Filed: Jun. 23, 2004
Latest Update: Mar. 02, 2020
Summary: 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of the United 2004 Decisions States Court of Appeals for the Third Circuit 6-23-2004 USA v. Rutland Precedential or Non-Precedential: Precedential Docket No. 03-3915 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Rutland" (2004). 2004 Decisions. Paper 540. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/540 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: 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of the United 2004 Decisions States Court of Appeals for the Third Circuit 6-23-2004 USA v. Rutland Precedential or Non-Precedential: Precedential Docket No. 03-3915 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Rutland" (2004). 2004 Decisions. Paper 540. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/540 This decision is brought to you for free and open access by the Opinions of the United States Co..
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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Precedential or Non-Precedential: Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"USA v. Rutland" (2004). 2004 Decisions. Paper 540.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/540
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
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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