1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-25-1994

USA v. Brink

Precedential or Non-Precedential:

Docket 93-3397

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Recommended Citation

"USA v. Brink" (1994). 1994 Decisions. Paper 168.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/168
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 93-3397 

 ___________ 

 UNITED STATES OF AMERICA 

v. 

 WILLIAM HARRY BRINK, 

 Appellant 

 _______________________________________________ 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Criminal No. 93-00035) 

 ___________________ 

 Argued April 13, 1994 

 Before: BECKER, MANSMANN and SCIRICA, Circuit Judges

 (Filed Otober 27, 1994) 

 ALEXANDER H. LINDSAY, JR., ESQUIRE (Argued) 

 Lindsay, Lutz, Jackson, Pawk & McKay 

 408 North Main Street 

 Butler, Pennsylvania 16001 

 Attorney for Appellant 

 PAUL J. BRYSH, ESQUIRE (Argued) 

 Office of United States Attorney 

 633 United States Post Office & Courthouse 

 Pittsburgh, Pennsylvania 15219 

 Attorney for Appellee 
 __________________ 

 

 OPINION OF THE COURT 

 __________________ 

SCIRICA, Circuit Judge. 

 William Harry Brink appeals his conviction for bank 

robbery. Brink contends the government violated his Sixth 

Amendment right to counsel by placing him in a cell with a known 

informant in a deliberate attempt to elicit self-incriminating 

statements. He also contends the district court erred by 

allowing him to introduce an eyewitness' prior identification 

only for impeachment purposes, rather than as substantive 

evidence. Although Brink has made a colorable Sixth Amendment 

claim, the record before us is inadequate to resolve it because 

the district court denied Brink's request for an evidentiary 

hearing. Therefore, we will vacate the judgment of conviction 

and sentence and remand for an evidentiary hearing to decide that 

issue. 

 I. Facts and Procedure

 On December 16, 1992, a masked gunman robbed the 

Farmers National Bank in East Brady, Pennsylvania and stole 

$4,434.00 in cash. Brink was arrested for the crime and charged 

with bank robbery, 18 U.S.C. § 2113(a) (1988); armed bank 

robbery, id. § 2113(d); and use of a firearm in a crime of 

violence, id. § 924(c). 

 Before trial, Brink was confined to Clarion County 

prison where he shared a cell with Ronald Scott. After learning 
Scott was scheduled to testify at his trial, Brink discovered 

Scott had been an informant for the Pennsylvania State Police and 

the Federal Bureau of Investigations on five previous occasions. 

Brink requested a pre-trial evidentiary hearing to determine 

Scott's involvement with the State Police and the FBI. The court 

denied Brink's motion. At trial, Scott testified that, while in 

Clarion County prison, Brink confessed to committing the bank 

robbery and admitted to manufacturing an alibi. 

 The principal eyewitnesses at trial were Annette Miller 

and Marilyn Ann Simpson, two bank tellers on duty at the time of 

the robbery, who identified Brink as the robber after testifying 

that they knew him both as a customer and from prior 

associations. They based their identifications on the visible 

parts of his face, his mannerisms and his voice. Miller stated 

that although she got a good look at his eyes, she could not 

remember what color they were. An FBI agent, however, testified 

that the day after the robbery, Miller told him the robber had 

dark eyes.1 

 The prosecution also introduced photographs taken by 

bank surveillance cameras,2 testimony that Brink had been seen 

with stacks of money the night after the robbery, and evidence 

 

1. Brink has light hazel eyes. 

2. The pictures taken were inconclusive as to the robber's 

identity. 
that $220 was found in the sofa of a house where Brink had been 

doing construction work during the week of the robbery.3

 In defense, Brink offered the testimony of John Olcus, 

his neighbor, and Natalie Reefer, a mail carrier. Olcus 

testified that he saw Brink at his house at or near the time of 

the robbery.4 Reefer, who did not know Brink but was standing 

with Olcus when a car drove up to Brink's home around the time of 

the robbery, testified that she saw a red Subaru drive up to 

Brink's house and that Olcus told her Brink was the driver. 

 A jury found Brink guilty on all three counts. Brink 

filed a motion for a new trial, which the court denied. This 

timely appeal followed. We have jurisdiction under 28 U.S.C. § 

1291 (1988). 

