U.S. v. MAHONE

03-93-B-W.

328 F.Supp.2d 77 (2004) | Cited 6 times | D. Maine | August 6, 2004

ORDER REGARDING MOTIONS IN LIMINE

I. Introduction

Charged with attempted bank robbery and interstate transport ofa stolen vehicle, the Defendant filed three motions in liminebefore the Court to test the admissibility of the followingevidentiary matters: (1) his prior convictions under Federal Ruleof Evidence 609 (Docket # 50); (2) certain incidents prior to hisarrest on the instant charge (Docket # 51); and (3) underDaubert, expert testimony on footwear impressions (Docket #52). On June 25, 2004, the Court received evidence on theDaubert issue and heard oral argument on all motions. Afterreviewing the evidence and the parties' memoranda, the Courtreaches the following conclusions: 1. If the Defendant takes the stand, his prior conviction for forgery may be admitted under Federal Rule of Evidence 609(a)(2) and his prior conviction for theft by receiving stolen property may be admitted under Rule 609(a)(1); 2. If the Government establishes the necessary foundation, evidence of the incidents involving receipts from a Burger King and the theft of a safe belonging to the Defendant's former roommate may be admitted under Rule 404(b); and, 3. Expert testimony regarding footwear impression evidence may be admitted. II. Prior Convictions A. Background

Without referring to specific past convictions, the Defendantasked the Court for guidance regarding the admissibility of"any prior convictions . . . in the event that he chooses totestify." (See Def.'s Mot. Regarding Convictions (Docket # 50))(emphasis added). The Government cites four prior convictions asinvolving "theft and/or dishonesty" (See Gov't Resp. RegardingConvictions (Docket # 60)) under Rule 609: robbery reduced toaggravated assault, theft by receiving stolen property, andsecond-degree forgery, all on March 5, 2001, in Arkansas; andpossession of a controlled substance, on April 22, 2003, also inArkansas.1

The robbery, theft by receiving and forgery charges stem froman incident on April 24, 2000. The Defendant presented a forgedreceipt at a Wal-Mart and, when the store attempted to detainhim, he almost struck a Wal-Mart employee with his car. Mahonepossessed a stolen credit card at the time. Count I of thecharging information alleged Mahone "unlawfully, feloniously, andwith the purpose of committing a theft or resisting apprehensionimmediately thereafter . . . employed or threatened to employphysical force upon Terry Woodford." (Exhibit A to Docket # 60).The charge was later reduced to aggravated assault. Count IIalleged Mahone "feloniously did receive, retain or dispose ofstolen property, to wit credit cards, such being the property ofJohn Wilroy. . . ." Count III alleged second-degree forgery,stating Mahone forged a Wal-Mart receipt in an attempt to defraudthe store. On March 5, 2001, Mahone was found guilty of thecharges. He served seven days in jail, was placed on 60 months ofprobation, ordered to undergo psychological counseling, was fined$500.00, and was prohibited from having contact with Wal-Martstores. Less information is available regarding the possession ofcontrolled substance conviction. A one-page Ticket Information,dated October 18, 2001, imposes a fine and a sentence but detailsof the crime and penalty are not clear from the record.

Based on this information, the Court concludes underRule 609 evidence of the Defendant's prior convictions for forgery andtheft by receiving stolen property is admissible; however,evidence of the Defendant's prior convictions for robbery reducedto aggravated assault and possession of a controlled substance isnot admissible.2

B. Discussion

1. Legal Standard

Federal Rule of Evidence 609(a) governs admissibility of priorconvictions for the purpose of impeaching a witness: For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and, (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.(emphasis added). Any felony conviction, whether or not for acrime involving "dishonesty or false statement," is admissibleunder Rule 609(a)(1) if the district court determines that itsprobative value outweighs the prejudicial effect on the defendantunder Rule 403.3 United States v. Grandmont, 680 F.2d 867 (1st Cir. 1982); United States v.Mahone, 537 F.2d 922, 928-29 (7th Cir. 1976). However,convictions for felonies or misdemeanors involving "dishonesty orfalse statement" are admissible under Rule 609(a)(2) withoutregard to the balancing test of Rule 403. United States v.Kiendra, 663 F.2d 349, 353-55 (1st Cir. 1981). Admission ofthese offenses is mandatory, not within the discretion of thedistrict court. Id.; United States v. Tracy, 36 F.3d 187, 192(1st Cir. 1994), cert. denied, 514 U.S. 1074 (1995) (citingH.R. Conf. Rep. No. 93-1597, 93rd Cong., 2d Sess. 9 (1974)).Given the admission requirement of Rule 609(a)(2), the Court willfirst consider the prior convictions under that subpart.

2. Rule 609(a)(2): Mandatory Admissions

a. Forgery

Forgery is plainly within Rule 609(a)(2)'s scope of crimes ofdishonesty and false conduct. Congress explained such crimesinclude "perjury, false statement, criminal fraud, embezzlementor false pretense, or any other crime in the nature of thecrimen falsi, the commission of which involves some elementof deceit, untruthfulness, or falsification bearing on theaccused's propensity to testify untruthfully." Id. Thoughforgery is not specifically listed in the congressional report,forgery clearly "involves some element of deceit, untruthfulness,or falsification bearing on the accused's propensity to testifytruthfully." Indeed, other circuits that have considered forgeryin light of Rule 609(a)(2) have concluded it is a crime ofdishonesty. E.g., United States v. Owens, 23 Fed. Appx. 550(7th Cir. 2001); United States v. Newman, 849 F.2d 156 (5thCir. 1988); United States v. Bay, 748 F.2d 1344 (9th Cir. 1984)(superseded on other grounds). This Court holds that the Defendant's priorconviction for forgery must be admitted under Rule 609(a)(2).

b. Theft by Receiving

Whether theft by receiving is a crime of dishonesty underRule 609(a)(2) is a question not so easily answered. A series of casesbetween 1979 and 1982 shaped the First Circuit's treatment ofsuch crimes under Rule 609(a)(2). In United States v. Brown,603 F.2d 1022 (1st Cir. 1979), the First Circuit cited then-JudgeBurger's opinion in Gordon v. United States, 383 F.2d 936, 940(D.C. Cir. 1967), that "acts of deceit, fraud, cheating, orstealing . . . are universally regarded as conduct whichadversely reflects on a man's honesty and integrity." 603 F.2d at1029. Accordingly, the Brown court ruled a defendant's burglaryand larceny convictions were admissible under Rule 609(a)(2) as"having a bearing on honesty which is directly related tocredibility." Id. Almost two years after Brown, the FirstCircuit reinforced its broad interpretation of crimes ofdishonesty in United States v. Del Toro Soto, holding adefendant's prior grand larceny conviction "could certainly beintroduced under [Rule 609(a)(2)] on the general question of thedefendant's credibility."4 676 F.2d 13, 18 (1st Cir.1982). However, only months after Del Toro Soto, the FirstCircuit tempered its reading of crimes of dishonesty in UnitedStates v. Grandmont, holding a defendant's prior robberies,which were, in fact, purse snatchings, were not perpetuated bydeceitful or fraudulent means and were not, therefore, admissibleunder Rule 609(a)(2). 680 F.2d at 871. Grandmont remains theFirst Circuit's stance on robberies under the rule and, by extension,it seems, on the crime of receipt of stolen property.5

Here, the record does not establish whether the Defendant'sreceipt of the stolen credit card was a crime perpetuated bydeceitful or fraudulent means, though it seems highly probable.Ultimately, the Court need not reach a decision on the sparserecord before it regarding the theft by receiving conviction andRule 609(a)(2) because, as discussed below, the conviction isadmissible under Rule 609(a)(1).

c. Robbery Reduced to Aggravated Assault

Grandmont specifically addressed robbery as a crime ofdishonesty under Rule 609(a)(2), saying, "robbery per se isnot a crime of dishonesty within the meaning of 609(a)(2)" and isnot admissible under Rule 609(a)(2) "absent a showing that it wasperpetuated by deceitful or fraudulent means." 680 F.2d at 871.No such showing has been made in this case; therefore, the Courtwill not admit the conviction as a crime of dishonesty.

