U.S. v. Paul

• Decision Date: 13 May 1999
• Docket Number: No. 97-9302,97-9302
• Citation: 175 F.3d 906
• Parties: 12 Fla. L. Weekly Fed. C 832 UNITED STATES of America, Plaintiff-Appellee, v. Sunonda G. PAUL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 906

175 F.3d 906

12 Fla. L. Weekly Fed. C 832

UNITED STATES of America, Plaintiff-Appellee, v. Sunonda G. PAUL, Defendant-Appellant.

No. 97-9302.

United States Court of Appeals Eleventh Circuit.

May 13, 1999.

Suzanne Hashimi, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.

Janet King, Bryan J. Farrell, Assistant U.S. Attorney, Amy Weil, Assistant U.S. Attorney, William L. McKinnon, Jr., Assistant

U.S. Attorney, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT, Chief Judge, HULL, Circuit Judge, and MOORE ^*, District Judge.

HATCHETT, Chief Judge:

Appellant Sunonda Paul appeals the district court's (1) finding that a government witness was qualified to testify as a handwriting expert, (2) refusal to admit his handwriting expert's rebuttal testimony and (3) failure to declare a mistrial due to the prosecutor's improper remarks. We affirm.

I. FACTS

In May 1996, an unidentified person who stated that he was a bank investigator telephoned Ed Spearman, branch manager of Wachovia National Bank (Wachovia) at Atlanta, Georgia, and warned him that someone intended to leave a note at the bank in an attempt to extort money from the bank. The "investigator" instructed Spearman to follow the directions in the note. Spearman contacted bank security and the Federal Bureau of Investigation (FBI), who advised him to contact the agency immediately if he received an extortion demand. On the following morning, a security camera outside the entrance to Wachovia Bank videotaped a man, wearing a scarf and sunglasses, place an envelope under the front door of the bank. Inside the envelope, addressed to Spearman, was an extortion note that directed Spearman to deliver $100,000 to the men's restroom of a downtown Atlanta McDonald's restaurant. The note threatened violence if Spearman did not follow the instructions and make the payment. Spearman notified bank security and the FBI.

The investigating agents developed a plan to arrest the extortionist: an FBI agent, acting as Spearman, would drive Spearman's car to the McDonald's and place a briefcase in the men's restroom, while surveillance agents would watch the restroom and arrest the person who took the briefcase.

In executing the plan, FBI Agent Eric Bryant testified that upon his arrival at the McDonald's, he entered the men's restroom, observed appellant Sunonda Paul in a restroom stall, left a briefcase and exited the restroom. FBI surveillance agents testified that they later saw Paul sitting at a table near the restroom. As Bryant left the McDonald's, surveillance agents observed Paul enter the restroom again and then attempt to leave the establishment with the briefcase in his backpack. When confronted, Paul told the agents that he was in the area to visit a nearby gym and had stopped at the McDonald's for breakfast. He also told them that he decided to take the briefcase after he found it in the restroom. Paul, however, was dressed in casual street clothing and had no gym clothes or athletic equipment in his possession. The agents arrested him.

II. PROCEDURAL HISTORY

A grand jury indicted Paul on one count of bank extortion, in violation of 18 U.S.C. § 2113(a), and Paul pleaded not guilty. Prior to trial, Paul moved in limine to exclude FBI document examiner Larry Ziegler's testimony regarding handwriting analysis. The district court, however, denied Paul's motion at the pretrial hearing.

The demand note left at Wachovia was the key evidence in determining whether Paul was the extortionist. Although FBI agents examined the videotape to determine the identity of the person who delivered the note, they could not identify the person conclusively. Consequently, the FBI conducted fingerprint and handwriting analysis tests on the note to establish the identity of the extortionist. A fingerprint expert concluded that the latent prints on the note and envelope did not match Paul's fingerprints.

Ziegler, the FBI document examiner, compared the handwriting on the note and the envelope to Paul's handwriting samples and concluded that Paul was the author of both. Specifically, Ziegler asked Paul to write the word restaurant. In the presence of an FBI agent, Paul misspelled the word as follows: "resturant." In the extortion note the extortionist misspelled the word restaurant the same way. Ziegler also asked Paul to write out "Spearman." Paul spelled it "Sperman," the same way the extortionist had addressed the envelope.

