Unpublished Disposition, 923 F.2d 864 (9th Cir. 1988)

MEMORANDUM^** 

Appellant George Arthur Ramirez was convicted by a jury of importing a stolen vehicle in violation of 18 U.S.C. § 2312. Ramirez appeals, alleging two errors. First, he claims he was not adequately informed of his right to appointed counsel. Second, he claims the district court erroneously excluded expert testimony which Ramirez offered to demonstrate the fallibility of human perception and memory. We reject both contentions and affirm.

* When a suspect has been taken into custody, he must be informed "that if he cannot afford an attorney one will be appointed for him." Miranda v. Arizona, 384 U.S. 436, 479 (1966). The warning given must reasonably convey to the suspect his right to appointed counsel. Duckworth v. Eagan, 109 S. Ct. 2875, 2880 (1989). Ramirez alleges the Miranda warning he received was deficient because he was told that he "may" have an attorney appointed if he could not afford one. This, he asserts, created the impression that the power to appoint an attorney lay in the discretion of the government. We disagree.

Ramirez was given the following warning:

You have the right to consult an attorney before making any statement or answering any question, and you may have him present with you during questioning. You may have an attorney appointed by the U.S. Commissioner or the court to represent you, if you cannot afford or otherwise obtain one. If you decide to answer questions now, with or without a lawyer, you still have the right to stop the questioning at any time or stop the questioning for the purposes of consulting a lawyer.

Transcript of December 5, 1988, at 14-15. This warning accurately informed Ramirez of his right to appointed counsel. While it is true that the warning states " [y]ou may have an attorney appointed," rather than "you will have an attorney appointed," we cannot agree with Ramirez that this choice of words could reasonably create the impression that the government retained the discretion to deny Ramirez access to counsel. To the contrary, viewing the statement as a whole as we must, see Duckworth, 109 S. Ct. at 2879-80, the warning simply informed Ramirez that he could choose to have an attorney appointed for him, or he could choose not to. The discretion lay with Ramirez, not the government.

United States v. Connell, 869 F.2d 1349 (9th Cir. 1989), is not to the contrary. There, the defendant was told:

You have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with you during questioning. However, you must make your own arrangements to obtain a lawyer and this will be at no expense to the Government. If you cannot afford to pay for a lawyer, one may be appointed to represent you.

Id. at 1350 (emphasis added by the Connell court). We concluded this warning was "confusing and failed clearly to inform [the defendant] that if he could not afford an attorney he had the right to have an attorney appointed for him...." Id. at 1353.

This warning stands in stark contrast to the warning given to Ramirez. The defendant in Connell was expressly told that he would have to make his own arrangements for an attorney and that this would be at no expense to the government. Only then was he told that an attorney "may" be appointed for him. In this context, the use of the word "may" left "the impression that providing an attorney ... was discretionary with the government." Id. In contrast, Ramirez was never told that he had to make his own arrangements for an attorney or that the government would not pay for his attorney. Nothing in the statement made to Ramirez tended to give the word "may" the ambiguity present in Connell. Accordingly, the district court correctly ruled that Ramirez was sufficiently apprised of his right to appointed counsel.

II

Ramirez contends the district court erred in excluding expert testimony about the fallibility of human perception and memory. Pursuant to Federal Rule of Evidence 403, the district court concluded the probative value of the proffered testimony was outweighed by concerns about juror confusion and unnecessary delay.¹  We will overturn a district court's decision to exclude expert testimony only if it is manifestly erroneous. United States v. Poole, 794 F.2d 462, 468 (9th Cir. 1986); United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973).

This court has repeatedly refused to reverse a district court's decision excluding expert testimony about the fallibility of human perception and memory. See e.g., Poole, 794 F.2d at 468; Amaral, 488 F.2d at 1153. We have reasoned that the testimony would add little that cannot be brought out through effective cross-examination and argument to the jury. United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir. 1987); Poole, 794 F.2d at 468; Amaral, 488 F.2d at 1153. Moreover, we have held that expert testimony regarding the fallibility of human perception and memory "does not conform to a generally accepted explanatory theory." Christophe, 833 F.2d at 1299. Accordingly, it was not manifestly erroneous for the district court to exclude the proffered testimony. The district court could properly conclude that the jury would be better served by effective cross-examination and closing argument. We recognize that this is not the approach followed in some other circuits and state courts. See, e.g., United States v. Smith, 736 F.2d 1103 (6th Cir. 1984); People v. McDonald, 37 Cal. 3d 351, 690 P.2d 709, 208 Cal. Rptr. 236 (1984). However, we are bound to follow the law of our own circuit.

Ramirez argues nevertheless that the government "opened the door" for the admission of the proffered testimony when it introduced evidence that the federal agents who had identified Ramirez had received training in making identifications. He asserts that when faced with evidence of the reliability of the witness' identifications, he was entitled to rebut this evidence with the proffered expert testimony. We disagree.

Ramirez is correct that the Due Process Clause and the Sixth Amendment right to confront witnesses guarantee a defendant the right to present otherwise inadmissible evidence to the extent necessary to rebut improperly admitted evidence of the government. United States v. Whitman, 771 F.2d 1348, 1350-51 (9th Cir. 1985). Here, however, there was no improperly admitted evidence to rebut. The government witnesses testified only that they were trained to look at a suspect's height, weight, complexion, hair length, facial features, and any unusual physical characteristics. Reporter's Transcript II, at 134; see also id. at 203. This evidence was properly admitted because it tended to show that the witnesses were less likely than an ordinary person to make an erroneous identification. The district court's rulings which excluded Ramirez's proffered expert testimony, in contrast, excluded only psychologically based expert testimony designed to demonstrate the inherent fallibility of the human senses and human memory. The government offered no such testimony. Therefore, no constitutional violation occurred.

Nor can we conclude that the district court's decision to exclude the expert testimony was otherwise manifestly erroneous in light of the admission of the government's evidence. The district court was within its discretion to admit lay testimony regarding a witness' training and exclude expert testimony which this circuit has concluded "does not conform to a generally accepted explanatory theory." Christophe, 833 F.2d at 1299.

AFFIRMED.