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May 22, 1992

TOM NGUYEN, a/k/a "Johnny" Defendant.

The opinion of the court was delivered by: ALFRED J. LECHNER

 LECHNER, District Judge

 In this case defendant Tom Nguyen, a/k/a "Johnny" ("Nguyen"), was indicted on three counts (the "Indictment"). *fn1" Count One alleged that during the time period beginning January 1991 and ending July 1991 Nguyen conspired to engage in the business of dealing in firearms without a federal license in violation of 18 U.S.C. § 922(a)(1)(A) and (2). Count Two alleged Nguyen knowingly and willfully engaged in the business of dealing in firearms without a federal license and sold a weapon in violation of 18 U.S.C. § 922(a)(1)(A) and (2). Count Three charged Nguyen with possession of a weapon while a convicted felon in violation of 18 U.S.C. § 922(g)(1). On 19 May 1992, after a three-day trial, Nguyen was found not guilty on all three counts of the Indictment.

 Prior to trial, Nguyen moved for a bifurcated trial on the count charging him with possession of a weapon while a convicted felon, for an order precluding in-court and out-of-court identification testimony of Nguyen and for the introduction of expert testimony regarding eyewitness identification. *fn2"

 At a pretrial hearing, for the reasons set forth below, the motion to bifurcate the trial on the issue that Nguyen possessed a weapon while a convicted felon was denied and the motion to exclude in-court and out-of-court identification testimony was denied. Prior to trial, Nguyen indicated that he was uncertain whether he would call the expert, *fn3" therefore, no ruling on the motion to introduce expert testimony concerning eyewitness identification was made prior to trial. At trial, Nguyen did not call the expert to testify. If Nguyen had called the expert during trial, the motion would have been denied for the reasons set forth below.

 Factual Allegations

 The Indictment charged Nguyen neither applied for nor obtained a license to deal in firearms, as required by federal law. Indictment at 2. It alleged that on or about 2 February 1991 Nguyen placed a telephone call to an individual to discuss the sale of firearms and ammunition. Id. at 3. The Indictment charged, on that same date, Nguyen willfully and knowingly sold a .25 caliber semi-automatic pistol, Raven Arms model MP-25, bearing serial number 1733273 (the "Weapon"), to an individual in Jersey City, New Jersey. Id. at 3, 5. The individual was Investigator Mark Peterkin ("Peterkin") of the Hudson County Prosecutor's Office, who was working undercover. The sale of the Weapon occurred around dusk in Lincoln Park (the "Park") in Jersey City, New Jersey. 2 April 1992 Letter Brief at 3; 8 May Hearing Tr. at 5. The Indictment charged that at the time of such sale, Nguyen had previously been convicted of forcible theft with a firearm which is a felony offense. *fn4" Indictment at 10.

 On 2 February 1991, an hour after Peterkin arrived at the Park, a white Camaro, in which four individuals were riding, drove up next to the Park. *fn5" 8 May Hearing Tr. at 19. Peterkin stated a man got out of the car and swaggered over to him. Id. at 6. He described the man as a five foot, three inches to five foot, five inches, Asian, wearing a long black, full-length coat, a scarf, black patent leather shoes, white socks and a white shirt, completely buttoned to the collar. Id.

 Peterkin stated he had a three to five minute conversation during which the man sold Peterkin the Weapon and discussed future sales. Id. Peterkin testified that during this time, he stood face to face with this person, only an arm's length from him. Id. at 7. Peterkin said that although it was dark, he could clearly see this man because of the artificial lights from the street lamps overhead. Id. He testified the man pulled out the Weapon, put a clip in it, but did not put a round in the chamber, and handed it to Peterkin, initially with the barrel pointing at him but then by holding the barrel and flipping the butt of the Weapon over to him. Id. at 7, 24-25.

 Following the sale of the Weapon, Peterkin returned to the Hudson County Prosecutor's Office where he looked through a book of approximately sixty photographs of Asian men (street gang members) *fn6" between the ages of twenty and twenty-five. *fn7" Id. at 8. Peterkin identified a photograph of Nguyen as the man in the Park who sold him the Weapon. Id.

