## The Honorable Howard F. Sachs, United States District Judge for the Western 1 

## District of Missouri. 

# United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 96-1331

____________ United States of America, *
* Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri David Wayne Johnson, *
* Appellant. *

____________ Submitted: November 19, 1996
Filed: June 11, 1997

____________ Before McMILLIAN, HENLEY and MORRIS SHEPPARD ARNOLD, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

David Wayne Johnson appeals from a final judgment entered in th e United States District Court for the Western District of Missouri, upo n 1 a jury verdict, finding him guilty of armed bank robbery and possession of a firearm during a cr ime of violence. 18 U.S.C. §§ 2113(a), (d), 924(c). For reversal, appellant contends that the

## -2-

district court erred in: (1) denying his motion for judgment of acquittal based on the insuffic iency of the evidence, (2) giving an " Allen " charge, and (3 ) denying his motion for a new trial based on newly discovere d evidence. For the re asons discussed below, we affirm the judgment of the district court.

BACKGROUND FACTS

Onthe morning of August 16, 1994, at or about 9:35 to 9:40 a.m., th e North American Savings Bank in Kansas City, Missouri, was held up by a lon e individual. Rikki Kr eamer, Head Teller, testified that she noticed a man with a bag clutched under his arms walking toward her from the door. At that time, there were no other customers in the bank; therefore, she looke d directly at the man as he approached. When he was standing within three feet of her, Kreamer said that the man told her that he was robbing th e bank and directed her to give him her money. He then placed the bag on the cou nter and opened it. She testified that, when the man opened th e bag, she saw the butt of a gun inside, and, when he placed his hand into the bag, he appeared to be holding the gun in her direction. She further said that, after she saw the gun, she became frightened and gave the man all o f the money in her drawer. Kreamer described the bank robber as a white male wearing a red baseball cap and a loose-fitting, colored shirt that was buttoned dow n. Although she could not recall anything about his pants, she did notice that they had pockets on the back. She testifie d that the robber had g ray hair, "salt and pepper type," and appeared to be wearing a wig in a da rker color than his natural hair; he wore sunglasses with yel low lenses and his mustache was a "salt and pepper" gray. Sh e noticed that he had unusually large feet, was about six feet tall, an d weighed a round 230 to 250 pounds. She not only identified appellant i n court as the man who robbed her, but she had also identified him as th e bank robber on September 1, 1994, at a police lineup.

Diane G. Harris, the branch manager, testified that the robber took $3,47 2.00. Carolyn Newsome, a bank teller who worked next to Kreamer , testified that she

## -3-

noticed a man hunched over Kreamer, so she moved slightly to get a better look, and realized that a robbery was in progress. Thereafter, she reache d under t he counter and pushed the button to activate a silent alarm. A s soon as the silent al arm was activated, a surveillance camera immediately began to take pictures of the bank interior. At trial, Newsome was unable to identify appellant as the bank robber.

As soon as the alarm was activated, a computer in the Communications Unit of the Kansas Ci ty, Missouri, Police Department (KCPD) automatically made a record of the incident. At trial, Jeane Rast, a supervisor in the Communications Unit, explained how the process w orked. She testified that the call came in from the North American Savings Bank at exactly 9:40 a.m. on August 16, 1994.

Appellant told the investigating agents that he could not have robbe d the b ank, because he had been at work at that time at Bob Sight Lincol n Mercury in Kansas City, Missouri. He said he did not recall whether he wa s supposed to have beenat work at 9:00 or 9:30 a.m., but, whatever time it
was, he said he was there. During the search of appellant's house, FB I Spec ial Agent Julie Christian found a Day-Minder type of calendar i n appellant's living room. She opened it to Augus t 16, and found a notation on the page, "10:00, Bob Sight."

