                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2007

USA v. Faines
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4006




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                                                           NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 05-4006


                      UNITED STATES OF AMERICA

                                      v.

                             TYRONE FAINES,
                                        Appellant


                On Appeal from the United States District Court
                        for the District of Delaware
                      D.C. Criminal No. 04-cr-0053-1
                       (Honorable Sue L. Robinson)


                           Argued January 22, 2007

    Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges

                          (Filed: February 14, 2007)

ELENI KOUSOULIS, ESQUIRE (ARGUED)
Office of Federal Public Defender
First Federal Plaza, Suite 110
704 King Street
Wilmington, Delaware 19801
       Attorney for Appellant

LEONARD P. STARK, ESQUIRE (ARGUED)
FERRIS W. WHARTON, ESQUIRE
Office of United States Attorney
1007 North Orange Street, Suite 700
Wilmington, Delaware 19801
       Attorneys for Appellee
                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Tyrone Faines appeals his conviction for armed bank robbery, 18 U.S.C. §

2113(a), carrying a firearm during a crime of violence, 18 U.S.C. § 924(c), and

conspiracy to commit bank robbery, 18 U.S.C. § 371. Faines also appeals his sentence.

We will affirm both the conviction and sentence.

                                             I.

       On January 14, 2004, two masked individuals robbed a branch of Sun National

Bank in downtown Wilmington, Delaware. (App. at 131.) Wilmington Police

Department Officer Philip Jackson lifted seven latent fingerprints1 from the bank

immediately following the robbery. (App. at 304–10.) Less than one month later, on

February 3, 2004, two masked individuals robbed a branch of Artisans Bank, also in

downtown Wilmington. (App. at 164–64.) Surveillance cameras outside of Artisans

Bank captured pictures of the robbers’ getaway car. (App. at 205–17.) The robberies

followed a similar pattern, in which one armed individual stood guard at the bank’s front,

while the second individual jumped over the teller counter and collected money from

bank employees. (App. at 116–17, 131–32, 167–68.)



   1
     Latent fingerprints are prints left on evidence at a crime scene that “are often not
visible to the naked eye until dusted or otherwise revealed.” United States. v. Mitchell,
365 F.3d 215, 221 (3d Cir. 2004).

                                             2
        On February 19, 2004, Wilmington Police Department officers spotted a car that

matched the getaway car. Instead of heeding the officers’ signal to stop, the car’s driver,

later identified as defendant Faines (App. at 276), led police on a high speed chase, during

which the passengers threw guns and clothing out of the car’s windows. (App. at 245–47,

278–79.) Police subsequently arrested Faines and inked his fingerprints and palm prints.

(App. at 225–26.) The fingerprint match, robbery-related items recovered from Faines’s

car, and the similarities between the two robberies led to Faines’s prosecution.

        A federal grand jury returned a six-count superceding indictment on September 9,

2004, charging Faines with two counts each of armed bank robbery, in violation of 18

U.S.C. § 2113(a) and (d), carrying a firearm during a crime of violence, in violation of 18

U.S.C. § 924(c)(1), and conspiracy to commit bank robbery, in violation of 18 U.S.C. §

371.2

        During the three-day jury trial, Faines and the government each called an expert to

testify about fingerprint analysis. Sergeant Joseph Sammons, offered by the government

as an “expert witness in the area of fingerprint comparison and identification,” testified he

found a match between the defendant’s inked palm prints and fingerprints and three latent

prints found at Sun National Bank. (App. at 352, 374–79.) Dr. Lyn Haber, offered by

Faines “as an expert in fingerprint methodology and the accuracy of fingerprint analysis,”

extensively critiqued the accuracy of fingerprint analysis in her direct testimony, and


   2
    Counts I, II, and III related to the Sun National Branch robbery and Counts IV, V,
and VI related to the Artisans Bank robbery.

