U.S. v. Moore

• Decision Date: 16 April 1986
• Docket Number: No. 85-1483,85-1483
• Parties: 20 Fed. R. Evid. Serv. 671 UNITED STATES of America, Plaintiff-Appellee, v. Michael R. MOORE, Larry P. Moore and Beverly K. Moore, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1308

786 F.2d 1308

20 Fed. R. Evid. Serv. 671

UNITED STATES of America, Plaintiff-Appellee, v. Michael R. MOORE, Larry P. Moore and Beverly K. Moore,

Defendants-Appellants.

No. 85-1483.

United States Court of Appeals, Fifth Circuit.

April 16, 1986.

Arch C. McColl, David W. Coody, Dallas, Tex., for defendants-appellants.

Marvin Collins, U.S. Atty., Fort Worth, Tex., Harry Koch, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, WILLIAMS and DAVIS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This is an appeal from convictions for extortion and conspiracy to commit extortion. Appellants are Michael Ray Moore, his brother Larry Paul Moore, and Michael's wife Beverly Kindel Moore. All three appellants were convicted of conspiracy to commit extortion, in violation of 18 U.S.C. Sec. 371. Michael and Larry Moore were convicted of the substantive offense of extortion in violation of 18 U.S.C. Sec. 1951, and Beverly Moore was convicted of aiding and abetting this offense. Michael and Larry were given concurrent sentences of twenty years imprisonment for extortion and five years for conspiracy. Beverly was given concurrent sentences of four years imprisonment for conspiracy and three years for aiding and abetting extortion. We affirm.

Facts

The background facts to this case read like a movie script. ¹ On January 20, 1984, at approximately 7:15 a.m., three armed men wearing masks entered the home of Robert James Bigham, the president of Promenade National Bank of Richardson, Texas. The men attached bogus bomb devices to Bigham and his wife and daughter. Bigham was told to follow instructions and fill two satchels with money from his bank or the bomb devices would be detonated by remote control. Bigham left his home alone, and went to his bank where he obtained $48,000. Following written instructions, Bigham dropped the money into a City of Dallas trash can, and returned home at approximately 9:00 a.m. The men had gone, and Bigham's family was physically unharmed.

According to trial testimony of a coconspirator, Steven Nail, the three masked assailants were appellants Michael Moore and Larry Moore, and Nail. At approximately 8:15 a.m. on January 20, the three masked assailants left the Bigham residence and went to the drop site. The trash can at the drop site had a fake bottom and was placed over a manhole leading into a sewer line. Nail and Larry Moore went into the sewer line underneath the fake-bottomed trash can. Nail and Larry Moore took the money from the can and then crawled through an underground tunnel system to a grate. Nail's Corvette was parked over the grate. Nail and Larry Moore got into the car through a hole they had earlier cut in the bottom of the Corvette, and all three of the extortionists traveled to the Moores' place of business, Custom Electric Shop. At Custom Electric, the men were met by Beverly Moore, and they counted and split up the money.

The F.B.I. arrested Nail. Nail confessed, and his confession implicated the Moores. At the trial Nail testified and told how he and the Moores had come up with the plot after watching the movie Loophole at the Moore's home. ² Nail described how the extortionists selected the victim, and had made the preparations for the extortion. ³ Two additional eyewitnesses, Nina Lamberth and Jack Holder, testified for the United States. Holder testified that he had seen Larry Moore and two other men casing the Bigham residence several mornings before the extortion. Lamberth identified Michael Moore as the driver of a pick-up truck leaving the Bigham residence immediately after the extortion.

The Moores advanced two defenses at trial: (1) Nail is crazy; and (2) alibi. For the alibi defense appellants were counting on Judy Jones, who had given a sworn statement that Michael and Larry Moore did electrical work at her house between 8:30 a.m. and 9:00 a.m. the morning of the crime. At trial, however, Judy Jones testified that she was mistaken about the time, and that the Moores were not at her home until that afternoon. The jury found the Moores guilty. ⁴ They now complain that several errors were committed during the trial.