 II. Right to Counsel

 Over objection, Brink's pre-trial cellmate, Ronald 

Scott, testified that, while in Clarion County prison, Brink told 

him that he robbed the Farmers National Bank and how he devised 

an alibi. Brink contends the government violated his Sixth 

Amendment right to counsel by placing him in a cell with Scott 

 

3. Two FBI expert witnesses also testified. A photography 

expert testified to five similar features between the denim 

jacket worn by the robber in the surveillance photographs and a 

jacket obtained from Brink's home. A firearms expert testified 

that the gun in the photographs was a revolver, as was the gun 

obtained from Brink's home. Both experts stated they could not 

positively identify the objects in the photographs as the objects 

in evidence. 

4. Brink's house is approximately 41⁄2 miles from Farmers National 

Bank. Olcus testified it would take at least 10 minutes to drive 

from the bank to Brink's house. 
because, he claims, Scott was a government agent deliberately 

attempting to elicit incriminating evidence outside the presence 

of Brink's counsel. We apply plenary review to the district 

court's application of legal precepts, see Gregoire v. Centennial 

Sch. Dist., 907 F.2d 1366, 1370 (3d Cir.), cert. denied, 498 U.S. 

899 (1990), and clearly erroneous review to its factual findings, 

see United States v. Kim, 27 F.3d 947, 958 (3d Cir. 1994); 

Monachelli v. Warden, SCI Graterford, 884 F.2d 749, 750 (3d Cir. 

1989). 

 The deliberate use of jailhouse informants to elicit 

incriminating information may violate a defendant's right to 

counsel. United States v. Henry, 447 U.S. 264, 274 (1980); see

also Massiah v. United States, 377 U.S. 201, 206 (1964). In 

Massiah v. United States, the Supreme Court held the government 

violates a prisoner's Sixth Amendment right to counsel when it 

uses, as evidence, statements made by the defendant "which [it] 

had deliberately elicited from him after he had been indicted and 

in the absence of his counsel." Id. at 206. Massiah, a merchant 

seamen, had been charged with various narcotics offenses. Id. at 

202. After release on bail, Massiah met with Colson, a codefendant, in Colson's parked car where, unbeknownst to Massiah, 

Colson had allowed government agents to install a radio 

transmitter under the front seat. Id. at 202-03. During the 

course of their meeting, an FBI agent overheard Massiah make 

incriminating statements, which the agent later recounted at 

trial. On appeal, Massiah maintained that use of the radio 

transmitter was an illegal search under the Fourth Amendment and 
that admission of the agent's testimony violated his rights under 

the Fifth and Sixth Amendments by forcing him to incriminate 

himself and by interrogating him outside the presence of his 

attorney. Id. at 203-04. Without reaching his other arguments, 

the Court agreed with Massiah on the Sixth Amendment claim. 

Noting that the Constitution guarantees the right to counsel as 

much during the period between arraignment and trial as during 

the trial itself, the Court stated, "`if such a rule is to have 

any efficacy it must apply to indirect and surreptitious 

interrogations as well as those conducted in the jailhouse. 

[M]assiah was more seriously imposed upon . . . because he did 

not even know that he was under interrogation by a government 

agent.'" Id. at 206 (quoting United States v. Massiah, 307 F.2d 

62, 72-73 (2d Cir. 1962) (Hays, J., dissenting)). 

 In United States v. Henry, the Court reaffirmed the 

principles of Massiah on facts similar to this case. Like here, 

the defendant in a bank robbery prosecution challenged the 

admission of his pre-trial cellmate's testimony on the grounds 

that the cellmate was a government agent. 447 U.S. at 265. Even 

though the informant was given specific instructions not to 

question Henry about his case, the Court found the government had 

in fact "deliberately elicited" the information from Henry, 

stating, "[e]ven if the agent's statement that he did not intend 

that [the informant] would take affirmative steps to secure 

incriminating information is accepted, he must have known that 

such propinquity likely would lead to that result." Id. at 271. 

Consequently, the Court found that the government violated 
Henry's right to counsel by "intentionally creating a situation 

likely to induce Henry to make incriminating statements without 

the assistance of counsel." Id. at 274; see also Maine v. 

Moulton, 474 U.S. 159 (1985) (right to counsel violated where 

codefendant, as government agent, meets with defendant and 

discusses crime, even though defendant, not government, requested 

meeting). 

