examination is sufficiently reliable under Daubert. See United States v. Saelee, 162 F. Supp. 2d
1097 (D. Alaska 2001) (barring handwriting expert’s testimony as to conclusions and mere
description of similarities and difference because, absent tested principles for making such
comparisons, the testimony would be just as likely to mislead as to assist jury); United States v.
Fujii, 152 F. Supp. 2d 939 (N.D. Ill. 2000) (barring handwriting expert’s testimony as to hand-
printing); United States v. Hines, 55 F. Supp. 2d 62, 67-68 (D. Mass. 1999) (barring testimony as
to authorship of “stick-up” note but permitting testimony as to similarities between known
handwriting and robbery note, but noting that this distinction would be difficult to enforce).

The government responds that it would be improper to bar Seiger’s testimony based simply
on the information set forth in the government’s letter to defendant, without providing an opportunity
to further develop the record. The government also requests that, in the event the court eventually
concludes Seiger is not qualified to offer expert testimony as to her conclusions, she be permitted
to testify as to her observations resulting from the examinations. Such testimony, the government
contends, need only fulfill relevance requirements and not be subject to Daubert/Kuhmo Tire.
Defendant replies that the latter request is for Seiger to testify as a lay witness which is prohibited
by the rules as made clear by the amendments to Federal Rules of Evidence 701 and 702. See Fed.
R. Evid. 701 Advisory Comm. Notes (2000) (Noting that Rules 701 and 702 were recently amended
to “eliminate the risk that the reliability requirements set forth in Rule 702 will not be evaded
through the simple expedient of proffering an expert in lay witness clothing.”).

The court agrees that if Seiger is to testify at all, her proposed testimony must meet the
reliability standards of Rule 702. See Fed. R. Evid. 701 (“Ifthe witness is not testifying as an expert,

the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences

13


On May 15, 2000, Special Agent, David Mertz, upon affidavit setting forth many (but not
all) of the aforementioned facts, applied for and was granted a search warrant to search the home
where defendant resided for a broad range of papers, such as lists, notebooks, receipts, bank records,
as well as computer software containing financial data, computer hardware, and safe deposit box
lease agreements and keys.

I. Motion to Suppress

Defendant moves pursuant to Federal Rule of Criminal Procedure 12(b)(3), the Fourth
Amendment to the United States Constitution, and Franks v. Delaware, 438 U.S. 154 (1978), to
suppress the fruits of the government’s May 15, 2000 search of his residence. The Fourth
Amendment requires that a warrant issue only “upon probable cause, supported by oath or
affirmation.” U.S. CONST. AMEND IV. In issuing a warrant to search a particular place, the
magistrate judge must determine that there is probable cause to believe that a crime has been
committed and that evidence of the crime will be found in the particular place for which the
application to search is made. See Berger v. New York, 388 U.S. 41, 55 (1967) (“Probable cause
under the Fourth Amendment exists where the facts and circumstances within the affiant’s
knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves
to warrant a man of reasonable caution to believe that an offense has been or is being committed.”);
United States v. Sleet, 54 F.3d 303, 306 (7" Cir. 1995) (“The Supreme Court explained in Illinois
v. Gates[, 462 U.S. 213, 238 (1983),] that [t]he task of the issuing magistrate is simply to make a
practical, commonsense decision whether, given all the circumstances set forth in the affidavit before
him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information,

there is a fair probability that contraband or evidence of a crime will be found in a particular place.”).


understand the implications of signing the form, but there is scant likelihood that he would have
denied the warrant for lack of probable cause to believe that defendant had committed a crime.

Materials Recovered From Bank/Already Provided to the Government

Turning to the argument that probable cause did not exist for concluding that certain
“banking documents” would be found at defendant’s residence, defendant asserts that Kruzic’s
savings passbook had already been recovered from the bank, but paragraphs {J 9, 13 and 14 of the
affidavit suggest that Kruzic’s savings passbook was not at the bank and was likely to be recovered
from defendant’s residence. Defendant also argues that the affidavit only mentions defendant
turning over one document in paragraph { 15, a GE Capital Assurance policy, without mentioning
as set forth in FD-302 of defendant’s interview that he also showed the government receipts. Finally,
defendant argues that the affidavit’s statement in paragraph | 17 that defendant said he “maintained
at his own residence receipts related to withdrawals he made from Kruzic’s accounts” is false (or at
least incomplete) because the FD-302 report of defendant’s interview indicates defendant told the
government that the originals were at his “residence and/or his briefcase.”

