United States 1st Circuit Court of Appeals Reports

U.S. v. VARGAS, 05-2826 (1st Cir. 12-22-2006) UNITED STATES
OF AMERICA, Appellee, v. V??CTOR R. VARGAS, Defendant,
Appellant. No. 05-2826. United States Court of Appeals,
First Circuit. December 22, 2006.


Charles P. McGinty, Federal Defender Office, for appellant.

Randall E. Kromm, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on
brief, for appellee.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

On June 13, 2001, the defendant-appellant (the “defendant”)
applied for a United States passport. Thereafter, the
defendant was charged by a federal grand jury in a
three-count indictment with making a false statement in a
passport application, in violation of 18 U.S.C. §
1542; misuse of a social security number, in violation of
42 U.S.C. § 408(a)(7)(B); and possession of an
unlawful identification document with intent to defraud the
United States, in violation of 18 U.S.C. §
1028(a)(4). After a two-day trial, a jury convicted the
defendant on all three counts.

The defendant now appeals his conviction on the ground that
the district court improperly admitted expert testimony
identifying the defendant as someone other than the person
listed on the passport application on the basis of
fingerprint analysis. After careful consideration, we
affirm the conviction because we conclude that the district
court did not err in admitting the expert testimony.

I. Factual Background

On June 13, 2001, a man identifying himself as Samuel Ortiz
submitted an application for a United States passport (“the
application”) at a post office in Dorchester,
Massachusetts. The application indicated that the applicant
Samuel Ortiz was a United States citizen born in Puerto
Rico on May 24, 1963. The applicant signed the name “Samuel
Ortiz” on the application in the presence of the window
clerk and submitted supporting documents, including a
Puerto Rican birth certificate and a Massachusetts
identification card bearing the applicant’s picture, both
under the name “Samuel Ortiz.” The clerk accepted the
application and forwarded it for processing.

The application was reviewed at the National Passport
Center in Portsmouth, New Hampshire by a passport
specialist who testified at trial that aspects of the
application led her to believe it was fraudulent.[fn1] She
forwarded it to a fraud program manager in the Boston
Passport Agency. The program manager testified that she
also observed indications of fraud and sent a letter to the
applicant requesting additional documentation. She received
no response, so she referred the application for
investigation by the Diplomatic Security Service (“DSS”), a
law enforcement branch of the United States Department of
State responsible for passport and visa fraud

On March 5, 2003, two DSS officers went to the address
provided on the Massachusetts identification card submitted
with the application — an address different from the
one written on the application. The agents identified
themselves to the woman who answered the door and, showing
her the picture that had been submitted with the passport
application, asked to see the person depicted in the
picture. The woman led the agents inside the apartment to a
man who one of the agents identified at trial as the
defendant.[fn2] The agents questioned the man about the
application and accompanying photograph. The man denied
submitting the application, telling the agents that his
name was V?­ctor Vargas (“Vargas”) and that he was from the
Dominican Republic. Vargas gave his birth date as July 25,
1960, and provided the names of his parents.

The agents requested that Vargas provide identification.
Vargas responded that he did not have any with him, but
that he might have identification at his mother’s house.
The agents offered to take Vargas to his mother’s house to
get the identification, and asked if they could take his
fingerprints. Vargas provided two sets of fingerprints. He
then went with the agents to the address he had given as
his mother’s home. The agents found no one at that

An investigation revealed that the Bureau of Citizenship
and Immigration Service had an alien file (“A-file”) for
V?­ctor Vargas, born in the Dominican Republic on July 25,
1960. The date of birth and names of parents on file
matched those provided by Vargas to the agents in March
2003. The A-file established that Vargas had been admitted
to the United States as a legal permanent resident in
December 1990 and remained a legal permanent resident in
June 2001, when the passport application was submitted. The
A-file contained an index fingerprint for V?­ctor Vargas.

Investigators also discovered that the passport application
submitted in June 2001 contained four latent fingerprints.
The government conducted fingerprint analysis comparing the
fingerprints obtained by the agents in March 2003 with the
prints from Vargas’s A-file and the latent prints from the
passport application. The analysis revealed that the
fingerprints obtained by the agents matched both the
fingerprint in Vargas’ A-file and the latent prints lifted
off the passport application.

