PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

___________________________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. No. 11-1524 

MANUEL SALVADOR AVITIAGUILLEN, a/k/a Robert Santini, a/k/a 

Pete Ruiz, a/k/a Joe Ruiz Garcia, a/k/a 

Robert Lopez, a/k/a Alfred Davila, 

Defendant-Appellant. 

___________________________________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF COLORADO 

(D.C. No. 1:11-CR-00201-REB-1) 

____________________________________ 

Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior 

Circuit Judge.*

____________________________________ 

Raymond P. Moore, Federal Public Defender, and Barry A. Schwartz, Assistant Federal 

Public Defender, Denver, Colorado, for Defendant Appellant. 

John F. Walsh, United States Attorney, and Sergio Garcia, Special Assistant United 

States Attorney, Denver, Colorado, for Plaintiff-Appellee. 

____________________________________ 

BALDOCK, Circuit Judge 

____________________________________ 

 * After examining the parties’ briefs and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist the determination 

of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is 

therefore ordered submitted without oral argument.

FILED 

United States Court of Appeals 

Tenth Circuit 

June 6, 2012

Elisabeth A. Shumaker 

Clerk of Court
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 Defendant Manuel Avitia-Guillen, a citizen of Mexico, lawfully entered the 

United States in 1955. He obtained permanent resident status in 1988 but was deported 

in June 1996 after being convicted of an aggravated felony. Immigration and Customs 

Enforcement (“ICE”) discovered Defendant in Denver, Colorado, in May 2011. A grand 

jury indicted Defendant with one count of being found in the United States after 

deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). At trial, the Government 

called a fingerprint examiner with the Colorado Bureau of Investigation (CBI), Wendy 

Bacchi, to testify that Defendant’s fingerprints matched those on his 1996 deportation 

records. The Government laid the following foundation for Bacchi’s testimony: Bacchi 

became a Fingerprint Examiner Intern with the CBI in 1999 after completing a semesterlong fingerprint identification class at Pikes Peak Community College. In 2000, Bacchi 

was promoted to a full Fingerprint Examiner. About fifty percent of her time was 

devoted to fingerprint comparison, and she had examined “thousands” of fingerprints. 

She had previously qualified as a fingerprint comparison expert in state and federal 

courts. 

Defense counsel then examined Bacchi, establishing that Bacchi had never been 

promoted to a “level 2 examiner,” had not published any peer-reviewed articles on 

fingerprint examination, had not conducted any training to certify people as fingerprint 

examiners, was not qualified to examine latent fingerprints, and had not received any 

additional training since 2000. Defense counsel then objected to Bacchi’s qualifications. 

The district court replied. “The objection is duly noted but respectfully overruled. This 
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is an area that involves scientific, technical or other specialized knowledge. The 

foundation has been laid that the witness by her training, education, background and 

experience is qualified to testify and opine as a fingerprint examiner.” Trial Trans. vol. II 

at 343. 

Bacchi proceeded to testify that Defendant’s fingerprints taken upon his 2011 

arrest matched the fingerprints taken during his removal proceedings in 1996. Defendant 

moved for a judgment of acquittal, but the district court denied the motion, and the jury 

returned a guilty verdict. The district court sentenced Defendant to the low end of the 

guideline range, 41 months’ imprisonment. On appeal, Defendant argues the district 

court failed to make adequate findings of reliability with respect to Bacchi’s testimony. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. 

The issue Defendant raises on appeal is extremely narrow. He does not renew his 

objection to Bacchi’s qualifications as an expert witness, nor does he challenge the 

scientific reliability of fingerprint identification. Instead, he argues the district court 

erred “by failing to create an adequate record demonstrating that it satisfied its 

gatekeeping obligations.” 1 Aplt.’s Br. at 18. 