The government responds that it was not seeking a warrant to obtain documents LaSalle Bank
could provide or those defendant already provided, but to obtain documents defendant admitted he
still possessed but refused to provide, despite repeated requests, including the original savings
passbook and authorization form. The government argues that there was probable cause to support
the conclusion that documents relating to defendant’s scheme to defraud LaSalle Bank by stealing
from Kruzic’s account existed because defendant told the government eight weeks after he had been
fired that he still had documents, i.e. original receipts, relating to withdrawals from Kruzic’s account

at his residence.


Kruzic’s competence on March 10 to make the denials of authorizations. The government argues
that the fact that Kruzic was hospitalized does not mean that Kruzic could not accurately recall
whether he had given defendant such authorization, nor does defendant present any medical opinion
to this effect. Moreover, the government argues that the FD-302 reports, read as a whole, confirm
his ability to understand that day.

The court concludes that the evidence submitted by defendant in his motion indicates that
these omissions are neither misleading nor false. (See Def.’s Mot. to Suppress, FD-302 report, Ex.
B (Kruzic’s nephew, Robert Kruzic, advised, “[H]e did not believe his uncle was in any sort of poor
condition which would require him to have a banker personally conduct his financial transactions
and come to his home.”); id., Ex. C (Kruzic’s neighbor, Imma Quintanilla, who visited him daily at
hospital stated that Kruzic’s understanding was better on some days than others and that on
March 10, Kruzic “was in better shape and understood what was going on around him.”); id., Ex D
(during interview of Kruzic himself, hospital personnel indicated “Kruzic was awake and appeared
to understand what was going on” and “Kruzic advised that he was feeling alright and that he
understood the agents”). Had Special Agent Mertz been more elaborate in the affidavit, the
information would have confirmed, not detracted from, Kruzic’s mental competency on the date of
his interview. In any event, the affidavit did reveal that Kruzic was 88-years-old and might have had
health problems; indeed, the affidavit seems to imply that defendant took advantage of these factors
in committing the crime. (See id., Ex. A, Mertz Aff. { 4 (referencing Kruzic’s age) and Mertz Aff.

45 (referencing Kruzic’s! old age and diabetes)).

‘Although the affidavit says “Brewer was old and had diabetes,” it would have been clear to the issuing judge
that this was an oversight and the government meant to name “Kruzic.”

6


Because the Fourth Amendment’s requirement of “probable cause, supported by oath or
affirmation,” is premised on the notion that the affiant will act in good faith in setting forth facts
justifying the warrant, if defendant makes a substantial preliminary showing that the affiant either
intentionally or recklessly included or omitted a false statement in his affidavit, and the
misrepresentation was necessary to the determination of probable cause, then the court must hold
an evidentiary hearing. Franks, 438 U.S. at 155-56, 165; United States v. Whitley, 249 F.3d 614,
620 (7" Cir, 2001); United States v. Williams, 737 F.2d 594, 604 (7" Cir. 1984).

Defendant argues he is entitled to a Franks hearing because he has made a substantial
preliminary showing which undermines the existence of both aspects of probable cause. He argues
that Special Agent Mertz in his affidavit deliberately or recklessly failed to mention Kruzic’s health
problems, misstated information garnered from the government’s interview of Kruzic concerning
the authorization form, failed to inform the magistrate judge that LaSalle Bank had already recovered
Kruzic’s passbook from defendant’s desk, and failed to mention that defendant had already provided
withdrawal receipts to the FBI, leading the magistrate judge to issue a warrant where, if all the facts
had been revealed, he would not have found probable cause that defendant had defrauded Kruzic or

that supporting documentation would be recovered from his residence.

Kuuzic’s Health

Defendant, relying on various FD-302 reports, argues that because the magistrate judge was
not informed of Kruzic’s health condition — his pacemaker surgery on March 6, 2000, that a neighbor
who visited Kruzic in the hospital shortly thereafter testified he “sometimes . . . appears lost” and

that he eventually died on April 22, 2000 — the magistrate judge was denied information concerning


Although the court does not disagree with the government that FD-302 reports are only
summaries of interviews and may exclude some of what was said, it infers from its own experience
with warrant applications that a typically well-trained FBI agent would make likely note an
important denial such as this. Special Agent Mertz did not otherwise overlook details of Kruzic’s
denials with respect to specific transactions. At least, for the purpose of this motion, the court will
assume two possibilities: (a) that Kruzic admitted signing an authorization; or (b) that the specific
question whether Kruzic signed an authorization form was not asked.

