United States v. Protho

41 F.4th 812

UNITED STATES of America, Plaintiff-Appellee,

v.Bryan PROTHO, Defendant-Appellant.

No. 21-2092

United States Court of Appeals, Seventh Circuit.

Argued February 24, 2022

Decided July 20, 2022

Brian J. Kerwin, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael I. Leonard, Attorney, Leonard Trial Lawyers, Chicago, IL, for Defendant-Appellant.

Before Rovner, Kirsch, and Jackson-Akiwumi, Circuit Judges.

Kirsch, Circuit Judge.

Bryan Protho grabbed a child off the sidewalk and assaulted her in his vehicle. A jury found Protho guilty of kidnapping, and Protho has raised many issues on appeal. Finding no error, we affirm.

I

Days before winter break at her Calumet City, Illinois school, a ten-year-old girl named Amani walked home after class. She started her usual six-or seven-block route with two friends. When those friends turned in a different direction, Amani still had a few blocks left to go. At that point, she noticed a red truck exit a parking lot, pass her, and pull into a driveway. A man got out, walked toward the road, and pretended to use a cellphone. When Amani got close enough, the man grabbed her, pushed her into the vehicle's passenger side, and drove off. In the vehicle, Amani kicked, screamed, and prayed. The man hit her eye and lip and threatened to kill her.

After driving a few blocks, the man parked in an alley and ordered Amani to pull her leggings down. She refused. The man pulled them down himself and touched her inside of her underwear. Amani got out and ran down the alley. She knocked on three unanswered doors and then flagged down a passing car with her coat. In tears, Amani explained to the driver that she had been sexually assaulted, and the driver called 911.

A week after the incident, police arrested Bryan Protho. A grand jury later indicted him for kidnapping in violation of the Federal Kidnapping Act ( 18 U.S.C. § 1201(a)(1) and (g)(1) ). For this charge, the court held a nine-day jury trial. Twenty-nine witnesses, including Amani and Protho, testified. The trial focused on the kidnapper's identity, not on whether the kidnapping took place (that was uncontested). The jury found Protho guilty, and the district court sentenced him to 38 years' imprisonment and ordered him to pay restitution that included $87,770 for Amani's psychotherapy needs.

Protho has appealed. Below, we discuss the many issues he has raised, filling in the relevant facts as we go.

II

Protho contends that six trial errors entitle him to acquittal or a new trial. We address and reject each in turn.

A

First, Protho moved to exclude testimony from three expert witnesses. In performing its gatekeeping function under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the district court found each expert qualified and their testimony relevant and reliable. Fed. R. Evid. 702(b)–(c) (an expert's testimony must rest on "sufficient facts or data" and "reliable principles and methods"). It thus denied Protho's pre-and post-trial motions challenging the admissibility of the experts' testimony. On appeal, Protho has renewed his challenges to the admission of these experts' testimony. We review the district court's decision to admit or exclude an expert's testimony for abuse of discretion and find none. United States v. Godinez , 7 F.4th 628, 637 (7th Cir. 2021) ; see Kumho Tire Ltd. v. Carmichael , 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

We start with the first challenged expert: Ashley Baloga, an FBI forensic scientist specializing in the examination of fiber evidence. As Baloga explained, fiber examination aims to determine whether different fibers are consistent with one another by exhibiting the same microscopic characteristics and optical properties. First, to identify a particular fiber, a forensic scientist uses a high-magnification, transmitted-light microscope to look at the fiber's color, shape, lumen, scales, diameter, delustrant particles, and voids. Then, to compare two fibers to determine consistency with one another, a forensic scientist uses five methods in sequential order, stopping if she finds two fibers inconsistent: (1) view two samples side-by-side in the same visual field with high-powered microscopes; (2) use controlled light settings to observe the orientation of polymers on a fiber's axis; (3) illuminate light wavelengths to observe color and intensity of fluorescence; (4) compare the intensity of a fiber's light absorption at different wavelengths against a known spectra; and (5) analyze the fiber's chemical composition through infrared light. Using this methodology, Baloga compared fibers recovered from Protho's vehicle and residence with fibers obtained from the clothing Amani wore on the day of the kidnapping and testified that the fibers were consistent, though she acknowledged that her results could not definitively identify fibers as coming from the same source. Indeed, Baloga disclosed that fiber analysis can "never" associate "a single item to the exclusion of all others" and that consistency alone "is not a means of positive identification."