 Massiah and Henry establish that the government 

violates a pre-trial detainee's right to counsel when it 

deliberately creates a situation in which a prisoner is likely to 

make incriminating statements, Henry, 447 U.S. at 274, and 

deliberately uses an informant to elicit information from the 

prisoner, Massiah, 447 U.S. at 269. But the Court stopped short 

of excluding all incriminating statements reported by jailhouse 

informants, and "left open the question whether the Sixth 

Amendment forbids admission in evidence of an accused's 

statements to a jailhouse informant who was `placed in close 

proximity but [made] no effort to stimulate conversations about 

the crime charged.'" Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986) 

(quoting Henry, 447 U.S. at 271 n.9)(alteration in Kuhlmann). 

 In Kuhlmann v. Wilson, the Court held that where a 

prisoner makes incriminating statements to a passive listener -- 

a "listening post" -- the introduction of the prisoner's 

statements does not violate his right to counsel because the 

informant's presence does not constitute an interrogation. 477 

U.S. at 459 (primary concern of Massiah line of decisions is 

secret interrogation with techniques equivalent to direct police 
interrogation). In that case, the defendant and two accomplices 

robbed a taxicab garage and murdered the night dispatcher. Id.

at 438-39. After arraignment, Kuhlmann was held in detention and 

placed in a cell with Lee, a police informant, who had agreed to 

aid the police in getting information about Kuhlmann's 

accomplices. Id. at 439. Lee had been expressly instructed not 

to ask Kuhlmann any questions about his case, but instead to 

"keep his ears open." Id. Although Kuhlmann never divulged the 

names of his accomplices, he admitted to committing the crime to 

Lee who reported it to the police. The state trial court 

expressly found that Lee did not elicit statements from Kuhlmann 

and that Kuhlmann's statements were "spontaneous" and 

"unsolicited." Id. at 440. Kuhlmann was then convicted by a 

jury. After unsuccessful appeals in the state court system and 

unsuccessful petitions for federal habeas corpus, the Supreme 

Court handed down its opinion in Henry whereupon Kuhlmann renewed 

his petition for federal habeas corpus. After a divided panel of 

the United States Court of Appeals for the Second Circuit granted 

Kuhlmann's petition, id. at 441-43, the Supreme Court reversed. 

Noting the presumption of correctness that must be afforded the 

trial court's factual finding, id. at 460, the Court held that 

introduction of Kuhlmann's self-incriminating statements did not 

violate his right to counsel because his spontaneous statements 

were not the result of an interrogation, id. at 459. 

 Henry and Kuhlmann set the bounds for using a 

prisoner's self-incriminating statements made to jailhouse 

informants. The government violates a prisoner's right to 
counsel when it places that prisoner in a cell with a jailhouse 

informant who "deliberately use[s] his position to secure 

incriminating information from [the defendant] when counsel was 

not present." Henry, 447 U.S. at 270. But it does not violate a 

prisoner's rights where "by luck or happenstance -- the State 

obtains incriminating statements from the accused after the right 

to counsel has attached." Kuhlmann, 477 U.S. at 459. 

 In finding the government deliberately elicited 

statements from the defendant in Henry, the Court found three 

factors to be significant: (1) the informant acted under 

instructions as a paid informant for the government;5 (2) the 

informant appeared to be just another inmate; and (3) the 

defendant was in custody at the time the informant engaged him in 

conversations. 447 U.S. at 270. Because Scott presented himself 

as just another inmate and Brink was in custody the second and 

third factors are evident here. The only questions are whether 

Scott was acting as a government agent when he got Brink to tell 

him about the crime and whether that information was elicited 

deliberately. 

 In this case, even though Scott maintains he was not 

instructed to question Brink about the robbery, there is some 

 

5. Although the Supreme Court emphasized the fact that the 

informant was "paid", 447 U.S. at 270 & n.7, we do not understand 

the Court to imply that only informants who receive cash are 

"paid informants." Instead, we believe the Court meant that any 

informant who is offered money, benefits, preferential treatment, 

or some future consideration, including, but not limited to, a 

reduction in sentence, in exchange for eliciting information is a 

paid informant. 
evidence that Scott deliberately elicited information from 

Brink.6 On this record, however, it is unclear whether Scott was 

acting as a government agent while sharing Brink's cell. An 

inmate who voluntarily furnishes information without instruction 

from the government is not a government agent, even if the 

informant had been an agent in the past. See United States v. Van 

Scoy, 654 F.2d 257, 260 (3d Cir.), cert. denied, 454 U.S. 1126 

(1981). Because Scott admitted acting as a government agent in 

other cases,7 but denied receiving any promises or rewards for 

informing on Brink, he may fall within this category. 

