Ceglia v. Zuckerberg et al

Filing 329

CONTINUATION OF EXHIBITS by Facebook, Inc., Mark Elliot Zuckerberg. to 324 Declaration, Exhibit E to March 26, 2012 Southwell Declaration filed by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)

EXHIBIT E 1 Ceglia’s Complaint, filed June 30, 2010, and to a June 27, 2010 email that Ceglia sent to his attorney, Paul Argentieri, that was produced by Ceglia in this case. I also understand that Ceglia produced the purported Work for Hire document to his expert Valery Aginsky in January 2011, and that Mr. Aginsky created images of that physical document. Finally, I understand that Ceglia produced the purported Work for Hire document to Defendants’ experts on July 14, 2011 as part of the court-ordered expedited discovery, and that Defendants’ expert Peter V. Tytell created images of that physical document on the day the document was provided. All four images are of a two-page physical document that Ceglia has presented as the same two-page physical document, the Work for Hire Document. However, there are apparent dissimilarities in these images, particularly with respect to the questioned handwritten interlineations appearing on page 1. Thus, in light of my specialized expertise and training, I was asked to analyze these four images (collectively, the “Questioned Documents”) to determine whether they are, in fact, images of the same physical two-page document. In particular, I was asked to analyze and compare each of the questioned handwritten interlineations on page 1 of the four images. The questioned handwritten interlineations read: “Providing web Designer is Finished By May 24, 2003,” with the initials “PC” and “MZ” placed to the right of this sentence. III. THE QUESTIONED DOCUMENTS Exhibit Q-1: Image of the Work for Hire document in TIF file format sent by Ceglia to his attorney Paul Argentieri on June 27, 2010. Exhibit Q-2: Image of the Work for Hire document attached to Ceglia’s Complaint, filed June 30, 2010. Exhibit Q-3: Image of the Work for Hire document taken by Ceglia’s expert Valery Aginsky during his January 13, 2011 examination of the Work for Hire document. Exhibit Q-4: Image of the Work for Hire document taken by Defendants’ expert Peter V. Tytell during Defendants’ July 14, 2011 examination of the Work for Hire document presented by Plaintiff’s counsel Paul Argentieri. IV. METHODOLOGY OF EXAMINATION I performed a series of visual examinations using the procedures prescribed by ASTM International, which are outlined below. These visual examinations included: (1) examination of the documents using a hand-held glass possessing 3x magnification capabilities, (2) examination of the documents after the images of the interlineations on page 1 were enlarged on high-resolution computer screens using Mac Preview, an analytical method that provides the 2 ability to examine text closely, without distorting the image, and (3) examination of the enlarged images using a hand-held glass. Each of these methods is non-destructive and outlined by ASTM International as the most appropriate method of conducting this type of examination. See ASTM International standards E 2331-04, 2290-07a. To ensure I was comparing each image at the same level of magnification, I enlarged each image such that the typed text of each image was approximately the same size and equally proportional. To determine whether any differences exist between documents, and in accordance with the standards set out by ASTM International, some of the points I considered during my examination and comparison of the questioned written interlineations appearing on the questioned documents were: slant/slope of words, letters, and numerals; letter and numeral formation and the overall design of the letters and numerals (paying particularly close attention to loops and curves); positioning and placement of the letters and numerals on the document; beginning and ending strokes (i.e., the curvature and style of the beginning and ending strokes of each of the letters or numerals); the height relationship of letters and numerals within each word or number; and the alignment of words and numbers in comparison to the typed text surrounding the word or number. See ASTM International standard E 2290-07a. V. RESULTS OF EXAMINATION Twenty (20) Handwriting Differences Between Exhibits Q-1 and Q-2 and Exhibits Q-3 and Q-4 During my examination and comparison of the questioned documents, I found at least 20 observable dissimilarities between the