United States of America v. CHRIS RUTLAND Christopher H. Rutland

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 03-3915
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UNITED STATES OF AMERICA
v.
CHRIS RUTLAND
Christopher H. Rutland,
Appellant
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On Appeal from the
United States District Court
for the District of New Jersey
(D.C. No. 02-cr-00494-01)
District Judge:
Honorable Dickinson R. Debevoise
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Argued: March 29, 2004
Before: ALITO, FISHER
and ALDISERT, Circuit Judges.
(Filed : June 23, 2004)
Kenneth W. Kayser (Argued)
P.O. Box 2087
Livingston, NJ 07039
Attorney for Appellant
George S. Leone
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Glenn J. Moramarco (Argued)
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
Attorneys for Appellee
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Defendant Christopher H. Rutland
appeals from his judgment of sentence,
arguing that it was unfairly prejudicial to
allow the government’s exceptionally-
qualified handwriting expert to testify to
the ultimate issue of authorship of key
documents. The Advisory Committee
Note to Rule 403 of the Federal Rules of
Evidence states, unfair prejudice “means
an undue tendency to suggest decision on
an improper basis, commonly, though not
necessarily, an emotional one.” It is not
unfairly prejudicial to allow an expert to
testify to the ultimate issue. Jurors may
properly take an expert’s impressive
experience and credentials into account
when determining the weight of the
expert’s testimony. Therefore, we will
affirm the decision of the district court.
I. Background
Rutland was a financial advisor
with Citicorp Financial Services when he
met Helen Constans, an elderly widow, in

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1990. Constans trusted Rutland to invest
her money, and Rutland had access to
Constans’ financial information, including
the numbers and locations of her bank
accounts as well as her social security
number. Rutland later prepared Constans’
tax returns.
C o n s t a n s w a s e v e n t u a l l y
hospitalized, and later placed in a long-
term care facility in September of 1995.
Her niece, Dorothy McCosh, attempted to
locate and sort Constans’ financial
documents. McCosh found an annuity
statement that listed Barbara Grams as the
annuitant. McCosh did not know anyone
by the name of Grams. Because McCosh
knew that Rutland had been Constans’
financial advisor, McCosh twice contacted
Rutland. Although Rutland and Grams
had been dating since 1987, Rutland
claimed each time that he did not know
Grams, and that the annuity statement that
listed Grams as the annuitant must have
been a clerical error.
Rutland and Grams defrauded
Constans of more than $637,000. They
bought luxury automobiles, built a home in
Arizona, and took vacations in Europe,
Las Vegas, Florida, and the Carribean with
Constans’ money. They perpetrated the
fraud by forging Constans’ signature on
multiple financial forms, including:
change of address forms changing
Constans’ address to Rutland’s or Grams’
address; change of ownership forms
transferring ownership of Constans’
financial accounts to Rutland or Grams;
documents to open accounts naming
Grams as a joint owner with Constans; and
forging checks drawn on Constans’
account made payable to Rutland or
Grams.
Rutland and Grams were each
charged with one count of conspiring to
obtain money and property through a
fraudulent scheme, in violation of 18
U.S.C. § 371.
The district court held a Daubert1
hearing to determine the qualifications of
both the government’s handwriting expert
and the defendants’ expert, a critic of the
field of handwriting analysis. The district
court found that both experts were
sufficiently qualified to testify at trial as
expert witnesses.
Prior to trial, Rutland filed a motion
in limine to prevent the government’s
handwriting expert from opining regarding
the authenticity of Constans’ signature on
the documents completed by Rutland and
Grams. The district court denied the
motion.
At trial, the government’s
handwriting expert testified regarding his
extensive qualifications and impressive
past experience.2 Then, he explained
1 Daubert v. M errell Dow
Pharmaceuticals, Inc., 509 U.S. 579
(1993).
2The government’s handwriting
expert, Gus Lesnevich, testified that he
had been employed as a forensic document
examiner, or a handwriting expert, for
approximately 34 years. He began
working in this field while serving in the

