UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4946
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY DELEON WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:07-cr-00083-JRS)
Submitted: December 22, 2008 Decided: January 29, 2009
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Frances H. Pratt, Assistant Federal Public Defenders, Richmond,
Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Richard D. Cooke, Sara E. Chase, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Deleon White appeals his convictions on four
offenses stemming from a traffic stop of White on federal
property. On appeal, White asserts the district court abused
its discretion in denying his motion to present expert witness
testimony pertaining to the reliability of an eyewitness
identification and in denying his proposed jury instructions.
For the reasons discussed below, we reject White’s contentions
and affirm his convictions.
In the early morning hours of December 16, 2006, Fort
Lee Police Officer Troy Catterton noticed a vehicle traveling
without a functioning license plate light. 1 Catterton stopped
the vehicle, a gray Dodge Intrepid, and shined his high beam
headlights into the vehicle. Catterton approached the driver’s
side of the vehicle, leaning toward the driver’s window. The
driver, whom Catterton later identified as White, admitted he
did not have either his license or vehicle registration card.
The traffic stop ended after the radio on Catterton’s
shoulder alerted, causing the driver to speed away and later
crash his vehicle. 2 Catterton later learned the vehicle had been
1
Our rendition of the facts is taken from trial testimony.
2
The entire traffic stop lasted between eight and ten
minutes, during which time Catterton was approximately one and
(Continued)
2
reported stolen in Chesterfield County, and that an arrest
warrant had been issued for Gary White in connection with the
theft. At Catterton’s request, the Chesterfield Police
Department sent a copy of its file photo of Gary White to
Catterton, who, upon seeing the photo, “knew with 100%
certainty” that White was the driver of the vehicle. Catterton
viewed only this photo. Three weeks later, a warrant for
White’s arrest was issued.
On February 12, 2007, Catterton initiated another
traffic stop of another vehicle, and upon approaching the
vehicle, recognized White was the driver. After White confirmed
his identity, Catterton directed White to exit the vehicle and
placed him under arrest.
A federal grand jury indicted White on the following
offenses assimilated pursuant to 18 U.S.C. § 13 (2006): eluding
a police officer, assimilating Va. Code Ann. § 46.2-817(B), (C)
(2005) (“Count One”); illegal operation of a motor vehicle on a
highway after revocation of license, first offense, assimilating
Va. Code Ann. § 46.2-357 (2005) (“Count Three”); reckless
driving, assimilating Va. Code Ann. § 46.2-852 (2005) (“Count
Four”); and operating a motor vehicle on a highway after being
one-half to two feet from the driver, and was focused on the
driver’s face.
3
found a habitual offender and having license revoked, second
offense, assimilating Va. Code Ann. § 46.2-357(B)(3) (2005)
(“Count Seven”). The grand jury also indicted White on two
charges assimilated pursuant to 32 C.F.R. § 634.25(f) (2008):
operating a vehicle with a defective license plate light,
assimilating Va. Code Ann. § 46.2-1013 (2005) (“Count Five”);
and operating a vehicle with a defective headlight, assimilating
Va. Code Ann. § 46.2-1011 (2005) (“Count Six”). Finally, the
grand jury indicted White on one count of taking, with intent to
steal, property valued in excess of $1000, in violation of 18
U.S.C. § 661 (2006) (“Count Two”). The grand jury charged White
with committing these offenses within the special territorial
jurisdiction of the United States.
Prior to trial, White filed a motion to suppress
Catterton’s identification, which the district court denied.
White next moved the court to allow expert witness testimony
regarding eyewitness identifications. The court concluded it
must first conduct a Daubert 3 hearing to determine whether such
testimony was appropriate.
At the Daubert hearing, White presented the testimony
of Brian Cutler, Ph.D. Cutler explained that he would testify
to four factors that might have impacted Catterton’s
3
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
4
identification of White as the driver from the December 16
traffic stop. Specifically, Cutler averred that cross-race
recognition, 4 the mug shot recognition effect, the confidence and
accuracy correlation, and the nature of Catterton’s initial
identification of White might all have impacted the
identification. 5 Cutler then discussed the research supporting
these factors and their general acceptability in the scientific
community.
The district court denied White’s Daubert motion,
concluding that while Cutler’s proffered testimony satisfied the
first prong of Daubert in that it qualified as “scientific
knowledge,” it failed on the second Daubert prong — that it
would assist the trier of fact in understanding or determining a
fact in issue.
At White’s trial, the Government presented Catterton’s
testimony, in which Catterton identified White as the driver of
the Intrepid. On cross-examination, defense counsel questioned
Catterton about the various deviations in his descriptions of
the driver.
4
Catterton is Caucasian, and White is African-American.
5
Cutler conceded, however, that because Catterton was
exposed to the driver of the vehicle for a significant amount of
time — more than thirty seconds — the cross-race recognition
factor may not have significantly impacted Catterton’s
identification of White.
