          United States Court of Appeals
                      For the First Circuit

No. 10-2363

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                          DAQUAWN JONES,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                              Before

                       Lynch, Chief Judge,

                Boudin and Lipez, Circuit Judges.


     Rheba Rutkowski, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
     Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.



                          July 27, 2012
            BOUDIN, Circuit Judge.    In the spring of 2008, federal,

state and local agents began an investigation of drug activity in

the Green Street area of Brockton, Massachusetts.           Late in the

afternoon of June 19, 2008, Massachusetts State Trooper David

Patterson, working undercover, sought to purchase drugs at the

corner of Lexington and Green Streets.       After placing a phone call

requesting two $40 bags of crack cocaine, Patterson waited for

delivery of the drugs, sitting in a truck equipped with concealed

audio/video recording equipment.

            From his vantage across the street, Patterson could see

a group of people congregated around the driveway of 249 Green

Street.    Eventually, a man unknown to Patterson emerged from the

group and began walking towards Patterson's truck. Patterson later

recalled that the man was wearing white sneakers, a black hat on

backwards, a white Adidas shirt and gray sweatpants.          Patterson

watched the man's approach with care, wanting to be sure that he

was unarmed.

            As the man started to cross the street and move toward

the truck, a Dodge truck that Patterson had earlier seen circling

the area drove slowly by Patterson's truck. On the video recording

of   the   events,   Patterson's   concern   about   the   identity   and

intentions of the Dodge's driver are readily apparent.        Patterson

later explained that his concern was that the driver might be a

police officer unaware of the operation or someone pretending to be


                                   -2-
a police officer but aiming to rob or attack Patterson.               The man

advancing from the driveway also appeared to notice the truck and

slowed his approach and lowered his head while waiting for the

truck to pass.

          After     the   Dodge    had   passed,   the   man   who   had   been

approaching from the driveway arrived at Patterson's vehicle,

coming within 5 to 10 feet of the car, and asked "What do you

want?" Patterson responded that he had $80 and wanted two $40 bags

of crack cocaine.    The man then went back to 249 Green Street where

he conferred with the group in the driveway; he then got into a

nearby car and drove away.

          Shortly thereafter, a second unidentified man left the

group in the driveway and walked up to Patterson's car, saying:

"You want two 40's, right?           Right.   Two 40's.        You got 80?"

Patterson agreed and then exchanged the money for a bag that proved

to contain crack cocaine.         Patterson drove to the Brockton police

station where he gave the drugs to Trooper Erik Telford and briefly

gave his account of the day's events.              The next day, Patterson

turned over to Telford a DVD containing the video recording of the

drug buy described above.

          Telford was familiar with the drug trade in the area,

patrolled there regularly and knew or could recognize many of the

participants.     In the video recording, the face of the first

unidentified man is out of focus and blurry while the face of the


                                      -3-
second unidentified man in the video can be seen quite clearly.

Nevertheless, Telford (as he later testified) had no difficulty

recognizing the first man as Daquawn Jones and the second as Johnny

Richmond.    Telford secured booking photos of the two men, showed

them separately to Patterson and asked Patterson if he could

identify them.

            Patterson identified the photo of Jones as depicting the

man who had first approached the vehicle to take the order and the

photo of Richmond as the man who delivered the drugs.    Patterson,

of course, was not being asked to match the photos to the video but

to his memory of the two men as he saw them at the time of the

transaction: each had approached his truck and each had carried on

a brief conversation with Patterson.   It appears that neither then

nor later did Patterson express any doubt or uncertainty about his

identification.

            Both Jones and Richmond were arrested and indicted. They

were charged with conspiring to distribute cocaine base, 21 U.S.C.

§ 846 (2006), and with distribution (or abetting distribution, 18

U.S.C. § 2) of cocaine base within 1,000 feet of a school, 21

U.S.C. §§ 841(a)(1), 860.   While Richmond pled guilty, Jones chose

to go to trial.    Thereafter the district court was presented with

two pretrial motions to suppress or exclude evidence--one from each

side--the dispositions of which are the centerpiece of Jones'

present appeal.


