U.S. v. Vargas

• Decision Date: 22 December 2006
• Docket Number: No. 05-2826.,05-2826.
• Citation: 471 F.3d 255
• Parties: UNITED STATES of America, Appellee, v. Víctor R. VARGAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

471 F.3d 255

UNITED STATES of America, Appellee, v. Víctor R. VARGAS, Defendant, Appellant.

No. 05-2826.

United States Court of Appeals, First Circuit.

Heard September 11, 2006.

Decided December 22, 2006.

Charles P. McGinty, Federal Defender Office, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

On June 13, 2001, the defendant-appellant (the "defendant") applied for a United States passport. Thereafter, the defendant was charged by a federal grand jury in a three-count indictment with making a false statement in a passport application, in violation of 18 U.S.C. § 1542; misuse of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B); and possession of an unlawful identification document with intent to defraud the United States, in violation of 18 U.S.C. § 1028(a)(4). After a two-day trial, a jury convicted the defendant on all three counts.

The defendant now appeals his conviction on the ground that the district court improperly admitted expert testimony identifying the defendant as someone other than the person listed on the passport application on the basis of fingerprint analysis. After careful consideration, we affirm the conviction because we conclude that the district court did not err in admitting the expert testimony.

I. Factual Background

On June 13, 2001, a man identifying himself as Samuel Ortiz submitted an application for a United States passport ("the application") at a post office in Dorchester, Massachusetts. The application indicated that the applicant Samuel Ortiz was a United States citizen born in Puerto Rico on May 24, 1963. The applicant signed the name "Samuel Ortiz" on the application in the presence of the window clerk and submitted supporting documents, including a Puerto Rican birth certificate and a Massachusetts identification card bearing the applicant's picture, both under the name "Samuel Ortiz." The clerk accepted the application and forwarded it for processing.

The application was reviewed at the National Passport Center in Portsmouth, New Hampshire by a passport specialist who testified at trial that aspects of the application led her to believe it was fraudulent.¹ She forwarded it to a fraud program manager in the Boston Passport Agency. The program manager testified that she also observed indications of fraud and sent a letter to the applicant requesting additional documentation. She received no response, so she referred the application for investigation by the Diplomatic Security Service ("DSS"), a law enforcement branch of the United States Department of State responsible for passport and visa fraud investigation.

On March 5, 2003, two DSS officers went to the address provided on the Massachusetts identification card submitted with the application—an address different from the one written on the application. The agents identified themselves to the woman who answered the door and, showing her the picture that had been submitted with the passport application, asked to see the person depicted in the picture. The woman led the agents inside the apartment to a man who one of the agents identified at trial as the defendant.² The agents questioned the man about the application and accompanying photograph. The man denied submitting the application, telling the agents that his name was Víctor Vargas ("Vargas") and that he was from the Dominican Republic. Vargas gave his birth date as July 25, 1960, and provided the names of his parents.

The agents requested that Vargas provide identification. Vargas responded that he did not have any with him, but that he might have identification at his mother's house. The agents offered to take Vargas to his mother's house to get the identification, and asked if they could take his fingerprints. Vargas provided two sets of fingerprints. He then went with the agents to the address he had given as his mother's home. The agents found no one at that location.

An investigation revealed that the Bureau of Citizenship and Immigration Service had an alien file ("A-file") for Víctor Vargas, born in the Dominican Republic on July 25, 1960. The date of birth and names of parents on file matched those provided by Vargas to the agents in March 2003. The A-file established that Vargas had been admitted to the United States as a legal permanent resident in December 1990 and remained a legal permanent resident in June 2001, when the passport application was submitted. The A-file contained an index fingerprint for Víctor Vargas.

Investigators also discovered that the passport application submitted in June 2001 contained four latent fingerprints. The government conducted fingerprint analysis comparing the fingerprints obtained by the agents in March 2003 with the prints from Vargas's A-file and the latent prints from the passport application. The analysis revealed that the fingerprints obtained by the agents matched both the fingerprint in Vargas' A-file and the latent prints lifted off the passport application.

