United States v. Brownlee

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

7-18-2006

USA v. Brownlee

Precedential or Non-Precedential: Precedential

Docket No. 04-4134

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-4134

UNITED STATES OF AMERICA

v.

CRAIG WILLIAM BROWNLEE,

Appellant

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action No. 03-cr-00199)

District Judge: Honorable Arthur J. Schwab

Argued March 7, 2006

Before: RENDELL and AMBRO, Circuit Judges,

SHAPIRO,* District Judge

*

Honorable Norma L. Shapiro, Senior District Judge for

the Eastern District of Pennsylvania, sitting by designation.

(Opinion filed July 18, 2006)

Lisa B. Freeland (Argued)

Federal Public Defender

Marjorie A. Minkler

Assistant Federal Public Defender

Karen S. Gerlach

Assistant Federal Public Defender

Office of Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Mary Beth Buchanan

United State Attorney

Michael Leo Ivory (Argued)

Assistant U.S. Attorney

Laura S. Irwin

Assistant U.S. Attorney

Paul M. Thompson

Assistant U.S. Attorney

Office of United States Attorney

700 Grant Street, Suite 400

Pittsburgh, PA 15219

Counsel for Appellee

2

OPINION OF THE COURT

AMBRO, Circuit Judge

Craig Brownlee was convicted by a jury of carjacking

(18 U.S.C. § 2119), using a firearm in relation to a federal crime

of violence (18 U.S.C. § 924(c)(1)(A)(ii)), and possession of a

firearm by a convicted felon (18 U.S.C. § 922(g)(1)). He

appeals his conviction and sentence and, for the reasons

provided below, we reverse and remand for a new trial.1

I. Factual and Procedural Background

On the morning of June 13, 2003, Virginia Daly stopped

on her way home from work at the K-Mart located in New

Kensington, Pennsylvania. After making her purchases, Daly

left the store and proceeded toward her parked Jeep. As she

began to get into her vehicle, a man approached her from

behind and said “[H]ey.” Daly turned around “and saw that [the

person] had a gun in his hand.” Now face to face with the man,

Daly “told him to get away from [her and] he told [her] to get

1

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. Brownlee filed a timely notice of appeal, and

we have jurisdiction pursuant to 28 U.S.C. § 1291.

3

out of the car.” The man then aimed the gun at Daly’s chest,

prompting her to get out of the car, turn over her keys, and run

back to the K-Mart where she called the police. According to

Daly, the suspect was black and wearing a dark t-shirt and a

baseball cap.

Mary Ulizio, who had also stopped at the K-Mart to

shop, viewed the entire incident and her version of events was

similar to Daly’s. As Ulizio was approaching her car in the

parking lot, she saw a black male dressed in a dark navy blue t-

shirt and a baseball cap “very quickly . . . walk[] over towards

[a] Jeep Grand Cherokee.” Ulizio saw the man approach Daly

and heard her say, “[L]eave me alone. Leave me alone.” Daly

and the man engaged in what was “basically a fight. She was

trying to get him away from her. Then she started screaming,

[‘H]elp me.’” Ulizio also witnessed the man drive Daly’s

vehicle from the lot, and reported that “he pretty much pealed

out of there pretty fast.” Ulizio then returned to the K-Mart and

awaited the police.

The carjacker drove Daly’s car from the K-Mart lot

toward Tarentum, a small town located across the Allegheny

River from New Kensington. Daniel Spangler was traveling on

the Tarentum Bridge (which connects Tarentum and New

Kensington) when Daly’s “vehicle . . . passed [him] on the

right-hand side . . . at a very high rate of speed.” The suspect

“lost control of the vehicle . . . and [it] fishtailed a couple of

times and . . . rolled over a number of times . . . and came to rest

4

against a utility po[le].” Spangler got out of his car and, as he

was approaching the scene of the accident, saw a man run from

the wrecked Jeep toward downtown Tarentum. According to

Spangler, the person was wearing “dark clothing” and was

“[r]unning just fine.” Spangler reported the accident to the

police.

Scott Thomson was also driving his car in the vicinity of

the Tarentum Bridge when the carjacker wrecked Daly’s Jeep.

Thomson was idling at a red light when he “saw a vehicle that

was speeding . . . across the bridge. Then, all of a sudden . . . it

los[t] control right at the intersection. Rolled around a few

times and wrapped around the utility pole . . . .” Thomson left

his car and

. . . started walking over to the scene and then I

see someone get out [of] the vehicle and [he] just

started running down Sixth Avenue. He

stumbled to the ground. Just got up, took off

running down Sixth Avenue.

Thomson remained at the scene in order to report the accident

to the police.

Robert Walker was also in the vicinity of the bridge on

the morning of June 13 when “he heard a loud noise.” He

turned to his right and saw “a car flip, hit the pole.” Walker

approached the wreck and “noticed a guy crawling out of the

5

back door of the vehicle.” According to Walker, as the man

was extricating himself from Daly’s Jeep, his baseball cap fell

off of his head. He then ran from the scene at a “[p]retty good”

clip.

By this time, the local police had issued a BOLO (Be On

Lookout) broadcast concerning the Daly carjacking. In that

broadcast, the suspect was described as “a black male with a

dark blue shirt and ball cap.” Daniel Glock, an officer with the

East Deer Township Police Department, received the broadcast

and drove to the scene of the accident to assist the police

already there. Once at the scene, Glock received a report that

the suspect had been observed “around First Avenue.” This

information prompted Glock to drive to First Avenue where he

spoke with Constable Timothy Dzugan.

Dzugan, who lives in Tarentum, had been on his way to

work when he received a radio report detailing the carjacking.

As he approached the accident scene, he heard that the suspect

“ran from the vehicle, heading north on East Sixth.” This new

information prompted Dzugan to go to this area, where he saw

Brownlee – a thirty year old “black male” wearing a “dark shirt”

– run across Second Avenue toward First Avenue. Dzugan

notified the dispatcher concerning his observations and

continued to follow Brownlee. At one point, Brownlee walked

directly in front of Dzugan’s vehicle in the direction of a house

located at 329 First Avenue.

