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


3-29-2007

USA v. Ford
Precedential or Non-Precedential: Precedential

Docket No. 05-4998




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PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                      Case No: 05-4998

              UNITED STATES OF AMERICA

                                v.

                       KELVIN FORD,

                               Appellant

                   _____________________

        On Appeal from the United States District Court
                  for the District of New Jersey
                  District Court No.: 04-cr-562
       District Judge: The Honorable Jerome B. Simandle
                    _____________________

       Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                      February 15, 2007

        Before: SMITH, FISHER, Circuit Judges, and
                  DOWD, District Judge *



   *
     The Honorable David D. Dowd, Jr., Senior District Judge
for the Northern District of Ohio, sitting by designation.
                   (Filed: March 29, 2007)

Ralph A. Jacobs
Jacobs & Associates LLC
34 Tanner Street
Haddonfield, NJ 08033
Counsel for Appellant

Christopher J. Christie
Sabrina G. Comizzoli
George S. Leone
970 Broad Street
Newark, NJ 07102
Counsel for Appellee

                  _____________________

                 OPINION OF THE COURT
                  _____________________


SMITH, Circuit Judge.

       A jury convicted Kelvin Ford of participating in the
robbery of two New Jersey banks on June 11, 2003 and June 12,
2003. The District Court sentenced him to 460 months of
incarceration for these offenses. He now appeals two issues




                             2
relating to his conviction and sentence.1 First, Ford asserts that
the District Court abused its discretion in permitting the
testimony of the Government’s shoeprint expert. Second, Ford
challenges the application of the Career Offender provision in
United States Sentencing Guideline § 4B1.1(a).

                               I.

       According to the evidence established at Ford’s trial, on
June 11, 2003, Ford, Donald Johnson, and Christopher Howard
robbed the Fleet Bank in Mays Landing, New Jersey, stealing
$9,802. On June 12, 2003, the trio robbed the Commerce Bank
in Somers Point, New Jersey, absconding with $10,330. The
Government presented evidence that during the Fleet Bank
robbery, Howard cased the bank, and Ford and Johnson
committed the robbery and then fled to a getaway car driven by
Howard. The robbery of the Commerce Bank was executed in
a similar fashion, except that Howard only cased the bank,
Johnson alone committed the robbery, and Ford drove the
getaway car. There is no dispute that as Johnson fled the
Commerce Bank, Ford, who was driving out of a fast food
restaurant, stopped to pick him up. Before Ford was able to
collect Johnson, however, he hit another vehicle whose driver


   1
    The District Court had subject matter jurisdiction pursuant
to 18 U.S.C. § 3231. This Court has jurisdiction over Ford’s
challenge to his conviction under 28 U.S.C. § 1291 and his
sentence under 18 U.S.C. § 3742.

                                3
was able to identify Ford’s automobile. Ford’s car was later
spotted by a police officer in Egg Harbor Township as it pulled
into a car dealership parking lot. Ford and Johnson left the
vehicle and fled on foot. While they hid, Ford used his cell
phone to contact Howard. Ford and Johnson were seen running
through a wooded area, and police pursued them, apprehending
both. A search of Ford revealed that he had $2,967 in cash. The
police recovered $7,376 from Johnson. The currency stolen from
the Fleet Bank branch was not recovered.

       In addition to the testimony of co-defendants Johnson
and Howard that Ford had been involved in the Fleet Bank
robbery, the Government presented evidence that three partial
shoeprints lifted from the counter in the bank were similar to the
type of imprints that would be made by the shoes that Ford was
wearing when he was apprehended. The jury convicted Ford of
both bank robberies.

       At sentencing, the Government sought the application of
the Career Offender provision to Ford on the basis of two prior
convictions for crimes of violence. One of those crimes was an
escape he attempted while incarcerated at Lorton Reformatory
in Virginia. The District Court found Ford’s escape to be a
crime of violence and agreed with the computation of his
criminal history category as a VI under the Guidelines.




