firearm there was no forensic or documentary evidence that tied that firearm to mr hamilton rather he was convicted because officers from the san francisco police department i testified that they saw him place a black bag in the wheel  black s u v late at night in san francisco and because another officer recalled seeing him place an object under a vehicle on an occasion approximately two years earlier at trial mr hamilton proffered a well qualified expert who would have discussed some of the reasons that eyewitness identifications made under these sorts of circumstances may be less reliable than jurors commonly understand the court did not permit that expert to testify the court did permit evidence of prior acts evidence even though according to the government's own witnesses those prior acts were not distinctive in nature and because those rulings were in er well your honor to begin with the issue of the eyewitness expert i think that the court's decision in two thousand and two in united states v finley sheds a lot of light on the abuse of discretion analysis in this particular context  that case it was a behavioral health expert a mental health expert that the defendant had proffered to testify what the court said in that case is that it is an abuse of discretion to exclude and eye witness she's mean expert who would testify about information that is not within the common knowledge of a jury but we've got a factual determination by the district court that you didn't meet that standard and we have to find that factual determination clearly erroneous do we not to grant relief under the abuse of discretion standard yes your honor and that is the reason i refer the court to philly because that's exactly the analysis that the court applied in that case and said that the court was in error in determining that this information was not within the can of the average per the problem we have in this particular case is that the district court looked at the proffer that we made as to the eyewitness expert and rejected it because of one very narrow aspect of that pro the court said george do not need an expert to know that lighting conditions affect their reliability of an eyewitness identification but did not even discuss the several other much more complex determinations that we had proffered that the confidence that a witness asserts in his eyewitness identification and the reliability of that and i doubt that he because these officers were going to testify that they were one hundred percent certain that and in fact that's exactly what they did testify and i think it indicates the problems that we had looking at our closing argument we were able to to make reference to the fact that there were one hundred percent confident in their identifications but all we could do is appeal to the jurors common sense and say these officers are not credible because no one is one hundred percent certain of anything that's not at all what we would have argued had dr loftus been permitted to testify instead we would have argued based on his testimony that studies demonstrate that the fact that someone is extremely confident in his identification does not make it a reliable one we were not able to argue that because that testimony was excluded the two other bases in which he would have testified that would have been extremely helpful to us would have been the impact of the suggest circumstances very similar to what was present in this particular case the fact for instance that the officer when he encountered mr hamilton in the apartment building recognized him from a prior arrest what effect does that have on whether he believes this is an individual he saw previously again the other officers who made the identifications only did so after they saw mr hamilton handcuffed seated behind a squad car having been arrested by their commanding officer what effect does that have on reliability and then the final area would have been across racial identifications certainly there's case law that supports the idea that jurors intuitively understand that maybe there is going to be a problem with a white officer trying to identify african american suspects but they very rarely particular areas of testimony that an individual is going to be testifying about have been approved by prior course in the sense that they have been held to be of assistance to jurors in providing additional information to them but in all of the cases that right now it was referring through our previous night circuit cases eyewitnesses and if the case in testimony was argued as having been critical to the fact that the defendant was convicted so why is this case any different from other cases in which we have announced that there is no constitutional right to have this type of a couple of things your honor for one thing there's two cases in particular that i think the government is relying on for the proposition that this was not an of discretion and one of them the band sat the court's ruling rested on the fact that and i wouldn't say expert was not necessary to inform a jury that memories fade over time that was the issue in that case this witness does not remember anymore what that person looked like there were not the issues that we're dealing with here today so what would you concede then that at least as to the district court's observation that jurors don't need an expert to tell them that it's harder to see people in ny than it is during the day there's no error the when it provides information beyond the common knowledge of the trier of fact and it went on to emphasize that this court's precedents recognize again quoting the importance of expert testimony when an issue appears to be within the parameters of a lay person common sense but in actuality is beyond their knowledge and that is exactly the issues that we are dealing with here counter intuitive phenomena in memory and perception that other courts have recognized  precisely because of the inverse correlation between what jurors expect and what is actually the truth as a defense could there fully comply with a rule sixteen obligations a bigger part of a given