                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4946


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

GARY DELEON WHITE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, Chief
District Judge. (3:07-cr-00083-JRS)


Submitted:    December 22, 2008             Decided:   January 29, 2009


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Frances H. Pratt, Assistant Federal Public Defenders, Richmond,
Virginia, for Appellant.       Chuck Rosenberg, United States
Attorney, Richard D. Cooke, Sara E. Chase, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Gary   Deleon   White      appeals       his     convictions       on   four

offenses    stemming   from      a   traffic       stop    of   White     on   federal

property.     On appeal, White asserts the district court abused

its discretion in denying his motion to present expert witness

testimony     pertaining    to       the       reliability      of   an   eyewitness

identification and in denying his proposed jury instructions.

For the reasons discussed below, we reject White’s contentions

and affirm his convictions.

            In the early morning hours of December 16, 2006, Fort

Lee Police Officer Troy Catterton noticed a vehicle traveling

without a functioning license plate light. 1                     Catterton stopped

the vehicle, a gray Dodge Intrepid, and shined his high beam

headlights into the vehicle.               Catterton approached the driver’s

side of the vehicle, leaning toward the driver’s window.                            The

driver, whom Catterton later identified as White, admitted he

did not have either his license or vehicle registration card.

            The traffic stop ended after the radio on Catterton’s

shoulder alerted, causing the driver to speed away and later

crash his vehicle. 2    Catterton later learned the vehicle had been




     1
         Our rendition of the facts is taken from trial testimony.
     2
       The entire traffic stop lasted between eight and ten
minutes, during which time Catterton was approximately one and
(Continued)
                                           2
reported     stolen       in    Chesterfield         County,      and     that    an     arrest

warrant had been issued for Gary White in connection with the

theft.       At     Catterton’s            request,        the    Chesterfield           Police

Department    sent       a     copy   of    its     file    photo    of    Gary    White     to

Catterton,        who,       upon     seeing       the     photo,       “knew     with     100%

certainty” that White was the driver of the vehicle.                               Catterton

viewed    only     this      photo.         Three    weeks       later,    a    warrant    for

White’s arrest was issued.

             On    February         12,     2007,    Catterton       initiated         another

traffic    stop     of       another       vehicle,      and     upon     approaching      the

vehicle, recognized White was the driver.                         After White confirmed

his identity, Catterton directed White to exit the vehicle and

placed him under arrest.

             A federal grand jury indicted White on the following

offenses assimilated pursuant to 18 U.S.C. § 13 (2006):                                eluding

a police officer, assimilating Va. Code Ann. § 46.2-817(B), (C)

(2005) (“Count One”); illegal operation of a motor vehicle on a

highway after revocation of license, first offense, assimilating

Va.   Code    Ann.       § 46.2-357         (2005)       (“Count     Three”);       reckless

driving, assimilating Va. Code Ann. § 46.2-852 (2005) (“Count

Four”); and operating a motor vehicle on a highway after being



one-half to two feet from the driver, and was focused on the
driver’s face.



                                               3
found a habitual offender and having license revoked, second

offense,    assimilating       Va.   Code     Ann.    § 46.2-357(B)(3)       (2005)

(“Count Seven”).           The grand jury also indicted White on two

charges assimilated pursuant to 32 C.F.R. § 634.25(f) (2008):

operating     a    vehicle    with   a   defective      license     plate    light,

assimilating Va. Code Ann. § 46.2-1013 (2005) (“Count Five”);

and operating a vehicle with a defective headlight, assimilating

Va. Code Ann. § 46.2-1011 (2005) (“Count Six”).                     Finally, the

grand jury indicted White on one count of taking, with intent to

steal, property valued in excess of $1000, in violation of 18

U.S.C. § 661 (2006) (“Count Two”).             The grand jury charged White

with committing these offenses within the special territorial

jurisdiction of the United States.