Similarly, assault is not a crime of dishonesty underRule 609(a)(2). United States v. Meserve, 271 F.3d 314, 328 (1stCir. 2001) (stating "609(a)(2) requires some element of deceit,untruthfulness, or falsification which would tend to show anaccused would be likely to testify untruthfully, elements notreadily apparent in assault").

d. Possession of Controlled Substance

The dearth of information available regarding this convictionprevents the Court from determining whether it is a crime ofdishonesty under Rule 609(a)(2). Absent such evidence, the Courtdeclines to admit the prior conviction under that rule. 3. Rule 609(a)(1): Probative Value/Prejudicial Effect

To balance probative value and prejudicial effect underRule 609(a)(1), the Court must consider a number of factors: (1)whether the nature of the crime bears on the defendant'scredibility and veracity; (2) the defendant's conduct since theconviction and whether the conviction is remote in time; (3)whether similarities between the conviction and the pendingcharges make it more likely a jury would use the evidenceimproperly; (4) whether admission will affect the defendant'sdecision to testify; and, (5) the centrality of the defendant'scredibility to the issue at trial. Grandmont, 680 F.2d at 872n. 4; Gordon, 383 F.2d at 940-41. The Court must also considerRule 609(a)(1)'s threshold requirement that the crime waspunishable by death or imprisonment in excess of one year. Thedefendant bears the burden of showing the trial court shouldexclude evidence of his prior convictions. Gordon, 383 F.2d at940.

a. Theft by Receiving

The probative value of the Defendant's conviction for theft byreceiving stolen property outweighs any prejudicial effect ofadmitting the evidence. The nature of the crime reflects on theDefendant's credibility and veracity; the conviction occurred in2000 and the Defendant was on probation from the conviction whenarrested on the instant charges; and the difference betweenpossessing a stolen credit card and robbing a bank is sufficientthat a jury will not likely consider it "propensity" evidence.While the Defendant's credibility may be a central issue at trialif he chooses to testify, the possibility that admission of thisevidence will discourage him from taking the stand is notsufficient to outweigh its probative value. In Gordon,then-Judge Burger explained the court should only weigh theeffect admission would have on the defendant's taking the standwhere it has determined the prior conviction is otherwiseadmissible. 383 F.2d at 941 n. 11. Gordon suggests the courtrefer back to whether the prior conviction bears on the defendant's credibility and veracity:"[T]he judge may want to evaluate just how relevant tocredibility the prior convictions are; for example, a recentperjury conviction would be difficult to ignore even where thedefendant's testimony would be of great importance." Id. Here,the Defendant's prior (and recent) conviction for theft byreceiving stolen property is impossible to ignore, even if itaffects his decision to testify. Further, the conviction waspunishable by a term of imprisonment in excess of one year. SeeArk. Code §§ 5-36-106, 5-4-401(a)(4).

b. Robbery Reduced to Aggravated Assault and Possession ofControlled Substance

Neither of the remaining convictions at issue bears on theDefendant's credibility or veracity. Though the convictionsoccurred close in time to the instant charges, and though theconvictions are sufficiently dissimilar to the instant chargethat it is unlikely a jury would consider this propensityevidence, the record before the Court does not establish that theconvictions relate to the Defendant's propensity to testifytruthfully such that they can be admitted under Rule 609(a)(1).See Meserve, 271 F.3d at 328.

C. Prior Conviction Conclusion

For the reasons stated above, in the event the Defendant takesthe stand, his prior conviction for forgery is admissible underRule 609(a)(2) and his prior conviction for theft by receivingstolen property is admissible under Rule 609(a)(1). However,based on the record before the Court at this time, theDefendant's prior convictions for robbery, reduced to aggravatedassault, and possession of a controlled substance are notadmissible under Rule 609(a)(1). III. Other Acts

A. Background

The Defendant moved to exclude (1) evidence relating to anincident on November 15, 2003, when he allegedly receivedapproximately $1,200.00 in receipts from a Burger King from hisgirlfriend, Zuzana Preikova, and failed to deposit the money in abank's night deposit box, as she asked him to do; and, (2)evidence relating to an incident on November 20, 2003, when heallegedly stole a safe containing $265.00 from a former roommate.The Defendant argues these incidents bear no similarity to theconduct charged here and are precluded by Federal Rules ofEvidence 403 and 404(b). The Government responds the incidentsshould be admitted under Rule 404(b) as reflective of theDefendant's motive to commit the offenses charged and identity.

B. Discussion

1. Legal Standard

Federal Rule of Evidence 404(b) provides, in part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .Rule 404(b) functions to exclude evidence of a defendant's priorbad acts as proof of his criminal character or propensity tocommit crimes of the sort for which he is on trial. To admitevidence of prior bad acts for other purposes under the rule, acourt must find the evidence passes two tests. United States v.Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000). First, theevidence must have a "special relevance" to an issue in the case,such as intent or knowledge, and must not include "bad characteror propensity as a necessary link in the inferential chain."Id. (quoting United States v. Frankhauser, 80 F.3d 641, 648(1st Cir. 1996)). The "special relevance" cannot be the defendant's propensity to commit crimes. United States v.Fields, 871 F.2d 188 (1st Cir. 1989). Second, under Rule 403,evidence that is specially relevant may still be excluded if itsprobative value is substantially outweighed by the danger ofunfair prejudice.6 Varoudakis, 233 F.3d at 118; UnitedStates v. Decicco, 370 F.3d 206, 211 (1st Cir. 2004) (citingVaroudakis). In addressing the probative value of other acts,the First Circuit has considered the remoteness in time of theother acts and the degree of resemblance between the other actsand the crime charged. Id.; Fields, 871 F.3d at 197.

When prior bad act evidence is offered to prove a motive forthe crime, courts must be on guard to prevent the motive labelfrom being used to smuggle forbidden evidence of propensity tothe jury. Varoudakis, 233 F.3d at 118 (quoting 22 Charles A.Wright & Kenneth A. Graham, Jr., Federal Practice andProcedure, § 5240 (1978)). In United States v. Varoudakis, theFirst Circuit distinguished between admissible motive evidenceand inadmissible propensity evidence. In that case, a districtcourt admitted evidence of a defendant's prior burning of aleased car in his trial for arson in connection with the burningof his restaurant. The district court concluded the car fireevidence was specially relevant to his motive because, in bothinstances, he allegedly committed arson to alleviate a financialburden by collecting insurance proceeds. The First Circuitvacated the district court's judgment, ruling the evidenceinvolved an improper propensity inference: As proof of motive, the car fire testimony is offered as circumstantial evidence that [the defendant] committed the [restaurant] fire. It involves an inference of propensity as "a necessary link in the inferential chain." Frankhauser, 80 F.3d at 648. Put most simply, the government argues that [the defendant's] commission of the car fire arson in response to financial stress makes it more likely that he committed the restaurant arson in response to financial stress. Contrast this forbidden inference with the permissible inference to be drawn in which the prior bad act — say, a botched robbery by the defendant that was frustrated by the ineptitude of his cohort — provided the motive for the defendant's subsequent assault on his cohort. There, the prior bad act would provide circumstantial evidence of the commission of the assault without the involvement of any propensity inference.233 F.3d at 120.

2. Burger King Receipts

The incident involving the Burger King receipts bears a specialrelevance to the crimes charged in this matter because itsupports the Government's case for the Defendant's motive. Ms.Preikova told police officers the Defendant said he participatedin the activities at the bank because he had lost the Burger Kingreceipt money and was trying to "help her out with the money fromthe missing bank deposit." (See Exhibit 2 to Gov't Resp.Regarding Other Acts (Docket # 61)). The evidence is not beingused to demonstrate the Defendant's propensity to commit crimesand does not require propensity as a necessary link in theinferential chain. This situation is distinguishable from thefacts considered in Varoudakis, as evidence of the Burger Kingreceipt incident explains why the Defendant may have committedthe crime charged, not that the Defendant has committed a crimesimilar to the one charged and, therefore, likely committed thecrime charged.

Further, the probative value of this evidence outweighs anyprejudicial effect of its admission. While the failure to make abank deposit differs greatly from bank robbery — it is one thingto fail to deposit and quite another to make a forced withdrawal— there is little danger the evidence will sway the jury towardsa conviction on an emotional basis. Contrary to defense counsel's argument, the alleged incident was not remote in timeto the crime charged — it occurred four days before the bankrobbery. The closer proximity between the two events enhances theprobative value.

3. Safe Theft

The Government contends the Defendant committed the bankrobbery on November 19, 2003, and stole the safe from his formerroommate on November 20, 2003. The Defendant left a noteadmitting to having taken property and explaining he needed themoney to "get out of here." (See Exhibit 2 to Gov't Resp.Regarding Other Acts (Docket # 61)). The Defendant was arrestedin New Hampshire on December 12, 2003, while in possession of astolen vehicle. Police officers located the safe inside thevehicle. Evidence of the alleged safe theft bears a specialrelevance to the crimes charged because it establishes theDefendant's identity as the person who stole the vehicle and is,therefore, intertwined with the stolen vehicle charge. Theevidence does require propensity be a necessary link in theinferential chain; instead, it supports the Government'sallegation that the Defendant stole the vehicle, since the safethat he also allegedly stole was recovered from the vehicle.

Moreover, the probative value of such evidence outweighs anyprejudicial affect resulting from its admission. As with evidenceregarding the Burger King receipts, the alleged safe theft doesnot make it likely a jury will convict the Defendant on anemotional basis. At the same time, the evidence is highlyprobative of whether he is guilty of interstate transportation ofa stolen vehicle. Additionally, the probative value is enhancedby the closer proximity of theft of the events. C. Other Acts Conclusion

If the Government establishes the foundation under Rule 404(b),evidence of alleged acts involving the Burger King receipts andthe theft of a safe from the Defendant's former roommate may beadmitted. The Defendant's Motion in Limine is DENIED.

