U.S. v. Velasquez
| Decision Date | 06 December 1995 |
| Docket Number | No. 93-7236,93-7236 |
| Citation | 64 F.3d 844 |
| Parties | 42 Fed. R. Evid. Serv. 1175 UNITED STATES of America; Government of the Virgin Islands v. Edwin VELASQUEZ, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Michael A. Joseph (Argued), Christiansted, St. Croix, U.S. Virgin Islands, for appellant.
W. Ronald Jennings, United States Attorney, James R. Fitzner (Argued), Assistant U.S. Attorney, Christiansted, St. Croix, U.S. Virgin Islands, for appellees.
Before: BECKER, NYGAARD and ROTH, Circuit Judges.
In this appeal, defendant, Edwin Velasquez, challenges the district court's exclusion of the expert witness he proffered to testify on his behalf on the subject of handwriting analysis and the lack of standards in that field of expertise. Velasquez was convicted on six counts of drug related offenses, including Count VIII, engaging in a continuing criminal enterprise. He appeals only his conviction on Count VIII.
At Velasquez's criminal trial, the Government relied upon a handwriting expert, Lynn Bonjour, to link two of Velasquez's accomplices to certain drug transactions. As a part of his defense, Velasquez proposed to call Mark P. Denbeaux, a Professor of Law at Seton Hall University and an expert "critic" of the field of handwriting analysis, to assist the jury in understanding the limitations of the Government's handwriting testimony. The district court refused to admit Professor Denbeaux's testimony.
In his appeal, Velasquez contends that, if Denbeaux's testimony had been admitted, the Government might not have convinced the jury that Velasquez had managed or organized a continuing criminal enterprise involving at least five other people. Velasquez asserts that Denbeaux's proposed testimony might have persuaded the jury to discount the testimony of Lynn Bonjour in which she identified the handwriting on two mailing labels as that of two of Velasquez's associates. Because we find that Professor Denbeaux is qualified to testify as an expert on the limitations of handwriting analysis and because we conclude that the exclusion of his testimony may very well have affected the jury's verdict on Count VIII, we will reverse Velasquez's judgment of conviction on the continuing criminal enterprise offense and remand this case for a new trial on that count. 1
Edwin Velasquez was charged with eight counts of criminal activity related to narcotics trafficking: Count I--conspiracy to distribute a controlled substance in violation of 21 U.S.C. Secs. 841(a)(1), 845, 846 and 963; Count II--possession of a controlled substance with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1); Count III--possession of a controlled substance on board an aircraft departing from the United States in violation of 21 U.S.C. Secs. 955 and 963; Count IV-- importation of a controlled substance into the custom territory of the United States in violation of 21 U.S.C. Secs. 952(a) and 963; Count V--possession of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c); Count VI--simple possession of a firearm in violation of V.I.Code Ann. tit. 14, Sec. 2253(a); Count VII--engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. Secs. 2 and 1957(a); and Count VIII--engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848.
During a five-day jury trial, the Government called Lynn Bonjour to testify as an expert on handwriting analysis. 2 Defense counsel immediately objected to the admissibility of her testimony, contending that handwriting analysis lacked measurable standards and could not be considered a legitimate science. Following voir dire examination on the admissibility of Ms. Bonjour's testimony, the trial court rejected the defense's arguments that handwriting analysis did not constitute a valid field of scientific expertise. In so doing, the court relied, in part, on Ms. Bonjour's testimony regarding the standards and methodology of handwriting analysis. 3
The court then permitted Ms. Bonjour to testify as an expert in the field of questioned documents/handwriting analysis. App. 138. Ms. Bonjour testified that, in her opinion, both Velasquez's girlfriend, Glenda Arrindell, and one of his alleged accomplices, Walter McKay, had written a mailing label which had been used to ship drugs. App. 144, 171.