 Because the facsimile was dark, however, Peterkin went to Rikers Island for a lineup. Id. Peterkin was accompanied by Officer Wisniewski. *fn8" 13 May Hearing Tr. at 185. After checking in, Peterkin and Officer Wisniewski went to an office. After about ten to fifteen minutes they left the office and went into the corridor. Id. at 186. Peterkin immediately recognized Nguyen, who was walking in a corridor about twenty to twenty-five feet from Peterkin, as the man in the Park. Id. at 186-89; 8 May Hearing Tr. at 12. Nguyen was being escorted by two prison guards at the time Peterkin identified him; however, there were other prisoners and guards in the corridor. *fn9" 13 May Hearing Tr. at 186-88.

 On 3 December 1991 Nguyen was arraigned on the Indictment and entered a plea of not guilty. Opp. Brief at 1. On that date, Nguyen was transferred from Rikers Island to Union County Jail to await trial in this action. Id.


 A. Bifurcation of Count Three

 Prior to trial, Nguyen moved for a bifurcated trial with respect to elements of the crime charged in Count Three of the Indictment. 25 March 1992 Letter Brief at 2. Specifically, Nguyen requested "that the jury be asked initially to determine whether . . . Nguyen possessed a firearm. If the jury finds that he did, . . . Nguyen [would] stipulate that prior to February 2, 1991, the date in question, he had been convicted of a felony. The jury would then be asked to retire to determine whether . . . Nguyen was guilty of possessing a firearm while a felon." Id. Nguyen argued bifurcation was necessary because the prior felony conviction was unfairly prejudicial; he argued "a juror [would] use the evidence of . . . Nguyen's prior conviction to conclude that . . . Nguyen [was] the man in the Park who sold [the Weapon] to [Peterkin]. . . ." *fn10" Id. at 2.

 Count Three alleged a violation of 18 U.S.C. § 922(g)(1). Section 922(g)(1) makes it unlawful for a person who has been convicted of a crime punishable by a term exceeding one year to possess a firearm. 18 U.S.C. § 922(g)(1); see also United States v. Paolellel, 951 F.2d 537, 541 n.3 (3d Cir. 1991); United States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir.), cert. denied, 493 U.S. 995, 107 L. Ed. 2d 543, 110 S. Ct. 546 (1989). "In order to convict someone under this statute, the government must prove: (1) that the defendant had a previous felony conviction, (2) that the defendant possessed a firearm, and (3) that the firearm had travelled in or affected interstate commerce." United States v. Petitjean, 883 F.2d 1341, 1346 (7th Cir. 1989).

 The Government is entitled to offer proof on an element of the crime. See, e.g., United States v. Williams, 612 F.2d 735, 740 (3d Cir. 1979), cert. denied, 445 U.S. 934 (1980) (government does not have to accept stipulation of prior felony conviction which is element of charged crime). The argument that the prior felony conviction would unfairly prejudice Nguyen because it would show a propensity for crime or a bad character was rejected. The nature of the prior felony conviction, armed robbery, was not admitted into evidence, but only the fact that Nguyen had a prior felony conviction was introduced into evidence. Moreover, strong limiting instructions were given during trial, at the time the evidence was introduced and again when the jury was charged, with respect to the introduction of a prior criminal conviction. Accordingly, the motion for bifurcation was denied.

 B. Identification Testimony

 Nguyen moved to suppress the in-court and out-of-court identifications on the ground that they were the product of impermissively suggestive procedures which violated his right to due process under the Fifth and Fourteenth Amendments. Moving Brief at 11. Nguyen argued the out-of-court photographic identifications by Peterkin were impermissively suggestive because he made the identifications from a book of mug shots of Asian men. Nguyen argued because the photobook was specifically compiled for an ongoing investigation of Asian street gangs and Peterkin was aware the photographs in the book included members of the particular Asian street gang to which Peterkin believed the man in the Park belonged, Peterkin believed the man in the Park would be in the book. 14 May Hearing Tr.

 Nguyen also argued testimony of the identification at Rikers Island should be excluded because it was the result of a suggestive procedure. Specifically, he argued because Nguyen was escorted by two prison guards there was a suggestion to Peterkin that Nguyen was the man in the Park. Id. Nguyen argued the in-court identification cannot be permitted because it was the product of impermissively suggestive photographic identifications and a "show up" type identification rather than the result of independent knowledge.

 The Government argued that prior to prohibiting out-of-court and in-court identification testimony, the undercover agent's opportunity to view the suspect, the degree of attention paid to the suspect, the accuracy of any prior description, the level of certainty of the identification and the length of time the undercover agent had to view the suspect must be considered. Opp. Brief at 18-19.

