_________________ 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 dru g distribution, conspiracy, and firearm violations. Kime

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appea ls his conviction. Bell appeals his conviction and sentence. W e affirm in part and remand in part.

I. BACKGROUND

In Ap ril of 1994, the Polk County Sheriff's Office in conjunctio n with federal law enforcement officials initiated wiretap and vide o
sur veillance of a suspected drug distribution ring headed by Jack Kime

. The investigation cul minated in the execution of multiple search warrants
on the homes and businesses of various members of the conspiracy on May 12 , 1994. Ki me and Bell were subsequently arrested and charged in a multi

count indictment along with Randy Groves, Clifford Brown, Joseph Ybarra, Joel Dodd, Dennis Smith, Dan Fedkenheuer, Bobby McGee, Donald Leach, Kelly Hilp ipre, George Strable, and Daniel Davis, Jr. Ybarra and Hilpipr e entered into plea agr eements but did not testify at trial. The remaining codefe ndants, with the exception of Fedkenheuer who remains a fugitive , entered into plea agreements and testified at tr ial against Kime and Bell. Bell's former co-conspirators as well as numerous other witnesses testifie d
as to Ki me 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, an d firearms. Kime and Bell both testified in their own defense and denied any wrongdoing.

Th e jury convicted Jack Kime of one count of continuing crimina l enterprise in violati on 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); o ne count of distribution of methamphetamine in violation of 2 1 U.S.C. § 841(a)(1) (1994) (Count Three); two counts of possession wit h 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.
-3- 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, an d Fourteen)

. Kime was sentenced to a total of seventy-five year s imprisonment.

The jur y convicted Bell of one count of conspiracy to possess wit h 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) (Coun t Fifteen); and two counts of carrying or using a firearm in relation to a drug tr afficking 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 reasonabl e doubt instruction based on Eighth C ircuit Model Jury Instruction 3.11 and 1 proposed the following additional sentence: "A reasonable doubt is one tha t fairly and naturally arises from the evidence or lack of evidence produced by the Government." The

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distri ct court rejected Kime's proposed addition and elected to procee d instead with the unadorned version of the model instruction. Kime and Bel l both claim error.
"We review the formulation of jury instructions by the district court for abuse of discreti on." United States v. Parker , 32 F.3d 395, 400 (8th Cir. 1994). We find none. The jury instructions as a whole effectively
commun icated the defendants' point without the proposed addition to th e reasonable doubt instruction: In particular, Ins truction No. 13 instructed the j urors on the presumption of innocence, and Instruction No. 4 ins tructed the jurors to use their reason and common sense to dra w deductions or conclusions from the facts established by the evidence. "Th e defendant is not entitled to a particularly worded instruction where the instructions given, when viewed as a whole, corr ectly state the applicable law and adequately and fairly cover the substance of the requeste d instruc tion." Id. This Court has repeatedly approved the particula r reasonable doubt instruction in issue here, United States v. Simms , 18 F.3 d 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 emplo y 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, th e conspi racy's cover business, were several incriminating books. Some o f these publications were devoted to the subject of illegal drugs. Thes e included: The Secret Garden, Marijuana , Manufacturing Methamphetamine , Mar ijuana Grower's Guide , Psychedelic Chemistry , and Construction an d Operation for Clandestine Drug Laboratories . Other titles covered burglar y and theft-related topics, such as: Techniques of Safecracking , Technique s of Burglar Alarm Bypa ssing , 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 "Eddi e the Wire." These books were admitted into evidence over Kime' s objection. While Government witness and former co-conspirator Randy Grove s testified that the books belonged to Kime, he also admitted that he ha d
never seen any member of the conspiracy, including Kime, read the books an d that so me of them appeared to have never been opened. Kime argues tha t these books should ha ve been excluded under Fed. R. Evid. 403 because the ris k of unfair prejudice greatly outweighed their probative value. Th e Government argues that the books are at least pr obative of Kime's criminal intent, especially when viewed in conjunction wi th the additional evidence of the conspiracy's involvement in drug distribution and armed robbery.