6

Brownlee was acquainted with the residents at this

address, John and Arlene Boush. He knocked on the Boushes’

door and awoke Arlene, who answered the door. Brownlee

asked her if her husband was home and left after learning that

he was not. He proceeded to walk through the Boushes’

backyard. By this time, Dzugan and Glock got out of their cars

and approached the Boushes’ yard where they arrested

Brownlee.

Brownlee then was taken by police cruiser to the

accident scene, where Walker stated that he was the individual

who had wrecked Daly’s Jeep. Thomson also identified

Brownlee as the man he witnessed crawling from the wrecked

vehicle. Brownlee was handcuffed and in the back seat of the

police cruiser during these identifications. According to

Thomson,

I recognized him. I kind of went . . . to see who

was in the back seat of the police car and I was

one hundred percent sure the guy in the back seat

of the police car was the guy that crawled out of

the vehicle.

The identifications occurred “approximately twenty-five

minutes” after the accident involving Daly’s vehicle.

Ulizio and Daly were taken from the K-Mart to the scene

of the accident by a police officer. There both women

7

identified Brownlee as the man who had taken Daly’s car.

According to Ulizio, “the policeman asked . . . can we identify

anyone. And the man was standing there, and we did.” Daly

remarked that “[t]here was no doubt in [her] mind” that it was

Brownlee who had taken her vehicle. Brownlee was

handcuffed, surrounded by police and standing beside the police

cruiser at the time of Ulizio’s and Daly’s identifications.

Brownlee then was taken to the police station, read his

Miranda2 rights, informed of the charges to be filed, and

questioned by detectives. He told the police that he could not

recall most of the prior evening. He did remember that had

been at his girlfriend’s place, but they had an argument, the

police were called and he was asked to leave. Brownlee also

noted that his father had picked him up and he remembered

walking up to his home in Natrona Heights at approximately

4:00 a.m. He said he could not recall anything that had

occurred between 4:00 a.m. and the time of his arrest.

At the scene of the accident, the police found a Yankees

baseball cap on one side of the Jeep and, on the other side, a

damaged, but operative, firearm on the ground or floorboard.

Neither the car nor its contents were tested for fingerprints, and

the car was subsequently destroyed. The firearm and cartridge

were tested for comparable latent prints, but none were found.

2

Miranda v. Arizona, 384 U.S. 436 (1966).

8

The Government’s principal evidence against Brownlee

was the testimony of the four witnesses who provided on-the-

scene identifications shortly after the accident. Brownlee

moved to suppress each of the identifications as the product of

unnecessarily suggestive procedures, but the District Court

denied that motion. The Government bolstered the

identification testimony presented at trial with the testimony of

Constable Dzugan, who claimed that Brownlee had made

various admissions to him while in custody arrest at the accident

scene. Brownlee had moved to suppress those statements

pretrial on the grounds that they were obtained in violation of

his Miranda rights and his Fifth Amendment right against self-

incrimination, but the District Court denied that motion, ruling

that Dzugan did not subject Brownlee to “interrogation.”

At trial, Brownlee presented a mistaken identity defense.

In support of this theory, he sought to present the opinions of

Dr. Jonathan Wolf Schooler, an expert in the field of human

perception and memory. Brownlee offered this testimony to

address the circumstances surrounding each of the

Government’s identification witnesses, specifically (1) show-up

identification procedures and how they can influence a witness’

accuracy, (2) a comparison between the show-up and other

identification procedures, (3) the tendency of a witness to focus

on a weapon, (4) the lack of correlation between witness

confidence in identification and the accuracy of that

identification, (5) the effect of exposure to multiple witnesses,

(6) the effect of hair covering on eyewitness recognition ability,

9

(7) the phenomena of confidence malleability (i.e., the effect of

post-event information on a witness’ confidence in the accuracy

of an identification), (8) time delay on identification, (9) the

effect of post-event suggesting, and (10) cross-racial

identification. After a Daubert3 hearing, the District Court

allowed Dr. Schooler to testify about cross-racial identification,

the effects of hair covering, weapons focus, and exposure to

multiple witnesses, but refused to allow expert testimony as to

the other categories.

After a three-charge indictment was filed against

Brownlee, a jury found him guilty of each charge. The District

Court sentenced him after the Supreme Court decided Blakely

v. Washington, 542 U.S. 296 (2004), but prior to United States

v. Booker, 543 U.S. 220 (2005). At sentencing, Brownlee

argued that he could not be sentenced pursuant to the federal

Sentencing Guidelines because they were unconstitutional

under Blakely. The District Court agreed that the Sentencing

Guidelines were unconstitutional and, as a result, “sentence[d]

[Brownlee] according to the statutory range, without regard to

the Guidelines,” to 37 years (444 months) imprisonment and

three years of supervised release. This appeal followed.

II. Merits

3

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579

(1993).

10

A. Did the District Court err by refusing to suppress

the identification testimony of four witnesses due to

unnecessarily suggestive identification procedures?

“As with many evidentiary rulings, we review a decision

to admit identification testimony over an objection for abuse of

discretion.” United States v. Emanuele, 51 F.3d 1123, 1127 (3d

Cir. 1995). Where a motion to suppress has been denied, we

review the order “for clear error as to the underlying facts, but

exercise plenary review as to its legality in the light of the

court’s properly found facts.” United States v. Inigo, 925 F.2d

641, 656 (3d Cir. 1991). If the admission of identification

testimony violated due process, as Brownlee contends, we then

consider whether this constitutional error was harmless. Foster

v. California, 394 U.S. 440, 444 (1969).

An identification procedure that is both (1) unnecessarily

suggestive and (2) creates a substantial risk of misidentification

violates due process. Manson v. Brathwaite, 432 U.S. 98, 107,

144 (1977). Unnecessary suggestiveness “contains two

component parts: that concerning the suggestiveness of the

identification, and that concerning whether there was some

good reason for the failure to resort to less suggestive

procedures.” United States v. Stevens, 935 F.2d 1380, 1389 (3d

Cir. 1991) (internal quotations and emphases omitted). An

impermissibly suggestive identification procedure can occur in

four settings: a show-up, a photo array, a line-up and in court.