FBI ag ents interviewed employees at Bob Sight Lincoln Mercury t o attempt to verify app ellant's alibi. Two of these employees testified at trial about their rec ollection of the morning of the robbery. Richard E. Barrett, a salesman at the car dealership, testified he believed that on the morning of August 16, he first saw appellant somewhere between 9:40 an d 9:50 a.m. However, he also testified he did not look at his watch, an d therefore he was not certain of the time.

Larry Frick, the new car sales manager at the car dealership , testified that he had hired appellant as a salesman during the week o f August 8, 1994. Appellant was scheduled to arrive at the car dealership between 9:30 and 10:00 on the morning of

## -4-

August 16 . Frick testified that he was in a manager's meeting fro m

th around 9:00 a.m. until 9:45 a.m., after which he came out onto the sales floor and saw Barrett. Frick further testified that as he walked out of the meeting, he glanc ed at a clock, because he was expecting appellant to arrive. Frick testified the receptionist notified him at 9:56 a.m. that appellant had arrived and that thereafter he spe nt the greater part of the day, from 10:00 a.m. to 5:00 p.m., training appe llant. He also noted that appellant never returned to work at the car dealership after that day.

That eve ning, Frick saw a report of the bank robbery on th e television news, and the news program showed a surveillance photograph of the robber. Frick testified that he commented t o his wife, "God, that guy looks familiar," but that he did not remember at the time whom th e photograph resembled. After he was contacted by the FBI, he suddenl y realized that the photograph looked like the man he had spent the day with on Tuesday, August 16, 1994 — appellant.

FBI Special Agent Eric Gerstein performed a num ber of "test runs" in

an unmarked FBI vehicle in order to determine approximately how long i t would hav e taken a person to get from the bank to the car dealership

. Agent Ger stein started the run approximately at the same time that th e bank rob bery had occurred, in order to avoid variations in traffi c conditions. On the last four runs, when he reac hed the car dealership, he changed his pants and shoes and put on a necktie. He testified that the average time for the runs was 12 minutes and 18 seconds.

KCPD d etectives recovered three items of physical evidence from a del ivery man who had found them in a dumpster near the bank --- a re d baseball cap with a "Hill's Science Diet" logo, leather gloves, an d sunglasses with yellow lenses. In accordance wi th standard procedure, the items were taken to the property room of the KCPD.

## -5- On August 19, the da y after appellant was arrested, he telephoned a friend, Michael D. Hall, of the Kansas City, Missouri, Fire Department, an d asked him to contact Agent Christian. Appellant told Mr. Hall about the arrest an d asked him to go to the FBI headquarters, look at th e surveillance photographs, and tell the agents th at they had the wrong man. Hall and appellant were co-workers and friends. Early in the summer o f 1994, Hall helped appellant get a job at a local mortgage company, where Hall h imself was working at the time. At trial, Hall testified tha t appellant was supposed to be at work at the mortgage company on Monday , August 15, 1994, but that he did not actually start work until Wednesday, Augu st 17 . On Tuesday, August 16 (the day of the bank robbery), Hall

th th called a ppellant to find out why he had not come to work that morning

. Appella nt told Hall that he had been at the car dealership that day an d that he would report to work the following morning.

OnMonday, August 22, Hall went to FBI headquarters to speak to Agen t Christian. Hall believed at the time that by sp eaking to Agent Christian, he would be able to straighten things out. At trial, Hall identifie d government's exhibit No. 33 as the photographs he had been shown by Agent Christian

. Hall testified that he believed that the person in the ban k surveillance photograph was appellant, his friend.