IV. Expert Testimony: Footwear Impression Evidence

A. Background

The Government seeks to introduce footwear impression evidencethrough the testimony of Cynthia D. Homer, a forensic scientistwith the Maine State Police Crime Laboratory in Augusta, Maine.At an exhaustive Daubert hearing before this Court on June 25,2003, Ms. Homer testified at length to the methodology andprinciples of footwear impression evidence as a forensic science.The Defendant challenges the evidence on four main grounds: (1)that the Government failed to demonstrated Ms. Homer'squalifications as an expert; (2) that the Government failed toshow her methodology is reliable; (3) that Ms. Homer failed tofollow the proposed methodology in this instance; and (4) moregenerally, that expert testimony is unnecessary because thefootwear evidence can be evaluated by a lay person. This Court isrequired to make a preliminary evaluation of the reliability ofexpert testimony, even in the absence of an objection. Hoult v.Hoult, 57 F.3d 1, 5 (1st Cir. 1995). The Government, as theproponent of the evidence, has the burden to show that "theexpert's conclusion has been arrived at in a scientifically soundand methodologically reliable fashion". United States v.Mooney, 315 F.3d 54, 63 (1st Cir. 2002) (quoting Ruiz-Troche v.Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85 (1st Cir.1998)). This Court will, therefore, review the evidence todetermine whether it has met Daubert standards generally andwill address the Defendant's objections specifically. B. Discussion

1. Legal Standard

Federal Rule of Evidence 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.7

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the SupremeCourt held Rule 702 imposes a gate-keeping role on the trialjudge to ensure an expert's testimony both rests on a reliablefoundation and is relevant to the task at hand 509 U.S. 579, 597(1993); see Kumho Tire Co. v. Carmichael, 526 U.S. 137,147-49 (1997) (holding Daubert applies to technical and otherspecialized expert testimony).8 A preliminary questionmust be the qualification of the person to be an expert witness,since the relaxation of the "usual requirement of firsthandknowledge or observation" is premised on "an assumption that theexpert's opinion will have a reliable basis in the knowledge andexperience of his discipline." Daubert, 509 U.S. at 592. Inexamining whether to admit the substance of a proffered expert'stestimony, a court should consider the following factorsidentified by Daubert: (1) whether the theory or technique canbe or has been tested; (2) whether the technique has been subjectto peer review and publication; (3) the technique's known orpotential error rate; and, (4) the level of the theory ortechnique's acceptance within the relevant discipline. 509 U.S.at 593-94. These factors, however, are not definitive orexhaustive, and the trial judge enjoys broad latitude to useother factors to evaluate reliability. United States v. Mooney, 315 F.3d 54, 61 (1st Cir.2002) (citing Kumho Tire, 526 U.S. at 153). The trial judge mayeven determine which of the Daubert factors to apply dependingon the nature of the issue, the expert's particular expertise,and the subject of her testimony. Kumho Tire, 526 U.S. at 150.

Daubert does not require "the party who proffers the experttestimony carry the burden of proving to the judge that theexpert's assessment of the situation was correct." Mooney, 315F.3d at 63 (quoting Ruiz-Troche, 161 F.3d at 85). Once atrial judge determines the reliability of the expert'smethodology and the validity of her reasoning, the expert shouldbe permitted to testify as to inferences and conclusions shedraws from it and any flaws in her opinion may be exposed throughcross-examination or competing expert testimony. Id.

2. Compliance with Daubert Standards Generally

The Daubert interpretation of Rule 702 and its 2000 amendmentrequire the trial judge to evaluate an expert's proposedtestimony for both reliability and relevance prior to admittingit. Daubert, 509 U.S. at 589-90; Ruiz-Troche, 161 F.3d at 80.This Court need not tarry with the general requirements ofDaubert. Ms. Homer's lengthy testimony provided ample evidencethat her proposed testimony meets or exceeds Daubertrequirements for admissibility. The science of footwear analysisis neither new nor novel; expert testimony on footwearcomparisons has been admitted in courts in the United States foryears.9 United States v. Rodgers, 85 Fed. Appx. 483,486-87 (6th Cir. 2004), cert. denied, 124 S.Ct. 2192 (2004);United States v. Ross, 263 F.3d 844, 846-47 (8th Cir. 2001); United States v. Allen,207 F. Supp.2d 856, 866 (N.D. Ind. 2002); United States v.Youngberg, 43 M.J. 379 (C.A.A.F. 1995).10 Ms. Homerestablished that the theory and technique of footwear comparisonshave been tested, that the science has been subject to peerreview and publication, that the scientific technique has beenevaluated for its known or potential error rate, and that thescience of footwear analysis has by now been generally accepted.Daubert, 509 U.S. at 593-94; Mooney, 315 F.3d at 62.

As the First Circuit explained in Ruiz-Troche, Daubertimposed a "special relevance requirement" for the admission ofexpert testimony. Ruiz-Troche, 161 F.3d at 81. The testimonymust be not only relevant under Rule 402, but in the "incrementalsense that the expert's proposed opinion, if admitted, likelywould assist the trier of fact to understand or determine a factin issue." Id. Even under this heightened standard, Ms. Homer'sproffered expert opinion is also relevant, linking the Defendantto the scene of the bank robbery.

The Court will now turn to the Defendant's specific issues.

3. Defendant's Specific Objections

a. Ms. Homer's Qualifications

The Defendant attacked Ms. Homer's qualifications to giveexpert testimony on footwear comparisons. The attack centered onher membership in the International Association forIdentification (IAI). He noted that the IAI proclaimed itself the"most prestigious professional association of its kind in theworld. . . ." The Defendant argued Ms. Homer status as an activemember of the IAI entails "nothing more than being employed as aforensic examiner and paying a yearly fee." (See Def.'sPost-Hearing Mem. at 5-6 (Docket # 69)). He went on to point out Ms. Homer lacked the necessary combination of education andexperience which the IAI requires for certification as a"Footwear Examiner".

The Government submitted Ms. Homer's curriculum vitae, whichdescribes her training and qualifications in the area of forensicscience. Gov't Ex. A. Ms. Homer received a Bachelor of Sciencedegree in chemistry in 2000 and a Masters in Forensic Science in2001. She has over two years experience as a forensic scientistat the State Police Crime Lab and has undergone substantialtraining in latent print development, footwear and tire trackanalysis, forensic photography, and crime scene processing, amongother areas. Ms. Homer is a member of a number of professionalassociations and instructed numerous groups on topics such ascrime scene processing and latent print detection. She alsoundergoes yearly proficiency testing in the disciplines in whichshe specializes. The sum of Ms. Homer's academic training andpractical experiences qualifies her as an expert to opine on thisissue. See United States v. Rose, 731 F.2d 1337 (8th Cir.1984) (qualifying police department employee as expert onshoe-print comparisons; pre-Daubert case).

Ms. Homer's qualifications as an expert witness do not hinge onwhether she has been certified as a footwear examiner by the IAI.There is no evidence that the IAI is the sole footwear examinercertifying body or that its footwear examining certificate is aprerequisite for expertise in the field. Moreover, an expertwitness need not be an outstanding practitioner in the field norhave certificates of training in the particular subject. UnitedStates v. Moore, 553 F.2d 1013, 1024 (6th Cir. 1977).

b. Daubert Standards: Methodology

Daubert and Rule 702 mandate the expert testimony be the"product of reliable principles and methods." F.R.E. 702;Ruiz-Troche, 161 F.3d at 81 ("[M]ethodology remains the central focus of a Daubert inquiry"). The Defendant challenged Ms.Homer's methodology as follows: (1) he contends the methodologyis flawed, because there are no "objective identificationstandards,"11 (See Def.'s Post-Hearing Mem. at 3(Docket # 69)); and, (2) in the absence of supporting data, theexpert's conclusions are merely lay observations a fact finderwould be equally competent to make. Id.

Ms. Homer explained the testing process used by footwearimpression examiners as following the acronym ACE-V: Analysis;Comparison; Evaluation; and Verification. The first stageof the process entails analyzing an impression taken from thecrime scene for class characteristics, or markings common to allshoes of that type, and unique or accidental characteristics,peculiar to the shoe that made the imprint. During the comparisonphase, the crime scene impression is matched against animpression of the shoe submitted for comparison. The prints maybe compared by superimposing one image over the other or byviewing the images side by side. In the final stage, the examinerapplies her training and expertise to evaluate the comparisonsand draw conclusions. The conclusions are then re-examined byanother examiner according to the ACE process.,1213

Ms. Homer testified the ACE-V methodology's known error rate iszero. The Defendant takes issue with this point, arguing Ms.Homer "merely concludes that if the methodology is followed therecan be no error." (See Def.'s Post-Hearing Mem. at 4 (Docket #69)). Indeed, Ms. Homer testified the error rate of the process itself is zero,meaning any error is the result of examiner error, either in theapplication of the process or in reaching a particularconclusion. The Defendant's contention is without merit in thiscontext: Daubert merely requires the proponent demonstrate theknown or potential error rate of the methodology and the Court issatisfied the Government has done so in this case. To the extentthe Defendant's argument is appropriate, it goes to weight, notadmissibility.