                                4
                                 II.

       We review the District Court’s decision for abuse of
discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39
(1997); Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316,
320 (3d Cir. 2003); United States v. Sokolow, 91 F.3d 396, 402
(3d Cir. 1996). Ford argues that the District Court abused its
discretion in admitting the testimony of Government expert Eric
Gilkerson regarding the shoeprint because the testimony failed
to meet the standard for admissibility prescribed in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and
Federal Rule of Evidence 702.2 Ford asserts that because
Gilkerson could not provide a more conclusive opinion


   2
       Rule 702 provides that:

          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.

F ED. R. E VID. 702.

                                  5
regarding the likelihood that the shoeprint on the bank counter
was left by the soles of Ford’s shoes than mere similarity
between the prints and Ford’s shoes, the testimony lacked
probative value and should have been excluded under Federal
Rule of Evidence 401. Ford’s contentions find no support in
settled principles of evidence law.

        Gilkerson was permitted to testify that the characteristics
of Ford’s shoes put them in the class of shoes that could have
made the impression on the counter. Before admitting
Gilkerson’s testimony, the District Court conducted a Daubert
hearing. The two fundamental requirements of Daubert are (1)
reliability and (2) relevance. 509 U.S. at 590-91. The second
requirement should be evaluated under the standard expressed
in Rule 401. See, e.g., United States v. Prince-Oyibo, 320 F.3d
494, 504 (4th Cir. 2003) (“What Rule 702 does require ... is that
the district court make initial determinations that the proffered
evidence possesses sufficient evidentiary reliability to be
admissible as scientific, technical, or other specialized
knowledge and that the proffered evidence is relevant in the
sense that it will assist the trier of fact to understand the
evidence or to determine a fact in issue.” (emphasis added));
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265
(2d Cir. 2002) (“In fulfilling this gatekeeping role, the trial court
should look to the standards of Rule 401 in analyzing whether
proffered expert testimony is relevant....”). The District Court
exercised its gatekeeping function and determined that the
testimony was based on a reliable methodology, and that it

                                 6
would assist the trier of fact in determining the fact at issue.3
Daubert, 509 U.S. at 592-93; Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 149, 152 (1999). The District Court
properly found that the expert shoeprint testimony was based on
valid specialized knowledge and would aid the jury in making
comparisons between the soles of shoes found on or with the
defendant and the imprints of soles found on surfaces at the
crime scene. Id.; see, e.g., United States v. Rose, 731 F.2d 1337,
1345-47 (8th Cir. 1984).

        In particular, the District Court evaluated the “reliability
of the methods and reliability of their application to the case at
hand to determine ... whether there is a suitable fit between the
proffered opinion and the facts of the case and, second, whether
the opinion will be of assistance to the jury.” The Court found
that there was general acceptance of shoeprint analysis in both
the federal courts and the forensic community, the theory has
been subject to peer review and publication, the potential error
rate is known, 4 and there are standards and techniques

  3
      The defendant did not challenge Gilkerson’s qualifications.
   4
    Courts have admitted shoeprint identification evidence for
a long time. See generally T ERRENCE F. K IELY, F ORENSIC
E VIDENCE: S CIENCE AND THE C RIMINAL L AW 281-314 (2d ed.
2006). However, the rate of error in shoeprint identifications has
not been firmly established. In evaluating the expert testimony,
the District Court stated that “[t]he potential error rate is known
and it appears to be quite low, only dependent upon an error

                                 7
commonly employed in the analysis.5 The Court agreed that



made by an examiner rather than an error underlying [the]
theory.” Ford does not attack the admission of the evidence on
the basis of a lack of a sufficient error rate for the field as a
whole. His objections are to the method employed by the expert
and to the lack of confidence expressed by the expert in his own
conclusions.
   5
     We note the distinction between the forensic identification
sciences and the type of science typically at issue in Daubert
cases. Expert testimony based on empirical science “does things
like determining what substance something is (e.g., what is that
white powder?) or measuring the quantity of something (e.g.,
how much alcohol is in the murder victim’s blood?).” Michael
J. Saks, Banishing Ipse Dixit: The Impact of Kumho Tire on
Forensic Identification Science, 57 W ASH. & L EE L. R EV. 879,
881 (2000). Forensic identification science has a different
objective. Forensic identification evidence serves to “connect a
crime scene object or mark to the one and only source of that
object or mark.” Id. The reliability of these sciences rests upon
the experience and observational powers of their practitioners.
See, e.g., K IELY, supra note 4, at 293 (“The value of any such
impressions depends on its integrity and the preservation
methods used by police and forensic technicians.”). While a
strict application of the Daubert factors to forensic identification
sciences might be a fruitless exercise, due to the inherently
experiential nature of this type of expertise, the District Court
will be in the best position to make this determination. Kumho
instructs us that “relevant reliability concerns may focus upon