questioned handwritten interlineations appearing on page 1 of Exhibits Q-1, Q-2, Q-3, and Q-4. These dissimilarities are not attributable to image-quality variation between documents. Rather, they evidence the fact that the differences between the handwriting in the questioned documents were generated at the time of the document’s creation, not at the time of reproduction. Therefore, these dissimilarities in handwriting demonstrate, to the highest degree of certainty possible, that these images are not of the same physical two-page document. See ASTM International standard E 1658-08. In other words, Ceglia produced at least two different physical documents purporting to be the same document. In particular, Ceglia produced a Work for Hire document to Defendants’ experts in July 2011 that was different than the document he attached to his Complaint. All 20 of these handwriting dissimilarities are reflected in the images of the Questioned Documents in this Report. In addition, images of the first page of each of the Questioned Documents with enlarged pull-outs of the questioned handwriting interlineations are attached hereto as Exhibit C. A. Slant/Slope Dissimilarities I observed several slant/slope dissimilarities between the questioned handwritten interlineations on page 1 of Exhibits Q-1 and Q-2 and Exhibits Q-3 and Q-4. 3 1) I examined the word “is” in the questioned handwritten interlineations and found that the bottom of the letters slant slightly downward from left to right on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the letters slant slightly upward from left to right. See Fig. 1. 2) I examined the word “May” in the questioned handwritten interlineations and found that the legs of the letter “M” run parallel to each other on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the legs of the letter “M” do not run parallel to each other. See Fig. 2. 3) I examined the word “May” in the questioned handwritten interlineations and found that the bottom of the letter “a” slants slightly upward from left to right on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the bottom of the letter “a” slants slightly downward from left to right. See Fig. 3. 4) I examined the word “May” in the questioned handwritten interlineations and found that the arm of the letter “y” is perpendicular to the stem of the letter “y” on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the arm of the letter “y” is formed at an approximate 80 degree slant to the stem of the letter “y.” See Fig. 4. 5) I examined the number “2003” in the questioned handwritten interlineations and found that the ending stroke or tail of the numeral “2” is formed at an approximate 17 degree slant from the horizontal alignment of the typed text below on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the ending stroke or tail of the numeral “2” is formed at an approximate 40 degree slant from the horizontal alignment of the typed text below. See Fig. 5. 6) I examined the initials “MZ” in the questioned handwritten interlineations and found that the cross-bar of the letter “Z” is formed at an approximate 15 degree slant from the horizontal alignment of the typed text below on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the cross-bar of the letter “Z” is formed at an approximate 25 degree slant from the horizontal alignment of the typed text below. See Fig. 6. 4 5 6 7 8 9 10 B. Letter Formation or Design of the Letters I observed several letter formation or letter design dissimilarities between the questioned handwritten interlineations on page 1 of Exhibits Q-1 and Q-2 and Exhibits Q-3 and Q-4. 1) I examined the word “May” in the questioned handwritten interlineations and found that there is no opening on the left side of the letter “M” on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, there is a significant opening on the left side of the letter “M.” See Fig. 7. 2) I examined the number “24” in the questioned handwritten interlineations and found that the arm of the numeral “4” is formed with a curved writing movement on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the arm of the numeral “4” is formed with a straighter writing movement. See Fig. 8. 3) I examined the number “2003” in the questioned handwritten interlineations and found that the space between the initial stroke of the numeral “3” and the first downward stroke is open on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the space between the initial stroke of the numeral “3” and the first downward stroke is closed. See Fig. 9. 