                                 -4-
           First, Jones moved to suppress Patterson's out-of-court

identification of Jones when he first identified the booking photo

to Telford at the police station on the ground that it had been

secured by an unduly suggestive process and was unreliable. Jones'

request    for   suppression   extended    to    any   future    in-court

identification by Patterson as irrevocably tainted by the improper

procedures used initially.     Patterson testified at the suppression

hearing describing the events recounted above.

           The   district   court   ultimately   denied   the   motion   to

suppress, concluding that the identification process had been

"impermissibly suggestive" (legal jargon explained below) but that

the government had shown that the identification was reliable. The

arguments of the parties and the district court's reasoning are

described more fully in the merits discussion but at trial centered

around Telford's use of a single photograph rather than an array

and on the conditions of Patterson's initial look at Jones during

the buy.

           Also prior to trial, the government moved to exclude a

proposed defense expert, Dr. Steven Penrod, from testifying.

Penrod holds both Ph.D and J.D. degrees and proposed to testify

about a host of issues related to eyewitness identification: the

effect of stress on identification; the decreased accuracy of

cross-racial compared to same-race identification (Patterson and

Telford are white; Jones is black); the lack of correlation between


                                    -5-
witness confidence and accurate identification; and the influence

of suggestive identification practices.

               The government's position was that identification of

individuals was within the common experience of the jury, that such

evidence was unnecessary and potentially misleading, and that

courts commonly, although not always, reject such expert testimony.

Jones' position was that the information Penrod hoped to provide

defied in some respects the common knowledge of jurors and would be

helpful to the jury in evaluating the weight to be given to

Patterson's identification; further, Jones said, mis-identification

was a critical element of his defense.

               The district court granted the motion to bar the expert

from       testifying   but   its   position    was    more   nuanced   than   the

government's.1      In a nutshell, the court agreed that some aspects

of     Penrod's     general     concerns       about    stress,    cross-racial

identification, suggestive procedures and witness confidence would

be useful information for a jury; but, the court held, these

cautions were more efficiently, and with less risk of confusion,

conveyed by the court's intended jury instructions, whose content

and circumstances are discussed hereafter. United States v. Jones,

762 F. Supp. 2d 270, 277-78 (D. Mass. 2010).


       1
      Before and during trial, the court explained its denial of
the motion orally; it repeated the explanation, elaborating to a
limited extent, in a written memorandum six weeks after Jones'
sentencing. United States v. Jones, 762 F. Supp. 2d 270, 271-79
(D. Mass. 2010).

                                       -6-
            At trial, the government rested heavily on Patterson's

eyewitness testimony but in addition Telford testified to his

identification of Jones from the video; the jurors themselves saw

the video; Brockton Police Detective George Almeida testified to

Jones' regular presence in the area of the transaction in the first

half of 2008, including on June 17, 2008 (two days before the

transaction), when he was seen with Johnny Richmond; and the

government introduced an arguably incriminating recorded telephone

conversation (discussed in more detail below).

            Acting on his promise, the district judge did, at Jones'

request, issue relatively extensive jury instructions touching on

the subjects of Penrod's proposed testimony.         The most relevant

part   of   the   instructions   provided   that,   in   evaluating   the

identification:

                    You may take into account the strength
            of    the   later    identification   and    the
            circumstances     under    which    the    later
            identification     was    made.       Was    the
            identification by a witness influenced by the
            circumstances under which the identification
            was made.    If you think it was you should
            examine that identification with great care.
            You want to consider the length of time or the
            relative shortness of the time between the
            first, the first observation of the person and
            the    later   identification.        Was    the
            photographic      identification      procedure
            conducted afterwards suggestive in any way.
            For example, an identification made when a
            witness chooses a photo from a group of photos
            tends    to   be    more   reliable    than   an
            identification made from a single photograph.
            It is not forbidden by the law to identify
            from a single photograph. But you heard the

                                   -7-
stipulation about we don't treat police
officers any different, or at least there's
nothing in the manuals that say treat police
officers any different.    And I do tell you
that   it's   generally  believed   that   an
identification of a person made from a group
of photographs tends to be more reliable than
one made from a single photograph. Now, you
may rely upon this. That's left to you. I
don't say anything about it. But you should
understand that.

