Ceglia v. Zuckerberg et al

Filing 386

MEMORANDUM IN SUPPORT re 385 MOTION to Strike 318 MOTION to Dismiss, 326 Continuation of Exhibits, 319 Memorandum in Support of Motion NOTICE byPaul D. Ceglia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Certificate of Service)(Boland, Dean)

Case 1:08-cr-10268-WGY Document 60 Filed 11/04/09 Page 1 of 11

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA, )
Plaintiff,
)
v.
)
)
FRANK R. RAGO, and
)
LOUIS G. DESISTO,
)
)
Defendants. )

CRIMINAL ACTION 08 CR 10268 WGY

LEAVE TO FILE GRANTED BY ORDER DATED OCT. 30, 2009
DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION
IN LIMINE TO EXCLUDE GERALD LAPORTE’S OPINION
TESTIMONY ON DAUBERT AND OTHER GROUNDS OR,
ALTERNATIVELY, FOR AN EVIDENTIARY HEARING
Defendants, Frank R. Rago and Louis G. DeSisto, submit this reply in support of
their motion in limine to exclude Gerald LaPorte’s opinion testimony on Daubert and
other grounds, or alternatively, for an evidentiary hearing (Docket No. 44).
I.

THE GOVERNMENT’S ATTEMPT TO EXECUTE A CONDITIONAL
AND STRATEGIC RETREAT CONCERNING LAPORTE’S TESTMONY
SHOULD BE REJECTED.
The government states that it will no longer offer LaPorte’s testimony regarding

“ink analysis” in its case-in-chief. Manifestly, the government has had a full and fair
opportunity to respond to the defense’s overwhelming evidence that LaPorte’s “ink
analysis” is inadmissible because it is not scientifically reliable and, worse, dangerously
misleading. Without presenting one iota of information, evidence, or law demonstrating
that LaPorte’s “ink analysis” complies with Rules 401, 403, 702 or 703 or Daubert
standards, the government states:

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The Government makes no representation that Mr. LaPorte’s testimony was not
admissible pursuant FRE Rules 702 and 703, or that it is excludable under
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (“Daubert’) or FRE 403.
The government reserves the right to call Mr. LaPorte as a rebuttal expert witness
in this case with respect to the ink analysis with respect to the ink analysis he
performed in this case.
Gov. Opp. (Doc.57) at 16.
The Rules of Evidence and Daubert standards apply to all evidence, including
rebuttal evidence. This Court should reject the government’s preposterous and frivolous
stance that it can evade its burden to demonstrate that the “ink analysis” complies with
the Rules of Evidence and Daubert by postponing its presentation of this evidence until
rebuttal.
The grand jury record establishes beyond doubt that LaPorte’s “ink analysis” was
the primary factual basis for the government’s charge that Mr. DeSisto obstructed justice
by back-dating and authenticating in response to a grand jury subpoena: (1) the
September 16, 3003 tally sheet that indicates a 12 to 1 vote in favor local union dues on
that date and (2) the 13 ballots that are consistent with that tally sheet. In view of the
government’s new stance omitting LaPorte’s “ink analysis” from its principal case, the
government and this Court should expect that there will be non-expert evidence that the
secret ballot occurred on September 16, 2003, as indicated by the tally sheet and ballots.
Because the government has withdrawn the “ink analysis” from its case-in-chief, there
will be no occasion for the defense to call its expert, Larry F. Stewart, to rebut and
impeach Mr. LaPorte’s “ink analysis.” The government cannot be permitted to sandbag
the defense by presenting its “ink analysis” in rebuttal. Moreover, in view of the
government’s failure to litigate the admissibility of the “ink analysis” when it has had a

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full and fair opportunity to do so prior to trial, it would be inefficient, inappropriate, and
unfair to litigate admissibility during the trial. These grounds are more than sufficient to
exclude LaPorte’s “ink analysis” from being admitted at trial, whether in the
government’s principal or rebuttal case. But there is an additional, compelling reason to
exclude Mr. LaPorte’s evidence.
II.

