United States v. Mario Ruvalcaba-Garcia

                       FOR PUBLICATION

        UNITED STATES COURT OF APPEALS
             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 17-50288
           Plaintiff-Appellee,
                                                 D.C. No.
                  v.                       3:16-cr-02363-LAB-1

 MARIO RUVALCABA-GARCIA,
        Defendant-Appellant.                      OPINION


        Appeal from the United States District Court
           for the Southern District of California
       Larry A. Burns, Chief District Judge, Presiding

             Argued and Submitted April 11, 2019
                    Pasadena, California

                        Filed May 10, 2019

Before: Susan P. Graber and Jay S. Bybee, Circuit Judges,
        and M. Douglas Harpool,* District Judge.

                        Per Curiam Opinion




    *
      The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
2           UNITED STATES V. RUVALCABA-GARCIA

                            SUMMARY**


                            Criminal Law

    The panel affirmed a conviction for illegally reentering
the United States after having been removed, in a case in
which the defendant argued that the district court abused its
discretion by admitting expert testimony that a fingerprint
taken during the underlying removal proceedings belonged to
the defendant.

    The panel held that the district court abused its discretion
by failing to make an explicit reliability finding before
admitting the fingerprint analyst’s expert testimony, as
required under Daubert v. Merrill Dow Pharm, Inc., 

509 U.S. 579

 (1993), and Fed. R. Evid. 702, but that the error was
harmless because the record is sufficient to determine that the
testimony had a reliable basis in the knowledge and
experience of the relevant discipline.

   The panel addressed remaining arguments in an
accompanying memorandum disposition.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
          UNITED STATES V. RUVALCABA-GARCIA                   3

                         COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego Inc.,
San Diego, California, for Defendant-Appellant.

Zachary J. Howe (argued) and Nicole Ries Fox, Assistant
United States Attorneys; Helen H. Hong, Chief, Appellate
Section; Adam L. Braverman, United States Attorney; United
States Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.


                          OPINION

PER CURIAM:

    Mario Ruvalcaba-Garcia was convicted of violating

8 U.S.C. § 1326

(a) for illegally reentering the United States
after having been removed. His conviction was predicated on
a removal order from 2015, and his defense at trial was that
he was not the person removed in 2015. To prove he was that
person, the government called as an expert witness a
fingerprint analyst who testified that a fingerprint taken
during the 2015 removal proceedings belonged to Ruvalcaba.

     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. We agree that the district court’s “failure to make
these gateway determinations was an abuse of discretion.”
Estate of Barabin v. AstenJohnson, Inc., 

740 F.3d 457, 467

(9th Cir. 2014) (en banc). But because “the record is
sufficient to determine [that the] expert testimony [was]
4         UNITED STATES V. RUVALCABA-GARCIA

relevant and reliable,” 

id.,

 we conclude that the error was
harmless and affirm.1

                                I

    Ruvalcaba is a native and citizen of Mexico who does not
have legal authorization to enter or remain in the United
States. In September 2016, he was apprehended by Border
Patrol agents a few miles north of the port of entry at Tecate,
California. He was arrested and charged with illegally
reentering the United States after having been removed, in
violation of 

8 U.S.C. § 1326

(a), a crime that requires the
government to prove “that the defendant ‘left the United
States under order of exclusion, deportation, or removal, and
then illegally reentered.’” United States v. Raya-Vaca,

771 F.3d 1195, 1201

 (9th Cir. 2014) (quoting United States
v. Barajas-Alvarado, 

655 F.3d 1077, 1079

 (9th Cir. 2011)).

     The government predicated the illegal-reentry charge on
an expedited removal order from June 2015. See 

8 U.S.C. § 1225

(b). Although the documents from the 2015 removal
proceedings identify the person removed as “Mario
Ruvalcaba-Garcia AKA Macias-Garcia, Juan,” the documents
are all signed with the name “Juan Macias-Garcia” or the
initials “JMG.” Ruvalcaba’s primary defense to the illegal-
reentry charge was that the government could not prove that
he was the person removed in 2015. Among the 2015
removal documents, however, was a Verification of Removal
form that contained not only a signature but also a photograph
and a fingerprint of the removed individual.



