                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2004

USA v. Rutland
Precedential or Non-Precedential: Precedential

Docket No. 03-3915




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Recommended Citation
"USA v. Rutland" (2004). 2004 Decisions. Paper 540.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/540


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                        PRECEDENTIAL   George S. Leone
                                       Office of United States Attorney
        UNITED STATES                  970 Broad Street, Room 700
       COURT OF APPEALS                Newark, NJ 07102
     FOR THE THIRD CIRCUIT
          ____________                 Glenn J. Moramarco (Argued)
                                       Office of United States Attorney
             No. 03-3915               Camden Federal Building & Courthouse
            ____________               401 Market Street, 4 th Floor
                                       P.O. Box 2098
   UNITED STATES OF AMERICA            Camden, NJ 08101
                                              Attorneys for Appellee
                   v.                               ____________

          CHRIS RUTLAND                      OPINION OF THE COURT
                                                  ____________
           Christopher H. Rutland,
                                       FISHER, Circuit Judge.
                    Appellant                  Defendant Christopher H. Rutland
            ____________               appeals from his judgment of sentence,
                                       arguing that it was unfairly prejudicial to
         On Appeal from the            allow the government’s exceptionally-
     United States District Court      qualified handwriting expert to testify to
    for the District of New Jersey     the ultimate issue of authorship of key
     (D.C. No. 02-cr-00494-01)         documents. The Advisory Committee
            District Judge:            Note to Rule 403 of the Federal Rules of
  Honorable Dickinson R. Debevoise     Evidence states, unfair prejudice “means
            ____________               an undue tendency to suggest decision on
                                       an improper basis, commonly, though not
       Argued: March 29, 2004          necessarily, an emotional one.” It is not
                                       unfairly prejudicial to allow an expert to
       Before: ALITO, FISHER           testify to the ultimate issue. Jurors may
    and ALDISERT, Circuit Judges.      properly take an expert’s impressive
                                       experience and credentials into account
         (Filed : June 23, 2004)       when determining the weight of the
                                       expert’s testimony. Therefore, we will
Kenneth W. Kayser (Argued)             affirm the decision of the district court.
P.O. Box 2087
                                                    I. Background
Livingston, NJ 07039
      Attorney for Appellant                 Rutland was a financial advisor
                                       with Citicorp Financial Services when he
                                       met Helen Constans, an elderly widow, in
1990. Constans trusted Rutland to invest         forging checks drawn on Constans’
her money, and Rutland had access to             account made payable to Rutland or
Constans’ financial information, including       Grams.
the numbers and locations of her bank
                                                        Rutland and Grams were each
accounts as well as her social security
                                                 charged with one count of conspiring to
number. Rutland later prepared Constans’
                                                 obtain money and property through a
tax returns.
                                                 fraudulent scheme, in violation of 18
       Constans        wa s   eve ntually        U.S.C. § 371.
hospitalized, and later placed in a long-
                                                         The district court held a Daubert 1
term care facility in September of 1995.
                                                 hearing to determine the qualifications of
Her niece, Dorothy McCosh, attempted to
                                                 both the government’s handwriting expert
locate and sort Constans’ financial
                                                 and the defendants’ expert, a critic of the
documents. McCosh found an annuity
                                                 field of handwriting analysis. The district
statement that listed Barbara Grams as the
                                                 court found that both experts were
annuitant. McCosh did not know anyone
                                                 sufficiently qualified to testify at trial as
by the name of Grams. Because McCosh
                                                 expert witnesses.
knew that Rutland had been Constans’
financial advisor, McCosh twice contacted               Prior to trial, Rutland filed a motion
Rutland. Although Rutland and Grams              in limine to prevent the government’s
had been dating since 1987, Rutland              handwriting expert from opining regarding
claimed each time that he did not know           the authenticity of Constans’ signature on
Grams, and that the annuity statement that       the documents completed by Rutland and
listed Grams as the annuitant must have          Grams. The district court denied the
been a clerical error.                           motion.
       Rutland and Grams defrauded                      At trial, the government’s
Constans of more than $637,000. They             handwriting expert testified regarding his
bought luxury automobiles, built a home in       extensive qualifications and impressive
Arizona, and took vacations in Europe,           past experience.2 Then, he explained
Las Vegas, Florida, and the Carribean with
Constans’ money. They perpetrated the                   1
fraud by forging Constans’ signature on                  Daubert v. M e rrell D ow
multiple financial forms, including:             Pharmaceuticals, Inc., 509 U.S. 579
change of address forms changing                 (1993).
Constans’ address to Rutland’s or Grams’                2
                                                         The government’s handwriting
address; change of ownership forms
                                                 expert, Gus Lesnevich, testified that he
transferring ownership of Constans’
                                                 had been employed as a forensic document
financial accounts to Rutland or Grams;
                                                 examiner, or a handwriting expert, for
documents to open accounts naming
                                                 approximately 34 years.        He began
Grams as a joint owner with Constans; and
                                                 working in this field while serving in the