Identifications, 34 Geo. L.J. Ann. Rev. Crim. Proc. 149, 153

11

n.496 (2005). The first setting (the one presented in this case)

is a “show-up,” in which a single individual arguably fitting a

witness’s description is presented to that witness for

identification.

As the Supreme Court has acknowledged, a show-up

procedure is inherently suggestive because, by its very nature,

it suggests that the police think they have caught the perpetrator

of the crime. Stovall v. Denno, 388 U.S. 293, 302 (1967)

(recognizing that “[t]he practice of showing suspects singly to

persons for the purpose of identification, and not as part of a

line-up, has been widely condemned”). Brownlee was

handcuffed and seated in the back seat of a police cruiser when

identified by Thomson and Walker, and he was handcuffed and

pulled out of the police cruiser when Daly and Ulizio identified

him. Not only was Brownlee handcuffed, surrounded by police

officers, and either seated inside or standing beside a police

cruiser at the time of the identifications, he was also at the scene

of the accident — a condition that creates the impression the

police had caught him in the stolen Jeep.

Three other points are noteworthy and exacerbate the

suggestiveness of the show-up in this case. First, no “suspect”

save Brownlee was presented to any of the eyewitnesses at any

time. Second, all four eyewitnesses were allowed to make

identifications while exposed to the suggestive influence of

others. See Emanuele, 51 F.3d at 1131 (holding that the

witness’ inability to recognize defendant in photo array,

12

“coupled with the highly suggestive viewing of the defendant

in conditions reeking of criminality, bolstered by the comments

of another witness, render[ed] the in-court identification

unreliable” (emphasis added)). Thomson and Walker were left

at the scene to talk with bystanders as well as police from the

time of the crash until Brownlee was transported to their

location; Ulizio and Daly were not only questioned together but

were taken to identify Brownlee together. Finally, there is no

reason evident why Brownlee and the witnesses could not have

been taken to the police station for a less suggestive line-up or

photo array.4 See United States v. Sebetich, 776 F.2d 412, 420

4

The Government argues that the show-up procedure was

necessary here because (1) the police wanted to avoid holding

a potentially innocent man any longer than necessary, and (2) if

the police had apprehended the wrong man, they would be able

to resume searching for the right man as soon as possible (to

prevent a dangerous suspect from fleeing successfully).

Obviously, the police wish to prevent assailants from fleeing

and avoid apprehending the wrong people. Using a line-up or

similar procedure in lieu of the inherently suggestive show-up

procedure, however, can help increase police confidence that

they have apprehended the correct individual. Where, as here,

the police are certain that they have apprehended the right

person and none of the witnesses was in critical condition or

otherwise unable to withstand a temporary delay, it is little to

ask that law enforcement take some additional time and conduct

a less suggestive identification procedure. We conclude that the

Government has failed to demonstrate that a show-up procedure

13

(3d Cir. 1985) (stating that line-up or similar procedure should

“be employed whenever necessary to ensure the accuracy and

reliability of identifications”), cert. denied, 484 U.S. 1017

(1988); see also Stovall, 388 U.S. at 302 (recognizing show-up

procedure inherently suggestive though imperative where

witness was physically unable to leave hospital and it was

uncertain how long she would live). Thus, we agree with

Brownlee that the show-up procedure here was unnecessarily

suggestive.

But unnecessary suggestiveness alone does not require

the exclusion of evidence. Neil v. Biggers, 409 U.S. 188, 198-

99 (1972). A “suggestive and unnecessary identification

procedure does not violate due process so long as the

identification possesses sufficient aspects of reliability,”

Brathwaite, 432 U.S. at 106, for reliability is the “linchpin in

determining the admissibility of identification testimony,” id. at

114. As the Supreme Court explained in Biggers, in order to

determine whether an identification was reliable even though

the confrontation procedure was suggestive, we must look to

the totality of the circumstances. 409 U.S. at 199. The Court

considers factors that include: (1) the opportunity of the witness

to view the criminal at the time of the crime; (2) the witness’

degree of attention; (3) the accuracy of the witness’ prior

description of the criminal; (4) the level of certainty

demonstrated by the witness at the confrontation; and (5) the

was imperative.

14

length of time between the crime and confrontation. Id. at 199.

In Biggers, the Court set out and applied each of these

factors, noting that the witness had ample opportunity to view

the defendant, paid a high degree of attention, gave a detailed

description of the defendant, and was unequivocal in her

identification. Id. at 200. The Court pointed out that several

months had passed between the time of the crime and the

identification, but reasoned that, weighing all the factors, there

was no substantial likelihood of misidentification and that the

evidence was properly allowed to go to the jury. Id. at 201.

Similarly, in Brathwaite, the Court enumerated and

applied each of the Biggers factors to determine whether an

identification from a single-photograph display was unreliable.

432 U.S. at 114-16. There the witness looked directly at the

defendant (who was in close proximity), paid a high degree of

attention, gave a detailed and accurate description of the

defendant within minutes of the encounter and unequivocally

identified the defendant’s photograph two days later. Id. at

114-15. The Court concluded that – given these factors as well

as the absence of any coercive pressure positively to identify the

photograph – there was not a “very substantial likelihood of

irreparable misidentification.” Id. at 116 (internal quotations

omitted).

We reached the opposite conclusion on the facts in

United States v. Emanuele. The two witnesses in that case were

15

bank tellers, each of whom had observed a robbery at her place

of employment. 51 F.3d at 1126-27. Neither was able to

identify the robber from a photo array. Id. These witnesses

were subpoenaed by the Government to testify. While sitting

outside the courtroom, they “saw the defendant being led from

the courtroom in manacles by U.S. Marshals.” Id. at 1127.

They then spoke with one another, saying “it has to be him.” Id.

We first determined that the confrontation between the

witnesses and the manacled defendant was impermissibly

suggestive. Id. at 1129-30. We then concluded that the

witnesses’ failure to pick the defendant out of the photo array,

coupled with the impermissibly suggestive “viewing of [him] in

conditions reeking of criminality, bolstered by the comments of

another witness, rendered the in-court identification unreliable.”

Id. at 1131.