LAPORTE’S EVIDENCE IS A FRAUD ON THIS COURT AND
UNCONSITUTIONALLY ENDANGERS THE DEFENDANTS’ LIBERTY.
LaPorte first reported the results of his “ink analysis” on June 7, 2006. The report

was presented to the grand jury that returned this indictment as if the ink analysis was
scientifically reliable evidence that the September 16, 2003 date on tally sheet entitled
“Results of Secret Ballot” was back-dated and inauthentic. See Secret Service Laboratory
Report marked as Grand Jury Exhibit 42, attached hereto as Exhibit A, at p.3.
On July 12, 2007, LaPorte testified concerning his “ink analysis” in United States
v. Adham Amin Hassoun et. al, Docket No.04-60001 CR Cooke (S.D. FL) as follows:

Q. Now, can you tell from your results exactly when ink was
put to paper on this document?
A. No, we can’t.
Q. Are you aware of any scientifically reliable way to make
such a determination looking only at the ink for a document
like this?
A. There is no scientifically reliable methodology that could
be used to determine the age of the ink or to determine when
exactly they were placed on that piece of paper.
Q. Can you tell from your results when the ballpoint portion
was written relative to the non-ballpoint portion?
A. No, it would be impossible to tell which was done first.
Q. Are you aware of any scientifically reliable way to make
that determination?
A. No.
…
Transcript at 55. (Emphasis supplied)

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Even more significantly for this case, LaPorte testified:
…
Q. Now, if I understand this correctly, there is a test that
can be done to determine the time in which ink was placed on a
document, right?
A. No, there is no scientifically reliable test to determine
exactly when an ink was put down on a piece of paper.
Q. Have you ever run a phenoxyethanol test?
A. Yes, it’s called phenoxyethanol.
Q. Easy for you to say.
A. We can use the terminology PE if you would like, to keep it
simple.
Q. Let’s do PE. Now, PE is a test which you’re able to sort
of measure the rate at which an ink dries, right?
A. It’s a lot more complex than that, but, essentially, yes.
Certain inks have a component known as phenoxyethanol that is
present in them, and there have been studies to show that
phenoxyethanol basically evaporates at a predictable rate
somewhat. It really depends on the type of document that it’s
on, the storage conditions of that document, the type of ink
that has been used and so forth.
Q. In fact, in other case, haven’t you performed that test
and testified about that test?
Transcript at 67. (Emphasis supplied)
A. I have never testified about using that particular -- like,
then I found a positive result. I have testified about the
procedure itself, yes.
Q. You have testified about the procedure, right?
A. Yes.
In fact, you explained it to a jury where you said it’s
like paint drying, right?
A. Correct, yes.
Q. You put it on, you touch it, and it’s wet. Two days later,
you touch it and it may not come off on your hand, but you can
still smell it because it hasn’t dried quite enough?
A. Yes.
Q. In fact, that’s what you did when you explained to another
jury about this test, which is one way of determining how much
the ink could have dried?
A. The only time that we would use that test, there would have
to be certain circumstances around that document. First of
all, we would use it to compare. Let me just provide an
example for simplicity. Let’s suppose that someone has a diary

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of entries and they are purported to have been done in 2001,
2002, 2003, 2004. So we have written entries. It may be
purported that they were done at different times, but if it is
suspected that they did it all at once, then we can go back and
analyze all four of those inks and then try and determine if
those inks have significant differences to indicate that they
were put down at a different time, or if they are all basically
the same.
So, if you would like to go back to the paint example,
it would be like putting down four -- paint at four different
times and then sort of measuring the tackiness or how much it
has dried for each of them. That requires the entries to be
produced on the same document so that we would know that it was
under the same storage conditions, that it was exposed to the
same environmental factors and so forth. Even paper can have
an effect. There are a lot of factors that have to –
Q. There are a lot of factors that you can consider. But, in
fact, you even wrote an article about this, didn’t you?
A. Yes, I published an article.
…
Transcript at 68-69. (Emphasis supplied)
Q. Okay. Well, you are saying because the light blue ink is a
non-ballpoint ink -A. Correct.
Q. -- you cant’ compare the ballpoint ink to the non-ballpoint
ink?
A. They are two completely different formulations.
Q. Perfect. But you could compare the ballpoint ink, which is
the dark blue ink, right to the known samples which you have
in your library which you’ve already testified about, right?
A. No, I can’t do that because, as I had explained, the inks
have to be stored in the same condition. The inks that we have
in our reference collection are stored on different types of
paper, they are stored in a humidity and temperature control
environment. They are stored in binders. So, you can’t do the
test and compare it to a standard. It’s called relative
comparison. You have to do it relative to the other inks on
that particular document.
Q. So, then, you could have done it from the ballpoint ink
that appeared on the front page to the ballpoint ink which is
on the signature page, right?
A. No, because, once again, as I explained, we like to have
them on the same document. Now we have got inks that are on
page one and inks that are on page four. If I had done that
type of examination, I would be getting cross-examined about