In June 1997, a jury could not reach a unanimous verdict; therefore, the court declared a mistrial. On August 6, 1997, at the retrial, the district court orally granted the government's motion in limine to exclude the testimony of Mark Denbeaux, a law professor, pursuant to Federal Rule of Evidence 702 because the district court thought his testimony would be confusing to the jury. ¹ The court also denied Paul's renewed motion to exclude Ziegler's testimony regarding handwriting analysis. The second jury found Paul guilty of extortion, in violation of 18 U.S.C. § 2113(a), and the district court sentenced Paul to 63 months imprisonment, with a 3-year term of supervised release.

III. ISSUES

The issues we discuss are whether: (1) the district court abused its discretion in qualifying Ziegler as an expert and allowing the government to present handwriting analysis evidence; (2) the district court abused its discretion in excluding Denbeaux's rebuttal testimony; and (3) the prosecutor's closing argument improperly shifted the burden of proof to Paul.

IV. STANDARD OF REVIEW

This court reviews the district court's decision to exclude expert testimony under Federal Rule of Evidence 702 for abuse of discretion. General Electric Co. v. Joiner, 522 U.S. 136, 139, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Gilliard, 133 F.3d 809 (11th Cir.1998). To the extent that a ruling of the district court turns on an interpretation of a Federal Rule of Evidence, our review is plenary. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As to expert testimony, however, we review for abuse of discretion. See General Electric, 522 U.S. at 139, 118 S.Ct. 512. In reviewing a claim of prosecutorial misconduct, we assess (1) whether the challenged comments were improper and (2) if so, whether they prejudiced the defendant's substantial rights. United States v. Delgado, 56 F.3d 1357, 1368 (11th Cir.1995).

V. DISCUSSION

A. Ziegler's Testimony

Paul contends that the district court abused its discretion in admitting Ziegler's testimony as an expert document examiner because: (1) his handwriting analysis failed to meet the reliability requirements of Daubert; (2) Ziegler's testimony did not assist the trier of fact; and (3) Ziegler's testimony was more prejudicial than probative under Federal Rules of Evidence 403.

1. Admissibility of Handwriting Analysis

Paul argues that Ziegler's testimony is not admissible under the Daubert guidelines because handwriting analysis does not qualify as reliable scientific evidence. His argument is without merit. ² In Daubert, the Supreme Court held that Federal Rule of Evidence 702 controls decisions regarding the admissibility of expert testimony. ³ The Supreme Court declared that under rule 702, when "[f]aced with a proffer of expert scientific testimony ... the trial judge must determine at the outset pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592, 113 S.Ct. 2786. The Supreme Court stated that "[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible one" and that "Rule 702 ... assign[s] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 594, 597, 113 S.Ct. 2786. The Court also listed several factors to assist in the determination of whether evidence is scientifically reliable. ⁴ See Daubert, 509 U.S. 592-95, 113 S.Ct. 2786.

Many circuits were split at the time of trial, however, on whether Daubert should apply to nonscientific expert testimony. Some held that the application of Daubert is limited to scientific testimony, while others used Daubert 's guidance to ensure the reliability of all expert testimony presented at trial. Compare McKendall v. Crown Control Corp., 122 F.3d 803 (9th Cir.1997) (limiting the application of Daubert to the evaluation of scientific testimony); with Watkins v. Telsmith, Inc., 121 F.3d 984 (5th Cir.1997) (holding that the application of Daubert is not limited to scientific knowledge).

Recently, however, in Kumho Tire Company, Ltd. v. Carmichael, the Supreme Court held that Daubert 's "gatekeeping" obligation, requiring the trial judge's inquiry into both the expert's relevance and reliability, applies not only to testimony based on "scientific" testimony, but to all expert testimony. Kumho, --- U.S. ----, ----, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238, ---- (1999). The Court further noted that rules 702 and 703 give all expert witnesses testimonial leeway unavailable to other witnesses on the presumption that the expert's opinion "will have a reliable basis in the knowledge and experience of his discipline." Kumho, --- U.S. at ----, 119 S.Ct. at 1174 (citing Daubert, 509 U.S. at 592, 113 S.Ct. 2786). Moreover, the Court held that a trial judge may consider one or more of the specific Daubert factors when doing so will help determine that expert's reliability. Kumho, --- U.S. at ----, 119 S.Ct. at 1175. But, as the Court stated in Daubert, the test of reliability is a "flexible" one, and Daubert 's list of specific factors neither necessarily nor solely applies to all experts or in every case. Kumho, --- U.S. at ----, 119 S.Ct. at 1175 (citing Daubert, 509 U.S. at 594, ...