The government then brought charges against the defendant
on the theory that he had fraudulently submitted the
passport application under the name “Samuel Ortiz,” when he
was really V?­ctor Vargas.

At trial, the defendant took the position that his name was
Samuel Ortiz and that he had submitted a truthful passport
application. To contradict this, the government sought to
introduce the expert testimony of Thomas Liszkiewicz, a
senior fingerprint specialist with the Department of
Homeland Security (“DHS”). Liszkiewicz had analyzed the
fingerprints at issue in this case and, on the basis of that
analysis, identified the individual who submitted the
passport application under the name Samuel Ortiz as the
legal permanent resident V?­ctor Vargas. Several months
before trial, the government notified the defendant of
Liszkiewicz’s proposed testimony and provided him with a
report of Liszkiewicz’s conclusions. The government also
made the passport application available to the defendant
for independent analysis. The defendant did not request a
hearing on the admissibility of Liszkiewicz’s fingerprint
testimony nor did he make any pre-trial motions with
respect to Liszkiewicz’s proposed testimony.

At trial, Liszkiewicz first testified about his
qualifications. Liszkiewicz stated that he had been a
senior fingerprint specialist at the DHS for two and a half
years. He had previously spent nineteen to twenty years as
a fingerprint examiner for the Wilmington, Delaware police
department. Liszkiewicz testified that, as part of his
training while with the Delaware police, he took courses
and attended conferences on fingerprint identification
methods, including two forty-hour FBI-sponsored courses in
basic and advanced fingerprint comparison. He also received
training as an intern to court-accepted fingerprint
examiners in Delaware. Liszkiewicz testified that he is
certified as a fingerprint examiner in Delaware and has
served there as an instructor and trainer of fingerprint
identification. He stated that he has also been certified
by the Forensic Document Lab at the DHS. Liszkiewicz also
testified that he has performed “hundreds of thousands” of
fingerprint comparisons and provided expert testimony on
more than one hundred occasions.

After Liszkiewicz testified about his background in
fingerprint analysis, the government moved to qualify
Liszkiewicz as an expert. The defendant objected to
Liszkiewicz’s qualifications. The judge did not rule on
that objection, and the defendant appears to have reserved
the objection for cross-examination. Before allowing the
prosecution to proceed, the court briefly addressed the
jury, discussing the court’s role in admitting expert
testimony but also noting the jury’s independent
responsibility to consider “whether you think [the
expert’s] qualifications are sufficient to persuade you
that he can give this opinion about fingerprints in this

Liszkiewicz went on to explain certain terminology and
procedures of fingerprint identification. He described to
the jury the difference between “inked” prints, produced
intentionally to “reproduce” the patterns on the fingers,
and “latent” fingerprints, obtained from objects that a
person touches. He described the “analysis, comparison,
evaluation and verification,” or “ACEV,” method of
fingerprint comparison he had been trained to use to
determine whether two fingerprints were made by the same
person. Liszkiewicz explained that this method requires the
analyst to first ensure that the prints involved are
sufficiently clear to observe their characteristics, and if
so, to compare the prints by looking at both their
individual characteristics and the overall pattern. The
analyst looks for matching characteristics and patterns and
identifies any points of difference between the prints. An
observation of at least eight matching characteristics and
no unexplainable points of difference is necessary to
indicate that two prints come from the same person. If the
reviewer believes a match has been identified, she submits
the conclusion to another examiner for verification.

Liszkiewicz then testified to the comparisons he performed
in the analysis at issue. First, he described a comparison
of latent prints found on the passport application to the
prints obtained by the agents in March 2003. Of the four
latent prints found on the application, Liszkiewicz
described his comparison of two of them — a left and
right thumb print. He used “chalks” of the latent and inked
prints for both the left and right thumb, and marked five
matching characteristics to explain to the jury. He
explained that he had chosen five characteristics for
illustrative purposes, but had found a larger number of
points of identity between the prints — “into the
twenties” with respect the left thumb print. He testified
that he had found no points of difference between the
latent and inked fingerprints. On the basis of his
analysis, he concluded that the latent and inked thumb
prints “were made by one and the same individual.”