 But the record also contains evidence suggesting that 

Scott may have had a tacit agreement with the government. Scott 

testified that he began informing in the hopes of having his 

sentence reduced. The government trained him as an informant and 

at one point a government agent told Scott that his cooperation 

would be reported to the United States Attorney and the Attorney 

General.8 Therefore, Scott may have informed on Brink on the 

 

6. The district court did not make a finding on whether Scott 

elicited information from Brink, but there is a colorable claim 

that Scott may have been more than just a listening post. On 

cross-examination, at trial, Scott admitted that when acting as a 

government agent his method of obtaining information was to lie 

to his cellmates to gain their trust. Scott admitted lying to 

Brink, and acknowledged he had gained Brink's trust. Scott also 

discussed Brink's case with him, telling Brink he thought Brink 

was guilty, and even discussed the possibility of Brink escaping 

during a break in the trial. 

7. Scott admitted to volunteering to be a government informant 

in 1990 or 1991. Since then he has informed on at least six 

inmates in three jails or prisons. 

8. This case is unlike Van Scoy, where the informant did not 

receive any favorable treatment from the FBI, 654 F.2d at 260, 
reasonable assumption that government officials were aware of his 

actions and would reward him in the future, if not presently, 

with a recommendation for a reduction in his sentence. 

 It is also significant that after Scott began 

informing, the government placed him in a cell with a pretrial 

detainee. Scott testified that a state trooper approached him 

while he was sharing a cell with Brink to ask if Brink had given 

Scott any information about the crime. Since the government was 

aware of Scott's propensity to inform on his cellmates, we 

believe that placing him in a cell with a pretrial detainee could 

represent a deliberate effort to obtain incriminating information 

from a prisoner in violation of his Sixth Amendment right to 

counsel. Cf. Henry, 447 U.S. at 271 (government presumed to have 

known that placing informant in a cell with pretrial detainee 

would lead to informant taking affirmative steps to get 

incriminating statements). 

 We believe Brink has raised a colorable claim that the 

government violated his constitutional right to counsel by 

placing him in a cell with a known informant who may have been 

acting as a government agent. In these instances, the trial 

court should conduct an evidentiary hearing and make the 

necessary findings since such conduct, if proven, could violate a 

defendant's rights under the Sixth Amendment.9 Because the 

(..continued) 

since the government honored Scott's request to be placed in the 

witness protection program after he testified against a cellmate 

in an earlier trial. 

9. "Most constitutional errors have been held amenable to 

harmless-error analysis." Sullivan v. Louisiana, 113 S. Ct. 2078, 
district court declined to hold an evidentiary hearing, we will 

vacate the judgment of conviction and sentence and remand for a 

hearing to determine whether Brink's rights under the Sixth 

Amendment were violated. Should the district court make this 

determination, Brink will be entitled to a new trial. 

 III. Prior Identification

 At trial, bank teller Annette Miller testified she was 

unable to recall the bank robber's eye color. FBI Agent 

McEachern testified that the day after the robbery, Miller told 

him the bank robber had dark colored eyes. Brink, whose eyes are 

light hazel, sought to use Miller's prior statement as 

substantive evidence of his innocence, but the court refused and 

instead gave the following instruction: 

 You will recall that certain witnesses who 

testified during the trial had made 

statements before this trial about matters at 

issue in this case. These earlier statements 

(..continued) 

2081 (1993). Because the erroneous admission of a coerced 

confession does not automatically warrant a new trial, see Milton 

v. Wainwright, 407 U.S. 371, 377-78 (1972); see also Arizona v. 

Fulminante, 499 U.S. 279, 311 (1991) (Opinion of Rehnquist, C.J., 

for the Court), the district court judgment would stand if 

admitting Brink's confession was harmless beyond a reasonable 

doubt, Chapman v. California, 386 U.S. 18, 24 (1967); see also

Fulminante, 499 U.S. at 295-96. We find, however, that the 

admission of Brink's confession, if error, was not harmless. 