   1
     We address Ruvalcaba’s remaining arguments in an accompanying
memorandum disposition.
          UNITED STATES V. RUVALCABA-GARCIA                  5

    Before trial, the government produced an expert report by
David Beers, a fingerprint analyst, who would testify that the
fingerprint on the 2015 Verification of Removal matched a
fingerprint he had taken from Ruvalcaba. At a pretrial
motions hearing, Ruvalcaba requested an opportunity to
challenge the admissibility of Beers’s expert testimony.
Although the district court had previously admitted Beers as
an expert in several other cases, Ruvalcaba wanted to take “a
crack at it.” The court agreed and explained that, after the
government laid the foundation for Beers to testify as an
expert, Ruvalcaba would be permitted to question him about
“the foundation of his expertise, before we get to his ultimate
opinion, if we do.”

    The case proceeded to trial. The government introduced
into evidence a copy of the 2015 Verification of Removal, but
the quality of the copy was quite poor and the photograph and
fingerprint were nearly indiscernible. The government then
called Beers to testify about his fingerprint analysis. The
parties questioned Beers about his qualifications and
methodology, with Ruvalcaba noting at the outset that he was
“doing this with an eye towards Daubert.” Beers testified that
he had worked as an FBI fingerprint technician and instructor
for 33 years, reviewing more than 300,000 fingerprints and
testifying as an expert more than 200 times. He had never
“not been qualified [in any proceeding] as an expert in
fingerprints.” He uses “the Henry system of classification
and identification,” which he described as the prevailing
fingerprinting methodology that analyzes fingerprints
according to unique points of identification. On cross-
examination, Beers testified that he had not taken continuing
education courses in fingerprint analysis, and he confirmed
that was he not a member of the International Association for
Identification (“IAI”) or the Scientific Working Group on
6         UNITED STATES V. RUVALCABA-GARCIA

Friction Ridge Analysis, Study, and Technology
(“SWGFAST”). He also acknowledged that he did not
strictly follow the “ACE-V” method of fingerprint analysis,
which is endorsed by SWGFAST and stands for analysis,
comparison, evaluation, and verification. See United States
v. Herrera, 

704 F.3d 480

, 484–85 (7th Cir. 2013) (describing
the ACE-V method). Although Beers followed the “ACE”
part of the method, he did not have another fingerprint
technician independently verify his conclusions. Nor did he
know how many points of identification he used to match
Ruvalcaba’s fingerprint.

     At the conclusion of his cross-examination, Ruvalcaba
“object[ed] to the admission of Mr. Beers as an expert in this
case.” After some additional questioning, the court overruled
Ruvalcaba’s objection, stating: “I find that there’s a basis for
Mr. Beers to offer an opinion on the basis of his fingerprint
comparison in this case.” At the same time, the court
instructed the jury that Beers’s testimony should “be judged
like other testimony” and given “as much weight as you think
it deserves, taking into consideration the witness’ education,
the witness’ experience, the reasons given for the opinion and
all of the other evidence in this case.”

    Beers went on to testify that, in his opinion, the
fingerprint he took from Ruvalcaba matched the fingerprint
on the 2015 Verification of Removal. He acknowledged,
however, that the copy presented in court was “so
diminished” that he “wouldn’t be able to make an
identification off of that.” The government also presented
additional evidence from other witnesses but stressed during
closing arguments that Beers was “important because he tells
you that . . . the fingerprint on the document is the
          UNITED STATES V. RUVALCABA-GARCIA                   7

defendant’s fingerprint.” The jury was unable to reach a
verdict, and the court declared a mistrial.

     Ruvalcaba was retried a week later. This time, Beers
annotated the fingerprint on the 2015 Verification of Removal
to identify six matching points of identification, and the
government made an enlarged copy of the annotated
fingerprint for Beers to use while he testified. As in the first
trial, the government first questioned Beers about his
qualifications and methodology. After eliciting testimony
that largely tracked that presented in the first trial, the
government “move[d] to have Mr. Beers qualified as an
expert fingerprint technician.” The court responded, “That’s
a determination for the jury.” Ruvalcaba then cross-
examined Beers, again establishing that he was not a member
of IAI or SWGFAST and that, although he followed the
“ACE” part of the ACE-V method—which is simply “a
verbalization of what fingerprint technicians have been doing
for over a hundred years”—he did not have another analyst
independently verify his conclusions. Once Ruvalcaba
finished his cross-examination, the government again
“move[d] to qualify [Beers] as an expert,” and the court
responded, “Again, that’s an issue for the jury.” Ruvalcaba
then “object[ed] to the qualifying” of Beers “as an expert.”
The court overruled the objection and instructed the jury:
“[I]t’s up to you to decide whether the witness by virtue of his
experience and training is qualified to give opinions and give
his testimony whatever weight you think it deserves in light
of that testimony, the reasons given for the opinion, all other
evidence in this case.”

