                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3638
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

ANDRE WELCH,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 02 CR 818—Blanche M. Manning, Judge.
                          ____________
      ARGUED APRIL 15, 2004—DECIDED May 27, 2004
                     ____________



  Before FLAUM, Chief Judge, and MANION and ROVNER,
Circuit Judges.
  FLAUM, Chief Judge. Andre Welch was convicted of the
robbery of Illiana Federal Credit Union on February 28,
2003. He now appeals his conviction and argues that the
district court abused its discretion by excluding expert
testimony regarding the possible inaccuracy of eyewitness
identifications. For the reasons stated herein, we affirm.


                        I. BACKGROUND
 On August 21, 1997 at approximately 11:20 a.m., there
was a bank robbery at the Illiana Federal Credit Union in
2                                               No. 03-3638

Calumet City, Illinois. According to the bank teller, the
robber approached her teller window and gave her a note
instructing her not to make a sound or set off any alarms
and to put all of the money into a bag. The robber placed a
blue vinyl bag onto the counter in front of the window, and
the teller saw that the bag had a brown handle sticking out
of it that appeared to be the handle of a gun. Upon seeing
what she believed to be a gun, the teller complied with the
robber’s instructions and filled a bag with money. The
robber then grabbed the bag as well as his own blue vinyl
bag and ran out of the bank.
  Throughout this experience the bank teller was extremely
frightened and upset. She estimates that she saw the
robber for only thirty seconds and that her powers of
observation were negatively affected due to her heightened
emotional state. Still, the teller did give a general descrip-
tion of the robber as being an African-American male be-
tween 5'10" and 6' tall and 160-180 pounds. The teller also
noted that the robber was wearing a long-sleeve button-
down blue denim shirt with a t-shirt underneath, denim
jeans, a dark-colored baseball cap, and sunglasses. Addi-
tionally, the teller viewed the bank surveillance videotape
after the robbery and positively identified the individual on
the tape as the robber.
  This identification was corroborated by a bank customer
who waited in line directly behind the robber for five min-
utes. Although the customer never got a good look at the
robber’s face, he described him as an African-American
male approximately 5'10" or 5'11" tall, weighing between
170-180 pounds, and wearing blue jeans, a denim shirt, a
hat, and sunglasses. The customer also viewed the bank’s
surveillance videotape and confirmed that the man depicted
on the tape was the robber.
 Nearly five years later, on August 20, 2002, Andre Welch
was indicted and charged with one count of robbing the
No. 03-3638                                                3

Illiana Federal Credit Union. Welch was not linked to the
crime by any fingerprints, nor was he identified in a line-up
that he had participated in on September 8, 1997 where the
bank teller made a tentative identification of another
individual. However, Welch did match the general descrip-
tion given by the bank teller and bank customer. Namely,
Welch is an African-American male and at the time of the
crime he was 5'10" or 5'11" tall and weighed 165-175
pounds. Moreover, a search of Welch’s house uncovered
an air gun with a brown handle similar to the gun the teller
saw, as well as a family photograph where Welch was
wearing a baseball hat and sunglasses similar to those
worn by the bank robber.
   Welch was also linked to the bank robbery by three
individuals who knew Welch and believed that he was the
person depicted in the bank surveillance videotapes. The
first of these individuals was Steven Austin, Welch’s former
roommate and co-worker. In August 1997, Austin had
known Welch for a year and a half and had lived with him
for a few months. When asked after the robbery if he rec-
ognized the person depicted in the bank’s surveillance
videotape, Austin stated that he had no doubt that the
robber was Andre Welch. He recognized the sunglasses the
robber was wearing as similar to those worn by Welch, and
examined the face in the photograph carefully to determine
that it was indeed Welch depicted in the picture.
  The second person who recognized Welch as the man in
the bank surveillance videotape was Lorraine Cook. Cook
worked with Welch every day for two or three weeks in
August 1997. According to Cook, Welch typically wore jeans
and a button-down shirt with a t-shirt underneath to work.
When shown the surveillance videotape from the bank,
Cook stated that she had no doubts that the robber was
Welch. First, Cook recognized the clothing as similar to
clothing usually worn by Welch. Also, Cook found the
4                                             No. 03-3638