Defendant does not demonstrate that the false statement was material to the finding that there
was probable cause that he committed bank fraud or related offenses. If the affidavit had merely
omitted the statement that Kruzic had not signed an authorization form, there would still have been
ample basis to find probable cause because of Kruzic’s denials that he authorized the particular
transactions. If, on the other hand, Kruzic admitted on March 10 that he had signed a form giving
authorization to defendant to conduct transactions on his behalf, and if Special Agent Mertz had
revealed it in the affidavit, that information would not have dispelled the inconsistencies between
defendant’s statements that the particular transactions were authorized and Kruzic’s other denials
and other evidence detailed in the affidavit.’ The magistrate judge could reasonably have inferred

from the facts presented to him that Kruzic was either deceived into signing the form or did not

>The undersigned served from 1982-1997 as a magistrate judge in this court,

*From January 21 to February 23, 2000, 17 withdrawals were made at various ATMs by an individual
resembling defendant (see Def.’s Mot. to Suppress, Ex. A, § 6); Kruzic denied any knowledge of an ATM card being
issued in connection with his accounts (id., { 10); defendant told the agents he had given the original passbook to Riccio
at the bank and had left the original signed authorization form in his desk (id., J 13); Riccio was unable to find the
authorization form (id., { 14); and defendant admitted buying himself a computer with Kruzic’s money (id., 7), but
Kruzic denied giving such authorization (id., J 10).


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Joan Humphrey Lefkow than Assigned Judge
CASE NUMBER 01 CR 0892 DATE 4/12/2002
CASE United States of America vs. Terry L. Brewer, Jr.
TITLE
{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]

Defendant’s Motions to Suppress Evidence, to Exclude Testimony, and for Continuing Disclosure of
Favorable Evidence

DOCKET ENTRY:

(1d) Qa Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer briefdue__.

(4) Oo Ruling/Hearingon__s set for__ at

(5) oa Status hearing[held/continued to] [set for/re-set for]on__——ssetfor_— ss aat__s
(6) im Pretrial conference[held/continued to] [set for/re-set for]on set for_—_att

(7) Oo Trial[set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to__at.

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OGeneral Rule 21 CHFRCP4i(a)(1)  FRCP41(a)(2).

(do) oi [Other docket entry] Defendant’s Motion to Suppress Evidence is denied. Defendant’s Motion to
Exclude Testimony is granted. Defendant’s Motion for Continuing Disclosure of Favorable Evidence is
denied without prejudice.

dql)oa [For further detail see order (on reverse side offattached to) the original minute order.]

No notices required, advised in open court.

No notices required

| Notices mailed by judge’s staff.

Notified counsel by telephone,

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
MD deputy’s
initials

Date/time received in -
central Clerk’s Office mailing deputy initials



would support holding a Franks hearing. Thus, no Franks hearing will be held and defendant’s
motion to suppress is denied [#14].
I. Motion to Exclude Testimony of Government’s Document Examiner
Defendant moves in limine pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E),
Federal Rule of Evidence 702,° Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and
Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), to exclude the government’s document
examiner, Danielle Seiger, from testifying at trial. In a February 8, 2002 letter, the government
notified defendant of its intent to call Seiger, the government stated that she would testify
... that she examined the ‘D. Johnson’ signature contained on a letter provided by
[defendant] to the [FBI] (the ‘Questioned Signature’) with known ‘D. Johnson’
signatures. . . . that as a result of her examination, she concluded that the Questioned
Signature is a reproduction of one of the known ‘D. Johnson’ signatures. . . . that she
examined the specimens using appropriate magnification and lighting, including side
lighting and transmitted light. . . . that she observed that the Questioned Signature
superimposes one of the known signatures, and that extraneous markings on the
Questioned Signature correspond to background printing that appears on the same
known writing.
(Def.’s Mot. to Exclude, Ex. B.)
To admit expert testimony, the court must find that the “expert is proposing to testify to

(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in

issue.” Daubert, 509 U.S. at 592. The first prong tests the reliability of the testimony; the second

‘Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to
under 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.

Fed. R. Evid. 702.

