UNITED
STATES,
Appellee
v.
Jacqueline
BILLINGS,
Specialist
No.
03-0568
Crim.
App. No.
9900122
Argued
Decided
CRAWFORD, J.,
delivered the opinion of the Court, in which GIERKE, C.J., and EFFRON
and
BAKER, JJ., joined. ERDMANN, J., filed a
separate opinion, concurring in part and in the result.
Counsel
For Appellant: Captain Doug J. Choi (argued); Colonel Mark Cremin, Colonel Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, Major Allyson G. Lambert, and Captain Mary E. Card (on brief).
For Appellee: Captain
Michael D. Wallace (argued); Colonel Steven T. Salata, Lieutenant
Colonel Mark L. Johnson, Major Natalie A. Kolb, and Captain
Janine P. Felsman (on brief); Lieutenant Colonel Margaret B.
Baines.
Military Judge: Stephen R. Henley
THIS OPINION IS SUBJECT TO
REVISION BEFORE FINAL PUBLICATION.
Judge CRAWFORD delivered the opinion of the
Court.
Pursuant
to her
pleas, Appellant was convicted of carrying a concealed weapon, in
violation of Article
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). Contrary to her pleas, a general
court-martial comprising officer and enlisted members, convicted her of
conspiracy to commit assault consummated by a battery (in violation of
Article
81, UCMJ, 10 U.S.C. § 881 (2000)), conspiracy to commit robbery (in
violation
of Article 81), robbery with a firearm (in violation of Article 122,
UCMJ, 10
U.S.C. § 922 (2000)), two specifications of assault consummated by a
battery (in
violation of Article 128, UCMJ, 10 U.S.C. § 928 (2000)), and engaging
in
organized criminal activity (in violation of Article 134).
On
This
Court granted
review of the following issue:
WHETHER THE
UNITED STATES ARMY COURT OF
CRIMINAL APPEALS ERRED IN UPHOLDING THE MILITARY JUDGE’S DECISION TO
(1) ACCEPT
A JEWELER CALLED BY THE GOVERNMENT AS AN EXPERT IN “CARTIER WATCH
IDENTIFICATION”; (2) ALLOW THAT JEWELER TO IDENTIFY A WATCH IN A
PICTURE AS
SOLID GOLD (RATHER THAN GOLD PLATE); AND (3) ALLOW THAT JEWELER TO
TESTIFY THAT
THE WATCH IN ONE PICTURE IS THE SAME STYLE AS THE WATCH IN A DIFFERENT
PICTURE.
We hold that, under the circumstances of this case, the military judge erred in allowing the jeweler to identify a watch as solid gold from a photograph. This error was harmless, however. Therefore, we affirm the decision of the Army Court of Criminal Appeals.
FACTS
Specialist
Jacqueline
Billings was the leader of a group in
At
trial, the Government
called several rank-and-file members of the Gangster Disciples as
witnesses. The Government also produced
two photographs of Appellant wearing a gold-colored watch that were
admitted
into evidence. The Government then
called Mr. Monaghan to establish the value of his stolen watch by
testifying
that the watch depicted in a Cartier Tank Française
advertisement was identical to his watch. Mr.
Monaghan testified that he had bought the
watch in
The
Government
then called Floyd R. Pagel, a jeweler, as an expert witness. Before Mr. Pagel testified, defense counsel
asked for a hearing pursuant to Article 39(a), UCMJ, 10 U.S.C. §
839(a)(2000), to
examine Mr. Pagel’s qualifications, as well as the necessity of any
expert
testimony at all on the topic. At that
hearing, the military judge denied the defense counsel’s request for a
full
hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509
U.S. 579 (1993), but did set limits on the scope of Mr. Pagel’s
testimony. The military judge ruled that
Mr. Pagel could describe
characteristics of Cartier watches and state whether he recognized any
of them
in the watch Appellant was wearing in the Government’s photographic
exhibits but
would not be allowed to say whether the watch pictured was a genuine
Cartier
watch. The military judge expressly
barred Mr. Pagel from stating whether the watch in the Government’s
photos was
Mr. Monaghan’s.