Finally, the Government established the methodology used hasbeen peer-reviewed and is generally accepted in the forensiccommunity. Ms. Homer proffered lists of journals and publicationsdiscussing the methodology of examining footwear and otherimpression evidence, Gov't Ex. B-3, B-4; an excerpt fromFootwear Identification, by Michael Cassidy, Gov't Ex. B-1; andan article entitled "A Historical Overview of Track ImpressionEvidence," by Ernest Hamm, Gov't Ex. B-2.

The reliability of the ACE-V methodology has been upheld inrecent decisions as applied to fingerprint identifications.Allen 207 F. Supp.2d at 866 (collecting authority). In Allen,the court saw "no reason not to extend the reasoning of theseopinions to the technique of footwear impression evidence whichis substantially the same as that of fingerprint impressions.Id.; see also United States v. Hendershot, 614 F.2d 648,654 (9th Cir. 1980) (evaluating footprint impression evidencelifting technique under pre-Daubert framework).

While footwear impression evidence may appear to the Defendanta simple matching process not requiring any specialized skill,and Ms. Homer's testimony will "provide undeserved weight to acomparison which the jury as fact finder is equally qualified tomake," (See Def.'s Post-Hearing Mem. at 6 (Docket # 69)), it isapparent the process requires a critically trained eye to ensureaccurate results. The Defendant's contention that any lay personcan perform the comparisons presumes any lay person will know what to look forand how to apply the information — the significant versusinsignificant markings and the weight to ascribe each. In thisway, the examiner functions like a radiologist, directingattention to the relevant aspects of the impression or medicalimage. That the conclusion is readily apparent after theprofessional explains the image more likely speaks to theeffectiveness of the professional, not the simplicity of thescience.

Further, even if the Court accepts the Defendant's contentionthat a lay person could arrive at the conclusion for herself, Ms.Homer's testimony is admissible under Rule 702 because it willundoubtedly assist the trier of fact in determining whether theimpressions from the crime scene match those from theshoes.14

c. Daubert Challenge: Application

Finally, the Defendant challenges Ms. Homer's specificapplication of the methodology. F.R.E. 702 ("[A]n expert . . .may testify [if] the witness has applied the principles andmethods reliably to the facts in the case"). The Defendantcontends that there was no evidence of the qualifications of theindividual who peer reviewed her conclusions and no evidence thatthe review was "blind." Further, he argues that, contrary to herown testimony about appropriate protocol, she failed to collectall the footwear impressions, leaving the collection of a numberof footwear impressions to a police officer whose qualificationswere never revealed. The record reveals that her conclusions werereviewed within the department by another qualified footwearexaminer and her verification process was separately confirmed.The police officer who took the samples was a trained member ofthe Maine State Police Evidence Response Team and Ms. Homer hadassigned the collection duty to him with knowledge of his levelof training and expertise. These defense arguments go to the weight andcredibility, not to its admissibility. United States v. Shea,211 F.3d 658, 668 (1st Cir. 2000). Even assuming arguendo theDefendant pointed out flaws in Hs. Homer's testimony, Daubertitself instructs us that "vigorous cross-examination,presentation of contrary evidence, and careful instruction on theburden of proof are the traditional and appropriate means ofattacking shaky but admissible evidence." Daubert, 509 U.S. at596; Shea, 211 F.3d at 668.

C. Expert Testimony Conclusion

The Court accepts Ms. Homer as an expert in the field offorensic science, specifically the subfield of footwearimpression collection and analysis, finds her methodology foranalyzing footwear impression evidence is reliable, and concludesthat her proffered expert footwear impression testimony isadmissible under the standards set forth both in Rule 702 andDaubert.

V. Conclusion

Accordingly, the Court holds:

1. The Defendant's Motion in Limine to exclude references toprior convictions (Docket # 50) is GRANTED in part and DENIED inpart;

2. The Defendant's Motion in Limine to exclude references toother alleged acts (Docket # 51) is DENIED, provided theGovernment establishes the foundation necessary to introduce theevidence; and,

3. The Defendant's Motion in Limine to exclude expert testimonyregarding footwear (Docket # 52) is DENIED.

SO ORDERED.

1. Exhibits A and B to Docket # 60 are copies of the chargingand sentencing documents in the prior convictions.

2. The Government did not contend that either the assault orpossession of a controlled substance convictions should beadmitted, absent circumstances not present in the pending motion;however, the Defendant did not limit the motion in limine to theforgery and theft by receiving stolen property charges andtherefore the Court is ruling in limine on the admissibility ofall prior known convictions.

3. Rule 403 reads: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste or time, or needless presentation of cumulative evidence.

4. During this time, the First Circuit also addressed theissue in United States v. Kiendra, 663 F.2d 349 (1st Cir.1981), though it did so only obliquely. The court of appealsrecognized the district court admitted a defendant's convictionfor possession of a stolen vehicle and receipt of stolen goods ascrimes of dishonesty but noted the point had not been challengedand was not being reviewed on appeal.

5. The complexity of the First Circuit's treatment of thisissue is reflected in the split among other circuits on thequestion. Compare, e.g., United States v. Foster,227 F.3d 1096 (9th Cir. 2000) (concluding receipt of stolen property isnot a crime of dishonesty) with U.S. Xpress Enter., Inc. v.J.B. Hunt Transport, Inc., 320 F.3d 809 (8th Cir. 2003) (holdingreceipt of stolen property constitutes crime of dishonesty);see generally United States v. Papia, 560 F.2d 827 (7thCir. 1977) (explaining split among circuits).

6. Rule 403 reads: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste or time, or needless presentation of cumulative evidence.

7. Rule 702 was amended in 2000 to reflect the holdings inDaubert and Kumho. F.R.E. Committee Note.

8. Daubert and Kumho, together with General Electric Co.v. Joinder, 522 U.S. 136 (1997) (trial court's decision to admitor exclude expert testimony will be reversed only for abuse ofdiscretion), have become known as the Daubert trilogy. SeeThe Manual For Complex Litigation, Fourth, § 23.2 (2004 ed.)

9. For cases in which federal appellate courts have referredin passing to the trial court's admission of footwear evidenceboth pre and post-Daubert, see, e.g., Hopkins v. Cockrell,325 F.3d 579, 581 (5th Cir. 2003); Love v. Young, 781 F.2d 1307(7th Cir. 1986); United States v. Givens, 767 F.2d 574, 582-83(9th Cir. 1985), cert. denied, 474 U.S. 953 (1985); butsee United States v. Ferreira, 821 F.2d 1 (1st Cir. 1985)(trial judge's exclusion of shoeprint impression evidenceupheld); United States v. Stabler, 490 F.2d 345 (8th Cir. 1973)(footprint evidence excluded on foundation grounds). Despite itsvenerable lineage, the science of footwear analysis is not, ofcourse, immune from a successful Daubert challenge. CompareUnited States v. Hines, 55 F. Supp.2d 62, 67 (D. Mass. 1999)(limiting the admissibility of expert handwriting analysistestimony) with Mooney, 315 F.3d at 63 (admitting experthandwriting analysis testimony).

10. For pre-Daubert appellate decisions on expert testimonyon footwear comparison, see e.g. United States v. Rose,731 F.2d 1337, 1345-47 (8th Cir. 1984); United States v. Ferri,778 F.2d 985, 988-90 (3rd Cir. 1985) cert. denied 474 U.S. 953(1986); United States v. Hendershot, 614 F.2d 648, 654 (9thCir. 1980).

11. In support of his argument, Defendant cites United Statesv. Hines, 55 F. Supp.2d 62 (D. Mass. 1999), in which certainopinions of a handwriting expert were excluded on Daubertgrounds. As the First Circuit said in Mooney, however, Hindshas no binding effect. Mooney, 315 F.3d at 63. A decision toadmit or exclude is often grounded on the "particular facts andcircumstances of the particular case." Id. (quoting KumhoTire, 526 U.S. at 158).

12. When questioned by the Court, Ms. Homer was uncertainwhether a reviewing examiner knows the first examiner'sconclusions prior to verification or whether she approachesverification "blind." Ms. Homer's unfamiliarity with thisparticular aspect of the methodology is not a sufficient basis todetermine the methodology is unreliable.

13. The Defendant has also challenged Ms. Homer's applicationof the ACE-V methodology to the examination of the evidence inthis case. This issue is the proper scope of the Defendant'scross-examination of Ms. Homer, not a motion in limineruling.

14. Courts admitted footwear impression evidence underpre-Daubert frameworks, also. E.g., United States v. Ferri,778 F.2d 985, 988-90 (3d Cir. 1985); see McDonnell v. UnitedStates, 455 F.2d 91 (8th Cir. 1972), cert. denied,412 U.S. 942 (1973) (footprint evidence inadmissible in absence of experttestimony).

