U.S. v. Baines

• Decision Date: 20 July 2009
• Docket Number: No. 08-2098.,08-2098.
• Citation: 573 F.3d 979
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Abdul BAINES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

573 F.3d 979

UNITED STATES of America, Plaintiff-Appellee, v. Robert Abdul BAINES, Defendant-Appellant.

No. 08-2098.

United States Court of Appeals, Tenth Circuit.

July 20, 2009.

Terri J. Abernathy, Assistant United States Attorney, (Gregory J. Fouratt, United States Attorney, with her on the brief), Las Cruces, NM, for Plaintiff-Appellee.

Zachary A. Ives, Freedman Boyd Hollander Goldberg & Ives P.A. (Molly Schmidt-Nowara, with him on the briefs), Albuquerque, NM, for Defendant-Appellant.

Before McCONNELL, HOLLOWAY, and BALDOCK, Circuit Judges.

HOLLOWAY, Circuit Judge.

After a jury trial in federal district court, defendant-appellant Robert Abdul Baines was convicted on five counts: conspiracy to possess marijuana with intent to distribute; possession of marijuana with intent to distribute; possessing a firearm in furtherance of a drug trafficking crime; possession of a firearm after former conviction of a felony; and possession of ammunition after former conviction of a felony. He was sentenced to a total of 123 months of imprisonment to be followed by three years of supervised release, and he was ordered to pay immediately a special fee assessment of five hundred dollars.

We have jurisdiction under 28 U.S.C. § 1291. Concluding that the district court did not abuse its discretion in allowing the government to present expert evidence that a thumb print found on some of the contraband recovered by the authorities was a match to Baines' print, we affirm the judgment of the district court.

I

Because the sole issue Baines raises in this appeal is the admissibility at trial of fingerprint analysis as expert testimony, a brief overview of the facts underlying the convictions, as established in the trial testimony, will suffice to provide context for our discussion.

Baines recruited two young women to travel with him and two male friends from Pennsylvania to Arizona, offering the women $1,000 each for the trip. Both young women testified at trial that they realized that the purpose of the trip was to transport drugs, although Baines did not tell them any details. At one point during the trip Baines said he was "in the business," which they understood to be a reference to drug trafficking. The travelers used two rented vehicles for the trip, a "tannish" Ford sedan and a minivan. The two women and Baines were in the Ford for the trip to Arizona, with the women taking turns driving, while the other two men were in the minivan.

Upon arriving in Phoenix, the group spent the night in a motel and went shopping for awhile the next day. Baines contacted someone he referred to as "Felix," and had one of the young women take down directions to a place where they would meet with Felix in Tucson. After the group spent part of the day at a place the women assumed to be the residence of Felix, the three men left in the Ford. Upon their return, the young women were told to get ready for the return to Pennsylvania. They were both seated in the Ford when they saw Baines approach carrying a blue bag. The woman in the driver's seat unlatched the trunk, and both could feel things being put in the trunk and moved around, though neither of them saw what was happening with the trunk lid open. For their return journey, Baines chose to ride in the minivan, leaving the two women as the only occupants in the Ford.

Baines had told the two young women to plan a route for their trip back to Pennsylvania. One of them decided that they should go through Texas rather than return the way that they had come. That decision proved fateful because this route took them through Las Cruces, New Mexico, and near there they unexpectedly entered a border checkpoint.

When the trunk of the Ford was opened at the border checkpoint, the agent immediately noticed the scent of fresh marijuana. The car was taken to the secondary inspection area, where a dog trained to detect illegal drugs alerted to the trunk. One of the agents had asked one of the women about the van that was behind them at the checkpoint and learned that the two vehicles were traveling together. One of the occupants of the van confirmed that fact. Accordingly, the van and its three occupants were also directed to the secondary inspection center. Officers found packages of marijuana in each of three bags, two laundry bags and a black duffle bag, and the black duffle bag also contained two pistols and ammunition. The two women were arrested.