       Consider these other things. You may
consider these other things.     What was the
witness's state of mind at the time of the
observation. There are studies that show that
if a witness is afraid, distracted, under
stress, then the witness's capacity to
perceive what he says he perceives and
remember it, that's reduced.         Were the
witness, the eyewitness witness and the person
he's identifying, were they of different
races. There are studies that tend to show
that when a witness and the person he is
identifying are of different races the
identification tends to be less reliable than
if both persons are of the same race. These
studies reveal that even people with no
prejudice against other races and people who
have substantial contact with persons of other
races will experience some difficulty in
accurately identifying members of a different
race. And quite often people don't recognize
this difficulty in themselves.

       Lastly, or last on this list, you can
also consider that studies show that the
reliability of an identification doesn't
really depend upon how positive the person is.
The   reliability    depends    on   all    the
circumstances.

       Now, I make mention of studies, and
fine, there are these studies and they show
what I've said they show. But studies are of
groups of people, a statistically significant
group of people generally.   They're not the
people in this case. No study has been done

                     -8-
               or could be conducted about the people in this
               case. And you see that's what's left to the
               jury. It's up to you to decide. I need you
               to understand the parameters, the strengths
               and the concerns of eyewitness testimony, but
               how that applies in this case is left to you
               under your oath as jurors.

               Jones was convicted by the jury on both counts and

sentenced as a career offender to 120 months' imprisonment.                After

Jones' appeal, we granted a partial remand of Jones' case to the

district court for resentencing in light of United States v.

McGhee,   651     F.3d   153   (1st     Cir.   2011).    The   district   court,

withdrawing the career offender designation, imposed a new sentence

of 33 months, mooting sentencing claims that Jones had originally

sought to raise on the appeal.

               On this appeal, Jones does not challenge the adequacy of

the evidence but argues that the district court erred in refusing

to suppress Patterson's identification of Jones as the participant

in the drug transaction and in excluding Jones' proffered expert

witness, Dr. Penrod. The first issue is fact-specific and need not

detain    us    long;    the   second    involves   a   matter   of   continuing

importance.       The standard of review depends, as usual, on the

precise issue or issues and not on the general topic.

               With respect to the suppression motion, it should be made

clear at the outset that evidence is not normally suppressed

because it is debatable or arguably unreliable--much testimony at

trial is of this character--and customarily cross-examination is


                                         -9-
the means of testing the strength of such evidence.                   See Perry v.

New   Hampshire,    132   S.    Ct.   716,     723   (2012).      But   eyewitness

identification evidence is subject to special limitations where, at

a first step, the opponent establishes that it was developed in an

unnecessarily suggestive manner.

            It is one thing to squeeze out of the lemon whatever

juice it may provide; it is another when the government itself

developed    the    evidence      and    failed      to    take    sensible    and

straightforward steps to ensure its reliability.                   Thus, where a

court     finds    that   the     identification          procedure     used   was

unnecessarily suggestive, suppression is appropriate unless the

government carries the burden of showing, under the totality of the

circumstances, that the identification was still reliable.                 Manson

v. Brathwaite, 432 U.S. 98, 109-14 (1977); United States v. Rivera-

Rivera 555 F.3d 277, 283 (1st Cir.), cert. denied, 130 S. Ct. 344

(2009).