ORDER REGARDING MOTIONS IN LIMINE

I. Introduction

Charged with attempted bank robbery and interstate transport ofa stolen vehicle, the Defendant filed three motions in liminebefore the Court to test the admissibility of the followingevidentiary matters: (1) his prior convictions under Federal Ruleof Evidence 609 (Docket # 50); (2) certain incidents prior to hisarrest on the instant charge (Docket # 51); and (3) underDaubert, expert testimony on footwear impressions (Docket #52). On June 25, 2004, the Court received evidence on theDaubert issue and heard oral argument on all motions. Afterreviewing the evidence and the parties' memoranda, the Courtreaches the following conclusions: 1. If the Defendant takes the stand, his prior conviction for forgery may be admitted under Federal Rule of Evidence 609(a)(2) and his prior conviction for theft by receiving stolen property may be admitted under Rule 609(a)(1); 2. If the Government establishes the necessary foundation, evidence of the incidents involving receipts from a Burger King and the theft of a safe belonging to the Defendant's former roommate may be admitted under Rule 404(b); and, 3. Expert testimony regarding footwear impression evidence may be admitted. II. Prior Convictions A. Background

Without referring to specific past convictions, the Defendantasked the Court for guidance regarding the admissibility of"any prior convictions . . . in the event that he chooses totestify." (See Def.'s Mot. Regarding Convictions (Docket # 50))(emphasis added). The Government cites four prior convictions asinvolving "theft and/or dishonesty" (See Gov't Resp. RegardingConvictions (Docket # 60)) under Rule 609: robbery reduced toaggravated assault, theft by receiving stolen property, andsecond-degree forgery, all on March 5, 2001, in Arkansas; andpossession of a controlled substance, on April 22, 2003, also inArkansas.1

The robbery, theft by receiving and forgery charges stem froman incident on April 24, 2000. The Defendant presented a forgedreceipt at a Wal-Mart and, when the store attempted to detainhim, he almost struck a Wal-Mart employee with his car. Mahonepossessed a stolen credit card at the time. Count I of thecharging information alleged Mahone "unlawfully, feloniously, andwith the purpose of committing a theft or resisting apprehensionimmediately thereafter . . . employed or threatened to employphysical force upon Terry Woodford." (Exhibit A to Docket # 60).The charge was later reduced to aggravated assault. Count IIalleged Mahone "feloniously did receive, retain or dispose ofstolen property, to wit credit cards, such being the property ofJohn Wilroy. . . ." Count III alleged second-degree forgery,stating Mahone forged a Wal-Mart receipt in an attempt to defraudthe store. On March 5, 2001, Mahone was found guilty of thecharges. He served seven days in jail, was placed on 60 months ofprobation, ordered to undergo psychological counseling, was fined$500.00, and was prohibited from having contact with Wal-Martstores. Less information is available regarding the possession ofcontrolled substance conviction. A one-page Ticket Information,dated October 18, 2001, imposes a fine and a sentence but detailsof the crime and penalty are not clear from the record.

Based on this information, the Court concludes underRule 609 evidence of the Defendant's prior convictions for forgery andtheft by receiving stolen property is admissible; however,evidence of the Defendant's prior convictions for robbery reducedto aggravated assault and possession of a controlled substance isnot admissible.2

B. Discussion

1. Legal Standard

Federal Rule of Evidence 609(a) governs admissibility of priorconvictions for the purpose of impeaching a witness: For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and, (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.(emphasis added). Any felony conviction, whether or not for acrime involving "dishonesty or false statement," is admissibleunder Rule 609(a)(1) if the district court determines that itsprobative value outweighs the prejudicial effect on the defendantunder Rule 403.3 United States v. Grandmont, 680 F.2d 867 (1st Cir. 1982); United States v.Mahone, 537 F.2d 922, 928-29 (7th Cir. 1976). However,convictions for felonies or misdemeanors involving "dishonesty orfalse statement" are admissible under Rule 609(a)(2) withoutregard to the balancing test of Rule 403. United States v.Kiendra, 663 F.2d 349, 353-55 (1st Cir. 1981). Admission ofthese offenses is mandatory, not within the discretion of thedistrict court. Id.; United States v. Tracy, 36 F.3d 187, 192(1st Cir. 1994), cert. denied, 514 U.S. 1074 (1995) (citingH.R. Conf. Rep. No. 93-1597, 93rd Cong., 2d Sess. 9 (1974)).Given the admission requirement of Rule 609(a)(2), the Court willfirst consider the prior convictions under that subpart.

2. Rule 609(a)(2): Mandatory Admissions

a. Forgery

Forgery is plainly within Rule 609(a)(2)'s scope of crimes ofdishonesty and false conduct. Congress explained such crimesinclude "perjury, false statement, criminal fraud, embezzlementor false pretense, or any other crime in the nature of thecrimen falsi, the commission of which involves some elementof deceit, untruthfulness, or falsification bearing on theaccused's propensity to testify untruthfully." Id. Thoughforgery is not specifically listed in the congressional report,forgery clearly "involves some element of deceit, untruthfulness,or falsification bearing on the accused's propensity to testifytruthfully." Indeed, other circuits that have considered forgeryin light of Rule 609(a)(2) have concluded it is a crime ofdishonesty. E.g., United States v. Owens, 23 Fed. Appx. 550(7th Cir. 2001); United States v. Newman, 849 F.2d 156 (5thCir. 1988); United States v. Bay, 748 F.2d 1344 (9th Cir. 1984)(superseded on other grounds). This Court holds that the Defendant's priorconviction for forgery must be admitted under Rule 609(a)(2).

b. Theft by Receiving

Whether theft by receiving is a crime of dishonesty underRule 609(a)(2) is a question not so easily answered. A series of casesbetween 1979 and 1982 shaped the First Circuit's treatment ofsuch crimes under Rule 609(a)(2). In United States v. Brown,603 F.2d 1022 (1st Cir. 1979), the First Circuit cited then-JudgeBurger's opinion in Gordon v. United States, 383 F.2d 936, 940(D.C. Cir. 1967), that "acts of deceit, fraud, cheating, orstealing . . . are universally regarded as conduct whichadversely reflects on a man's honesty and integrity." 603 F.2d at1029. Accordingly, the Brown court ruled a defendant's burglaryand larceny convictions were admissible under Rule 609(a)(2) as"having a bearing on honesty which is directly related tocredibility." Id. Almost two years after Brown, the FirstCircuit reinforced its broad interpretation of crimes ofdishonesty in United States v. Del Toro Soto, holding adefendant's prior grand larceny conviction "could certainly beintroduced under [Rule 609(a)(2)] on the general question of thedefendant's credibility."4 676 F.2d 13, 18 (1st Cir.1982). However, only months after Del Toro Soto, the FirstCircuit tempered its reading of crimes of dishonesty in UnitedStates v. Grandmont, holding a defendant's prior robberies,which were, in fact, purse snatchings, were not perpetuated bydeceitful or fraudulent means and were not, therefore, admissibleunder Rule 609(a)(2). 680 F.2d at 871. Grandmont remains theFirst Circuit's stance on robberies under the rule and, by extension,it seems, on the crime of receipt of stolen property.5

Here, the record does not establish whether the Defendant'sreceipt of the stolen credit card was a crime perpetuated bydeceitful or fraudulent means, though it seems highly probable.Ultimately, the Court need not reach a decision on the sparserecord before it regarding the theft by receiving conviction andRule 609(a)(2) because, as discussed below, the conviction isadmissible under Rule 609(a)(1).

c. Robbery Reduced to Aggravated Assault

Grandmont specifically addressed robbery as a crime ofdishonesty under Rule 609(a)(2), saying, "robbery per se isnot a crime of dishonesty within the meaning of 609(a)(2)" and isnot admissible under Rule 609(a)(2) "absent a showing that it wasperpetuated by deceitful or fraudulent means." 680 F.2d at 871.No such showing has been made in this case; therefore, the Courtwill not admit the conviction as a crime of dishonesty.