                                 8
Gilkerson followed the recognized techniques.

       The District Court found that Gilkerson’s opinion that the
class characteristic comparison showed similarity between
Ford’s shoe and the print was an acceptable opinion for
shoeprint experts to express under Daubert. The Court found
that “although the latent prints were not complete, ... there is
clearly sufficient underlying information to reliably express the
careful opinion ... regarding the similarity of characteristics and
the inability to rule out based upon any difference.”

       The Court then turned to the assistance that Gilkerson’s
testimony would provide the jury, and evaluated “whether it
provides in a reliable way some probative piece of evidence that
would be helpful to a lay jury in understanding the case and


personal knowledge or experience,” 526 U.S. at 150, which
counsels against any presumption for or against the admission
of evidence derived from forensic identification science. We
review these determinations under an abuse of discretion
standard, and recognize some of the difficulties inherent in this
type of science. See Craig M. Cooley, Reforming the Forensic
Science Community to Avert the Ultimate Injustice, 15 S TAN. L.
& P OL’Y R EV. 381, 391 (2004); Note, Reliable Evaluation of
Expert Testimony, 116 H ARV. L. R EV. 2142, 2154-60 (2003); see
generally W ILLIAM J. B ODZIAK, F OOTWEAR IMPRESSION
E VIDENCE: D ETECTION, R ECOVERY, AND E XAMINATION (2d ed.
2000). As we explained above, the District Court did not abuse
its discretion.

                                9
reaching a reliable conclusion.” The Court determined that it
did, stating that “[w]hat he brings to this that a lay jury does not
is his knowledge of ... shoeprint and forensic comparison in
general, [and] second, his ability to make the examination,
including [making] the direct print from the shoes themselves
for purposes of comparison and, third, his ability to overlay the
direct print and the lifted print....”

        By engaging in this evaluation, the District Court
followed the gatekeeping process contemplated in Daubert and
Kumho. The District Court assessed both the reliability and
helpfulness or relevance concerns expressed in Daubert. With
respect to reliability, the District Court heard Gilkerson’s
explanation of his methodology and found that it sufficiently
conformed to the Daubert factors. The Court’s relevance
determination was also proper. As the Supreme Court explained,
“Rule 702 further requires that the evidence or testimony ‘assist
the trier of fact to understand the evidence or to determine a fact
in issue.’ This condition goes primarily to relevance.” Daubert,
509 U.S. at 591. Gilkerson’s testimony, although cautious and
tempered, went directly to a key factual question in the case:
Whether the print on the counter was made by the shoes worn by
Ford on the day he was apprehended. This Court has previously
expressed the view that “the standard for this [relevancy] factor
‘is not that high.’” Lauria v. Nat’l R.R. Passenger Corp., 145
F.3d 593, 600 (3d Cir. 1998) (quoting In re Paoli R.R. Yard