Mr.
Pagel
testified that he had been in the jewelry business for about
twenty-five
years. He was largely self-taught but
had attended several training courses, and regularly read professional
periodicals. He stated that he had been
a member of the National Jewelers Association of Appraisers, a
peer-elected
group, for about four years. He
conducted appraisals of jewelry in the course of his business, and
insurance
companies have accepted his appraisals to determine value.
Mr.
Pagel
testified that he attended professional watch shows and was familiar
with
Cartier watches. He described certain
characteristics of those watches and stated that they were relatively
easy to
identify because of those features.
The
trial counsel
then asked Mr. Pagel to examine the Government’s exhibits depicting
Appellant
and to tell the panel what to look for in determining whether the watch
in
those photos was a Cartier Tank Française. After an objection, defense counsel was
permitted to voir dire Mr. Pagel.
During
that
questioning, Mr. Pagel admitted that he did not sell Cartier watches. He also admitted that he had never actually
seen a Cartier Tank Française.
Finally, he stated that he was not certified
by the Gemological Institute of America, an organization that licenses
jewelers
who sell diamonds and colored stones. At
the conclusion of this questioning, the trial counsel offered Mr. Pagel
as an
expert. Over defense objection, the
military judge recognized Mr. Pagel as an expert in the field of
Cartier watch
identification.
Mr.
Pagel then
examined the Government’s photos of Appellant with the aid of a
ten-power magnification
loupe and stated that the watch reflected many of the unique
characteristics of
Cartier watches. He added that the color
of the watch worn by Appellant in the photos suggested that it was
solid gold,
rather than gold plated. He based this
conclusion partly on comparison with a watch worn by another person
also shown
in one of the Government’s exhibits.
On cross-examination, Mr. Pagel admitted that he would not be surprised to learn of fake Tank Françaises. He stated that he rarely attempts to evaluate the quality of watches using photographs alone, and noted two specific drawbacks to identifying the watch solely from these photographs: lighting can distort the color of the metal, and the word “Cartier” is not visible on the watch in the photographs of Appellant.
DISCUSSION
Military
Rule of
Evidence (M.R.E.) 702 governs testimony by expert witnesses. This Court reviews military judges’ decisions
regarding expert witnesses for abuse of discretion. See
United States v. Griffin, 50
M.J. 278, 284 (1999); see also General Electric Co. v.
Joiner, 522
The
granted issue here is divided
into three parts. We examine each in
turn.
A. Military Judge’s Acceptance of Expert
This
Court must
determine whether the military judge was justified in concluding that
Mr. Pagel
had sufficient specialized knowledge to testify as to the
characteristics of
Cartier watches. M.R.E. 702 states that:
If scientific,
technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence
or to determine a fact in issue, a witness qualified as an expert by
knowledge,
skill, experience, training, or education, may testify thereto in the
form of
an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or
data, (2) the testimony is the product of reliable principles and
methods, and
(3) the witness has applied the principles and methods reliably to the
facts of
the case.
Thus, an “expert”
witness may testify if he or she is qualified and testimony in his or
her area
of knowledge would be helpful. This
Court asks the proponent of expert testimony to demonstrate that
expert’s
qualifications by establishing the six factors articulated in United
States
v. Houser: (1) the qualifications of the expert; (2) the subject
matter of
the expert testimony; (3) the basis for the expert testimony; (4) the
legal
relevance of the evidence; (5) the reliability of the evidence; and (6)
that
the probative value of the expert’s testimony outweighs the other
considerations outlined in M.R.E. 403. 36 M.J. 392, 397 (C.M.A. 1993). Houser slightly predates
Daubert and Kumho
Tire Co. v. Carmichael, 526 U.S.
