United States v. Tavares, 120116 FED1, 14-2319

Docket Nº:14-2319
Opinion Judge:KAYATTA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. VERISSIMO TAVARES, Defendant, Appellee.
Attorney: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.
Judge Panel:Before Thompson, Selya and Kayatta, Circuit Judges.
Case Date:December 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the First Circuit



VERISSIMO TAVARES, Defendant, Appellee.

No. 14-2319

United States Court of Appeals, First Circuit

December 1, 2016


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.


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.


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,...

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