Returning to our facts, the critical question is whether the

circumstances surrounding the identifications at issue here are

more like Biggers and Brathwaite, or Emanuele. To answer

that inquiry, we turn to the Biggers factors. Certainly, some of

the circumstances presented here weaken the reliability of the

eyewitnesses’ identifications. For instance, Daly conceded that

the entire carjacking lasted only thirty seconds, and that she

spent a predominant amount of that time focused on the weapon

(which, incidentally, she misidentified). Moreover, Daly at first

told the 911 dispatcher that her assailant was wearing shorts

(whereas Brownlee wore blue jeans). Ulizio testified that she

initially believed the carjacker was a young kid (while

16

Brownlee was 30 at the time the crime was committed), and

both Thomson and Walker saw more of the suspect’s back than

his front as he ran away from them down the street. Finally,

none of the witnesses could describe the suspect’s facial

features or provide the police with more than a relatively

general description of him.

These facts notwithstanding, the totality of the

circumstances establish that the identifications were reliable.

The evidence provided at the suppression hearing indicates that

(1) the witnesses’ opportunity to observe the perpetrator at the

time of the crime was sufficient, at fairly close range, and in

broad daylight; (2) their degree of attention was substantial; (3)

their prior descriptions, while rather general, were fairly

accurate; (4) their degree of certainty was absolute; and (5)

relatively little time passed between the crime and

confrontations (approximately 25 minutes). The generality of

the witnesses’ descriptions of the suspect, the relatively short

period of time they saw him, and the other shortcomings

pertaining to their identifications, go more to the weight of the

evidence than the reliability of their identifications, and thus

were issues for the jury. Accordingly, we conclude that the

identifications were properly admitted at trial despite the fact

that the show-up procedure was unnecessarily suggestive.

B. Did the District Court err by refusing to allow the

defendant’s expert witness in the field of human perception

and memory to testify regarding the reliability of the

17

identifications?

Brownlee contends the District Court erred in restricting

the testimony of Dr. Schooler, a professor of psychology at the

University of Pittsburgh and an expert in human memory and

perception. In a pre-trial pleading, Brownlee reported that he

intended to call Dr. Schooler to testify about “issues of cross-

racial identification and the reliability of identifications made

under a stressful environment.”5 As noted earlier, the District

Court allowed expert testimony concerning cross-racial

identification, the effects of hair covering, weapons focus, and

exposure to multiple witnesses, but refused to allow expert

testimony in the other categories.

We review the District Court’s decision to exclude

5

As previously explained, Brownlee specifically wanted

Dr. Schooler to testify concerning (1) show-up identification

procedures and how those procedures can influence a witness’

accuracy, (2) a comparison between the show-up and other

identification procedures, (3) the tendency of a witness to focus

on a weapon, (4) the lack of correlation between witness

confidence in identification and the accuracy of that

identification, (5) the effect of exposure to multiple witnesses,

(6) the effect of hair covering on eyewitness recognition ability,

(7) the effect of post-event information on a witness’

confidence in the accuracy of an identification, (8) time delay

on identification, (9) the effect of post-event suggesting, and

(10) cross-racial identification.

18

expert testimony for an abuse of discretion. In re Paoli R.R.

Yard PCB Litig., 916 F.2d 829, 856 n.33 (3d Cir. 1990), cert.

denied, 499 U.S. 961 (1991).6

The Government argues that the District Court properly

excluded testimony regarding (1) the comparison between the

show-up and other identification procedures because “it held

the potential for confusion, was irrelevant, and not helpful to

6

The Government argues that Brownlee’s claim that the

District Court improperly limited expert testimony was not

preserved by contemporaneous objection and, therefore, should

be reviewed for plain error. However, the defense’s proffer of

testimony at the Daubert evidentiary hearing specifically

presented to the District Court the issues raised here. After the

Court ruled that certain of the proffered testimony would not be

allowed, defense counsel was not obligated to lodge a post-

ruling objection to preserve the issue for appeal. See Fed. R.

Crim. P. 51(b) (“A party may preserve a claim of error by

informing the court–when the court ruling or order is made or

sought–of the action the party wishes the court to take, or the

party’s objection to the court’s action and the grounds for that

objection. . . . A ruling or order that admits or excludes evidence

is governed by Federal Rule of Evidence 103.”); Fed. R. Evid.

103 (“Once the court makes a definitive ruling on the record

admitting or excluding evidence, either at or before trial, a party

need not renew an objection or offer of proof to preserve a claim

of error for appeal.”).

19

the factfinder,” and (2) the suggestiveness of the show-up

involved in this case and the effect it potentially played in the

identifications because “the jury could have determined for

itself without expert opinion whether the show-up in this case

was capable of influencing the witnesses’ identification.” As

for (3) confidence malleability, (4) post-event suggestiveness,

and (5) confidence of accuracy, although the District Court

ruled such testimony excluded, the Government points out that

“Brownlee . . . managed to elicit testimony concerning” those

three categories from his expert at trial.

We are not persuaded by the Government’s arguments

concerning the exclusion of these five categories of excluded

testimony. This case was primarily about the accuracy and

reliability of the identifications.7 The District Court’s rulings,

specifically with regard to confidence of accuracy, significantly

undermined Brownlee’s ability to challenge effectively the

witnesses’ certainty and confidence in their identifications — a

point the Government used to its benefit both in presenting

testimony and arguing to the jury in its closing at trial.

Moreover, the record belies the Government’s contention that

Brownlee managed to elicit any expert testimony concerning

7

This is because the Government presented no other

admissible inculpatory evidence tying Brownlee to either the

scene of the carjacking or the subsequent accident. See Section

II.C below regarding inadmissible inculpatory evidence the

Government presented at trial.

20

confidence of accuracy.