 The Due Process Clause prohibits the use of identification procedures which are "unnecessarily suggestive and conductive to irreparable mistaken identification." Stovall v. Denno, 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967); see also Neil v. Biggers, 409 U.S. 188, 196, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972); Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). Where identification procedures have been unnecessarily suggestive and conducive to irreparable mistaken identification, the identification testimony cannot be admitted in trial. Manson v. Brathwaite, 432 U.S. 98, 117, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977).

 "Reliability is the linchpin in determining the admissibility of identification testimony. . . ." Id. at 114. Accordingly, "the admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability." Id. at 106. The asserted suggestiveness of identification procedures must be considered in the totality of circumstances, considering the following five factors:

The opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime charged and the confrontation.

 Biggers, 409 U.S. at 199-200; see also Reese v. Fulcomer, 946 F.2d 247, 258 (3d Cir. 1991), cert. denied, U.S. , 118 L. Ed. 2d 396, 112 S. Ct. 1679 (1992).

 On 8 May 1992, an identification hearing was held to determine the issue of suggestiveness. United States v. Stevens, 935 F.2d 1380, 1386 n.3 (3d Cir. 1991) (citing United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967)) (A pretrial hearing will be held where the defendant raises the issue that an identification procedure has possibly violated a constitutional right.).

 The identification process in this case possessed sufficient aspects of reliability. At the time of the crime, Peterkin viewed the man face to face, at arm's length for three to five minutes. Peterkin was able to describe the clothing the man was wearing. He was working undercover in a major investigation. Peterkin arranged the meeting in the Park for the sole purpose of purchasing the Weapon and knew he would have to make an identification of the seller of the Weapon after the transaction was completed. Peterkin focused on the man's characteristics and dress. Peterkin directed his attention at only the man who sold him the Weapon; he could not see the individuals in the Camaro; he was not distracted.

 The same night he purchased the Weapon, Peterkin made an identification of the seller of the Weapon. He looked through a book of approximately sixty photographs of Asian men between the ages of twenty to twenty-five and selected a photograph of Nguyen.

 After considering the totality of the circumstances, Peterkin's initial identification of Nguyen in the photobook is reliable; the motion to exclude the initial out-of-court identification testimony was denied.

 The subsequent identification at Rikers Island is also reliable. Because the initial identification was not made under suggestive circumstances, the identification at Rikers Island was not tainted by the initial identification. Although Peterkin was specifically going to Rikers Island to identify the man in the Park and also knew the man in the photograph he selected from the photobook was held at Rikers Island, he intended to view a lineup. Prior to the lineup, however, Peterkin, apparently by accident, recognized Nguyen in the hallway as the man in the Park.

 Peterkin's identification in the hallway was spontaneous and unexpected. Although spontaneous one-on-one identifications are not as favorable as line-up identifications, they are generally reliable because of the unexpected nature of the identification. Stevens, 935 F.2d at 1390-91 (spontaneous wanted board identification admissible). The fact that Nguyen was being escorted in the corridor by two prison guards is of no moment. Peterkin testified he thought he was going to observe a lineup; it appears he was never told that Nguyen would be brought to him and he was not expecting to see Nguyen in the corridor. The motion to exclude the identification at Rikers Island was denied.

 Because the out-of-court identifications were not the products of impermissively suggestive procedures, the in-court identification testimony was admissible. See Stevens, 935 F.2d at 1392-93 n.16. The motion to exclude the in-court identification was denied.

 Nguyen moved to introduce expert testimony of Steven Penrod ("Penrod") *fn11" pursuant to Rule 702 of the Federal Rules of Evidence on the issue of the reliability of eyewitness identifications. *fn12" Specifically, Nguyen seeks to have Penrod testify in six areas as follows: (1) that there is a lack of correlation between the confidence a witness has in the identification and the accuracy of that identification; (2) that cross-racial identifications, such as the one in this case, are less accurate than same-race identifications; (3) that observations made during stressful situations tend to be less accurate than observations made under less stressful situations; (4) that when a weapon is visible during the perpetration of a crime, the observer focuses on the weapon rather than the face of the perpetrator, therefore, the identification will be less accurate; (5) that a witness who is asked to make a subsequent identification will tend to relate back to the initial identification rather than to the crime itself; and (6) that a witness who is a police officer is subject to the same limitations as any other witness. 2 April 1992 Letter Brief at 1-2; 8 May Hearing Tr. at 44.