Rule 40 3 of the Federal Rules of Evidence gives the district cour t discre tion to exclude relevant evidence if its probative value i s substantiallyoutweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Fed. R. Evid. 403. We accord great def erence to the district court's application of the Rule 403 balancin g test and will reverse only for a clear abuse of discretion. United States v. Rabins , 63 F.3d 721, 726 (8th Cir. 1995), cer t. denied , 116 S. Ct. 1031 (1996).
Again we find no abuse of discretion. The risk of prejudice fro m these inflammatorily- titled publications is very real, but we do not view it as unfair prejudic e. Whether or not Kime actually had the opportunity to read an d exploit the techniques contained in these books, his mer e possession of them is clearly probative of his c riminal intent. The drugoriented publications obviously bear on his interest in the charged drug dist ribution and conspiracy crimes as "tool[s] of the drug-traffickin g trade." United State s v. Ford , 22 F.3d 374, 381-82 (1st Cir.) (admission of boo k entitled Secrets of Methamphetamine Manufacture in trial o f defendant charged wit h distribution of cocaine and marijuana was relevant under Rule 401 and not unduly prejudicial under Rule 403), cert.

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denied , 115 S. Ct. 257 (1994).

Whil e the burglary-related publications would not ordinarily prov e relevant in defining an individual's criminal intent to distribute drugs, that is not the case here. The record is rife with evidence indicatin g 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 thi s particular aspect of the charged conspiracy.

3. Evidence of the Nelson Robbery

Des Moi nes drug dealer James Nelson testified at trial that he ha d been pistol-whipped, shot in the arm, and robbed of approximately $30,000 by members of Kime's organization. Over defense objections, the district
cou rt admitted into evidence police photographs of the robbery scene a t Nelson's house, photographs of the wounds inflicted on Nelson during the robbery , and Nelson's derringer. Kime argues that the district cour t 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 t he jury by showing them the bloody pictures of the violen t assault.
We believe that this evidence was pr operly admitted as corroborating Groves, Brown, and Mc Gee's testimony implicating Kime in the robbery. In additio n, the photographs documenting Nelson's gunshot wound and hea d injuries were also probative of why Nelson misidentified Bell, who wa s indisputa blyincarcerated at the time of the robbery, as one of hi s 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 th e interc eption of wire and oral communications contained the testimony o f three confidential informants. After the Government subsequently disclose d the identities of two of them, Kime moved for disclosure of the third , desig nated in the affidavit as CI-1. The district court denied Kime' s motion. Kime argues that he was entitled to learn the identity of th e third confidential in formant in order to challenge the sufficiency of the affidavit used to procure the search warrant for the wiretaps and vide o surveillance. We review the district court's pretr ial ruling of whether to compel disclosure of a confidential informant's identit y for abuse of discretion. Uni ted States v. Harrington , 951 F.2d 876, 877 (8th Cir. 1991). "Th e defendant bears the burden of demonstrating the need for disclosure, . .

. and the court must weigh the defendant's right to information against th e gover nment's privilege to withhold the identity of its confidentia l informants." Id. "There must be some showing t hat the disclosure [of the confide ntial informant's identity] is vital to a fair trial." Unite d States v. Curtis , 965 F.2d 610, 614 (8th Cir. 1992). This inquiry wil l necessarilyturn on the particular facts of each case. Harrington , 95 1 F.2d at 877. The di strict court found that Kime had not met that burden, and w e 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 identitywas necessary to test the veracity of his or her testimony and, consequentially, the quantum of probable cause behind the affidavit offere d in support of the Government's application for the interception of wire an d oral communications. But Kime offers no basis o ther 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 helpfu l to the defense on some level, there is nothing indicating it would have ha d
a mate rial effect on Kime's motion to suppress the intercepte d
commun ications. "In order to override the government's privilege o f nondisclosure, defend ants 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 pilin g speculation on top of conjecture. Review of the affidavit shows that the testimony of CI-1 pla yed 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 informant s standing alone would have sufficed to establish probable cause to issue th e challenge d warrant. See United States v. Dunlap , 28 F.3d 823, 825 (8t h Cir. 1994) (affirming sufficiency of warrant notwithstanding challenge d 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
co untylaw enforcement agents lay in wait. Bell was arrested a t appr oximately10:48 a.m. when he entered the residence. Mullins wa s simultaneouslyapprehended and taken into custody when a small amount of marijuana was discovered in her car. Bell and Mullins were immediatel y separated. After Bell had been searched, FBI Special Agent David Oxle r issued Be ll an oral Miranda warning as he was placed in a vehicle fo r transportation to the Des Moines Federal Courthouse. Sara Mullins wa s transported to the Polk County Jail in a separat e vehicle. At 11:41 a.m., Special Agent Oxler and FBI Special Agent Bill O'Keefe interviewed Bell in his