After Agent Christian had shown Hall the photographs on August 22, 1994, she asked him if he had ever known appellant to own or wear a baseball cap. Hall immediately asked her if the cap had a "Hill's Science Diet dog food logo on it." Hall then said that he was color blind, so tha t he did not know if the cap was red or orange, but that he remembered seein g appellant with a bright-colored cap with a "Hill's Science Diet" logo

. Both Agent Christian and Hall testified that it was impossible to read the logo on the cap in the original surveillance pho tographs viewed at the FBI that day. At the time Hall asked her about the cap, Agent Christian had not yet seen the baseball cap that had been recovered by the KCPD

. Immediately after Hall left her office, Agent Christian telephone d Detective Day and asked him if he knew what logo was on the cap. Detectiv e Day had not seen the cap because it had already been taken

## -6-

to th e property room by the time he arrived at the bank. The followin g day, the KCPD detectives sent Agent Christian so me Polaroid photographs of the red baseball cap with a "Hill's Science Diet" dog food logo.

FBI Special Agent Douglas A. Goodin, from the Special Photographic Unit of the FBI Laboratory in Washington, D.C., used image processin g computer software to heighten the contrast in th e surveillance photographs in order to make it p ossible to read the logo on the cap worn by the bank robber. Agent Goodin identified the logo as a "Hill's Science Diet" dog food ins ignia and testified that it was the same type found on the ca p found by the KCPD at the bank. Agent Goodin also used a technique known as "photogrammetry" to analyze the surveillance photographs. Agent Goodin expl ained to the jury that photogrammetry involves using the laws o f perspective and the measurement of objects of known size in a photograph in order to make measurements of other objects i n the same picture. Using photogrammetric analy sis, Agent Goodin determined that the bank robber in the surveillance photographs was approximately 76 inches (6'4") tall and

wore a shoe that was approximately 13 inches long. Appellant is 6' 4" tal l and wears a size 15 shoe. FBI Special Agent Gary Kanaskie, from th e Docume nts Division of the FBI Laboratory in Washington, D.C., testifie d that a 13-inch-long shoe would be consistent with a size 15 shoe. Agent Kanaskie further testified, based on two statistical papers published by the Footwear Industries of America, that only 0.3% of the men's athletic shoes sold in retail stores in the United States in 1993 were size 15.

Dr. Gary L. Baker, a plastic surgeon, testified as an expert witness for the defense. He testified that he believed that the ear of the bank robber, as he saw it in the surveillance photographs, was different from that of appellant. Dr. Baker testified in a deposition on November 1 , 1995, t hat he had examined a series of surveillance photographs take n during the robberies of the Interstate Bank (hereinafter Interstate) in Ma y of 1995 and in September of 1995. Appellant was incarcerated in May and September 1995. Dr. Baker said that he had compared the surveillanc e photographs

## -7-

of the Interstate Bank robber to the surveillanc e photographs of the North American Savings Bank robbery in August 1994. Dr. Baker testified that th e
ear of the May 1995 Interstate robber was "very similar" to that of the ma n in the North American Savings Bank surveillance photographs.

FBI Special Agent William J. Stokes from the FBI Special Photographi c Unit in Washington, D .C., testified as an expert rebuttal witness for the government. Agent Stokes testified that, because of the poor quality of the surveillance phot ographs, it would have been impossible for Dr. Baker to see the details necessary to make an accurate ear identification.

Barbara Garrett, an employee of Interstate sinc e 1990, stated in her November 1, 1995, deposition that she was present during both robberies. Garrett said that she believed that the same man committed both of the 199 5 robberies, as well as the robbery she had witnes sed at Interstate in 1991. She described the robber as a white male in his 50s to 60s, about 6' t o 6'2" tall, with "a large nose, scarred or weathered face, gray bush y moustache," and wearing a baseball cap. Garrett testified that, in both the Ma y and September robberies, the bank robber took the keys to a n employee's car and used the car to flee the scene, abandoning it nearby. She examined the surv eillance photographs taken during the robbery of the North American Savings Bank on August 16, 1994. Thereafter, she testified that the man in one o f the surveillance photographs of the North American Savings Bank robbery did look similar to the man who robbed Interstate in May and S eptember 1995, but that in another of the surveillanc e photographs, the North American Savings Bank robber did not look similar to the Interstate robber.