Liszkiewicz further testified that he compared the index
fingerprint obtained by the agents to the corresponding
fingerprint in the Vargas A-file. Liszkiewicz noted the
presence of a “tented arch,” a particularly significant
characteristic because it appears in “less than five
percent, more like three to two percent of the population.”
He testified that other matching characteristics for the
index finger “were positively identified.” On the basis of
his comparison, he testified that the two prints “were made
by one and the same individual to the exclusion of all

The defendant cross-examined Liszkiewicz on several aspects
of his testimony. The defendant questioned him about his
educational background and experience. Liszkiewicz
acknowledged that he did not have an undergraduate degree
or an educational background in science. The defendant
asked whether Liszkiewicz had preserved written notes of
his analysis in this case, to which Liszkiewicz responded
that, consistent with the policies of his department, he
had not. The defendant also asked Liszkiewicz about his
reliance on visual inspection to compare fingerprints. In
response, Liszkiewicz testified without objection that the
visual inspection method he used was consistent with his
training. The defendant also questioned Liszkiewicz about
the quality of the prints used. Liszkiewicz testified that
while it was his usual practice to compare fingerprints
using “the best possible image available,” he had used a
fax copy of the fingerprints from the A-file for Vargas
because it was sufficiently clear. The defendant challenged
Liszkiewicz’s reliance on eight matching characteristics to
find a match in fingerprints, pointing out that other
countries require twelve to sixteen matching
characteristics. Finally, the defendant asked Liszkiewicz
if he knew of statistical studies on the reliability of
fingerprint identification. The defendant asked specifically
about studies establishing the “premise” that fingerprints
are unique, the “relative frequencies” of individual
characteristics in the population, and the probability that
a given group of characteristics might occur in multiple
individuals. Liszkiewicz said that he was unable to
identify specific studies addressing these points.

After Liszkiewicz’s cross-examination, the defendant moved,
without further explanation, “to exclude Liszkiewicz’s
testimony.” The district court denied the motion. A
redirect and re-cross followed, after which the government
rested its case. At this point, the defendant requested a
sidebar, during which he renewed his motion to exclude the
expert testimony, stating:

Your Honor, I renew my motion to strike the testimony of
this witness on the grounds that while he testified to
common fingerprint characteristics, he is without
knowledge, information or expertise about the
significance of common characteristics. That is an
extraordinary omission in the offering of identification
or for identification testimony by this witness. . . .
[W]ithout the ability to testify as to why those
characteristics are meaningful, based on his experience,
training and education, his testimony to the jury that
there was identity between those prints is without
foundation, would not survive any Daubert standard in the
world because he can’t testify to whether these standards
of identification are based on any identifiable science,
are in any way tested by — in the literature.
There’s utterly no foundation for this.

The government responded that fingerprint identification had
been “accepted science for years in courts” and that
Liszkiewicz was a recognized expert with relevant training
and education. The court expressed agreement with the
government’s position and denied the defendant’s motion.
The defendant then moved for a judgment of acquittal “on
that ground.” The district court reserved a ruling on the
motion. The defendant rested his case without calling any

In his closing argument, the defendant asked the jury to
disregard Liszkiewicz’s testimony, once again attacking
aspects of Liszkiewicz’s testimony: Liszkiewicz’s ignorance
about the frequence of certain fingerprint characteristics
in the population, his reliance on eight matching
characteristics, his method of “eyeballing” prints, and his
lack of “scientific” training. After closing arguments, the
district court charged the jury to independently review and
consider the expert testimony in light of all the evidence
presented. The jury returned a verdict of guilty on all

A week after the trial had concluded, the defendant filed a
written motion for judgment of acquittal and for a new
trial pursuant to Federal Rules of Criminal Procedure 29
and 33, respectively. The defendant argued that
Liszkiewicz’s testimony was inadmissible, and for the first
time in the case argued that the expert testimony failed to
satisfy the requirements of Federal Rule of Evidence 702.
As support for his argument he noted, among other things,
that Liszkiewicz did not memorialize his fingerprint
comparisons, that he used a faxed copy of a print for one
of his comparisons, and that he “eyeballed” the
comparisons. The defendant expressly stated that he was not
challenging the admission of fingerprint evidence
generally, limiting his Rule 702 argument to the adequacy
of Liszkiewicz’s testimony.

The district court denied this motion, holding that
Liszkiewicz was qualified as an expert in fingerprint
identification, that his “data and methodology . . . were
within the mainstream of forensic fingerprint technology,”
and that any flaws in his opinion went to the weight of the
evidence, rather than its admissibility.