posture of the bank robber to be the same as Welch’s pos-
ture when he had been standing for a long period of time.
  Welch’s ex-wife, Judith Welch, also recognized the man in
the bank photographs as Andre Welch. Judith and Andre
Welch were married for twelve years and lived together for
eleven years. They had three children together, but sepa-
rated in 1996 after Judith discovered that Andre Welch was
having an extramarital affair. When Judith was shown the
bank surveillance tapes, she testified that she was com-
pletely certain that Andre Welch was the robber. Judith
testified that the shirt worn by the robber looked exactly
like a shirt she had purchased for Andre Welch when they
were married. She also identified the sunglasses as sun-
glasses that Andre Welch wore in May 1997 when the two
met at a train station. Furthermore, Judith believed that
the running shoes worn by the robber were those that
Andre Welch typically wore. Finally, when asked what
particularly about the photographs made her believe it was
Andre Welch, Judith replied, “[w]hen I looked at the
photographs, I just did not pick out one specific thing. I
recognized the individual. I know his features, I know what
he looks like.”
   Prior to Welch’s trial, Welch filed a “Notice of Expert
Testimony Concerning Eyewitness Identification and
Human Memory and Perception.” Welch argued that Dr.
Otto Maclin, a psychologist in the field of witness identi-
fications, memory, and perception, should be allowed to
testify for the defense regarding witnesses’ propensity to
identify a defendant based upon their familiarity with the
defendant’s clothes (known as “clothing bias”) and wit-
nesses’ tendencies to misidentify defendants based upon
factors of which the witness is not aware. The expert also
would have testified that memory diminishes over time
rather than improves over time. In response, the govern-
ment moved in limine to exclude the expert’s proposed tes-
timony, arguing that it would not assist the jury in this
No. 03-3638                                                   5

case. The district court agreed with the government and
excluded Dr. Maclin’s testimony.
   At trial, the government presented the testimony of
Steven Austin, Lorraine Cook, and Judith Welch. In ad-
dition to identifying Andre Welch in the bank photographs,
Austin also testified that Welch had made incriminating
statements regarding bank robbery. Specifically, the week
prior to the bank robbery, Welch asked Austin if he was
interested in making extra money. When Austin replied
that he was, Welch said, “If I tell you, I’ll have to kill you.”
Later that day, Austin again asked the defendant how to
make extra money, and the defendant replied, “banks.”
Austin knew that Welch did not work at a bank and had
never been employed as a banker. The government also
provided evidence at trial that during the week of August
17, 1997, Welch normally worked the 7 a.m. to 3 p.m. shift,
but on the day of the robbery Welch did not arrive at work
until 2 p.m. It was a thirteen-minute drive from Illiana
Federal Credit Union to Welch’s workplace. Based upon this
evidence, Welch was found guilty of the bank robbery of
Illiana Federal Credit Union at the conclusion of a three-
day jury trial.


                       II. DISCUSSION
  Welch’s sole argument on appeal is that the district court
erred by excluding Dr. Maclin’s testimony on eyewitness
identification and human memory and perception. Given
that both parties agree that the district court properly
followed the framework set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), we review the
district court’s decision to exclude the testimony for an
abuse of discretion. See United States v. Crotteau, 218 F.3d
826, 831 (7th Cir. 2000). In attempting to show that the
district court did abuse its discretion, Welch faces an uphill
battle against the long line of Seventh Circuit cases holding
6                                                No. 03-3638