137 (1999), which made it clear that Daubert applied to
nonscientific
subjects like this one. Houser,
however, is consistent with the
later cases, and this Court has continued to use the Houser factors in analyzing
the
admissibility of expert testimony. See, e.g., United States v.
Dimberio, 56 M.J.
20, 26 (C.A.A.F. 2001);
Addressing
the first part of the
granted issue, Appellant attacks Mr. Pagel’s qualifications.
M.R.E. 702 does not require Mr. Pagel to have
any formal training, but Appellant argues that Mr. Pagel does not even
have any
relevant experience: he does not sell
Cartier products and had never seen a Tank Française. Appellant
also points out that trial counsel
handed Mr. Pagel the advertisement to look at while describing the
unique
characteristics of Cartier watches and asserts that it is impossible to
know
whether his testimony could have been as detailed without that
aid.
Appellant contends that the panel easily
could have performed the same analysis as Mr. Pagel and that therefore
the
military judge abused his discretion by qualifying Mr. Pagel as an
expert.
During
the Article 39(a) hearing
before Mr. Pagel’s testimony, the defense counsel had argued that
“[trial
counsel] should simply submit the pictures . . . and you let the jury
go back
there and look at it. That’s what juries
are for, to decide these kinds of issues.”
The military judge asked the trial counsel why the panel needed Mr.
Pagel. The trial counsel replied that
“what [Mr. Pagel] would give the panel is what to look for on which to
base
their opinion.” The trial counsel gave
several examples: the pattern of loops
on the watch band, the size of the band in proportion to the face, the
color of
“real gold” as distinguished from gold plate, the distinctive color of
the face
and the use of Roman numerals, and the placement of a jewel on the
watch’s “stem.”1
The military judge ruled that Mr. Pagel could describe characteristics
of Cartier watches and state whether he saw those characteristics in
the watch
worn by Appellant in the Government’s photos, but would not be allowed
to say
whether the watch in those photos is a real Cartier watch.
Mr.
Pagel is a jeweler, and the panel
members presumably are not. It is safe
to say that, even though he has little personal experience dealing with
Cartier
watches, Mr. Pagel’s time in the industry has given him “specialized
knowledge,” in accordance with M.R.E. 702, that could assist the
panel.
As we explained in Houser,
the test is not whether
a jury could reach any conclusion without expert help, “but
whether the
jury is qualified without such testimony to determine intelligently and
to the
best possible degree the particular issue without
enlightenment from those
having a specialized understanding of the subject.” Houser, 36 M.J. at 398
(citations and internal quotation marks
omitted).
As Kumho
Tire
B.
Evaluation of Gold From a Photograph
In
considering the second and third
parts of the granted issue, our analysis turns from Mr. Pagel’s
qualifications
to his testimony itself. Appellant
attacks both Mr. Pagel’s method of evaluation and his conclusions.
The
method in
question here is the examination of a watch in photos, rather than a
watch in
one’s hand. The military judge had decided
earlier at the Article 39(a) hearing to allow Mr. Pagel “to relate what
to look
for in a Cartier watch, [including] . . . color and quality of the
gold.” Mr. Pagel then testified that the
color of
the watch worn by Appellant in the photos suggested that it was
“natural” or
solid gold, rather than gold plated.
Resolving this second portion of the granted issue, then,
requires the
Court to determine whether the military judge was justified in
implicitly
finding that this method would enable Mr. Pagel to derive “sufficient
facts or
data,” M.R.E. 702, to distinguish solid gold from gold plate.
Appellant
points
out that Mr. Pagel admitted that evaluating gold from photos is not his
usual
technique and that lighting easily could distort the appearance of
metals in
photos. The Government argues that Mr.
Pagel was, nevertheless, experienced enough to be able to distinguish
solid
gold from gold plate in this way.
Appellant’s objection, the Government contends, concerns the
weight of
the evidence, not its admissibility.
