Opposition Brief — Masarik v. United States (No. 09-302)

Supteme Court, U.S.

FILED

DEC 14 2009

OFFICE OF THE CLERK

No. 09-302

Jn the Supreme Court of the Gnited States

DANIEL MASARIK, PETITIONER

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

K LENA KAGAN

Solicitor General

Counsel of Record

THOMAS E.. PEREZ

Assistant Attorney General

JESSICA DUNSAY SILVER

DIRK C, PHILLIPS

Attorneys

Department of Justice

Washington, D.C. 20530 0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court abused its discretion

in excluding expert testimony on the reliability of eye-

witness identifications.

2. Whether the exclusion of such testimony violated

petitioner’s Fifth or Sixth Amendment rights.

TABLE OF CONTENTS

Page

NE 23, as'ea k ad 64a OSs Vee a 8 RT eRe eS l

oer y rae esd peas Sw eel one er l

an en Se eG Cee re oaths ia ere 1

oe oo ee ge als ak ee aly oa wary ee a piers 6

SN ee eo ue Ela una ee ce k x eee wae a ee 15

TABLE OF AUTHORITIES

Cases:

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.

es rere nan, Pe re er ey 11

Chambers v. Mississippi, 410 U.S. 284 (1973) .......... 12

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

Ree Reena arr ere a oe eee 7,13

Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007) ...... 8,13

General Elec. Co. v. Joiner, 522 U.S. 136 (1997) ......... 7

Holmes v. South Carolina, 547 U.S. 319 (2006) ......... 13

Rock v. Arkansas, 483 U.S. 44 (1987) ................. 12

Sprint/United Mgmt. Co. v. Mendelsohn, 128 S. Ct.

RE oa eta at ae oe teal a. coh tana bee ne 4s 6

Taylor v. Illinois, 484 U.S. 400 (1988)... 22... .2.2.-- 13

U/nited States v. Brownlee, 454 F.3d 131 (3d Cir. 2006) ... 9

United States v. Holloway, 971 F.2d 675 (11th Cir.

1992), cert. denied, 507 U.S. 962 (1993) ............. ll

l/nited States v. Jackson, 50 F.3d 1335 (5th Cir. 1995) ... 7

United States v. Langan, 263 F.3d 613 (6th Cir. 2001) .... 8

United States v. Martin, 391 F.3d 949 (8th Cir. 2004) ... 11

(III)

IV

Cases—Continued: Page

United States v. Mathis, 264 F.3d 321 (3d Cir. 2001),

cert. denied, 535 U.S. 908 (2002) ................. 9 10

United States v. Moore, 786 F.2d 1308 (5th Cir. 1986) .... 7

United States v. Rodriguez-Berrios, 573 F.3d 55

eR fen Cos wo ee ea ge sas + 0k oad 10

United States v. Rodriguez-Felix, 450 F.3d 1117

(10th Cir.), cert. denied, 549 U.S. 968 (2006) ......... l]

United States v. Scheffer, 523 U.S. 308 (1998) ....... 12,13

United States v. Smith, 122 F.3d 1355 (11th Cir.),

cert. denied, 6522 U.S. 1021 (1907) 2... cece cee eees ll

United States v. Smithers, 212 F.3d 306 (6th Cir.

Eras ee eee ee a ere ere ey

United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991) .... 9

United states v. Thevis, 665 F.2d 616 (5th Cir.

Unit B), cert. denied, 456 U.S. 1008, 458 U.S. 1109,

ee CE oo cx we cata baa hede nese nes 1]

United States v. Valenzuela-Bernal, 458 U.S. 858

ge ee a ele cae kasd CEA REAR ee eae 14

Constitution, statutes and rules:

U.S. Const.:

RR ere rer eee rn eer ee rE eT 1]

or ee Sets aA REA ae 1]

he eae Ce See aah se hae mad Ieee 1,3

I i et ery a EL ge ee Sane 1,3

ee gia Sa ay ce ace arn oe we mela ae 1,3

ie alls pis ev eWeek RAMA wb OR OD 14

Rule—Continued: Page

Fed. R. Evid.:

ee ee eo Re 5, 6, 8,9

Re

Jn the Supreme Court of the Cinited States

No. 09-302

DANIEL MASARIK, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-18a)

is reported at 567 F.3d 901.