            Here, the district court agreed with Jones that the

method used to identify him was unnecessarily suggestive and that

it would have imposed little if any additional burden on the police

to have shown Patterson several different photographs including one

of Jones.     The issue on appeal is whether the judge erred in

concluding that the circumstances surrounding the identification

established that it was nevertheless reasonably reliable.




                                        -10-
           It is customary to say that we review the district

court's findings of fact for clear error and its conclusions of law

de novo, United States v. Fernandez, 600 F.3d 56, 58 (1st Cir.

2010), but the legal rules here are not in dispute and the factual

circumstances are pretty well established on the record.                   The

phrase "abuse of discretion" is often used in such cases, United

States v. Brown, 510 F.3d 57, 66 (1st Cir. 2007), entailing

reasonable latitude for case-specific decisions, see United States

v. Bater, 594 F.3d 51, 54 n.1 (1st Cir. 2010).

           Here,   the     district    court's     ruling    was   assuredly

reasonable.     Factors     that   courts   emphasize   in    assessing     an

eyewitness' reliability include the opportunity to view the suspect

at the time of the crime; the witness' degree of attention; the

accuracy   of   the      description   of    the    defendant      prior    to

identification; confidence at the time of identification; and the

length of time elapsed between the crime and the identification.

Manson, 432 U.S. at 114; Rivera, 555 F.3d at 284.

           All appear to be matters of common sense, although one--

the next to last--needs rephrasing to make it so, for the witness'

lack of confidence is certainly a reliable warning sign, while the

presence of confidence is probably closer to a neutral factor.

Anyway, anything that rationally bears on reliability is fair grist

for argument; and the multiplicity of factors and variety of fact




                                    -11-
patterns is why it makes sense to defer in some measure to the

trial judge who is closest to the circumstances.

            Here, the district judge noted that the transaction

occurred in full daylight and that Patterson had about ten or

fifteen seconds to get a good look at Jones.                The judge also

concluded that Patterson's degree of attention would have been high

because he was a trained law enforcement officer whose job was to

identify the people who sold him drugs.             Concerning the Dodge

truck, the district judge inferred that Patterson's concern would

"heighten his attention" rather than distract him, as Jones argued.

Finally, the identification was made the day after the event and

not on some remote later occasion.      Jones, 762 F. Supp. 2d at 273.

            Jones says that Patterson had only seconds to view the

suspect who kept his head down when the Dodge appeared, and could

not recall identifying features about the suspect beyond his

clothing. The judge's conclusion regarding the truck is debatable,

of course, and depended in some measure on how he understood and

evaluated   Patterson's   testimony;    but   the   other    points   surely

support the judge.

            This leaves Jones with arguments, such as those his

expert was prepared to develop, that Jones did in fact present to

the judge and can as readily make to us without any need for the

expert: that stress can hinder identification, that cross-racial

identifications are often more difficult, and that a witness can be


                                 -12-
highly confident but wrong. But in the end Paterson saw Jones face

on and not far away, identified him from a photograph the next day,

and   his    identification   is   clearly    reliable    enough   to    avoid

exclusion under Manson and Rivera.

             The standard being applied is meant to screen out only

evidence that is clearly unreliable and not to supplant the jury's

ordinary function of weighing what the witness says and choosing

the weight to accord it.      It is for this reason that "it is only in

extraordinary cases that identification evidence should be withheld

from the jury."     United States v. de Jesus-Rios, 990 F.2d 672, 677

(1st Cir. 1993) (citations and internal quotation marks omitted).

Whether the jury was given the right tools to assess the evidence

is a separate question.

             Penrod's testimony is urged by Jones to be one of those

tools, and at the outset we note that the government did not

challenge     Penrod's   qualifications      or   the   reliability     of   the

information that he sought to offer, see Fed. R. Evid. 702; Daubert

v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993), but instead

focused on whether his proposed testimony was within the common

understanding of the jury and had the potential to confuse or

mislead the jury, see Fed. R. Evid. 403, 702.

