United States v. John Monroe Kime ( 1996 )

_________________
No. 95-2944
_________________
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
John Monroe Kime, also *
known as Jack Kime, *
*
Defendant - Appellant. *
_________________ Appeals from the United States
District Court for the
No. 95-3160 Southern District of Iowa.
_________________
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Randall Kirk Bell, *
*
Defendant - Appellant. *
___________
Submitted: March 13, 1996
Filed: October 25, 1996
___________
Before MORRIS SHEPPARD ARNOLD, FLOYD R. GIBSON, and HEANEY, Circuit
Judges.
___________
FLOYD R. GIBSON, Circuit Judge.
Jack Kime and Randall Bell were each convicted by a jury of drug
distribution, conspiracy, and firearm violations. Kime
appeals his conviction. Bell appeals his conviction and sentence. We
affirm in part and remand in part.
I. BACKGROUND
In April of 1994, the Polk County Sheriff's Office in conjunction
with federal law enforcement officials initiated wiretap and video
surveillance of a suspected drug distribution ring headed by Jack Kime.
The investigation culminated in the execution of multiple search warrants
on the homes and businesses of various members of the conspiracy on May 12,
1994. Kime and Bell were subsequently arrested and charged in a multi-
count indictment along with Randy Groves, Clifford Brown, Joseph Ybarra,
Joel Dodd, Dennis Smith, Dan Fedkenheuer, Bobby McGee, Donald Leach, Kelly
Hilpipre, George Strable, and Daniel Davis, Jr. Ybarra and Hilpipre
entered into plea agreements but did not testify at trial. The remaining
codefendants, with the exception of Fedkenheuer who remains a fugitive,
entered into plea agreements and testified at trial against Kime and Bell.
Bell's former co-conspirators as well as numerous other witnesses testified
as to Kime and Bell's involvement in the drug distribution scheme,
including a series of armed robberies of fellow drug dealers perpetrated
in the fall of 1994 for the purpose of obtaining drugs, capital, and
firearms. Kime and Bell both testified in their own defense and denied any
wrongdoing.
The jury convicted Jack Kime of one count of continuing criminal
enterprise in violation of 21 U.S.C. § 848(a) and (c) (1994) (Count One);
one count of conspiracy to possess with intent to distribute marijuana,
cocaine, and methamphetamine in violation of 21 U.S.C. § 846 (1994) (Count
Two); one count of distribution of methamphetamine in violation of 21
U.S.C. § 841(a)(1) (1994) (Count Three); two counts of possession with
intent to distribute methamphetamine, cocaine, and marijuana in violation
of 21 U.S.C. § 841(a)(1) (1994) (Counts Eight and Ten); and three counts
of
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using or carrying a firearm in relation to a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1) (1994) (Counts Nine, Eleven, and
Fourteen). Kime was sentenced to a total of seventy-five years
imprisonment.
The jury convicted Bell of one count of conspiracy to possess with
intent to distribute marijuana, cocaine, and methamphetamine in violation
of 21 U.S.C. § 846 (1994) (Count Two); one count of possession with intent
to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) (1994) (Count
Fifteen); and two counts of carrying or using a firearm in relation to a
drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1994)
(Counts Fourteen and Sixteen). Bell was sentenced to a total of 55 years
imprisonment.
II. DISCUSSION
A. JACK KIME'S ARGUMENTS:
1. Reasonable Doubt Instruction
Kime and Bell objected to the district court's proposed reasonable
doubt instruction1 based on Eighth Circuit Model Jury Instruction 3.11 and
proposed the following additional sentence: "A reasonable doubt is one that
fairly and naturally arises from the evidence or lack of evidence produced
by the Government." The
1
Instruction No. 16:
A reasonable doubt is a doubt based upon reason
and common sense, and not the mere possibility of
innocence. A reasonable doubt is the kind of doubt
that would make a reasonable person hesitate to act.
Proof beyond a reasonable doubt, therefore, must be
proof of such a convincing character that a reasonable
person would not hesitate to rely and act upon it.
However, proof beyond a reasonable doubt does not mean
proof beyond all possible doubt.
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district court rejected Kime's proposed addition and elected to proceed
instead with the unadorned version of the model instruction. Kime and Bell
both claim error.
"We review the formulation of jury instructions by the district court
for abuse of discretion." United States v. Parker, 32 F.3d 395, 400 (8th
Cir. 1994). We find none. The jury instructions as a whole effectively
communicated the defendants' point without the proposed addition to the
reasonable doubt instruction: In particular, Instruction No. 13 instructed
the jurors on the presumption of innocence, and Instruction No. 4
instructed the jurors to use their reason and common sense to draw
deductions or conclusions from the facts established by the evidence. "The
defendant is not entitled to a particularly worded instruction where the
instructions given, when viewed as a whole, correctly state the applicable
law and adequately and fairly cover the substance of the requested
instruction." Id. This Court has repeatedly approved the particular
reasonable doubt instruction in issue here, United States v. Simms, 18 F.3d
588, 593 (8th Cir. 1994), and while "such a lack of evidence instruction
may be useful, the district court, in its discretion, may decline to employ
it." United States v. Smith, 602 F.2d 834, 838-39 (8th Cir.), cert.
denied, 444 U.S. 902 (1979).