JURISDICTION

The judgment of the court of appeals was entered on

June 8, 2009. The petition for a writ of certiorari was

filed on September 3, 2009. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Wisconsin, petitioner

was convicted of conspiracy to violate federal rights, in

violation of 18 U.S.C. 241, and deprivation of federal

rights under color of law, in violation of 18 U.S.C. 2 and

18 U.S.C. 242. Petitioner was sentenced to 188 months

(1)

2

of imprisonment, to be followed by three years of super-

vised release, and to pay restitution. Judgment 1-3, 5.

The court of appeals affirmed. Pet. App. la-18a.

1. Petitioner was one of several off-duty Milwaukee

police officers attending a party that began the evening

of Saturday, October 23, 2004, and lasted into the early

morning hours. Alcohol was plentiful at the party, and

petitioner was intoxicated, as were the other two police

officers convicted at trial. Pet. App. la-2a; Gov’t C.A.

Br. 3-4.

The principal victim in this case, F.J., was invited to

the party by two of the other guests. F.J. and the rest

of his group arrived at the party at approximately 2:40

a.m., but stayed for only a few minutes. Shortly after

they departed, partygoers came to believe that someone

in F.J.’s group had stolen a police badge belonging to

the party host, co-defendant Andrew Spengler. Pet.

App. la-2a; Gov’t C.A. Br. 4.

Based on this mistaken belief, petitioner and others

from the party followed the group to a pickup truck and

used their authority as police officers to prevent the

group from leaving. They then forcibly removed F.J.

and L.H. from the truck, with some of the assailants

using racial epithets. Pet. App. 2a; Gov’t C.A. Br. 4, 7-9.

L.H. fled, but F.J. was severely beaten. Bystanders

called 911, but the assault continued even after the ar-

rival of the first on-duty officers, and even after F.J. was

placed in handcuffs. Petitioner participated in the beat-

ing; the evidence of petitioner’s involvement included

testimony by petitioner’s fellow officer Nicole Martinez

that petitioner spread F.J.’s legs and kicked him in the

crotch multiple times. Pet. App. 2a-3a; Gov’t C.A. Br.

15; see id. at 10. F.J. suffered substantial physical inju-

3

ries as a result of the assault. No badge was ever recov-

ered. Pet. App. 4a; Gov’t C.A. Br, 17, 20-22.

2. A grand jury sitting in the Eastern District of

Wisconsin returned an indictment charging petitioner

and four co-defendants with one count of conspiracy to

violate federal rights, in violation of 18 U.S.C. 241, and

one count of deprivation of federal rights under color of

law, in violation of 18 U.S.C. 2 and 18 U.S.C, 242. Indict-

ment 1-4.

At trial, six eyewitnesses placed petitioner at the

scene of the assault on F.J. Pet. App. 6a; Gov't C.A. Br.

45. Petitioner testified in his own defense that he was in

the house during the assault and did not even see F..J. or

his companions at tne party. Pet. App. 6a; Pet. 10-12.’

Another government witness contradicted petitioner’s

alibi by testifying that she was in the house after F.J.

and his group left and did not see petitioner there. Gov't

C.A. Br. 45.

Petitioner sought to qualify Otto H. MacLin as an

expert on eyewitness identifications and to have him

testify at trial about the accuracy of eyewitness identifi-

cations in general. See Pet. 12-14. The district court

excluded the testimony. Pet. App. 19a-20a. The court

stated that it was “not satisfied that [the proffered ex-

pert] would] be testifying based upon factors that can

be tested, that this witness w[ould] satisfy the require-

ments for proffering so-called expert testimony for a

jury.” /d. at 19a. The court also noted, inter alia, that

“jurors are constantly required to assess the credibility

of various witnesses and can determine based upon di-

rect and cross examination whether or not a witness is

' The district court subsequently found at sentencing that peti-

tioner’s trial testimony had heen perjurious. See Gov't C.A. Br. &4.

