                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                     September 28, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                          No. 05-30317


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                             versus

                        ALFRED McGINNIS,

                                                Defendant-Appellant.



          Appeal from the United States District Court
              for the Eastern District of Louisiana
                          (2:04-CR-196)


Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Alfred McGinnis was convicted of: armed bank robbery, in

violation of 18 U.S.C. § 2113(a) & (d); and brandishing a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c)(1).

He challenges the exclusion of expert-witness testimony on the

subject of witness-identification errors.   AFFIRMED.




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                  I.

     At approximately 3:30 p.m. on 15 June 2004, a black male of

medium height and stocky build robbed a bank in New Orleans,

Louisiana.    The robber wore a hat, sunglasses, and painter-style

jeans with white stitching; carried a dark-colored duffel bag and

gun; pointed the gun at two bank tellers while ordering the duffel

bag to be filled with money; and began to count down from ten.       The

tellers complied, and the robber escaped on foot with $9748 in the

duffel bag.

     On 19 June, four days after the robbery, a headshot photo of

the robber, taken from a surveillance camera inside the bank, was

published in New Orleans’ newspaper, The Times-Picayune, requesting

readers to identify the robber.        Nine individuals made telephone

calls based on the photograph.        Two callers identified McGinnis;

seven others identified seven other persons.        The two callers who

identified    McGinnis   were   his    co-workers    at   the   Veterans

Administration Medical Center.    FBI Agents then interviewed three

other co-workers, who also identified McGinnis as the robber in the

photograph; a few of these witnesses said the robber looked like

McGinnis because of the distinctive way he tilted or positioned his

head.   One of the witnesses, McGinnis’ supervisor, stated McGinnis

had left work one month before the robbery and had not returned.

     Relying on these recognition witnesses, the FBI executed

arrest and search warrants for McGinnis and his home. In McGinnis’



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bedroom closet, FBI Agents found painter-style jeans and a duffel

bag similar to that used in the robbery.               Following his arrest,

McGinnis called his wife from jail, and she told him “eight

dollars” were missing, in the context of a conversation where

McGinnis and his wife lamented they could no longer afford a $399

swimming pool.

       McGinnis intended to call Dr. Robert Shomer, a psychologist,

as an expert witness at trial.            The Government moved in limine,

however, to exclude his testimony.           McGinnis responded that Dr.

Shomer would address psychological problems resulting from witness

identifications.     In addition, in an earlier letter to the court,

responding to the Government’s motion, McGinnis’ counsel stated his

intent to rely on Dr. Shomer’s expertise relating to:                “factors

that may impact a witness’s ability to process, store and recall

information from a stressful event”; and “problems relating to

misidentification by eyewitnesses or other witnesses who have

relied on photographs to identify alleged perpetrators”.                     The

district court decided to rule on the Government’s motion after it

presented its case-in-chief at trial.

       At the conclusion of the Government’s case, Dr. Shomer was

questioned outside the jury’s presence regarding his potential

testimony.   Based on this examination, the district court excluded

that    testimony,   stating   “the       jury   can    fully   appreciate    a

misidentification, if, in fact, one occurred”.


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     On   3   November     2004,    the     jury   found     McGinnis     guilty.

Subsequently,   he   was     sentenced,       inter   alia,     to   60    months

imprisonment for armed bank robbery and 84 months for brandishing

a firearm during a crime of violence, to be served consecutively.

                                      II.

     McGinnis   raises     two     issues    on    appeal.      Primarily,     he

challenges the exclusion of his expert’s testimony. Concomitantly,

he presents a constitutional challenge concerning the resulting

harm to his defense.     The exclusion of expert-witness testimony is

reviewed for an abuse of discretion. Kumho Tire Co. v. Carmichael,

526 U.S. 137, 152 (1999); United States v. Dixon, 413 F.3d 520, 523

(5th Cir. 2005).

                                      A.

     The admissibility of expert testimony is governed by the

Federal Rules of Evidence, which instruct:

          If scientific, technical, or other specialized
          knowledge will assist the trier of fact to
          understand the evidence or to determine a fact
          in issue, a witness qualified as an expert by
          knowledge, skill, experience, training, or
          education, may testify thereto in the form of
          an opinion or otherwise, if (1) the testimony
          is based upon sufficient facts or data, (2)
          the testimony is the product of reliable
          principles and methods, and (3) the witness
          has applied the principles and methods
          reliably to the facts of the case.