When reviewing constitutional violations for harmless error our 

inquiry "is not whether, in a trial that occurred without the 

error, a guilty verdict would surely have been rendered, but 

whether the guilty verdict actually rendered in this trial was 

surely unattributable to the error." Sullivan, 113 S. Ct. at 

2081. On this record we hold the guilty verdict was not surely 

unattributable to the introduction of Brink's confession, and 

therefore was not harmless. Cf. Fulminante, 499 U.S. at 296-302 

(admission of coerced confession was not harmless despite 

admission of a second, lawfully-obtained confession and other 

circumstantial evidence). 
were brought to your attention to help you 

decide if you believe that witness' 

testimony. You cannot use these earlier 

statements as evidence in this case. 

 Brink contends the district court erred because Federal 

Rule of Evidence 801(d)(1)(C) allows statements of prior 

identification to be admitted as substantive evidence. 

a.

 At the outset we must determine the proper scope of 

review. The government contends our review should be for plain 

error. Generally, we review evidentiary rulings for abuse of 

discretion, see, e.g., In re Merritt Logan, Inc., 901 F.2d 349, 

359 (3d Cir. 1990), but when no objection is made at trial we 

review for plain error only. See Government of Virgin Islands v. 

Smith, 949 F.2d 677, 681 (3d Cir. 1991); United States v. Castro, 

776 F.2d 1118, 1128 (3d Cir. 1985), cert. denied, 475 U.S. 1029 

(1986).10 This rule gives the court an opportunity to correct 

any mistakes before charging the jury, Santos, 932 F.2d at 251; 

United States v. Chicarelli, 445 F.2d 1111, 1115 (3d Cir. 

1971)(quoting United States v. Provenzano, 334 F.2d 678, 690 (3d 

 

10. The plain error doctrine "is intended to correct errors that 

are `obvious' or that otherwise seriously affect the fairness, 

integrity or public reputation of judicial proceedings.'" 

Government of Virgin Islands v. Charleswell, 24 F.3d 571, 576 (3d 

Cir. 1994) (quoting United States v. Atkinson, 297 U.S. 157, 160 

(1936)). The doctrine provides for correction of a mistake "so 

`plain' the trial judge [was] derelict in countenancing it, even 

absent the defendant's timely" objection. United States v. Frady, 

456 U.S. 152, 163 (1982); see also Government of Virgin Islands 

v. Knight, 989 F.2d 619, 631-32 (3d Cir.), cert. denied, 114 S. 

Ct. 556 (1993); United States v. Santos, 932 F.2d 244, 251 (3d 

Cir.), cert. denied, 112 S. Ct. 592 (1991). 
Cir.), cert. denied, 379 U.S. 947 (1964)), and prevents the 

appellant from purposely failing to object in the hopes of later 

asserting the court's error as the basis for a new trial, 

Chicarelli, 445 F.2d at 1116 (quoting United States v. Grosso, 

358 F.2d 154, 158 (3d Cir. 1966), rev'd on other grounds, 390 

U.S. 62 (1968)). 

 Brink challenged the instruction, stating, "With regard 

to identification, we believe that under the federal rules it is 

not hearsay." The government maintains Brink's statement was not 

specific enough to constitute an objection. We disagree. 

Although Brink did not mention Rule 801(d)(1)(C) expressly, his 

objection was sufficiently specific to inform the district court. 

Cf. Santos, 932 F.2d at 250-51 (finding appellant's statement "I 

object to the refusal to charge points 1 through 6 of defendant's 

proposed points of charge" too general to alert district court to 

the specific objection raised on appeal); see also United States 

v. Castro, 776 F.2d 1118, 1129 (3d Cir. 1985). Because Brink's 

challenge put the district court on notice of the issue now 

raised on appeal, we review the district court ruling for abuse 

of discretion. 

b.

 The Federal Rules of Evidence provide "A statement is 

not hearsay if . . . one of identification of a person made after 

perceiving the person." Fed. R. Evid. 801(d)(1)(C) (West 1994). 

Statements of prior identification are admitted as substantive 

evidence because of "the generally unsatisfactory and 

inconclusive nature of courtroom identifications as compared with 
those made at an earlier time under less suggestive conditions." 

Fed. R. Evid. 801, Notes of Advisory Committee on 1972 Proposed 

Rules; see S. Rep. No. 199, 94th Cong., 1st Sess. 2 (1975) ("Both 

experience and psychological studies suggest that identifications 

consisting of nonsuggestive lineups, photographic spreads, or 

similar identifications, made reasonably soon after the offense, 

are [more] reliable than in-court identifications."). "Admitting 

these prior identifications therefore provides greater fairness 

to both the prosecution and the defense in a criminal trial." 