It is widely accepted by courts, psychologists and

commentators that “[t]he identification of strangers is

proverbially untrustworthy.” Felix Frankfurter, The Case of

Sacco and Vanzetti: A Critical Analysis for Lawyers and

Laymen 30 (Universal Library ed., Grosset & Dunlap 1962)

(1927) (“What is the worth of identification testimony even

when uncontradicted? . . . The hazards of such testimony are

established by a formidable number of instances in the records

of English and American trials. These instances are recent–not

due to the brutalities of ancient criminal procedure.”); see also

United States v. Wade, 388 U.S. 218, 228 (1967) (stating that

“[t]he vagaries of eyewitness identification are well-known; the

annals of criminal law are rife with instances of mistaken

identification”); C. Ronald Huff et al., Guilty Until Proven

Innocent: Wrongful Conviction and Public Policy, 32 Crime &

Delinq. 518, 524 (1986) (“the single most important factor

leading to wrongful conviction in the United States . . . is

eyewitness misidentification”). The recent availability of post-

conviction DNA tests demonstrate that there have been an

overwhelming number of false convictions stemming from

uninformed reliance on eyewitness misidentifications. In 209

out of 328 cases (64%) of wrongful convictions identified by a

recent exoneration study, at least one eyewitness misidentified

the defendant. Samuel R. Gross et al., Exonerations in the

United States: 1989-2003 95 J. Crim. L. & Criminology 523,

542 (2004). In fact, “mistaken eyewitness identifications are

21

responsible for more wrongful convictions than all other causes

combined.” A. Daniel Yarmey, Expert Testimony: Does

Eyewitness Memory Research Have Probative Value for the

Courts?, 42 Canadian Psychology 92, 93 (May 2001).

“[E]yewitness evidence presented from well-meaning and

confident citizens is highly persuasive but, at the same time, is

among the least reliable forms of evidence.” Id. (Emphasis

added.)

Even more problematic, “jurors seldom enter a

courtroom with the knowledge that eyewitness identifications

are unreliable.” Rudolph Koch, Note, Process v. Outcome: The

Proper Role of Corroberative Evidence in Due Process

Analysis of Eyewitness Identification Testimony, 88 Cornell L.

Rev. 1097, 1099 n.7 (2003). Thus, while science has firmly

established the “inherent unreliability of human perception and

memory,” id. at 1102 (internal quotations omitted), this reality

is outside “the jury’s common knowledge,” and often

contradicts jurors’ “commonsense” understandings, id. at 1105

n.48 (internal quotations omitted). To a jury, “there is almost

nothing more convincing than a live human being who takes the

stand, points a finger at the defendant, and says[,] ‘That’s the

one!’” Watkins v. Sowders, 449 U.S. 341, 352 (1981)

(Brennan, J., dissenting) (emphasis in original).

Faced with “[t]he tragic irony of eyewitness testimony,”

Koch, Process v. Outcome, supra, at 1098 n.6 (quoting

Lawrence Taylor, Eyewitness Identification 1 (1982)), and no

22

physical scientific means of exonerating himself,8 Brownlee

sought to present expert scientific evidence to establish the

inherent unreliability of human perception and memory by

demonstrating that the correlation between confidence and

accuracy is weak.9 Federal Rule of Evidence 702 “authorizes

the admission of expert testimony so long as it is rendered by a

qualified expert and is helpful to the trier of fact.” DeLuca v.

Merrell Dow Pharm., Inc., 911 F.2d 941, 954 (3d Cir. 1990).

Application of this Rule to Dr. Schooler’s proposed testimony

required the District Court to apply United States v. Downing,

753 F.2d 1224 (3d Cir. 1985). There we recognized that Rule

70210 may permit a defendant “to adduce, from an expert in the

8

As noted, fingerprints were not gathered by law

enforcement from the stolen vehicle. The gun was tested for

prints, but no print was recovered. The hat found at the scene of

the accident was tested for DNA but the results were negative.

9

In some instances, studies have shown no meaningful

correlation between confidence and accuracy. See, e.g., Evan J.

Mandery, Due Process Considerations of In-Court

Identifications, 60 Alb. L. Rev. 389, 418 & n.207 (1996) (citing

studies); Benjamin E. Rosenberg, Rethinking the Right to Due

Process in Connection with Pretrial Identification Procedures:

an Analysis and a Proposal, 79 Ky. L.J. 259, 276 & n.79 (1991)

(same).

10

In 1985, when Downing was decided, Rule 702 stated:

If scientific, technical, or other

23

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.

In 2000, Rule 702 was amended to incorporate the

holding in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 570

(1993). Rule 702 now states:

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.

Although the 2000 amendment added three new elements

to Rule 702, the first part of the rule dealing with general

24

field of human perception and memory, testimony concerning

the reliability of eyewitness identifications.” Id. at 1226. The

test outlined in Downing instructs the trial court, after

conducting a preliminary hearing, to balance two factors:

(1) the reliability of the scientific principles upon

which the expert testimony rests, hence the

potential of the testimony to aid the jury in

reaching an accurate resolution of a disputed

issue; and (2) the likelihood that introduction of

the testimony may in some way overwhelm or

mislead the jury.

Id. In addition, “admission depends upon the ‘fit,’ i.e., a

specific proffer that the testimony will focus on particular

characteristics of the eyewitness identification at issue and

discuss how those characteristics call into question the

reliability of the identification.” Sebetich, 776 F.2d at 419.

More specifically,

a defendant who seeks the admission of expert

testimony must make an on-the-record detailed

proffer to the court, including an explanation of

precisely how the expert’s testimony is relevant to

“helpfulness” remained unchanged. Thus, although Downing is

pre-Daubert, it remains good law. See United States v. Mathis,

264 F.3d 321, 336 (3d Cir. 2001) (relying upon Downing).

25

the eyewitness identifications under

consideration. The offer of proof should

establish the presence of factors (e.g., stress, or

differences in race or age as between the

eyewitness and the defendant) which have been

found by researchers to impair the accuracy of

eyewitness identifications.

Downing, 753 F.2d at 1242.

