_________________

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
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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 multicount 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
 Instruction No. 16: 1

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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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 instruction based on Eighth Circuit Model Jury Instruction 3.11 and 1

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
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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 drugoriented 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.
-6-

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.

 
-7-

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 CI1'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. 
-12-

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 pistolwhip 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. 
-14-

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-ofcourt 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
-17-

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
-18-

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). 
-22-

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
-23-

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.