Jennifer Tate, another Interstate employee, was present during the May and September 1995 robberies. She stated in her deposition that the

sam e man committed both of the 1995 robberies. Tate described th e Interstat e robber as about 5'6" tall, with a slender build, a black an d gray bushy moustache, and wearing a baseball cap and

## -8-

sunglasses. Tate also examined defense exhibits Nos. 1-6, the surveillanc e photographs taken of the North American Savings Bank robbery. She stated that she did not believe that the man in defense exhibits Nos. 1-6 was the same man who had robbed her at Interstate.

Michelle Hill stated in her deposition that she had been an employee at the Interstate Bank for approximately a year and a half and that she wa s onl y present for the May 1995 robbery. Hill said that she had a goo d opportunity to see the man who robbed Interstate in May 1995, because he had approa ched her teller window to commit the robbery. She examine d defense exhibits Nos. 1-6, the surveillance phot ographs taken of the North American Savings Bank robber, and stated that sh e did not believe that the man in those photographs was the same man who ha d robbed her at Interstate in May of 1995.

Finally, Jackie Duck ett said in her deposition that she had been an empl oyee at Interstate for 16 years. Duckett testified that she wa s pre sent during two robberies at Interstate in 1991, as well as th e robberies in May and September of 1995. She said that she believed that all four robberies ha d been committed by the same person, a man "at least 6 feet tall, 170 poun ds, slightly built," with "salt and pepper" hair and

a bushy moustache. Duckett examined photographs of the 1994 North America n Savings Bank robber and testified that the only similarities that sh e noticed between that robber and the Interstate r obber were the cap and the sunglasses.

The jury found appellant guilty of armed bank r obbery and possession of a firearm during a crime of violence. The district court sentence d appellant to a total of 105 months imprisonment, 3 years supervise d release, restitution in the amount of $3,475.00, and special assessments of $100.00. This appeal followed.

## -9-

SUFFICIENCY OF THE EVIDENCE

Appell ant first argues that the evidence presented at trial wa s insufficient as a mat ter of law to support the jury's verdict. To decide whether the evidence is sufficient to support a verdict, the court views the evidence in a light most favorable to the verdict and accepts al l

reason able inferences favorable to the government that logically can b e drawn from the eviden ce. United States v. Grey Bear , 828 F.2d 1286, 1291 (8 Cir. 1987) (subsequent history omitted), citing United States v

. th Gleason , 766 F.2d 1239, 1246 (8 Cir. 1985), cert. denied , 474 U.S. 1058 th (1986). The evidence need not exclude every reasonable hypothesis o f innocen ce. United States v. Holmes , 13 F.3d 1217, 1220 (8 Cir. 1994 ) th (quoting United States v. Temple , 890 F.2d 1043, 1045 (8 Cir. 1989))

. th Rather, we will rever se a verdict only when a reasonable factfinder could not have found the defendant guilty beyond a reasonable doubt. While it is true that appellant presented ample evidence from which a jury coul d have foun d him not guilty, the law is well established that it is th e jury's function to evaluate the credibility of witnesses. United States v. Jackson , 959 F.2d 81, 8 2 (8 Cir.), cert. denied , 506 U.S. 852 (1992). th Here, the jury heard appellant's alibi and all of his alibi witnesses; the y also heard that no evidence of the robbery was found in his home and the stro ng testimony of his expert witness, Dr. Baker. Given the jury' s opport unity to view the witnesses and evaluate the witnesses' possibl e moti ves or biases, the jury was uniquely situated to determine whos e testimony was credible. Here, the jury chose not to believe appellant's witnes ses. Therefore, we will not usurp the function of the jury t o determ ine credibility, absent a finding that no reasonable person coul d have reached a conclusion the defendant was guilty beyond a reasonabl e doubt.