II. Discussion

On appeal, the defendant argues Liszkiewicz’s testimony
failed to meet three criteria required by Rule 702 for the
admission of expert testimony: that a witness be “qualified
as an expert by knowledge, skill, experience, training, or
education”;[fn3] that expert testimony be “based upon
sufficient facts or data”; and that the expert “appl[y] the
principles and methods of [fingerprint analysis] reliably to
the facts of the case.” Fed.R.Evid. 702.

A. Gate-keeping Under Daubert

Under Rule 702,

[i]f 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.

Id. This rule imposes a gate-keeping role on the trial judge
to ensure that an expert’s testimony “both rests on a
reliable foundation and is relevant to the task at hand.”
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597
(1993); see also Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147-49 (1999) (holding that Daubert applies to all
expert testimony). Expert testimony must be reliable, such
that “the reasoning or methodology underlying the testimony
is scientifically valid and . . . that reasoning or
methodology properly can be applied to the facts in issue.”
Daubert, 509 U.S. at 592-93. The proffered expert testimony
must also be relevant, “not only in the sense that all
evidence must be relevant, but also in the incremental sense
that the expert’s proposed opinion, if admitted, likely
would assist the trier of fact to understand or determine a
fact in issue.” Ruiz-Troche v. Pepsi Cola of P.R. Bottling
Co., 161 F.3d 77, 80 (1st Cir. 1998) (citing Daubert, 509
U.S. at 591-92) (citations omitted).

The inquiry under Rule 702 is a “flexible one.” Daubert,
509 U.S. at 594. The trial court enjoys broad latitude in
executing its gate-keeping function; there is no particular
procedure it is required to follow. See id. The Supreme
Court has emphasized the importance of such broad latitude,
noting that, without it, the trial court “would lack the
discretionary authority needed both to avoid unnecessary
`reliability’ proceedings in ordinary cases where the
reliability of an expert’s methods is properly taken for
granted, and to require appropriate proceedings in the less
usual or more complex cases where cause for questioning the
expert’s reliability arises.” Kumho Tire, 526 U.S. at 152.

B. Liszkiewicz’s Qualifications

The defendant argues that Liszkiewicz’s inability to answer
questions about the significance of common fingerprint
characteristics renders him unqualified to offer expert
testimony to the jury. Because the defendant objected to
Liszkiewicz’s testimony on this basis at trial, this
argument was preserved, and we review the district court’s
decision to accept Liszkiewicz’s qualifications for abuse
of discretion. See United States v. D??az, 300 F.3d 66, 74
(1st Cir. 2002) (citing Gen. Elec. Co. v. Joiner, 522 U.S.
136, 138-39 (1997)).

Before accepting expert testimony, a district court must
determine that a witness is “qualified as an expert by
knowledge, skill, experience, training, or education.”
Fed.R.Evid. 702. “It is well-settled that `trial judges
have broad discretionary powers in determining the
qualification, and thus, admissibility, of expert
witnesses.'” Diefenbach v. Sheridan Transp., 229 F.3d 27, 30
(1st Cir. 2000) (quoting Richmond Steel Inc. v. Puerto
Rican Am. Ins. Co., 954 F.2d 19, 20 (1st Cir. 1992)).

Liszkiewicz’s qualifications as a fingerprint analyst are
considerable. Liszkiewicz testified that he has worked in
the field of fingerprint analysis for over twenty years. He
has completed two FBI courses in fingerprint comparison, as
well as other training courses. He is a certified
fingerprint examiner and police instructor. He has been
deemed qualified as a fingerprint expert in over one-hundred
previous cases. Moreover, there is no evidence that an
understanding of statistical studies on the significance of
recurring fingerprint characteristics is required by any
standard of fingerprint identification analysis.

It is not required that experts be “blue-ribbon
practitioners” with optimal qualifications. United States
v. Mahone, 453 F.3d 68, 71 (1st Cir. 2006). Given the
evidence of Liszkiewicz’s training, experience, and skill,
the district court did not abuse its discretion in finding
him sufficiently qualified to testify as an expert on
fingerprint comparison, as that ruling fell within the
broad purview of the trial court’s discretion.

