United States v. Brien

• Court: Court of Appeals for the First Circuit
• Decided: July 14, 1995
• Docket: 94-1840
• Status: Published

Opinion

USCA1 Opinion

July 14, 1995

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 94-1840



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   NICHOLAS BRIEN,



                                Defendant, Appellant.



                                 ____________________


ERRATA SHEET
                                     ERRATA SHEET


The  opinion of  this court  issued  on July  11, 1995  is  hereby

        amended as follows:



            On the cover sheet:  "*  Of the District of  Northern California,"

        should be changed to "* Of the Northern District of California,".



UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 94-1840



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   NICHOLAS BRIEN,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
                                        _____________

                                Lynch, Circuit Judge,
                                       _____________

                        and Schwarzer,* Senior District Judge.
                                        _____________________



                                 ____________________



            James  L.  Sultan  with whom  Rankin  & Sultan  was  on brief  for
            _________________             ________________

        appellant.

            Christopher F. Bator, Assistant United States Attorney, with  whom
            ____________________

        Donald K. Stern, United States Attorney, was on brief for appellee.
        _______________


____________________



                                    July 11, 1995

                                 ____________________

        _________________



        * Of the District of Northern California, sitting by designation.



BOUDIN, Circuit Judge.  On August 31, 1993, a grand jury
                         _____________



            indicted  Nicholas Brien for armed bank robbery, 18 U.S.C.   



            2113(a),  (d),  and carrying  a  firearm  during a  crime  of



            violence, id.   924(c)(1).   In April 1994, a  jury convicted
                      ___



            Brien  of the former offense,  and he was  later sentenced to



            204  months in  prison.   He  now appeals,  raising important



            issues   concerning   (1)  expert   evidence   on  eyewitness



            identification  and  (2) courtroom  identification procedure.



            As background, we briefly summarize the evidence and do so in



            the light most favorable to the government.  United States v.
                                                         _____________



            Torres-Maldonado, 14  F.3d 95, 100 (1st  Cir.), cert. denied,
            ________________                                ____________



            115 S. Ct. 193 (1994).



                 According  to the  government's evidence,  Brien and  an



            accomplice entered the Family  Bank in Dracut, Massachusetts,



            on June  3, 1993.  Brien, armed  with a gun, confronted three



            tellers and  collected money  from two of  them.  He  and his



            accomplice  then fled with  over $4,000  in a  bag containing



            (unknown to them)  an explodable  red dye pack.   Before  and



            after the robbery,  Brien stayed  for several  days with  his



            girlfriend  at the  Avalon  Motel  in Saugus,  Massachusetts.



            There, on June 4, an employee found some of the stolen money-



            -identified by serial numbers and red dye--in a trash  barrel



            outside Brien's room.



                 Brien was caught on July  15, 1993.  On August  6, 1993,



            Brien  was  identified from  a  photo  array  by  three  bank


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tellers,  including  two  of   those  whom  he  had  directly



            confronted.   All three testified to this effect at trial and



            identified  Brien  in  the  courtroom.    Two  of  the  hotel



            employees also identified Brien from a photo array as the man



            who had stayed at the hotel and also identified him at trial.



            The  employee who  had  found the  dye-stained money  outside



            Brien's room testified to this effect.



                 Given the array  of eyewitnesses,  it is  understandable



            that Brien  does not  now challenge  the  sufficiency of  the



            evidence, but the nature of his defense at trial is pertinent



            to  the claims he  does raise on  appeal.  His  defense was a



            claim  of mistaken  identity, based  in part  on inconsistent



            descriptions  that  the tellers  had  given  of the  robbers'



            physical characteristics after the event.  Brien also offered



            testimony of one teller who was unable to pick Brien out from



            the  photo  array  and from  a  customer  who  picked out  an



            individual other than Brien from the photo array.