Similarly, assault is not a crime of dishonesty underRule 609(a)(2). United States v. Meserve, 271 F.3d 314, 328 (1stCir. 2001) (stating "609(a)(2) requires some element of deceit,untruthfulness, or falsification which would tend to show anaccused would be likely to testify untruthfully, elements notreadily apparent in assault").

d. Possession of Controlled Substance

The dearth of information available regarding this convictionprevents the Court from determining whether it is a crime ofdishonesty under Rule 609(a)(2). Absent such evidence, the Courtdeclines to admit the prior conviction under that rule. 3. Rule 609(a)(1): Probative Value/Prejudicial Effect

To balance probative value and prejudicial effect underRule 609(a)(1), the Court must consider a number of factors: (1)whether the nature of the crime bears on the defendant'scredibility and veracity; (2) the defendant's conduct since theconviction and whether the conviction is remote in time; (3)whether similarities between the conviction and the pendingcharges make it more likely a jury would use the evidenceimproperly; (4) whether admission will affect the defendant'sdecision to testify; and, (5) the centrality of the defendant'scredibility to the issue at trial. Grandmont, 680 F.2d at 872n. 4; Gordon, 383 F.2d at 940-41. The Court must also considerRule 609(a)(1)'s threshold requirement that the crime waspunishable by death or imprisonment in excess of one year. Thedefendant bears the burden of showing the trial court shouldexclude evidence of his prior convictions. Gordon, 383 F.2d at940.

a. Theft by Receiving

The probative value of the Defendant's conviction for theft byreceiving stolen property outweighs any prejudicial effect ofadmitting the evidence. The nature of the crime reflects on theDefendant's credibility and veracity; the conviction occurred in2000 and the Defendant was on probation from the conviction whenarrested on the instant charges; and the difference betweenpossessing a stolen credit card and robbing a bank is sufficientthat a jury will not likely consider it "propensity" evidence.While the Defendant's credibility may be a central issue at trialif he chooses to testify, the possibility that admission of thisevidence will discourage him from taking the stand is notsufficient to outweigh its probative value. In Gordon,then-Judge Burger explained the court should only weigh theeffect admission would have on the defendant's taking the standwhere it has determined the prior conviction is otherwiseadmissible. 383 F.2d at 941 n. 11. Gordon suggests the courtrefer back to whether the prior conviction bears on the defendant's credibility and veracity:"[T]he judge may want to evaluate just how relevant tocredibility the prior convictions are; for example, a recentperjury conviction would be difficult to ignore even where thedefendant's testimony would be of great importance." Id. Here,the Defendant's prior (and recent) conviction for theft byreceiving stolen property is impossible to ignore, even if itaffects his decision to testify. Further, the conviction waspunishable by a term of imprisonment in excess of one year. SeeArk. Code §§ 5-36-106, 5-4-401(a)(4).

b. Robbery Reduced to Aggravated Assault and Possession ofControlled Substance

Neither of the remaining convictions at issue bears on theDefendant's credibility or veracity. Though the convictionsoccurred close in time to the instant charges, and though theconvictions are sufficiently dissimilar to the instant chargethat it is unlikely a jury would consider this propensityevidence, the record before the Court does not establish that theconvictions relate to the Defendant's propensity to testifytruthfully such that they can be admitted under Rule 609(a)(1).See Meserve, 271 F.3d at 328.

C. Prior Conviction Conclusion

For the reasons stated above, in the event the Defendant takesthe stand, his prior conviction for forgery is admissible underRule 609(a)(2) and his prior conviction for theft by receivingstolen property is admissible under Rule 609(a)(1). However,based on the record before the Court at this time, theDefendant's prior convictions for robbery, reduced to aggravatedassault, and possession of a controlled substance are notadmissible under Rule 609(a)(1). III. Other Acts

A. Background

The Defendant moved to exclude (1) evidence relating to anincident on November 15, 2003, when he allegedly receivedapproximately $1,200.00 in receipts from a Burger King from hisgirlfriend, Zuzana Preikova, and failed to deposit the money in abank's night deposit box, as she asked him to do; and, (2)evidence relating to an incident on November 20, 2003, when heallegedly stole a safe containing $265.00 from a former roommate.The Defendant argues these incidents bear no similarity to theconduct charged here and are precluded by Federal Rules ofEvidence 403 and 404(b). The Government responds the incidentsshould be admitted under Rule 404(b) as reflective of theDefendant's motive to commit the offenses charged and identity.

B. Discussion

1. Legal Standard

Federal Rule of Evidence 404(b) provides, in part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .Rule 404(b) functions to exclude evidence of a defendant's priorbad acts as proof of his criminal character or propensity tocommit crimes of the sort for which he is on trial. To admitevidence of prior bad acts for other purposes under the rule, acourt must find the evidence passes two tests. United States v.Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000). First, theevidence must have a "special relevance" to an issue in the case,such as intent or knowledge, and must not include "bad characteror propensity as a necessary link in the inferential chain."Id. (quoting United States v. Frankhauser, 80 F.3d 641, 648(1st Cir. 1996)). The "special relevance" cannot be the defendant's propensity to commit crimes. United States v.Fields, 871 F.2d 188 (1st Cir. 1989). Second, under Rule 403,evidence that is specially relevant may still be excluded if itsprobative value is substantially outweighed by the danger ofunfair prejudice.6 Varoudakis, 233 F.3d at 118; UnitedStates v. Decicco, 370 F.3d 206, 211 (1st Cir. 2004) (citingVaroudakis). In addressing the probative value of other acts,the First Circuit has considered the remoteness in time of theother acts and the degree of resemblance between the other actsand the crime charged. Id.; Fields, 871 F.3d at 197.

When prior bad act evidence is offered to prove a motive forthe crime, courts must be on guard to prevent the motive labelfrom being used to smuggle forbidden evidence of propensity tothe jury. Varoudakis, 233 F.3d at 118 (quoting 22 Charles A.Wright & Kenneth A. Graham, Jr., Federal Practice andProcedure, § 5240 (1978)). In United States v. Varoudakis, theFirst Circuit distinguished between admissible motive evidenceand inadmissible propensity evidence. In that case, a districtcourt admitted evidence of a defendant's prior burning of aleased car in his trial for arson in connection with the burningof his restaurant. The district court concluded the car fireevidence was specially relevant to his motive because, in bothinstances, he allegedly committed arson to alleviate a financialburden by collecting insurance proceeds. The First Circuitvacated the district court's judgment, ruling the evidenceinvolved an improper propensity inference: As proof of motive, the car fire testimony is offered as circumstantial evidence that [the defendant] committed the [restaurant] fire. It involves an inference of propensity as "a necessary link in the inferential chain." Frankhauser, 80 F.3d at 648. Put most simply, the government argues that [the defendant's] commission of the car fire arson in response to financial stress makes it more likely that he committed the restaurant arson in response to financial stress. Contrast this forbidden inference with the permissible inference to be drawn in which the prior bad act — say, a botched robbery by the defendant that was frustrated by the ineptitude of his cohort — provided the motive for the defendant's subsequent assault on his cohort. There, the prior bad act would provide circumstantial evidence of the commission of the assault without the involvement of any propensity inference.233 F.3d at 120.

2. Burger King Receipts

The incident involving the Burger King receipts bears a specialrelevance to the crimes charged in this matter because itsupports the Government's case for the Defendant's motive. Ms.Preikova told police officers the Defendant said he participatedin the activities at the bank because he had lost the Burger Kingreceipt money and was trying to "help her out with the money fromthe missing bank deposit." (See Exhibit 2 to Gov't Resp.Regarding Other Acts (Docket # 61)). The evidence is not beingused to demonstrate the Defendant's propensity to commit crimesand does not require propensity as a necessary link in theinferential chain. This situation is distinguishable from thefacts considered in Varoudakis, as evidence of the Burger Kingreceipt incident explains why the Defendant may have committedthe crime charged, not that the Defendant has committed a crimesimilar to the one charged and, therefore, likely committed thecrime charged.

Further, the probative value of this evidence outweighs anyprejudicial effect of its admission. While the failure to make abank deposit differs greatly from bank robbery — it is one thingto fail to deposit and quite another to make a forced withdrawal— there is little danger the evidence will sway the jury towardsa conviction on an emotional basis. Contrary to defense counsel's argument, the alleged incident was not remote in timeto the crime charged — it occurred four days before the bankrobbery. The closer proximity between the two events enhances theprobative value.

3. Safe Theft

The Government contends the Defendant committed the bankrobbery on November 19, 2003, and stole the safe from his formerroommate on November 20, 2003. The Defendant left a noteadmitting to having taken property and explaining he needed themoney to "get out of here." (See Exhibit 2 to Gov't Resp.Regarding Other Acts (Docket # 61)). The Defendant was arrestedin New Hampshire on December 12, 2003, while in possession of astolen vehicle. Police officers located the safe inside thevehicle. Evidence of the alleged safe theft bears a specialrelevance to the crimes charged because it establishes theDefendant's identity as the person who stole the vehicle and is,therefore, intertwined with the stolen vehicle charge. Theevidence does require propensity be a necessary link in theinferential chain; instead, it supports the Government'sallegation that the Defendant stole the vehicle, since the safethat he also allegedly stole was recovered from the vehicle.

Moreover, the probative value of such evidence outweighs anyprejudicial affect resulting from its admission. As with evidenceregarding the Burger King receipts, the alleged safe theft doesnot make it likely a jury will convict the Defendant on anemotional basis. At the same time, the evidence is highlyprobative of whether he is guilty of interstate transportation ofa stolen vehicle. Additionally, the probative value is enhancedby the closer proximity of theft of the events. C. Other Acts Conclusion

If the Government establishes the foundation under Rule 404(b),evidence of alleged acts involving the Burger King receipts andthe theft of a safe from the Defendant's former roommate may beadmitted. The Defendant's Motion in Limine is DENIED.

