United States v. McGinnis

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
September 28, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-30317
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED McGINNIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(2:04-CR-196)
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Alfred McGinnis was convicted of: armed bank robbery, in
violation of 18 U.S.C. § 2113(a) & (d); and brandishing a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c)(1).
He challenges the exclusion of expert-witness testimony on the
subject of witness-identification errors. AFFIRMED.

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I.
At approximately 3:30 p.m. on 15 June 2004, a black male of
medium height and stocky build robbed a bank in New Orleans,
Louisiana. The robber wore a hat, sunglasses, and painter-style
jeans with white stitching; carried a dark-colored duffel bag and
gun; pointed the gun at two bank tellers while ordering the duffel
bag to be filled with money; and began to count down from ten. The
tellers complied, and the robber escaped on foot with $9748 in the
duffel bag.
On 19 June, four days after the robbery, a headshot photo of
the robber, taken from a surveillance camera inside the bank, was
published in New Orleans’ newspaper, The Times-Picayune, requesting
readers to identify the robber. Nine individuals made telephone
calls based on the photograph. Two callers identified McGinnis;
seven others identified seven other persons. The two callers who
identified McGinnis were his co-workers at the Veterans
Administration Medical Center. FBI Agents then interviewed three
other co-workers, who also identified McGinnis as the robber in the
photograph; a few of these witnesses said the robber looked like
McGinnis because of the distinctive way he tilted or positioned his
head. One of the witnesses, McGinnis’ supervisor, stated McGinnis
had left work one month before the robbery and had not returned.
Relying on these recognition witnesses, the FBI executed
arrest and search warrants for McGinnis and his home. In McGinnis’

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bedroom closet, FBI Agents found painter-style jeans and a duffel
bag similar to that used in the robbery. Following his arrest,
McGinnis called his wife from jail, and she told him “eight
dollars” were missing, in the context of a conversation where
McGinnis and his wife lamented they could no longer afford a $399
swimming pool.
McGinnis intended to call Dr. Robert Shomer, a psychologist,
as an expert witness at trial. The Government moved in limine,
however, to exclude his testimony. McGinnis responded that Dr.
Shomer would address psychological problems resulting from witness
identifications. In addition, in an earlier letter to the court,
responding to the Government’s motion, McGinnis’ counsel stated his
intent to rely on Dr. Shomer’s expertise relating to: “factors
that may impact a witness’s ability to process, store and recall
information from a stressful event”; and “problems relating to
misidentification by eyewitnesses or other witnesses who have
relied on photographs to identify alleged perpetrators”. The
district court decided to rule on the Government’s motion after it
presented its case-in-chief at trial.
At the conclusion of the Government’s case, Dr. Shomer was
questioned outside the jury’s presence regarding his potential
testimony. Based on this examination, the district court excluded
that testimony, stating “the jury can fully appreciate a
misidentification, if, in fact, one occurred”.

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On 3 November 2004, the jury found McGinnis guilty.
Subsequently, he was sentenced, inter alia, to 60 months
imprisonment for armed bank robbery and 84 months for brandishing
a firearm during a crime of violence, to be served consecutively.
II.
McGinnis raises two issues on appeal. Primarily, he
challenges the exclusion of his expert’s testimony. Concomitantly,
he presents a constitutional challenge concerning the resulting
harm to his defense. The exclusion of expert-witness testimony is
reviewed for an abuse of discretion. Kumho Tire Co. v. Carmichael,
526 U.S. 137, 152 (1999); United States v. Dixon, 413 F.3d 520, 523
(5th Cir. 2005).
A.
The admissibility of expert testimony is governed by the
Federal Rules of Evidence, which instruct:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2)
the testimony is the product of reliable
principles and methods, and (3) the witness
has applied the principles and methods
reliably to the facts of the case.
FED. R. EVID. 702. Under this rule, and pursuant to Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), “expert
testimony is admissible ... only if it is both relevant and