that district courts did not commit abuses of discretion by
excluding expert testimony regarding the reliability of
eyewitness identifications. See, e.g., Crotteau, 218 F.3d at
833; United States v. Hall, 165 F.3d 1095, 1105 (7th Cir.
1999); United States v. Daniels, 64 F.3d 311, 315 (7th Cir.
1995); United States v. Larkin, 978 F.2d 964, 971 (7th Cir.
1992); United States v. Curry, 977 F.2d 1042, 1052 (7th Cir.
1992). These cases reflect the great deference that this
Court grants to district courts, which have “first-hand
exposure to the witnesses and the evidence as a whole” and
therefore have the “ability to gauge the impact of the
evidence in the context of the entire proceeding.” Crotteau,
218 F.3d at 831.
  The admissibility of expert scientific testimony is gov-
erned by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. at 589-92. Daubert established a two-part test for
district courts, which must determine first whether the
proposed expert’s testimony reflects valid “scientific knowl-
edge,” and if so, whether this testimony “will assist the trier
of fact to understand or determine a fact in issue.” Id. at
592. In this case, both parties agree that Dr. Maclin utilized
reasoning and methodology that was scientifically valid.
The only disputed issue is thus whether this information
would have been of assistance to the jury.
  Welch contends that an expert witness on eyewitness
identification would have assisted the jury because the
government’s case depended almost exclusively on eyewit-
ness identifications and Dr. Maclin would have testified
that none of these identifications were as credible as they
seemed to be. For example, Judith Welch testified that she
recognized Andre Welch in the photograph based in part on
the clothes he was wearing. In response, Dr. Maclin would
have explained to the jury the theory known as “clothing
bias” which posits that the possibility of misidentification
from photographs increases when the person making the
identification believes that she recognizes an article of
No. 03-3638                                                  7

clothing worn by the person in the photograph. Addition-
ally, although Steven Austin examined the face of the bank
robber closely to determine if it was Welch, Dr. Maclin
would have explained that misidentification can occur when
the witness views someone structurally similar to someone
the witness knows. Finally, Lorraine Cook testified at trial
that she was certain that Welch was the robber, but on
cross-examination Cook agreed that when the FBI first
approached her five years before the trial, she merely stated
that she believed Welch was the robber. Dr. Maclin would
have attacked Cook’s credibility with testimony regarding
how human memory generally diminishes over time rather
than improves over time.
  We are not persuaded by Welch’s arguments that the
proposed testimony would have assisted the jury in this
case. As Welch acknowledges, expert testimony is helpful to
the jury if it concerns a matter beyond the understanding
of the average person, assists the jury in understanding
facts at issue, or puts the facts in context. See Fed. R. Evid.
702; United States v. Mansoori, 304 F.3d 635, 653-54 (7th
Cir. 2002). We do not believe that Dr. Maclin’s proposed
testimony fits into any of these categories. Although the
average person may not know what the term “clothing bias”
means, it is common knowledge that one may mistake a
person for someone else who is similarly dressed. Moreover,
the typical juror would know that two people who are
structurally similar are more likely to be confused for each
other than are dissimilar individuals. Finally, it does not
require an expert witness to point out that memory de-
creases over time. Where expert testimony “addresses an
issue of which the jury is already generally . . . aware,” such
testimony does not assist the jury. Hall, 165 F.3d at 1104.
  Even if this type of information would be enlightening
to an average jury, Welch did not demonstrate a proper “fit”
between the proposed testimony and the eyewitness
identifications in this particular case. Unlike most eyewit-
8                                                No. 03-3638