                                10
PCB Litigation, 35 F.3d 717, 745 (3d Cir. 1994)).6 Gilkerson’s


   6
     The discussion of “fit” in Paoli indicated that the standard
for analyzing the fit of an expert’s analysis to the case at hand is
“not that high,” but is “higher than bare relevance.” Id. at 745.
That statement remains sound law inasmuch as it requires that
experts who purport to apply their principles and methods to the
facts of the case do so in a reliable manner. The Paoli Court’s
discussion of fit requires that expert opinions that apply
principles or methods to the facts of the case and produce
conclusions that have a debatable connection to the question in
issue be predicated on a reliable methodology. Id. This is the
critical import of Paoli’s discussion of fit within the context of
reliability. Outside of this relatively narrow setting, “fit” is a
relevance concern.
        Following Paoli, this Court reiterated the helpfulness
discussion in Daubert, and noted the Supreme Court’s
explanation that “[f]it is not always obvious, and scientific
validity for one purpose is not necessarily validity for other
unrelated purposes.” In re TMI Litigation, 193 F.3d 613, 670 (3d
Cir. 1999) (quoting Daubert, 509 U.S. at 591). We emphasized
again that “[t]his requirement [of ‘fit’] is one of relevance and
expert evidence which does not relate to an issue in the case is
not helpful.” Id.
        In its reconsideration of Daubert on remand, the Ninth
Circuit explained that
        [t]he Supreme Court recognized that the “fit”
        requirement “goes primarily to relevance,” but it
        obviously did not intend the second prong of Rule
        702 to be merely a reiteration of the general

                                11
testimony that Ford’s shoes could not be ruled out as the source
of the prints satisfies the basic relevancy standard in Federal
Rule of Evidence 401, as it makes a fact of consequence more
probable or less probable than it would be without the evidence.
See United States v. Allen, 390 F.3d 944, 949 (7th Cir. 2004)


        relevancy requirement of Rule 402. In elucidating
        the “fit” requirement, the Supreme Court noted
        that scientific expert testimony carries special
        dangers to the fact-finding process because it
        “‘can be both powerful and quite misleading
        because of the difficulty in evaluating it.’”
        Federal judges must therefore exclude proffered
        scientific evidence under Rules 702 and 403
        unless they are convinced that it speaks clearly
        and directly to an issue in dispute in the case, and
        that it will not mislead the jury.
Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1321 n.17
(9th Cir. 1995) (citations omitted) (emphasis added). Although
we do not adopt the apparent presumption of exclusion
enunciated by the Ninth Circuit, we agree with the spirit of our
sister court’s exhortation. In particular, district courts should
tread carefully when evaluating proffered expert testimony,
paying special attention to the relevance prong of Daubert.
        The question of fit here is not debatable, as it was in
Paoli. See Paoli, 35 F.3d at 779-81 (evaluating the fit between
expert testimony on animal studies and the question of human
exposure). Thus, we examine the question of whether
Gilkerson’s conclusions fit the factual question in issue in the
context of our relevance considerations.

                               12
(finding no abuse of discretion in allowing testimony that a print
could have been made by the defendant’s shoes, and noting that
“an expert need not have an opinion on the ultimate question to
be resolved to satisfy the relevance requirement” (quotation
marks omitted)). Whether the shoes that Ford was wearing
shortly after the June 12 robbery could have made the
impressions found on the bank counter after the June 11 robbery
was probative of Ford’s participation in the robberies, and
expert testimony that aids the jury to make such comparisons is
admissible. See United States v. Ferri, 778 F.2d 985, 988 (3d
Cir. 1985) (admitting testimony of an expert who compared
impressions inside the shoes found at site of attempted arson
with those inside the shoes seized from defendants’ residences,
and with their inked footprints); United States v. Ross, 263 F.3d
844, 846 (8th Cir. 2001); Rose, 731 F.2d at 1346-47.

       Ford relies on United States v. Ferreira, 821 F.2d 1 (1st
Cir. 1987), for the proposition that when an expert is unable to
render an opinion more precise than that the shoe impressions
from the bank counter and those made by the shoes the
defendant was wearing were “similar,” the opinion should be
excluded. We do not find Ferreira persuasive. In that case, the
shoeprint expert “testified that it was ‘possible’ but ‘not
probable’ that Ferreira’s Nike sneakers left [the] impression,”
and the District Court excluded his testimony as lacking in
probative value. Ferreira, 821 F.2d at 5. The First Circuit
concluded only that the District Court’s decision regarding
probative value was not clearly erroneous; it did not hold, as

                               13
Ford invites us to, that any opinion that is even the slightest bit
lukewarm fails to meet the requirements for admissibility. An
expert opinion that expresses a possibility that a crime scene
impression may have been made by shoes worn by the
defendant, and otherwise comports with the Daubert analysis,
is clearly relevant to the question of whether the defendant was
present at the scene of the crime.7