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hold ing cell. Special Agent Oxler explained the charges to Bell an d out lined the potential prison sentence facing him. Special Agent Oxle r then produced an advice of rights and waiver form which he read to Bell. Bell r eplied that he had been through the system before and knew hi s rights. He then signed the waiver form and gave an incriminating statemen t to the agents. At no time did Bell ask to terminate the interview o r request an attorney.

Bell later moved to suppress his statement, claiming that hi s 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 priso n for life if he did not confess. Following an evidentiary hearing, th e distri ct court denied Bell's motion, concluding that his confession wa s voluntary under the t otality of the circumstances, and a redacted version of Bell's statement w as 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 volun tariness of a confession is whether, in light of the totali tyof the circumstances, pressures exerted upon the suspect hav e 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 tw o key factors in issue are the conduct of the law enforcement officials and the capac ity of the suspect to resist the pressure to confess. Id

. Statutory factors bea ring on the voluntariness of the confession include:

(1) the time elapsing between arrest and arraignment of th e defendant making the confession, if it was made after

### -10- arrest and before arraig nment, (2) whether such defendant knew the nature of the offense with which he was chargedor of which he w as 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 defendan t had been advised prior to questioning of his right to th e ass istance of counsel; and (5) whether or not such defendan t was without the assistan ce of counsel when questioned and when giving such confession.

18 U.S.C. § 3501(b) (1994). A confession may not be found involuntar y abse nt some type of coercive activity on the part of law enforcemen t officials. Russell v. Jones , 886 F.2d 149, 151 (8th Cir. 1989).
Special Agents Oxler and O'Keefe eac h denied ever having uttered the th reats Bell attributes to them. In fact, Bell testified at th e suppression hearing that when the agents handed him the waiver form, h e 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. Thi s exchange hardly seems consistent with Bell's version of events. The agent s testified that Bell made no inquiries as to the well-being of Mullin s during his arrest, transportation, or interrogation. In addition, Bell wa s ful ly advised of the crimes of which he was accused and the potentia l sentence facing him. Although he waived his right to counsel, Bell is by his own admission a hardened veteran of the criminal justice system wh o und erstood fully the scope of the rights he was waiving. Both agent s testified that Bell appeared calm and undistracted during his interview. We conclude that the confession was voluntary under the totality of th e 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 fai r tria l. Specifically, Bell claims he was unfairly tarred by the vas t majority of the evide nce which was admissible only against Kime, and that had he been granted a separate trial, his alibi defense would have had mor e 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. Unite d States v. O'Meara , 895 F.2d 1216, 1219 (8th Cir.), cert. denied , 498 U.S. 943 (1990). "Persons charged with a conspiracy wil l generally be tried together, especially where pr oof of the charges against each of the defendants is based on the same evidence and acts." Id. a t 1218. "Rarely, if ever, will it be improper for co-conspirators to be trie d tog ether . . . ." United States v. Drew , 894 F.2d 965, 968 (8th Cir.) , cert. denied , 494 U.S. 1089 (1990).