             Relevant lay testimony, unless it fails the tests of Rule

403, is presumptively admissible; but expert testimony is another

story.      The expert is rarely a percipient witness to the events,


                                    -13-
and sometimes (as here) expert testimony is at best helpful rather

than essential; jurors cannot perform DNA analyses in the jury box

but     can    usually    make     reasonable       judgments       about    eyewitness

identifications.         And there can be close cases in determining the

need for or importance of expert advice.                 See, e.g., United States

v. Shay, 57 F.3d 126, 133-34 (1st Cir. 1995).

               The use of experts creates costs of its own: distraction,

multiplication of cost, and the loss of valuable time in stand-offs

of dueling experts operating at a high level of generality.                        See

United States v. Brien, 59 F.3d 274, 277 (1st Cir.), cert. denied,

516 U.S. 953 (1995).             Understandably, trial judges tend to be

cautious about opening the door to "identification" experts who, if

allowed without adequate justification, would likely lead both

sides     to    seek     expert       testimony     in      every     case    involving

identification issues.

               Still,     it     is    untenable      to      argue     that    expert

identification          evidence      is   always     and     in    every    situation

superfluous.        The threshold for potential expert testimony is

merely whether expert evidence can help the jury, Fed. R. Evid.

702, and while several of Penrod's basic points could be made by

counsel in argument (e.g., the effects of stress), this might not

be true of all. Anyway, there is obviously a difference between an

attorney's appeal to common experience in closing argument and a

blow-by-blow presentation by an impressive expert.


                                           -14-
           The question whether such expert evidence should be

admitted has become a recurring one;2 and, as circumstances vary

from case to case, this court has declined to lay down a general

rule. Brien, 59 F.3d at 277. The importance of the identification

matters (it may be central, cumulative, or somewhere in between);

so, too, the nature of the proposed expert testimony; and, as the

district court noted, the possibilities include alternative means

of providing helpful information to the jury, including the use of

jury instructions.

           In this instance, we agree that the identification by

Patterson was of central importance; that his opportunity to see

the first visitor to the car was brief and attended by some

distraction and perhaps anxiety; and that information bearing on

the   effects   of   stress,   witness   confidence   and   cross-racial

identification would be helpful to the jury in the present case (if

supported by the relevant studies, as the district judge believed

to be true).    Indeed, the district judge had little hesitation in

concluding that the jury would be helped by the information.




      2
      Compare cases upholding the exclusion of expert testimony,
both in this circuit, Brien, 59 F.3d at 277; United States v.
Rodríguez-Berríos, 573 F.3d 55, 70-72 (1st Cir. 2009), cert.
denied, 130 S. Ct. 1300 (2010), and others, e.g., United States v.
Bartlett, 567 F.3d 901, 905-07 (7th Cir. 2009), cert. denied, 130
S. Ct. 1137 (2010); United States v. Lumpkin, 192 F.3d 280, 288-89
(2d Cir. 1999), with cases reversing such exclusion, e.g., United
States v. Brownlee, 454 F.3d 131, 140-44 (3d Cir. 2006); State v.
Clopten, 223 P.3d 1103, 1106-18 (Utah 2009).

                                  -15-
              However, it was within the district court's province to

provide this information through instructions rather than through

dueling experts.        Penrod's proposed testimony aimed at providing

background information--not an opinion about facts at issue here

like the identification of a particular fingerprint or firearm.

The   judge    was    fully   entitled     to    conclude   that     this   general

information could be more reliably and efficiently conveyed by

instructions rather than through dueling experts.

              Such    instructions   have       become   more   common      in   this

evolving area.        E.g., American Bar Association Policy 104D: Cross-

Racial Identification, 37 Sw. U. L. Rev. 917, 921-22 (2008). True,

in some cases--say, identifying specific fingerprints or matching

a bullet to a gun barrel--there is no substitute for testifying

experts if the parties are at odds; but the kinds of general

observations about weaknesses in eyewitness testimony such as those

Penrod proposed to develop in this case can be provided through

instructions while avoiding certain of the risks and costs of

dueling experts.