4

to be believed,” zb2d., and that “[a]n expert does not re-

ally lend that much more to the trial when he or she tes-

tifies that people are affected by the number of times

they see a particular person or the things that may have

occurred on or about the time of the incident at issue.”

Id. at 20a. The district court concluded that “it would

not be appropriate * * * to open the door to extensive

examination and cross examination of a witness whose

testimony really does nothing more than * * * seruti-

nize the facts and circumstances that have a bearing on

a witness’s testimony,” which “the jury is required to

do” in any event. /bid.

The district court also noted that “there is a general

instruction in the packet of instructions that talks about

the factors that a jury may consider in determining

whether or not to believe a particular witness or a num-

ber of witnesses,” concluding that “those instructions

are sufficient under the circumstance.” Gov't C.A. Br.

39. The court invited petitioner to offer additional in-

structions, but he did not do so. /bid.

The jury found petitioner and two co-defendants

guilty on both counts. The third co-defendant was ac-

quitted.*

3. The court of appeals affirmed. Pet. App. la-18a.

As relevant here, the court of appeals stated that the

district court’s reasoning “that jurors could determine

the reliability of identifications using the evidence from

direct and cross examinations” was weak. Pet. App. 7a.

The court explained that expert testimony can be of as-

sistance in explaining to the jury “whether their beliefs

about the reliability of eyewitness testimony are cor-

~ The final co-defendant, Ryan Lemke, entered a guilty plea before

trial and testified against petitioner. See Pet. App. 4a-5a.

5

rect.” /d. at 8a. But the court concluded that the dis-

trict court did not abuse its discretion in excluding Dr.

MacLin’s proffered testimony under Rule 403 of the

Federal Rules of Evidence. /d. at 8a-9a. As the court

explained, “Rule 403 grants discretion to the trial judge”

to “balance the benefits of illuminating evidence against

the costs of collateral inquiries” that may “sidetrack a

trial.” /d. at 8a. And the court noted that it has often

held that “a trial court does not abuse its discretion [un-

der Rule 403] by excluding expert evidence about the

reliability of eyewitness testimony,” even though the

court of appeals fully agreed that “|s|tudy after study

has shown very high error rates in the identification of

strangers.” /d. at 7a, 8a.

In this case, the court of appeals held, the district

court’s decision was a reasonable exercise of gate-

keeping discretion, because petitioner did not “show how

the [expert’s] findings [would] apply to the litigation at

hand.” Pet. App. 9a. This case involved consistent iden-

tification by six witnesses, not one, and some of the six

had previously met petitioner. See 2d. at 8a-9a. Peti-

tioner’s scientific evidence, by contrast, “concern[ed]

identification by single eyewitnesses,” a situation in

which the absence of corroboration makes the probabil-

ity of mistake higher. /d. at 9a. The court also noted

that petitioner had opted to argue for either “an expert

on the stand” or “nothing”: he did not ask the district

court to give an instruction summarizing the relevant

scientific knowledge, which a previous opinion had sug-

gested as a useful way of avoiding the need for “a parade

of experts.” [bid.

The court of appeals considered petitioner’s argu-

ment that the exclusion amounted to a constitutional

6

violation and “rejectled] [it] without comment.” Pet.

App. 5a.

ARGUMENT

Petitioner renews his argument (Pet. 14-22) that the

district court should have permitted him to call his de-

sired expert on the reliability of eyewitness identifica-

tion evidence. The court of appeals correctly found no

abuse of discretion, and that fact-bound decision does

not conflict with any decision of another appellate court.

Further review therefore is not warranted.