In Downing (and unlike this case), no specific proffer

was made in the District Court. Id. Nonetheless, we remanded

the case. In doing so, we cited with approval the admission of

expert psychological testimony concerning, inter alia, “the fact

that studies demonstrate the absence of a relationship between

the confidence a witness has in his or her identification and the

actual accuracy of that identification . . . .” Id. at 1230-31; see

also id. at 1242 & n.23 (noting “the proliferation of empirical

research demonstrating the pitfalls of eyewitness identification,”

“the [impressive] consistency of the results of these studies,”

and agreeing that “the science of eyewitness perception has

achieved the level of exactness, methodology and reliability of

any psychological research” (internal citations omitted)).11

11

In Downing, we noted that “[t]he government’s case

against appellant consisted primarily of the testimony of twelve

eyewitnesses who, with varying degrees of confidence, testified

that appellant was the [perpetrator]. These witnesses testified on

26

Subsequent to Downing, we reaffirmed in Stevens the

role of expert testimony regarding the lack of confidence-

accuracy correlation. 935 F.2d at 1384. In that case, we

reviewed the District Court’s decision to exclude expert

testimony on confidence of accuracy studies because it found no

“fit” between the proffered testimony and the facts of that case.

Id. at 1398. We reversed, pointing out the weak correlation (or

“fit”) between confidence of the witness and his/her accuracy.

Exclusion of the expert testimony, we determined, was error

under, inter alia, Federal Rule of Evidence 702:

We think that the district court misapprehended

Downing’s “fit” requirement. Both

[eyewitnesses] expressed high confidence in their

identifications of [the defendant] as the

perpetrator. To rebut the natural assumption that

the basis of their personal observations of [him] for periods

ranging from 5 to 45 minutes during the course of business

dealings that later were discovered to be fraudulent.” Id. at

1227 (internal footnote omitted). As the improperly excluded

potential testimony affected the reliability of both the key

prosecution evidence and the “sole defense [of] mistaken

identity,” we held that “[t]he district court’s erroneous

conclusion that expert testimony on the reliability of eyewitness

identifications is never admissible cannot be said to be harmless

to the appellant within the meaning of Fed. R. Evid. 103(a).” Id.

at 1243 n.25.

27

such a strong expression of confidence indicates

an unusually reliable identification, [the

defendant] sought to admit [expert] testimony

that there is a low correlation between confidence

and accuracy. We believe that [the expert’s]

proposed testimony “is sufficiently tied to the

facts of the case that it will aid the jury in

resolving a factual dispute.” Downing, 753 F.2d

at 1242.

***

Moreover, . . . [the expert’s] explication of the

confidence/accuracy studies could prove helpful

to the jury in assessing the reliability of [the

eyewitnesses’] identifications. That witnesses

ofttimes profess considerable confidence in

erroneous identifications is fairly counterintuitive.

See id. at 1230 n.6 (“To the extent that a

mistaken witness may retain great confidence in

an inaccurate identification, cross-examination

can hardly be seen as an effective way to reveal

the weakness in a witness’ recollection of an

event.”). In fact, [the expert] opined at the

preliminary hearing that the correlation between

confidence and accuracy in eyewitness

identifications is far lower than people probably

would expect. Given this potential for

28

helpfulness and “the liberal standard of

admissibility mandated by Rule 702,” id. at 1230,

we hold that the district court abused its

discretion in barring [the expert’s] tendered

testimony on the confidence/accuracy factor.

Stevens, 935 F.2d at 1406-07.

The same analysis necessarily controls here. Given that

“witnesses ofttimes profess considerable confidence in

erroneous identifications,” expert testimony was the only

method of imparting the knowledge concerning confidence-

accuracy correlation to the jury. Due to the nature of the

Government’s evidence12 and Brownlee’s defense (mistaken

identity), the primary issue before the jury was the reliability of

the Government’s four eyewitnesses. “[I]t would seem

anomalous to hold that the probative value of expert opinion

offered to show the unreliability of eyewitness testimony so

wastes time or confuses the issue that it cannot be considered

even when the putative effect is to vitiate the [primary]

evidence offered by the government.” Downing, 753 F.2d at

1243. In light of these considerations, we hold it was wrong to

12

The evidence linking Brownlee to the carjacking was

(1) his presence in the area wearing dark clothing, (2)

eyewitness testimony, and (3) the statements he allegedly made

to Dzugan (which the next section demonstates were

erroneously admitted).

29

exclude expert testimony regarding the reliability of the very

eyewitness identification evidence on which Brownlee was

convicted, and remand the case for a new trial.13

C. Did the District Court err by refusing to suppress

incriminating statements Brownlee allegedly made to a police

officer whom he knew at the time he was brought to the scene

of the accident?

At trial, the Government bolstered its eyewitness

identification evidence with the testimony of Constable Dzugan,

who claimed that Brownlee made various confessions to him

while in police custody at the scene of the accident. Dzugan

testified that he recognized Brownlee from playing

neighborhood basketball with Brownlee’s older brother

approximately twenty years previously, but that he had not seen

Brownlee for about ten years. According to Dzugan, while

seated in the police cruiser at the accident scene, Brownlee

struck up a conversation with him by yelling, “Hey, Dzugan,

can you turn the air conditioning on?” “Then he asked me if I

could call his father.” Dzugan obtained a piece of paper and

13

Our analysis here focuses on the confidence-accuracy

evidence because that is the topic the exclusion of which

Brownlee specifically challenges on appeal. We wish to make

clear, however, that Brownlee is entitled to introduce on remand

expert evidence in all ten of the categories he initially presented

to the District Court.

30

wrote down the telephone number of Brownlee’s father. The

Constable indicated that, at this point, he and Brownlee

proceeded to talk for “about a good fifteen minutes.” Dzugan

was asked whether “[a]t any point . . . Brownlee sa[id] anything

related to the accident?” Dzugan replied “Yes,” and testified as

follows:

I told him, I said, “[D]id you look up there at that

Jeep?” I said, “[H]ow crushed is it. You could

have been killed. How did you get out of here?”

He said, “I climbed through the back window.”

According to Dzugan, the following exchange also occurred:

Well, I told him, I says, “you know, you just were

in trouble.” I said, “you just got out of jail. Why

would you do something dumb, like this? With

a gun?” And he told me, he says, “[I]t wasn’t my

gun. It didn’t work. I got it from a friend in New

Kensington.”