5
White offered two proposed jury instructions regarding
eyewitness identification testimony. The first instruction
contained the following first paragraph:
Eyewitness testimony has been received in this trial
for the purpose of identifying the defendant as the
person who committed the crime(s) charged. The law
recognized [sic] that eyewitness identification is not
always reliable, and that cases of mistaken identity
have been known to occur. You, the jury, must be
satisfied beyond a reasonable doubt of the accuracy of
the identification of the defendant before you may
convict him. You should, therefore, view eyewitness
testimony with caution and evaluate it carefully in
light of the following factors[.]
The instruction then listed a number of factors, including
whether the eyewitness had: sufficient opportunity to observe
the suspect; prior familiarity with the suspect; described the
suspect immediately; or identified the suspect from photographs
or a lineup. White also requested an instruction regarding the
confidence and accuracy correlation.
Although the district court denied White’s request for
the proposed jury instructions, it suggested it would give the
first paragraph of the first proposed instruction. Instead,
however, the district court instructed that, in assessing
credibility, the jury could consider “the opportunity they [the
witnesses] had to see, hear, and know the things about which
they testified; the accuracy of their memories.”
The jury convicted White of Counts One and Four. The
district court further found White guilty of Counts Five and
6
Six. White was subsequently sentenced to forty-six months’
imprisonment. White timely appealed.
On appeal, White first asserts the district court
abused its discretion in denying his motion to present Cutler’s
expert witness testimony regarding the fallibilities of
eyewitness identification. White also contends the district
court abused its discretion in denying his proposed jury
instruction on eyewitness identifications. We will address each
issue in turn.
The admission of expert witness testimony is
controlled by Rule 702 of the Federal Rules of Evidence and the
Supreme Court’s decision in Daubert. Under Daubert, a two-part
test must be satisfied to admit expert witness testimony under
Rule 702: “(1) the expert testimony must consist of ‘scientific
knowledge’ - that is, the testimony must be supported by
appropriate validation; and (2) the evidence or testimony must
'assist the trier of fact to understand the evidence or to
determine a fact in issue.’” 6 United States v. Dorsey, 45 F.3d
809, 813 (4th Cir. 1995) (quoting Daubert, 509 U.S. at 591).
In assessing whether the second Daubert prong is satisfied, “the
Supreme Court warned that . . . a judge must be mindful of other
6
Because the district court concluded Cutler would have
testified to scientific knowledge, the first prong of Daubert
was satisfied and thus is not an issue on appeal.
7
evidentiary rules, such as FRE 403, which permits the exclusion
of relevant evidence ‘if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.’” Id. (quoting Daubert, 509
U.S. at 595). We review decisions excluding testimony for an
abuse of discretion. United States v. Harris, 995 F.2d 532, 534
(4th Cir. 1993).
The district court rejected Cutler’s testimony
regarding the confidence and accuracy correlation under Federal
Rule of Evidence 403 because the correlation could not be
quantified and would likely confuse the jury. The district
court rejected the testimony regarding cross-race recognition,
in part, on similar grounds, but also because, according to
Cutler’s own testimony, the length of time that Catterton was
exposed to White likely reduced the impact of this factor on
Catterton’s identification. The district court ruled Cutler’s
testimony pertaining to the mug shot recognition was within the
jurors’ common knowledge, and thus would not be helpful.
Finally, the district court concluded that expert testimony
detailing the deficiencies in the use of a single photograph
“show-up” was unnecessary because defense counsel could elicit
the deficiencies in this method of identification on cross-
examination.
8
In light of our deferential standard of review — for
an abuse of discretion 7 — we affirm the district court’s ruling.
Cutler conceded the length of Catterton’s exposure to White
negated both the cross-race recognition factor and the
confidence and accuracy correlation. Further, the mug shot
recognition effect appears to be within the scope of the jurors’
common knowledge. Lastly, defense counsel did attempt to
illuminate potential deficiencies in Catterton's identification
of White from a single photograph rather than a photo array.
The district court’s decision to deny the Daubert motion simply
does not constitute an abuse of discretion.
We further reject White’s contention that the district
court abused its discretion in denying the requested jury
instructions. United States v. Singh, 518 F.3d 236, 249 (4th
Cir. 2008) (standard of review). We will reverse a district
court’s refusal to provide a requested instruction “only if the
instruction: (1) was correct; (2) was not substantially covered
by the court’s charge to the jury; and (3) dealt with some point
in the trial so important, that failure to give the requested
7
“An abuse of discretion can flow from a failure or
refusal, either express or implicit, actually to exercise
discretion, deciding instead as if by general rule, or even
arbitrarily, as if neither by rule nor discretion.” Sharpe v.
Dir., Office of Workers’ Comp. Programs, 495 F.3d 125, 130 (4th
Cir. 2007) (internal quotation marks and citation omitted).
9
instruction seriously impaired the defendant’s ability to
conduct his defense.” United States v. Lewis, 53 F.3d 29, 32-33
(4th Cir. 1995) (internal quotation marks and citation omitted).
White fails to meet this standard. The proposed instructions
mirrored the basis for the expert witness testimony, and the
denial of White’s motion to present that testimony obviated the
need for the proposed instructions.
For the foregoing reasons, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
10