                 1.    Brien's  first  claim on  appeal  concerns  expert



            testimony.   Prior to trial, Brien sought an in limine ruling
                                                         _________



            permitting testimony  from Alexander  Yarmey, a  professor of



            psychology,  as  an  expert  witness  on  the  weaknesses  of



            eyewitness  identification.  The one-paragraph description in



            the motion  indicated that  Yarmey would  testify as  to "the



            factors that  affect memory, image  retention and retrieval,"



            and it provided  a few sentences of detail.   The trial judge


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asked  for  a proffer  of testimony;  Brien then  submitted a



            three-page  statement signed  by counsel,  somewhat enlarging



            upon   the description.



                 The next  day the  court  denied the  motion in  limine,
                                                              __________



            stating  that the proffer was too general and did not satisfy



            the  foundational  requirements  for expert  testimony  under



            Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786
            _______    _________________________________



            (1993).   The  court  made clear  that,  if the  motion  were



            renewed, the  court wanted  not the attorney's  statement but



            "testimony of the  [expert] under  oath with  respect to  the



            proposed foundation evidence."  In due course Yarmey filed an



            eight-page affidavit, which provided  about 11 paragraphs  of



            substantive opinion.  



                 In  his  affidavit  Yarmey  disclaimed  any  ability  to



            determine if a particular witness is credible or  accurate in



            making an identification.  But he set forth three elements of



            memory--observation,   retention  and   retrieval;  described



            pertinent  factors that  can undermine those  elements (e.g.,
                                                                    ____



            the  stress of being confronted with a gun; the delay between



            the event  and later  identification); and drew  attention to



            certain other sources  that may create or  compound errors in



            identification    (e.g.,    reinforcement   through    police
                               ____



            questioning;  disparities in appearance  that distinguish the



            suspect from others in a line-up or array).


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Most of Yarmey's statements  were general and but  a few



            related directly  to facts in this case.  We set forth in the



            margin  Yarmey's  most  detailed  comment  on  the  evidence,



            responding to the question, "What is [your] opinion about the



            suggestiveness  of the  photospreads  used  in  this  case?"1



            Neither  the affidavit  nor any  other submission  by Brien's



            counsel  purported  to set  forth  in  detail the  scientific



            foundations  for  any of  Yarmey's  premises  or conclusions,



            although Yarmey referred once to "the literature" documenting



            the  phenomenon of  "consistent  error" (i.e.,  multiple mis-
                                                     ____



            identification based on a common source of error).



                 Two days  later the  district judge  ruled that  "in the



            exercise of  whatever scope  of  discretion I  have," he  was



            excluding the  testimony.  The  judge expressed a  variety of



            concerns  about  the   basis  for  assumptions  in   Yarmey's



            testimony and  about "the  fit and usefulness  and misleading



            qualities"  of the testimony.  The judge stressed that he was



            not excluding expert testimony  on identification as a matter



            of law.   He also   noted the risks  of confronting the  jury


____________________



                 1"The  particular  male  photospread  in  this  instance

            (because it depicts several people of a light complexion) was

            of lesser reliability because witnesses could eliminate those

            people who do not  fit the dark or medium complexion, which I

            understand that  they observed.   This, in  itself, indicates

            suggestiveness because  of  the quality  of the  photographs.

            The female photospread is also suggestive because only  a few

            of the photographs reflect women with any makeup or earrings,

            which I understand at least one of the witnesses observed."



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with  battles of  experts  on areas  within the  common-sense



            competence of jurors.



                 The   issue   of    expert   testimony   on   eyewitness



            identification is an important  and recurring one, and behind



            it  lie issues  even  more fundamental:  what factors  should



            control the  admission of  such testimony, how  much latitude



            does  the trial judge have  in resolving the  issue, and what



            formulas  or rules constrain the decision.  In a recent case,



            we  described the  pertinent  Federal Rules  of Evidence  but



            decided the case on its facts and declined to go  very far in



            laying  down general rules.   United States v.  Shay, No. 93-
                                          _____________     ____



            2141, June 22, 1995, slip op. 13-15.  This case bears out the



            wisdom of that caution.



