Us Court of Appeals for the Tenth Circuit, 0521 COBJ, Vol. 50, No. 5 Pg. 76

PositionVol. 50, 5 [Page 76]

50 Colo.Law. 76

US COURT OF APPEALS FOR THE TENTH CIRCUIT

No. Vol. 50, No. 5 [Page 76]

Colorado Lawyer

May, 2021

Summaries of Selected Opinions

No. 19-6161. United States v. Foust. 2/2/2021. W.D.Okla. Judge Kelly. Fed. R. Evid. 702— Daubert Test—Reliable Data—Handwriting Expert.

Defendant was a foreman with Chesapeake Energy Corp. (Chesapeake). He left the company to start Platinum Express, LLC (Platinum), which performed water-hauling services for oil and gas companies. Platinum entered into a contract with Chesapeake. After several years, Chesapeake employees discovered over $4.5 million in fraudulent invoices submitted by Platinum. Chesapeake informed defendant that it was going to exercise its contractual right to examine Platinum's computers and business records. While Chesapeake investigators were on their way, defendant told them someone had broken into the office and stolen two computers.

The FBI was brought in to investigate. Defendant unsuccessfully attempted to blame two employees for the fraudulent invoices, and he was charged with several counts of wire fraud, identity theft, and money laundering. Before trial, defendant requested a Daubert hearing to determine whether the government's handwriting expert, Linville, would be permitted to testify under Fed.R.Evid. 702. The court permitted Linville to testify, and he opined that defendant forged the signature of a Chesapeake employee on invoices associated with Chesapeake. Defendant was convicted of six counts of wire fraud and one count each of identity theft and money laundering.

On appeal, defendant contended that the district court erred in allowing Linville's testimony because the government did not meet its burden to establish that the expert's methodology was reliable under the Daubert/Kumho Tire test. Handwriting comparison is not a traditional science, and while the Daubert factors do not always correspond perfectly, they are helpful in evaluating the reliability of experience-based testimony. Here, Linville had years of training, was certified by forensic examiner organizations, and had rendered expert opinions in hundreds of cases. While defendant correctly pointed out that Linville's testimony about peer review and error rates was lacking, and review of the factors provided mixed results, the district court nevertheless did not abuse its discretion in finding Linville's methodology reliable.

Defendant also argued that Linville did not use reliable data because the exemplars were not sufficiently contemporaneous. Linville relied primarily on exemplars that were two and a half months and eight months outside his preferred range of being written within two years of the questioned writing. Linville testified at the Daubert hearing that the importance of contemporaneous exemplars can vary. Defendant's argument go es to the weight rather than the admissibility of the testimony.

The convictions were affirmed.

No. 19-2097. United States v. Mora. 2/24/2021. D.N.M. Judge Carson. Fourth Amendment—Warrantless Entry into Home—Exigent Circumstances Exception—Excised Search Warrant Affidavit.

Officers responded to a 911 call reporting that dozens of people exited the back of a tractor trailer behind a supermarket. When officers arrived, the tractor trailer was gone, but they found a number of people lacking proper identification, some of whom admitted that a driver smuggled diem across die border in die back of a tractor trailer. Officers soon located a tractor trailer matching die caller's description in a nearby Walmart parking lot. Video footage showed that after parking, defendant entered die Walmart, made purchases, and left in a different car driven by his wife. Officers proceeded to defendant's home. Defendant and his wife arrived at the house shorty there after. They were placed under arrest, and officers searched outside their home.

Defendant's wife denied die officers' request to search the home. Officers nevertheless conducted a warrantless search (protective sweep) to ensure die agents' safety and that of other potential undocumented immigrants. The officers did not find any people but noticed a gun safe and ammunition containers. Upon learning that defendant was a convicted...

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