2. Kime's Books
Among the evidence seized from Asphalt Maintenance & Repair, the
conspiracy's cover business, were several incriminating books. Some of
these publications were devoted to the subject of illegal drugs. These
included: The Secret Garden, Marijuana, Manufacturing Methamphetamine,
Marijuana Grower's Guide, Psychedelic Chemistry, and Construction and
Operation for Clandestine Drug Laboratories. Other titles covered burglary
and theft-related topics, such as: Techniques of Safecracking, Techniques
of Burglar Alarm Bypassing, How to Make Your Own Professional Lock Tools,
Vol. 1-4, Techniques
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of Safe and Vault Manipulation, and The Complete Guide to Lockpicking by
"Eddie the Wire." These books were admitted into evidence over Kime's
objection. While Government witness and former co-conspirator Randy Groves
testified that the books belonged to Kime, he also admitted that he had
never seen any member of the conspiracy, including Kime, read the books and
that some of them appeared to have never been opened. Kime argues that
these books should have been excluded under Fed. R. Evid. 403 because the
risk of unfair prejudice greatly outweighed their probative value. The
Government argues that the books are at least probative of Kime's criminal
intent, especially when viewed in conjunction with the additional evidence
of the conspiracy's involvement in drug distribution and armed robbery.
Rule 403 of the Federal Rules of Evidence gives the district court
discretion to exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury. Fed. R. Evid. 403. We accord great
deference to the district court's application of the Rule 403 balancing
test and will reverse only for a clear abuse of discretion. United States
v. Rabins, 63 F.3d 721, 726 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031
(1996).
Again we find no abuse of discretion. The risk of prejudice from
these inflammatorily-titled publications is very real, but we do not view
it as unfair prejudice. Whether or not Kime actually had the opportunity
to read and exploit the techniques contained in these books, his mere
possession of them is clearly probative of his criminal intent. The drug-
oriented publications obviously bear on his interest in the charged drug
distribution and conspiracy crimes as "tool[s] of the drug-trafficking
trade." United States v. Ford, 22 F.3d 374, 381-82 (1st Cir.) (admission
of book entitled Secrets of Methamphetamine Manufacture in trial of
defendant charged with distribution of cocaine and marijuana was relevant
under Rule 401 and not unduly prejudicial under Rule 403), cert.
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denied, 115 S. Ct. 257 (1994).
While the burglary-related publications would not ordinarily prove
relevant in defining an individual's criminal intent to distribute drugs,
that is not the case here. The record is rife with evidence indicating
that the Kime organizations's modus operandi included the theft of rival
drug dealers' product, proceeds, and firearms. As such, the possession of
these books is further evidence of Kime's criminal intent in regard to this
particular aspect of the charged conspiracy.
3. Evidence of the Nelson Robbery
Des Moines drug dealer James Nelson testified at trial that he had
been pistol-whipped, shot in the arm, and robbed of approximately $30,000
by members of Kime's organization. Over defense objections, the district
court admitted into evidence police photographs of the robbery scene at
Nelson's house, photographs of the wounds inflicted on Nelson during the
robbery, and Nelson's derringer. Kime argues that the district court
abused its discretion by failing to exclude this evidence under Rule 403
because there was no relevant reason to admit this evidence other than to
inflame the jury by showing them the bloody pictures of the violent
assault.
We believe that this evidence was properly admitted as corroborating
Groves, Brown, and McGee's testimony implicating Kime in the robbery. In
addition, the photographs documenting Nelson's gunshot wound and head
injuries were also probative of why Nelson misidentified Bell, who was
indisputably incarcerated at the time of the robbery, as one of his
assailants. Neither do we find this evidence particularly prejudicial as
unduly gruesome or confusing. We find no abuse of discretion.
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4. Disclosure of Confidential Informant 1
The affidavit in support of the Government's application for the
interception of wire and oral communications contained the testimony of
three confidential informants. After the Government subsequently disclosed
the identities of two of them, Kime moved for disclosure of the third,
designated in the affidavit as CI-1. The district court denied Kime's
motion. Kime argues that he was entitled to learn the identity of the
third confidential informant in order to challenge the sufficiency of the
affidavit used to procure the search warrant for the wiretaps and video
surveillance.
We review the district court's pretrial ruling of whether to compel
disclosure of a confidential informant's identity for abuse of discretion.
United States v. Harrington, 951 F.2d 876, 877 (8th Cir. 1991). "The
defendant bears the burden of demonstrating the need for disclosure, . .