11


Defendant’s argument that there was not probable cause that supporting documentation
would be found at his residence posits the wrong issue. The issue is whether the affidavit supports
probable cause that evidence of the crime would be found at defendant’s home, not that particular
documents would be there. See Fed. R. Crim. P. 41(b) (“A warrant may be issued under this rule
to search for and seize any (1) property that constitutes evidence of the commission of a criminal
offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or
(3) property designed or intended for use or which is or has been used as the means of committing
a criminal offense ....”), Where the government had the GE Capital document addressed to
defendant’s home and defendant had resisted producing originals that were not found at the bank,*
and in the absence of other guidance as to where they might be, it was reasonable for the magistrate
judge to infer that the defendant’s home was a likely repository or, perhaps, a safe deposit box,
evidence of which might be found in the home as well.°

The court concludes that none of the alleged misrepresentations or omissions is sufficient

alone or together to satisfy defendant’s burden of making a substantial preliminary showing which

“According to the affidavit, defendant stated on March 6 that Kruzic’s savings passbook was at his desk at
LaSalle Bank and refused to specify the location of the general authorization document (see Def.’s Mot. to Suppress,
Ex, A, Mertz Aff. 19); on April 4, the government requested the original authorization document, savings passbook, and
any other documents relating to Kruzic’s financial transactions (id., § 11); on May 11, defendant told the government
he gave the original passbook to LaSalle Bank’s Rose Riccio, and the original authorization form was at his desk at
LaSalle Bank (id., J 13); on May 11, Riccio denied that defendant had given the original passbook to her and stated the
original authorization form was not at his desk (id., | 14). Although the FD-302 re Riccio merely represents what was
found, rather than what was not found, there is nothing therein that contradicts this representation. (See id., Ex. E.) The
government avers that it was seeking the originals.

5With respect to not informing the judge that the receipts were at his residence “and/or” in his briefcase, this
purported omission is immaterial, since had the information in the FD-302 of defendant’s interview been more fully set
forth this addition would merely confirm that there was a significant probability, ifnot certainty, that the original receipts
were at his residence and that the originals were kept “with all other records he needed to maintain” indicating that other
records were also at the residence. (See Def.’s Mot. to Suppress, Ex. F.)

10


Kruzic Interview - the authorization form

Defendant argues that the affidavit’s statement that “Kruzic . . . denied signing a form giving
[defendant] consent to conduct transactions on his behalf” (id., Ex. A, Mertz Aff. J 10), is false
because the FBI’s FD-302 report of the Kruzic interview does not contain any reference to the signed
authorization form and, thus, presumably either Kruzic did admit signing the form and Special Agent
Mertz lied in the affidavit or such question was not posed and Special Agent Mertz made it up or at
least recklessly included it. Defendant’s argument suggests that Kruzic might have confirmed that
he signed the form (but such confirmation is now impossible because he has died).

The government responds that the FD-302 report is “merely a summary of an interview and
does not necessarily contain all the facts elicited from the interview.” (Resp. at 16.) Further, the
government points out that FD-302 report reflects that Kruzic was specifically asked whether he had
authorized defendant to purchase a computer with his money, whether he had authorized defendant
to obtain ATM cards so he could bring cash to Kruzic at his house, and whether Kruzic had
authorized defendant to maintain a savings passbook and make withdrawals from his account, all
of which Kruzic answered in the negative. (See Def.’s Mot. to Suppress, FD-302 report of Kruzic
Interview, Ex. D.) The government maintains that because the FD-302 report contains a discussion
of far more specific transactions at issue, “it would be illogical to simply assume, as the defendant
has, that the interviewing agents asked Mr. Kruzic about these specific transactions without first
determining whether he signed the alleged authorization letter.” (Resp. at 16.) Alternatively, the
government argues that if the court concludes that the affidavit is inaccurate in this respect, at most
it was a negligent mistake since all of Kruzic’s statements are consistent with the notion he had not

signed an authorization.


Kruzic also told the agents that defendant had never delivered cash to him at his residence, nor did
he give defendant permission to do so.

After hiring an attorney, defendant provided the government, on April 4, with a copy of a
document purporting to be the general authorization form. The document appeared to have been
signed by defendant and defendant’s supervisor Donna Johnson who, according to defendant, could
not recall signing the document but did confirm that the signature on the document was her “true
signature.” She also told the FBI that she believed Kruzic’s signature was authentic. Kruzic died
on or about April 22, 2000.