Here, our review of the evidence presented by t he government reveals ample support for the jury's finding that appell ant was indeed the man who robbed the North American Savings Bank in Kansas City, Missouri, on August 16, 19 94. The government presented eyewitness testimony from Rikk i Kreamer, the bank teller who

## -10-

was robb ed. Not only did she identify appellant in court withou t hesitation, but she also selected appellant from a live police line-u p shortly after the robbery.

Moreover, appellant' s friend and co-worker, Michael Hall, testified that he had seen appellant with a "Hill's Scienc e Diet" baseball cap prior to the bank robbery in question. The bank robber in the surveillanc e photographs also wore a "Hill's Science Diet" baseball cap. This cap was later reco vered in the dumpster at the rear of the bank and the ban k employees identified it as the cap worn by the robber. Hall also testifie d that he believed that appellant is the individual shown in the surveillanc e photographs. The government also presented testimony from other witnesses wh o identified appellant as the robber in the photographs. Larry Frick , appellan t's supervisor during his one day of employment at the ca r dealership, testified that he spent an entire day with appellant on the da y of the robbery, beginning at approximately 9:56 a.m. Frick identifie d appel lant as the person in the bank surveillance photographs. He als o testified that he also recognized appellant from a television news program in which a surveillance photograph of the bank robber was shown to viewers

.

Debra A. Dutro, appe llant's ex-wife, also testified that the person in one of the bank surveillance photographs bore strong resemblance t o appellant. She also testified that appellant had told her that it wa s "tantalizing to pull a sting or make a heist" and that she believed that appellant was having financial difficulties during the period before the robberies.

The government also offered into evidence the actual surveillanc e photogr aphs, placed next to a posed photograph of appellant wearing a baseball c ap and sunglasses similar to those worn by the bank robber

. Appellant in the posed photograph stood at the same teller window where th e robbery occurred. Comparison of the posed photograph with the surveillanc e photog raphs reveals an incredible likeness. Clearly, a reasonable jur y could have reached the conclusion that appellant committed the bank

## Allen v. United States , 164 U.S. 492, 501 (1896) (approving supplementa l 2 

## instructions advising deadlocked jurors to consider each other's views).
-11- robbery at North American Savings Bank after comparing the posed photograp h and the surveillance photographs taken at the time of the robbery.

Finally, the government introduced testimony from expert witnesses from the FBI. Agent Goodin, an FBI forensic photogrammetry expert , testified that in his opinion the person depicte d in the bank surveillance photographs was approximately 6'4" tall and wore shoes of approximately 13 inches in length. Ag ent Kanaskie, another FBI forensic expert, testified

a 13 inch shoe was consistent with a size 15 shoe and that only 0.3% of th e men's athletic shoes sold in the United States r etail stores were size 15. Appellant is 6'4" tall and wears a size 15 shoe.

In the present case, more than sufficient evidence was presented by the government, and, given our standard of review, we reject appellant's conten tion that there was insufficient evidence to support the jur y verdict.

ALLEN CHARGE

Next, we take up appellant's argument that the supplemental Alle n charge jury instruction given by th e district court was coercive and thus

2

con stituted reversible error. The district court gave the Allen charg e after the jury had deliberated for about 3 1⁄2 hou rs and the jury foreperson had sent a note to the district court stating th at the jury was deadlocked and evenly divided. (We note that "[i]t is improper for a trial court to ask a deadlocked jury about its numerical division, a proper [ Allen ] instruction may never theless be given if the jury's numerical division is given, without solici tation, by the jury [foreperson]." United States v. Cook , 663 F.2d 808, 809 n.3 (8 Cir. 1981) (per curiam).) th

## After the government attorney, in response to the district court's request fo r 3 

## suggestions, requested that the district judge give an Allencharge, defense counse l offered the following:

Frankly, I don't know what to think. I don' t
necess arily object to that. I would rather have a decisio n than retry the case next month. I don't know even if it i s possible for me to retry it next month.

