U.S. v. Prime

• Decision Date: 14 December 2005
• Docket Number: No. 02-30375.,02-30375.
• Citation: 431 F.3d 1147
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Stefan PRIME, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1147

431 F.3d 1147

UNITED STATES of America, Plaintiff-Appellee, v. Michael Stefan PRIME, Defendant-Appellant.

No. 02-30375.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2004.

Filed April 16, 2004.

Amended December 14, 2005.

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Anna M. Tolin, Michael T. Sennott, Siderius Lonergan & Martin, Seattle, WA, for the defendant-appellant.

Bruce F. Miyake, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CR-01-00310-RSL.

Before TROTT, PAEZ, and BERZON, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

Pursuant to the United States Supreme Court order vacating the judgment and remanding this case back to this Court for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Opinion filed April 16, 2004, slip op. 4979, and appearing at 363 F.3d 1028 (9th Cir.2004), is amended as follows:

On page 1038 of the Opinion, delete

AFFIRMED

and in its place insert the following terminal paragraphs:

Because the defendant was sentenced under the then-mandatory Sentencing Guidelines, and because we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory, we remand to the sentencing court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc). See also United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005) ("[D]efendants are entitled to limited remands in all pending direct criminal appeals involving unpreserved Booker error, whether constitutional or nonconstitutional").

Conviction AFFIRMED; sentence REMANDED.

OPINION

TROTT, Circuit Judge.

I OVERVIEW

Michael Prime ("Prime") was charged with, and convicted of, one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371; one count of conspiracy to manufacture counterfeit securities, in violation of 18 U.S.C. § 371; and three counts of possessing, manufacturing, and uttering counterfeit securities, in violation of 18 U.S.C. § 513(a). Prime raises four issues on appeal: 1) whether the district court properly denied his motion for a Franks hearing;¹ 2) whether the court abused its discretion in allowing the testimony of an expert handwriting analyst; 3) whether the court abused its discretion in not allowing Prime to substitute counsel; and 4) whether the jury's potential exposure to extrinsic evidence was grounds for a new trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm all of the district court's orders and decisions.

II BACKGROUND

Between April and June 2001, Prime, along with three co-conspirators, David Hiestand ("Hiestand"), Juan Ore-Lovera, and Jeffrey Hardy, sold non-existent items on eBay, purchased items using counterfeit money orders created by the group, sold pirated computer software, and stole credit card numbers from software purchasers. To facilitate this operation, Prime and his cohorts used a credit card encoder to input the stolen data on their own credit cards, set up post office boxes under false names, manufactured false identifications, and used a filter bank account to hide proceeds of the crimes.

At trial, numerous victims testified as to the details surrounding how they had been defrauded by Prime's various scams. In addition, co-conspirators Hiestand and Hardy both extensively testified as to the details of the conspiracy, implicating Prime in all of the crimes charged. The prosecution also elicited the expert opinion of Kathleen Storer ("Storer"), a forensic document examiner with the Secret Service. She testified that Prime was the author of as many as thirty-eight incriminating exhibits, including envelopes, postal forms, money orders, Post-it notes, express mail labels and postal box applications. Prime took the stand in his own defense and claimed that despite all of the evidence linking him to the various scams, including admissions that his fingerprints were on several items linked to the crimes, he was simply attempting to engage in legal entrepreneurial ventures. Prime also confirmed that he had previously been convicted of first and second degree theft, two counts of possession of stolen property in the second degree, and forgery. The jury found Prime guilty on all counts.

Prime moved for a new trial based on the improper submission of extrinsic evidence to the jury. The district court denied the motion, and this appeal follows.

III ADMISSIBILITY OF EXPERT TESTIMONY

Prime moved in limine to exclude Storer's expert testimony. The court held a Daubert hearing where both sides were allowed to offer voluminous materials and expert testimony regarding the reliability of the proposed testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). After careful consideration, the court denied the motion, see United States v. Prime, 220 F.Supp.2d 1203 (W.D.Wash.2002), and Storer testified that, in her opinion, Prime's handwriting appeared on counterfeit money orders and other incriminating documents. On appeal, Prime contends that the admission of expert testimony regarding handwriting analysis was unreliable under Daubert, and thus the court abused its discretion by allowing Storer to testify.

Handwriting Analysis

In Daubert, the Supreme Court set forth the guiding principle that "under [Federal Rule of Evidence 702]² the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. 2786. In order to assist the trial courts with this task, the Court suggested a flexible, factor-based approach to analyzing the reliability of expert testimony. Id. at 593-95, 113 S.Ct. 2786. Although not an exclusive list, these factors include: 1) whether a method can or has been tested; 2) the known or potential rate of error; 3) whether the methods have been subjected to peer review; 4) whether there are standards controlling the technique's operation; and 5) the general acceptance of the method within the relevant community. Id. at 593-94, 113 S.Ct. 2786.

Kumho Tire Co. v. Carmichael resolved any post-Daubert uncertainty that the trial judge's responsibility to keep unreliable expert testimony from the jury applies not only to "scientific" testimony, but to all expert testimony. 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). As a result, this "basic gatekeeping obligation" applies with equal force in cases, such as this one, where "non-scientific" experts wish to relate specialized observations derived from knowledge and experience that is foreign to most jurors. Id. Kumho Tire also makes it clear that "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable," as well as the ultimate determination of whether the proposed expert testimony is reliable. Id. at 152, 119 S.Ct. 1167. Accordingly, we review the district court's decision to admit or deny expert testimony for abuse of discretion. Id.

In accordance with Kumho Tire, the broad discretion and flexibility given to trial judges to determine how and to what degree these factors should be used to evaluate the reliability of expert testimony dictate a case-by-case review rather than a general pronouncement that in this Circuit handwriting analysis is reliable. As the Supreme Court concluded,

we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue.

Id. at 150, 119 S.Ct. 1167; see also United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir.2000) (quoting Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606, 618 (5th Cir.1999) ("Whether Daubert's suggested indicia of reliability apply to any given testimony depends on the nature of the issue at hand, the witness's particular expertise, and the subject of the testimony. It is a fact-specific inquiry.") (internal citations omitted)).

In this case, Storer was given 112 pages of writing known to be Prime's, 114 pages of Hiestand's, and 14 pages of Hardy's. She was then asked whether the handwriting on 76 documents associated with the alleged conspiracy, such as envelopes, postal forms, money orders, Post-it notes, express mail labels and postal box applications, belonged to any of the co-conspirators.³ Storer "identified" Prime's handwriting on 45 of the documents.

Following the Daubert hearing, the district court issued a brief order concluding that the proposed forensic document examination testimony was reliable. After the conclusion of the trial, the district court issued a more detailed Order Regarding Defendant's Motion in Limine, which thoroughly and specifically analyzed the reliability of Storer's testimony with respect to each of the Daubert factors. See Prime, 220 F.Supp.2d 1203.

1. Whether the theory or technique can be or has been tested

Handwriting analysis is performed by comparing a known sample of handwriting to the document in question to determine if they were written by the same person. The government and Storer provided the court with ample support for the proposition that an individual's handwriting is so rarely identical that expert handwriting analysis can reliably gauge the likelihood that the same individual wrote two samples. The most significant support came from Professor Sargur N. Srihari of the Center of Excellence for Document Analysis and Recognition at the State University of New York at...