  7
    Indeed, due to the inherently closed factual universe created
by the Federal Rules of Evidence and the partisan decisions of
litigants in selecting experts, it is desirable to have expert
witnesses express their degree of confidence accurately. See
Samuel R. Gross and Jennifer L. Mnookin, Expert Information
and Expert Evidence: A Preliminary Taxonomy, 34 S ETON H ALL
L. R EV. 141, 143-44 (2003) (“[T]he degree of certainty
expressed by the witness should reflect both knowledge and its
limits, both what is known and what is not.”); id. at 170-71
(“Normally, a witness’s level of confidence is grist for the
adversarial mill....”); id. at 186. By confining the jury’s
considerations to the facts and opinions presented to them at
trial, the rules circumscribe the amount of available information.
Consequently, especially where expert testimony is concerned,
the Rules may create an artificially polarized world, leaving the
jury to evaluate the often contradictory testimony of dueling
experts. Because the parties are apt to select experts based on
their ability to provide highly favorable testimony, it is
preferable that, where there is cause for doubt as to a particular
opinion, the experts make clear any uncertainty.

                                14
                               III.

       Ford also contests the District Court’s application of the
Career Offender provision of the Sentencing Guidelines to him.
U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.1 (2004). He
asserts that the District Court erroneously treated his prior
conviction for escape as a crime of violence. Ford recognizes
that established Third Circuit case law in United States v.
Luster, 305 F.3d 199 (3d Cir. 2002), weighs against his
argument, 8 and argues that Luster should no longer be
controlling in light of United States v. Booker, 543 U.S. 220
(2005). Ford correctly acknowledges that Booker does not
directly address whether jury fact finding is necessary on the
question of whether a particular offense is a crime of violence.
Indeed, Booker expressly excludes the fact of prior conviction
from the purview of jury fact finding. Id. at 246 (“Any fact
(other than a prior conviction) which is necessary to support a



    8
     In fact, the case law of almost all of our sister courts of
appeals also stands in opposition to Ford’s argument. See, e.g.,
United States v. Adewani, 467 F.3d 1340, 1342 (D.C. Cir. 2006)
(“[T]he First Circuit joined us in concluding that escape is a
crime of violence, bringing the total number of circuits so
holding to eleven.”); but see United States v. Piccolo, 441 F.3d
1084, 1088-89 (9th Cir. 2006) (holding that “a walkaway escape
is not a crime of violence,” but noting that “an escapee who
flees a secured facility or the custody of an armed guard presents
a serious risk of injury to himself and others...”).

                               15
sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable
doubt.”).

        One of the facts that brought Ford within the scope of the
Career Offender provision was that he was convicted of the
crime of escape. We have already confirmed that every escape
is a crime of violence for purposes of § 4B1.1 because of its
serious potential to erupt into violence. Luster, 305 F.3d at 202.9
Consequently, no jury fact finding was required.




   9
     Ford also argues that a categorical approach to whether a
crime is properly considered to be a crime of violence is
inappropriate. We reject this argument. In support of his
contention that individualized fact finding is proper, Ford cites
to United States v. Kenney, 310 F.3d 135 (3d Cir. 2002), where
we looked beyond the mere fact of conviction for possession of
contraband by an inmate to determine the nature of the
contraband. However, Kenney did not involve a conviction for
escape, and in Kenney, we reaffirmed our commitment in Luster
to the categorical approach to escape as a crime of violence. Id.
at 137 (“[C]learly we should review this matter categorically as
the Sentencing Commission was concerned with the ‘nature’ of
the offense.” (emphasis added)). We continue to apply this
approach to the classification of escape for purposes of the
career offender provision.

                                16
                              IV.

       In conclusion, the District Court did not abuse its
discretion by admitting the expert testimony regarding the
shoeprint evidence. Nor did the Court err in applying the Career
Offender provision of § 4B1.1 to Ford on the basis of his prior
conviction for escape. We will affirm the judgment of the
District Court.




                                    17