To ju stify severance, the defendant must show "more than the mer e 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), cer t. denied , 114 S. Ct. 1121 (1994). What is required is a n affirmative demonstration that the joinder prejudiced the movant's right to a fair trial. Id. Mere disparity of eviden ce against codefendants or the alleged prejudicial spillover effect of evid ence against a codefendant
are not grounds for severance absent a showing that the jury will be unabl e 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 di strict court properly instructed the jury to compartmentalize th e eviden ce bearing on each individual defendant's guilt. This trial , involving only two remaining codefendants, was neither too long nor comple x 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 (8t h 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 dela y denied him his statutory right to a speedy trial under 18 U.S.C. § 3161(c)(1) (1994). We will not addres s 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 ex hibits implicating mainly Ki me. These exhibits included papers and books seized fr omKime's warehouse, items recovered from co-conspirator Ybarra' s apartment, photographs from the scene of the Nelson robbery, audio an d video surveillance tapes, laboratory reports, logs from the interception of wire and oral communications, the .357 revolv er 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 limit ing 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 giv e
a requested instruction for abuse of discretion. United States v. Lon g Crow , 3 7 F.3d 1319, 1323 (8th Cir. 1994), cert. denied , 115 S. Ct. 116 7 (1995).
This argument assumes that the aforementioned evidence was admi ssible exclusivelyagainst Kime. Much of this evidence directly linked Bell to the cha rged conspiracy: Many of the disputed documents refer to Bell ; several of the recorded audio tapes record conve rsations referring to Bell and his role in the conspiracy; portions of the photographic evidenc e depict Bell's comings and goings at the conspira cy's cover businesses; and many

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of the intercepted conversations contained in the logs explicitly referenc e Bell and his role in the conspiracy. This evide nce was admissible against Bell both to prove the existence of a conspiracy and his participatio n 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 an d pho tographic evidence, may be sufficient to prove the defendant' s inv olvement). While other exhibits bore more directly on Kime's guilt , much of it was simila rly admissible against both codefendants as evidence of the existence and scope of the conspiracy for which they were bot h charged. United States v. Garrido , 995 F.2d 808, 816-17 (8th Cir. 1993) (evidence of drugs, drug paraphernalia, and weapon seized from home o f first codefendant in drug conspiracy was admissible against secon d codefendant as evidence of charged conspiracy), cert. denied , 114 S. Ct. 331 (1993).
Rather than mechanically instructing the jury as to what eviden ce was admissible solely against Kime as opposed to Bel l, we believe the district court properly relied on the jury's common sense, defense counsel's abilit y to con duct a vigorous cross-examination, and Instruction No. 4, whic h reminded the jury that there were two defendants on trial, each of whom wa s entitled to have his guilt determined solely on the evidence applying to him. This instruction fairly met the substance of the limiting instructio n suggested by Bell and adequately safeguarded his right to a fair trial

. Garrido , 995 F.2d at 817 (compartmentalizing instruction at end of trial ins tead of limiting instruction when evidence admitted was not abuse o f 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 informe d the district court that it had become aware of a romantic entanglement between prosecution witnesse s Brown, Dolash, and Gr oves and some of their female jailers. As a result, Brown, Dolash, and Groves apparently received several special privileges while i n the Dallas County Jail, including sexual contact with femal e 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 , howev er, were not brought to the attention of the defense until midwa y through the cross-examination of Dolash, after Brown and Groves had alread y testi fied. Bell contends that the district court erred in denying hi s motion for a new trial based on the Government's failure to comply with th e disclosure requirements set forth in Brady v. Maryland , 373 U.S. 83 (1963)

.

In Br ady , the Supreme Court held that the Government's failure t o disclose evidence that is both favorable to the accused and material to th e accused's guilt or punishment violates due process. Id. at 87. Brad y ap plies equally to evidence impeaching the credibility of Governmen t witnesses as well as to exculpatory evidence. Giglio v. United States , 40 5 U.S. 150, 154 (1972). Evidence is material for purposes of Bradyanalysis "only if there is a reasonable probability that, had the evidence bee n discl osed to the defense, the result of the proceeding would have bee n di fferent. 'A reasonable probability' is a probability sufficient t o undermine confidence in the outcome." United States v. Bagley , 473 U.S. 667, 682 (1985).