As with our consideration of the first granted issue, this Court must review the military judge’s decision to allow the use of photos in this way for an abuse of discretion. Although Kumho Tire Co. and our own precedents suggest that a military judge is due a great deal of leeway, there clearly are significant drawbacks when he or she allows a witness to use photos to distinguish solid gold from gold plate. We hold that the military judge abused his discretion in allowing Mr. Pagel to determine from photos that the watch Appellant wore in the Government’s photographic exhibits was solid gold.
In Joiner,
the Supreme Court emphasized that Daubert does not
require a
trial judge “to admit opinion evidence which is connected to existing
data only
by the ipse dixit of the expert.
A court may conclude that there is simply too great an
analytical gap
between the data and the opinion proffered.” 522
Those
four factors are: (1) whether a theory
or technique can be or has been tested; (2) whether the theory or
technique has
been subjected to peer review and publication; (3) the known or
potential rate
of error in using a particular scientific technique and the standards
controlling the technique’s operation; and (4) whether the theory or
technique
has been generally accepted in the particular scientific field. Daubert, 509
Our
analysis of Mr. Pagel’s testimony is concerned with the application of Kumho
Tire Co. and the four Daubert factors to his method of
distinguishing solid gold from gold plate based on a photograph.
Under
Daubert, the proponent of expert testimony must be able to
establish
both the expert’s qualifications and the reliability of the expert’s
basis for
forming an opinion. “The proponent of
evidence has the burden of showing that it is admissible.”
The Government
met none of the four Daubert criteria for determining the
reliability of
expert testimony, nor did it identify any alternative indicia of
reliability. The Government thus failed
to satisfy its burden as the proponent of Mr. Pagel’s testimony to
establish
his opinion’s reliability.
The
first Daubert factor is concerned with whether the technique
can be, or
has been, tested. 509
The
second Daubert factor focuses on whether the “technique has
been
subjected to peer review and publication.”
509
The
third Daubert factor looks to a technique’s known or potential
rate of
error and whether standards exist to control the technique’s operation. 509
The
fourth Daubert factor considers whether the technique enjoys
general
acceptance within the relevant expert community. 509
C.
Testimony Comparing Watches in Photographs
In
the third and final part of the
granted issue, we are asked to determine whether the military judge
abused his
discretion when he permitted Mr. Pagel to point out Cartier
characteristics in
the Cartier advertisement, and then turn to the Government’s
photographic exhibits
and indicate which of those characteristics could be found in the watch
worn by
Appellant in the photos.
Appellant
argues that
the fact that the photos of her were undated allows for no inference
that she
was involved in the robbery at all. Also,
she asserts, Mr. Pagel was too unfamiliar with the Cartier Tank Française to be able to identify such
a watch reliably through photos alone.
The
Government contends
that Mr. Pagel was sufficiently familiar with the watch type in
question. It also argues that, in
compliance with
M.R.E. 401, Mr. Pagel’s testimony made a fact of consequence --
Appellant’s
involvement in the robbery -- more probable than it would have been
without
that evidence. The Government goes on to
note that Mr. Pagel never testified that Appellant was wearing the
watch stolen
from Mr. Monaghan. In any event, the
Government
asserts, Appellant’s arguments are relevant to the weight of the
evidence, not
its admissibility.
When
this Court reviews a military judge’s
decision for an abuse of discretion, “[t]he challenged action must . .
. be
found to be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly
erroneous’
in order to be invalidated on appeal.” United
States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)(quoting
United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)(citation
omitted). Appellant is correct in her
contention that Mr. Pagel was not an authority on the Tank
Française.
Nonetheless, as we have explained, his
knowledge met the standard required by M.R.E. 702. Appellant’s
arguments are relevant to the
weight of this evidence, rather than to its admissibility. The
military judge did not abuse his
discretion in permitting this testimony.
DECISION
Appellant
is correct in her
contention that the military judge erred by allowing Mr. Pagel to
testify on the
identification of gold in a photograph. We
hold that this error was harmless, however.