    Beers then testified about his fingerprint analysis in this
case, now with the help of the annotated and enlarged
fingerprint from the 2015 Verification of Removal. After the
8            UNITED STATES V. RUVALCABA-GARCIA

government presented additional witnesses and evidence, the
jury returned a guilty verdict. The district court sentenced
Ruvalcaba to five years of probation.

                                    II

    On appeal, Ruvalcaba challenges the admission of Beers’s
expert testimony, arguing that the district court impermissibly
abdicated its “gatekeeping” role under Daubert and Federal
Rule of Evidence 702. We review the district court’s
decision to admit expert testimony for an abuse of discretion.
United States v. Flores, 

901 F.3d 1150

, 1155–56 (9th Cir.
2018). If the district court abused its discretion, we will
reverse if the error was not harmless. United States v.
Christian, 

749 F.3d 806, 813

 (9th Cir. 2014) (citing Barabin,

740 F.3d at 460

, 466–67).2

                                    A

    Before admitting expert testimony into evidence, the
district court must perform a “gatekeeping role” of ensuring
that the testimony is both “relevant” and “reliable” under
Rule 702.3 Daubert, 

509 U.S. at 597

. “Relevancy simply


    2
       The government contends that Ruvalcaba’s challenge to the
admission of Beers’s expert testimony may be reviewed only for plain
error because he did not specifically raise a “gatekeeping” objection
below. We decline to reach that issue because Ruvalcaba’s challenge fails
even under harmless error review.
    3
        Rule 702 provides:

          A witness who is qualified as an expert by knowledge,
          skill, experience, training, or education may testify in
          the form of an opinion or otherwise if: (a) the expert’s
           UNITED STATES V. RUVALCABA-GARCIA                        9

requires that ‘the evidence logically advance a material aspect
of the party’s case.’” Barabin, 

740 F.3d at 463

 (citation and
internal alterations omitted). Ruvalcaba does not dispute the
relevancy of Beers’s testimony, as it connected Ruvalcaba to
the person removed in 2015.

    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.” 

Id.

 (quoting
Kumho Tire Co. v. Carmichael, 

526 U.S. 137, 149

 (1999)).
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,” Daubert,
509 U.S. at 592–93, 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,” Kumho Tire, 

526 U.S. at 152

. “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.”
Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 

752 F.3d 807, 814

 (9th Cir. 2014) (quoting Primiano v. Cook, 

598 F.3d 558, 564

 (9th Cir. 2010)).



        scientific, technical, or other specialized knowledge
        will help the trier of fact to understand the evidence or
        to determine a fact in issue; (b) the testimony is based
        on sufficient facts or data; (c) the testimony is the
        product of reliable principles and methods; and (d) the
        expert has reliably applied the principles and methods
        to the facts of the case.

Fed. R. Evid. 702.
10        UNITED STATES V. RUVALCABA-GARCIA

     The reliability analysis is “a malleable one tied to the
facts of each case,” and “district courts are vested with ‘broad
latitude’ to ‘decide how to test an expert’s reliability’ and
‘whether or not an expert’s relevant testimony is reliable.’”
Murray v. S. Route Mar. SA, 

870 F.3d 915

, 922–23 (9th Cir.
2017) (quoting Kumho Tire, 526 U.S. at 152–53). Although
Daubert identifies several factors that may be used for
evaluating the reliability of an expert—whether the scientific
theory or technique has been tested, peer reviewed, identified
as having a particular rate of error, and generally accepted in
the scientific community, see 509 U.S. at 592–94—district
courts are not required to consider all (or even any) of these
factors, nor are they required to hold a “Daubert hearing.”
Barabin, 740 F.3d at 463–64.