1. The court of appeals did not hold that expert tes-

timony about eyewitness identifications is never admis-

sible. Indeed, it recognized that such testimony can be

helpful to the jury. Pet. App. 8a. But Rule 403 of the

Federal Rules of Evidence affords the district court dis-

cretion to weigh the probative value of such evidence

against its potential for prejudice, confusion, and undue

delay (among other considerations), and the court of

appeals held only that under the circumstances of this

case, the district court did not abuse its ample discretion

by concluding that the evidence was not sufficiently pro-

bative to warrant the trial time that it would have con-

sumed. As this Court has recognized, the application of

Rule 403 “requires a fact-intensive, context-specific in-

quiry.” Sprint/United Mgmt. Co. v. Mendelsohn, 128

S. Ct. 1140, 1147 (2008). The district court properly con-

ducted that inquiry here, and the court of appeals’ hold-

ing that the district court’s conclusion was a reasonable

one does not warrant further review.

Petitioner cites (Pet. 20-22) cases from other circuits

in which expert testimony on these or similar issues was

admitted. But as this Court has emphasized, both deci-

sions to admit expert evidence and decisions to exclude

7

such evidence are reviewed under the same deferential

abuse-of-diseretion standard. See General Elec. Co. v.

Joiner, 522 U.S. 1386, 142 (1997). The cases on which

petitioner principally relies apply that standard of re-

view, and they therefore do not establish a per se rule of

admissibility any more than the decision below estab-

lishes a per se rule of exclusion. That courts reach dif-

ferent results in applying an abuse-of-discretion stan-

dard to a fact-intensive, case-specific inquiry such as the

one at issue here in no way indicates a split in authority.

Indeed, the Fifth Circuit decision that petitioner

cites actually affirmed the exclusion of expert testimony

on eyewitness identification. As petitioner notes, the

panel in United States v. Moore, 786 F.2d 1308 (5th Cir.

1986), “aecept{ed] the modern conclusion that the admis-

sion of expert testimony regarding eyewitness identifi-

cations is proper.” /d. at 1312. But on the facts of that

case, the court held that the district court did not abuse

its discretion in excluding the testimony in question. /d.

at 1312-1313; accord, e.g., United States v. Jackson, 50

F.3d 1335, 1340 (5th Cir. 1995).

The Sixth Circuit decision that petitioner cites also

does not support his position, because the court of ap-

peals did not even determine that the expert testimony

should have been admitted. See Uniled States v. Smith-

ers, 212 F.3d 306, 318 (2000). Rather, the court simply

held that the district court had erred by not holding a

hearing to analyze the expert’s testimony under the

standard of Daubert v. Merrell Dow Pharmaceuticals,

Tnc., 509 U.S. 579 (1993), and remanded for a Daubert

hearing. See 212 F.3d at 314.° The court also held that

* The court of appeals’ reversal in Smithers was also partly based on

a fact unique to that case: the district court’s improper statement that

8

the evidence could not be excluded under Rule 403 as a

discovery sanction to punish defense counsel’s purport-

edly late disclosure of intent to present the expert. See

id. at 316-317. The court nonetheless acknowledged that

unwarranted trial delay 7s a proper basis for exclusion

under Rule 403. See zbid.* The Sixth Circuit has subse-

quently confirmed that expert testimony on eyewitness

identification is not automatically admissible: in a case

in which the district court did conduct the proper analy-

sis, the Sixth Circuit held that the exclusion of expert

testimony on eyewitness identifications was not an abuse

of discretion. See United States v. Langan, 263 F.3d

613, 622 (2001).

Similarly, the Third Circuit has not laid down a hard

and fast rule requiring the admission of expert testi-

mony concerning eyewitness identification. Rather, the

decisions that petitioner cites carefully examine the

proffered evidence and its probative value on the facts

of cach case. In some instances the court affirmed the

it excluded the testimony in part because it believed the case would

present a “more interesting” jury question without it, an observation

that the Sixth Circuit described as “gamesmanship at its worst.” 212

F.3d at 314-315.

* Similarly, in Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), a

divided panel granted habeas relief based on the state trial court’s ex-

clusion of expert testimony as adiscovery sanction, a step that the court

of appeals concluded was arbitrary under the circumstances. See zd. at

477-478. The trial court in F'erensic did not examine the relevance or

probativeness of the expert testimony. And to the extent the court of

appeals considered those issues in assessing prejudice, it took pains to

note that it “limit[ed] [its] holding to the situation here,” where a note

from the jury “reflect{ed] the doubts of the jury itself as to the identi-

fication of the perpetrator.” Ja. at 484. The district court’s ruling in

this case involved none of those considerations: it was not a discovery

sanction, and the court had no jury note.