We base our conclusion on a variety of factors.
First,
Mr. Pagel’s qualification as a
witness did not result in any new photo evidence before the jury.
The prosecution did not need Mr. Pagel to
authenticate the Cartier advertisement or the photos of Appellant
wearing a
watch; all of the prosecution’s exhibits had been admitted by the time
he began
his testimony.
Next,
defense counsel was able to explore
that testimony. The voir dire and
cross-examination2
demonstrated the shortcomings of both Mr. Pagel’s expertise and his
method of
comparison. As the Federal
Rules of Evidence Advisory Committee
explained:
A review of the caselaw
after Daubert shows that the rejection of expert testimony is
the
exception rather than the rule . . . . [T]he trial
court’s role as gatekeeper is not intended to serve as a replacement
for the
adversary system. As
the Court in Daubert stated:
“Vigorous cross-examination, presentation of contrary evidence,
and
careful instruction on the burden of proof are the traditional and
appropriate
means of attacking shaky but admissible evidence.”
Fed. R. Evid. 702,
advisory committee’s
note (discussion of 2000 amendments)(quoting Daubert, 509
Perhaps
most important, the
Government marshaled a variety of strong evidence, including Mr.
Pagel’s
testimony, against Appellant on this charge. For example, the
Government produced several
witnesses to describe the actions that resulted in the theft of Mr.
Monaghan’s
watch. They stated that Appellant was
the leader of the Gangster Disciples’ local chapter, that no member of
the
Gangster Disciples will undertake action without the approval of his or
her
leader, that Appellant was aware of the robbery, and that, when a
robbery
yielded a major trophy, such as a gold watch, it would go to the senior
leader.
The Government then introduced Mr.
Monaghan’s receipts to prove the value of the stolen watch.
As
we stated in United
States v. Thomas, “we need
not decide whether the military judge properly performed his
gatekeeping
function, because any error in admitting this evidence was harmless in
light of
the overwhelming evidence against appellant.”
49 M.J. 200, 204 (C.A.A.F. 1998)(citing Article
59(a), UCMJ, 10 U.S.C. § 859(a)).
The
decision of the United States
Army Court of Criminal Appeals is affirmed.
1
We note that Mr.
Pagel consistently referred to the placement of a jewel on a watch’s
“crown” -–
the term used by jewelers.
2 Some cases may
require a Daubert hearing, as well.
ERDMANN, Judge (concurring in part and
in the result):
I agree with the
majority that the military judge erred by allowing Mr. Pagel to testify
that
the metal reflected in a photograph was solid gold rather than gold
plate. Further, I agree that any error in
Mr.
Pagel’s testimony was harmless in light of the abundant evidence
supporting the
charge of robbery.
I respectfully disagree,
however, that Mr. Pagel possessed the necessary expertise in either
Cartier
products or in the Cartier Tank Française watch in particular to render
expert opinions
about the characteristics of Cartier products.
While Mr. Pagel was a jeweler and had some passing familiarity
with
Cartier watches, he did not deal in Cartier products and testified that
he had
not seen the particular model Cartier watch he was asked to identify. A Buick car dealer may be an expert in
Buicks, but that does not necessarily make him an expert on a Mercedes
SL600
Roadster, particularly if he has never even seen a SL600 Roadster
before. In my view, Mr. Pagel did not
possess
specialized “knowledge, skill, experience, training, or education” to
support a
claim that he was an expert in Cartier products or in the Cartier Tank
Française
watch in particular. Military
Rule of Evidence 702.
Nor do I believe that
his testimony on the characteristics of the Cartier watch was necessary. The members of the court could have just as
easily examined the Cartier advertisement and the photograph of the
watch worn
by
Although I believe
that the military judge abused his discretion in qualifying Mr. Pagel
as an
expert and in admitting his testimony as a whole, I agree that any
error in
this respect was harmless.