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the validity of that testing because page four could have been
stored in a different environment versus page one.
Q. Or they could have been written at different times by
different people, right?
MR. SHIPLEY: Objection, speculation
THE COURT: Overruled.
THE WITNESS: Well, of course. I can’t tell you when
these entries could have been created. I am a scientist, so I
can’t speculate on when the entries were put down.
BY MR. NATALE:
Q. And it would be wrong for anyone to speculate, or to want
people to speculate that the date which purports to be on this
document was, in fact, the actual date that all of the writing
occurred?
MR. SHIPLEY: Objection to form. Is he asking about
based on his ink analysis or in general, because the question
is broader than that.
MR. NATALE: On his ink analysis.
THE COURT: Based on your ink analysis, sir.
THE WITNESS: Based on my ink analysis, I can’t render
a conclusion at all. There is nothing to indicate that this
document was not created on the purported day, and there is
nothing I can say that it wasn’t created on the purported date.
There is certainly nothing consistent on this document to
indicate to me that it was not created on its date.
…
Transcript 71-72 (emphasis supplied).
At all material times, Mr. Laporte was well aware that that the “ink analysis” he
purported to perform in this case was not scientifically reliable for the reasons he
described during his Miami testimony in 2007.
Even though he testified that it is not scientifically reliable to do so, in this case
LaPorte compared ballpoint ink writing on two different kinds of paper: (1) document
Q2-5, the second page of the June 28, 2001 minutes of a Local 1604 meeting which was
written on lined paper; and (2) document Q-3, the tally sheet dated September 16, 2003,
written on unlined paper. Even though he testified that it is not scientifically reliable to
do so, Mr. LaPorte claimed he could provide a scientifically reliable comparison of the

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ink on the two documents even though he has no information concerning the storage and
environmental conditions to which these writings were subjected prior being submitted in
response to a grand jury subpoena. Moreover, LaPorte’s report states that “the inks used
to produce the ink entries found on Exhibit Q2-5 and Q-3 were determined to match each
other (e.g. Ink designated “F”) and the documents are purportedly dated approximately
26 months apart, further testing was conducted on the inks to estimate their relative age.”
See Exhibit A at 3. However, documents generated during the Secret Service
Laboratory’s work show that the questioned ink on the two documents as having
“similarities to liquid black A inks.” And, LaPorte does not identify or match the ink to a
single formula. Instead he matches it to two formulas, one being BIC I-7536 and the
other, Papermate I-6888.
In the Miami case, LaPorte testified that the phenoxyethanol technique was not
scientifically reliable unless the questioned ink was written on the same paper, stored
under the same, known environmental conditions, using the specifically identified
ballpoint ink. Here, according to LaPorte’s own records, the paper is different, the
questioned ink is not identified, and the storage and environmental condition are
unknown.1 To make matters even worse, it is undisputed that LaPorte’s own efforts to
validate the reliability of his “ink analysis” during the examination showed huge and
unexplained error rates and disparate results when the results should have been similar or
identical. See Summary of Testimony of Larry F. Stewart, attached to the Declaration of
Tracy Miner as Exhibit 3 (Doc.46-4) at 13-14. LaPorte’s Miami testimony is not merely
impeaching. It indicates starkly, that when the government submitted the summary of
1

The defense’s motion featured, inter alia, the differences in paper, differences in ink and unknown
storage condition as reasons to exclude LaPorte’s testimony. Unsurprisingly, the government has not, and
cannot, rebut any of this.

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LaPorte’s testimony dated July 10, 2009, LaPorte and the government knew, and had
reason to know, that the “ink analysis” was anything but the scientifically reliable
evidence it purported to be. Even now, the government claims to reserve the right to
present the “ink analysis,” albeit in rebuttal and without presenting a scintilla of evidence
that it is scientifically reliable so as to qualify as admissible evidence at all.
This Court is also obliged to consider the damage LaPorte’s bogus “ink analysis”
has already done in this case. The defense has expended tens of thousands of dollars of
precious resources on scientific investigation, expert fees and expenses and legal services
to contest the admissibility of LaPorte’s falsified “ink analysis.” These irreplaceable
resources cannot be devoted to the defense of other aspects of this case. Having caused
the defense to spend these irreplaceable resources, the government fails to present any
substantive response, and instead proposes to present the “ink analysis” in rebuttal and to
present LaPorte’s indentation analysis as if none of this misconduct has happened. The
Court should not countenance the government’s misconduct by allowing it to proceed as
it proposes.
In sum, it is not Mr. DeSisto or Local 1604 that presented falsified evidence to the
grand jury in this case. To the contrary, LaPorte and the government have done so.
Depending on the Court’s ruling on this motion, the defense reserves its right to present
evidence of the government’s “forensic” falsification, because it has a Fifth Amendment
right to present evidence of the government’s misconduct during the investigation that
resulted in the charges in this case.
III.