We fin d no Bradyviolation. "The rule of Bradyis limited to th e discover y, after trial, of information which had been known to th e prosecution but unkno wn to the defense." Nassar v. Sissel , 792 F.2d 119, 121 (8th Cir. 1986) (quotation omitted). In this case,

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the dis closure was made during defense counsel's cross-examination o f Dolash, enabling him to cross examine Dolash extensively on the subject. In addition, the defense called one of the offending female correction s officers to the stand where she testified extensively on the issue, placin g the facts squarely before the jury. The defense was also free to recall Brown a nd Groves in order to cross examine them on the subject as well

. The fact tha t it chose not to do so does not render this temporar y
non disclosure a Bradyviolation: " Bradydoes not require pretria l disclosure as long as ultimate disclosure is made before it is too late fo r 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 forme r New Mexico marijuana supplier, testified that he was robbed of his drugs by Bell, McGee, and Cliffor d Brown in Albuquerque. Prior to Jojola's testimo ny, Bell moved to suppress any potential courtroom identification on the basis that it would be undul y sugges tive. The district court denied Bell's motion, and Jojol a subsequentlyidentified Bell at trial as one of his assailants. It i s undispute d that Jojola had never been asked to make any sort of out-of

court i dentification prior to trial. Following the courtroo m identification, Bell moved for a mistrial, which was denied.

In or der to determine whether the courtroom identification denie d Bell due process, we apply the two-part test set forth in Manson v
. Brat hwaite , 432 U.S. 98 (1977). First we must determine whether th e iden tification was impermissibly suggestive. If it was, we then as k whethe r it created a "very substantial likelihood of irreparabl e mis identification" under the totality of the circumstances. Id. at 11 6 (quotation omitted). We need proceed no further than the first half of th e 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 thi s 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 issu e 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 mal e caucasian, was seated at defense table alongside his defense counsel, Kime , and Kime's defense co unsel, all of whom are also male caucasians, as were the vast majority of individuals in the courtroom that day. This exac t configu ration had already, in fact, produced a prior in-cour t 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

Fol lowing Jojola's courtroom identification of Bell, the distric t court refused to admit expert testimony impeaching the reliability o f Jojola's identification. When faced with a proffer of expert scientific testim ony, the district court must determine "whether the expert i s 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 Pharmaceu ticals, Inc. , 113 S. Ct. 2786, 2796 (1993). After a detailed offer of pro of, the district court concluded that: (1) there had be en no showing that the proffered testimony constituted "scientifi c knowledge" under the first prong of Daubert ; (2) the proffered testimony would not assist the trier of fact under the second prong of Dauber t bec ause it invaded the province of the jury; and (3) the proffere d testimony was likely to confuse the jury under Fed. R. Evid. 403. Instead , the district court subsequently gave the jury aninstruction on eyewitness identification in order to assist the jury in evaluating the

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eyewitness testimony. Bell claims this decision was erroneous and denied him due process.
At the outset of this inquiry we n ote that "the district court has broad discretion in, first, determining the reliability of the particular testim onyand, second, balancing its probative value against it s 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, an d
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 proffere d 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 th e prof fered expert testimony qualifies as "scientific knowledge." Thes e include: (1) whether the theory or technique can or has been tested; (2) whether th e theory or technique has been subjected to peer review an d publicati on; (3) the known or potential rate for error; and (4) th e particular degree of acceptance within the scien tific community. Daubert , 113 S. Ct. at 2796-97. Defense counsel submitte d a preliminary opinion by GaryWells, 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 identif ication in lineups. While th e articles admirably articulate Dr. Wells' theories and hypothese s regarding how to conduct a non-misleading pretrial lineup, they are utterl y deficient in regard to determining whether his views constitute "scientifi c knowledge" within the meaning of Daubert . Even assuming these articles ar e relevant i n a case where no pretrial lineup was ever conducted, thei r reference to the research and/or studies upon which Dr. Wells' proposition s and corollaries are