To counter Ms. Bonjour, the defense proffered Mark P. Denbeaux, a Professor of Law at Seton Hall University, to testify on two facets of handwriting analysis: as a critic of the field of handwriting analysis or, in the alternative, as a handwriting analyst himself. At the voir dire examination to determine the admissibility of Denbeaux's testimony, he opined that handwriting analysis is not a valid field of scientific expertise because it lacks standards to guide experts in weighing the match or non-match of particular handwriting characteristics. App. 189-194. By way of example, Denbeaux pointed out that Ms. Bonjour had relied on spacing characteristics (the spacing between lines) to match Velasquez's accomplices with the shipping labels but had failed to consider or explain why other non-matching aspects of spacing (e.g., how the writing was located on the page both vertically and horizontally, indentation, etc.) were not relevant or as persuasive in forming her opinion. App. 205.
The district court refused to permit Professor Denbeaux to testify either as to the limitations of handwriting analysis generally or as to the limitations of Ms. Bonjour's particular opinions concerning this case. The court explained that "whether or not handwriting expertise is admissible in a courtroom" is a "legal" question that was resolved against the defense when the court permitted Ms. Bonjour to testify as a qualified expert in the field of handwriting analysis. App. 182; see also Court's Order and Memorandum, App. 31-34 ().
The defense then sought to have Professor Denbeaux qualified as an expert in handwriting analysis so that he could compare the mailing labels with the handwriting specimens and offer his opinion regarding the authorship of the labels. Again, the court refused to allow Professor Denbeaux to testify. In particular, the court relied on the Professor's lack of formal training and inadequate practical experience in performing handwriting analysis. Although the record reflects that the Professor had considerable knowledge of the field of handwriting analysis, 4 he had never undertaken formal training in handwriting analysis, had never been to a seminar on the subject, and had never been a member of any related professional organization. In addition, Denbeaux had "never been retained to give an opinion about authorship." App. 201. Although on approximately 12 occasions, he had compared handwriting exemplars for the purposes of making his own identifications, none of these comparisons had been independently corroborated for accuracy. App. 213.
At the end of the trial, the jury convicted Velasquez on Counts I, II, III, IV, VI and VIII. The court declared a mistrial as to Counts V and VII. On July, 10, 1992, Velasquez was sentenced to 292 months imprisonment, a $250 special assessment and a $25,000 fine. Almost two years later, on May 16, 1994, the court reduced Velasquez's term of imprisonment to 180 months and five years of supervised release, in recognition of cooperation with the government.
Velasquez has appealed only his conviction on Count VIII, illegally engaging in a continuing criminal enterprise involving at least five people other than himself. He contests the district court's exclusion of Professor Denbeaux's testimony criticizing the field of handwriting analysis. Velasquez claims that, if Professor Denbeaux had been permitted to testify, the jury might not have accepted Ms. Bonjour's testimony which was essential in connecting two of the necessary five persons to Velasquez's drug operations. 5
Although Velasquez did not file a formal notice of appeal, he sent a letter to the district court judge shortly after his sentencing on July 13, 1992, challenging his conviction. In October of 1992, he requested that the district court treat his July 13, 1992, letter as notice of appeal or, in the alternative, as a motion to file a notice of appeal out of time. The district court granted his motion on March 31, 1993, and he filed his notice of appeal with this Court on April 5, 1993. We have jurisdiction over his appeal pursuant to 28 U.S.C. Sec. 1291.
We review the trial court's ruling on the admissibility of Professor Denbeaux's testimony for abuse of discretion, " 'but to the extent the district court's ruling turns on an interpretation of a Federal Rule of Evidence our review is plenary.' " In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 749 (3d Cir.1994) (quoting DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 944 (3d Cir.1990)), cert. denied, --- U.S. ----, 115 S.Ct. 1253, 131 L.Ed.2d 134 (1995) ("Paoli II "). We review the district court's findings of fact under a clearly erroneous standard. Sheet Metal Workers, Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir.1991).
The district court refused to admit Professor Denbeaux's testimony criticizing the lack of standards in the field of handwriting analysis because the court had already concluded that expert testimony concerning handwriting analysis evidence was sufficiently reliable to be admitted pursuant to Federal Rule of Evidence 702. We believe, however, that, even though the district court had recognized handwriting analysis as a field of expertise, the...
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