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background information and techniques
used in handwriting analysis to provide the
jury with tools to reach their own
conclusions about the authenticity of the
contested signatures. Ultimately, the
expert applied his knowledge and opined
that the signatures were forgeries.
The defense expert attacked the
general reliability of handwriting analysis.
The jury convicted Rutland and
Grams. The district court sentenced
Rutland to 51 months imprisonment and
ordered him to make restitution of $553,
867. This timely appeal followed.
II. Discussion
The issue before this court is
narrow – whether expert opinion testimony
should reach the ultimate issue when the
expert has exceptionally impressive
credentials. Rutland argues that in light of
the expert’s credentials and experience in
high-profile cases, “the probative value of
his opinion on authorship was substantially
outweighed by the danger that the jury
would accept his opinion based on his
extraordinary experience rather than on his
underlying analysis... .” Rutland contends
that when the district court permitted the
expert to opine that the contested
signatures were not signed by Constans,
the probative value of the testimony was
substantially outweighed by prejudice to
the defendant.
The district court had subject matter
jurisdiction pursuant to 18 U.S.C. § 3231.
We have jurisdiction of this timely appeal
pursuant to 28 U.S.C. § 1291. Our
applicable standard of review for
evidentiary rulings is abuse of discretion.
United States Army, and worked under the
direct supervision of senior document
examiners. He completed a two-year
Department of Defense program, and was
certified as an examiner of questioned
documents.
After leaving the Army and briefly
working in private practice, Lesnevich was
recruited by the Secret Service. He
became the senior document examiner for
the Secret Service. He eventually left the
Secret Service, and has been employed in
the private sector since 1981. He had
testified as an expert for approximately 32
years in approximately 500 criminal and
civil cases.
Lesnevich is a member of several
professional associations and is certified
by the Department of Defense and the
American Board of Forensic Document
Examiners. Lesnevich has analyzed
documents for the governments of the
United States, South Korea, South
Vietnam, Australia, New Zealand, Great
Britain, and France. During Rutland’s
trial, Lesnevich testified about some of the
prominent parties involved in cases he
worked on as a handwriting expert: the
Iran-Contra Affair, Oliver North, Richard
Secord, Caspar Weinberger, Michael
Milken, Leona Helmsley, Imelda Marcos,
the office of Kenneth Starr, and organized
crime cases.
Lesnevich has testified in both civil
and criminal cases, for prosecutors as well
as defense attorneys.

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Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152-53 (1999); United States v.
Velasquez, 64 F.3d 844, 847-48 (3d Cir.
1995).
A witness may testify as an expert
if (1) the proffered witness is actually an
expert; (2) the expert testifies to scientific,
technical, or specialized knowledge; and
(3) the expert's testimony assists the trier
of fact. Fed. R. Evid. 702; Velasquez, 64
F.3d at 849. Additionally, testimony “in
the form of an opinion or inference
otherwise admissible is not objectionable
because it embraces an ultimate issue to be
decided by the trier of fact.” Fed. R. Evid.
704(a). In Velasquez, we determined that
handwriting analysis qualifies as scientific,
technical, or specialized knowledge.
Velasquez, 64 F.3d at 850-51. A
handwriting expert may testify to the
ultimate issue in a case. Fed. R. Evid.
704(a).
Daubert states that many factors
must be considered when admitting expert
testimony:
[A] judge assessing a proffer
of expert scientific testimony under
Rule 702 should also be mindful of
other applicable rules. ... Rule 403
permits the exclusion of relevant
evidence “if its probative value is
substantially outweighed by the
danger of unfair prejudice,
confusion of the issues, or
misleading the jury... .”... “Expert
evidence can be both powerful and
quite misleading because of the
difficulty in evaluating it. Because
of this risk, the judge in weighing
possible prejudice against probative
force under Rule 403 of the present
rules exercises more control over
experts than over lay witnesses.”
Daubert, 509 U.S. at 595 (citations
omitted).
The probative value of expert
testimony substantially outweighing the
danger of unfair prejudice, confusion of
issues, or misleading the jury has been
discussed in the context of the substance
of testimony. See generally, In re Paoli
R.R. Yard PCB Litigation, 113 F.3d 444
(3d Cir. 1997); Soldo v. Sandoz
Pharmaceuticals Corp., 244 F. Supp. 2d
434 (W.D. Pa. 2003); United States v.
Nguyen, 793 F. Supp. 497 (D.N.J. 1992).
The probative value of expert testimony
substantially outweighing the danger of
unfair prejudice has not been addressed in
the context of the qualifications and
credentials of the expert, and Rule 403 has
not been applied to limit an expert’s
testimony based solely upon the expert’s
highly impressive credentials.
Rutland suggests that juries accept
expert opinions based upon the strength of
the experts’ experience rather than on the
quality of analysis. He contends that the
probative value of the exceptionally well-
qualified expert’s testimony is outweighed
by unfair prejudice caused solely by his
stellar qualifications. We reject Rutland’s
novel argument.
The term unfair prejudice “means
an undue tendency to suggest decision on
an improper basis, commonly, though not

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necessarily, an emotional one.” United
States v. Cross, 308 F.3d 308, 324 n.23 (3d
Cir. 2002), quoting Advisory Committee
Note to Rule 403. An expert’s experience
and credentials are properly taken into
account by jurors when determining how
much weight to give the expert’s
testimony. Holbrook v. Lykes Bros. S.S.
Co., Inc., 80 F.3d 777, 782 (3d Cir. 1996).
The past experience of expert witnesses
properly influences the weight the
testimony should receive. Velasquez, 64
F.3d at 848.
Rutland’s suggestion of limiting an
expert from testifying to the ultimate issue
if the expert has stellar qualifications leads
to an absurd result. Parties would be
forced to determine if their proposed
experts were overly qualified, and find less
qualified experts. Expert opinions,
valuable to the trier of fact because they
are the opinions of highly skilled and
qualified experts, would be provided by
less qualified experts.
This Court will not limit an expert’s
testimony based merely upon the expert’s
qualifications.
III. Conclusion
Unfair prejudice suggests a decision
on an improper basis. It is not improper
for jurors to consider an expert’s
experience and credentials whe n
determining the weight of the expert’s
testimony.
Accordingly, the judgment of the
district court will be AFFIRMED.

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