                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2108




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                                                              NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                                      No. 03-2108

                           UNITED STATES OF AMERICA

                                           vs.

                                JACOB S. ADAMS, JR.,
                                            Appellant

                                      No. 03-2152

                           UNITED STATES OF AMERICA

                                           vs.

                                  CARLTON EWELL,
                                           Appellant

      On Appeal from Judgments and Sentences of the United States District Court
                             for the District of New Jersey
                                   (Crim. No. 00-697)
                 District Judge: The Honorable Garrett E. Brown, Jr.

                                    ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 7, 2004

                  Before: SLOVITER and FUENTES, Circuit Judges.
                            and POLLAK,* District Judge.

                                  (Filed: July 10, 2006)


      *
       Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.

                                            1
                                       ______________

                                          OPINION
                                       ______________

POLLAK, District Judge.

       In these consolidated appeals, we are asked to review the convictions and sentences

of Carlton Ewell and Jacob S. Adams, co-defendants who were tried for a series of armed

bank robberies. A jury convicted Ewell of four counts of bank robbery, in violation of 18

U.S.C. § 2113, and four counts of using a firearm during the commission of a crime of

violence, in violation of 18 U.S.C. § 924(c). Adams, who participated in three of the four

bank robberies for which Ewell was convicted, was found guilty of three counts of bank

robbery, in violation of 18 U.S.C. § 2113, and three counts of using a firearm during the

commission of a crime of violence, in violation of 18 U.S.C. § 924(c). The District Court

sentenced Ewell to 910 months incarceration, and Adams to 610 months incarceration.

       On appeal, Ewell and Adams raise multiple claims of error. All but three of these

allege errors infecting the guilt phase of the trial. We had held this case C.A.V. pending

resolution of United States v. Trala, 386 F.3d 536 (3d Cir. 2004). For the reasons

expressed below, we find that the District Court did not abuse its discretion or commit

plain error in admitting expert testimony based upon STR/PCR DNA testing.1 Thus, we

        1
          Ewell and Adams also make the following contentions: Ewell contends that audiotapes
of his telephone conversations while in prison should not have been admitted into evidence, that
a mistrial and severance should have been granted after Adams testified about an uncharged
homicide, that a letter from Ewell which was sent to an accomplice should not have been
admitted into evidence, that a new trial should have been granted based on insufficiency of
evidence, and that the sentence imposed on Ewell constitutes cruel and unusual punishment; and

                                               2
affirm the convictions of Ewell and Adams and, under our decision in United States v.

Davis, 397 F.3d 173 (3d Cir. 2005), we remand the sentences for reconsideration in light

of United States v. Booker, 543 U.S. 220 (2005).


                                                I.

       Inasmuch as we write only for the parties, it is not necessary to recite the facts of

this case in detail. Appellants’ convictions were based, at least in part, on DNA evidence

obtained from masks used at the crime scene, which linked appellants to the crime. Prior to

trial, the District Court held a Daubert hearing on the admissibility of evidence obtained

from STR/PCR DNA analysis that linked the masks to Ewell and Adams. The District

Court decided to admit the evidence, and the central question on appeal is whether the

District Court’s decision constitutes an abuse of discretion. In particular, Ewell and Adams

argue that the testimony regarding STR/PCR DNA analysis violated FED. R. EVID. 7022




Adams contends that the prosecutor improperly vouched for a government witness during
summation, that two government witnesses improperly bolstered the testimony of another, that
the prosecutor improperly questioned Adams about statements Adams made to police at the time
of his arrest, that the District Judge inappropriately made a comment during a sidebar that was
audible to the jury, that the District Court erred by sentencing Adams based on facts not found
by a jury, and that the sentence imposed on Adams constitutes cruel and unusual punishment.
Some of these contentions are not properly preserved for appeal, and the remainder clearly lack
merit. We decline to address them at any length here.
       2
         “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.

                                                3
because it is unreliable, and FED. R. EVID. 6023 and the Confrontation Clause of the Sixth

Amendment because it was provided by a witness who did not conduct the tests himself

and who thus did not have personal knowledge of the matter about which he testified.