compliance with the rule sixteen requirements in the district court judge made his what i would say your honor is that in retrospect i certainly wish that we had provided the disclosure that we gave at the oral pretrial conference and the next day in a written statement  earlier than we had i was waiting to receive a written statement from our witness we did not have that written statement and therefore i did not turn over anything prior to the pretrial conference i don't believe that we were in violation of rule sixteen  because of the shifting nature of a rule sixteen's reciprocal discovery obligations that it's only until the government it's not until the government has comply with its obligations that the defense has obligations that said certainly would be preferable to disclose whatever information one has as soon as one has it and i regret that that was not done there was no suggestion however at any point during this trial either by the court or by the government that the violation was  and again i think it at bottom the issue is given that it was not willful given that it was a central issue in the case and given also that it was the kind of testimony it was in a novel scientific concept it was being introduced it was not a test that the government needed to be able to replicate given all of those circumstances was outright exclusion of the expert to severe sanction and i think under the court's case like this if i could turn for a moment to the rule four zero four be issue d i think that it is clear from the way in which the government argued this issue to the jury that what the government was really getting at by whatever name they may have tried to to label it was modus operandi the government's position was because the defendant had placed an object under a car on a prior occasion it established a modus operandi that would lead the jury to believe that this was the same individual who did this act on this occasion this court's precedents are very clear modus operandi where the two private where the prior crimes are not only similar but they're not distinctive in other words in order to be admissible it's not just that two incidents are similar they have to be so distinctive and i'm quoting from this court's decision  in the united states versus luna so distinctive that only one person could have committed both of those acts and in this case what we had was testimony from the government's own witnesses from officers that on this particular corner it was usual it was commonplace for individuals to secrete items under parked cars and then seek to retrieve them later therefore there was nothing about the prior incident that marked it as the handiwork of the accused or bestowed upon it a personal signature such that it was fair for a jury to conclude that it must have been the same person that did it on both occasions i mean that that any time let's say in a robbery case that you have similar robbery that it has to be unique to that particular robber that's exactly what it means your honor and i would refer the court again to the luna case because it's a bank robbery case and in lieu of the court look very carefully at what are the fact that many of these cases take a robbery case for example can frequently involve similar types of markers that taken together are adequate to establish under for a for be evidence of modus operandi i certainly agree with the general proposition the question is where do you draw the line and what the court has said is it has to be extremely distinctive that's the point of the person saying so far what it counsel to say that the robber is the only robber in the history of federal bank robberies to carry a pearl handled forty five into the bank i don't know that that's necessarily what's required but if for instance i think you see if i understand your correctly you're taking the position that has to be act which the defendant is on trial were committed by the same person not that two robbers might have the same modus operandi and commit crimes in a similar fashion for if we four or be evidence might be admissible as against both in separate trials if i have been brave on that point your honor i want to be very clear it is it is the fact that they have to be sufficiently distinctive that it is fair to make that in the public correct question of whether or gloves by jumping over a counter and pulling tellers here and swearing at them and then jumping into a getaway car that was abandoned with the motor running those are the facts that were in common and that is not sufficient because it describes too many offenses that can the morning your honour's money mostly specker on assisting united states attorney in the northern district of california may please the court the district court did not air in excluding the defendant's expert testimony because the court properly determined that first the defendant failed to not involve eye witness expert identification testimony and second of all the case this case at hand involves eyewitness testimony of police officers who are trained to make identifications and who have extensive experience working in this particular neighborhood and making numerous arrests here second of all who the person was before they saw him yes or out of the question was asked the police officers did not recognize the defendant as then thinking hamilton when they first saw him on the street they recognized the person they song the street as the person you who was found in the district court for the road to not air and allowing evidence of the defendant's prior act appearing of appearing to secrete something in a parked car in the exact same location a victorian randolph street on her prior occasion which was almost two years to the date of this incident according gage the proper balancing test to determine whether or not this evidence was going to be relevant and not overly prejudicial to the defendant and in fact witnesses identification is sufficiently satisfied with an expansive jury instruction in this particular case the defendant requested such an instruction which is not part of the ninth circuit jury