FED. R. EVID. 702.     Under this rule, and pursuant to Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), “expert

testimony is admissible ... only if it is both relevant and

                                       4
reliable”.    Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244-45 (5th

Cir. 2002).     “In Daubert, the Supreme Court stated that Rule 702

requires that     expert   testimony       ‘assist   the   trier   of   fact    to

understand the evidence or to determine a fact in issue’.”                Id. at

245 (quoting Daubert, 509 U.S. at 591).          Thus, under Rule 702, even

a qualified expert need not be permitted to testify if, in the

district court’s broad discretion, the testimony would not assist

the jury.    Dixon, 413 F.3d at 524.        An example is if the testimony

would provide information that is a matter of common knowledge.

United States v. Harris, 995 F.2d 532, 534 (4th Cir. 1993).

     Regarding experts called to provide psychological theories,

“any problems with perception and memory are easily understood by

jurors and can be adequately addressed through cross-examination”.

United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986).                   Our

court has also acknowledged that the results of “psychological

studies are largely counter-intuitive, and serve to explode common

myths   about   an   individual’s   capacity         for   perception”.        Id.

(emphasis in original; internal quotation marks omitted).

     In Moore, this court examined, and affirmed the exclusion of,

expert testimony regarding eyewitness identification; the expert

was to testify regarding psychological theories of eyewitness

identification, including the “forgetting curve”, the “assimilation

factor”, and the “feedback factor”.             Id. at 1311.       Despite the

counter-intuitive nature of some psychological theories and an

                                       5
acceptance       of     expert   testimony    addressing      the   reliability     of

eyewitness identifications, the expert’s exclusion was affirmed.

Id.    at     1312-13.      Although     “expert     eyewitness     identification

testimony may be critical” when eyewitness testimony “make[s] the

entire difference between a finding of guilt or innocence”, it

obviously becomes considerably less critical when physical evidence

of guilt substantiates such testimony.                Id. at 1313; see id. (“We

emphasize that in a case in which the sole testimony is casual

eyewitness identification, expert testimony regarding the accuracy

of     that     identification      is   admissible     and     properly      may   be

encouraged.”).

       In contrast to Moore, where “overwhelming” evidence existed of

the defendants’ guilt, the exclusion of expert testimony was

reversed in United States v. Alexander, 816 F.2d 164 (5th Cir.

1987), cert. denied, 493 U.S. 1069 (1990).               Following a robbery at

a     savings     and    loan    institution       (bank),    copies   of     robbery

photographs shown to its employees were displayed throughout New

Orleans’ central business district.                Id. at 166.      An undisclosed

individual stated that the robber in the photograph distributed

after the robbery looked like Alexander.                 A copy of Alexander’s

driver’s        license     photograph       was    placed    beside    six     other

individuals’ photographs, from which three bank employees, who had

seen the robbery videotape and verified the man on the surveillance




                                          6
tape was the robber, independently selected Alexander. Id. at 166.

No physical evidence linked Alexander to the robbery.                      Id.

       At trial, as before, Alexander claimed mistaken identity. The

three    bank    employees      testified,       as    did   several      recognition

witnesses; four such Government witnesses were acquaintances who

said    the     robber     in   the   photograph        looked     like    Alexander,

contradicting the five defense witnesses who testified that the

robber in the photograph did not look like him.                  Id.      The district

court    excluded        testimony    of    Alexander’s      two    experts:       an

orthodontist,       who     specialized         in    celphalometry       (scientific

measurement of head dimensions) and was to aid jurors in their

visual comparison of the robber’s and Alexander’s heads; and a

former FBI Agent, who was to make photographic comparisons and

address the distortion in pictures taken by bank surveillance

cameras.      Id. at 167.

       In holding the district court had abused its discretion in

excluding the evidence and committed reversible error, our court

relied on “the specific nature of the proffered testimony ... ,

together with the complete lack of any evidence other than the

eyewitness identification”.                Id. (emphasis added).            The court

distinguished these experts, who would testify to “the precise

issue before the jury”, from the one in Moore, who “would have

testified only about general problems with perception and memory”.

Id. at 169.


                                            7
      It   goes   without   saying   that   cross-examination    serves   a

critical function, enabling jurors to appreciate discrepancies in

testimony.    E.g., Harris, 995 F.2d at 536.         Along this line, “the

problems of perception and memory can be adequately addressed in

cross-examination and ... the jury can adequately weigh these

problems through common-sense evaluation”. United States v. Smith,

122 F.3d 1355, 1357 (11th Cir.) (internal citation omitted), cert.

denied, 522 U.S. 1021 (1997).