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reliable”. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244-45 (5th
Cir. 2002). “In Daubert, the Supreme Court stated that Rule 702
requires that expert testimony ‘assist the trier of fact to
understand the evidence or to determine a fact in issue’.” Id. at
245 (quoting Daubert, 509 U.S. at 591). Thus, under Rule 702, even
a qualified expert need not be permitted to testify if, in the
district court’s broad discretion, the testimony would not assist
the jury. Dixon, 413 F.3d at 524. An example is if the testimony
would provide information that is a matter of common knowledge.
United States v. Harris, 995 F.2d 532, 534 (4th Cir. 1993).
Regarding experts called to provide psychological theories,
“any problems with perception and memory are easily understood by
jurors and can be adequately addressed through cross-examination”.
United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986). Our
court has also acknowledged that the results of “psychological
studies are largely counter-intuitive, and serve to explode common
myths about an individual’s capacity for perception”. Id.
(emphasis in original; internal quotation marks omitted).
In Moore, this court examined, and affirmed the exclusion of,
expert testimony regarding eyewitness identification; the expert
was to testify regarding psychological theories of eyewitness
identification, including the “forgetting curve”, the “assimilation
factor”, and the “feedback factor”. Id. at 1311. Despite the
counter-intuitive nature of some psychological theories and an

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acceptance of expert testimony addressing the reliability of
eyewitness identifications, the expert’s exclusion was affirmed.
Id. at 1312-13. Although “expert eyewitness identification
testimony may be critical” when eyewitness testimony “make[s] the
entire difference between a finding of guilt or innocence”, it
obviously becomes considerably less critical when physical evidence
of guilt substantiates such testimony. Id. at 1313; see id. (“We
emphasize that in a case in which the sole testimony is casual
eyewitness identification, expert testimony regarding the accuracy
of that identification is admissible and properly may be
encouraged.”).
In contrast to Moore, where “overwhelming” evidence existed of
the defendants’ guilt, the exclusion of expert testimony was
reversed in United States v. Alexander, 816 F.2d 164 (5th Cir.
1987), cert. denied, 493 U.S. 1069 (1990). Following a robbery at
a savings and loan institution (bank), copies of robbery
photographs shown to its employees were displayed throughout New
Orleans’ central business district. Id. at 166. An undisclosed
individual stated that the robber in the photograph distributed
after the robbery looked like Alexander. A copy of Alexander’s
driver’s license photograph was placed beside six other
individuals’ photographs, from which three bank employees, who had
seen the robbery videotape and verified the man on the surveillance

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tape was the robber, independently selected Alexander. Id. at 166.
No physical evidence linked Alexander to the robbery. Id.
At trial, as before, Alexander claimed mistaken identity. The
three bank employees testified, as did several recognition
witnesses; four such Government witnesses were acquaintances who
said the robber in the photograph looked like Alexander,
contradicting the five defense witnesses who testified that the
robber in the photograph did not look like him. Id. The district
court excluded testimony of Alexander’s two experts: an
orthodontist, who specialized in celphalometry (scientific
measurement of head dimensions) and was to aid jurors in their
visual comparison of the robber’s and Alexander’s heads; and a
former FBI Agent, who was to make photographic comparisons and
address the distortion in pictures taken by bank surveillance
cameras. Id. at 167.
In holding the district court had abused its discretion in
excluding the evidence and committed reversible error, our court
relied on “the specific nature of the proffered testimony ... ,
together with the complete lack of any evidence other than the
eyewitness identification”. Id. (emphasis added). The court
distinguished these experts, who would testify to “the precise
issue before the jury”, from the one in Moore, who “would have
testified only about general problems with perception and memory”.
Id. at 169.

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It goes without saying that cross-examination serves a
critical function, enabling jurors to appreciate discrepancies in
testimony. E.g., Harris, 995 F.2d at 536. Along this line, “the
problems of perception and memory can be adequately addressed in
cross-examination and ... the jury can adequately weigh these
problems through common-sense evaluation”. United States v. Smith,
122 F.3d 1355, 1357 (11th Cir.) (internal citation omitted), cert.
denied, 522 U.S. 1021 (1997).
In determining whether an expert witness’ exclusion was an
abuse of discretion (typically in the context of offering testimony
regarding eyewitnesses), other circuits appear to examine both
whether other evidence beyond the lay-witness testimony ties the
defendant to the crime, and whether defense counsel was given an
opportunity to thoroughly cross-examine those witnesses. See
United States v. Langan, 263 F.3d 613, 624 (6th Cir. 2001) (noting
the value of both “careful cross-examination” and the “substantial
amount of other evidence”); United States v. Carter, 410 F.3d 942,
950 (7th Cir. 2005) (providing three factors that justify the
district court’s exercise of its discretion to exclude witness
identification testimony: (1) cross-examination of lay witnesses;
(2) “significant additional evidence” beyond eyewitness
identification; and (3) cautionary instructions from the district
court regarding risks of eyewitness identification); United States
v. Villiard, 186 F.3d 893, 895 (8th Cir. 1999) (explaining “we are