                 Broadly  speaking, the  expert  testimony  in this  case



            involved a  credibility determination  within the ken  of the



            ordinary  judge and  juror--unlike, say,  DNA identification.



            But  Fed.   R.  Evid.   702  permits  expert   evidence  that



            "assist[s]"  the jury; and quite possibly an expert such as a



            psychologist familiar with identification problems could give



            the  jury  background  information  about  the  mechanism  of



            memory, types  of errors, error rates,  and other information



            not commonly possessed by the jury--information that may even



            be at odds with what a judge or juror might expect.



                 But  helpfulness  is  a  matter of  degree,  and  expert



            evidence  involves  costs  and  risks--too  obvious  to  need


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recounting--that distinguish it from lay evidence about "what



            happened   here."      Daubert   itself,   recalibrating  the
                                   _______



            longstanding threshold requirement that the trial judge  find



            expert  evidence  to be  reliable, is  but  one facet  of the



            difference  in   treatment.     Indeed,  trial  judges   have



            traditionally  been  afforded  wide discretion  to  admit  or



            exclude expert evidence.  E.g., Hamling v. United States, 418
                                      ____  _______    _____________



            U.S. 87, 108  (1974).   But discretion is  not carte  blanche
                                                           ______________



            and,  in some  areas,  prior law  has  been modified  by  the



            Federal Rules of Evidence.  



                 In all events, for a range of reasons, trial courts have



            long  hesitated   to  admit  expert  evidence  purporting  to



            identify flaws  in eyewitness  identification:   for example,



            courts have said  that the jury could  decide the credibility



            issues  itself; that experts in  this area are  not much help



            and  largely offer rather  obvious generalities;  that trials



            would be  prolonged  by battles  of  experts; and  that  such



            testimony  created   undue  opportunity  for   confusing  and



            misleading the  jury.   Appeals courts have  generally upheld



            rulings  excluding  such  evidence. E.g.,  United  States  v.
                                                ____   ______________



            Fosher, 590 F.2d 381,  382 (1st Cir. 1979); United  States v.
            ______                                      ______________



            Purham, 725 F.2d 450 (8th Cir. 1984).
            ______



                 Quite recently,  several  circuits have  suggested  that



            such evidence  warrants a  more hospitable reception.   E.g.,
                                                                    ____



            United States  v.  Rincon,  28 F.3d  921  (9th  Cir.),  cert.
            _____________      ______                               _____


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denied,  115 S. Ct. 605 (1994); United States v. Stevens, 935
            ______                          _____________    _______



            F.2d 1380 (3rd Cir.  1991).  There is more  expert literature



            on  the  subject,  more  experts  pressing  to  testify,  and



            possibly   more   skepticism   about   the   reliability   of



            eyewitnesses.   E.g., Loftus and Doyle, Eyewitness Testimony:
                            ____                    _____________________



            Civil and Criminal (2d ed. 1992).  It may be that a door once
            __________________



            largely shut is now somewhat ajar.



                 We are unwilling to adopt a blanket  rule that qualified



            expert testimony on  eyewitness identification must routinely



            be  admitted or  excluded.   Our  Fosher  decision is  not  a
                                              ______



            general  bar to such testimony; that case upheld an exclusion



            as  within "the broad discretion allowed a trial court."  590



            F.2d  at 382.    But  trial  courts  are  likely  to  educate



            themselves,  and us,  by taking  these proffers  one by  one.



            Obvious concerns  are the reliability and  helpfulness of the



            proposed expert testimony, the  importance and the quality of



            the  eyewitness  evidence it  addresses,  and  any threat  of



            confusion, misleading of the jury, or unnecessary delay.



                 In this case, we sustain the  district court's ruling on



            the  ground that the district  judge made clear  his need for



            some proffer  of data  or literature underlying  the expert's



            assumptions   and  conclusions,   and  the   defense  offered



            practically nothing, despite repeated opportunities to do so.



            In  our view, this procedure  was justified both  in order to



            determine reliability under Daubert and to allow the judge to
                                        _______


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gauge whether the testimony  would be helpful to the  jury or



            would  confuse or mislead instead.   Nor is  there any reason



            offered why Yarmey could not  have supplied this foundation. 