     Nevertheless, district courts do not have “discretion to
abandon the gatekeeping function” altogether, Kumho Tire,
526 U.S. at 158–59 (Scalia, J., concurring), for “Rule 702
‘clearly contemplates some degree of regulation of the
subjects and theories about which an expert may testify,’”
Barabin, 

740 F.3d at 464

 (quoting Daubert, 

509 U.S. at 589

).
We have thus held that a district court abuses its discretion
when it either “abdicate[s] its role as gatekeeper” by failing
to assess “the scientific validity or methodology of [an
expert’s] proposed testimony,” or “delegate[s] that role to the
jury” by “admitting the expert testimony without first finding
it to be relevant and reliable.” Id.; see also City of Pomona
v. SQM N. Am. Corp., 

866 F.3d 1060, 1069

 (9th Cir. 2017)
(holding that the admission of an expert’s testimony without
making “any findings regarding the efficacy of [the expert’s]
opinions constituted an abdication of the district court’s
gatekeeping role, and necessarily an abuse of discretion”).
          UNITED STATES V. RUVALCABA-GARCIA                   11

     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.
Indeed, the district court made this error three times during
Ruvalcaba’s second trial. After the government conducted an
initial voir dire of Beers and “move[d] to have [him] qualified
as an expert fingerprint technician,” the court responded,
“That’s a determination for the jury.” After Ruvalcaba cross-
examined Beers and the government again “move[d] to
qualify him as an expert,” the court responded, “Again, that’s
an issue for the jury.” And when Ruvalcaba “object[ed] to
the qualifying [of Beers] as an expert,” the court overruled
the objection and told the jury that it was up to them “to
decide whether the witness by virtue of his experience and
training is qualified to give opinions.”

    The government argues that the district court fulfilled its
gatekeeping duty at Ruvalcaba’s first trial by overruling
Ruvalcaba’s objection to Beers’s testimony and declaring that
“there’s a basis for Mr. Beers to offer an opinion on the basis
of his fingerprint comparison in this case.” But the district
court’s ruling at most “suggests an implicit finding of
reliability,” which is not sufficient. United States v. Jawara,

474 F.3d 565, 583

 (9th Cir. 2007). To satisfy its
“‘gatekeeping’ duty” under Daubert, the court must “make an
explicit reliability finding.” 

Id.

 at 582–83 (quoting Daubert,

509 U.S. at 597

); cf., e.g., Flores, 

901 F.3d at 1165

 (affirming
the admission of Beers as an expert where the district court
“ma[de] an explicit finding regarding the scientific validity of
Beers’s testimony”). 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.
12        UNITED STATES V. RUVALCABA-GARCIA

                               B

     Because the district court abused its discretion by
admitting Beers’s testimony without having performed its
gatekeeping function, we must next determine whether the
error was harmless. Christian, 

749 F.3d at 813

. The
government bears the burden to show harmlessness, a burden
it can sustain in this context by showing either that “it is more
probable than not that the jury would have reached the same
verdict even if the [expert testimony] had not been admitted,”
Barabin, 

740 F.3d at 465

 (citation omitted), or that the
admitted “expert testimony [was] relevant and reliable” under
Daubert based on “the record established by the district
court,” 

id. at 467

.

    Ruvalcaba contends that, under Barabin, we may not
“consider in the first instance whether the expert’s testimony
was admissible under Daubert” and must instead remand for
a new trial if the testimony may have impacted the verdict.
That is incorrect. “Under Barabin, a new trial is warranted
when evidence admitted through an erroneous analysis
prejudices the opposing party but the record is too sparse to
conduct a proper admissibility analysis and decide whether
the admission itself was erroneous.” Christian, 

749 F.3d at 813

 (citing Barabin, 740 F.3d at 466–67). When, however,
“the record is sufficient to determine whether [the] expert
testimony is relevant and reliable,” Barabin makes clear that
we “may make such findings” on appeal. 

740 F.3d at 467

;
see 

id.