. and the court must weigh the defendant's right to information against the
government's privilege to withhold the identity of its confidential
informants." Id. "There must be some showing that the disclosure [of the
confidential informant's identity] is vital to a fair trial." United
States v. Curtis, 965 F.2d 610, 614 (8th Cir. 1992). This inquiry will
necessarily turn on the particular facts of each case. Harrington, 951
F.2d at 877.
The district court found that Kime had not met that burden, and we
agree. It was never anticipated that CI-1 would be called to testify at
trial, and he or she was not. Kime argues that the disclosure of CI-1's
identity was necessary to test the veracity of his or her testimony and,
consequentially, the quantum of probable cause behind the affidavit offered
in support of the Government's application for the interception of wire and
oral communications. But Kime offers no basis other than bald speculation
for his assertion that such a disclosure and an opportunity to interview
CI-1 would allow him to impeach CI-1's affidavit testimony. The movant's
burden "requires more than mere speculation that the
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testimony of the informant might prove to be helpful to the defense."
Curtis, 965 F.2d at 614. Even if such a disclosure would have been helpful
to the defense on some level, there is nothing indicating it would have had
a material effect on Kime's motion to suppress the intercepted
communications. "In order to override the government's privilege of
nondisclosure, defendants must establish beyond mere speculation that the
informant's testimony will be material to the determination of the case."
Harrington, 951 F.2d at 877. Kime has not met this burden by piling
speculation on top of conjecture. Review of the affidavit shows that the
testimony of CI-1 played a comparatively minor role and was not essential
to the issuing judge's probable cause determination. Notwithstanding CI-
1's testimony, we believe the testimony of the two disclosed informants
standing alone would have sufficed to establish probable cause to issue the
challenged warrant. See United States v. Dunlap, 28 F.3d 823, 825 (8th
Cir. 1994) (affirming sufficiency of warrant notwithstanding challenged
statements). We find no abuse of discretion.
B. RANDALL BELLS'S ARGUMENTS:
1. Motion to Suppress
On June 7, 1994, Bell and his female companion Sara Mullins drove up
to a Des Moines residence where an arrest team consisting of federal and
county law enforcement agents lay in wait. Bell was arrested at
approximately 10:48 a.m. when he entered the residence. Mullins was
simultaneously apprehended and taken into custody when a small amount of
marijuana was discovered in her car. Bell and Mullins were immediately
separated. After Bell had been searched, FBI Special Agent David Oxler
issued Bell an oral Miranda warning as he was placed in a vehicle for
transportation to the Des Moines Federal Courthouse. Sara Mullins was
transported to the Polk County Jail in a separate vehicle. At 11:41 a.m.,
Special Agent Oxler and FBI Special Agent Bill O'Keefe interviewed Bell
in his
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holding cell. Special Agent Oxler explained the charges to Bell and
outlined the potential prison sentence facing him. Special Agent Oxler
then produced an advice of rights and waiver form which he read to Bell.
Bell replied that he had been through the system before and knew his
rights. He then signed the waiver form and gave an incriminating statement
to the agents. At no time did Bell ask to terminate the interview or
request an attorney.
Bell later moved to suppress his statement, claiming that his
confession was coerced because the agents had told him that Mullins, who
had allegedly told Bell that she was carrying his child, would go to prison
for life if he did not confess. Following an evidentiary hearing, the
district court denied Bell's motion, concluding that his confession was
voluntary under the totality of the circumstances, and a redacted version
of Bell's statement was subsequently admitted into evidence at trial. We
review the voluntariness of Bell's confession de novo, but will uphold the
underlying factual findings of the district court unless clearly erroneous.
United States v. Bordeaux, 980 F.2d 534, 538 (8th Cir. 1992).
We are mindful that coercion may be mental as well as physical.
Arizona v. Fulminante, 499 U.S. 279, 287 (1991) "The appropriate test for
determining the voluntariness of a confession is whether, in light of the
totality of the circumstances, pressures exerted upon the suspect have
overborne his will." United States v. Meirovitz, 918 F.2d 1376, 1379 (8th
Cir. 1990) (quotation omitted), cert. denied, 502 U.S. 829 (1991). The two
key factors in issue are the conduct of the law enforcement officials and
the capacity of the suspect to resist the pressure to confess. Id.
Statutory factors bearing on the voluntariness of the confession include:
(1) the time elapsing between arrest and arraignment of the
defendant making the confession, if it was made after
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arrest and before arraignment, (2) whether such defendant knew
the nature of the offense with which he was charged or of which
he was suspected at the time of making the confession, (3)
whether or not such defendant was advised or knew that he was
not required to make any statement and that any such statement
could be used against him, (4) whether or not such defendant
had been advised prior to questioning of his right to the
assistance of counsel; and (5) whether or not such defendant
was without the assistance of counsel when questioned and when
giving such confession.