### -18-

based consist of noth ing 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 UnitedStates v. Rincon , 28 F.3d 921, 9 23-25 (9th Cir.) (affirming the district court's exclusion o f proffered expert eyewitness identification testi mony under Daubert ), cert. denied , 115 S. Ct. 605 (1994): "[W]hile the article identified the researc h
on some of the topics, it did not discuss the research in sufficient detai l that the district court could determine if the r esearch 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 th e first Daubert hurdle, we agree with the district court' s conclusion that it fa ils under the second phase of that inquiry. Federal Rule of Evidence 702 permits the use of expert t estimony when "scientific, technical, or other specialized knowledge will a ssist 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 ai d of such an expert, the expert testimony should b e excluded as superfluous. Fed

. R. Evid. 702, advisory committee's note. And while Rule 704 ha s largel y abrogated the bar against expert testimony on ultimate issues , "[t]he abolition of t he ultimate issue rule does not lower the bars so as to ad mit all opinions." Fed. R. Evid. 704, advisory committee's note

. Rules 702 and 403 still provide for the exclusion of "evidence which waste s time," such as "opinions which would merely tell the jury what result to reach." Id.

### -19- The evaluation of eyewitness testimo ny is for the jury alone. "It is the e xclusive province of the jury to determine the believability of a witness . . . . An e xpert is not permitted to offer an opinion as to the believabilityor truthfulness of a victim's story." Bachman v. Leapley , 953 F.2d 440, 441 (8th Cir. 1992) (citation omit ted). The proposed expert in th is case "was not merely going to offer testimony about eyewitnes s identification in gen eral but specific, to the point, testimony regarding the inherently untrus tworthy 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 th e jury any potentially unreliable bases underlying Jojola' s identification through cross examination, assuming they were not already apparent. See UnitedStates v. Harris , 995 F.2d 532, 535 (4th Cir. 1993) (affirming exclusion of proffered eyewitness identification exper t testim onybecause "jurors using common sense and their faculties o f obse rvation can judge the credibility of an eyewitness identification , especially since deficiencies or inconsistencies in an eyewitness' s testim onycan be brought out with skillful cross-examination."). W e believe t he jury, as the trier of fact, to have been fully capable o f gauging Jojola's cred ibility without the aid of an expert. United States

v. Dorsey , 45 F.3d 809, 815 (4th Cir.) ("[E]xpert testimony can be properl y excluded if it is introduced merely to cast doubt on the credibility o f oth er 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 i s outweighed by the dan ger of juror confusion. Daubert makes it clear that when assessing the admissibility of proffered scientific expert testimony under Rule 702, the t rial court must also take into account the interplay of other relevant rules of evidence, such as Rule 403: "Expert evidence ca n be both powerful and quite misleading because of the difficulty i n evaluating it. Because of

### -20-

this risk, the judge in weighing possible prejudice against probative forc e under Rule 403 of the present rules exercises more control over expert s than over lay witnesses." Daubert , 113 S. Ct. at 2798 (quotation omitted)

. Here the district cou rt properly recognized the very real danger that the proffered expert testimony could either confuse the jury or cause it t o sub stitute the expert's credibility assessment for its own. Dorsey , 4 5 F.3d at 816 ("Because in the instant case, the district court was concerne d that the expert testimony would confuse and misl ead the jury, the district court did not abuse i ts discretion in excluding the testimony."); Rincon , 28 F.3d at 926 ("Given the powerful nature of expert testimony, couple d with its potential to mislead the jury, we cannot say that the distric t court erred in concluding that the proffered evi dence would not assist the trier of fact and that it was likely to mislead the jury.").

Ou r conclusion is buttressed by three additional considerations : First, the district court adequately addressed the concerns presented by the e xcluded expert testimony by giving a comprehensive instructio n regard ing the evaluation and reliability of eyewitness testimony. Se e Rincon , 28 F.3d at 925. Second, the reality of the potential unreliabilit y of eyewitness identification had already been driven home to the jury in
a manner n o expert could hope to reproduce by Nelson's prior in-cour t misi dentification of Bell as one of his assailants. Third, Jojola' s eyewit ness testimony is supported by that of numerous other witnesses , incl uding McGee and Brown, both of whom implicated Bell as the thir d participant in the ro bbery. 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.