9

exclusion of expert testimony under Rule 403; in others,

it concluded that the testimony should have been admit-

ted. Compare United States v. Mathis, 264 F.3d 321,

340-341 (2001) (affirming exclusion of proffered testi-

mony regarding the effect of an eyewitness’s observa-

tion time on memory formation and the effect of a first

identification on subsequent identifications), cert. de-

nied, 535 U.S. 908 (2002), and Unzted States v. Stevens,

935 F.2d 1380, 1398-1400 (1991) (affirming exclusion,

under Rule 403, of expert testimony concerning the sug-

gestiveness of a photo array used for identification and

the problems with multiple successive identifications by

the same eyewitness), with Mathis, 264 F.3d at 341-342

(reversing exclusion, under Rule 702, of expert testi-

mony concerning (inter alia) the relationship between an

eyewitness’s confidence and her accuracy and the phe-

nomenon of “weapons focus”), and Stevens, 935 F.2d at

1400-1401 (reversing exclusion of similar evidence about

confidence-accuracy relationship). In each case, the

court of appeals recognized that the district court enjoys

substantial discretion. E.g., Mathis, 264 F.3d at 338,

341-342; see also United States v. Brownlee, 454 F.3d

131, 140-144 (8d Cir. 2006) (reversing exclusion of expert

testimony under Daubert and Rule 702 but not consider-

ing any Rule 403 issue).

The decision below does not conflict with the analysis

in any of the above cases. The court of appeals acknowl-

edged the potential utility of expert testimony on the

reliability of eyewitness identification, but affirmed the

district court’s case-specific exercise of discretion under

Rule 403 to exclude it. See Pet. App. 6a-8a; pp. 4-5, su-

pra. Nothing in the cases petitioner cites suggests that

10

a case with these facts would have been decided differ-

ently in another circuit.”

2. Petitioner also suggests (Pet. 21) that several

other circuits have created a circuit conflict by adopting

a rule categorically excluding such expert testimony.

The court of appeals in this case did not announce or

apply any such rule, however. Petitioner’s contention

that his evidence would have been less favorably re-

ceived in other circuits does not justify further review.

In any event, petitioner errs in asserting that the

circuits are deeply divided on this issue. Petitioner as-

serts (Pet. 21) that many circuits “routinely exclude[]”

expert testimony of this nature, but in fact the cases that

petitioner cites simply apply the same fact-sensitive

abuse-of-discretion standard as in the circuits discussed

above, or in any other expert-evidence case. See, ¢.g.,

United States v. Rodriguez-Berrios, 573 F.3d 55, 71 (1st

Cir. 2009) (“[W]e have consistently maintained that the

admission of [expert] testimony [about eyewitness iden-

tifications] is a matter of case-by-case discretion and

have refused to adopt such a blanket rule for its admis-

sion or exclusion. We adhere to that position. While

such testimony will sometimes comply with the stric-

tures of Federal Rule of Evidence 702 (the rule that gov-

erns expert testimony) because it ‘will assist the trier of

fact to understand the evidence or to determine a fact in

issue,’ other times it will not.”) (citations omitted);

* Petitioner also glosses over the factual, methodological, and prac-

tical differences between various categories of expert testimony in this

area. Not all expert testimony about eyewitness identification is identi-

cal, and decisions reviewing its admissibility have recognized @s much.

See, e.g., Mathis, 264 F.3d at 340-341 & n.7 (identifying four distinct

“components” of the proffered expert testimony and reaching varying

conclusions about their exclusion).

1]

United States v. Rodriguez-Felix, 450 F.3d 1117, 1124-

1125 (16th Cir.) (stating that “[w]e [have] rejected a per

se rule excluding such expert testimony”), cert. denied,

549 U.S. 968 (2006); accord, e.g., United States v. Mar-

ton, 391 F.3d 949, 954 (8th Cir. 2004) (reviewing for

abuse of discretion).

