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Precedential or Non-Precedential: Precedential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, 

(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, 

(2004), but prior to United States
v. Booker, 

(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., 

(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, 

, 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, 

, 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, 

, 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, 

, 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, 

, 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, 

, 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 

(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, 

, 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, 

(1988); see also 

(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, 

, 198-
99 (1972). A “suggestive and unnecessary identification
procedure does not violate due process so long as the
identification possesses sufficient aspects of reliability,”

, for reliability is the “linchpin in
determining the admissibility of identification testimony,” 

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 

. 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. 

        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. 

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. 

        Similarly, in Brathwaite, the Court enumerated and
applied each of the Biggers factors to determine whether an
identification from a single-photograph display was 

. 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. 

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.” 

(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 

. Neither was able to
identify the robber from a photo array. 

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.” 

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

determined that the confrontation between the
witnesses and the manacled defendant was impermissibly
suggestive. 

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.”

        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., 

, 856 n.33 (3d Cir. 1990), cert.
denied, 

(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, 

, 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.” 

       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,” 

(internal quotations omitted), this reality
is outside “the jury’s common knowledge,” and often
contradicts jurors’ “commonsense” understandings, 

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, 

, 352 (1981)
(Brennan, J., dissenting) (emphasis in original).

      Faced with “[t]he tragic irony of eyewitness testimony,”
Koch, Process v. 

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., 

, 954 (3d Cir. 1990).
Application of this Rule to Dr. Schooler’s proposed testimony
required the District Court to apply United States v. Downing,

(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., 

(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.” 

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.

“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.” 

.
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,

, 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.

.

        In Downing (and unlike this case), no specific proffer
was made in the District Court. 

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 . . . .” 

see
also 

& 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 

. 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.

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.” 

(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).” 

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.” 

.

                       ***

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 

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,” 

,
       we hold that the district court abused its
       discretion in barring [the expert’s] tendered
       testimony on the confidence/accuracy factor.

.

       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.” 

. 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, 

(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,

, 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 

. As the Supreme
Court held in Rhode Island v. Innis, 

(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.” 

(internal footnote omitted). An
incriminating response is “any response–whether inculpatory or
exculpatory–that the prosecution may seek to introduce at trial.”

n.5 (emphasis in original). Police may not, however,
“be held accountable for the unforeseeable results of their
words or actions[,]” 

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, 

, 717-
18 (3d Cir. 1988).

                                34
beyond that inherent in custody itself.” 

       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. 

n.5 (quoting 

).

      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.” 

;
see also Illinois v. Perkins, 

, 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.” 

“focus” of the Innis test is on the suspect’s
perceptions, the intent of a police officer is nonetheless
relevant. See 

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.” 

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.” 

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.”

(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, 

, 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, 

, 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, 

, 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 

(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.

. 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, 

, 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, 

(3d Cir. 2001), and the carjacking statute, United
States v. Bishop, 

(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. 

(analyzing Jones
v. United States, 

(2000); United States v.
Morrison, 

(2000); United States v. Lopez, 

(1995); Scarborough v. United States, 

(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