physical anthropologist and professor at the University of North Carolina, Greensboro. She compared the impressions inside the shoes found at Buckaroo's with those inside the shoes seized from King's and Ferri's residences, and with their inked footprints. On the basis of these comparisons, Dr. Robbins testified that the shoes found at Buckaroo's belonged to the two defendants.
King and Ferri assert that the district court erred when it admitted this testimony. The crux of their objection is that Dr. Robbins did not testify in conformity with a "generally accepted explanatory theory." See, e.g., United States v. Brown, 557 F.2d 541, 556 (6th Cir.1977); Frye v. United States, 293 Fed. 1013 (D.C.Cir.1923). We review "district court decisions to admit or exclude novel scientific evidence by an abuse of discretion standard." United States v. Downing, 753 F.2d 1224, 1240 (3d Cir.1985) (footnote omitted); cf. Fuentes v. Reilly, 590 F.2d 509, 511 (3d Cir.1979) ().
This court first had occasion to consider the requirements to be placed upon the introduction of "novel" expert testimony in Downing. In that case, we expressly rejected the approach adopted in Brown and Frye, and held that "general acceptance" in the particular field to which a scientific technique belongs "should be rejected as an independent controlling standard of admissibility." Downing, 753 F.2d at 1237. In other words, "a particular degree of acceptance of a scientific technique within the scientific community is neither a necessary nor a sufficient condition for admissibility." Id. Instead, we adopted a two-part test for determining the admissibility of such evidence: first, the district court must make a preliminary inquiry into "the soundness and reliability of the process or technique used to generate the evidence," id.; and second, it must balance "its assessment of the reliability of [the] novel scientific technique against the danger that the evidence, even though reliable, might nonetheless confuse or mislead the finder of fact," id. at 1240.
Unfortunately, we rendered our decision in Downing approximately six months after the trial in this case. As a result, the district court could not benefit from the analytical approach developed therein when determining whether to admit or exclude Dr. Robbins' testimony. After a review of the record, however, we find that the procedure employed by the district court was substantially consistent with that formulated in Downing.
Before permitting Dr. Robbins to testify, the district court held a lengthy hearing outside the presence of the jury on the admissibility of her testimony. This hearing inquired into a number of the factors we found relevant in Downing for determining the reliability of "novel" scientific evidence. 2
First, the hearing inquired into Dr. Robbins' "qualifications and professional stature ... and the non-judicial uses to which the scientific technique are [sic] put." Downing, 753 F.2d at 1239. This included testimony concerning her educational background; her present and prior academic appointments; her employment as a consultant in forensic science, including footprint identification; and her membership and participation in various professional organizations. It also included testimony about the uses to which similar footprint measurements have been put by the running shoe industry and the United States Armed Forces.
Second, the hearing inquired into "the 'novelty' of the new technique, that is, its relationship to more established modes of scientific analysis." Downing, 753 F.2d at 1238. Dr. Robbins made a detailed presentation before the district court, using charts, slides, and so forth, highlighting the manner in which she examines unknown footprints to determine if they were made by a particular individual. This presentation illustrated the specific measurements that she makes when examining a footprint, and it demonstrated that she has, where applicable, incorporated measurements employed by other scientists in prior investigations of feet and footprints. The presentation also highlighted the extent of Dr. Robbins' independent research with footprints, and the extent to which she has simply adapted the generally established measurement techniques of forensic or physical anthropology to the problem of footprint identification. Cf. People v....
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