11 12 13 14 C. Letter Spacing or Placement on the Document I observed several letter spacing or placement dissimilarities between the questioned handwritten interlineations on page 1 of Exhibits Q-1 and Q-2 and Exhibits Q-3 and Q-4. 1) I examined the word “Designer” in the questioned handwritten interlineations and found that the letter “D” does touch the following letter “e” on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the letter “D” does not touch the following letter “e.” See Fig. 10. 2) I examined the number “24” in the questioned handwritten interlineations and found that the stem of the numeral “4” touches the typed letter “o” above on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the stem of the numeral “4” does not touch the typed letter “o” above. See Fig. 11. 3) I examined the number “2003” in the questioned handwritten interlineations and found that the space between the numeral “2” and the numeral “0” on Exhibits Q-1 and Q-2 is significantly smaller than the space between the numeral “2” and the numeral “0” on Exhibits Q-3 and Q-4. See Fig. 12. 4) I examined the number “2003” in the questioned handwritten interlineations and found that the top of the numeral “3” does not touch the typed letter “r” above on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the top of the numeral “3” does touch the typed letter “r” above. See Fig. 13. 5) I examined the initials “PC” and “MZ” in the questioned handwritten interlineations and found that the space between the “M” and the “C” is significantly smaller on Exhibits Q-1 and Q-2 than the space between the “M” and the “C” on Exhibits Q-3 and Q-4. See Fig. 14. 15 16 17 18 19 20 D. Beginning/Ending Stroke Dissimilarities I observed one beginning/ending stroke dissimilarity between the questioned handwritten interlineations on page 1 of Exhibits Q-1 and Q-2 and Exhibits Q-3 and Q-4. 1) I examined the number “24” in the questioned handwritten interlineations and found that the bottom of the numeral “2” has a short ending stroke on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the ending stroke of the numeral “2” is longer. See Fig. 15. 21 22 E. Height-Relationship Dissimilarities I observed several height-relationship dissimilarities between the questioned handwritten interlineations on page 1 of Exhibits Q-1 and Q-2 and Exhibits Q-3 and Q-4. 1) I examined the word “Designer” in the questioned handwritten interlineations and found that the proportion of the letter “D” above the letter “e” is greater on Exhibits Q-1 and Q-2 than the proportion of the letter “D” above the letter “e” on Exhibits Q-3 and Q-4. See Fig. 16. 2) I examined the word “May” in the questioned handwritten interlineations and found that top of the right side of the letter “M” was significantly higher than the top of the left side of the letter “M” on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the top of the right side of the letter “M” was not higher than the top of the left side of the letter “M.” See Fig. 17. 3) I examined the word “May” in the questioned handwritten interlineations and found that the top of the stem of the letter “y” is significantly higher than the top of the arm of the letter “y” on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the top of the stem of the letter “y” is only slightly higher than the arm of the letter “y.” See Fig. 18. 23 24 25 26 F. Alignment I observed two significant alignment dissimilarities between the questioned handwritten interlineations on page 1 of Exhibits Q-1 and Q-2 and Exhibits Q-3 and Q-4. 1) I examined the word “Designer” in the questioned handwritten interlineations and found that the perpendicular alignment of the back of the letter “s” intersects the back of the typed letter “c” above on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the perpendicular alignment of the back of the letter “s” intersects the bowl of the typed letter “c” above. See Fig. 19. 2) I examined the word “Designer” in the questioned handwritten interlineations and found that the perpendicular alignment of the back of the letter “n” intersects the left side of the bowl of the typed letter “d” above on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the perpendicular alignment of the back of the letter “n” intersects the center of the bowl of the typed letter “d” above. See Fig. 20. 