C. Sufficiency of Liszkiewicz’s Data and the Reliability
of Liszkiewicz’s Application of Fingerprint Analysis

1. Standard of Review

The defendant also raises an argument under the first and
third prongs of Rule 702 arguing that Liszkiewicz’s
testimony was not based upon sufficient facts or data and
that he did not apply the principles and methods of
fingerprint analysis reliably to the facts of this case.
However, the defendant failed to object to Liszkiewicz’s
testimony on these grounds at trial, therefore our review
is limited to plain error review.

Rule 103(a)(1) of the Federal Rules of Evidence requires
that an objection to the admission or exclusion of evidence
be timely and specific in order to preserve the issue for
appeal. This mandate for specificity requires the objecting
party to object with the degree of detail that will
adequately apprise the trial court of the basis of the
objection, unless the specific ground is apparent from the
context. See Fed.R.Evid. 103(a)(1); see also United States
v. Carrillo-Figueroa, 34 F.3d 33, 39 (1st Cir. 1994)
(“Unless the basis for objection is apparent from the
context, the grounds for objection must be specific so that
the trial court may have an opportunity to address the
claim later sought to be presented on appeal.”); United
States v. Walters, 904 F.2d 765, 769 (1st Cir. 1990) (“The
reason for [the specificity] requirement is to alert the
trial court and the other party to the grounds of the
objection so that it may be addressed or cured.”).

As with other bases for objecting, “litigants must raise a
timely objection to the validity or reliability of expert
testimony under Daubert in order to preserve a challenge on
appeal to the admissibility of that evidence.” D?­az, 300
F.3d at 74. However, “[n]othing in [Rule 103] precludes
taking notice of plain errors affecting substantial rights
although they were not brought to the attention of the
court.” Fed.R.Evid. 103(d). Thus, we review a claim of
error not properly preserved below for plain error. D?­az,
300 F.3d at 74-75.

Our review of the record indicates that the defendant
objected to the admission of Liszkiewicz’s expert testimony
three times. His first objection was to Liszkiewicz’s
qualifications. The second objection gave no explanation of
his grounds for objecting; he stated simply and without
elaboration, “I move to exclude [Liszkiewicz’s] testimony.”
The third and final objection referred to Liszkiewicz’s
qualifications and, more generally, to the scientific
foundation of fingerprint analysis. None of the objections
made reference to the sufficiency of Liszkiewicz’s facts or
his application of fingerprint analysis methods.

The defendant’s first objection went to qualifications, and
thus clearly did not preserve these issues for appeal. The
second objection was a general objection. It did not
specify any grounds for objecting and followed a lengthy
cross-examination covering many subjects, including aspects
of Liszkiewicz’s educational background, training, and
experience; the methods he employed for his analysis of the
fingerprints; the memorialization of his analysis; the
accuracy of fingerprint analysis generally; the rigor of
the standards he employed as compared to standards employed
in other countries; the reliability of fingerprint analysis
as compared to DNA analysis; and his knowledge of
statistical studies on the reliability of fingerprint
identification. On the heels of such varied questioning, it
cannot be said that the specific grounds of the defendant’s
objection were “apparent from the context,” such that Rule
103(a) would be satisfied.[fn4] Thus, the defendant’s
second objection could not advise the district court that
the defendant was raising a challenge specifically to the
sufficiency of Liszkiewicz’s data or to the application of
fingerprint analysis methods under Rule 702.

The defendant’s third objection likewise failed to advise
the district court of these challenges to Liszkiewicz’s
testimony. This objection addressed Liszkiewicz’s
qualifications and the scientific foundation of fingerprint
analysis. Although it was more elaborate than his first
insofar as the defendant articulated some grounds for the
motion to strike, it did not call the district court’s
attention to Liszkiewicz’s data or his application of
fingerprint analysis methods.[fn5] In fact, both the
district court and the government understood the defendant
to be challenging the foundation of fingerprint analysis
generally and Liszkiewicz’s qualifications as an
expert.[fn6] Because the defendant failed to make a
specific objection based on the sufficiency of the data
Liszkiewicz employed or his application of fingerprint
analysis methods, and no such basis of objection could be
considered clear from the context, the defendant’s
objections at trial failed to adequately preserve these
challenges to the admissibility of Liszkiewicz’s expert
testimony. We review these claims for plain error.

