U.S. v. Black Cloud, 96-1469

• Decision Date: 02 December 1996
• Docket Number: No. 96-1469,96-1469
• Citation: 101 F.3d 1258
• Parties: 46 Fed. R. Evid. Serv. 120 UNITED STATES of America, Plaintiff--Appellee, v. Elmer Peter BLACK CLOUD, a/k/a Woody Black Cloud, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1258

101 F.3d 1258

46 Fed. R. Evid. Serv. 120

UNITED STATES of America, Plaintiff--Appellee, v. Elmer Peter BLACK CLOUD, a/k/a Woody Black Cloud Defendant--Appellant.

No. 96-1469.

United States Court of Appeals,

Eighth Circuit.

Submitted July 11, 1996.

Decided Dec. 2, 1996.

Christy Griffin Serr, Aberdeen, SD, argued, for Defendant-Appellant.

Mikal Hanson, Pierre, SD, argued (Karen E. Schreier, on the brief), for Plaintiff-Appellee.

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Elmer Black Cloud appeals his convictions for sexual abuse of a minor and incest in violation of 18 U.S.C. §§ 1153, 2243(a), and South Dakota Codified Laws § 22-22-1(6). Black Cloud argues on appeal that the district court ¹ erred in allowing expert testimony on the likelihood of finding a Native American with all three of the genes found in Black Cloud's and his niece's child's DNA and that there was insufficient evidence to support the jury's guilty verdicts. We affirm the convictions.

The United States government charged Black Cloud with sexually abusing and committing incest with his fourteen-year-old niece. Before Black Cloud's trial, his niece gave birth to a baby boy. The government collected blood samples from Black Cloud's niece, her child, and Black Cloud. The government sent the blood to Dr. Herbert Polesky, the director of the Memorial Blood Center of Minneapolis, Minnesota, for genetic or DNA testing.

Dr. Polesky's DNA testing consisted of examining the genes found in three different locations in a person's DNA. Dr. Polesky first determined what genes the baby had received from his father at those three locations. Dr. Polesky then determined what type of genes Black Cloud had at those same three locations in his DNA. As a result of his testing, Dr. Polesky concluded that Black Cloud's genes matched the paternal genes of his niece's child at all three of the examined locations. Accordingly, Dr. Polesky concluded that Black Cloud could be the father of his niece's child.

Dr. Polesky also calculated the likelihood of finding a Native American with all three of the genes he had found in Black Cloud and the child. Dr. Polesky concluded that only 1 in 2237 Native Americans would have all three of the genes and possibly be the child's father.

At Black Cloud's trial the government called Dr. Polesky to testify about the DNA testing he had performed. Dr. Polesky testified that Black Cloud could be the child's father because Black Cloud had all three of the genes that were present in the child's paternal DNA. Black Cloud objected, however, to Dr. Polesky's testimony that only 1 in 2237 Native Americans would have all three of the genes found in Black Cloud's and the child's DNA.

Due to Black Cloud's objection, the district court conducted a hearing to determine whether Dr. Polesky's testimony was admissible evidence under Rule 702 of the Federal Rules of Evidence. Following the guidelines set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and United States v. Martinez, 3 F.3d 1191 (8th Cir.1993), cert. denied, 510 U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 697 (1994), the district court found that Dr. Polesky's scientific techniques: (1) could be and were tested; (2) were subjected to peer review and publications; (3) had a known rate of error that was low; and (4) were generally accepted scientific techniques. The district court also found that Dr. Polesky's scientific techniques were reliable and that he had properly followed those techniques. Based on these findings, the district court admitted into evidence Dr. Polesky's testimony.

After hearing Dr. Polesky's testimony and other evidence, the jury convicted Black Cloud of sexual abuse of a minor and incest. Black Cloud appeals his convictions.

I.

Black Cloud argues that the district court erred in admitting Dr. Polesky's testimony on the likelihood of finding a Native American with all three of the genes found in Black Cloud's and the child's DNA.

We review a district court's decision on whether to admit evidence for an abuse of discretion. United States v. Roulette, 75 F.3d 418, 423 (8th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 147, 136 L.Ed.2d 93 (1996). Before admitting expert scientific testimony at trial, Rule 702 requires the district court to determine whether the testimony is based on a reliable scientific technique, and whether it will assist the jury. United States v. Johnson, 56 F.3d 947, 952 (8th Cir.1995). In assessing the reliability of a scientific technique, the district court should consider these factors: (1) whether the technique can be and has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error for the technique and the existence and maintenance of standards for controlling the technique's operation; and (4) whether the technique is generally accepted in the scientific community. Daubert, 509 U.S. at 593-95, 113 S.Ct. at 2796-98. Even if expert scientific testimony is admissible under Rule 702, the district court may exclude the testimony if the testimony has an unfairly prejudicial effect that substantially outweighs its probative value. Fed.R.Evid. 403; United States v. Chischilly, 30 F.3d 1144, 1156 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 946, 130 L.Ed.2d 890 (1995).

A.

Black Cloud argues that the district court admitted Dr. Polesky's testimony on the likelihood of finding a Native American with all three of the genes found in Black Cloud's and the child's DNA without hearing evidence on the reliability of Dr. Polesky's scientific techniques as required by Rule 702. We reject Black Cloud's argument because the record shows that the district court received such evidence before it admitted Dr. Polesky's testimony.

At trial Black Cloud objected specifically to Dr. Polesky's testimony on the likelihood of finding a Native American with all three of the genes found in Black Cloud's and the child's DNA. The district court stopped the trial and conducted a hearing on the reliability of Dr. Polesky's techniques. During this hearing, Dr. Polesky testified about the techniques he used to calculate the likelihood of finding a Native American with all three of the genes found in Black Cloud's and the child's DNA. With respect to these techniques, Dr. Polesky gave testimony relating to the four factors that the district court should consider when assessing the reliability of a scientific technique. Though Dr. Polesky's testimony covered many topics and was not presented in the most coherent manner, the record shows that the district court received evidence on and ruled on the reliability of Dr. Polesky's techniques for calculating the likelihood of finding a Native American with all three of the genes found in Black Cloud's and the child's DNA.

B.

Black Cloud argues that the district court should not have allowed Dr. Polesky to testify about the likelihood of finding a Native American with all three of the genes found in Black Cloud's and the child's DNA because Dr. Polesky's scientific techniques were unreliable.

To calculate the likelihood of finding a Native American with all three of the genes found in Black Cloud's and the child's DNA, Dr. Polesky first determined the likelihood of finding each of the three genes in a Native American. Dr. Polesky calculated the likelihood of finding each one of the three genes by determining how often each gene occurred in the DNA he had collected from 675 to 800 Native Americans. After calculating the likelihood for each gene, Dr. Polesky calculated the likelihood of finding all three of the genes in a Native American by multiplying the likelihood or frequency of each...