 1

 The record creates some confusion as to how long Bacchi had worked as a 

fingerprint analyst. At trial, which took place in July 2011, Bacchi stated she had been 

employed by the CBI for “[s]ixteen years.” Trial Trans. vol. II at 333. When asked what 

positions she had held, she responded: “I was a Crime Data Specialist when I started my 

career there in ’85. In ’99 I was promoted to a Fingerprint Examiner Intern, and in 2000 I 

was promoted to a full Fingerprint Examiner.” Id. Later, when asked how long she had 

been doing fingerprint work, she said, “Since 1989.” Id. at 335. Yet a short time later 

she said she took the fingerprint class in “January through May of 1998.” Defendant 
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Federal Rule of Evidence 702 requires a district court to assess proffered expert 

testimony to ensure it is both relevant and reliable. Daubert v. Merrell Dow Pharms., 

Inc., 509 U.S. 579, 589 (1993) (scientific knowledge); Kumho Tire Co., Ltd. v. 

Carmichael, 526 U.S. 137, 141 (1999) (technical and other specialized knowledge). 

“[T]he district court generally must first determine whether the expert is qualified ‘by 

knowledge, skill, experience, training, or education’ to render an opinion.” United States 

v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc) (quoting Fed. R. Evid. 702). 

If the expert is sufficiently qualified, then “the court must determine whether the expert’s 

opinion is reliable by assessing the underlying reasoning and methodology.” Id. 

Although a district court has discretion in how it performs its gatekeeping function, 

“when faced with a party’s objection, [the court] must adequately demonstrate by specific 

findings on the record that it has performed its duty as gatekeeper.” Goebel v. Denver & 

Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000). 

We review de novo whether the district court applied the proper standard in 

admitting expert testimony. United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011). 

We also review de novo whether the court “actually performed its gatekeeper role in the 

first instance.” United States v. Roach, 582 F.3d 1192, 1206 (10th Cir. 2009) (quoting 

Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003)). “If the district court 

 

seizes on the 1989 date, arguing that Bacchi had received no additional training in “20-

plus years” of fingerprint work. The Government describes Bacchi as “a fingerprint 

comparison examiner since 2000.” In light of Bacchi’s other testimony, the references to 

1985 and 1989 were likely transcription errors and the correct years were actually 1995 

and 1999. Ultimately, however, we need not resolve the confusion. Although it may be 

relevant to whether Bacchi was qualified as an expert, Defendant has not challenged her 

qualifications. 
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applied the correct legal standard, we then review the manner in which the court 

performed its gatekeeping role, deciding whether to admit or exclude testimony, for 

abuse of discretion.” Garcia, 635 F.3d at 476. We reverse only if the district court’s 

conclusion is “arbitrary, capricious, whimsical or manifestly unreasonable or when we 

are convinced that the district court made a clear error of judgment or exceeded the 

bounds of permissible choice in the circumstances.” Dodge, 328 F.3d at 1223 (internal 

quotation marks omitted). When a party fails entirely to object to expert testimony at or 

before trial, we review only for plain error. Macsenti v. Becker, 237 F.3d 1223, 1231 

(10th Cir. 2001). 

The sole question before us is whether the district court has “adequately 

demonstrate[d] by specific findings on the record that it has performed its duty as 

gatekeeper.” Goebel, 215 F.3d at 1088. We review this question de novo. Although the 

question of whether the district court made adequate factual findings is not exactly the 

same question as whether it “actually performed its gatekeeper role in the first instance,” 

Roach, 582 F.3d at 1206, they are practically indistinguishable for purposes of this case. 

We can only determine whether the district court fulfilled its gatekeeping obligation by 

looking at its findings. See Goebel, 215 F.3d at 1088 (observing that without specific 

findings, we cannot determine whether the district court properly fulfilled its gatekeeping 

obligation). Thus, to the extent Defendant preserved a challenge to the adequacy of the 

district court’s findings, we review the issue de novo.2

 

 2

 Our de novo review extends only so far, of course. It applies only to whether the 

district court “actually performed its gatekeeper role in the first instance.” Dodge, 328 
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On appeal, Defendant argues the district court had a duty to make factual findings 

regarding both Bacchi’s qualifications and her methodology. But Defendant did not 

object to Bacchi’s methodology at trial. “When no objection is raised, district courts are 

not required to make ‘explicit on-the-record rulings,’” because “we assume that the 

district court consistently and continually performed a trustworthiness analysis sub 

silentio of all evidence introduced at trial.” Id. at 1088 n.2. (quoting Hoult v. Hoult, 57 

F.3d 1, 5 (1st Cir. 1995)). Where a party objects only to an expert’s qualifications, he 

does not preserve an objection to the expert’s methodology. See United States v. Vargas, 