2. Plain Error Analysis

The defendant must demonstrate “(1) that an error occurred
(2) which was clear or obvious and which not only (3)
affected the defendant’s substantial rights, but also (4)
seriously impaired the fairness, integrity, or public
reputation of judicial proceedings” to establish plain
error in the admission of expert testimony. United States
v. Lemmerer, 277 F.3d 579, 591 (1st Cir. 2002) (quoting
United States v. G??mez, 255 F.3d 31, 37 (1st Cir. 2001))
(internal quotation marks omitted). Nothing of that sort is
implicated here.

a. Sufficiency of the Data

The defendant argues that Liszkiewicz’s testimony was not
based on sufficient facts or data because he used a faxed
image of the fingerprint in Vargas’s A-file to compare that
print with the fingerprints obtained by the agents rather
than the original print or a photograph of the original.

Liszkiewicz provided unrebutted testimony that the ACEV
method of fingerprint comparison required that the analyst
ensure that the prints being analyzed are sufficiently
clear to observe their characteristics. He also testified
that the faxed image of fingerprint was sufficiently clear
to make a comparison. While he did state that it was his
practice to try to use the “best possible image” of a
fingerprint for comparisons, his failure to do so with
respect to one of the prints goes to the weight, not the
admissibility, of his testimony. See Int’l Adhesive
Coating, Co. v. Bolton Emerson Int’l, 851 F.2d 540, 545
(1st Cir. 1988) (“When the factual underpinning of an
expert’s opinion is weak, it is a matter affecting the
weight and credibility of the testimony — a question
to be resolved by the jury.”). There was no error, much
less plain error, in the district court’s finding that
Liszkiewicz’s testimony was based on sufficient facts.

b. Reliability of Application of Methodology

The defendant also contends that Liszkiewicz’s testimony
should have been excluded because he did not apply the
principles and methods of fingerprint analysis reliably to
the facts of this case. He first argues that the district
court “abdicated its responsibility to assure that the
witness applied the appropriate methods of his field
reliably to the facts of the case” and that it ultimately
erred in finding that Liszkiewicz had applied the accepted
methods of fingerprint analysis reliably.

The defendant claims that the court should have concluded
that Liszkiewicz’s testimony was inadmissible because he
failed to memorialize his original analysis with notes, he
based one of his comparisons of a faxed image of a
fingerprint, he “eyeballed” the fingerprints as a means of
identification, and he recited an eight-point standard but
only identified five matching characteristics as to two
comparisons and only one matching point for the last
comparison in his testimony to the jury.

The district court’s responsibility under Rule 702 and
Daubert is only to find that the expert’s conclusion has “a
reliable basis in the knowledge and experience of [the
expert’s] discipline.” Daubert, 509 U.S. at 592; see also
Ruiz-Troche, 161 F.3d at 85 (“[Daubert] demands only that
the proponent of the evidence show that the expert’s
conclusion has been arrived at in a scientifically sound
and methodologically reliable fashion.”). We have
specifically noted that “Daubert does not require that the
party who proffers expert testimony carry the burden of
proving to the judge that the expert’s assessment of the
situation is correct.” Ruiz-Troche, 161 F.3d at 85. Once
the district court finds that the expert’s methodology is
reliable, the expert is allowed to testify as to the
inferences and conclusions he draws from it. United States
v. Mooney, 315 F.3d 54, 63 (1st Cir. 2002) (“We . . . note
that Rule 702 specifically allows qualified experts to
offer their opinions, a testimonial latitude generally
unavailable to other witnesses.”).

The record shows that Liszkiewicz explained that the
methods and procedures he employed in analyzing fingerprint
identity required him to find at least eight matching
characteristics and no unexplainable points of difference
in order to determine that two fingerprints came from the
same person. Liszkiewicz testified that he examined every
set of fingerprints personally and that each examination
yielded sufficient points of identity to determine that
they belonged to the defendant. He stated that the
comparisons yielded no characteristics of difference, and
emphasized the significance of finding more than twenty
points of identity as to one comparison and a matching
“tented arch” characteristic as to another. Liszkiewicz
stated that his use of only five points was for
illustrative purposes, and he never suggested that he
relied on fewer than eight points of identity in declaring a
match. He also testified that while getting the “best
possible image” was important, the faxed image of the print
was sufficiently clear to make a comparison. We find this
testimony more than sufficient to support the district
court’s determination that Liszkiewicz’s conclusions had a
reliable basis in the knowledge and discipline of
fingerprint analysis.