                                             3
offered specific criticism of the methodology used by Sergeant Sammons to match

Faines’s prints. (App. at 454–76.) On redirect examination, the defense showed Dr.

Haber the left inked palm print taken from Faines and a latent print found at Sun National

Bank and asked her whether “there is anything in there that would cause you to doubt the

match in this case, any dissimilarity?” (App. at 482.) Dr. Haber responded, “I want to

start with the latent, major crease (indicating), you can see that it’s very narrow at this end

and then very wide here (indicating). It doesn’t correspond to the major crease that’s

shown in the inked print.” (App. at 482.) Shortly thereafter, the District Court restricted

Dr. Haber’s testimony on the basis that the expert was not qualified to perform an actual

fingerprint comparison. (App. at 483–84.)

       On March 30, 2005, the jury returned a guilty verdict on Counts I, II, and III, but

acquitted defendant on the remaining three counts. (App. at 10.) On August 17, 2005,

the District Court sentenced Faines to 360 months in prison3 and entered its judgment of

conviction on August 23, 2005. The defendant timely appealed.

                                              II.

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review

the District Court’s ruling on the admissibility of expert testimony for abuse of discretion.


   3
     On Count I, the District Court sentenced Faines to 276 months in prison, five years of
supervised release, $16,650 in restitution, and a $100 special assessment. On Count II,
the District Court sentenced Faines to a consecutive sentence of 84 months in prison, five
years of supervised release to run concurrently with Count I, and a $100 special
assessment. On Count III, the District Court sentenced Faines to a concurrent 60 months
in prison, a concurrent three years of supervised release, and a $100 special assessment.

                                              4
See United States v. Velasquez, 64 F.3d 844, 847–48 (3d Cir. 1995). “To show an abuse

of discretion, appellants must show the district court’s action was arbitrary, fanciful or

clearly unreasonable. We will not disturb a trial court’s exercise of discretion unless no

reasonable person would adopt the district court’s view.” Stecyk v. Bell Helicopter

Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002) (internal quotations and citations

omitted). We exercise plenary review over the district court’s interpretation of the

Federal Rules of Evidence. See Velasquez, 64 F.3d at 848; United States v. Brown, 254

F.3d 454, 458 (3d Cir. 2001).

                                             III.

       Faines contends the District Court abused its discretion by limiting the scope of his

fingerprint expert’s testimony. Federal Rule of Evidence 702 governs the use of expert

testimony, and provides that an expert must be qualified with specialized knowledge

before offering an expert opinion.4 See Schneider v. Fried, 320 F.3d 396, 405 (3d Cir.

2003) (“Qualification refers to the requirement that the witness possess specialized

expertise.”) Rule 702, amended in 2000 to incorporate the standards set forth in Daubert



   4
    Rule 702 provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to
      understand the evidence or to determine a fact in issue, a witness qualified as an
      expert by knowledge, skill, experience, training, or education, may testify thereto
      in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
      facts or data, (2) the testimony is the product of reliable principles and methods,
      and (3) the witness has applied the principles and methods reliably to the facts of
      the case.
Fed. R. Evid. 702.

                                               5
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v.

Carmichael, 526 U.S. 137 (1999), “affirms the trial court’s role as gatekeeper.” Fed. R.

Evid. 702 advisory committee’s note; see also Calhoun v. Yamaha Motor Corp., U.S.A.,

350 F.3d 316, 322 (3d Cir. 2003) (“An expert may be generally qualified but may lack

qualifications to testify outside his area of expertise.”). On appellate review, the standard

of review for Rule 702—abuse of discretion—guides our decision. “[W]e will not

substitute our own judgment for that of the trial court regarding the admission or

exclusion of expert testimony.” Waldorf v. Shuta, 142 F.3d 601, 627 (3d Cir. 1998).

       The District Court did not abuse its discretion in limiting the expert testimony of

Dr. Haber. It made a reasoned decision to limit her testimony when the court believed Dr.