IV. Expert Testimony: Footwear Impression Evidence

A. Background

The Government seeks to introduce footwear impression evidencethrough the testimony of Cynthia D. Homer, a forensic scientistwith the Maine State Police Crime Laboratory in Augusta, Maine.At an exhaustive Daubert hearing before this Court on June 25,2003, Ms. Homer testified at length to the methodology andprinciples of footwear impression evidence as a forensic science.The Defendant challenges the evidence on four main grounds: (1)that the Government failed to demonstrated Ms. Homer'squalifications as an expert; (2) that the Government failed toshow her methodology is reliable; (3) that Ms. Homer failed tofollow the proposed methodology in this instance; and (4) moregenerally, that expert testimony is unnecessary because thefootwear evidence can be evaluated by a lay person. This Court isrequired to make a preliminary evaluation of the reliability ofexpert testimony, even in the absence of an objection. Hoult v.Hoult, 57 F.3d 1, 5 (1st Cir. 1995). The Government, as theproponent of the evidence, has the burden to show that "theexpert's conclusion has been arrived at in a scientifically soundand methodologically reliable fashion". United States v.Mooney, 315 F.3d 54, 63 (1st Cir. 2002) (quoting Ruiz-Troche v.Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85 (1st Cir.1998)). This Court will, therefore, review the evidence todetermine whether it has met Daubert standards generally andwill address the Defendant's objections specifically. B. Discussion

1. Legal Standard

Federal Rule of Evidence 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.7

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the SupremeCourt held Rule 702 imposes a gate-keeping role on the trialjudge to ensure an expert's testimony both rests on a reliablefoundation and is relevant to the task at hand 509 U.S. 579, 597(1993); see Kumho Tire Co. v. Carmichael, 526 U.S. 137,147-49 (1997) (holding Daubert applies to technical and otherspecialized expert testimony).8 A preliminary questionmust be the qualification of the person to be an expert witness,since the relaxation of the "usual requirement of firsthandknowledge or observation" is premised on "an assumption that theexpert's opinion will have a reliable basis in the knowledge andexperience of his discipline." Daubert, 509 U.S. at 592. Inexamining whether to admit the substance of a proffered expert'stestimony, a court should consider the following factorsidentified by Daubert: (1) whether the theory or technique canbe or has been tested; (2) whether the technique has been subjectto peer review and publication; (3) the technique's known orpotential error rate; and, (4) the level of the theory ortechnique's acceptance within the relevant discipline. 509 U.S.at 593-94. These factors, however, are not definitive orexhaustive, and the trial judge enjoys broad latitude to useother factors to evaluate reliability. United States v. Mooney, 315 F.3d 54, 61 (1st Cir.2002) (citing Kumho Tire, 526 U.S. at 153). The trial judge mayeven determine which of the Daubert factors to apply dependingon the nature of the issue, the expert's particular expertise,and the subject of her testimony. Kumho Tire, 526 U.S. at 150.

Daubert does not require "the party who proffers the experttestimony carry the burden of proving to the judge that theexpert's assessment of the situation was correct." Mooney, 315F.3d at 63 (quoting Ruiz-Troche, 161 F.3d at 85). Once atrial judge determines the reliability of the expert'smethodology and the validity of her reasoning, the expert shouldbe permitted to testify as to inferences and conclusions shedraws from it and any flaws in her opinion may be exposed throughcross-examination or competing expert testimony. Id.

2. Compliance with Daubert Standards Generally

The Daubert interpretation of Rule 702 and its 2000 amendmentrequire the trial judge to evaluate an expert's proposedtestimony for both reliability and relevance prior to admittingit. Daubert, 509 U.S. at 589-90; Ruiz-Troche, 161 F.3d at 80.This Court need not tarry with the general requirements ofDaubert. Ms. Homer's lengthy testimony provided ample evidencethat her proposed testimony meets or exceeds Daubertrequirements for admissibility. The science of footwear analysisis neither new nor novel; expert testimony on footwearcomparisons has been admitted in courts in the United States foryears.9 United States v. Rodgers, 85 Fed. Appx. 483,486-87 (6th Cir. 2004), cert. denied, 124 S.Ct. 2192 (2004);United States v. Ross, 263 F.3d 844, 846-47 (8th Cir. 2001); United States v. Allen,207 F. Supp.2d 856, 866 (N.D. Ind. 2002); United States v.Youngberg, 43 M.J. 379 (C.A.A.F. 1995).10 Ms. Homerestablished that the theory and technique of footwear comparisonshave been tested, that the science has been subject to peerreview and publication, that the scientific technique has beenevaluated for its known or potential error rate, and that thescience of footwear analysis has by now been generally accepted.Daubert, 509 U.S. at 593-94; Mooney, 315 F.3d at 62.

As the First Circuit explained in Ruiz-Troche, Daubertimposed a "special relevance requirement" for the admission ofexpert testimony. Ruiz-Troche, 161 F.3d at 81. The testimonymust be not only relevant under Rule 402, but in the "incrementalsense that the expert's proposed opinion, if admitted, likelywould assist the trier of fact to understand or determine a factin issue." Id. Even under this heightened standard, Ms. Homer'sproffered expert opinion is also relevant, linking the Defendantto the scene of the bank robbery.

The Court will now turn to the Defendant's specific issues.

3. Defendant's Specific Objections

a. Ms. Homer's Qualifications

The Defendant attacked Ms. Homer's qualifications to giveexpert testimony on footwear comparisons. The attack centered onher membership in the International Association forIdentification (IAI). He noted that the IAI proclaimed itself the"most prestigious professional association of its kind in theworld. . . ." The Defendant argued Ms. Homer status as an activemember of the IAI entails "nothing more than being employed as aforensic examiner and paying a yearly fee." (See Def.'sPost-Hearing Mem. at 5-6 (Docket # 69)). He went on to point out Ms. Homer lacked the necessary combination of education andexperience which the IAI requires for certification as a"Footwear Examiner".

The Government submitted Ms. Homer's curriculum vitae, whichdescribes her training and qualifications in the area of forensicscience. Gov't Ex. A. Ms. Homer received a Bachelor of Sciencedegree in chemistry in 2000 and a Masters in Forensic Science in2001. She has over two years experience as a forensic scientistat the State Police Crime Lab and has undergone substantialtraining in latent print development, footwear and tire trackanalysis, forensic photography, and crime scene processing, amongother areas. Ms. Homer is a member of a number of professionalassociations and instructed numerous groups on topics such ascrime scene processing and latent print detection. She alsoundergoes yearly proficiency testing in the disciplines in whichshe specializes. The sum of Ms. Homer's academic training andpractical experiences qualifies her as an expert to opine on thisissue. See United States v. Rose, 731 F.2d 1337 (8th Cir.1984) (qualifying police department employee as expert onshoe-print comparisons; pre-Daubert case).

Ms. Homer's qualifications as an expert witness do not hinge onwhether she has been certified as a footwear examiner by the IAI.There is no evidence that the IAI is the sole footwear examinercertifying body or that its footwear examining certificate is aprerequisite for expertise in the field. Moreover, an expertwitness need not be an outstanding practitioner in the field norhave certificates of training in the particular subject. UnitedStates v. Moore, 553 F.2d 1013, 1024 (6th Cir. 1977).

b. Daubert Standards: Methodology

Daubert and Rule 702 mandate the expert testimony be the"product of reliable principles and methods." F.R.E. 702;Ruiz-Troche, 161 F.3d at 81 ("[M]ethodology remains the central focus of a Daubert inquiry"). The Defendant challenged Ms.Homer's methodology as follows: (1) he contends the methodologyis flawed, because there are no "objective identificationstandards,"11 (See Def.'s Post-Hearing Mem. at 3(Docket # 69)); and, (2) in the absence of supporting data, theexpert's conclusions are merely lay observations a fact finderwould be equally competent to make. Id.

Ms. Homer explained the testing process used by footwearimpression examiners as following the acronym ACE-V: Analysis;Comparison; Evaluation; and Verification. The first stageof the process entails analyzing an impression taken from thecrime scene for class characteristics, or markings common to allshoes of that type, and unique or accidental characteristics,peculiar to the shoe that made the imprint. During the comparisonphase, the crime scene impression is matched against animpression of the shoe submitted for comparison. The prints maybe compared by superimposing one image over the other or byviewing the images side by side. In the final stage, the examinerapplies her training and expertise to evaluate the comparisonsand draw conclusions. The conclusions are then re-examined byanother examiner according to the ACE process.,1213

Ms. Homer testified the ACE-V methodology's known error rate iszero. The Defendant takes issue with this point, arguing Ms.Homer "merely concludes that if the methodology is followed therecan be no error." (See Def.'s Post-Hearing Mem. at 4 (Docket #69)). Indeed, Ms. Homer testified the error rate of the process itself is zero,meaning any error is the result of examiner error, either in theapplication of the process or in reaching a particularconclusion. The Defendant's contention is without merit in thiscontext: Daubert merely requires the proponent demonstrate theknown or potential error rate of the methodology and the Court issatisfied the Government has done so in this case. To the extentthe Defendant's argument is appropriate, it goes to weight, notadmissibility.

