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Third Circuit rejects challenge to shoeprint expert testimony, affirms application of CO provision and 460-month sentence for bank robbery

In United States v. Ford, No. 05-4998 (3d Cir. Mar. 29, 2007), the Third Circuit rejected a challenge to the admission of testimony of the government’s expert witness, where Ford argued that the expert opinion failed to meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. The expert was permitted to testify that Ford’s shoes were the kind that could have made the footprints left on the bank counter at one of the robberies with which he was charged. Ford argued that the testimony should be excluded because the opinion was no more precise than that the shoe impressions at the bank and those made by the shoes he was wearing when apprehended were "similar." However, the Court ultimately reasoned that an expert opinion expressing the possibility that a crime shoe impression may have been made by shoes worn by the defendant, to the extent it meets the reliability and relevancy thresholds in Daubert, is "clearly relevant" to the question of whether defendant was present at the scene of the crime, and thus determined that the district court did not abuse its discretion in admitting this testimony.

The Third Circuit also affirmed the application of the career offender provision in U.S.S.G. § 4B1.1(a), based on two prior convictions for crimes of violence, one of which was an escape attempted while Ford was incarcerated in Virginia. Acknowledging that United States v. Lister, 305 F.3d 199 (3d Cir. 2002), held that escape is a crime of violence, Ford argued that Luster is no longer controlling due to Booker, and that the fact finding of whether his prior offenses were crimes of violence should have been submitted to a jury. Noting that although Booker did not directly address whether jury fact finding is necessary to determine whether a particular offense is a crime of violence, the Court stated that Booker nevertheless expressly excludes the fact of prior conviction from the purview of jury fact finding. Thus, where it had previously held every escape conviction to be a crime of violence, the Third Circuit concluded that no jury fact finding was required and thus the district court did not err in applying the CO provision and sentencing Ford to 460 months.

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