27 28 29 30 EXHIBIT A 31 Case 1:10-cv-00569-RJA -LGF Document 52-1 Filed 06/02/11 Page 3 of 7 Curriculum Vitae of Gus R. Lesnevich Forensic Document Examiner Altoona-Blair County Airport 310 Airport Drive Martinsburg, Pennsylvania 16662 (814) 793-2377 (814) 793 -3790 Fax WWW.LESNEVICH.COM 32 Case 1:10-cv-00569-RJA -LGF Document 52-1 Filed 06/02/11 Page 4 of 7 QUALIFICATIONS OF GUS R. LESNEVICH After four years as a CID Agent (Criminal Investigator), I began my training in the field of Questioned Document Examination at the United States Military Crime Laboratory, Fort Gordon, Georgia. Upon completion of my training (1968 to 1970), I was certified by the Department of Defense, U.S. Army, as Examiner of Questioned Documents. During my military service, I served as Examiner, both in the United States, and as Chief, Questioned Document Section, U.S. Military Crime Laboratory (Provisional) South Vietnam. Upon leaving military service, I entered private practice in Atlanta, Georgia. During this time, I worked as a Handwriting Expert for some of the leading law firms in the South, as well as handling civil disputes for private corporations and individual claimants and plaintiffs. In 1974, I was recruited by the United States Secret Service. In 1976, I was promoted to Senior Document Examiner, at the Secret Service Identification Branch, a division of Special Investigations. During my tenure with the Secret Service, I was responsible for the training of junior examiners, and assuming individual responsibility for the examination of U.S. Treasury Checks, Saving Bonds, Banking Documents, etc., as well as the examination of threatening correspondence directed at the President of the United States, and other persons under the protection of the Secret Service. In August of 1981, I left the United States Secret Service and re-entered private practice. Although I continue to work for the U.S. Attorneys, Federal, and State Law Enforcement Agencies, LegalAid and Public Defenders, the predominance of my work is in the private sector. I have qualified and testified as an Expert Witness in all Courts of the United States Armed Forces, State Courts along the East Coast of the United States and Federal Courts throughout the United States. NOTE:For additional information please visit 2004 U.S. App.Lexis 12432 www.ca3.uscourts.gov/opinarch/033915p.pdf 33 Case 1:10-cv-00569-RJA -LGF Document 52-1 Filed 06/02/11 Page 5 of 7 CURRICULUM VITAE GUS R. LESNEVICH June 1962 to March 1965 Military Policeman, United States Army, Korea and Brooklyn, New York April 1965 to March 1968 United States Army Certified Criminal Investigator, (CID Agent), Nuremberg, Bavaria, Germany April 1968 to June 1970 Resident Trainee (full-time student) in the field of Questioned Documents United States Army Criminal Investigation Laboratory, Fort Gordon, Georgia July 1970 to April 1972 Examiner of Questioned Documents - United States Army Criminal Investigation Laboratory, Fort Gordon, Georgia, and United States Army Criminal Investigation Laboratory, (Provisional) South Vietnam May 1972 to August 1974 Private practice, Examiner of Questioned Documents - Atlanta, Georgia August 1974 to July 1981 Examiner of Questioned Documents, Senior Examiner of Questioned DocumentIdentification Laboratory, United States Secret Service, Washington, District of Columbia August 1981 to August 2005 Private practice, Forensic Document Examiner - outside of Philadelphia, Pennsylvania September 2005 Relocated to south central Pennsylvania, accepting cases on a limited basis. 34 Case 1:10-cv-00569-RJA -LGF Document 52-1 Filed 06/02/11 Page 6 of 7 ADDENDUM TO CURRICULUM VITAE GUS R. LESNEVICH July 1970 to April 1972 Instructor, Questioned Documents - United States Army Criminal Investigation School, Fort Gordon, Georgia August 1970 to March 1971 Specialized Training in Printing, Forgery and Counterfeiting - United States Mint, Treasury Department, Washington, District of Columbia and United States Military Printing Facilities, Japan August 1974 to July 1981 Instructor, Questioned Documents Course - United States Secret Service, Washington, District of Columbia April 1977 to July 1981 Training of Examiners undergoing Resident Training in the Field of Forensic DocumentExamination - United States Secret Service Identification Laboratory, Washington, District of Columbia July 1981 to Present Since entering private practice, I have continued training individuals undergoing Resident Training in the field of Forensic Document Examination. Certifications: Department of Defense, U.S. Army (1970) American Board of Forensic Document