Brownlee moved in the District Court to suppress this

testimony on the basis that the allegedly inculpatory statements

were obtained in violation of Miranda v. Arizona, 384 U.S. 436

(1966). In response, the Government conceded that (1)

Brownlee was in custody at the time he made the alleged

statements to Dzugan, (2) who was a law enforcement officer

for the purposes of Miranda, and (3) who failed to provide

31

Miranda warnings.14 Despite this, it argued that suppression of

the statements should be denied on the ground that the

incriminating answers were not the product of an

“interrogation.” The District Court adopted the Government’s

position in toto, stating:

14

Notwithstanding the fact that the Government

conceded—at the suppression hearing before the District Court

and again in its briefs to our Court—that Brownlee was not

provided Miranda warnings prior to any exchange with Dzugan,

at oral argument it contended that the trial testimony of Officer

Glock establishes that Miranda warnings were in fact provided

to Brownlee before Dzugan questioned him at the accident

scene. According to the Government, it failed to elicit this

testimony at the suppression hearing because Government trial

counsel fell ill prior to the hearing and the case had to be

reassigned.

We reject the Government’s invitation to look beyond the

evidence provided at the suppression hearing in order to resolve

the suppression issue before us. See United States v. Kithcart,

218 F.3d 213, 220-21 (holding that, absent a reasonable and

adequate explanation for the Government’s initial failure to

“introduce evidence that may have been essential to meeting its

burden of proof,” the resolution of suppression issues is to be

based “solely upon the evidence that was presented or offered at

the original sentencing hearing”). Nonetheless it is undisputed

that Dzugan testified at the suppression hearing that he had not

given Brownlee Miranda warnings and Glock’s trial testimony

concerning this point is equivocal at best.

32

Clearly, the defendant was in custody when he

was in the back of the police car. When

Constable Dzugan was talking to him at the scene

of the accident, without deciding, the Court will

assume that the constable is a law enforcement

officer for the purpose of conducting an custodial

interrogation following a felony arrest.

Therefore, Miranda warnings would be

appropriate before he should conduct a custodial

interview.

However, the Court finds that the constable had

a conversation with Mr. Brownlee, who[m] he

was aware of and knew for more than twenty

years. That Mr. Brownlee instigated and initiated

the conversation when he asked the constable to

call his father. And the constable did not use any

actions or words which he knew or should have

known were reasonably likely to elicit an

incriminating response from the defendant.

The constable did not, therefore, engage in

interrogation of the suspect, and his statement

from the defendant to the constable will be

admissible evidence.

Thus, the question before us is whether Dzugan “interrogated”

33

Brownlee,15 an inquiry that we answer in the affirmative for the

reasons that follow.

Under the prophylactic rules announced in Miranda, a

statement made by a suspect in response to custodial

interrogation after he or she has elected to remain silent is

inadmissible at trial. 384 U.S. at 478-79. As the Supreme

Court held in Rhode Island v. Innis, 446 U.S. 291 (1980), this

rule comes “into play whenever a person in custody is subjected

to either express questioning or its functional equivalent. That

is to say, the term ‘interrogation’ under Miranda refers . . . to

any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating response

from the suspect.” Id. at 300-01 (internal footnote omitted). An

incriminating response is “any response–whether inculpatory or

exculpatory–that the prosecution may seek to introduce at trial.”

Id. at 301 n.5 (emphasis in original). Police may not, however,

“be held accountable for the unforeseeable results of their

words or actions[,]” id. at 302, and to constitute an interrogation

their conduct “must reflect a measure of compulsion above and

15

Decisions on motions to suppress are subject to a mixed

standard of review. We may reverse the District Court’s findings

of fact only if clearly erroneous, but the Court’s determination

of whether a conversation constitutes an interrogation is subject

to plenary review. United States v. Calisto, 838 F.2d 711, 717-

18 (3d Cir. 1988).

34

beyond that inherent in custody itself.” Id. at 300.

While Dzugan alleges that Brownlee initiated the

“conversation” that took place shortly after his arrest by asking

the officer to adjust the air conditioning and, later, to call his

father, Dzugan concedes that it was he who took the

opportunity to bring up the subject of the crime. Indeed,

Dzugan admitted that he initiated the conversation concerning

the stolen car, the gun and the carjacking, and expressly asked

Brownlee:

(1) How did you get out of there?

(2) Did you get hurt?

(3) Why would you do something dumb like this?

(4) With a gun?

It is difficult to imagine questions that are more likely to evoke

an incriminating response – that is, a “statement[] . . .

amount[ing] to ‘admissions’ of part or all of the offense” –

from a suspect than those posed by Dzugan to Brownlee. Id. at

301 n.5 (quoting Miranda, 384 U.S. at 476-77).

The Government emphasizes that Dzugan was not

attempting to elicit incriminating statements from Brownlee.

The Supreme Court made clear in Innis, however, that the

35

interrogation analysis focuses “primarily upon the perceptions

of the suspect, rather than the intent of the police.” Id. at 301;

see also Illinois v. Perkins, 496 U.S. 292, 296 (1990) (stating

“[c]oercion is determined from the perspective of the suspect”).

The focus on a suspect’s perceptions “reflects . . . that the

Miranda safeguards were designed to vest a suspect in custody

with an added measure of protection against coercive police

practices, without regard to objective proof of the underlying

intent of the police.” Id.

While the “focus” of the Innis test is on the suspect’s

perceptions, the intent of a police officer is nonetheless

relevant. See id. at 301 n.7. The intent of the officer,

particularly when “a police practice is designed to elicit an

incriminating response,” may bear on the question of “whether

the police should have known that their words or actions were

reasonably likely to evoke an incriminating response.” Id.

Additionally, “[a]ny knowledge the police may have had

concerning the unusual susceptibility of a defendant to a

particular form of persuasion might be an important factor in

determining whether the police should have known that their

words or actions were reasonably likely to elicit an

incriminating response from the suspect.” Id. at 301 n.8.

The premise of Miranda is that a suspect speaking with

those whom he knows to be law enforcement officers “will feel

compelled to speak by the fear of reprisal for remaining silent

36

or in the hope of more lenient treatment should he confess.”