18 U.S.C. § 3501(b) (1994). A confession may not be found involuntary
absent some type of coercive activity on the part of law enforcement
officials. Russell v. Jones, 886 F.2d 149, 151 (8th Cir. 1989).
Special Agents Oxler and O'Keefe each denied ever having uttered the
threats Bell attributes to them. In fact, Bell testified at the
suppression hearing that when the agents handed him the waiver form, he
asked if Mullins was "okay." One of the agents allegedly replied that she
would be "out in a little while," and Bell thanked him politely. This
exchange hardly seems consistent with Bell's version of events. The agents
testified that Bell made no inquiries as to the well-being of Mullins
during his arrest, transportation, or interrogation. In addition, Bell was
fully advised of the crimes of which he was accused and the potential
sentence facing him. Although he waived his right to counsel, Bell is by
his own admission a hardened veteran of the criminal justice system who
understood fully the scope of the rights he was waiving. Both agents
testified that Bell appeared calm and undistracted during his interview.
We conclude that the confession was voluntary under the totality of the
circumstances.
2. Motion to Sever
Bell argues that the district court abused its discretion by denying
his pretrial motion for severance. Bell essentially claims
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that the spill-over effect from evidence against Kime denied him a fair
trial. Specifically, Bell claims he was unfairly tarred by the vast
majority of the evidence which was admissible only against Kime, and that
had he been granted a separate trial, his alibi defense would have had more
credence with the jury. We will not reverse the trial court's denial of
a motion to sever absent a showing of real prejudice indicating an abuse
of discretion. United States v. O'Meara, 895 F.2d 1216, 1219 (8th Cir.),
cert. denied, 498 U.S. 943 (1990). "Persons charged with a conspiracy will
generally be tried together, especially where proof of the charges against
each of the defendants is based on the same evidence and acts." Id. at
1218. "Rarely, if ever, will it be improper for co-conspirators to be tried
together . . . ." United States v. Drew, 894 F.2d 965, 968 (8th Cir.),
cert. denied, 494 U.S. 1089 (1990).
To justify severance, the defendant must show "more than the mere
fact that his or her chances for acquittal would have been better had he
been tried separately." United States v. Horne, 4 F.3d 579, 590 (8th Cir.
1993), cert. denied, 114 S. Ct. 1121 (1994). What is required is an
affirmative demonstration that the joinder prejudiced the movant's right
to a fair trial. Id. Mere disparity of evidence against codefendants or
the alleged prejudicial spillover effect of evidence against a codefendant
are not grounds for severance absent a showing that the jury will be unable
to compartmentalize the evidence against each individual defendant.
O'Meara, 895 F.2d at 1219. Bell has made no such showing. In this case,
the district court properly instructed the jury to compartmentalize the
evidence bearing on each individual defendant's guilt. This trial,
involving only two remaining codefendants, was neither too long nor complex
to expect the jury to follow such an instruction. See United States v.
Rodgers, 18 F.3d 1425, 1431-32 (8th Cir. 1994); United States v. Andrade,
788 F.2d 521, 530 (8th Cir.), cert. denied, 479 U.S. 963 (1986). We find
no abuse of discretion.
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3. Statutory Speedy Trial Claim
Bell next asserts that pretrial delay denied him his statutory right
to a speedy trial under 18 U.S.C. § 3161(c)(1) (1994). We will not address
this claim, however, because Bell waived it by failing to make a pretrial
motion for dismissal on speedy trial grounds. United States v. Flenoid,
949 F.2d 970, 972 (8th Cir. 1991) ("A defendant's failure to move before
trial for dismissal of an indictment on speedy-trial grounds, waives any
remedy under the Speedy Trial Act.").
4. Limiting Instruction
During its case in chief, the Government offered a number of exhibits
implicating mainly Kime. These exhibits included papers and books seized
from Kime's warehouse, items recovered from co-conspirator Ybarra's
apartment, photographs from the scene of the Nelson robbery, audio and
video surveillance tapes, laboratory reports, logs from the interception
of wire and oral communications, the .357 revolver used by Kime to pistol-
whip and shoot Nelson, and Nelson's .45 derringer. Bell argues that the
district court erred by refusing to give a limiting instruction when these
exhibits were admitted into evidence directing the jury to consider this
evidence only against Kime. We review the district court's failure to give
a requested instruction for abuse of discretion. United States v. Long
Crow, 37 F.3d 1319, 1323 (8th Cir. 1994), cert. denied, 115 S. Ct. 1167
(1995).