                                             2
background information and techniques               jury with tools to reach their own
used in handwriting analysis to provide the         conclusions about the authenticity of the
                                                    contested signatures.     Ultimately, the
                                                    expert applied his knowledge and opined
                                                    that the signatures were forgeries.
United States Army, and worked under the
direct supervision of senior document                     The defense expert attacked the
examiners. He completed a two-year                  general reliability of handwriting analysis.
Department of Defense program, and was
                                                          The jury convicted Rutland and
certified as an examiner of questioned
                                                    Grams.    The district court sentenced
documents.
                                                    Rutland to 51 months imprisonment and
        After leaving the Army and briefly
                                                    ordered him to make restitution of $553,
working in private practice, Lesnevich was
                                                    867. This timely appeal followed.
recruited by the Secret Service.          He
became the senior document examiner for                           II. Discussion
the Secret Service. He eventually left the
                                                           The issue before this court is
Secret Service, and has been employed in
                                                    narrow – whether expert opinion testimony
the private sector since 1981. He had
                                                    should reach the ultimate issue when the
testified as an expert for approximately 32
                                                    expert has exceptionally impressive
years in approximately 500 criminal and
                                                    credentials. Rutland argues that in light of
civil cases.
                                                    the expert’s credentials and experience in
        Lesnevich is a member of several
                                                    high-profile cases, “the probative value of
professional associations and is certified
                                                    his opinion on authorship was substantially
by the Department of Defense and the
                                                    outweighed by the danger that the jury
American Board of Forensic Document
                                                    would accept his opinion based on his
Examiners.       Lesnevich has analyzed
                                                    extraordinary experience rather than on his
documents for the governments of the
                                                    underlying analysis... .” Rutland contends
United States, South Korea, South
                                                    that when the district court permitted the
Vietnam, Australia, New Zealand, Great
                                                    expert to opine that the contested
Britain, and France. During Rutland’s
                                                    signatures were not signed by Constans,
trial, Lesnevich testified about some of the
                                                    the probative value of the testimony was
prominent parties involved in cases he
                                                    substantially outweighed by prejudice to
worked on as a handwriting expert: the
                                                    the defendant.
Iran-Contra Affair, Oliver North, Richard
Secord, Caspar Weinberger, Michael                         The district court had subject matter
Milken, Leona Helmsley, Imelda Marcos,              jurisdiction pursuant to 18 U.S.C. § 3231.
the office of Kenneth Starr, and organized          We have jurisdiction of this timely appeal
crime cases.                                        pursuant to 28 U.S.C. § 1291. Our
        Lesnevich has testified in both civil       applicable standard of review for
and criminal cases, for prosecutors as well         evidentiary rulings is abuse of discretion.
as defense attorneys.

