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

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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

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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.

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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

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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.

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28

29

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EXHIBIT A

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Curriculum Vitae
of
Gus R. Lesnevich
Forensic Document Examiner

Altoona-Blair County Airport
310 Airport Drive
Martinsburg, Pennsylvania 16662
[phone]
(814) 793 -3790 Fax
WWW.LESNEVICH.COM

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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

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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.

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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)

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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)

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EXHIBIT B

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Page 1

372 F.3 d 543; 2004 U.S. App. LEXIS 12432,

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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

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372 F.3d 543; 2004 U.S. App. LEX1S 12432,

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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

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*

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.

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