This argument assumes that the aforementioned evidence was admissible
exclusively against Kime. Much of this evidence directly linked Bell to
the charged conspiracy: Many of the disputed documents refer to Bell;
several of the recorded audio tapes record conversations referring to Bell
and his role in the conspiracy; portions of the photographic evidence
depict Bell's comings and goings at the conspiracy's cover businesses; and
many
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of the intercepted conversations contained in the logs explicitly reference
Bell and his role in the conspiracy. This evidence was admissible against
Bell both to prove the existence of a conspiracy and his participation
therein. See United States v. Brown, 941 F.2d 656, 660 (8th Cir. 1991)
(once a conspiracy is established, even slight evidence connecting a
defendant to the conspiracy, such as intercepted conversations and
photographic evidence, may be sufficient to prove the defendant's
involvement). While other exhibits bore more directly on Kime's guilt,
much of it was similarly admissible against both codefendants as evidence
of the existence and scope of the conspiracy for which they were both
charged. United States v. Garrido, 995 F.2d 808, 816-17 (8th Cir. 1993)
(evidence of drugs, drug paraphernalia, and weapon seized from home of
first codefendant in drug conspiracy was admissible against second
codefendant as evidence of charged conspiracy), cert. denied, 114 S. Ct.
331 (1993).
Rather than mechanically instructing the jury as to what evidence was
admissible solely against Kime as opposed to Bell, we believe the district
court properly relied on the jury's common sense, defense counsel's ability
to conduct a vigorous cross-examination, and Instruction No. 4, which
reminded the jury that there were two defendants on trial, each of whom was
entitled to have his guilt determined solely on the evidence applying to
him. This instruction fairly met the substance of the limiting instruction
suggested by Bell and adequately safeguarded his right to a fair trial.
Garrido, 995 F.2d at 817 (compartmentalizing instruction at end of trial
instead of limiting instruction when evidence admitted was not abuse of
discretion; jury was capable of reasonable compartmentalization); United
States v. Watts, 950 F.2d 508, 513, (8th Cir. 1991) (same), cert. denied,
503 U.S. 911 (1992). We find no abuse of discretion.
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4. The Brady Claim
Before trial, the Government informed the district court that it had
become aware of a romantic entanglement between prosecution witnesses
Brown, Dolash, and Groves and some of their female jailers. As a result,
Brown, Dolash, and Groves apparently received several special privileges
while in the Dallas County Jail, including sexual contact with female
jailers, expanded visiting privileges with family members, catered food,
and access to otherwise off-limits areas of the jail, computer records,
areas outside the jail, and the control center. These irregularities,
however, were not brought to the attention of the defense until midway
through the cross-examination of Dolash, after Brown and Groves had already
testified. Bell contends that the district court erred in denying his
motion for a new trial based on the Government's failure to comply with the
disclosure requirements set forth in Brady v. Maryland, 373 U.S. 83 (1963).
In Brady, the Supreme Court held that the Government's failure to
disclose evidence that is both favorable to the accused and material to the
accused's guilt or punishment violates due process. Id. at 87. Brady
applies equally to evidence impeaching the credibility of Government
witnesses as well as to exculpatory evidence. Giglio v. United States, 405
U.S. 150, 154 (1972). Evidence is material for purposes of Brady analysis
"only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different. 'A reasonable probability' is a probability sufficient to
undermine confidence in the outcome." United States v. Bagley, 473 U.S.
667, 682 (1985).
We find no Brady violation. "The rule of Brady is limited to the
discovery, after trial, of information which had been known to the
prosecution but unknown to the defense." Nassar v. Sissel, 792 F.2d 119,
121 (8th Cir. 1986) (quotation omitted). In this case,
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the disclosure was made during defense counsel's cross-examination of
Dolash, enabling him to cross examine Dolash extensively on the subject.
In addition, the defense called one of the offending female corrections
officers to the stand where she testified extensively on the issue, placing
the facts squarely before the jury. The defense was also free to recall
Brown and Groves in order to cross examine them on the subject as well.
The fact that it chose not to do so does not render this temporary
nondisclosure a Brady violation: "Brady does not require pretrial
disclosure as long as ultimate disclosure is made before it is too late for
the defendant to make use of any benefits of the evidence. Due process is
satisfied." Nassar, 792 F.2d at 121.
6. Jojola's in-court identification
Jerry Jojola, the conspiracy's former New Mexico marijuana supplier,
testified that he was robbed of his drugs by Bell, McGee, and Clifford
Brown in Albuquerque. Prior to Jojola's testimony, Bell moved to suppress
any potential courtroom identification on the basis that it would be unduly
suggestive. The district court denied Bell's motion, and Jojola
subsequently identified Bell at trial as one of his assailants. It is
undisputed that Jojola had never been asked to make any sort of out-of-
court identification prior to trial. Following the courtroom
identification, Bell moved for a mistrial, which was denied.
In order to determine whether the courtroom identification denied
Bell due process, we apply the two-part test set forth in Manson v.
Brathwaite, 432 U.S. 98 (1977). First we must determine whether the
identification was impermissibly suggestive. If it was, we then ask
whether it created a "very substantial likelihood of irreparable
misidentification" under the totality of the circumstances. Id. at 116
(quotation omitted). We need proceed no further than the first half of the
test. The mere fact that Jojola's identification of Bell took place for
the first time at
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trial does not necessarily render it impermissibly suggestive. "Since this
court does not require in-trial identifications to be preceded by pretrial
lineups, see United States v. Wade, 740 F.2d 625, 628 (8th Cir. 1984), the
only issue is whether [defendant's] presence at the defense table . . .
constituted impermissibly suggestive procedures." United States v.