I. Expert Testimony on Eyewitness Identification

Appellants sought to counteract the eyewitness identifications of Lamberth and Holder by presenting the expert testimony of Dr. Elizabeth Loftus. Dr. Loftus would have testified about such things as the "forgetting curve," which shows that memory decreases at a geometric rather than an arithmetic rate; the "assimilation factor," which indicates that witnesses sometimes incorporate inaccurate post-event information into their identifications; the "feedback factor," which demonstrates that witnesses who discuss the case with each other unconsciously may reinforce mistaken identifications; and several other psychological theories relating to eyewitness identification. The district judge excluded this testimony, stating that he felt the probativeness of eyewitness testimony was not a matter which needed evaluation by experts. The judge went on to say that in any event the admissibility of such testimony was within his discretion. Appellants urge that this testimony was relevant and erroneously excluded because it was vital in the present case. They assert that the casual eyewitness identifications were questionable under the particular physical circumstances. For example, Lamberth based her identification on having seen Moore for only a five to six second interval seventeen months before the trial.

Until recently, courts were uniformly skeptical about admitting expert testimony concerning the reliability of eyewitness identifications. One of the first cases to address this issue was United States v. Amaral, 488 F.2d 1148 (9th Cir.1973). Amaral held that the district court did not err in excluding expert eyewitness testimony because cross-examination was adequate to reveal any faults in the identifications. Court have subsequently upheld exclusion of such testimony under a variety of rationales. For example, courts have found that this type of scientific evidence has not obtained a suitable level of general acceptance in the legal and scientific communities, United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980), that the evidence is prejudicial United States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979), or that the evidence is within the expertise of the juror. United States v. Purham, 725 F.2d 450, 454 (8th Cir.1984). We have held that any problems with perception and memory are easily understood by jurors and can be adequately addressed through cross-examination. United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982). See also United States v. Brown, 540 F.2d 1048, 1054 (10th Cir.1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1976).

We have found no federal cases which hold that a trial court abused its discretion by excluding expert eyewitness identification testimony. Recent decisions, however, do indicate a new willingness to uphold a trial judge's admission of such testimony and a willingness to evaluate the adequacy of reasons for justifying exclusion of such testimony in particular cases. In United States v. Smith, 736 F.2d 1103, 1105 (6th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984), the court held that although expert eyewitness testimony was a "proper subject," had general scientific acceptance, and "provided probative value," exclusion was not harmful on the facts of that case because there was evidence indicating guilt apart from the eyewitness identification. Id. at 1108. Similarly, in United States v. Downing, 753 F.2d 1224 (3d Cir.1985), the court reversed a trial court holding that such testimony is never admissible in federal court, and held that the trial court should exercise its discretion in deciding whether or not to admit it and should balance the reliability of the testimony against the likelihood that the testimony would overwhelm or mislead the jury. Two state court decisions have recently held that it was error not to admit this type of expert testimony. People v. McDonald, 37 Cal.3d 351, 690 P.2d 709, 208 Cal.Rptr. 236 (Cal.1984); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (Ariz.1983).

This Court accepts the modern conclusion that the admission of expert testimony regarding eyewitness identifications is proper, and we have no prior contrary authority which binds us. We cannot say such scientific data is inadequate or contradictory. "The scientific validity of the studies confirming the many weaknesses of eyewitness identification cannot be seriously questioned at this point." Abney, Expert Testimony and Eyewitness Identification, 91 Case & Comment 26, 29 (March/Apr. 1986); see also Smith, 736 F.2d at 1107 (this testimony now conforms to "generally accepted ... theory").

Expert testimony on eyewitness reliability is not simply a recitation of facts available through common knowledge. Indeed, the conclusions of the psychological studies are largely counter-intuitive, and serve to "explode common myths about an individual's capacity for perception ..." Smith, 736 F.2d at 1105. For example, it is commonly believed that the accuracy of a witness' recollection increases with the certainty of the witness. In fact, the data reveal no correlation between witness certainty and accuracy. Similarly, it is commonly believed that witnesses remember better when they are under stress. The data indicate that the opposite is true. The studies also show that a group consensus among witnesses as to an alleged criminal's identity is far more likely to be inaccurate than is an individual identification. This is because of the effect of the "feedback factor," which serves to reinforce mistaken identifications. We therefore recognize that the admission of this type of testimony is proper, at least in some cases.

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