 Of the six areas, Penrod has conducted studies in only one area, the correlation between confidence a witness has in an identification and accuracy of that identification. Id. at 86. With respect to the other five areas, Penrod claimed to have expertise from reviewing and reading studies conducted by other researchers. Id. Nguyen did not propose to have Penrod testify as to Peterkin's ability to accurately identify the man in the Park, but rather he proposed to have Penrod introduce results of studies on the accuracy of eyewitness identifications.

 Penrod testified summarily that the effect of expert testimony on eyewitness identification makes jurors "act upon knowledge they claim to possess, . . . acquire and act upon knowledge they didn't have prior to the expert testimony and . . . give less weight . . . to confidence expressed by a witness and begin to give consideration to these other factors." *fn13" 13 May Hearing Tr. at 295.

 Penrod stated expert testimony concerning eyewitness identification is helpful to jurors because it "sensitizes jurors to evaluate evidence in a more appropriate way." 8 May Hearing Tr. at 69. He stated: "In the absence of expert testimony, a number of studies indicate that jurors essentially go on the basis of the confidence expressed by the witness . . . and essentially ignore . . . the underlying circumstances that give rise to the identification." Id.

 Rule 702 of the Federal Rules of Evidence "authorizes the admission of expert testimony so long as it is rendered by a qualified expert and is helpful to the trier of fact." *fn14" DeLuca, 911 F.2d at 954; accord Stevens, 935 F.2d at 1397. In United States v. Downing, 753 F.2d 1224 (3d Cir. 1985), the Circuit held that an expert may be allowed to testify as to the reliability of eyewitness identifications. Id. at 1226.

 The Circuit held that prior to the admission of such expert testimony, the trial court must conduct an in limine hearing to determine the helpfulness of the expert testimony. Id. Downing set forth three factors which must be considered to determine relevancy under Rule 702. The court must balance two of the 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.

 Id. ; see also Stevens, 935 F.2d at 1397; Hines v. Consolidated Rail Corp., 926 F.2d 262, 273 (3d Cir. 1991); Sebetich, 776 F.2d at 419.

 In addition, the court must consider "whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Downing, 753 F.2d at 1242. The admission of expert testimony "depends upon the 'fit,' i.e., upon a specific proffer showing that scientific research has established that particular features of the eyewitness identifications involved may have impaired the accuracy of those identifications." Id. at 1226; see also Stevens, 935 F.2d at 1397; Hines, 926 F.2d at 273.

 With respect to the first factor, the reliability of expert testimony, Downing addressed the foundational requirements for the admission of scientific testimony on novel issues of scientific expertise. The Circuit recognized two lines of case law: (1) the predominant view is the standard set forth in Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923); under Frye, the reliability of scientific testimony is determined by whether the scientific principle is generally accepted in its field; and (2) the minority view is a less stringent approach; under this approach, the relevance of scientific testimony is determined by applying a Rule 403 balancing test under which the novelty of the scientific principle bears on the weight of the evidence. Downing, 753 F.2d at 1233.

 After a review of the advantages and disadvantages of Frye, the Circuit rejected the general acceptance standard. Id. at 1233-1237. The Downing court reasoned:

The [Frye ] test has proved to be too malleable to provide the method for orderly and uniform decision-making envisioned by some of its proponents. Moreover, in its pristine form the general acceptance standard reflects a conservative approach to the admissibility of scientific evidence that is at odds with the spirit, if not the precise language, of the Federal Rules of Evidence.

 Id. at 1237. The Court held "a particular degree of acceptance of scientific technique within the scientific community is neither a necessary nor a sufficient condition for admissibility; it is, however, one factor that a district court normally should consider in deciding whether to admit evidence based upon the technique." Id.

 The Downing court explained, the "reliability inquiry that we envision is flexible and may turn on a number of considerations, in contrast to the process of scientific 'nose-counting' that would appear to be compelled by a careful reading of Frye." Id. at 1238. Under the flexible approach, trial courts should consider, in addition to the degree of acceptance in the scientific community, a variety of factors, including the relationship of the new technique to more established methods of scientific analysis, the "existence of specialized literature" on the new technique, the "qualifications and professional stature" of the expert witness, the "non-judicial uses" to which the new ...

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