Id.

 Generally, evidence is admitted under Rule 801(d)(1)(C) 

when a witness has identified the defendant in a lineup or 

photospread, but forgets, or changes, his testimony at trial. 

See, e.g., United States v. O'Malley, 796 F.2d 891, 898-99 (7th 

Cir. 1986); United States v. Jarrad, 754 F.2d 1451, 1456 (9th 

Cir.), cert. denied, 474 U.S. 830 (1985). Although less common, 

Miller's "exculpatory" prior identification falls within the 

rule. The rule's plain language does not exclude exculpatory 

statements, nor can we find any reason to distrust the 

reliability of this kind of identification. 

 Moreover, the fact that FBI agent McEachern, rather 

than Miller, recited Miller's statement at trial does not 

preclude introducing her statement as substantive evidence. 

Debate on the 1975 amendment to the Rule demonstrates Congress 

was aware that third parties would testify to the witness's prior 

statements. See 121 Cong. Rec. 31,867 (1975) (statement of Rep. 

Hungate) ("The bill . . . applies to situations where an 
eyewitness has previously identified a person out of court. It 

would admit into evidence testimony of that identification. For 

example, testimony by a police officer that at a lineup John Doe 

identified the defendant as the man who robbed his store."). See

generally, Jack B. Weinstein and Margaret A. Berger, Weinstein's 

Evidence, ¶ 801(d)(1)(C)[01], at 801-222 (1993) ("If at trial the 

eyewitness fails to remember or denies that he made the 

identification, the previous statements of the eyewitness can be 

proved by the testimony of a person to whom the statement was 

made, and the statement can be given substantive effect."). 

Thus, Miller's statement should have been admitted as substantive 

evidence. 

c.

 The government maintains that Brink is not entitled to 

a new trial because the district court's error, if any, was 

harmless. Like resolution of Brink's Sixth Amendment claim, 

resolving this issue depends on whether Scott was acting as a 

government agent while collecting information on Brink. 

 Under Federal Rule of Criminal Procedure 52(a) "any 

error, defect or variance which does not affect substantial 

rights shall be disregarded." Fed. R. Crim. P. 52(a)(West 1994). 

An error that does not implicate a constitutional right is 

harmless where it is "`unimportant in relation to everything else 

the jury considered on the issue in question as revealed in the 

record.'" United States v. Palmieri, 21 F.3d 1265, 1273 (3d Cir. 

1994), petition for cert. filed Aug. 1, 1994 (No. 94-5463) 

(quoting Yates v. Evatt, 500 U.S. 391, 403 (1991)). Upon 
reviewing the entire record, we believe that, provided Scott's 

testimony was properly admitted at trial, the district court's 

error was harmless. 

 Scott testified that, when they were cellmates, Brink 

confessed to the robbery. The bank tellers, Miller and Simpson, 

made positive in-court identifications11 and Brink's friend, 

 

11. Simpson testified: 

 Q: How do you know that Billy Brink robbed you on 

December 16, 1992? 

 A: I could tell who he was. I could see through the 

ski mask. The holes around the eyes and the mouth 

were big enough to see. I could recognize his 

features, his voice, the way he walked, his 

mannerisms. 

 Q: Now you have identified several characteristics. 

Did you know Billy Brink prior to December 16, 

1992. 

 A: Yes, I did. 

 Q: And how was it that you knew him or knew of him? 

 A: I knew of him all his life. My son coached him in 

midget football, I think junior high, and probably 

varsity football also. But, I just know that he -

- you know, I have known of him. 

 Q: Now, was he a customer of the Farmers National 

Bank? 

 A: Yes, he was. 

 Q: When was the last time you had seen him in the 

bank prior to December 16th. 

 A: Probably around the first week in December he was 

in the bank. 

Appendix at 94. 

Miller testified: 
William Rumbarger, testified that on the evening after the 

robbery, he saw Brink carrying two, three-quarter inch stacks of 

cash in large denominations. These, together with other 

circumstantial evidence, provide sufficient evidence of Brink's 

guilt.12 

(..continued) 

 Q: And how is it that you were able to identify 

[Brink]? 

 A: Just -- when he came to the window, it was him. I 

mean, from what I know of him and seen of him, it 

was Bill Brink. 

Appendix at 110. 

 Q: [Y]ou knew him because one of his friends was 

dating your best friend. Is that how you knew 

him? 