LaPORTE’S “COULD NOT BE ELIMINATED AS A POSSIBLE
SOURCE” OPINIONS SHOULD BE EXCLUDED.

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The last paragraph of LaPorte’s summary his proposed testimony states that he
detected indentations on three of the thirteen ballots that he examined, numbered 2, 8,
and 13 indicating, he opines, that the handwritten check marks on some ballots were
created on overlying ballots at some time. He opines that handwritten check marks on
ballots numbered 4 and 11 “could not be eliminated as a possible source” of an
indentation found on ballot number 2, and that handwritten check marks on ballots
numbered 7 and 12 “could not be eliminated as a possible source” of indentations found
on ballots numbered 8 and 13. Finally, LaPorte opines that the check mark on ballot
number 1 was overwritten (i.e. at least two different check marks) and “could not be
eliminated as a possible source” of the indentations. Miner Dec., Exhibit 1, page 3
(emphasis supplied).
The government claims that LaPorte’s testimony is admissible to prove that the
ballots were not marked by 13 voters and that they are inauthentic. But it cannot and does
not rebut the fact that a check mark on one ballot “could not be eliminated as a possible
source” of an indentation on another ballot is not Rule 401 relevant evidence that either
ballot or both ballots was not marked in a secret ballot by an individual voter. As matter
of commonsense and logic, evidence that some event “cannot be excluded as possible”
has absolutely value in proving that the event actually occurred. The defense pointed out
in its motion that the proffered opinion is entirely consistent with one or more voters
marking their ballot when it was on top of stack of as-yet unmarked ballots. The
government does not indicate that the proffered indentation analysis is relevant proof to
the contrary. In short, LaPorte’s opinion a check mark “could not be eliminated as a
possible source” of an indentation on another ballot is irrelevant, wastes jury time, and

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would create jury confusion by inviting an unsupported and dangerous reasoning: jurors
might reason that if a check mark “cannot be excluded as a possible source” of an
indentation on another ballot, it can be inferred that the check mark was, in fact, the
source of the indentation or, even more unfounded and dangerous because it involves
several unsupported inferences, that less than thirteen voters wrote the check marks on
the ballots. After evidentiary hearings, Judge Gertner excluded unreliable and unfounded
comparison testimony in comparing exemplars of ink handwriting to each other. United
States v. Hines, 55 F.Supp. 2d 62 (D.Mass. 1999); United States v. Green, 405 F. Supp.
2d 104 (D. Mass. 2006).2 Here, without an evidentiary hearing, the Court should not
admit a comparison of ink check marks to indentations in paper.
For all the foregoing reasons, this Court should exclude LaPorte’s testimony or, in
the alternative, convene an evidentiary hearing, to determine the admissibility of the
results of Mr. LaPorte’s indentation analysis.
Respectfully submitted,
/s/ __ Andrew Good______
BBO No. 201240
Good & Cormier
83 Atlantic Avenue
Boston, MA 02110
Tel. [phone]
E-mail: [e-mail]
/s/ Tracy Miner
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C
One Financial Center | Boston, MA 02111
Phone: [phone]| x501694
E-mail: [e-mail]

2

None of the cases cited in the government’s opposition, including those at 13 n.2, involve a Daubert
challenge to comparison based on comparison of ink writing to indentations. Certainly, none of them
involved a similarly meaningless opinion that ink markings “cannot be excluded as the possible source” of
indentations.

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Certificate of Service
I, Tracy Miner, hereby certify that I have this day served an electronic copy of the
foregoing on Assistant United States Attorney Suzanne Sullivan, Trial Attorney Vincent
Falvo, and Attorney Andrew Good.
_/s/_ Tracy Miner_____
Date: November 4, 2009

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