USA v. Anthony D'Ambrosio

Filing

NOT PRECEDENTIAL OPINION Coram: MCKEE, RESTREPO, Circuit Judges, and HORNAK*, District Judge. Total Pages: 6. Judge: RESTREPO Authoring. *Honorable Mark R. Hornak, District Judge for the United States District Court for the Western District of Pennsylvania, sitting by designation.

Case: 16-1844

Document: 003112522087

Page: 1

Date Filed: 01/26/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1844
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UNITED STATES OF AMERICA,
Appellant
v.
ANTHONY F. D’AMBROSIO
ANTONIO DELGADO, aka Little Tony
ARMANDO ENRIQUE DELGADO
KEANU DAVONE MARTINEZ
______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 1-15-cr-00003-002, 003, 004 & 005)
District Judge: Honorable William W. Caldwell
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Argued: November 8, 2016
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Before: McKEE, RESTREPO, Circuit Judges, and HORNAK, District Judge.*
(Opinion filed: January 26, 2017)
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Peter J. Smith
Stephen R. Cerutti II
Meredith A. Taylor [ARGUED]
United States Attorney’s Office
Middle District of Pennsylvania
Ronald Reagan Federal Building

*

Honorable Mark R. Hornak, District Judge for the United States District Court
for the Western District of Pennsylvania, sitting by designation.

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Date Filed: 01/26/2017

Suite 220
228 Walnut Street
Harrisburg, PA 17108
Counsel for Appellant
John A. Abom [ARGUED]
Abom & Kutulakis
2 West High Street
Carlisle, PA 17013
Counsel for Appellee Anthony D’Ambrosio
Dean E. Reynosa
Griest Himes Herrold & Reynosa
129 East Market Street
York, PA 17401
Counsel for Appellee Antonio Delgado
Robert J. Daniels
Killian & Gephart
218 Pine Street
P.O. Box 886
Harrisburg, PA 17108
Counsel for Appellee Armando Delgado
Joseph Sembrot
Goldberg Katzman
4250 Crums Mill Road, Suite 301
P.O. Box 6991
Harrisburg, PA 17112
Counsel for Appellee Keanu Martinez
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OPINION**
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RESTREPO, Circuit Judge.
The Government filed this interlocutory appeal from the District Court’s in limine