instructions on eyewitness testimony here he was able to ar to determine that distance and lighting have an effect on the witnesses ability to make a proper identification the suggestiveness of a show of identification or some other factors of the proffer testimony however in this case the evidence was clear that these were police officers those who are making the identification they are trained and noticing facts about a person and in making identifications and later being able to recall the characteristics of that individual  testimony is presumably not admissible until proven otherwise again it may be relevant in some cases the defendant here fails completely to show the relevance that he proffered expert was never proffered to testify with respect to the identifications in this particular case it's not clear at all from the record why the expert would have been helpful to this jury if you take the expert out of the context of this case could some of his testimony be helpful to try to fact absolutely but as applied to this case the defendant proffered no link between the testimony and the facts in this case and as the evidence was borne out during the course of the trial the police officers all testified that they had a clear vision it was sufficient lighting they had an ability view the defendants they had an ability to recall him and that they were one hundred percent sure that the person who was found in the building was in fact the same person that they saw in the street see creating an item later to have been discovered to be back containing a gun  expert witness in particular lynn o'connor's a fingerprint expert in its expert noticed disclosure to the defendant prior to the pretrial conference on november twenty second the government provided notice of three experts ultimately the defendant stipulated to the questioned by the court in determining whether or not the government had complied the government the district court ultimately found that with respect to a narrow issue the government had complied with its disclosure requirements that disclosure requirement opinions of one of the experts testimony the government proffer this particular witness lynne o'connor for two purposes one is to testify that she had examined the weapon and the ammunition and had recovered no prints the second expert testimony the government wanted to elicit from her was that in her training experience sometimes weapons routine prints and sometimes they do not and i would have explained why in this particular case it was not unusual that no print court found that the government had not provided adequate notice of that second expert opinion that in some cases there are sometimes there are not the court did find that the government had provided adequate notice that the expert had and had not recovered any prints that notice the government's satisfiable sixteen goes back to when it provided the notice which was november twenty second prior to the pretrial conference at that point in time the defendant had not provided any report from its expert and simply is the defendant's required to assume that the government has has satisfied its rule sixteen obligations your honor i think that the question can be litigated before the district court after the fact but i don't think it's reasonable for the court to hold the defendant's reciprocal discovery obligation being triggered as of the point that the district court determines that the government comply and as long as the government gives something even if it ultimately is later determined not to be in full compliance with rule sixteen the defense must nevertheless satisfy their obligations under rule sixteen i think it's back your honor here where the government complied at an early date earlier everything happened on a short time frame here obviously but where the government had complied prior to the pretrial conference and again it's not there's no dispute in the record with respect to two other experts aside from the defendant filing a notice saying that  basis in reasons for his expert's opinions in this case the court could have found that the defendant had met his wrist supercool discovery obligations in this case the court's concern was not only had the defendant not timely comply but also the have been prejudice to the government he said it would have complied but he would have been prejudiced while if they provided their required notice and they satisfied their discovery obligation counter expert who would have been called in rebuttal and to try and prepare him to respond to dr law offices multiple page opinion exactly that is in fact a prejudice that well perhaps the government didn't raise it at first certainly was clear from the discussion requirements of rule seven no two could be deemed a compliance the court needed as an untimely compliance now was saying they did eventually turn over a full report wasn't done on friday because it certainly was not done in a timely fashion that's correct the trial of doing a man's job bobbing and weaving well your honor just to the extent that there's any question as to whether the record is clear from the government's perspective that the government comply the defendant did not timely comply the court had as an option to exclude the testimony entirely if if it determined a that the defendant had not complied and it up until a certain point in fact the defendant had not and prior to the date as probative of the defendant's identity and modus operandi the defendant in this case has simply failed to demonstrate any prejudice to him both as a result of the admission of the testimony as well as from the jury instruction the record indicates that it during the testimony of officer who was the four for be witness for the government that the defendant intended up to the court a jury instruction that he wanted the court to advise the jury of the limiting purposes for this officers testimony had previously given the court later engaged again on the record with a an evaluation of the testimony to determine what if any facts under which it was admissible and could be argued by the parties in