nesses, the eyewitnesses in this case knew the defendant
very well prior to the crime. Additionally, these eyewit-
nesses had ample opportunity to view the bank surveillance
photographs for as much time as they needed while in a
stress-free environment. However, Welch’s motion to utilize
Dr. Maclin’s testimony was not specific to this category of
eyewitness identification. Without a better link to the facts
of the case, it was well within the district court’s discretion
to exclude general assertions about clothing bias and
common mistakes made by eyewitnesses.
  As we did in United States v. Hall, 165 F.3d 1095, 1107
(7th Cir. 1999), we further support our conclusion that the
district court did not abuse its discretion by looking at other
factors surrounding the evidence regarding eyewitness
identification. In Hall, this Court identified three “addi-
tional considerations” for appellate review when determin-
ing whether a district court abused its discretion. These
three considerations were whether: (1) the defense had an
opportunity to thoroughly cross-examine all of the eyewit-
nesses; (2) the district court gave the jury an instruction on
the reliability of eyewitness identification; and (3) substan-
tial corroborating evidence implicated the defendant as the
perpetrator of the crime. See id. Like in Hall, the defense in
this case had an opportunity to throughly cross-examine all
of the eyewitnesses. In fact, Welch’s counsel took full
advantage of this opportunity by extensively cross-examin-
ing Steven Austin, Lorraine Cook, and Judith Welch
regarding how well they knew Welch, why they became
more certain of their identifications either over time or after
they were granted immunity from prosecution, and the fact
that the clothes worn by the bank robber were not unique.
In addition to the cross-examinations, the jury also was
given cautionary instructions regarding the credibility of
witnesses and identification testimony. And while the
corroborating evidence in this case was not as substantial
as the defendant’s confession in Hall, id. at 1108, we note
No. 03-3638                                                 9

that the jury was able to observe Welch’s appearance and
demeanor at trial and compare it to the surveillance
photographs and videotape themselves. The jury therefore
had an excellent opportunity to determine personally
whether they believed the eyewitness testimony that Welch
was the individual depicted in the bank’s surveillance
videotapes.
  This is not to say that similar testimony would never be
helpful to a jury, or that it would have been an abuse of
discretion for the district court to allow Dr. Maclin’s testi-
mony. But based upon the facts of this case, where the
identification witnesses knew the defendant for a substan-
tial period of time prior to viewing the photographs and
videotape and had as much time as they needed to analyze
the photographs and videotape, it was certainly not an
abuse of discretion for the district court to exclude the tes-
timony and instead allow extensive cross-examination and
jury instructions regarding the possible inaccuracies that
accompany eyewitness identifications.
  This case is distinguishable from United States v. Alexan-
der, 816 F.2d 164, 168-69 (5th Cir. 1987), where the Fifth
Circuit found reversible error when the district court
excluded expert testimony about photographic comparisons.
Although the contextual facts are similar—in Alexander,
the only evidence linking the defendant to the crime was
the testimony of eyewitnesses who compared the defen-
dant’s photograph to crime scene photographs— the
proposed expert testimony is significantly different. Specifi-
cally, Alexander wanted to present the testimony of one
expert witness who was an orthodontist specializing in
cephalometrics (the scientific measurement of dimensions
of the head) and another expert witness who was an agent
with the Federal Bureau of Investigation with expertise in
photographic comparisons. Id. at 167. Both experts would
have testified that it was impossible for the defendant to be
the person in the crime scene photographs. Id. The Fifth
10                                              No. 03-3638

Circuit determined that these witnesses would have
assisted the jury because they would have been able to
show the jury “claimed specific differences in . . . facial
features which were revealed as a result of . . . scientific
analysis of the photographs.” Id. This is the type of com-
parison that cannot be made without expert assistance. Id.
  The expert testimony proposed by Welch, however, was
not direct evidence regarding whether he committed the
crime. Dr. Maclin would not have offered any opinion on
whether Welch was actually portrayed in the bank’s sur-
veillance photographs. Rather, Dr. Maclin’s only purpose
was to question the credibility of the witnesses who believed
that Welch was depicted in the photographs. As this Court
has often stated, determining the credibility of witnesses is
one of the jury’s critical functions and is “generally not an
appropriate subject matter for expert testimony.” Hall, 165
F.3d at 1107. We therefore conclude that the district court
acted properly by excluding Dr. Maclin’s testimony.


                     III. CONCLUSION
  We emphasize that expert testimony regarding eyewit-
ness identification, memory, and perception is not per se
unhelpful. However, the usefulness of such evidence in a
particular case is best decided by the district court and
given great deference by this Court. For the foregoing rea-
sons, the decision of the district court is AFFIRMED.
No. 03-3638                                         11

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—5-27-04