Protho argues that the government did not offer enough evidence that Baloga's methods had been or could be tested, were subjected to peer review and publication, had a known error rate, or were generally accepted by the scientific community. Although the government—not Protho—had the burden to support Baloga's testimony, Protho did not do much to help his case. He did not meaningfully question Baloga's methods beyond listing the Daubert factors and did not cite any contradictory scientific information. Probably for good reason: The National Academy of Sciences, which "was created by Congress ... for the explicit purpose of furnishing" scientific advice to the government, Pub. Citizen v. U.S. Dep't of Just. , 491 U.S. 440, 460 n.11, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (citation omitted), has concluded that fiber analysis can produce "class" evidence, meaning that it can show whether two fibers may have "come from the same type of garment, carpet, or furniture," Nat'l Research Council, Strengthening Forensic Science in the United States: A Path Forward 163 (2009); see United States v. Herrera , 704 F.3d 480, 484–87 (7th Cir. 2013) (relying on the same National Academy of Sciences report to hold that "responsible fingerprint matching is admissible evidence"). According to the report, "there are standardized procedures" for fiber analysis, these "analyses are reproducible across laboratories," and fiber analysts routinely take proficiency tests on the subject. Strengthening Forensic Science, at 163.

In finding Baloga's opinion admissible here, the district court relied upon Baloga's background, experience, expert report, testimony, and upon the regular admission of fiber-analyst testimony in courts across the country. Specifically, the district court found that the conclusions reached by fiber analysis were falsifiable; another expert could undertake the same series of steps to reach her own conclusions about the consistency of two fibers. The court also found that fiber analysis was generally accepted in the relevant scientific community because fiber experts were regularly qualified as expert witnesses in federal court and that their methods were commonly employed. And it found that the scope of Baloga's testimony was appropriately confined because she candidly acknowledged the limitations of her analysis, which could show only whether fibers were consistent with each other and thus could have come from the same source.

In undertaking their gatekeeping role, district judges must assess whether the reasoning or methodology underlying an expert's testimony meets "the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire , 526 U.S. at 141, 149–52, 119 S.Ct. 1167 (citation omitted and cleaned up). This calls for a "flexible" approach "tied to the facts of a particular case." Id. Indeed, " Daubert makes clear that the factors it mentions do not constitute a definitive checklist or test." Id. at 150, 119 S.Ct. 1167 (citation omitted and cleaned up). Given this flexibility, district courts have "broad latitude" in deciding both "how to determine reliability" and in "the ultimate reliability determination." Id. at 142, 119 S.Ct. 1167 (emphasis omitted).

Once a district judge properly finds an expert's testimony relevant and reliable, any challenge to it goes to its "weight, ... not its admissibility." Lees v. Carthage Coll. , 714 F.3d 516, 525 (7th Cir. 2013) ; see Deputy v. Lehman Bros. , 345 F.3d 494, 506 (7th Cir. 2003) ("[W]hether an expert's theory is correct is a factual question for the jury to determine.").

Here, we have been given no reason to second-guess the district court's conclusion that Baloga's methods met the same level of rigor as others in her field. Based on our own review of Baloga's testimony and expert report, it's clear that her testimony stayed within reliable scientific bounds. See Lapsley v. Xtek, Inc. , 689 F.3d 802, 814 (7th Cir. 2012) (affirming admission of expert testimony based on the expert's own "report, calculations, and deposition testimony"). Indeed, we think Baloga reached her opinion with the "soundness and care" expected of experts. Schultz v. Akzo Nobel Paints, LLC , 721 F.3d 426, 431 (7th Cir. 2013). And although the validity of fiber analysis can—like other scientific evidence—still be questioned in future cases, we do not doubt the district judge's conclusion here that the relevant scientific community has generally accepted this type of fiber analysis. Nor do we doubt that the results reached by this kind of analysis are "falsifiable," i.e., that the same samples could be re-examined, and the original results shown to be accurate or not. See, e.g., State v. Fukusaku , 946 P.2d 32, 43–44 (Haw. 1997) ("The principles and procedures...