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especially hesitant to find an abuse of discretion [in excluding
expert testimony about eyewitness identification] unless the
government’s case against the defendant rested exclusively on
uncorroborated eyewitness testimony” (alteration in original;
internal quotation marks omitted)); and United States v. Rodriguez-
Felix, 450 F.3d 1117, 1125 (10th Cir. 2006) (noting “skillful
cross-examination provides an equally, if not more, effective tool
for testing the reliability of an eyewitness”).
As discussed, after the Government’s case-in-chief, and upon
hearing Dr. Shomer’s proposed testimony outside the presence of the
jury, the district court ruled on the motion to exclude that
testimony. In excluding it, the district court relied on Rule
702's relevance requirement: an improper fit existed between Dr.
Shomer’s expertise and the facts of McGinnis’ case, as developed at
trial. The district court characterized Dr. Shomer’s testimony
as offering two opinions:
First, that the newspaper photograph perhaps
given its size, its smaller size, as well as
the depiction of the perpetrator with portions
of his face covered, would be problematic for
identification by a person viewing that
picture to say, one person versus another ....
And the second opinion, the assumption versus
perception opinion ....
Dr. Shomer then clarified that he would also testify regarding a
third opinion: “how [to] assess the accuracy of eye witness ID
from a standardized procedure”.

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In excluding the testimony, the court stated: “[C]learly[,]
the testimony that [Dr. Shomer] is going to offer [will attempt] to
somehow suggest to the jury that mistakes can be made. That is an
opinion that people from every walk of life can formulate”. It
concluded:
[T]he case is different than my appreciation
of what it was going to be when we discussed
this [pre-trial] .... I think everything that
I have heard from this expert was covered by
defense counsel very ably in his cross
examination of those witnesses, relative to
any shortcomings or inaccuracies of those
identifications, any infirmities in connection
with those identifications[,] and I think that
he has covered that in his cross examination
and I think the jury can fully appreciate a
misidentification, if, in fact, one occurred.
You will certainly ... be given the
opportunity to argue that to the jury.
As discussed supra, the expert testimony of Dr. Shomer, who
has been admitted to testify as an expert on numerous occasions and
whose expertise in his field is not challenged, may be admitted
only if it assists the jury. See Pipitone, 288 F.3d at 245. The
prior exclusion of his testimony by the Ninth Circuit is highly
instructive. In United States v. Poole, 794 F.2d 462 (9th Cir.
1986), the defendant was convicted of robbing two savings and loan
institutions after eyewitnesses identified him from a photospread.
The defendant sought to introduce expert testimony by Dr. Shomer to
address possible defects in eyewitness identifications. The
Government’s motion in limine to exclude that testimony was
granted, and the Ninth Circuit affirmed, relying on its earlier

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holding “that ‘effective cross-examination is adequate to reveal
any inconsistencies or deficiencies in the eye-witness testimony’”.
Id. at 468 (quoting United States v. Amaral, 488 F.2d 1148, 1153
(9th Cir. 1973)).
McGinnis’ case falls somewhere between our court’s decisions
in Moore and Alexander: the other evidence of guilt is neither
“overwhelming”, as in Moore, nor non-existent, as in Alexander.
The evidence includes the painter-style jeans with distinctive
white stitching and the duffel bag found in McGinnis’ bedroom
closet. Evidence at trial showed that, although the painter-style
jeans were likely a common variety of trousers, this pair had a
well-worn crease from being folded at the bottom, as did those worn
by the robber. Further, they looked the same as the robber’s
trousers through the bank’s surveillance camera. In this regard,
the lead FBI Agent investigating the case explained how he placed
McGinnis’ jeans on a mannequin and took it to the bank to
photograph McGinnis’ jeans with the same surveillance equipment.
Defense counsel elicited some doubt concerning these items
seized at McGinnis’ home. On direct examination, both bank tellers
had been shown McGinnis’ duffel bag and had stated it was the bag
used in the robbery. On cross-examination, however, they were
unable to remember its exact coloring, although both remembered it
was dark; they also did not remember whether they had seen a
medallion like the one that figured prominently on McGinnis’ bag.