The Eleventh Circuit has arguably taken a somewhat

more restrictive view against the admissibility of such

testimony, based on precedent predating both Daubert

and the creation of the Eleventh Circuit. In 1982, Unit

B of the Fifth Circuit held that a district court did not

abuse its discretion in excluding expert testimony con-

cerning eyewiiness identification. United States v.

Thevis, 665 F.2d 616, 641, cert. denied, 456 U.S. 1008,

458 U.S. 1109, and 459 U.S. 825 (1982). That holding

became precedent in the new Eleventh Circuit. See

Bonner v. City of Pichard, 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc) (adopting decisions of the former

Fifth Cireuit before October 1, 1981). Thereafter, when

affirming rulings excluding such expert testimony, the

new court occasionally referred to T'hevis as establishing

that such testimony “is not admissible.” E.g., United

States v. Holloway, 971 F.2d 675, 679 (11th Cir. 1992),

cert. denied, 507 U.S. 962 (1993). Following Daubert,

however, the Eleventh Circuit has acknowledged that

any rule of “per se inadmissibility” might be subject to

re-examination in light of this Court’s intervening deci-

sion. The Eleventh Circuit has not yet had occasion to

do so, however, because it has concluded that its nar-

rower precedent in Thevis—that the exclusion of expert

testimony about eyewitness identification is not an

abuse of discretion—is consistent with Daubert. United

States v. Smith, 122 F.8d 1355, 1358 (per curiam), cert.

denied, 522 U.S. 1021 (1997). Accordingly, the state of

12

the law in the Eleventh Circuit is still somewhat uncer-

tain; it would afford no basis for review in this case.

3. Petitioner also contends (Pet. 18-19) that the ex-

clusion of expert testimony on the reliability of eyewit-

ness identifications amounts to a denial of his Fifth and

Sixth Amendment rights. The court of appeals correctly

rejected that contention, and the court’s summary dispo-

sition of that issue does not conflict with any other ap-

pellate decision.

As this Court has held, “[a] defendant’s right to pres-

ent relevant evidence is not unlimited, but rather is sub-

ject to reasonable restrictions” that “‘accommodate

other legitimate interests in the criminal trial process.’”

United States v. Scheffer, 523 U.S. 303, 308 (1998) (quot-

ing Rock v. Arkansas, 483 U.S. 44, 55 (1987)). In exer-

cising their right to present witnesses, defendants “must

comply with established rules of procedure and evidence

designed to assure both fairness and reliability in the

ascertainment of guilt and innocence.” Chambers v.

Mississippi, 410 U.S. 284, 302 (1973). “[S]tate and fed-

eral rulemakers have broad latitude under the Constitu-

tion to establish rules excluding evidence from criminal

trials,” and “[sluch rules do not abridge an accused’s

right to present a defense so long as they are not ‘arbi-

trary’ or ‘disproportionate to the purposes they are de-

signed to serve.’” Scheffer, 523 U.S. at 308 (quoting

Rock, 483 U.S. at 56). This Court “ha[s] found the exclu-

sion of evidence to be unconstitnutionally arbitrary or

disproportionate only where it has infringed upon a

weighty interest of the accused.” /bid. It has also rec-

ognized that, consistent with the defendant’s constitu-

tional right to present a defense, “well-established rules

of evidence permit trial judges to exclude evidence if its

probative value is outweighed by certain other factors

13

such as unfair prejudice, confusion of the issues, or po-

tential to mislead the jury.” Holmes v. South Carolina,

547 U.S. 319, 326 (2006).

The district court’s exclusion of expert testimony in

this case was not an arbitrary infringement on pceti-

tioner’s “weighty interest,” Scheffer, 523 U.S. at 308.