Perkins, 496 U.S. at 296-97 (emphasis added). In this

connection, it is likely that the acquaintanceship between

Dzugan and Brownlee as described by Dzugan increased rather

than decreased the importance of Miranda warnings. Indeed,

“[t]he Miranda warnings are intended to ‘warn’ a suspect that

the police have interests that are antagonistic to his, and that

they can use anything he says against him in court.” United

States v. Mesa, 638 F.2d 582, 588 n.5 (3d Cir. 1988). No

suspect needs Miranda warnings more than one questioned by

a law enforcement officer that the suspect assumes is a quasi-

confidante. Our Court has recognized that an agent’s

relationship with a suspect is a factor in the coercion analysis,

even absent any direct inquiry or deceptive intent on the part of

the agent. See United States v. Walton, 10 F.3d 1024, 1028 n.1

(3d Cir. 1993) (after acknowledging that conversation between

agent and suspect constituted “interrogation” within the

meaning of Innis, we stated “[w]e believe it self-evident that an

assurance to a suspect that an agent has known him ‘for a long

time’ [–] and that if he desires, he ‘can tell us what happened

off the cuff’ [–] is the functional equivalent of questioning”);

Miller v. Fenton, 796 F.2d 598, 607 (3d Cir. 1986) (“Excessive

friendliness on the part of an interrogator can be deceptive,”

potentially creating “an atmosphere in which a suspect forgets

that his questioner is in an adversarial role, and thereby prompt

admissions that the suspect would ordinarily make only to a

friend, not to the police.”); see also Miranda, 384 U.S. at 469

(stating that the warnings it requires are intended “to make the

37

individual more acutely aware that he is faced with a phase of

the adversary system–that he is not in the presence of persons

acting solely in his interests”). Moreover, that Brownlee and

Dzugan were friendly made Dzugan acutely aware of the

unusual susceptibility of Brownlee to his inquiries.

Simply stated, we conclude that Dzugan subjected

Brownlee to an “interrogation” without providing the warnings

demanded by Miranda. Because the District Court committed

constitutional error, we must reverse unless the Government

establishes that the improper admission of Brownlee’s

statements was “harmless beyond a reasonable doubt,” i.e.,

proves beyond a reasonable doubt that the inculpatory

statements “did not contribute to” Brownlee’s conviction.

Walton, 10 F.3d at 1032. As noted above, the evidence linking

Brownlee to the carjacking was (1) his presence in the area

wearing dark clothing, (2) eyewitness testimony (which

Brownlee was unable to attack as he wished via expert

testimony), and (3) the statements he allegedly made to Dzugan.

The record makes clear that the Government used Brownlee’s

statements to bolster its eyewitness testimony. Moreover, it is

difficult for the Government to argue with effect that the

admission of the confession did not contribute to Brownlee’s

conviction when it submitted just the opposite view to the jury

during the trial. As the Supreme Court has recognized,

[a] confession is like no other evidence. Indeed,

the defendant’s own confession is probably the

38

most probative and damaging evidence that can

be admitted against him . . . . [T]he admissions of

a defendant come from the actor himself, the

most knowledgeable and unimpeachable source

of information about his past conduct. Certainly,

confessions have profound impact on the jury, so

much so that we may justifiably doubt its ability

to put them out of mind even if told to do so.

Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (internal

quotations omitted).

For these reasons, we believe admission of the

confession was not harmless in this case. Therefore, we reverse

the District Court’s erroneous admission of Brownlee’s

inculpatory statements and remand the case for a new trial.

D. Was Brownlee unconstitutionally prosecuted for

intrastate crimes having no substantial relationship to

interstate commerce?

Brownlee also contends that his federal prosecution for

the crimes of carjacking (18 U.S.C. § 2119), using a firearm in

relation to a federal crime of violence (18 U.S.C. §

924(c)(1)(A)(ii)), and possession of a firearm by a convicted

felon (18 U.S.C. § 922(g)(1)), was unconstitutional. More

specifically, he argues that the statutes upon which his

convictions are based are unconstitutional, both facially and as

39

applied, because the convictions were for intrastate crimes, and

thus those statutes exceed the regulatory authority granted

Congress under the Constitution’s Commerce Clause. U.S.

Const. art. I, § 8, cl. 3. Brownlee concedes that separate panels

of our Court have previously addressed the constitutionality of

the felon-in-possession statute, United States v. Singletary, 268

F.3d 196 (3d Cir. 2001), and the carjacking statute, United

States v. Bishop, 66 F.3d 569 (3d Cir. 1995), and found them to

be constitutional. He nonetheless requests reconsideration of

those issues.

In Singletary, a panel of this Court scrutinized the same

line of Commerce Clause decisions of the Supreme Court to

which Brownlee directs our attention, and ruled that § 922(g)

was constitutional. See 268 F.3d at 200-205 (analyzing Jones

v. United States, 529 U.S. 848 (2000); United States v.

Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514

U.S. 549 (1995); Scarborough v. United States, 431 U.S. 563

(1977)). A similar analysis was provided—albeit without the

benefit of the Jones and Morrison decisions––by the Bishop

panel, which held that § 2119 was constitutional. In light of the

binding effect we give to precedential opinions of panels of this

Court, and because we discern no principled distinction

between the statutes already ruled on by our Court and §

924(c)(1)(A)(ii), we must reject Brownlee’s argument and hold

that the statutes he challenges survive constitutional scrutiny.

40

See 3d Cir. Internal Operating P. 9.1.16

III. Conclusion

We affirm the District Court’s ruling that the eyewitness

identifications were reliable and admissible at trial despite the

fact that the show-up procedure was unnecessarily suggestive,

and reject Brownlee’s claim that he was unconstitutionally

prosecuted for intrastate crimes having no substantial

relationship to interstate commerce. We reverse, however, the

District Court’s (1) exclusion of expert testimony regarding the

reliability of the eyewitness identification evidence upon which

Brownlee was convicted and (2) admission of Brownlee’s

inculpatory statements to Constable Dzugan because they were

the product of a custodial interrogation without Miranda

warnings. As a result of those determinations, we remand this

case for a new trial.

16

Because Brownlee has raised two meritorious grounds

warranting remand of his case for a new trial, we need not reach

the sentencing issues he advances on appeal.

41