United States of America v. Alexandre Gradys

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1267
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UNITED STATES OF AMERICA
v.
ALEXANDRE GRADYS,
Appellant
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On Appeal from the District Court of the Virgin Islands
(D.C. Criminal No. 3-08-cr-00056-001)
District Judge: The Honorable Curtis V. Gomez
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Submitted Under Third Circuit LAR 34.1(a)
December 3, 2009
Before: McKEE, FUENTES, and NYGAARD, Circuit Judges.
(Filed December 18, 2009)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.

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Fed. R. Evid. 703. The facts or data in the particular case upon which an expert1.
bases an opinion or inference may be those perceived by or made known to the expert at
or before the hearing. If of a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or inference to be admitted. Facts or data
that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that their probative value in assisting the
jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Gradys relies upon the following comment to the 2000 amendments to F.R.E.2.
703: “If the otherwise inadmissible information is admitted under this balancing test, the
trial judge must give a limiting instruction upon request, informing the jury that the
underlying information must not be used for substantive purposes.”
2
Because our opinion is wholly without precedential value, and because the parties
and the District Court are familiar with its operative facts, we offer only an abbreviated
recitation to explain why we will affirm the judgment of conviction and sentence of the
District Court.
Appellant, Alexandre Gradys, raises two issues on appeal. He asserts that, in
violation of Rule 703 of the Federal Rules of Evidence, the District Court erred by failing
to conduct a balancing test before admitting the testimony of a fingerprint expert, since he
relied, in part, on a fingerprint card that the District Court ruled inadmissible. Gradys1
also argues that, even if the District Court is found to have conducted a balancing test it
violated Rule 703 by failing to give a special jury instruction on the expert testimony.2
The testimony at issue focused upon whether Gradys’ inked fingerprint impressions taken
after his arrest on September 24, 2008 by an Immigration and Customs Enforcement

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From our own review of the record, we note some confusion about the precise3.
date of the disclosure. Though Gradys’ counsel states clearly that he received the
materials three weeks prior to trial, there is a suggestion later in the transcript that he may
have received the materials roughly one week before trial. This discrepancy does not
change our analysis.
3
Agent matched a fingerprint record contained in a 2002 Form I-296, Warrant of
Deportation/Removal, that the agent discovered in Gradys’ alien file after the arrest.
Gradys objected during trial to the expert’s testimony, the newer fingerprint
record, and the expert’s report. The objections were raised under Rule 16 of the Federal
Rules of Criminal Procedure, because the government disclosed the expert, report, and
supporting documents two weeks after the discovery deadline. At sidebar, Gradys argued
that he was prejudiced because the three weeks between the disclosures and the start of
trial was an insufficient amount of time to mount a defense against this evidence. Gradys
admitted, however, that he did not file a pre-trial motion on these issues in that three-
week period because he thought it was probable that the District Court would merely
grant a continuance. Before returning to open court, the District Court specifically asked3
Gradys if he thought that special jury instructions were necessary. Gradys made no such
request and merely renewed his objection to the admissibility of the expert’s testimony.
The District Court excluded the expert report and the fingerprint record, but it
ruled that the expert’s testimony was admissible. The expert testified that the recent
fingerprints matched those found on the Form 1-296. Gradys vigorously cross-examined
the expert.

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4
We find Gradys’ issues on appeal to be meritless. With regard to Gradys’ original
objection to the Rule 16 violation, we have stated in the past that it is the defendant’s
burden to demonstrate a likelihood that the verdict would have been different if the
government had complied with the discovery rules. United States v. Davis, 397 F.3d
173, 178 (3d Cir. 2005). Gradys has utterly failed to meet this standard.
With respect to Gradys’ Rule 703 arguments, we note that these were not raised
before the District Court. As such, they are reviewed for plain error. United States v.
Knight, 266 F.3d 203, 206 (3d Cir.2001). If Gradys can establish all of the elements of
plain error, this Court has discretion to award relief, but should only do so in cases of
actual innocence or if the error “ ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’ ” Johnson v. United States, 520 U.S. 461, 467 (1997),
(quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770).
The District Court gave Gradys ample opportunity at sidebar to engage in a
detailed discussion on the issue of prejudice. Moreover, the 2000 comment to Rule 703
suggests that a court may be obligated to provide a special jury instruction in certain
circumstances upon request. Even after he was specifically asked about jury instructions
Gradys refrained from requesting the very instruction he now asserts was necessary. For
these reasons, we do not find any basis for Gradys’ argument of error. However, even if
we were to find error, we conclude that Gradys has failed to demonstrate actual innocence
or serious unfairness.

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5
For these reasons, we will affirm the judgment of conviction and sentence of the
District Court.

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