      In determining whether an expert witness’ exclusion was an

abuse of discretion (typically in the context of offering testimony

regarding eyewitnesses), other circuits appear to examine both

whether other evidence beyond the lay-witness testimony ties the

defendant to the crime, and whether defense counsel was given an

opportunity to thoroughly cross-examine those witnesses.               See

United States v. Langan, 263 F.3d 613, 624 (6th Cir. 2001) (noting

the value of both “careful cross-examination” and the “substantial

amount of other evidence”); United States v. Carter, 410 F.3d 942,

950 (7th Cir. 2005) (providing three factors that justify the

district court’s exercise of its discretion to exclude witness

identification testimony:      (1) cross-examination of lay witnesses;

(2)    “significant     additional       evidence”     beyond   eyewitness

identification; and (3) cautionary instructions from the district

court regarding risks of eyewitness identification); United States

v. Villiard, 186 F.3d 893, 895 (8th Cir. 1999) (explaining “we are

                                     8
especially hesitant to find an abuse of discretion [in excluding

expert   testimony   about   eyewitness   identification]   unless   the

government’s case against the defendant rested exclusively on

uncorroborated   eyewitness    testimony”   (alteration   in   original;

internal quotation marks omitted)); and United States v. Rodriguez-

Felix, 450 F.3d 1117, 1125 (10th Cir. 2006) (noting “skillful

cross-examination provides an equally, if not more, effective tool

for testing the reliability of an eyewitness”).

     As discussed, after the Government’s case-in-chief, and upon

hearing Dr. Shomer’s proposed testimony outside the presence of the

jury, the district court ruled on the motion to exclude that

testimony.   In excluding it, the district court relied on Rule

702's relevance requirement:     an improper fit existed between Dr.

Shomer’s expertise and the facts of McGinnis’ case, as developed at

trial.     The district court characterized Dr. Shomer’s testimony

as offering two opinions:

           First, that the newspaper photograph perhaps
           given its size, its smaller size, as well as
           the depiction of the perpetrator with portions
           of his face covered, would be problematic for
           identification by a person viewing that
           picture to say, one person versus another ....
           And the second opinion, the assumption versus
           perception opinion ....

Dr. Shomer then clarified that he would also testify regarding a

third opinion:   “how [to] assess the accuracy of eye witness ID

from a standardized procedure”.



                                   9
     In excluding the testimony, the court stated: “[C]learly[,]

the testimony that [Dr. Shomer] is going to offer [will attempt] to

somehow suggest to the jury that mistakes can be made.          That is an

opinion that people from every walk of life can formulate”.               It

concluded:

           [T]he case is different than my appreciation
           of what it was going to be when we discussed
           this [pre-trial] .... I think everything that
           I have heard from this expert was covered by
           defense counsel very ably in his cross
           examination of those witnesses, relative to
           any shortcomings or inaccuracies of those
           identifications, any infirmities in connection
           with those identifications[,] and I think that
           he has covered that in his cross examination
           and I think the jury can fully appreciate a
           misidentification, if, in fact, one occurred.
           You   will   certainly   ...  be   given   the
           opportunity to argue that to the jury.

     As discussed supra, the expert testimony of Dr. Shomer, who

has been admitted to testify as an expert on numerous occasions and

whose expertise in his field is not challenged, may be admitted

only if it assists the jury.        See Pipitone, 288 F.3d at 245.       The

prior exclusion of his testimony by the Ninth Circuit is highly

instructive.   In United States v. Poole, 794 F.2d 462 (9th Cir.

1986), the defendant was convicted of robbing two savings and loan

institutions after eyewitnesses identified him from a photospread.

The defendant sought to introduce expert testimony by Dr. Shomer to

address   possible   defects   in   eyewitness   identifications.        The

Government’s   motion   in   limine    to   exclude   that   testimony   was

granted, and the Ninth Circuit affirmed, relying on its earlier

                                      10
holding “that ‘effective cross-examination is adequate to reveal

any inconsistencies or deficiencies in the eye-witness testimony’”.

Id. at 468 (quoting United States v. Amaral, 488 F.2d 1148, 1153

(9th Cir. 1973)).

     McGinnis’ case falls somewhere between our court’s decisions

in Moore and Alexander: the other evidence of guilt is neither

“overwhelming”, as in Moore, nor non-existent, as in Alexander.

The evidence includes the painter-style jeans with distinctive

white stitching and the duffel bag found in McGinnis’ bedroom

closet.   Evidence at trial showed that, although the painter-style

jeans were likely a common variety of trousers, this pair had a

well-worn crease from being folded at the bottom, as did those worn

by the robber.      Further, they looked the same as the robber’s

trousers through the bank’s surveillance camera.            In this regard,

the lead FBI Agent investigating the case explained how he placed

McGinnis’   jeans   on   a   mannequin   and   took   it   to   the   bank   to

photograph McGinnis’ jeans with the same surveillance equipment.