            Prior     to   trial,    White    filed    a   motion    to     suppress

Catterton’s       identification,     which    the    district     court    denied.

White next moved the court to allow expert witness testimony

regarding eyewitness identifications.                 The court concluded it

must first conduct a Daubert 3 hearing to determine whether such

testimony was appropriate.

            At the Daubert hearing, White presented the testimony

of Brian Cutler, Ph.D.          Cutler explained that he would testify

to   four     factors        that    might     have     impacted      Catterton’s

     3
         Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).



                                         4
identification            of    White    as     the      driver       from       the    December    16

traffic       stop.        Specifically,            Cutler       averred         that    cross-race

recognition, 4 the mug shot recognition effect, the confidence and

accuracy       correlation,         and       the       nature       of    Catterton’s      initial

identification             of     White        might           all        have     impacted        the

identification. 5              Cutler then discussed the research supporting

these factors and their general acceptability in the scientific

community.

               The    district          court       denied       White’s         Daubert    motion,

concluding that while Cutler’s proffered testimony satisfied the

first       prong    of    Daubert       in    that       it     qualified        as    “scientific

knowledge,” it failed on the second Daubert prong — that it

would assist the trier of fact in understanding or determining a

fact in issue.

               At White’s trial, the Government presented Catterton’s

testimony, in which Catterton identified White as the driver of

the Intrepid.             On cross-examination, defense counsel questioned

Catterton about the various deviations in his descriptions of

the driver.

        4
            Catterton is Caucasian, and White is African-American.
        5
        Cutler conceded, however, that because Catterton was
exposed to the driver of the vehicle for a significant amount of
time — more than thirty seconds — the cross-race recognition
factor   may   not   have  significantly  impacted   Catterton’s
identification of White.



                                                    5
           White offered two proposed jury instructions regarding

eyewitness    identification      testimony.         The    first      instruction

contained the following first paragraph:

      Eyewitness testimony has been received in this trial
      for the purpose of identifying the defendant as the
      person who committed the crime(s) charged.     The law
      recognized [sic] that eyewitness identification is not
      always reliable, and that cases of mistaken identity
      have been known to occur.      You, the jury, must be
      satisfied beyond a reasonable doubt of the accuracy of
      the identification of the defendant before you may
      convict him.   You should, therefore, view eyewitness
      testimony with caution and evaluate it carefully in
      light of the following factors[.]

The   instruction    then     listed   a    number   of    factors,      including

whether the eyewitness had:            sufficient opportunity to observe

the suspect; prior familiarity with the suspect; described the

suspect immediately; or identified the suspect from photographs

or a lineup.       White also requested an instruction regarding the

confidence and accuracy correlation.

           Although the district court denied White’s request for

the proposed jury instructions, it suggested it would give the

first paragraph of the first proposed instruction.                       Instead,

however,     the   district    court       instructed     that,   in    assessing

credibility, the jury could consider “the opportunity they [the

witnesses] had to see, hear, and know the things about which

they testified; the accuracy of their memories.”

           The jury convicted White of Counts One and Four.                   The

district court further found White guilty of Counts Five and

                                        6
Six.       White      was     subsequently        sentenced        to    forty-six       months’

imprisonment.          White timely appealed.

             On       appeal,       White    first       asserts      the        district   court

abused its discretion in denying his motion to present Cutler’s

expert      witness          testimony        regarding         the      fallibilities           of

eyewitness        identification.             White      also    contends          the   district

court      abused      its     discretion         in     denying        his      proposed     jury

instruction on eyewitness identifications.                          We will address each

issue in turn.

             The        admission        of       expert        witness           testimony      is

controlled by Rule 702 of the Federal Rules of Evidence and the

Supreme Court’s decision in Daubert.                        Under Daubert, a two-part

test must be satisfied to admit expert witness testimony under

Rule 702:      “(1) the expert testimony must consist of ‘scientific

knowledge’        -    that     is,    the     testimony        must        be    supported      by

appropriate validation; and (2) the evidence or testimony must

'assist     the       trier    of    fact    to       understand      the     evidence      or   to

determine a fact in issue.’” 6                    United States v. Dorsey, 45 F.3d

809, 813 (4th Cir. 1995) (quoting Daubert, 509 U.S. at 591).