 (overruling Mukhtar v. Cal. State Univ., 

299 F.3d 1053

(9th Cir. 2002), amended by 

319 F.3d 1073

 (9th Cir. 2003),
“to the extent that it required that Daubert findings always be
made by the district court”). And when the record shows that
the expert’s testimony “‘satisfied the requirements for
admission,’” we may conclude that the district court’s failure
          UNITED STATES V. RUVALCABA-GARCIA                   13

to make “an explicit finding of reliability was harmless.”
Jawara, 

474 F.3d at 583

 (internal alteration omitted) (quoting
United States v. Rahm, 

993 F.2d 1405, 1412

 (9th Cir. 1993));
see United States v. Figueroa-Lopez, 

125 F.3d 1241, 1247

(9th Cir. 1997).

    In this case, the record is sufficient for us to determine
that Beers’s testimony had “a reliable basis in the knowledge
and experience of the relevant discipline.” Barabin, 

740 F.3d at 463

 (quoting Kumho Tire, 

526 U.S. at 149

). Beers testified
without contradiction that he had amassed 33 years of
experience as a fingerprint technician and instructor with the
FBI, analyzing more than 300,000 fingerprints and testifying
as an expert in some 250 criminal cases, including in
proceedings before this district judge. His testimony,
moreover, was based on the Henry system, a methodology of
fingerprint classification that “ha[s] been tested in the
adversarial system for roughly a hundred years.” United
States v. Calderon-Segura, 

512 F.3d 1104, 1109

 (9th Cir.
2008). As we recently explained in another illegal-reentry
case affirming the admission of Beers’s testimony, his
methodology “is far from junk science—it can be tested and
peer reviewed and is generally accepted by the relevant
scientific community.” Flores, 

901 F.3d at 1165

.

    To be sure, the fact that Beers has testified as an expert in
other cases does not provide the “sole basis” for determining
the reliability of his testimony in this case. United States v.
Alatorre, 

222 F.3d 1098, 1105

 (9th Cir. 2000). Beers
testified extensively on direct and cross-examination about
the methodology he employed in this case, including
describing the side-by-side comparison of the fingerprints in
this case and the points of identification he found. The only
evidence presented by Ruvalcaba to undermine the reliability
14        UNITED STATES V. RUVALCABA-GARCIA

of Beers’s testimony falls far short. Although Ruvalcaba
established during cross-examination that Beers did not
belong to certain professional organizations or engage in
continuing education, the absence of “specific credentials”
does not necessarily render an expert “unfit to provide expert
testimony.” United States v. Brooks, 

610 F.3d 1186, 1196

(9th Cir. 2010) (citation omitted). Also unavailing is the fact
that Beers did not strictly follow the ACE-V method, a
widely validated method. See Herrera, 

704 F.3d at 484

(referring to ACE-V as “the standard method for determining
whether two fingerprints are from the same person”); United
States v. Pena, 

586 F.3d 105, 110

 (1st Cir. 2009) (“Numerous
courts have found expert testimony on fingerprint
identification based on the ACE-V method to be sufficiently
reliable under Daubert.”). As Beers explained, he deviated
from the ACE-V method only by not having another
fingerprint analyst verify his conclusions in this case, and
questions about the correctness of an expert’s conclusions
“are a matter of weight, not admissibility.” Messick v.
Novartis Pharm. Corp., 

747 F.3d 1193, 1199

 (9th Cir. 2014);
see Daubert, 

509 U.S. at 595

 (“The focus [of Rule 702] must
be solely on principles and methodology, not on the
conclusions that they generate.”). In any event, an expert
may offer “testimony based on methodologies that differ
from the standards that the federal government or
fingerprinting trade organizations desire.” Flores, 

901 F.3d at 1165

 n.22.

    Because the record demonstrates that Beers’s testimony
satisfied the admissibility requirements under Daubert, we
conclude that the “lack of an explicit finding of reliability
was harmless.” Jawara, 

474 F.3d at 583

.
         UNITED STATES V. RUVALCABA-GARCIA                 15

                             III

    The district court abused its discretion in admitting
Beers’s expert testimony without first finding it relevant and
reliable under Daubert and Rule 702. But because the record
is sufficient for us to make that determination, the error was
harmless. For these reasons and those given in the
accompanying memorandum disposition, Ruvalcaba’s
conviction is AFFIRMED.