Examiners (1980) Re-certified for 5-year periods (1985, 1990, 1995 and 2000) Relinquished certification in August, 2005. (September, 2005 -limited practice) 35 Case 1:10-cv-00569-RJA -LGF Document 52-1 Filed 06/02/11 Page 7 of 7 GUS R. LESNEVICH HAS BEEN RETAINED AS A GOVERNMENT EXPERT IN THE FOLLOWING CASES People vs. Edward Leary (N.Y.C. Subway Firebombing) U.S. vs. Mokhtar Haouari and Abdelghani Meskini (Y2K Millennium Bomb Plot of LAX) People vs. Abraham Hirschfeld People vs. Chuck Jones (Marla Maples' Publicist) 1994 and 1999 U.S. vs. Eddie Antal' (Crazy Eddy) Kenneth Stal'l; Illdepelldellt Counsel Vincent Foster Suicide Lawl'ellce E. Walsh, Indepelldent Counsel Il'an-Contl'a Affail' U.S. vs. Don King (1985, 1995 and 1998) U.S. vs. Thomas Clines U.S. vs. Albert Hakim U.S. vs. Lt. Col. Oliver North U.S. vs. Admiral John Poindexter U.S. vs. General Richard Secord U.S. vs. Caspar Weinberger U.S. vs. Giovanni Gambino U.S. vs. Leona Helmsley U.S. vs. Autumn Jackson (Bill Cosby) Insider Tmdillg U.S. vs. Ivan Boesky U.S. vs. GAF Corporation U.S. vs. Boyd L. Jefferies U.S. vs. Dennis B. Levine U.S. vs. Michael Milken U.S. vs. Imelda Marcos u.s. vs. Bess Myerson U.S. vs. Darryl Strawberry U.S. vs. Lawrence Cusack (president Kennedy Papers) Fedel'al Pl'osecution Medellin, Cali and Bogota Cartels U.S. vs. Rntland (see attached 3,d Circnit Court Opinion) U.S. vs. Wesley Snipes U.S. vs. Osama Bin Laden (U.S. Embassy Bombing in Africa) People vs. Anthony D. Marshall and Francis X. Morrissey, Jr. (Brooke Astor) 36 EXHIBIT B 37 Case 1:10-cv-00569-RJA -LGF Document 52-2 Filed 06/02/11 Page 3 of 5 Page 1 372 F.3 d 543; 2004 U.S. App. LEXIS 12432, * LEX SEE 2004 U.S. APP. LEXIS 12432 UNITED STATES OF AMERICA v. CHRIS RUTLAND; ChrIstopher H. Rutland, Appellant No. 03-3915 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 372 F.3d 543; 2004 U.S. App. LEXIS 12432 March 29, 2004, Argued June 23, 2004, Filed PRIOR HISTOR Y: [*11 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. the ultimate issue. Jurors may proper ly tak e an exp ert's impressive experience and credentials into account when [*21 determining the weight of the expert's testimony. Therefore, we will affinn the decision of the district court. DISPOSITION: Affinned. LexisNexis(R) Headnotes COUNSEL: Kenneth W. Kayser (Argued), Livingston, NJ, Attorney for App ellant. George S. Leone, Office of United States Attorney, Newark, NJ. Glenn J. Moramarco (Argued), Office of United States Attorney. Camden, NJ, Attorneys for Appellee. 1. Background Rutland was a financial advisor with Citicorp Financial Services when he met Helen Cons tans, an elderly widow, in 1990. Constans tm sted 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. FISHER, Circuit Judge. Cons tans was eventually 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 documen1s. McCosh found an annuity statement that listed Barbara Grams as the annuitant. McCosh did not know anyone by 1he name of Grams. Because McCosh knew that Rutland had been Constans ' financial advi<;or, 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 111e annuity statement 1hat listed Grams as the annuitant must have been a clerical error. Defendant Christopher H. Rutland appeals from his judgmen t of sentence, arguing that it was unfa irly prejudicial to allow the government's exc eptionallyqualified handwriting exp ert to testify to the ultima te issue of authorship of key documents. The Advisory Committee Note to Rule 403 of the Federal Rules of Evidence states, unfair prejudice umeans an undue tendency to suggest decision a n an improper basis, commonly, though not necessarily, an emotional one. II It is not unfairly prej udicial to allow an expert to testify to Rutland and Grams defrauded Cons tans of more than $ 637,000. They bought [*31 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 cha ngin g Co nstans' ad dress to Rutland's or Grams' address; change of ownership fonns transferring ownership of C onstans ' financial ac counts to Rutland or Grams; documents to open accounts naming JUDGE S: Before: ALITO, FISHER and ALDISERT, Circuit Judges. OPINIONBY: FISHER OPINION: OPINION OF THE COURT 38 Case 1:10-cv-00569-RJA -LGF Document 52-2 Filed 06/02/11 Page 4 of 5 Page 2 372 F.3d 543; 2004 U.S. App. LEX1S 12432, * 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 M ilken, Leona Helmsley, Imelda Marcos, the 0 ffice of Kenneth Starr, and organized crime cases. Grams as a joint owner with COllstans; and forging checks dra wn on Co nstans' accoun t made pa yable to Rutland or Gram s. Rutland and Grams were each charged with one count of co nspiring to ob tain money and prop erty through a fraudulent scheme, in violation of 1B U.S.C, § 371. The district court held a Daubert nl hearing to determine the qualifications ofboth the government's handwriting expert and the defendants' expert, a critic of the field of handwriting analysis. The district court found that both experfs: were sufficiently qualified to testify at trial as expert witnesses. Lesnevich has testified in both civil and criminal cases, for prosecutors as well as defense attorneys. nl Daubert v. Merrell Dow Ph armaceu ticals, IIIc .