Murdock, 928 F.2d 293, 297 (8th Cir. 1991). It did not. Bell, a male
caucasian, was seated at defense table alongside his defense counsel, Kime,
and Kime's defense counsel, all of whom are also male caucasians, as were
the vast majority of individuals in the courtroom that day. This exact
configuration had already, in fact, produced a prior in-court
misidentification when Nelson wrongly identified Bell instead of Kime as
one of the individuals who robbed and assaulted him. Based on these facts,
we cannot say Jojola's in-court identification of Bell was impermissibly
suggestive.
7. Expert Testimony on Eyewitness Identification
Following Jojola's courtroom identification of Bell, the district
court refused to admit expert testimony impeaching the reliability of
Jojola's identification. When faced with a proffer of expert scientific
testimony, the district court must determine "whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the
trier of fact to understand or determine a fact in issue." Daubert v.
Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796 (1993). After a
detailed offer of proof, the district court concluded that: (1) there had
been no showing that the proffered testimony constituted "scientific
knowledge" under the first prong of Daubert; (2) the proffered testimony
would not assist the trier of fact under the second prong of Daubert
because it invaded the province of the jury; and (3) the proffered
testimony was likely to confuse the jury under Fed. R. Evid. 403. Instead,
the district court subsequently gave the jury an instruction on eyewitness
identification in order to assist the jury in evaluating the
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eyewitness testimony. Bell claims this decision was erroneous and denied
him due process.
At the outset of this inquiry we note that "the district court has
broad discretion in, first, determining the reliability of the particular
testimony and, second, balancing its probative value against its
prejudicial effect." United States v. Blade, 811 F.2d 461, 465 (8th Cir.),
cert. denied, 484 U.S. 839 (1987). The exclusion of expert testimony is
a matter committed to the sound judicial discretion of the trial judge, and
we will reverse only for an abuse of that discretion. United States v.
Rose, 731 F.2d 1337, 1345 (8th Cir.), cert. denied, 469 U.S. 931 (1984).
We agree with the district court's assessment that the proffered
expert eyewitness identification testimony fails to qualify as "scientific
knowledge" under Daubert's first prong. Daubert sets forth four factors
which the district court should consider in determining whether the
proffered expert testimony qualifies as "scientific knowledge." These
include: (1) whether the theory or technique can or has been tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate for error; and (4) the
particular degree of acceptance within the scientific community. Daubert,
113 S. Ct. at 2796-97. Defense counsel submitted a preliminary opinion by
Gary Wells, professor of psychology at Iowa State University, along with
Dr. Wells' curriculum vita, and one article he had written and another he
had cowritten on the topic of eyewitness identification in lineups. While
the articles admirably articulate Dr. Wells' theories and hypotheses
regarding how to conduct a non-misleading pretrial lineup, they are utterly
deficient in regard to determining whether his views constitute "scientific
knowledge" within the meaning of Daubert. Even assuming these articles are
relevant in a case where no pretrial lineup was ever conducted, their
reference to the research and/or studies upon which Dr. Wells' propositions
and corollaries are
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based consist of nothing more than the name of the researcher followed by
the date of the study (i.e. "Wells, 1978."). Whereas this shorthand may
communicate volumes to those in the field of psychology, it says nothing
whatsoever to the district judge attempting to assess the credibility of
the research underlying Dr. Wells' opinions. We are left in a situation
analogous to that of the Ninth Circuit in United States v. Rincon, 28 F.3d
921, 923-25 (9th Cir.) (affirming the district court's exclusion of
proffered expert eyewitness identification testimony under Daubert), cert.
denied, 115 S. Ct. 605 (1994): "[W]hile the article identified the research
on some of the topics, it did not discuss the research in sufficient detail
that the district court could determine if the research was scientifically
valid." Id. at 924. In short, the record supports the conclusion of the
district court.
Even if the proffered testimony qualified as "scientific evidence"
under the first Daubert hurdle, we agree with the district court's
conclusion that it fails under the second phase of that inquiry. Federal
Rule of Evidence 702 permits the use of expert testimony when "scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue." The advisory
committee's notes make it clear that when the layman juror would be able
to make a common sense determination of the issue without the technical aid
of such an expert, the expert testimony should be excluded as superfluous.
Fed. R. Evid. 702, advisory committee's note. And while Rule 704 has
largely abrogated the bar against expert testimony on ultimate issues,
"[t]he abolition of the ultimate issue rule does not lower the bars so as
to admit all opinions." Fed. R. Evid. 704, advisory committee's note.