This Court has made clear that

[a]s long as an expert’s scientific testimony rests upon
good grounds, based on what is known, it should be tested
by the adversary process — competing expert
testimony and active cross-examination — rather
than excluded from jurors’ scrutiny for fear that they
will not grasp its complexities or satisfactorily weigh
its inadequacies.

Ruiz-Troche, 161 F.3d at 85 (internal quotation marks and
citations omitted); see also Daubert, 509 U.S. at 596
(“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.”).

We note that the defendant questioned Liszkiewicz at length
on all of the alleged deficiencies in his testimony that he
challenges on appeal. He presented the jury with his view
of the inconsistencies and weaknesses in Liszkiewicz’s
testimony. Moreover, the district court below instructed
the jury that, notwithstanding the court’s decision to
admit the evidence, it had the “separate responsibilit[y] of
determining whether [it] believe[d] him and his opinions,
in particular, based on [its] judgment of his
qualifications as a fingerprint analyst and expert.” In
light of the district court’s cautionary instructions to
the jury, the defendant’s vigorous cross-examination of
Liszkiewicz, and his argument to the jury at closing that
the fingerprint evidence should not be credited, we are
confident that the jury could draw its own conclusions as
to the strength of the support for Liszkiewicz’s opinions.

Thus, the defendant is unable to establish the first prong
of the plain error test: there was no error in the district
court’s assessment of the reliability of Liszkiewicz’s
application of fingerprint analysis methodology to the
facts of this case.

III. Conclusion

For the reasons stated above, we affirm.


[fn1] The passport specialist testified that she suspected
fraud because the picture identification card and the birth
certificates submitted with the application were recently
issued, and because Ortiz printed his signature, which she
thought was inconsistent with a Puerto Rican education.

[fn2] At trial, the agent testified that during this
encounter, he noticed that the man they questioned had a
mole on his left earlobe matching that shown in the picture
submitted with the passport application. On
cross-examination, the agent acknowledged that he did not
mention the identifying mole in his contemporaneous notes of
the March 5, 2003 meeting.

[fn3] On appeal, the defendant’s “specific” argument is that
Liszkiewicz “failed to meet two of the criteria for
admission required by Fed.R.Evid. 702; his testimony was
not based upon sufficient data and he had not applied the
relevant methods reliably to the facts of the case.” The
defendant does not explicitly articulate a challenge to
Liszkiewicz’s qualifications, but he devotes part of his
brief to the argument that Liszkiewicz “demonstrated little
understanding of fingerprint analysis methodology.” We
understand this argument to go to Liszkiewicz’s
qualifications, and we will address it as such.

[fn4] Although the defendant’s cross-examination of
Liszkiewicz was itself limited to the expert’s
qualifications, methodology, the basis for his ultimate
opinion, and the reliability of the fingerprint analysis in
general, subjects that are all governed by Rule 702, more
than `I move to exclude his testimony’ after a wholesale
attack on an expert’s testimony is necessary to advise the
trial court of an objection based on the sufficiency of
facts employed by the expert and his application of
appropriate methods. See D?­az, 300 F.3d at 75 (noting that
because “Rule 702 encompasses an array of expert witness
issues,” an objection on the basis of one or more of its
criteria must advise the court of the specific Rule 702
provision being challenged).

[fn5] Although the defendant did refer briefly to Daubert,
he did not articulate how the Daubert standard relates to
the specific challenges he brings to our attention on
appeal. See D?­az, 300 F.3d at 75 (finding the defendant’s
references to “Daubert” and “competency” to be “woefully
deficient for the purposes of advising the district court
that [the defendant] was raising a challenge to the
reliability of the experts’ methods and the application of
those methods under 702”).

[fn6] In response to Vargas’s objection, the following
colloquy took place:

THE GOVERNMENT: Fingerprint examination has been an
accepted science for years in courts. He has been accepted
as an expert. He has official training and background and
education to testify and give his opinion as to how he
made this identification.

THE COURT: Yes. The motion is denied. It has a certain
plausibility, but it’s denied.