Haber had begun to perform an actual fingerprint comparison on re-direct examination.

The court noted Dr. Haber was not offered as an expert qualified to make a fingerprint

comparison, and accordingly, it found “this witness was not qualified to do the actual

examination” on re-direct. (App. at 484.) In its closing argument, the defense admitted

as much, noting Dr. Haber is “not a latent fingerprint examiner. That’s not what she was

qualified to do.” (App. at 540–41.)

       Dr. Haber testified she was a research scientist, not a latent fingerprint examiner.

(App. at 437.) The record shows she had extensively read the literature in the field,

published one article on the topic of fingerprint analysis, had taken three courses in

fingerprint comparison, but had never before testified in court on fingerprint analysis or

comparison. (App. at 437–39, 448.) Although Dr. Haber testified she had performed an

                                              6
estimated 6,000 fingerprint comparisons, she admitted “almost all of them were in

conjunction with the three courses. I’ve done a few on my own . . . maybe 50. Not very

many. ” (App. at 448–49.) In contrast, Sergeant Sammons had over twenty years of

experience in fingerprint classification and analysis for the Wilmington Police

Department, with over nine years in the Identification Unit where he spent approximately

95% of his time classifying and comparing latent to inked fingerprints. (App. at 347a.)

Sergeant Sammons testified he had compared “tens of thousands” of latent to inked

prints, (App. at 349a.), testified in over twelve criminal cases in state and federal court,

and had never been found to have made a false identification. (App. at 352, 399.) As

noted, the District Court only limited Dr. Haber’s actual fingerprint comparison, which

was outside her professed area of expertise.5

       The record demonstrates the District Court did not limit Dr. Haber’s testimony

about matters for which she was qualified. On direct and re-direct examination, Dr.

Haber criticized Sergeant Sammons’s fingerprint analysis in general and his technique

specifically. On direct examination, Dr. Haber testified about various distortions in the

prints contending that Sergeant Sammons used an improper methodology in his print

comparison. (App. at 469.) She testified “each of these latent prints contains factors that


   5
     The District Court did not exclude Dr. Haber’s testimony because she was not the
best qualified expert in latent fingerprint comparison, but because she was not offered as
an expert qualified in latent fingerprint comparison at all. Cf. Holbrook v. Lykes Bros.
S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996) (“[I]t is an abuse of discretion to exclude
testimony simply because the trial court does not deem the proposed expert to be the best
qualified. . . .”).

                                                7
make it easier to make a mistake . . . .” (App. at 469.) After describing the factors at

issue, Dr. Haber stated “[t]he various factors I’m talking about are kinds of distortions . . .

[and] Sergeant Sammons did not look for distortions in the latent [prints] before making

his comparison.” (App. at 471.) Later in direct examination, Dr. Haber reiterated that

“there are differences between the latents and the inked prints, but they have not been

accounted for. There’s no description of the problem areas in the latent . . . [or] the

differences in these two prints . . . .” (App. at 475.) Nevertheless on appeal, Faines

contends that on re-direct Dr. Haber would have offered testimony to identify “distortions

and dissimilarities in the [latent and inked] prints that remained unexplained by

[Sergeant] Sammons.” (Appellant Reply Br. 2.) But the record demonstrates that Dr.

Haber had already testified about this on direct examination. In any event, the District

Court did not abuse its discretion in limiting what would have been cumulative

testimony.6

                                             IV.




   6
     Federal Rules of Evidence 403 and 611 provide for the scope of a court’s discretion
in excluding cumulative evidence. See, e.g., Elcock v. Kmart Corp., 233 F.3d 734,
753–54 (3d Cir. 2000) (finding district court’s exclusion of evidence on the ground it was
cumulative did not abuse its discretion and was “rational and consistent with the terms of
Rules 403 and 611”). Rule 403 provides that relevant “evidence may be excluded if its
probative value is substantially outweighed by the . . . needless presentation of cumulative
evidence.” Fed. R. Evid. 403. Rule 611(a) instructs district courts to “exercise
reasonable control over the mode and order of interrogating witnesses and presenting
evidence so as to . . . avoid needless consumption of time.” Fed. R. Evid. 611(a).