 A: That's how I knew who he was at first, yes. 

 Q: And then you also saw him play football. Is that 

what your testimony is? 

 A: Yeah. I saw him play football and, I mean, we 

went to two small high schools. I mean, everybody 

knew who everybody was in the two schools. 

Appendix at 114. 

12. Claiming the pre-trial identifications of Miller and Simpson 

were subject to the same limiting instruction as Miller's 

statement regarding the robber's eye color, the government 

contends the jury was instructed not to view their testimony as 

substantive evidence, but instead to use it to judge their 

credibility. Consequently, the government maintains that 

limiting the use of Miller's statement about the robber's eye 

color, if error, was harmless because the court's instruction 

hurt the government's case more than the defendant's. Although 

we find the government's argument unconvincing, we agree the 

error was harmless. 
 If Scott did not violate Brink's Sixth Amendment rights 

his testimony was properly allowed into evidence. See Kuhlmann, 

477 U.S. at 459 (evidence gained by luck or happenstance does not 

violate defendant's right to counsel). In that case, any error 

regarding the identification was harmless because Brink's 

confession coupled with the in-court identification and the 

circumstantial evidence provides sufficient evidence of his 

guilt. On the other hand, if Brink's rights were violated he is 

entitled to a new trial on that basis alone, see supra note 9, 

and we would not need to reach the evidentiary issue. 

Consequently, we hold that if, after an evidentiary hearing, the 

district court determines Scott did not violate Brink's Sixth 

Amendment rights, the district court's failure to admit Miller's 

statement of prior identification was harmless error.13

 

13. Brink raises two other issues on appeal. He claims the 

district court erred by not interrupting jury deliberations to 

allow him to demonstrate that the denim jacket, taken from his 

home and entered into evidence on the theory that it was worn 

during the robbery, did not fit him. After jury deliberations 

begin, a district judge has wide discretion in deciding whether 

to reopen a case. United States v. Golomb, 754 F.2d 86, 89 (2d 

Cir. 1985); see Drummond v. United States, 350 F.2d 983, 991 (8th 

Cir. 1965) (Blackmun, J.), cert. denied sub nom. Castaldi v. 

United States, 384 U.S. 944 (1966). The court denied Brink's 

request because he offered no excuse for failing to raise the 

issue earlier, and because it believed interrupting deliberations 

might suggest to the jurors that the jacket was more important 

than other pieces of evidence. We find no abuse of discretion 

here. See Fernandez v. United States, 329 F.2d 899, 903 (9th 

Cir.), cert. denied, 379 U.S. 832 (1964); cf. United States v. 

Burger, 419 F.2d 1293, 1295 (5th Cir. 1969) (trial court should 

exercise its discretion with caution). 

 Brink also contests the district court's ruling that allowed 

two experts to testify about similarities between items seized 

from Brink's home and those identified on the bank's surveillance 

photographs. Brink argues that because these experts were unable 

to testify to a reasonable degree of scientific certainty, their 
 IV. Conclusion

 For the foregoing reasons, we will vacate the judgment 

of the district court and remand this case for further 

proceedings not inconsistent with this opinion. 

(..continued) 

testimony should have been stricken as conjecture. We find no 

merit in this argument. The decision whether to admit expert 

testimony is within the broad discretion of the trial court, 

United States v. Downing, 753 F.2d 1224, 1229 (3d Cir. 1985); 

United States v. Cyphers, 553 F.2d 1064, 1072 (7th Cir.), cert. 

denied, 434 U.S. 843 (1977), and a court generally does not abuse 

its discretion where the expert bases its opinion on the type of 

data a reasonable expert in the field would use in rendering an 

opinion on the subject at issue, see Deluca v. Merrell Dow 

Pharmaceuticals, Inc., 911 F.2d 941, 955 (3d Cir. 1990); see also

Michael H. Graham, Expert Witness Testimony and the Federal Rules 

of Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 

U. Ill. L. Rev. 43 (reasonable degree of scientific certainty 

refers to whether the expert relied on a theory accepted by a 

recognized segment of the particular field to which the expert 

belongs); cf. Cyphers, 553 F.2d at 1072-73 ("[A]n expert's lack 

of absolute certainty goes to weight of testimony, not its 

admissibility."); Stutzman v. CRST, Inc., 997 F.2d 291, 296 (7th 

Cir. 1993).