In assessing whether the second Daubert prong is satisfied, “the

Supreme Court warned that . . . a judge must be mindful of other

       6
       Because the district court concluded Cutler would have
testified to scientific knowledge, the first prong of Daubert
was satisfied and thus is not an issue on appeal.



                                                  7
evidentiary rules, such as FRE 403, which permits the exclusion

of relevant evidence ‘if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury.’”                        Id. (quoting Daubert, 509

U.S. at 595).          We review decisions excluding testimony for an

abuse of discretion.           United States v. Harris, 995 F.2d 532, 534

(4th Cir. 1993).

              The      district       court       rejected        Cutler’s         testimony

regarding the confidence and accuracy correlation under Federal

Rule    of    Evidence    403     because         the    correlation        could      not   be

quantified      and    would     likely    confuse        the    jury.       The    district

court rejected the testimony regarding cross-race recognition,

in    part,    on   similar     grounds,      but       also    because,     according       to

Cutler’s own testimony, the length of time that Catterton was

exposed to White likely reduced the impact of this factor on

Catterton’s identification.               The district court ruled Cutler’s

testimony pertaining to the mug shot recognition was within the

jurors’       common    knowledge,        and      thus    would      not    be     helpful.

Finally,      the     district    court     concluded          that   expert       testimony

detailing the deficiencies in the use of a single photograph

“show-up” was unnecessary because defense counsel could elicit

the    deficiencies      in    this    method       of    identification          on   cross-

examination.



                                              8
            In light of our deferential standard of review — for

an abuse of discretion 7 — we affirm the district court’s ruling.

Cutler    conceded    the    length    of       Catterton’s    exposure     to    White

negated    both      the    cross-race          recognition     factor      and     the

confidence    and    accuracy    correlation.           Further,      the   mug     shot

recognition effect appears to be within the scope of the jurors’

common    knowledge.         Lastly,    defense       counsel       did   attempt    to

illuminate potential deficiencies in Catterton's identification

of White from a single photograph rather than a photo array.

The district court’s decision to deny the Daubert motion simply

does not constitute an abuse of discretion.

            We further reject White’s contention that the district

court    abused     its    discretion    in       denying     the    requested    jury

instructions.        United States v. Singh, 518 F.3d 236, 249 (4th

Cir. 2008) (standard of review).                   We will reverse a district

court’s refusal to provide a requested instruction “only if the

instruction:      (1) was correct; (2) was not substantially covered

by the court’s charge to the jury; and (3) dealt with some point

in the trial so important, that failure to give the requested


     7
       “An abuse of discretion can flow from a failure or
refusal, either express or implicit, actually to exercise
discretion, deciding instead as if by general rule, or even
arbitrarily, as if neither by rule nor discretion.”     Sharpe v.
Dir., Office of Workers’ Comp. Programs, 495 F.3d 125, 130 (4th
Cir. 2007) (internal quotation marks and citation omitted).



                                            9
instruction         seriously     impaired     the    defendant’s    ability     to

conduct his defense.”            United States v. Lewis, 53 F.3d 29, 32-33

(4th Cir. 1995) (internal quotation marks and citation omitted).

White fails to meet this standard.                   The proposed instructions

mirrored the basis for the expert witness testimony, and the

denial of White’s motion to present that testimony obviated the

need for the proposed instructions.

              For    the    foregoing    reasons,     we   affirm   the   district

court’s judgment.            We dispense with oral argument because the

facts   and    legal       contentions   are   adequately     presented    in   the

materials     before       the   court   and   argument     would   not   aid   the

decisional process.

                                                                          AFFIRMED




                                         10