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In addition, direct and cross-examination of lay witnesses
revealed: seven individuals in addition to McGinnis had been
identified from the photograph placed in the newspaper; and,
although most of those seven individuals were later ruled out as
suspects, this was not done until after McGinnis had been arrested.
McGinnis’ counsel challenged the recognition witnesses and their
conclusions that the robber looked like McGinnis; he asked each of
McGinnis’ co-workers: whether they knew other callers had named
other possible suspects based on the picture in the newspaper; and
whether they were asked to select McGinnis from a set of
photographs. When each witness answered the latter question in the
negative, McGinnis’ counsel emphasized the witnesses operated from
a “sample of one”. Among other things, this may have been for
later use in Dr. Shomer’s proposed testimony that these individuals
were not asked to select McGinnis from a line-up. That these
recognition witnesses, each of whom knew McGinnis, may, or may not,
have benefitted from a line-up was not beyond the jury’s
comprehension. Nor was the jury unaware that neither the
Government nor the defense asked the eyewitness bank tellers to
identify McGinnis as the robber.
Further, McGinnis’ counsel questioned the witnesses about
their confidence level in their recognition of McGinnis. Among
other things, this was for later use in Dr. Shomer’s proposed
testimony that witness confidence in an identification does not

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correlate with accuracy of identification. See United States v.
Brownlee, 454 F.3d 131, 140-44 (3d Cir. 2006). Although this
confidence-level testimony might have been made more beneficial to
McGinnis through Dr. Shomer’s proposed testimony, the district
court did not abuse its discretion in concluding the jurors could
disbelieve the Government’s witnesses (and, therefore, in excluding
Dr. Shomer’s testimony).
The excluded expert testimony more closely aligns with the
general psychological testimony excluded in Moore than the precise,
tailored testimony admitted in Alexander. Needless to say, we need
not decide whether, had McGinnis presented an expert in
celphalometry or an expert in photographic comparisons, an
exclusion of that testimony would be an abuse of discretion. See
Alexander, 816 F.2d at 167.
Further, unlike eyewitness cases, where an expert could
reasonably testify about the impact of a stressful situation and
memory of an eyewitness to a crime, the recognition witnesses at
issue here all testified the photographs looked like McGinnis, but
it was repeatedly clarified that none of these witnesses were at
the robbery. A jury does not need an expert to explain that these
witnesses could not confirm McGinnis’ presence at a robbery at
which they were not present. See Dixon, 413 F.3d at 524.
The district court’s prudent approach in ruling on the motion
to exclude comported with Rule 702. It delayed ruling until after

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the Government’s case-in-chief and hearing Dr. Shomer’s proposed
testimony outside the presence of the jury. Only then did it
conclude the testimony would not be helpful to it. Based on our
review of the record, this ruling did not constitute an abuse of
discretion.
B.
Concomitantly, McGinnis maintains the exclusion of the
testimony violates the Constitution. He asserts his right to
present a complete defense — under either the Due Process Clause of
the Fifth Amendment or the Compulsory Process and Confrontation
Clauses of the Sixth Amendment — was thwarted because he was unable
to challenge a critical portion of the Government’s case.
(Although McGinnis did not raise this claim at trial, he did
preserve it for review by raising it pre-trial in opposition to the
Government’s motion in limine. See FED. R. EVID. 103(a).)
No violation of the right to present a complete defense occurs
where, as here, the trial proceedings involved several witnesses
for both the Government and the defense, and this particular
witness was excluded because the district court concluded, after
listening to the witness’ proposed testimony, that it would not
assist the jury. See United States v. Miliet, 804 F.2d 853, 859
(5th Cir. 1986) (noting that a complete defense challenge is
meritorious when two factors are present: the excluded evidence is

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indispensable to the theory of defense; and the district court
fails to provide a rational justification for its exclusion).
III.
For the foregoing reasons, the judgment is
AFFIRMED.

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