closing arguments and  court found after the government show that it was admissible for a variety of factors that it was appropriate for the court to consider it for that purpose this is unlike all the other cases in which the court did not engage in f l sing test and not make a determination on the record still able to perform his duties as a juror and deliberate with his fellow jurors the court asked the parties how he should handle the situation the defendant suggested perhaps you should give the same instruction that you are giving with your hood the one where you have a duty to deliberate and the court in fact did that he remained structure the jury's a whole with respect to their duty to deliberate it was the defendant's yesterday on or it was not an allen instruction it's not an modified allen instruction it's their duty to deliberate to the extent th because the judge identified your hood as being somebody who had complained about the rest of the jury and to the extent that the defendant suggests it was coercive because the judge told the jury if you don't reach a verdict today you're going to have to come back on wednesday which was the wednesday before christmas the trial actually was on schedule the defendant picked this trial date and knew very well it was falling right before the holidays the court had on several occasions informed the jury that the case should be submitted to them that particular week and friday was the end of that week and if it was not completed would carry over to the following wednesday there was nothing coercive in the judge's instructions more the suggestion that if they didn't reach a verdict they would have to come back he didn't encourage anybody to wanted to clarify one aspect of the model jury instruction seven point one that was really read to the jury by the court at the conclusion of the trial it is true that we did propose to the court and agree with the court that it might be appropriate to reince truck the jury using the text of model jury instruction seven point one but i think this invited error than if you now claim it was really an allen instruction with a coworker because what the district court did after we had reached that that sort of informal agreement was to go beyond the text of model jury instruction seven point one and say a couple of additional things which had a very course of effect on the nature of the deliberations one of those was i not going to declare a mistrial until i am convinced that it is impossible for you to reach a unanimous verdict and if we don't reach a unanimous verdict this afternoon you're going to have to which was a friday you're going to have to come back next wednesday to continue to deliberate granted so alive but all of us will have to come back that went beyond the text of model jury instruction seven point one under this court's precedent in the minutes versus miers and allen and allen instruction is any instruction which tells the jurors to go back into continue should be submitted to you on friday if there's not a verdict on friday you'll be back here we're going to continue the matter until the following wednesday i don't believe that get with that at that time of the year and most judges are very much concerned about juries travel arrangements and everybody leaving they were not surprised and i'm not suggesting there were surprised but victoria received the case in the middle of the day on thursday they deliberated thursday afternoon friday morning it was around friday lunchtime that this incident with the juror occurred and then at four o'clock in the afternoon on friday right when they were to adjourn for the weekend we received a note that they had in fact returned a verdict and it is  the nature of the colloquy particularly under this court's decision under state to us where the court is aware that there is a holdout juror that juror indicates he does not believe that further deliberations would be effective and then combined with that that my sense was that that he engaged in a colloquy with mr hood and mr hood said he'd be willing to go back and continue but he didn't he wanted an end to the name calling which the judge took care of by monitoring the jury to behave themselves and then what he said your honor is while i'm willing to go back in to continue to deliberate i do not believe that further deliberations would be effective that was exactly the question that was posed by the district court do you believe that if you continue to deliberate those deliberations will government's witness to testify about was not an expert opinion it was merely the fact that a test had been conducted on those on the firearm to determine whether there were fingerprints and that no fingerprints were recovered it was not an opinion what about the failure to object on the limiting instruction that the district court gave as i understand it he gave the instruction at least two occasions there was no objection and it wasn't until what i guess final closing instructions were being worked on an objection was raised well obviously your honor there was an objection raised very early on to the introduction of the four for be evidence in the first place to act you have to object to the form and content of the limiting instruction once the court rules that the evidence is clear and you didn't do their your like what we did your honor was when that in that evidence came in we did ask the district court to give a limiting instruction in my posting counsel first as handing something up to the court during the context of the trial it was the model jury instructions themselves he then gave those instructions we objected before the final instructions to the form of the instruction because we believe that the government you waive that if you tendered the form to he gave it twice without objection and then after the opportunity if there's a problem with the content of the instruction for the give this record a chance to correct the problem and that was the objection that we lodged pretrial we said no it is not admissible for any purposes under four for be and that is your disagreement there are two