471 F.3d 255, 263 (1st Cir. 2006) (where defendant objected to an expert’s qualifications, 

but not his methods or the sufficiency of his data, an appellate court reviews these issues 

only for plain error); United States v. Diaz, 300 F.3d 66, 75–76 (1st Cir. 2002) (generic 

reference to Daubert while challenging expert’s qualifications does not raise an objection 

to the expert’s methodology). Thus, we review de novo only whether the district court 

“actually performed its gatekeeper role” with respect to Bacchi’s qualifications. Roach, 

582 F.3d at 1206. We review the court’s factual findings with respect to Bacchi’s 

methodology only for plain error. Goebel, 215 F.3d at 1088 n.2. Any other approach 

would fault the district court for failing to make findings on an issue Defendant did not 

raise. 

A. 

 

F.3d at 1223. To answer that question, we only need to ensure the district court actually 

applied Rule 702. Once we are satisfied the court did not abdicate its gatekeeping role, 

we apply the deferential abuse of discretion standard to its decision to admit or exclude 

testimony. Garcia, 635 F.3d at 476. 
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We turn first to whether the district court fulfilled its gatekeeping function 

regarding Bacchi’s qualifications. In United States v. Velarde, 214 F.3d 1204, 1209 

(10th Cir. 2000), we said a district court must make some findings regarding an expert’s 

reliability. In Velarde, the Government called a doctor as an expert witness to testify 

about common symptoms in a child sexual abuse victim. Id. The doctor’s testimony was 

of questionable reliability, and we had previously held similar testimony by the same 

doctor inadmissible in United States v. Charley, 189 F.3d 1251, 1266–68 (10th Cir. 

1999). Despite an objection based on Kumho, the district court made “no reliability 

findings.” Velarde, 214 F.3d at 1209. Recognizing that Daubert and Kumho give “great 

latitude” to district courts, we nevertheless said “the court must, on the record, make 

some kind of reliability determination.” Id. We cited Justice Scalia’s concurrence in 

Kumho, where he said, “I join the opinion of the Court, which makes clear that the 

discretion it endorses—trial-court discretion in choosing the manner of testing expert 

reliability—is not discretion to abandon the gatekeeping function.” Kumho, 526 U.S. at 

158–59 (Scalia, J., concurring). We concluded the district court abused its discretion by 

admitting the expert testimony without a reliability determination.3

 Velarde, 214 F.3d at 

 3

 At first glance, our holding in Velarde that the district court abused its discretion 

seems to conflict with our de novo standard of review. In our earlier cases, we held that 

admitting expert testimony without any findings regarding its reliability was an abuse of 

discretion. See Goebel, 215 F.3d at 1088 (“In the absence of such findings, we must 

conclude that the court abused its discretion in admitting such testimony.”); United States 

v. Velarde, 214 F.3d 1204, 1211 (10th Cir. 2000) (“[H]aving failed to [make a reliability 

determination], the court abused its discretion when it admitted that testimony.”). More 

recently, we have said we review de novo whether the court “actually performed its 

gatekeeper role in the first instance.” Dodge, 328 F.3d at 1223. In Dodge, however, we 

nevertheless held the district court “abused its discretion” by admitting expert testimony 
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1211. 

We again examined the adequacy of a district court’s gatekeeper findings in 

Goebel. There, a doctor testified the plaintiff’s brain injury resulted from exposure to 

train locomotive fumes combined with the effects of high elevation. Id. at 1086. The 

district court did not conduct a Daubert hearing and made no findings regarding the 

reliability of the expert’s testimony, despite three separate objections by the defendant. 

Id. at 1086–87. The extent of the district court’s on-the-record findings was its statement 

that “I believe there is sufficient foundation here for the jury to hear this testimony.” Id. 

at 1087. We said the gatekeeping function requires “a sufficiently developed record in 

order to allow a determination of whether the district court properly applied the relevant 

law.” Id. at 1088 (quoting United States v. Nichols, 169 F.3d 1255, 1262 (10th Cir. 

1999)). But we could find “not a single explicit statement on the record to indicate that 

the district court ever conducted any form of Daubert analysis whatsoever.” Id. We 

clarified that a district court need not “recite the Daubert standard as though it were some 

magical incantation.” Id. (quoting Ancho v. Pentek Corp., 157 F.3d 512, 518 (7th Cir. 