Rules 702 and 403 still provide for the exclusion of "evidence which wastes
time," such as "opinions which would merely tell the jury what result to
reach." Id.
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The evaluation of eyewitness testimony is for the jury alone. "It is
the exclusive province of the jury to determine the believability of a
witness . . . . An expert is not permitted to offer an opinion as to the
believability or truthfulness of a victim's story." Bachman v. Leapley,
953 F.2d 440, 441 (8th Cir. 1992) (citation omitted). The proposed expert
in this case "was not merely going to offer testimony about eyewitness
identification in general but specific, to the point, testimony regarding
the inherently untrustworthy manner with which Jojola identified Mr. Bell
in Court." Appellant Bell's brief at 47. This line of testimony intrudes
into the jury's domain. Bell's defense counsel was capable of exposing to
the jury any potentially unreliable bases underlying Jojola's
identification through cross examination, assuming they were not already
apparent. See United States v. Harris, 995 F.2d 532, 535 (4th Cir. 1993)
(affirming exclusion of proffered eyewitness identification expert
testimony because "jurors using common sense and their faculties of
observation can judge the credibility of an eyewitness identification,
especially since deficiencies or inconsistencies in an eyewitness's
testimony can be brought out with skillful cross-examination."). We
believe the jury, as the trier of fact, to have been fully capable of
gauging Jojola's credibility without the aid of an expert. United States
v. Dorsey, 45 F.3d 809, 815 (4th Cir.) ("[E]xpert testimony can be properly
excluded if it is introduced merely to cast doubt on the credibility of
other eyewitnesses, since the evaluation of a witness' credibility is a
determination usually within the jury's exclusive purview."), cert. denied,
115 S. Ct. 2631 (1995).
The minimal probative value of the proffered expert testimony is
outweighed by the danger of juror confusion. Daubert makes it clear that
when assessing the admissibility of proffered scientific expert testimony
under Rule 702, the trial court must also take into account the interplay
of other relevant rules of evidence, such as Rule 403: "Expert evidence can
be both powerful and quite misleading because of the difficulty in
evaluating it. Because of
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this risk, the judge in weighing possible prejudice against probative force
under Rule 403 of the present rules exercises more control over experts
than over lay witnesses." Daubert, 113 S. Ct. at 2798 (quotation omitted).
Here the district court properly recognized the very real danger that the
proffered expert testimony could either confuse the jury or cause it to
substitute the expert's credibility assessment for its own. Dorsey, 45
F.3d at 816 ("Because in the instant case, the district court was concerned
that the expert testimony would confuse and mislead the jury, the district
court did not abuse its discretion in excluding the testimony."); Rincon,
28 F.3d at 926 ("Given the powerful nature of expert testimony, coupled
with its potential to mislead the jury, we cannot say that the district
court erred in concluding that the proffered evidence would not assist the
trier of fact and that it was likely to mislead the jury.").
Our conclusion is buttressed by three additional considerations:
First, the district court adequately addressed the concerns presented by
the excluded expert testimony by giving a comprehensive instruction
regarding the evaluation and reliability of eyewitness testimony. See
Rincon, 28 F.3d at 925. Second, the reality of the potential unreliability
of eyewitness identification had already been driven home to the jury in
a manner no expert could hope to reproduce by Nelson's prior in-court
misidentification of Bell as one of his assailants. Third, Jojola's
eyewitness testimony is supported by that of numerous other witnesses,
including McGee and Brown, both of whom implicated Bell as the third
participant in the robbery. We are "especially hesitant to find an abuse
of discretion [in denying expert eyewitness identification testimony]
unless the government's case against the defendant rested exclusively on
uncorroborated eyewitness testimony." Blade, 811 F.2d at 465. As such,
we find none.
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8. The Bailey Claim
Bell next challenges the sufficiency of the evidence supporting his
conviction for using or carrying a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1). Bell stakes his
claim on the Supreme Court's December 1995 decision in Bailey v. United
States, 116 S. Ct. 501 (1995), holding that in order to sustain a
conviction under the "use" prong of that statute, "the Government must show
that the defendant actively employed the firearm during and in relation to
the predicate crime." Id. at 509. Because Bell's trial took place in
January of 1995, the district court was never afforded an opportunity to
consider the facts in light of Bailey. Accordingly, we remand Bell's
conviction under Count 16 to the district court for reconsideration in
light of the Supreme Court's intervening clarification of the "use"
component of 18 U.S.C. § 924(c)(1). See United States v. Byrne, 83 F.3d
984, 992 (8th Cir. 1996).
9. Sentencing Issues
Finally, Bell challenges the calculation of his sentence under the
United States Sentencing Guidelines on three separate fronts.