It is 6 to 6. Frankly, if we tell them to keep trying , who se favor does that work in? Well, nobody knows th e answer to that. . . . I would like to see them reach a decision, so I guess I am supporting [the government]. I would leave it up to the court.
-12- First, we note appel lant never objected to the giving of the charge

or t o its wording and indeed actively supported the district court' s decision to give the charge rather than declaring a mistrial. Fed. R

. 3 Crim. P. 30 states that no party may assign as error any portion of th e cha rge or omission therefrom unless they object thereto before the jur y ret ires to consider its verdict, stating distinctly the matter to whic h they obje ct and the grounds of their objection. Id. at 810, citin g Hankerson v. North Ca rolina , 432 U.S. 233, 244 n.8 (1977) ("[T]he normal and valid rule [is] that failure to object to a jury instruction is a waiver of any claim o f error."). When a defendant raises an objection to

a jury instruction for the first time on appeal, the challenge comes too late t o be preserved, unless the instruction constituted "plain error " under Fed. R. Crim. P. 52(b). United States v. Holy Bear , 624 F.2d 853, 855 (8 Cir. 1980). Although appellant himself does not even asser t

th "plain er ror" under Fed. R. Crim. P. 52(b), his claim would only b e cognizable were he able to meet the stringent re quirements of that rule by showing that giving the Allencharge amounted to a miscarriage of justice. United St ates Cook , 663 F.2d at 810 (plain error rule should be applie d wit h caution), citing United States v. Robinson , 419 F.2d 1109, 1111-1 2 (8 Cir. 1969) ( Allen charge held not plain error). Our examination o f th the record reveals,

## -13-

far from having committed clear error, the district court acted well withi n its sound discretion in giving the Allen charge.

Before giving the Allen charge, the district court consulted wit h counsel for both sides, indicating that, although it was earlier than he had decl ared mistrials in the past, the note was also particularl y convincing. The government attorney suggested that, in light of the lengt h of the trial, over a week, and the short period of deliberation thus far, it might be advisable to deliver an Allen charge rather than declare a mistrial. Defense co unsel, obviously believing that the charge would not be prejudicial to his client in the circumstance s, also urged the district court to give an Allen charge. In United States v. Hiland , 909 F.2d 1114, 1137-38 (8 Cir. 1990), quoting Amos v. United Stat es , 496 F.2d 1269, 1273

th (8 C ir.), cert. denied , 419 U.S. 896 (1974), this court held that th e th defense lawyer's failure to object to the Allencharge permits an inferenc e that the procedure utilized did not seem coercive at the time. The fact that the jury was evenly divided notably eliminated one of the chie f

concer ns regarding potential coerciveness of the Allen charge: the fea r th at jurors in the minority might feel pressure to concede thei r conscientious position in order to achieve a unanimous verdict. See Potte r
v. Unit ed States , 691 F.2d 1275, 1278 (8 Cir. 1982); United States v

. th Cook , 663 F.2d at 810.

Our co urt has consistently rejected the argument that the Alle n charge is inherently coercive and has established a four-element test for determining whether a particular Allen charge was impermissibly coercive: (1) the content of the instruction, (2) the length of deliberation after the Allen charge, (3) the total length of the deliberations, and (4) any indicia in the record of coercion or pressure upon the jury. United State s v. Thomas , 946 F.2d 73, 76 (8 Cir. 1991) (citing U nited States v. Cortez , th 935 F.2d 135, 141-42 (8 Cir. 1991), cert. denied , 502 U.S. 1062 (1992)). th Under this test the Allen charge delivered by the district court did not have an impermissibly coercive effect on the jury's verdict.

