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


6-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4267




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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 04-4267


                            UNITED STATES OF AMERICA

                                             v.

                                  DARRYL WILLIAMS,
                                          Appellant


                       Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                              (D.C. Criminal No. 03-cr-00700)
                      District Judge: Honorable Michael M. Baylson


                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 10, 2007

             Before: RENDELL, JORDAN and ALDISERT, Circuit Judges

                                   (Filed: June 7, 2007 )


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Darryl Williams was convicted by a jury of two counts of bank robbery in violation

of 18 U.S.C. § 2113(a). After an initial mistrial due to a hung jury, a new trial yielded a

guilty verdict. Williams was sentenced to a term of imprisonment of 108 months, 3 years
supervised release, a $1,000 fine, restitution in the amount of $862, and a $200 special

assessment. Williams appeals his conviction. He argues that the District Court erred in

admitting the testimony of a “reverse projection photogrammetry” expert because the

government failed to demonstrate that the expert’s technique satisfies any of the

admissibility criteria set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), or possesses any other indicia of reliability. We have jurisdiction over

Williams’ appeal pursuant to 28 U.S.C. § 1291 and we will affirm.

                                             I.

       Williams was charged with robbing two banks in June 2003. In the first robbery

on June 6, a man entered Sovereign Bank in Folsom, Pennsylvania, demanded money

from a teller and ran out after receiving $640. This robbery was captured on the bank’s

surveillance camera. In the second robbery on June 18, a man who, witnesses say, bore a

resemblance to the Sovereign robber, entered a Citizens Bank in Glenolden,

Pennsylvania. This man demanded money from the teller station but grabbed $422 from

the teller before she could comply.

       The primary issue at trial was the height of the bank robber in each of these

robberies. Witnesses to the robberies testified that the robber was anywhere from 5'2" to

5'7" tall. Williams is 6' tall. The government sought to introduce the expert testimony of

FBI agent Paul Smith concerning the height of the Sovereign Bank robber. Based on the

video footage from the surveillance camera, Smith determined that the suspect was closer



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to 5'11" than 5'2" by applying “reverse projection photogrammetry.” This method is on

occasion employed by the FBI to determine the height of individuals depicted on

surveillance cameras like the one that captured images of the Sovereign Bank robber.

Smith testified that there is an error rate of about 1" in this type of height analysis. After

holding a Daubert hearing to determine the admissibility of this evidence, the District

Court determined that Smith’s testimony was admissible.

       Williams challenges the District Court’s admission of Smith’s testimony

concerning reverse projection photogrammetry on the grounds that the technique fails to

satisfy any of the five Daubert criteria for admission of expert testimony. The District

Court found under the preponderance standard that Smith’s testimony met the

requirements of Federal Rule of Evidence 702. Specifically, the Court found that the

testimony was based on sufficient facts or data as recounted by the expert, the testimony

was a product of reliable principals and methods, that the expert had adequate training in

the technique and that he has review within the FBI, which, in the trial judge’s opinion,

was sufficient under the applicable test. Additionally, the District Court found that the

witness applied the principals and methods reliably to the facts of the case.

                                              II.

       We review the District Court’s decision for abuse of discretion. United States v.

Velasquez, 64 F.3d 844, 847 (3d Cir. 1995). Although the Supreme Court has made clear

that federal trial judges, pursuant to Fed. R. Evid. 702, have a “gatekeeping” obligation to



                                               3
insure that only reliable and relevant expert testimony be presented to jurors, the trial

judge is granted a certain degree of latitude to determine whether the Daubert factors or

any other set of reasonable reliability criteria are reasonable measures of reliability in a

particular case. Daubert, 509 U.S. at 593.

       Rule 702 sets forth requirements for the admission of expert testimony: (1) the

proffered witness must be an expert; (2) the expert must testify to scientific, technical or

specialized knowledge; and (3) the expert’s testimony must assist the trier of fact.

Velasquez, 64 F.3d at 848. The overriding consideration with regard to these three factors

is that expert testimony should be admitted if it will assist the trier of fact. Id. at 849.

       The parties do not dispute that Smith’s testimony satisfies the first and third

requirements of Rule 702. Here, Smith presented evidence that the FBI trained him in the

reverse projection photogrammetry technique and that he has employed the technique on

numerous prior occasions. Additionally, it is clear that Smith’s testimony is relevant to

the primary issue of height in this case and that admission of his testimony would aid the

trier of fact in making a determination of height.

