
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                                         -2-                                         -2-            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                                         -3-                                         -3-            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).                                         -4-                                         -4-                 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."                                         -5-                                         -5-            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                                         -6-                                         -6-            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.            _____________      ______                               _____                                         -7-                                         -7-            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                                        _______                                         -8-                                         -8-            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.                                         -9-                                         -9-                 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                                         -10-                                         -10-            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                                         -11-                                         -11-            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.                                         -12-                                         -12-                 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                                         -13-                                         -13-            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.                 _________                                         -14-                                         -14-