Base Offense Level: In addition to 2,771.51 kilograms of marijuana,
the district court attributed six pounds of methamphetamine to Bell based
on the testimony of Groves, Brown, McGee, and Dolash, resulting in a base
offense level of 32. Bell argues that because these individuals are former
co-conspirators looking to trade testimony for leniency there is
insufficient indicia of reliability to credit their testimony. The
district court's determination of the amount of drugs for sentencing
purposes is a finding of fact which we review for clear error. United
States v. Lawrence, 915 F.2d 402, 406 (8th Cir. 1990).
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The district court's findings regarding a witness' credibility are
virtually unreviewable on appeal. United States v. Kinshaw, 71 F.3d 268,
272 (8th Cir. 1995). The record is replete with evidence linking Bell to
the conspiracy's distribution of methamphetamine, and the district court
"was entitled to rely on information having sufficient indicia of
reliability to support its probable accuracy." Id. (quotation omitted).
The mere fact that this testimony comes from Bell's former partners in
crime does not necessarily render it unreliable. Id. (affirming calculation
of amount of methamphetamine attributable to defendant based on codefendant
testimony).
Physical Restraint of the Victim: The district court also enhanced
Bell's sentence two levels under USSG § 3A1.3, which provides for an
increase of two levels if the victim was "physically restrained in the
course of the offense." Bell argues that this victim enhancement is
inapplicable to Jojola because he was not a victim, but a fellow drug
dealer and co-conspirator. Bell also challenges § 3A1.3's applicability
because there is no evidence that he and his cohorts tied Jojola up or
forced him into the van where he was robbed and beaten. We review this
factual determination for clear error. Arcoren v. United States, 929 F.2d
1235, 1246 (8th Cir.), cert. denied, 502 U.S. 913 (1991).
While he may have initially entered the van willingly, Jerry Jojola
testified that McGee and Bell pulled him into the back of the van, beat him
severely, held a gun to his head, and held him down while Bell attempted
to cut off his finger with a pair of wire cutters as a sign to the "Mexican
Mafia." We find it to be axiomatic that once Brown, McGee, and Bell
initiated the robbery and began beating and torturing Jojola, he ceased to
be a co-conspirator and became a victim. And while USSG § 1B1.1(i) defines
the term "physically restrained" to mean "the forcible restraint of the
victim such as being tied, bound, or locked up," we have found that these
terms are "merely illustrative examples and do not limit
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the type of conduct that may constitute a physical restraint." Arcoren, 929
F.2d at 1246. Based on the above facts, we have no difficulty in affirming
the district court's finding that Bell physically restrained Jerry Jojola
within the meaning of § 3A1.3. Arcoren, 929 F.2d at 1246 (affirming
district court's finding that defendant physically restrained victims
within the meaning of § 3A1.3 by pushing and grabbing them and preventing
them from leaving the room).
c. Obstruction of Justice: Bell also challenges the district court's
two-level enhancement for obstruction of justice pursuant to USSG § 3C1.1
for perjuring himself at trial. We review the district court's application
of a section 3C1.1 enhancement for clear error. United States v. Cabbell,
35 F.3d 1255, 1261 (8th Cir. 1994).
"In applying this provision in respect to alleged false testimony or
statements by the defendant, such testimony or statements should be
evaluated in a light most favorable to the defendant." USSG § 3C1.1,
comment. (n.1). Accordingly, this enhancement should not be imposed if a
reasonable trier of fact could have found Bell's alibi testimony to be
true. Cabbell, 35 F.3d at 1261. Bell argues that this enhancement is
inapplicable because a reasonable jury could have believed him and his
alibi witnesses. While it is not enough that a defendant merely testifies
in his own behalf and is disbelieved by the jury, we must give "due regard
to the district court's observations and express finding that a defendant
lied to the jury." United States v. McCormick, 29 F.3d 352, 357 (8th Cir.
1994).
In this case, the district court's findings include twelve specific
instances where Bell's alibi testimony was flatly contradicted by either
his own subsequently disavowed confession or the unequivocal testimony of
his former co-conspirators or other witnesses. We find no error. United
States v. Oakie, 12 F.3d
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1436, 1444 (8th Cir. 1993) (affirming district court's perjury
determination based on codefendant and other witnesses' testimony
contradicting defendant's testimony).
III. CONCLUSION
For the aforementioned reasons, we affirm Kime's conviction. We
remand Bell's 18 U.S.C. § 924(c)(1) conviction under Count 16 to the
district court for further proceedings in light of Bailey v. United States.
We affirm Bell's conviction and sentence in all other respects.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting and concurring.
I concur in all of the court's opinion except the disposition of the
issue that involves Bailey v. United States, 116 S. Ct. 501 (1995). The
court's disposition of that issue is contrary to U.S. v. McKinney, 79 F.3d
106 (8th Cir. 1996), in which we held, under circumstances identical in all
material respects to those present in this case, that we would not consider
the defendant's Bailey argument because he had not presented it to the
district court and had therefore forfeited it. I therefore respectfully
dissent from the portion of the court's judgment that remands the case to
the district court for reconsideration in the light of Bailey.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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