Defendant and his attorney voluntarily met with the FBI on May 11, 2000 and again
explained the arrangement between Kruzic and defendant. Prior to the meeting, the FBI had
requested defendant bring any records relating to Kruzic’s accounts that were in his possession. At
that meeting, defendant provided the agents a copy of a letter issued by GE Capital Assurance
relating to a policy of unspecified nature with a premium of $52,814.11. The letter was addressed
to Kruzic’s residence and was dated March 30, 2000, more than three weeks after the defendant had
been fired from LaSalle Bank. Defendant also provided copies of receipts for withdrawals from
Kruzic’s account, but admitted that original receipts relating to withdrawals from Kruzic’s account
were “kept at his residence and/or his briefcase.” He also stated that the original authorization form
was probably located at his desk at LaSalle Bank and that he had provided Kruzic’s original savings
passbook to Riccio on March 6, 2000. According to the government, Riccio advised the FBI that
same day that she had not received the original savings passbook from defendant and the original

authorization form had not been recovered by LaSalle Bank from defendant’s desk.


which are . . . (c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702”); Saelee, 162 F. Supp. 2d at (noting that government’s document examiner’s testimony
was plainly inadmissible under Rule 701 because of subsection (c)). And although the court is aware
that handwriting analysis is the type of testimony that has often been permitted by courts in the past,
the government has offered no argument or even a hint of the type of evidence that it would forward
to prove the reliability of the handwriting comparison testimony. In the cases cited by defendant,
the courts held hearings and generally concluded that handwriting analysis did not pass muster
because the evidence showed that, despite its long history of acceptance, the validation studies are
few (and those that have been done have been criticized as methodologically flawed), there has been
no peer review by an unbiased and financially disinterested community of practitioners, the potential
error rate is largely unknown, and the technique suffers from a lack of controlling standards. See
Saelee, 162 F. Supp. 2d at 1102-05; Fujii, 152 F. Supp. 2d at 940-41.

Although a hearing might be useful if the court were writing on a clean slate, the court’s
review of these very recent handwriting analysis cases, and in light of the very similar type of
testimony at issue here, leads it to conclude that unless some new studies have been conducted in
the past six months, the government would be hard-pressed to establish that Seiger’s testimony
would be sufficient under Daubert. Thus, the court grants defendant’s motion to exclude Seiger’s

testimony [#15].”

"But see Fed. R. Evid. 702 Advisory Committee Notes (“Nothing in this amendment is intended to suggest that
experience alone — or experience in conjunction with other knowledge, skill, training or education — may not provide
a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert
may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great
deal of reliable expert testimony. See, e.g., United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) (no abuse of discretion
in admitting the testimony of a handwriting examiner who had years of practical experience and extensive training, and
who explained his methodology in detail); United States v. Richmond, No. 00 CR 321, 2001 WL 1117235 (E.D. La.
Sept. 21, 2001) (noting that Daubert was not “a steadfast rule that must be applied in every case” and the court would

14


The agents interviewed defendant on March 6 at the bank. Defendant admitted that he had
purchased a personal computer for himself with funds from Kruzic’s account without first obtaining
authorization, but that Kruzic later signed a form authorizing the computer purchase. Defendant also
admitted taking money from Kruzic’s accounts using an ATM card, but explained that Kruzic had
authorized the withdrawals because Kruzic suffered from health problems, which made it difficult
for him to travel to the bank, so defendant would deliver the money to him at his residence.

Defendant told the agents that he had another document signed by Kruzic which gave
defendant general authorization to conduct transactions on Kruzic’s behalf. Although this document
related to accounts at LaSalle Bank, defendant stated that it was not there at the bank and, when
asked whether it was at his residence, he did not answer directly but stated he would not show it to
the agents because they were “not on [his] side.” Defendant stated that he kept a savings passbook
for Kruzic’s account in his desk. A Senior Investigator for LaSalle Bank, Rose Riccio, provided the
agents with a copy of the savings passbook, which she found while searching defendant’s desk area
at the time defendant was being interviewed by the agents (according to the FD-302 form re Riccio,
the investigating agents did not request this search).

The FBI attempted to interview Kruzic on March 6 but was unable to do so because Kruzic,
who was 88 years-old at the time, was having surgery to install a pacemaker. The FBI did interview
Kruzic on March 10, after receiving permission from medical staff at St. Anthony’s Hospital.
According to the government, Kruzic denied signing a document giving defendant consent to
conduct transactions on his behalf, denied giving defendant permission to buy himself a personal
computer with Kruzic’s funds, and denied any knowledge of an ATM card being issued in

connection with any of his accounts at LaSalle Bank. He stated he never possessed an ATM card.