     Defense counsel elicited some doubt concerning these items

seized at McGinnis’ home. On direct examination, both bank tellers

had been shown McGinnis’ duffel bag and had stated it was the bag

used in the robbery.         On cross-examination, however, they were

unable to remember its exact coloring, although both remembered it

was dark; they also did not remember whether they had seen a

medallion like the one that figured prominently on McGinnis’ bag.


                                    11
       In addition, direct and cross-examination of lay witnesses

revealed:    seven individuals in addition to McGinnis had been

identified from the photograph placed in the newspaper; and,

although most of those seven individuals were later ruled out as

suspects, this was not done until after McGinnis had been arrested.

McGinnis’ counsel challenged the recognition witnesses and their

conclusions that the robber looked like McGinnis; he asked each of

McGinnis’ co-workers:      whether they knew other callers had named

other possible suspects based on the picture in the newspaper; and

whether   they   were   asked    to    select     McGinnis   from    a    set    of

photographs. When each witness answered the latter question in the

negative, McGinnis’ counsel emphasized the witnesses operated from

a “sample of one”.        Among other things, this may have been for

later use in Dr. Shomer’s proposed testimony that these individuals

were not asked to select McGinnis from a line-up.                   That these

recognition witnesses, each of whom knew McGinnis, may, or may not,

have   benefitted   from    a    line-up    was    not    beyond    the   jury’s

comprehension.      Nor    was   the   jury     unaware    that    neither      the

Government nor the defense asked the eyewitness bank tellers to

identify McGinnis as the robber.

       Further, McGinnis’ counsel questioned the witnesses about

their confidence level in their recognition of McGinnis.                   Among

other things, this was for later use in Dr. Shomer’s proposed

testimony that witness confidence in an identification does not


                                       12
correlate with accuracy of identification.            See United States v.

Brownlee, 454 F.3d 131, 140-44 (3d Cir. 2006).                   Although this

confidence-level testimony might have been made more beneficial to

McGinnis through Dr. Shomer’s proposed testimony, the district

court did not abuse its discretion in concluding the jurors could

disbelieve the Government’s witnesses (and, therefore, in excluding

Dr. Shomer’s testimony).

      The excluded expert testimony more closely aligns with the

general psychological testimony excluded in Moore than the precise,

tailored testimony admitted in Alexander. Needless to say, we need

not   decide     whether,    had   McGinnis     presented    an     expert   in

celphalometry     or   an   expert   in    photographic     comparisons,      an

exclusion of that testimony would be an abuse of discretion.                 See

Alexander, 816 F.2d at 167.

      Further,    unlike    eyewitness     cases,   where   an   expert   could

reasonably testify about the impact of a stressful situation and

memory of an eyewitness to a crime, the recognition witnesses at

issue here all testified the photographs looked like McGinnis, but

it was repeatedly clarified that none of these witnesses were at

the robbery.     A jury does not need an expert to explain that these

witnesses could not confirm McGinnis’ presence at a robbery at

which they were not present.         See Dixon, 413 F.3d at 524.

      The district court’s prudent approach in ruling on the motion

to exclude comported with Rule 702.          It delayed ruling until after

                                      13
the Government’s case-in-chief and hearing Dr. Shomer’s proposed

testimony outside the presence of the jury.            Only then did it

conclude the testimony would not be helpful to it.          Based on our

review of the record, this ruling did not constitute an abuse of

discretion.

                                   B.

      Concomitantly,    McGinnis   maintains    the    exclusion     of   the

testimony violates the Constitution.           He asserts his right to

present a complete defense — under either the Due Process Clause of

the Fifth Amendment or the Compulsory Process and Confrontation

Clauses of the Sixth Amendment — was thwarted because he was unable

to   challenge   a   critical   portion   of   the    Government’s     case.

(Although McGinnis did not raise this claim at trial, he did

preserve it for review by raising it pre-trial in opposition to the

Government’s motion in limine.      See FED. R. EVID. 103(a).)

      No violation of the right to present a complete defense occurs

where, as here, the trial proceedings involved several witnesses

for both the Government and the defense, and this particular

witness was excluded because the district court concluded, after

listening to the witness’ proposed testimony, that it would not

assist the jury.     See United States v. Miliet, 804 F.2d 853, 859

(5th Cir. 1986) (noting that a complete defense challenge is

meritorious when two factors are present: the excluded evidence is




                                   14
indispensable to the theory of defense; and the district court

fails to provide a rational justification for its exclusion).

                              III.

     For the foregoing reasons, the judgment is

                                                     AFFIRMED.




                               15