                                                3
Kumho Tire Co. v. Carmichael, 526 U.S.                       of this risk, the judge in weighing
137, 152-53 (1999); United States v.                         possible prejudice against probative
Velasquez, 64 F.3d 844, 847-48 (3d Cir.                      force under Rule 403 of the present
1995).                                                       rules exercises more control over
                                                             experts than over lay witnesses.”
        A witness may testify as an expert
if (1) the proffered witness is actually an           Daubert, 509 U.S. at 595 (citations
expert; (2) the expert testifies to scientific,       omitted).
technical, or specialized knowledge; and
                                                              The probative value of expert
(3) the expert's testimony assists the trier
                                                      testimony substantially outweighing the
of fact. Fed. R. Evid. 702; Velasquez, 64
                                                      danger of unfair prejudice, confusion of
F.3d at 849. Additionally, testimony “in
                                                      issues, or misleading the jury has been
the form of an opinion or inference
                                                      discussed in the context of the substance
otherwise admissible is not objectionable
                                                      of testimony. See generally, In re Paoli
because it embraces an ultimate issue to be
                                                      R.R. Yard PCB Litigation, 113 F.3d 444
decided by the trier of fact.” Fed. R. Evid.
                                                      (3d Cir. 1997); Soldo v. Sandoz
704(a). In Velasquez, we determined that
                                                      Pharmaceuticals Corp., 244 F. Supp. 2d
handwriting analysis qualifies as scientific,
                                                      434 (W.D. Pa. 2003); United States v.
technical, or specialized knowledge.
                                                      Nguyen, 793 F. Supp. 497 (D.N.J. 1992).
Velasquez, 64 F.3d at 850-51.                A
                                                      The probative value of expert testimony
handwriting expert may testify to the
                                                      substantially outweighing the danger of
ultimate issue in a case. Fed. R. Evid.
                                                      unfair prejudice has not been addressed in
704(a).
                                                      the context of the qualifications and
       Daubert states that many factors               credentials of the expert, and Rule 403 has
must be considered when admitting expert              not been applied to limit an expert’s
testimony:                                            testimony based solely upon the expert’s
                                                      highly impressive credentials.
              [A] judge assessing a proffer
       of expert scientific testimony under                   Rutland suggests that juries accept
       Rule 702 should also be mindful of             expert opinions based upon the strength of
       other applicable rules. ... Rule 403           the experts’ experience rather than on the
       permits the exclusion of relevant              quality of analysis. He contends that the
       evidence “if its probative value is            probative value of the exceptionally well-
       substantially outweighed by the                qualified expert’s testimony is outweighed
       danger of unfair prejudice,                    by unfair prejudice caused solely by his
       confusion of the issues, or                    stellar qualifications. We reject Rutland’s
       misleading the jury... .”... “Expert           novel argument.
       evidence can be both powerful and
                                                            The term unfair prejudice “means
       quite misleading because of the
                                                      an undue tendency to suggest decision on
       difficulty in evaluating it. Because
                                                      an improper basis, commonly, though not

                                                  4
necessarily, an emotional one.” United
States v. Cross, 308 F.3d 308, 324 n.23 (3d
Cir. 2002), quoting Advisory Committee
Note to Rule 403. An expert’s experience
and credentials are properly taken into
account by jurors when determining how
much weight to give the expert’s
testimony. Holbrook v. Lykes Bros. S.S.
Co., Inc., 80 F.3d 777, 782 (3d Cir. 1996).
The past experience of expert witnesses
properly influences the weight the
testimony should receive. Velasquez, 64
F.3d at 848.
        Rutland’s suggestion of limiting an
expert from testifying to the ultimate issue
if the expert has stellar qualifications leads
to an absurd result. Parties would be
forced to determine if their proposed
experts were overly qualified, and find less
qualified experts.         Expert opinions,
valuable to the trier of fact because they
are the opinions of highly skilled and
qualified experts, would be provided by
less qualified experts.
       This Court will not limit an expert’s
testimony based merely upon the expert’s
qualifications.
              III. Conclusion
       Unfair prejudice suggests a decision
on an improper basis. It is not improper
for jurors to consider an expert’s
experience and credentials whe n
determining the weight of the expert’s
testimony.
        Accordingly, the judgment of the
district court will be AFFIRMED.



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