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA

v. No. 01 CR 892

weer

TERRY L. BREWER, JR.

DocKeTeD

MEMORANDUM OPINION AND ORDER APR | 6 2002

On February 27, 2002, the grand jury in a superseding indictment charged defendant, Terry
L Brewer, Jr., with six counts of bank fraud in violation 18 U.S.C. § 1344, fraud in connection with
access devices in violation of § 1029(a)(2), and making a false statement and making or using a false
document in violation of § 1001(a)(2) and (3), in that defendant, while employed as an investment
advisor at LaSalle Bank, a facility located in the Northern District of Illinois, fraudulently withdrew
money from the accounts of LaSalle Bank’s former client, Steve Kruzic. Before the court are
defendant’s motions to suppress evidence seized in a search of defendant’s residence, to exclude
testimony of the government’s document examiner, and for continuing disclosure of favorable
evidence. The court resolves them as set forth below.

BACKGROUND

On March 6, 2000, LaSalle Bank fired defendant and reported to the Federal Bureau of
Investigation (“FBI”) its suspicion that defendant had taken funds from Kruzic’s accounts without
permission. According to the government, the responding Special Agents reviewed records relating
to Kruzic’s account, including security camera photographs which depicted an individual resembling
defendant withdrawing funds from Kruzic’s account at an ATM station, and records indicating

withdrawals had been made with the ATM card totaling over $7,500.00 in little over one month.


prong tests its relevance. Frey y. Chicago Conservation Ctr., 119 F. Supp. 2d 794, 497 (N.D. Ill.
2000). In Kuhmo Tire, the Supreme Court held that the test for reliability was not limited to
scientists, but extended to experienced-based testimony. 526 U.S. at 150-51. Some of the factors
useful in analyzing the reliability of an expert’s testimony are (1) whether the technique or
methodology has been or can be tested, (2) whether the technique or methodology has been subjected
to peer review, (3) its known or potential rate of error and the existence of standards controlling the
technique’s operation; and (4) the extent to which the methodology or technique employed by the
expert is generally accepted in the scientific community. Daubert, 509 U.S. at 593-94, These
factors, however, are not a “definitive checklist or test.” Jd. at 593. And the factors may or may not
be pertinent depending upon “the nature of the issue, the expert’s particular expertise, and the subject
of his testimony.” Kuhmo Tire, 526 U.S. at 150. The objective “is to make certain that an expert,
whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Jd. at 152. The proponent of the testimony bears ths burden of proving that their
proffered testimony meets these requirements. Frey, 119 F. Supp. 2d at 797.

Defendant argues that Seiger’s testimony will not assist the trier of fact because it appears
she did nothing more than hold the known and questioned documents up to the light and made a
visual inspection of the two signatures and there is no reason to think the jury is incapable
conducting the same visual comparison. Defendant also argues that the government has failed to
establish that Seiger’s examination or conclusion is based on any field of expertise that is governed
by sufficiently reliable principles and methods to satisfy any of the Daubert standards. Defendant

cites several recent cases which have rejected the notion that the field of forensic document

12


Ill. Defendant’s Motion for Continuing Disclosure of Favorable Evidence

Defendant also moves pursuant to Federal Rule of Criminal Procedure 16, Brady v.
Maryland, 373 U.S. 83 (1963) and United States v. Giglio, 405 U.S. 150 (1972), for a continuing
order that the government immediately provide all evidence (documentary and otherwise) that would
exculpate defendant or which could be used for impeachment. The government responds that it has
and will comply with its discovery obligations. The court accepts this representation absent a motion

to produce a specific item or document. This motion is denied without prejudice [#16].

ENTER: Sear Ly. Regtor—
J@AN HUMPHREY LEFKOW
United States District Judge

Dated: April 12, 2002

look to see if the government’s handwriting expert’s method was “reliable in nature and in application to the facts.”).
But without data that demonstrates that handwriting experts are more accurate in their judgments than the general
population, experience alone does not suffice here. Compare United States v. Plaza, 179 F, Supp. 2d 492 (E.D. Pa. Jan.
7, 2002), vacated on reconsideration, _F. Supp. 2d ____, 2002 WL 389163 (E.D. Pa. Mar. 13, 2002) (FBI fingerprint
expert could testify as to his opinions since “ACE-V” fingerprint identification technique or its equivalent was in
widespread use and there was evidence that FBI fingerprinting experts very seldom made erroneous determinations).

15