1998)). Nor need it “apply all of the reliability factors suggested in Daubert and 

 

without performing its gatekeeper function. Id. at 1225. In Roach, we said the court 

“erroneously admitted . . . testimony without the required findings of reliability.” Roach, 

582 F.3d at 1207. Roach gave perhaps the most accurate statement of the law after 

Dodge. The apparent inconsistency in Dodge itself is probably illusory. When a district 

court neglects its gatekeeping function, it commits two errors. First, it commits error, 

reviewable de novo, by not making a reliability determination. Second, it abuses its 

discretion when it admits the expert testimony without a reliability determination. These 

errors are really two sides of the same coin, and our conclusion that the district courts in 

Velarde, Goebel, and Dodge abused their discretion is consistent with the application of 

de novo review to such cases.
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Kumho.” Id. But it must at least demonstrate it has performed its duty as gatekeeper. Id. 

We concluded the district court abused its discretion in admitting the doctor’s testimony, 

and we ultimately remanded for a new trial. Id. at 1089. 

In Roach, a police officer gave expert testimony regarding common practices of 

Crips gang members such as carrying firearms, using certain slang terms, and using blue 

porch lights. Roach, 582 F.3d at 1199. The defendant objected to the officer’s expert 

credentials several times, but the district court overruled the objections. After one 

objection, the court instructed the jury as follows: “Technical or other specialized 

knowledge may assist the jury in understanding the evidence and determining the facts in 

issue. A witness who has knowledge and experience or training and education may 

testify and state an opinion concerning such matters.” Id. Later, when the defendant 

objected to another portion of the officer’s testimony, the court said, “I’ve determined 

that the jury may consider [the officer] as an expert and give [his expert testimony] such 

consideration as they [sic] deem appropriate.” Id. We said the court’s statements 

“simply do not include any factual findings indicating the basis of the court’s 

determination that [the officer] met the requirements of Rule 702. A conclusory 

statement that the court has made such a determination will not suffice.” Id. at 1207. We 

concluded the court “erroneously admitted [the officer’s] testimony without the required 

finding of reliability.” Id. We held, however, that the admission of the testimony was 

harmless error, because other evidence sufficiently supported an inference the defendant 

was a gang member. Id. at 1208. 

What, then, is required to “adequately demonstrate by specific findings on the 
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record that [the district court] has performed its duty as gatekeeper”? Goebel, 215 F.3d at 

1088. The answer, according to Velarde, Goebel, and Roach, is at least “some kind of 

reliability determination.” Velarde, 214 F.3d at 1209. In Nacchio, we determined the 

district court made “a sufficiently developed record, a concrete reliability determination, 

and specific findings and discussion.” Nacchio, 555 F.3d at 1256. There, the district 

court excluded expert testimony after discussing its inadmissibility under “a number of 

rationales.” Id. at 1239. But we have never addressed exactly how extensive 

admissibility findings must be. The key inquiry is whether the appellate court can 

determine whether the district court “properly applied the relevant law.” Nichols, 169 

F.3d at 1262. See also Geobel, 215 F.3d at 1988 (considering the district court’s findings 

an “insufficient basis for appellate review”). Here, the relevant law is Rule 702, which 

allows an expert witness to testify if she is “qualified as an expert by knowledge, skill, 

experience, training, or education.” Fed. R. Evid. 702. The district court gave ample 

evidence it was applying the Rule 702 standard. The court said Bacchi was qualified to 

testify as a fingerprint examiner based on her “training, education, background and 

experience.” Trial Trans. vol. II at 343. So the record is sufficient to demonstrate the 

district court applied the relevant law. 