              Jones    also   contends    that    the    exclusion    of    Penrod's

testimony deprived him of his constitutional rights to present a

meaningful defense and to present witnesses in support thereof.

See Washington v. Texas, 388 U.S. 14, 17-19 (1967); Brown v. Ruane,

630 F.3d 62, 71-72 (1st Cir. 2011).               But this adds little to the

analysis,      for     converting    the        evidentiary     claim       into   a


                                         -16-
constitutional claim does not ensure admissibility of the evidence;

"the right to present a defense does not trump valid rules of

evidence." United States v. Pires, 642 F.3d 1, 13 (1st Cir. 2011).

             While we agree that the district judge properly handled

the matter in this case, the suitability of this particular set of

instructions raises a separate issue.                 At trial, the government

raised terse questions about the substance of certain of the

individual instructions.         Being satisfied with the outcome of the

trial,   however,   the       government      on    appeal   has   not   identified

individual passages in the instructions with which it may disagree

and we have no occasion to consider any objections or endorse

particular language.

             The government was forewarned by the district court when

the court excluded the defense expert that the court would deal

with   the   subject     in    instructions;        but    while   Jones    tendered

instructions     somewhat       along   the        lines   of   the   instructions

ultimately given, the government proposed only bland and familiar

language     virtually    unrelated      to    the    cautions     sought     by   the

defendant.      And, at the charge conference, the government did

little to help the judge tailor or soften the content.                     It is free

in the future to argue for, and provide supporting information, in

favor of different language.

             Jones' final issue on appeal is his objection to the

district court's decision to allow the government to introduce a


                                        -17-
portion of a recorded telephone call between Jones and a friend

that occurred on May 2, 2010, while Jones was in jail (the jury was

not told of the location).     The essence of the phone call is as

follows:

           Jones: One of my co-d's is rattin', too, dog,
           that shit's got me hot.

           Friend: Yeah, hmmm.

           Jones: No doubt. When I found out . . . it's
           like, he's like my brother, dog.    Now he's
           ratting.

           Friend: Oh, yeah?

           Jones: Yeah, he's a rat.

           Jones objected to admission of the phone call, arguing

that at the time of the call, he did not know that Richmond had

pled guilty or what he had said in his plea colloquy; this had

occurred roughly three weeks before the phone call but not in

Jones' presence.   He also argued that the phone call was highly

prejudicial, Fed. R. Evid. 403, was not an admission, Fed. R. Evid.

801(d)(2), and that it would be even more prejudicial if Richmond

refused to testify (which is what then occurred).

           An admission is anything a party said out of court when

offered against him by an adversary, Fed. R. Evid. 801(d)(2), so

the only pertinent objections are relevance and undue prejudice.

Relevance is obvious: the statements do not compel, but clearly

permit, an inference that Jones is talking about Richmond even if

it is uncertain how Jones learned of the possibility or even

                                 -18-
whether he was mistaken.          Yes, Jones could be talking about a

different rat and different crime; but his counsel was free to, and

did in fact, argue weaknesses or alternative interpretations to the

jury.

            As to undue prejudice, his "street language" might, as

Jones argues, displease the jury; but it is fairly tame, the

inference of guilt is important because Jones' defense was mistaken

identity,    and    the    Rule   403   standard   is   weighted     toward

admissibility      since   prejudice    must   "substantially"     outweigh

probative value.        Additionally, this is a classic exercise of

trial-judge discretion which is "subject to great deference,"

United States v. Bayard, 642 F.3d 59, 63 (1st Cir.) (citation and

internal quotation marks omitted), cert. denied, 131 S. Ct. 2944

(2011), and was not here abused.

            Affirmed.




                                    -19-
