Case o' The Week: Ninth Shrugs, and Swallows Questionable Beers - Ruvalcaba and Explicit Reliability Findings for Federal Experts

 Under Daubert the Court of Appeals acts as a gatekeeper that evaluates the reliability and admissibility of the testimony of expert witnesses in federal court.

   

  (Not a typo).

United States v. Ruvalcaba-Garcia, 2019 WL 2063373 (9th Cir. May 10, 2019), decision available here.

Players: Per curiam decision with Judges Graber and Bybee, and District Judge Harpool. 

  Admirable advocacy by Ass’t Fed. Defender Kara Hartzler, Federal Defenders of San Diego, Inc.   

Facts: Ruvalcaba-Garcia was charged with illegal reentry, based on a 2015 removal order. Id. at *1. His trial defense was that he was not the person removed in ’15. Id. The government introduced a 2015 “Verification of Removal” form, that had a signature, a photograph, and a fingerprint of the removed person. Id.

  FBI fingerprint “expert” David Beers testified for the government. On cross, he conceded that he had not taken continuing education courses in fingerprint analysis, admitted that he was not a member of two important working groups for fingerprint “experts,” and revealed that he did not strictly follow the “ACE-V” method of analysis. Id. at *2. The defense objected to the admission of Beers as an expert: that objection was overruled, but there was no express finding of reliability of the expert’s testimony. Id.

  Beers testified, identified the 2015 print as Ruvalcaba’s, and the jury hung.

  On retrial, Beers went through a similar drill, the defense objection was again overruled, and Ruvalcaba-Garcia was convicted. Id. at *3.   

Issue(s): “Ruvalcaba argues on appeal that the district court abused its discretion by admitting the expert’s testimony without first finding it ‘relevant’ and ‘reliable.’ Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); see Fed. R. Evid. 702.” Id. at *1.

  “The issue here is ‘reliability,’ which requires that the expert’s testimony have a reliable basis in the knowledge and experience of the relevant discipline. . . . The district court must assess whether the reasoning or methodology underlying the testimony is scientifically valid” and “properly can be applied to the facts in issue, . . . with the goal of ensuring that the expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field, . . . The test ‘is not the correctness of the expert’s conclusions but the soundness of his methodology,’ and when an expert meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony.” Id. at *3 (internal citations and quotations omitted).

Held: “We agree that the district court’s failure to make these gateway determinations was an abuse of discretion.” Id. at *1. 

  “Here, the district court abused its discretion by failing to make any findings regarding the reliability of Beers’s expert testimony and instead delegating that issue to the jury.” Id. at *4. “To satisfy its ‘gatekeeping’ duty” under Daubert, the court must make an explicit reliability finding. . . . The district court’s failure to make an explicit reliability finding before admitting Beers’s expert testimony in this case constituted an abuse of discretion.” Id. at *4 (internal citations and quotations omitted; emphasis added).

Of Note: Ruvalcaba is a thoughtful analysis of the district court’s gatekeeping responsibilities, when considering the admission or exclusion of expert witnesses. 

  Unfortunately for Ruvalcaba, the Ninth then denies relief, after a harmless error analysis. See id. at *5.

  Note the frustrating “findings” by the Ninth in the context of this harmless error review – the panel marches through cold-record gatekeeping and concludes that Beers' "expertise" was good enough for Daubert. Id. at *6; see also "For Further Reading" below.  

How to Use: The defense objected – repeatedly – to Beers’ testimony, over two trials. 

  Despite these objections below, the government argued on appeal that because the defense did not specifically make a “gatekeeping” objection, the review should be for plain error (instead of harmless error). Id. at 3 & *2. 

  The Ninth avoided that question, but let footnote 2 be a warning: expert objections should be specific. Objections should include the magic FRE 702 litany of reliability, relevance, and the court’s gatekeeping function.

For Further Reading: In Ruvalcaba, the Ninth acted as a second Daubert gatekeeper. That procedure is controversial – at least five active Ninth jurists think remand and a post-hoc Daubert hearing would be appropriate when this problem arises. 

  For an accessible piece on the en banc Barabin case that created this odd appellate approach (and that prompted a major en banc split), see article here.  

Image of “Gatekeeper” from https://www.chronicle.com/blogs/linguafranca/2012/11/26/no-more-gatekeeping/

Steven Kalar, Federal Public Defender Northern District of California. Website available at www.ndcalfpd.org

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