## -14- First, we look at the contents of the charge. Here, the distric t court used supplemental instruction 10.02, taken from the 8 Circui t th Manual on Model Jury Instructions (Criminal), and explicitly approved by this court in United States v. Thomas , 946 F.2d at 76. Defense counsel di d not objec t to the content of the charge. The district court read th e entire model instruction, without omitting any of the five essentia l elements of the Allencharge enumerated by this court in United States v. Smith , 635 F.2d 716, 721 (8 Cir. 1980). Secondly, the jury deliberated th for a pproximately 3 more hours after the Allen charge was given befor e returning a verdict. This court has previously found that much shorte r period s of post- Allen charge deliberation did not indicate a coerciv e effect. Id. at 721-22 (45 minutes did not indicate a coercive effect); se e United States v. Hiland , 909 F.2d at 1137 (court declined to draw inferenc e of coercion from 10-minute post- Allendeliberati on period, where there was

no evidence of coercion and defense counsel did not object to the charge at the time).

Next, we look at the total length of the deliberations. The jur y deliber ated a total of approximately 6 1⁄2 hours after a 5 1⁄2-day trial, a period of time that was clearly not so disproportionate as to raise a n inference that the Allencharge coerced the jury

. United States v. Smith , 635 F.2d at 721; United States v. Cook , 663 F.2d at 811 (6-7 hours of tota l delibe ration not disproportionate to a 2-day trial); cf. Williams v

. Fermenta Animal Health Co. , 984 F.2d 261, 266 (8 C ir. 1993) (over 6 hours th of total deliberation not disproportionate to 2 1⁄2-day civil trial).

Finally, the record in the present case contain s no other indicia of

coe rcion. In fact, the record reveals that the district court di d everyt hing possible in the circumstances to minimize the possibility o f coercion. For example, the district court did not want to keep the jury deliberating when they were tired or frustrated or force them to return th e next day if they woul d prefer to continue and allowed the jury to control its own s chedule. After reading the Allen charge around 4:00 p.m., th e district court asked the jury to vote on whether they would like to recess for the day and return

## In his first motion for a new trial based on newly discovered evidence, filed on 4 

## May 10, 19 95, appellant alleged that there was a discrepancy between governmen t witness Rikki Kreamer's testimony at t rial and her victim impact statement, which was given after

the trial. In his memorandum accompanying the order denying appellant's motion, the district judge deemed the evide nce merely impeaching and unlikely to lead to ac quittal on retrial. Appellant refers to this finding in his brief but presents n o ar gument, facts or authority to contest it. Therefore, we hold that this point has been wai ved. In his final motion for a new trial filed on December 1, 1995, appellan t presented evidence regarding a visible cold sore that he said h e had several days before the bank robbery. In his memorandum and order deny ing the motion, the district judge ruled that this evidence had not been dilig ently produced by appellant. Appellant does not argue this alleged new evidence on appeal.
-15- the next morning, rested, to continue deliberation. The jury voted to sta y and deliberate further. When the jury sent out another note an hour later indicating a switch in only one vote, defense counsel did not move for a mistrial. Nor does the fact that the jury subse quently returned a verdict of guilty indicate coercion. Consequently, we h old the district court did not err in giving the Allen charge.

MOTION FOR A NEW TRIAL
Finally, we consider appellant's argument that the district cour t
err ed in denying his motion for a new trial based on newly discovere d evidence. We review the district court's decision for clear abuse o f discretion

. United States v. Johnson , 12 F.3d 827, 833-34 (8 Cir. ) th (cit ing United States v. Provost , 921 F.2d 163, 165 (8 Cir. 1990) (pe r th curiam), cert. denied , 499 U.S. 968 (1991)), cert. denied , 511 U.S. 1095 (1994). In order to secure a new trial based on newly discovered evidence , the defendant must de monstrate (1) the existence of new evidence, (2) due diligence, (3) the re levance of the evidence to a material issue, (4) the probability that evidence would lead to an acquittal on retrial, and (5) the evidence is not merely cumulative or impeach ing. Id. In five motions for a new trial based on newly discovered evidence, appellant alleged new evidence on three separate topics, only one of which is argued in thi s appeal. 4