                 Brien argues that the expert literature casting doubt on



            eyewitness  evidence  is now  so  well  established that  the



            courts  should take  judicial  notice of  it.   But  Yarmey's



            testimony   does  not   concern  a   single  long-established



            scientific principle such as whether radar can measure speed.



            Rather, Yarmey offered a  set of assertions whose helpfulness



            and reliability in this case depended  on what lay underneath



            them.    To  say  that eyewitnesses  under  stress  sometimes



            misidentify tells the jury  almost nothing beyond what common



            sense and  argument would supply; almost  everything turns on



            degree, data, comparable conditions, and other specifics.



                 If presented with a fair sample of the  underlying data,



            the district  court might  have decided  (as the trial  judge



            here offered to consider) that some of the warnings were best



            reflected   in  instructions;  that  other  portions  of  the



            proposed testimony were reliable  and helpful; and that still



            other  portions failed one or  both of these  criteria or met



            them  but   were  outweighed   by  confusion   or  misleading



            character.  Daubert, as well as common prudence, entitled the
                        _______



            judge to require such underlying information, and the failure



            to provide  it  supplies  an  adequate basis  for  the  trial



            court's decision to reject the proffer.


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There is nothing  to Brien's  alternative argument  that



            Fed. R.  Evid.  705  entitled  Yarmey  to  offer  the  expert



            testimony  without disclosing  the  underlying data,  leaving



            that to be developed by cross-examination.  Rule 705  relates



            to  the presentation of testimony at trial and, even then, is



            subject to  the  supervision  of  the trial  judge  to  avoid



            unfairness.  The rule does not impair--indeed, has nothing to



            do with--the trial judge's  right to insist that he or she be



            given  the underlying information by proffer as an aid to the



            preliminary ruling on admissibility.



                 2.  Brien's next  claim of error raises an  issue which,



            if  anything, is  even  more significant  to  the conduct  of



            criminal trials.   Every viewer of trials,  or even Hollywood



            depictions of them, is familiar  with the routine practice by



            which an eyewitness to  the crime takes the stand,  points to



            the defendant  sitting at  counsel table, and  identifies the



            defendant  as the one who  committed the crime.   Here, Brien



            complains  of the  alleged  refusal of  the  trial judge  "to



            permit  [instead]   non-suggestive  courtroom  identification



            procedures."



                 Prior  to trial  Brien's trial  counsel, who  appears to



            have provided Brien with  an energetic and inventive defense,



            began  by   moving  (with  notice  to   the  government)  for



            permission  to have  the  defendant seated  in the  spectator



            section  of  the   courtroom  during  the  trial;  and  by  a


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contemporaneous  motion (filed  ex  parte),  Brien's  counsel
                                            _________



            asked  leave  to  salt  the  audience  with  "three  or  four



            individuals  of  the same  general  description  as the  bank



            robber  . . . ."   Shortly before picking the jury, the trial



            judge,  on March 28, addressed both motions in open court, as



            follows:



                 First,  the court  said that  the proposal  to  salt the



            audience  opened  the  way  to "the  reverse  of  an improper



            identification  procedure"  by  the government,  noting  that



            Brien's proposal would allow him to bring in anyone including



            an  identical  twin.    Second,  the  court  ruled  that  the



            defendant could  sit "anywhere in the  courtroom," subject to



            limitations required by security; but the court said it could



            "have a  problem" with  the defendant switching  positions at



            will from counsel table  to audience.  Third, the  court said



            that  it  would  not  permit  ex  parte  submissions  on  the
                                          _________



            identification  procedure but  would  allow argument  by both



            sides.



