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.
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: RENDELL and AMBRO, Circuit Judges, SHAPIRO,*fn1 District 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.*fn2
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 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 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 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.
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 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 Miranda*fn3 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.
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 selfincrimination, 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, (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 Daubert*fn4 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, 542 U.S. 296 (2004),but prior to United States v. Booker, 543 U.S. 220 (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 ...