No Due Process Violation Where Defendant Not Allowed To Present Expert Evidence; OK to Enhance Sentence Based on Uncharged Drugs

U.S. v. Rodriguez-Felix, 10th Cir. No. 05-2142 (6/2/06)(No westlaw cite yet) - The defendant was not denied his due process right to present evidence when the court refused to allow his eyewitness expert to testify. The 10th indicated that such an expert would be okay under certain limited circumstances where the expert could provide insight to the jury on a matter not commonly known, e.g. identification after a long delay, cross-racial identification, the feedback factor, unconscious transference, observation under stress. But the d.ct. did not abuse its discretion here to preclude the expert's testimony because the proffered expert report was insufficient to allow the court to assess the reasoning and methodology of the expert's opinion. The report did not indicate whether the expert's research had been peer-reviewed, published or accepted by other psychologists and did not refer to recognized scientific research. "The requirements of Daubert are not satisfied by casual mention of a few scientific studies." Plus, the proposed testimony did not fall outside the jury's common knowledge and experience. Defense counsel's effective cross-examination exposed the common sense deficiencies in the prosecution's identification case. Plus, any error was harmless given the four eyewitness identifications and the videotape and photo of the person who sold cocaine to undercover officers and the juror's opportunity to compare the cocaine dealer to the defendant. The d.ct. also did not err by refusing to pay for the expert to testify at a Daubert hearing,.given the inadmissibility of the expert's testimony. The defendant was given "the basic tools of an adequate defense," i.e., he could cross-examine, and that's all due process requires.

It was also not error to refuse to allow a photo to be taken in the courtroom of the defendant next to the officer to show the size differential that was not apparent on the video between the cocaine dealer and the officer. Given the eyewitness testimony and the opportunity for the jury to compare the defendant to the photos and video of the dealer, the evidence was sufficient, even though the video indicated the officer was shorter than the cocaine dealer and in court the officer was much taller than the defendant.

As we've learned many times, after Booker, it is perfectly okay for the district court to enhance a sentence based on uncharged drug dealings. It was okay to do so in this case as well. Another word to the wise: the 10th would not address the defendant's appellate objections to the PSR because the objections below were not included in the record on appeal.