                 Defense  counsel  said that  he  wanted  to discuss  the



            matter with Brien  himself.  Two days later,  Brien's counsel



            renewed  (not ex  parte)  his original  request  to bring  in
                          _________



            spectators  similar in  description  to the  bank robber  but



            offered  no  details  that  might have  allayed  the  concern



            expressed  by the trial judge.   On March  31, shortly before



            opening argument, defense  counsel asked the court to rule on


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the  renewed  motion,   amending  his   earlier  request   by



            indicating that Brien might choose to sit at counsel table if



            the motion to bring in selected spectators were denied.  



                 The trial judge then said in part:



                 I  do not write blank  checks and sign  them.  Now,

                 that's  what you're  asking me  to do  . .  . here.

                 You're not disclosing to me anything about what are

                 the arrangements that you've set up, how you expect

                 to  handle it,  and  I am  not  going to  give  you

                 complete authority to do it any way you want to and

                 give you an  advance ruling that it's  permissible.

                 As I've  said to you yesterday,  there are problems

                 here.  You're very  close to the edge, it  seems to

                 me,  of   some  problems  about  whether   you  are

                 undertaking to proceed in  a way that will  tend to

                 mislead witnesses . . . .



            The  court then denied the  motion.  Defense  counsel made no



            effort to provide any further details of his proposal.



                 On  appeal,  Brien's  appellate  counsel  has  made  the



            obvious   attack   on  the   usual   practice  of   courtroom



            identification  of the  defendant  while  seated  at  counsel



            table;  and he has cited  us to several  Second Circuit cases



            suggesting that that court might favor a defendant who sought



            a  more  balanced  form  of  courtroom  identification  where



            identification was  a  contested issue,  the defendant  moved



            pretrial for  a courtroom  line-up, and  the witness did  not



            pick the defendant out in a fair out-of-court lineup prior to



            trial.  E.g., United States v. Sebetich, 776 F.2d 412 (1985),
                    ____  _____________    ________



            cert. denied, 484 U.S. 1017 (1988).   These conditions, Brien
            ____________



            says, were met in this case.


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If Brien had  presented the court  with a detailed  plan



            for a fair in-court  line-up, and the court had  rejected the



            plan without  a plausible justification, then  on the present



            facts we  think that a significant issue  would be presented.



            But Brien's  motion is  not within a  country mile of  such a



            proposal.   As  the trial  court sensibly  explained, Brien's



            plan left room for a scenario fully capable of misleading the



            jury.   To alter the standard practice,  it was up to Brien's



            counsel to propose a plan that would guard against unfairness



            to  either side.   This,  despite ample  invitations, Brien's



            counsel declined to do.



                 This refusal  may well  have been an  entirely justified



            trial tactic.  If  counsel feared that a fairly  staged court



            room line-up  would still likely result  in identification of



            Brien  as  the  robber,  the  line-up  would  strengthen  the



            credibility   of  the   witnesses  and   undermine  counsel's



            misidentification argument to the jury.   But whether or  not



            counsel  sought  an advantage  and  retreated  when none  was



            offered, the  trial judge  was within his  discretion--and we



            think eminently right--in refusing  to endorse what the trial



            judge properly described as a blank check.



                 3.   Four additional rather compact claims  of error are



            urged  by  Brien (e.g.,  that  the  trial court  should  have
                              ____



            granted a requested continuance).  The government's answering



            brief  provides on the surface  an ample response  to each of


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the  four claims; Brien's reply brief makes no effort to meet



            the  responses.  Appraising the four claims on the merits, we



            do not think  that any of them  warrants separate discussion.



            In each instance the trial judge handled the matter properly,



            the  issue is not close, and no significant legal question is



            presented.



                 By  contrast,  the first  two  issues  in the  case--the



            expert  evidence and courtroom  identification--do raise very



            difficult  questions  that have  been  ably  briefed on  both



            sides.   But  the difficulty  of these  issues, taken  in the



            abstract, confirms the wisdom  of the trial judge's approach:



            outlining  his  legitimate  concerns  to  counsel,  providing



            opportunities  for  those  concerns   to  be  addressed,  and



            (ultimately)  insisting  on  justifications  grounded  in the



            particulars of the case.



                 Affirmed.
                 _________


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