When it appeared that the men were going to be released, one of the young women decided to tell the officers about defendant's role in arranging the trip and his apparent role in acquiring and loading the marijuana. Both women also told the agents that during the trip defendant had said that he was "in the business."

With the testimony of the two young women and other evidence, such as records of calls made from cell phones, the jury was persuaded to convict Mr. Baines of the drug counts. But neither of the women had seen Mr. Baines with the black duffle bag in which the guns and ammunition were found, and the officers had received information that another one of the men owned a bag of that description. So the government relied on fingerprint evidence to connect Baines with the guns and ammunition.

Two fingerprints were discovered on one of the magazines found with the two pistols in the black duffle bag. Defendant filed a motion before trial to bar the government from presenting evidence that a fingerprint specialist had determined that one of the recovered "latent" prints matched the "known" fingerprint of defendant Baines. (See infra for an explanation of the two terms in quotation marks.) Defendant's motion invoked Rules 104(a) and 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendant requested a pretrial hearing on the admissibility of the government's expert testimony, and the district court granted the request.

II

A

Two witnesses testified at the pretrial hearing on defendant's motion to exclude the fingerprint evidence, Mr. Fullerton, the state-employed fingerprint examiner who later testified at trial, and FBI Agent Meagher, who is a fingerprint specialist with the bureau.¹ Agent Meagher's testimony was wide-ranging, explaining basic concepts underlying fingerprint identification, the procedure followed by fingerprint examiners, and branching out from there to respond to inquiries aimed at some of the factors suggested in Daubert as relevant to the consideration of expert testimony.

Agent Meagher defined "fingerprint" as the "ridged skin which appears on the palmar side of the hand for each of the fingers." He used a photograph to demonstrate that the ridges are visible on the hand. He explained that the ridge pattern can then be "transferred to an object when it is touched, or intentionally recorded on a known fingerprint card."

To explore the issues involved in fingerprint identification, it is first necessary to understand the difference between what the witnesses called latent prints and known prints. A known print is the kind that is made intentionally, as when a person is arrested. Law enforcement agencies and others taking fingerprints will attempt to get full prints of each finger. Agent Meagher explained that this seemingly simple task is actually not so simple; practice and training are needed to develop the skill of recording prints to obtain a clear and complete image. In previous years prints were normally taken by applying ink to the fingers and then applying the fingers to a paper card with a rolling motion. In recent years, some agencies have adopted a digital photo scanning technique in place of the old method. Even with trained personnel recording the prints, the quality of known prints varies substantially.

Latent fingerprints are partial prints like those found at crime scenes and often are invisible to the naked eye. One study determined that a latent print is only, on average, about 22% of a known print. III R. 52. The gist of defendant's challenge is that the government in this case did not establish that the method for matching the latent print at issue with defendant's known print was reliable.

The field of fingerprint identification ultimately rests on two premises: that each individual's fingerprints are unique and that the unique pattern of a person's prints does not change over time. These basic principles are essentially unchallenged in this appeal. Nor does defendant contest that the latent print found on the magazine in this case was accurately reproduced for analysis. Defendant's challenge is to the reliability of the process of comparing the latent print to known prints.

Agent Meagher described the approach used in fingerprint comparison. The first step a fingerprint examiner takes is a close observation of the characteristics of the latent print under study. A latent print may have three levels of detail. The first level is the "ridge flow" or pattern of the ridges. There are three basic patterns, known as arch, loop, and whirl. An "individualization"² cannot be based on this level alone although a decision to exclude a candidate may be made on Level 1 detail alone.

The second level of detail is "the ridge path of the individual ridges." Id. at 26. The examiner chooses ridges on the print, follows them, and makes observations. For example, the examiner may note points where a ridge ends or divides into two ridges. Agent Meagher testified that an examiner can "individualize" or establish an identity at this point. The third level of detail is observed by "zooming in" more closely to gather additional information about an individual ridge, including features like sweat pores and differences in size and shape of the ridge.

The process used for determining whether a latent print matches a known print has been given the acronym ACE-V, with the letters standing for the steps in a four-stage process: (1...