       “We review the decision to admit or reject expert testimony under an abuse of

discretion standard.” Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d

Cir. 2003). However, because appellants failed to object to the District Court’s alleged

denial of their right to confrontation, we review their Confrontation Clause claim for plain

error. See United States v. Adams, 252 F.3d 276, 283-85 (3d Cir. 2001).

       Recently, in United States v. Trala, 386 F.3d 536 (3d Cir. 2004), this court had

occasion to consider the reliability of STR/PCR DNA analysis. There, we held that

“PCR/STR DNA typing ... does in fact meet the standards for reliability and admissibility

set forth in Federal Rule of Evidence 702 and Daubert.” 386 F.3d at 541. As in Trala, the

decision below “provides a thorough and compelling analysis of the court’s rejection of

[Ewell and Adams’] challenges to the DNA evidence.” Id. at 542; see United States v.

Ewell, 252 F. Supp. 2d 104 (D.N.J. 2003). We conclude that the District Court did not

abuse its discretion in finding that the STR/PCR DNA testimony was sufficiently reliable.4

       3
         “A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence to
prove personal knowledge may, but need not, consist of the witness' own testimony. This
rule is subject to the provisions of rule 703, relating to opinion testimony by expert
witnesses.” FED. R. EVID. 602.
       4
         Appellants argue that Trala is not dispositive of the issues raised in their briefs because
it did not consider the particular challenges to STR/PCR DNA analysis that appellants advance
here. These challenges, however, go to the weight to be attached to the evidence, and not to its

                                                 4
       We also find appellants’ Rule 602 challenge to be without merit. Rule 602 “is

subject to the provisions of rule 703.” FED. R. EVID. 602. Rule 703 states that “[t]he facts

or data in the particular case upon which an expert bases an opinion or inference may be

those perceived by or made known to the expert at or before the hearing.” FED. R. EVID.

703. In other words, it is perfectly acceptable for an expert witness to testify, as the

government’s witness did, to facts or data ascertained by persons other than the witness.

Thus, the fact that the government’s witness did not personally conduct the tests about

which he testified is of no moment. The District Court did not violate FED. R. EVID. 602.

       Finally, we find that appellants were not denied their constitutional right to

confrontation when the District Court permitted the government’s expert witness to

testify5. Appellants quote Crawford v. Washington, 541 U.S. 36, 38 (2004) in their

supplemental brief as follows: “Where testimonial evidence is at issue, however, the Sixth

Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.” Appellants contend that, because the government’s

expert witness had no personal knowledge of the details of the testing that was performed

on the masks, appellants were deprived of the opportunity to cross-examine “the actual

witnesses against [them]: the DNA laboratory personnel who had actually performed (or



admissibility. Nothing in appellants’ argument, then, establishes that Trala ought not to govern
here.
        5
          While we review this claim only for plain error, we find no error of any kind with
respect to this claim, as explained in the text below, and the claim therefore would not give rise
to relief under any standard of review.

                                                5
possibly failed to perform) the tests.” However, because appellants fail to show (or even

argue) that they were somehow prevented from calling these “actual” witnesses

themselves, their reliance on Crawford is untenable. Appellants were able to cross-

examine the government’s expert witness at trial, and if they wanted to question those who

actually performed the tests on the masks, they should have called those individuals as

witnesses. Nothing in appellants’ brief suggests the District Court prevented them from

doing so. We therefore find no violation of appellants’ Sixth Amendment right to

confrontation.


                                             II.

         Adams challenges his sentence under Blakely v. Washington, 542 U.S. 296 (2004),

and Ewell challenges his sentence under both Blakely and United States v. Booker, 543

U.S. 220 (2005). This court has determined that the sentencing issues appellants raise are

best determined by the District Court in the first instance. United States v. Davis, 397 F.3d

173, 183 (3d Cir. 2005); see also United States v. Ordaz, 398 F.3d 236, 239 (3d Cir.

2005).



                                             III.

         For the foregoing reasons, we will affirm appellants’ judgments of conviction but

vacate their sentences, remanding to the District Court for re-sentencing of both Ewell and

Adams in accordance with Booker.


                                              6