Finally, the Government established the methodology used hasbeen peer-reviewed and is generally accepted in the forensiccommunity. Ms. Homer proffered lists of journals and publicationsdiscussing the methodology of examining footwear and otherimpression evidence, Gov't Ex. B-3, B-4; an excerpt fromFootwear Identification, by Michael Cassidy, Gov't Ex. B-1; andan article entitled "A Historical Overview of Track ImpressionEvidence," by Ernest Hamm, Gov't Ex. B-2.

The reliability of the ACE-V methodology has been upheld inrecent decisions as applied to fingerprint identifications.Allen 207 F. Supp.2d at 866 (collecting authority). In Allen,the court saw "no reason not to extend the reasoning of theseopinions to the technique of footwear impression evidence whichis substantially the same as that of fingerprint impressions.Id.; see also United States v. Hendershot, 614 F.2d 648,654 (9th Cir. 1980) (evaluating footprint impression evidencelifting technique under pre-Daubert framework).

While footwear impression evidence may appear to the Defendanta simple matching process not requiring any specialized skill,and Ms. Homer's testimony will "provide undeserved weight to acomparison which the jury as fact finder is equally qualified tomake," (See Def.'s Post-Hearing Mem. at 6 (Docket # 69)), it isapparent the process requires a critically trained eye to ensureaccurate results. The Defendant's contention that any lay personcan perform the comparisons presumes any lay person will know what to look forand how to apply the information — the significant versusinsignificant markings and the weight to ascribe each. In thisway, the examiner functions like a radiologist, directingattention to the relevant aspects of the impression or medicalimage. That the conclusion is readily apparent after theprofessional explains the image more likely speaks to theeffectiveness of the professional, not the simplicity of thescience.

Further, even if the Court accepts the Defendant's contentionthat a lay person could arrive at the conclusion for herself, Ms.Homer's testimony is admissible under Rule 702 because it willundoubtedly assist the trier of fact in determining whether theimpressions from the crime scene match those from theshoes.14

c. Daubert Challenge: Application

Finally, the Defendant challenges Ms. Homer's specificapplication of the methodology. F.R.E. 702 ("[A]n expert . . .may testify [if] the witness has applied the principles andmethods reliably to the facts in the case"). The Defendantcontends that there was no evidence of the qualifications of theindividual who peer reviewed her conclusions and no evidence thatthe review was "blind." Further, he argues that, contrary to herown testimony about appropriate protocol, she failed to collectall the footwear impressions, leaving the collection of a numberof footwear impressions to a police officer whose qualificationswere never revealed. The record reveals that her conclusions werereviewed within the department by another qualified footwearexaminer and her verification process was separately confirmed.The police officer who took the samples was a trained member ofthe Maine State Police Evidence Response Team and Ms. Homer hadassigned the collection duty to him with knowledge of his levelof training and expertise. These defense arguments go to the weight andcredibility, not to its admissibility. United States v. Shea,211 F.3d 658, 668 (1st Cir. 2000). Even assuming arguendo theDefendant pointed out flaws in Hs. Homer's testimony, Daubertitself instructs us that "vigorous cross-examination,presentation of contrary evidence, and careful instruction on theburden of proof are the traditional and appropriate means ofattacking shaky but admissible evidence." Daubert, 509 U.S. at596; Shea, 211 F.3d at 668.

C. Expert Testimony Conclusion

The Court accepts Ms. Homer as an expert in the field offorensic science, specifically the subfield of footwearimpression collection and analysis, finds her methodology foranalyzing footwear impression evidence is reliable, and concludesthat her proffered expert footwear impression testimony isadmissible under the standards set forth both in Rule 702 andDaubert.

V. Conclusion

Accordingly, the Court holds:

1. The Defendant's Motion in Limine to exclude references toprior convictions (Docket # 50) is GRANTED in part and DENIED inpart;

2. The Defendant's Motion in Limine to exclude references toother alleged acts (Docket # 51) is DENIED, provided theGovernment establishes the foundation necessary to introduce theevidence; and,

3. The Defendant's Motion in Limine to exclude expert testimonyregarding footwear (Docket # 52) is DENIED.

SO ORDERED.

1. Exhibits A and B to Docket # 60 are copies of the chargingand sentencing documents in the prior convictions.

2. The Government did not contend that either the assault orpossession of a controlled substance convictions should beadmitted, absent circumstances not present in the pending motion;however, the Defendant did not limit the motion in limine to theforgery and theft by receiving stolen property charges andtherefore the Court is ruling in limine on the admissibility ofall prior known convictions.

3. Rule 403 reads: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste or time, or needless presentation of cumulative evidence.

4. During this time, the First Circuit also addressed theissue in United States v. Kiendra, 663 F.2d 349 (1st Cir.1981), though it did so only obliquely. The court of appealsrecognized the district court admitted a defendant's convictionfor possession of a stolen vehicle and receipt of stolen goods ascrimes of dishonesty but noted the point had not been challengedand was not being reviewed on appeal.

5. The complexity of the First Circuit's treatment of thisissue is reflected in the split among other circuits on thequestion. Compare, e.g., United States v. Foster,227 F.3d 1096 (9th Cir. 2000) (concluding receipt of stolen property isnot a crime of dishonesty) with U.S. Xpress Enter., Inc. v.J.B. Hunt Transport, Inc., 320 F.3d 809 (8th Cir. 2003) (holdingreceipt of stolen property constitutes crime of dishonesty);see generally United States v. Papia, 560 F.2d 827 (7thCir. 1977) (explaining split among circuits).

6. Rule 403 reads: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste or time, or needless presentation of cumulative evidence.

7. Rule 702 was amended in 2000 to reflect the holdings inDaubert and Kumho. F.R.E. Committee Note.

8. Daubert and Kumho, together with General Electric Co.v. Joinder, 522 U.S. 136 (1997) (trial court's decision to admitor exclude expert testimony will be reversed only for abuse ofdiscretion), have become known as the Daubert trilogy. SeeThe Manual For Complex Litigation, Fourth, § 23.2 (2004 ed.)

9. For cases in which federal appellate courts have referredin passing to the trial court's admission of footwear evidenceboth pre and post-Daubert, see, e.g., Hopkins v. Cockrell,325 F.3d 579, 581 (5th Cir. 2003); Love v. Young, 781 F.2d 1307(7th Cir. 1986); United States v. Givens, 767 F.2d 574, 582-83(9th Cir. 1985), cert. denied, 474 U.S. 953 (1985); butsee United States v. Ferreira, 821 F.2d 1 (1st Cir. 1985)(trial judge's exclusion of shoeprint impression evidenceupheld); United States v. Stabler, 490 F.2d 345 (8th Cir. 1973)(footprint evidence excluded on foundation grounds). Despite itsvenerable lineage, the science of footwear analysis is not, ofcourse, immune from a successful Daubert challenge. CompareUnited States v. Hines, 55 F. Supp.2d 62, 67 (D. Mass. 1999)(limiting the admissibility of expert handwriting analysistestimony) with Mooney, 315 F.3d at 63 (admitting experthandwriting analysis testimony).

10. For pre-Daubert appellate decisions on expert testimonyon footwear comparison, see e.g. United States v. Rose,731 F.2d 1337, 1345-47 (8th Cir. 1984); United States v. Ferri,778 F.2d 985, 988-90 (3rd Cir. 1985) cert. denied 474 U.S. 953(1986); United States v. Hendershot, 614 F.2d 648, 654 (9thCir. 1980).

11. In support of his argument, Defendant cites United Statesv. Hines, 55 F. Supp.2d 62 (D. Mass. 1999), in which certainopinions of a handwriting expert were excluded on Daubertgrounds. As the First Circuit said in Mooney, however, Hindshas no binding effect. Mooney, 315 F.3d at 63. A decision toadmit or exclude is often grounded on the "particular facts andcircumstances of the particular case." Id. (quoting KumhoTire, 526 U.S. at 158).

12. When questioned by the Court, Ms. Homer was uncertainwhether a reviewing examiner knows the first examiner'sconclusions prior to verification or whether she approachesverification "blind." Ms. Homer's unfamiliarity with thisparticular aspect of the methodology is not a sufficient basis todetermine the methodology is unreliable.

13. The Defendant has also challenged Ms. Homer's applicationof the ACE-V methodology to the examination of the evidence inthis case. This issue is the proper scope of the Defendant'scross-examination of Ms. Homer, not a motion in limineruling.

14. Courts admitted footwear impression evidence underpre-Daubert frameworks, also. E.g., United States v. Ferri,778 F.2d 985, 988-90 (3d Cir. 1985); see McDonnell v. UnitedStates, 455 F.2d 91 (8th Cir. 1972), cert. denied,412 U.S. 942 (1973) (footprint evidence inadmissible in absence of experttestimony).

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