• 509 U.S. 579. 125 L. Ed. 2d 469. II3 S. Ct. 2786 (1993). [*5J The defense e.xpert attacked the general reliability of handwriting analysis. [*4J Prior to trial, Rutland filed a motion in limine to prevent the government's handwriting expert from opining regarding the authenticity of Cons tans' signature on the documents completed by Rutland and Grams. The district court denied the motion. 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 timelyappeaJ followed. At trial, the government's handwriting expert testified regarding his extensive qualifications and impressive past experience. n2 Then, he explained 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 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 .... n 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 testim any was sub stantially outweighed by prejudice to the defendant. n2 The 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 United States Army, and worked under the direct supervision of senior do cument examiners. He completed a two-year Department of Defense program, and was certified as an examiner of questioned doc uments. 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. II. Discussion The district court had subject matter jurisdiction pursuantto 18 U.S.C. § 3231. We have jurisdiction of this timely appeal pursuant t028 U.S.C. § 1291. Our applicable standard [*6] of review for evidentiary rulings is abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137. 152-53,143 L. Ed. 2d 238. 119 S. Ct. 1167 (1999); United States v. Velasquez, 33 V.I. 265, 64 F.3d 844,847-48 (3d Cir. 1995). A witness may testifY as an expert if (l) the proffered witness is actually an expert; (2) the expert testifies to scientific, technica~ 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 nin the form of an opinion or inference otherwise adm issible is not objectionable Lesnevich is a member of several 39 Case 1:10-cv-00569-RJA -LGF Document 52-2 Filed 06/02/11 Page 5 of 5 Page 3 372 F.3d 543; 2004 U.S. App. LEXIS 12432, * because it embraces an ultimate issue to be decided by the trier of fact. n 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 adm itting expert testimo ny: rA} judge [*7] assessing a proffer of expert scientific testimony under Rule 702 should also be mindful 0 f other app lieable rules .... Rule 403 permits the exclusion of relevant evidence nif its pro bative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury .... 11 ... ItExpert evidence can be bo th powerful a nd 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.1t 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 Gil: 1997); Soldo v. Salldoz Pharmaceuticals Corp., 244 F. Supp. 2d 434 (IV.D. Pa. 2003); Ullited States v. Nguyell, 793 F. Supp. 497 (D.N.J. 1992). The probative value of expert testimony substantially [*8] outweighing the danger ofunfair 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 crede ntials. 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 Itmeans an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. It United States v. Gross, 308 F.3d 308,32411.23 (3d Gil'. 2002), quotillg 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., lI1C., 80 F.3d 777, 782 (3d Gir. 1996). The past experience of expert witnesses properly influences the weight the testimony [*9] 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 wer e 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 qua lified experts. This Court will not limit an expert's testimony based merely upon the expert's qualifications. III. Conclusion Unfair prejudice &Uggests a decision on an improper basis. It is not improper for jurors to consider an expert's experience and credentials when determining the weight of the expert's testimony. Accord ingly, the judgm ent of the district co urt will be AFFIRMED. 40 EXHIBIT C 41 42 43 44 45