U.S. v. Brown

Decision Date10 June 1974
Docket Number73-2280,73-2678,Nos. 73-2279,s. 73-2279
Citation501 F.2d 146
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Tommie Louis BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Virgil David SWAIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee NOBLES, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Darrell McIntyre, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Nicholas R. Allis, Deputy Public Defender (argued), Los Angeles, Cal., for Robert L. Nobles.

Stanley P. Berg (argued), Beverly Hills, Cal., for Virgil D. Swain.

Bruce E. Krell (argued), San Francisco, Cal., for Tommie L. Brown.

Before ELY and KILKENNY, Circuit Judges, and ENRIGHT, District Judge. *

ENRIGHT, District Judge:

In late morning on February 6, 1973, four men robbed a Crocker National Bank in Los Angeles. Three men were brought to trial in April, 1973, for the offense: defendants Tommie Louis Brown, Robert Lee Nobles, and Virgil David Swain. The fourth man, whose name appeared on the indictment as Jonathan Ray Nobles, was a fugitive at time of trial.

The government's theory was that Brown jumped behind the tellers' windows and moved down the line of cages, collecting money from the cash drawers, while the other three guarded the customers and personnel from various positions. A surveillance camera took pictures of all the participants except the one who stood beneath the camera, allegedly defendant Nobles (hereinafter Nobles).

I. The Brown and Swain Appeals

The evidence against Brown and Swain was similar and consisted of surveillance photographs, items taken from the apartment they shared, a comparison of photographs, eyewitness identifications, and a statement by Brown.

Defendants Brown and Swain primarily attack the comparison of certain photographs. One group of photographs, consisting of enlarged surveillance pictures showing the faces and clothing of the two robbers alleged to be Brown and Swain, were placed on a chart next to a second group of photographs consisting of enlarged police pictures of Brown and Swain as well as FBI photographs of the items of clothing seized from their apartment. An FBI expert in photographic identification, Frederick E. Webb, compared the two groups of photographs and stated that the faces in the police photographs were the same faces as those in the surveillance photographs. He also testified that the clothing in the two groups of photographs was the same, and further, he made a similar analysis of a surveillance photograph of a pistol used in the robbery and a FBI photograph of the handgun seized in the apartment.

When Mr. Webb, in response to the prosecutor's questions, began to state his opinion that Brown and Swain were indeed two of the three pictured on the surveillance film, the district court overruled the defense objection but not without some misgiving:

I must say in my own personal opinion it comes very, very close to impinging upon the province of the jury . . . that case (United States v. Cairns, 434 F.2d 643 (9th Cir. 1970)) I suggest to you, Mrs. Broady, which seems to authorize this very procedure.

Reporter's Transcript (hereinafter R.T.) 260, lines 5-11. We too are troubled by the proffered testimony.

In Cairns, this circuit previously wrote:

Appellant next contends that over his objection on the ground the testimony would invade the province of the jury, Government's witness, a special agent with the Federal Bureau of Investigation and photographic identification specialist, compared two photographs: a photograph taken by the bank's surveillance camera at the time of the robbery and a police photograph of appellant taken ten days prior to trial. To assist in his identification, he enlarged the head area of the surveillance photograph to the same size as the enlarged head area in the police photograph. The witness then pointed out the similarity in the two photographs in the nose and mouth areas, chin line, hair lines, ear contours and inner folds of the ears, among other things. He then testified that based on all the general characteristics the individual in the surveillance photograph is the individual in the police photograph 'or another individual having all of these characteristics as to nose, mouth, chin, and the ear characteristics . . ..' We see no error in the admission of this testimony. While the jury is the sole judge of the facts, expert testimony has long been admissible as an aid to the jury.

434 F.2d at 644.

That concluding statement is undisputed. But whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. 'There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.' Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952).

Advisory Committee's Note to Proposed Federal Rule of Evidence 702, 56 F.R.D. 183, 282 (1972). To permit an expert to testify as to his opinion of parentage based on the resemblance of a child to a reputed father in a paternity suit would be grossly inappropriate by the above standard. But just as surely, fingerprint identification, the comprehensive examination of aerial photographs, and other similar scientific and technical evaluations, are obviously within the realm of permissible expert testimony. Testimony as to whether a particular individual is portrayed in a photograph rests on some middle ground. Since the Cairns decision relied solely upon traditional expertise fields, we feel it incumbent upon ourselves to reexamine the issue faced in Cairns.

We have requested and reviewed the briefs submitted in Cairns. Such review allows us to conclude that the two cases-- Cairns and the instant one-- are distinguishable.

In the instant case, Webb's testimony was general. In reference to the photographs of Brown, he stated broad conclusions: 'rather thin-faced,' 'somewhat elongated,' 'the mustache is similar, the shape of the nose, the eyes, the eyebrows, . . ..' R.T. 260, lines 22-24. In Cairns, however, the testimony was of greater detail. Not only did the agent compare general contours and shapes but also found ear and lobe formations particularly significant and termed a particular facial crease as 'distinctive' and 'unusual.' Government's Brief, United States v. Cairns, p. 5. In its argument to this court in Cairns, the government also emphasized the detail of the agent's testimony, for example, his comparison of a nipple in the center of the defendant's ear. Id. at 6.

We would hold that Cairns should be limited to the precision as argued in its briefs; therefore, when a party seeks to introduce expert testimony on personal photographic identification-- whether to prove or disprove similarity, he should first be required to make an offer of proof to the court outside the presence of the jury.

After the elicitation of what facts the expert has depended upon in reaching his conclusions, the court should determine whether it has been convinced by a preponderance that the facts offered are beyond the jury's common experience. Of course, the court in reaching its determination must take into consideration that the party desiring admission may be free to argue his position without the benefit of expert testimony. If the court in its discretion, which may not be disturbed absent clear abuse, is convinced that the expert may materially assist the jury beyond their common experience as amplified by argument of counsel, the expert should be allowed to testify.

The same general test should be applied to the photographic identification and comparison of inanimate objects. The trial courts, however, should be cognizant that while the everyday experiences of twelve laymen over their combined lifetimes may permit them to make photographic comparisons of persons, they may utterly lack experience to distinguish or recognize certain objects such as firearms. In the facts of this particular case, we would hold the admission of the expert's opinion on the personal identification of Brown and Swain to have been error, 1 but his testimony concerning the items seized to have been properly admitted. We cannot conclude, however, that the error was prejudicial. Disregarding the agent's opinion as to their identity, the evidence against Brown and Swain-- the eyewitness testimony, the discovery of the items-- was overwhelming, rendering the error harmless.

II Nobles Appeal

The evidence against Nobles differs from the case against Brown and Swain. Most obvious is the absence of surveillance photographs, for Nobles is alleged to have been the robber who stood underneath the camera rather than within its scope. Second, no objects were found to connect him to the offense in contrast to the items seized at the apartment of Brown and Swain. Finally, the eyewitness testimony was far less impressive against Nobles than against Brown and Swain.

A bookkeeper at the bank identified Brown and Swain in court as well as the items of clothing. He could not identify Nobles. Similarly, the assistant branch manager identified Brown and Swain in court but could not identify Nobles.

A bank teller, Peter Van Gemeren, identified Brown in court. He did identify Nobles but his testimony was subjected to extensive cross-examination. Likewise, Gary Hoffman, a salesman visiting the bank, pointed out the men alleged to be Brown and Swain on the surveillance photographs and described their activities; he too identified Nobles as having stood by the business counter. Defense also subjected Hoffman to arduous cross-examination.

Although Nobles presented an affirmative alibi defense, his strongest attack was to discredit the...

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