The government then brought charges against the defendant on the theory that he had fraudulently submitted the passport application under the name "Samuel Ortiz," when he was really Víctor Vargas.

At trial, the defendant took the position that his name was Samuel Ortiz and that he had submitted a truthful passport application. To contradict this, the government sought to introduce the expert testimony of Thomas Liszkiewicz, a senior fingerprint specialist with the Department of Homeland Security ("DHS"). Liszkiewicz had analyzed the fingerprints at issue in this case and, on the basis of that analysis, identified the individual who submitted the passport application under the name Samuel Ortiz as the legal permanent resident Víctor Vargas. Several months before trial, the government notified the defendant of Liszkiewicz's proposed testimony and provided him with a report of Liszkiewicz's conclusions. The government also made the passport application available to the defendant for independent analysis. The defendant did not request a hearing on the admissibility of Liszkiewicz's fingerprint testimony nor did he make any pre-trial motions with respect to Liszkiewicz's proposed testimony.

At trial, Liszkiewicz first testified about his qualifications. Liszkiewicz stated that he had been a senior fingerprint specialist at the DHS for two and a half years. He had previously spent nineteen to twenty years as a fingerprint examiner for the Wilmington, Delaware police department. Liszkiewicz testified that, as part of his training while with the Delaware police, he took courses and attended conferences on fingerprint identification methods, including two forty-hour FBI-sponsored courses in basic and advanced fingerprint comparison. He also received training as an intern to court-accepted fingerprint examiners in Delaware. Liszkiewicz testified that he is certified as a fingerprint examiner in Delaware and has served there as an instructor and trainer of fingerprint identification. He stated that he has also been certified by the Forensic Document Lab at the DHS. Liszkiewicz also testified that he has performed "hundreds of thousands" of fingerprint comparisons and provided expert testimony on more than one hundred occasions.

After Liszkiewicz testified about his background in fingerprint analysis, the government moved to qualify Liszkiewicz as an expert. The defendant objected to Liszkiewicz's qualifications. The judge did not rule on that objection, and the defendant appears to have reserved the objection for cross-examination. Before allowing the prosecution to proceed, the court briefly addressed the jury, discussing the court's role in admitting expert testimony but also noting the jury's independent responsibility to consider "whether you think [the expert's] qualifications are sufficient to persuade you that he can give this opinion about fingerprints in this case."

Liszkiewicz went on to explain certain terminology and procedures of fingerprint identification. He described to the jury the difference between "inked" prints, produced intentionally to "reproduce" the patterns on the fingers, and "latent" fingerprints, obtained from objects that a person touches. He described the "analysis, comparison, evaluation and verification," or "ACEV," method of fingerprint comparison he had been trained to use to determine whether two fingerprints were made by the same person. Liszkiewicz explained that this method requires the analyst to first ensure that the prints involved are sufficiently clear to observe their characteristics, and if so, to compare the prints by looking at both their individual characteristics and the overall pattern. The analyst looks for matching characteristics and patterns and identifies any points of difference between the prints. An observation of at least eight matching characteristics and no unexplainable points of difference is necessary to indicate that two prints come from the same person. If the reviewer believes a match has been identified, she submits the conclusion to another examiner for verification.

Liszkiewicz then testified to the comparisons he performed in the analysis at issue. First, he described a comparison of latent prints found on the passport application to the prints obtained by the agents in March 2003. Of the four latent prints found on the application, Liszkiewicz described his comparison of two of them—a left and right thumb print. He used "chalks" of the latent and inked prints for both the left and right thumb, and marked five matching characteristics to explain to the jury. He explained that he had chosen five characteristics for illustrative purposes, but had found a larger number of points of identity between the prints—"into the twenties" with respect the left thumb print. He testified that h...