**

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
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ruling precluding the Government from calling an expert witness. We will affirm.
I
Appellees Anthony D’Ambrosio, Antonion Delgado, Armando Delgado and
Keanu Martinez are charged in a Superseding Indictment with, inter alia, sex trafficking
offenses, in violation of 18 U.S.C. §§ 1591, 2421, 2423 and 371. Prior to trial, the
Government provided notice that it intended to call an expert witness, Dr. Sharon Cooper,
to provide “background” on the “culture” of sex trafficking. App. 83. The Government
seeks to introduce this testimony to “de-mystify this subculture” and to provide
“education and context” for the jury. Br. for Appellant 7, 10. The Government does not
contend that the proffered testimony goes to any element of the charged offenses.
Appellees moved in limine to preclude the Government’s expert, and the District
Court granted the motion. The District Court explained that the proffered expert
testimony was irrelevant under Federal Rule of Evidence 401. The District Court further
promised to revisit the issue based upon the testimony of the fact witnesses. The District
Court suggested that the Government may be permitted to call its expert after the fact
witnesses testify if a foundation is established.
II
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction under 18 U.S.C. § 3731. Our standard of review is abuse of discretion.
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). This standard
reflects the fact that “[w]ith respect to evidentiary questions . . . a district court virtually
always is in the better position to assess the admissibility of the evidence in the context of
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the particular case before it.” Id. at 387; see also In re TMI Litig., 193 F.3d 613, 666 (3d
Cir. 1999).
III
The district courts serve a gatekeeping role to determine whether expert testimony
meets the requirements of Federal Rule of Evidence 702. Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 592-97 (1993). Rule 702 requires (1) that an expert witness
be qualified, (2) that the testimony be reliable and (3) that the testimony assist the factfinder. United States v. Schiff, 602 F.3d 152, 172 (3d Cir. 2010).
This case involves only the third requirement—“helpfulness” or “fit.” This
requirement is based upon the text of Rule 702, which requires that an “expert’s
scientific, technical, or other specialized knowledge . . . help the trier of fact to
understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). To be
helpful, expert testimony must be “sufficiently tied to the facts of the case that it will aid
the jury in resolving a factual dispute.” Schiff, 602 F.3d at 173 (quotation marks and
citation omitted). Conversely, “expert evidence which does not relate to an issue in the
case is not helpful.” United States v. Ford, 481 F.3d 215, 219 n.6 (3d Cir. 2007)
(quotation marks and citation omitted). “The ‘standard is not that high,’ but ‘is higher
than bare relevance.’” Schiff, 602 F.3d at 173 (citation omitted). We caution the district
courts to “tread carefully when evaluating proffered expert testimony,” as “scientific
expert testimony carries special dangers to the fact-finding process because it can be both
powerful and quite misleading because of the difficulty in evaluating it.” Ford, 481 F.3d
at 219 n.6 (quotation marks and citations omitted).
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Expert testimony on the culture of sex trafficking was the subject of a decision by
the Court of Appeals for the District of Columbia Circuit, United States v. Anderson, 851
F.2d 384, 392 (D.C. Cir. 1988). Anderson held that a district court did not abuse its
discretion by admitting such testimony to rebut cross-examination suggesting that the
victims “travelled with [the defendant] quite voluntarily; and that they had not engaged in
prostitution at his direction.” Id. at 393. These were “facts ‘that could be determinative
of [the defendant’s] guilt or innocence.’” Id. (citation omitted); see also United States v.
King, 703 F. Supp. 2d 1063, 1075 (D. Haw. 2010) (admitting the testimony of Dr.
Cooper, but where the testimony bore “directly on an element” of eight counts). In other
cases, in contrast, courts have affirmed the exclusion of cultural experts. See, e.g., United
States v. Bostick, 791 F.3d 127, 151 (D.C. Cir. 2015) (affirming exclusion of gang culture
expert as unhelpful because gang membership was not an element and not alleged);
United States v. Amawi, 695 F.3d 457, 480 (6th Cir. 2012) (affirming exclusion of expert
on jihadist “cultural norms” where testimony would not help the jury in determining
whether the defendants committed the crimes charged); United States v. Abdush-Shakur,
465 F.3d 458, 466-67 (10th Cir. 2006) (affirming exclusion of prison culture expert
where testimony was irrelevant to the crimes charged).
With such precedents in mind, we will affirm the decision of the District Court to
exclude the proffered expert. As in Bostick, Amawi and Abdush-Shakur, the proffered
testimony would not help the trier of fact in determining the defendants’ guilt as to the
offenses charged. Or, at the very least, the District Court did not abuse its discretion in so
holding.
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Having reached this conclusion, we go on to note that the impact of our ruling may
be slight. The District Court has promised to revisit its decision based upon the
testimony of the fact witnesses. This decision, which “allows the Government to present
its fact witnesses at trial, and then petition the Court for introduction of [expert]
testimony, was a pragmatic solution and not an abuse of discretion.” Schiff, 602 F.3d at
176. The District Court retains its discretion to reconsider the proffered evidence should
defense counsel open the door by way of cross-examination of witnesses or the
presentation of evidence that would make the expert opinion relevant.1
IV
We will affirm and remand for further proceedings consistent with this opinion.

1

Because we affirm under Rule 702, we need not determine whether some or all
of the expert testimony would be inadmissible under Rule 403. Cf. Anderson, 851 F.2d at
393-94 (expert testimony potentially unduly prejudicial).
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