The district court rationally and properly concluded that

the use of trial time for expert testimony—both peti-

tioner’s proffered expert and the rebuttal by the govern-

ment that would likely have been needed—was not justi-

fied by its probative value in a case like this one, in

which six separate witnesses attested to petitioner’s

participation in the beating and a seventh eyewitness

refuted petitioner’s alibi. As the court of appeals also

explained, petitioner’s expert did not propose to address

“the probability of error when multiple witnesses iden-

tify the same person,” Pet. App. 9a, thus making the

proffered testimony a poor “fit” with the facts of this

ease. See Daubert, 509 U.S. at 591. This Court in Schef-

fer upheld a categorical exclusion of a form of expert

testimony concerning an ancillary issue of credibility

(polygraph results). 523 U.S. at 317. The district

court’s analysis in this case, which was case-specific

rather than categorical, is entirely consistent with this

Court’s precedeiits.

In suggesting that a conflict exists on this issue, peti-

tioner relies primarily upon the Sixth Circuit’s decision

in Ferensic v. Birkett, 501 &.3d 469 (2007). In that case,

the state court excluded the evidence “simply because

Ferensic had failed to comply with a pretrial discovery

order.” /d. at 482. As noted, that was not the basis for

the exclusion here. See note 4, supra. In any event, this

Court has rejected the notion that the constitutional

right to put on a defense precludes ever imposing such

14

a discovery sanction, see Taylor v. [llinois, 484 U.S. 400,

410-416 (1988), and the court in F'erensic reached a dif-

ferent result only because of facts “in th{at] specific

case” showing that the discovery violation actually

caused no prejudice to the prosecution. 501 F.3d at 477;

see also id. at 479 (noting the “admittedly fact-inten-

sive” analysis by which the court concluded that the

sanction was disproportionate).

4. Even if there were a conflict warranting this

Court’s review of the standards under the Rules of Evi-

dence or the Constitution for admitting expert testi-

mony on eyewitness identification, this case would be an

inappropriate vehicle, because there is ample evidence

of petitioner’s guilt and any error in excluding peti-

tioner’s proffered expert was harmless and not material.

See Fed. R. Crim. P. 52(a); United States v. Valenzuela-

Bernal, 458 U.S. 858, 867 (1982). As the court of appeals

noted, petitioner was identified by six different eyewit-

nesses, not all of whom were strangers to petitioner.

See, e.g., Trial Tr. 443-444 (Jodi Kamermeyer had spent

time talking to petitioner earlier in the evening and had

paid particular attention to him because she had thought

he was good-looking); id. at 786, 793 (Jon Clausing had

met petitioner earlier in the evening and observed that

he was intoxicated). Others had direct, up-close contact

with petitioner during the incident. See Pet. App. 3a

(before kicking F.J. in the groin, petitioner told Officer

Nicole Martinez, “I’m really sorry you have to see this”);

Trial Tr. 629 (petitioner “came up to [Mariah Gagnon’s]

face and told [her she] better shut up”).°

” 'The court of appeals’ statement that four of the eyewitnesses “knew

[petitioner] well,” Pet. App. 8a, overstates the testimony.

15

The jury also had an opportunity to evaluate peti-

tioner’s theory of mistaken identification, see Pet. 17,

when petitioner was allowed to call to the witness stand

the other defendant whom petitioner claimed he resem-

bled and permit the jury to see him. Gov’t C.A. Br. 46;

see also 2d. at 46 n.19 (noting that eyewitnesses who per-

sonally knew the other defendant specifically testified

that they did not confuse him with petitioner). And peti-

tioner had the opportunity to tell his own story from the

witness stand. His alibi was refuted by another eyewit-

ness, and the jury evidently did not credit his story. Nor

did the district court, which found at sentencing that

petitioner had testified perjuriously. See note 1, supra.

As the court of appeals correctly observed, this is not a

conviction that turned on a single eyewitness’s recollec-

tion of her fleeting observation of a complete stranger.

The ample evidence of petitioner’s guilt confirms that no

further review of the district court’s evidentiary ruling

is warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

THOMAS E. PEREZ

Assistant Attorney General

JESSICA DUNSAY SILVER

DIRK C, PHILLIPS

Attorneys

DECEMBER 2009