## Appellant in his brief sta tes that the new evidence presented in this appeal was 5 

## first presented

to the district court in his motion filed on May 10, 1995. See Brief for Appellant at 28 n.33. However, this evidence regarding a bank robbery that occurred
on May 10, 1995, was first presented in the second motion for new trial filed o n May 19, 1995.
-16- The ne wly discovered evidence that appellant argues in his brie f before this court was first presented in his sec ond motion for a new trial base d on newly discovered evidence, filed on May 19, 1995. In this an d 5 subsequent motions, f iled on July 3, 1995, October 10, 1995, and December 1, 1995, appellant presented evidence regarding the two Interstat e robberies on May 10, 1995, and September 14, 1995. Both Interstat e robbe ries occurred while appellant was incarcerated pending sentencing

. Appellant argues that the Interstate robber was not only similar i n appearanc e but also similar in his modus operandi to the man who robbe d North American Saving s Bank on August 16, 1994, and that evidence of this sim ilarity cast enough doubt upon his conviction for the North America n Savings Ba nk robbery to warrant granting a new trial. The governmen t cooperated with appellant in obtaining evidence regarding the Interstate robberies. Specifically, the government acceded to appellant's unusual request to take depos itions of the witnesses to the Interstate robberies, to serve in lieu of t estimony at a hearing. On November 21, 1995, at the courthouse and in the presence of appellant, depositions were taken from Dr. Baker, the plasti c surgeon who testified as an expert defense witness at trial, and from fo ur Interstate employees who witnessed one or both of the 1995 robberies.

In the order denying the final motion for a new trial based on newly discovered evidence, the district court ruled that the evidence produced by appellant satisfied the first 3 elements of the test: (1) it was in fac t
new evidence, (2) it was diligently produced, and (3) it was relevant to a material issue, that is, the identity of the N orth American bank robber. However, the district court decided the evidence did not satisfy

## -17-

the last 2 elements of the test because it was merely cumulative o r impeaching and was not likely to lead to an acquittal on retrial.

Each of the four Int erstate witnesses who testified at the November 21, 199 5, deposition hearing acknowledged there were some superficia l similarities in appearance, each also stated tha t she did not believe that the Interstate robber was the same man who robbed North American Savings Bank. In addition, there was at least one strik ing difference between the modus oper andi of the Interstate robber and that of the North Americ a Savings B ank robber; i.e., the Interstate robber took the car keys of a bank employee and mad e his escape in the employee's automobile; the North American Savings Bank robber did not make his getaway in this distinctive

manner.

The only deposition testimony that supported appellant's position wa s that of the defense expert witness, Dr. Baker. Dr. Baker examined th e photographs of the Interstate robber and testified that the ears of th e Interstate robber and the North American Savings Bank robber, as h e appeared in the surve illance photographs, were "very, very similar." The district court found there were semantic difficu lties and inexact language usage in Dr. Baker's testimony and concluded that there was ambiguity in his testimony and tha t he had serious doubts as to Dr. Baker's expertise. The district court was also concerned that appellant had not refuted the stronger points in the government's case, such as the testimony o f appellant's friend, C aptain Michael Hall, that he had seen appellant with

a red or orange "Hill's Science Diet" baseball cap just like the on e discovere d near the bank and worn by the robber in the surveillanc e photographs.

After reviewing the district court's thorough and carefull y considered memorandum accompanying its order denying the final motion for a new trial, we hold that the district judge did not abuse his discretion in dec iding that the alleged newly discovered evidence presented b y appellant did not satisfy what this court has termed

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"our rigorous criteria for the grant of this disfavored motion." United Stat es v. Doyle , 60 F.3d 396, 398 (8 Cir.) (per curiam), cert. denied , th 116 S. Ct. 538 (1995).

We hold that there was sufficient evidence to support the jury' s verd ict, the Allen charge was not coercive, and the newly discovere d evidence was merely cumulative or impeaching and was not likely to lead to

an acquittal on retrial. Accordingly, we affirm the judgment of th e district court.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.