                                               8
       Faines contends the District Court erred in calculating his sentence by considering

his prior offense of attempted escape as a crime of violence, which enhanced his sentence

as a career offender under the Sentencing Guidelines. Ordinarily, “[w]hether a particular

crime constitutes a crime of violence is a question of law and our review is plenary,”

United States v. Luster, 305 F.3d 199, 200 (3d Cir. 2002), but our review here is for plain

error because the defendant did not raise this issue in the District Court, see, e.g., United

States v. Lloyd, 469 F.3d 319, 321 (3d Cir. 2006).

       In Luster, we held escape is a crime of violence under the Sentencing Guidelines

because every escape “always has the serious potential” to “explode into violence.”

Luster, 305 F.3d at 202 (internal quotations omitted). The District Court did not commit

plain error in following this Court’s precedent. Faines contends we should reconsider

Luster due to a changed landscape on this issue among our sister courts of appeals.7 At

the time we decided Luster, we noted “[e]very circuit to consider this issue has reached



   7
     Faines cites United States v. Piccolo, 441 F.3d 1084 (9th Cir. 2006), and United
States v. Thomas, 333 F.3d 280 (D.C. Cir. 2003), to support his contention the landscape
has changed regarding sentencing for escape. In the interim since Faines submitted his
brief, the Court of Appeals for the District of Columbia reaffirmed its finding that escape
qualifies as a crime of violence under the Sentencing Guidelines. See United States v.
Adewani, 467 F.3d 1340, 1341 (D.C. Cir. 2006) (“We have previously held that escape is
a crime of violence within the meaning of the Guidelines, United States v. Thomas, 361
F.3d 653, 660 (D.C. Cir. 2004), vacated on other grounds, 543 U.S. 1111, 125 S.Ct.
1056, 160 L.Ed.2d 1045 (2005), and we reaffirm that holding here.”); cf. United States v.
Chambers, No. 06-2405, 2007 WL 60874, at *2 (7th Cir. Jan. 9, 2007) (adhering to
precedents that categorize all escapes as crimes of violence, and refusing to carve out an
exception for noncustodial escapes, but calling into question the propriety of “lump[ing]
all escapes together . . .”).

                                              9
the same conclusion.” Id. This observation largely remains the same, with all courts of

appeals but the Ninth Circuit concluding escape is a crime of violence. See, e.g., United

States v. Adewani, 467 F.3d 1340, 1342 (D.C. Cir. 2006); United States v. Winn, 364 F.3d

7, 12 (1st Cir. 2004); United States v. Jackson, 301 F.3d 59, 62–63 (2d Cir. 2002);

United States v. Dickerson, 77 F.3d 774, 777 (4th Cir. 1996); United States v. Ruiz, 180

F.3d 675, 676–77 (5th Cir. 1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.

1999); United States v. Golden, 466 F.3d 612, 614 (7th Cir. 2006); United States v.

Nation, 243 F.3d 467, 472 (8th Cir. 2001); United States v. Turner, 285 F.3d 909, 915–16

(10th Cir. 2002); United States v. Gay, 251 F.3d 950, 954–55 (11th Cir. 2001). But see

United States v. Piccolo, 441 F.3d 1084, 1089–90 (9th Cir. 2006). Whatever views have

been expressed by the Ninth Circuit (on walk-away escapes), we perceive no changed

landscape on custodial escapes.8 We find no error in the District Court’s determination

that this conduct qualifies as a crime of violence.

                                             V.

       We will affirm both the conviction and sentence.




   8
    Although not significant in terms of our jurisprudence set forth in Luster, we note
Faines had previously attempted escape from a custodial facility.

                                             10