### -21- 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 dru g trafficking crime in violation of 18 U.S.C. § 924(c)(1). Bell stakes his claimon the Supreme Court's December 1995 decision in Bailey v. Unite d Sta tes , 116 S. Ct. 501 (1995), holding that in order to sustain a conviction under the "use" prong of that statute, "the Government must sho w that the defendant actively employed the firearm during and in relation to the pred icate crime." Id. at 509. Because Bell's trial took place i n Januaryof 1995, the district court was never afforded an opportunity to consider t he facts in light of Bailey . Accordingly, we remand Bell' s conviction under Count 16 to the district court for reconsideration i n 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 th e United States Sentencing Guidelines on three separate fronts. Base Offense Level: In addition to 2,771.51 kilograms of marijuana, the district court at tributed six pounds of methamphetamine to Bell based on the testimony of G roves, Brown, McGee, and Dolash, resulting in a base offense level of 32. Bell argues that because these individuals are forme r
co-con spirators looking to trade testimony for leniency there i s insuff icient indicia of reliability to credit their testimony. Th e distri ct court's determination of the amount of drugs for sentencin g purposes is a finding of fact which we review for clear error. Unite d States v. Lawrence , 915 F.2d 402, 406 (8th Cir. 1990).

### -22- Th e district court's findings regarding a witness' credibility ar e virtually unreviewabl e 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 e ntitled to rely on information having sufficient indicia o f reliabilityto support its probable accuracy." Id. (quotation omitted). The m ere fact that this testimony comes from Bell's former partners i n crime does not necessarily render it unreliable. Id. (affirming calculatio n of amount of methamphetamine attributable to defendant based on codefendan t testimony).

Physical Restraint of the Victim: The district court also enhance d Bell 's sentence two levels under USSG § 3A1.3, which provides for a n incre ase of two levels if the victim was "physically restrained in th e
cour se of the offense." Bell argues that this victim enhancement i s ina pplicable to Jojola because he was not a victim, but a fellow dru g dealer and co-conspirator. Bell also challenges § 3A1.3's applicability because there is no evidence that he and his cohorts tied Jojola up o r force d him into the van where he was robbed and beaten. We review thi s 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 hi m 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 "Mexica n Mafia." W e find it to be axiomatic that once Brown, McGee, and Bel l initiated the robbery and began beating and tort uring Jojola, he ceased to be a co-conspirator and became a victim. And while USSG § 1B1.1(i) define s the term "physically restrained" to mean "the forcible restraint of th e 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 , 92 9 F.2d at 1246. Based on the above facts, we have no difficulty in affirmin g the district court's finding that Bell physically restrained Jerry Jojola within the meaning of § 3A1.3. Arcoren , 929 F.2d at 1246 (affirmin g dis trict court's finding that defendant physically restrained victim s 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 applicatio n 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 respe ct to alleged false testimony or statem ents by the defendant, such testimony or statements should b e
eva luated in a light most favorable to the defendant." USSG § 3C1.1 , comment. (n.1). Acco rdingly, this enhancement should not be imposed if a
reaso nable trier of fact could have found Bell's alibi testimony to b e true. C abbell , 35 F.3d at 1261. Bell argues that this enhancement i s inapplicable because a reasonable jury could have believed him and hi s 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 c ase, 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-conspir ators or other witnesses. We find no error. United States v. Oakie , 12 F.3d

### -24-

1436 , 1444 (8th Cir. 1993) (affirming district court's perjur y determ ination based on codefendant and other witnesses' testimon y contradicting defendant's testimony).

III. CONCLUSION

For the aforementioned reasons, we affirm Kime's conviction. W e
rema nd Bell's 18 U.S.C. § 924(c)(1) conviction under Count 16 to th e 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 opini on 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 al l material respects to those present in this case, that we would not conside r the d efendant's Baileyargument because he had not presented it to th e district court and had therefore forfeited it. I therefore respectfully dissent from the port ion 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.