This case differs from Goebel, where the district court did not show on the record 

it had exercised its gatekeeping function. Here, the district court specifically recited the 

standard it was applying—Rule 702. Additionally, Goebel involved a challenge to an 

expert’s methodology in a complicated area of medical science. This case involves an 

expert’s qualifications to testify to a commonly used method of identification. Defendant 
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argues the district court was required to “carefully and meticulously review the proffered 

scientific evidence.” Goebel, 215 F.3d 1088 (quoting United States v. Call, 129 F.3d 

1402, 1405 (10th Cir. 1997)) (alteration omitted). But, once again, Defendant never 

challenged Bacchi’s methodology, but only her qualifications. So Goebel has little 

relevance here. The other cases Defendant cites also suffer from this dissimilarity. See 

Dodge, 328 F.3d at 1225–26 (“reluctantly conclude[ing]” the district court had made 

insufficient findings regarding an expert’s reasoning and methodology); Velarde, 214 

F.3d at 1209 n.3 (noting the defendant did not challenge the doctor’s “credentials, 

expertise, or qualifications to testify as an expert”). 

This case is more similar to Roach, which involved a challenge to an expert’s 

“credentials,” rather than his methodology. Roach, 582 F.3d at 1199. As in Roach, the 

court here admitted the testimony with only a brief explanation. But the explanations 

differ in an important respect. In Roach, the district court explained Rule 702 to the jury, 

saying, “A witness who has knowledge and experience or training and education may 

testify and state an opinion concerning such matters.” Id. This tells us nothing about the 

court’s determination that a specific witness was qualified. Later, the court said it had 

“determined that the jury may consider him as an expert.” Id. This, however, says 

nothing about the court’s “basis of [its] determination.” Id. at 1207 (emphasis added). 

The record did not contain “any factual findings indicating the basis of the court’s 

determination” regarding this specific witness’s qualifications under Rule 702. Id. 

(emphasis added). Here, by contrast, the district court explained it found Bacchi 

“qualified to testify and opine as a fingerprint examiner” based on “her training, 
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education, background, and experience.” Trial Trans. vol. II at 343. We recognize these 

findings were very brief. In some cases, particularly when dealing with an expert’s 

methodology, we might require more extensive factual findings. But these findings 

adequately demonstrate the district court did, in fact, “perform[] its duty as gatekeeper.” 

Goebel, 215 F.3d at 1088. If Defendant had challenged the district court’s decision to 

qualify Bacchi as an expert, we would have been presented with a sufficient record to 

determine whether the court “properly applied the relevant law.” Nichols, 169 F.3d at 

1262. 

Defendant would have us expand Roach, which requires at least some factual 

findings, and require a district court to “justify, support, or expound on its conclusion.” 

Aplt.’s Br. at 19. He argues the district court needed to say “considerably more” about 

the foundation for Bacchi’s testimony. Id. at 20. But our cases do not require district 

courts to extensively explain their reliability determinations, especially with regard to an 

expert’s qualifications. Defendant would have us order a new trial simply so the district 

court could elaborate for a few more sentences on its determination that Bacchi qualified 

as an expert witness. Such an elaboration would in no way further our appellate review. 

The record is already sufficient for us to determine the basis for the court’s ruling, and 

consequently provides a “sufficient basis for appellate review.” Goebel, 215 F.3d at 

1088. Roach does not require a remand simply because the district judge was not given 

to verbosity, and we decline to adopt such a rule today. 

B. 

The only remaining question is whether the district court neglected its gatekeeping 
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function with respect to Bacchi’s methodology, an argument Defendant urges on appeal. 

As mentioned above, our review on this issue is only for plain error. Macsenti, 237 F.3d 

at 1231. When a party fails to object to an expert’s methodology, the district court need 

not make explicit findings. Goebel, 215 F.3d at 1088 n.2. So we are left to look only for 

some obvious error in the court’s implicit finding that Bacchi’s methods were reliable. 

The district court heard Bacchi describe her method of comparing fingerprint cards. 

Fingerprint comparison is a well-established method of identifying persons, and one we 

have upheld against a Daubert challenge. United States v. Baines, 573 F.3d 979, 990–91 

(10th Cir. 2009) (noting “[f]ingerprint identification has been used extensively by law 

enforcement agencies all over the world for almost a century,” has an “impressively low” 

error rate, and has achieved “overwhelming acceptance” by experts in the field). 

Defendant has pointed to nothing in the record indicating Bacchi deviated from normal, 

reliable fingerprint comparison methods. So the district court did not plainly err in its 

implicit determination that Bacchi’s testimony was based on “reliable principles and 

methods” that were “reliably applied.” Fed. R. Evid. 702(c), (d). 

AFFIRMED.