       The second requirement, that the expert testify to scientific, technical or

specialized knowledge, is at issue here. The Supreme Court clarified in Daubert that this

requirement is intended to ensure the reliability or trustworthiness of the expert’s

testimony. See Velasquez, 64 F.3d at 849 (citing Daubert, 509 U.S. at 590). Daubert

enumerates a number of factors to be considered by a district court in its assessment of



                                               4
whether the testimony’s underlying reasoning or methodology is scientifically valid and

properly can be applied to the facts at issue. Daubert, 509 U.S. at 590. These factors are:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been

subject to peer review; (3) the known or potential rate of error; (4) the existence and

maintenance of standards controlling the technique’s operation; (5) whether the method is

generally accepted; (6) the relationship of the technique to methods which have been

established to be reliable; (7) the qualifications of the expert witness testifying based on

the methodology; and (8) the non-judicial uses to which the method has been put. In re

Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994).

       Williams argues that the District Court erred in admitting Smith’s testimony

because the government failed to proffer evidence demonstrating the reliability of Smith’s

reverse projection photogrammetery technique as it was used in this case, including

evidence that the technique has been published or subjected to peer review, evidence as to

the technique’s error rate, evidence as to the standards controlling the technique’s

operation, or evidence that the technique, as used in this case, is accepted by anyone

outside of the FBI. We disagree.

       The trial judge is granted a certain degree of latitude to determine whether the

Daubert factors or any other set of reasonable reliability criteria are appropriate measures

of reliability in a particular case. Daubert, 509 U.S. at 593. All of the Daubert factors do

not necessarily apply to each case nor are these factors a comprehensive list of all



                                              5
possible measures of reliability. “Daubert’s list of specific factors neither necessarily nor

exclusively applies to all experts or in every case.” Kumho Tire Co. v. Carmichael, 526

U.S. 137, 141 (1999). Moreover, depending on the facts of each particular case, the

factors do not have to be weighed equally. The factors merely guide the judge’s

determination of the admissibility of evidence, a determination to which we afford great

deference.

       Under the liberal Daubert standard, the plaintiffs do not have to prove to the judge

by a preponderance of the evidence that their expert’s testimony is correct, they must only

show that it is reliable. The requirement of reliability is lower than the standard of

correctness. A judge can find an expert opinion reliable if it is based on “good grounds”

or methods and procedures of science rather than on subjective belief or unsupported

speculation. Daubert, 509 U.S. at 590. The judge does not have to determine that these

methods are necessarily the best grounds to ascertain certain facts, but only that the

evidence presented will help the trier of fact.

       Additionally, the reliability factor is not a strict requirement that should be used to

exclude all questionably reliable evidence. “The reliability of evidence goes ‘more to the

weight than to the admissibility of the evidence.’” Velasquez, 64 F.3d at 849 (citing

United States v. Jakobetz, 955 F.2d 786, 800 (2d Cir. 1992)). In order to be admissible,

evidence need only be sufficiently reliable to help the trier of fact. In re Paoli R.R., 35

F.3d at 744.



                                              6
       Here, the government proffered a detailed explanation of the technique of reverse

projection photogrammetery. Smith testified about the methodology used in the

technique and detailed how the methods were applied in this case. He also testified that

he has published articles about the technique and that it is employed by the FBI and by a

few other law enforcement agencies.

       We conclude that the District Court did not abuse its discretion in determining,

based on this evidence, that the reverse projection photogrammetry technique is

sufficiently reliable to satisfy the admission requirements of Rule 702. Because Smith’s

evidence spoke to the paramount concern in the case – the height of the robber – and

because the District Court found Smith’s technique to be sufficiently reliable, the District

Court did not abuse its discretion in admitting Smith’s testimony.

       Once the foundation for admissibility required by Daubert has been established,

concerns about the validity of an expert’s conclusions should not result in the exclusion of

the expert’s testimony. Rather, such concerns should be presented to the jury through

cross examination, presentation of contrary evidence and careful instruction on the burden

of proof. Rock v. Arkansas, 483 U.S. 44, 61 (1987).

                                            III.

       For the reasons set forth above, we will affirm Williams’ conviction.




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