IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20818

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAEL TINDALL,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CR-251-1

Before DAVIS, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Michael Tindall appeals his jury conviction for bank robbery, arguing that

the district court abused its discretion in excluding the testimony of Dr. Ronald

Fisher, an expert on the reliability of eyewitness identification. Tindall contends

that because his conviction is based on circumstantial evidence and witness

identifications based on his voice and gait, Dr. Fisher’s testimony would have

helped the jury to determine the reliability of the identifications.

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 10-20818 Document: 00511660659 Page: 1 Date Filed: 11/09/2011
No. 10-20818

Tindall has not shown that the district court abused its discretion in

excluding Dr. Fisher’s testimony. See United States v. Jackson, 50 F.3d 1335,

1340 (5th Cir. 1995). Because the witnesses who identified Tindall had

previously known and worked with him for one to 20 years, their identifications

were based on their familiarity with Tindall. The Government also presented

much circumstantial evidence corroborating the witnesses’ identifications,

showing that a few days before the robbery Tindall rented a car identical to the

robber’s getaway car; that he returned the car about 20 minutes after the

robbery; that two days before the robbery, he was in the area of a truck which

had a stolen license plate that was one digit different from the license number

a teller identified as being on the getaway car; that he made a large $5000 cash

deposit into his bank account about one hour after the robbery; that he was

having severe financial problems at the time of the robbery; that the robber’s

helmet was very similar to one worn by Tindal and Lieutenant John Buckholtz

in charitable go-cart races; and that police found a helmet very similar to the

robber’s helmet in Tindall’s garage. Further, Tindall’s counsel was also able to

cross-examine the identification witnesses thoroughly to bring out any problems

or weaknesses in their testimony. This case is more similar to United States v.

Moore, 786 F.2d 1308, 1312 (5th Cir. 1986), and United States v. McGinnis, 201

F. App’x 246 (5th Cir. 2006), than to United States v. Alexander, 816 F.2d 164,

166 (5th Cir. 1987). The evaluation of the reliability of the witnesses’

identification was within the common sense of the jury and did not require the

aid of expert testimony. The district court did not abuse its discretion in

determining that Dr. Fisher’s testimony would have been more confusing to the

jury than helpful. Therefore, Tindall has not shown that the district court

abused its discretion in excluding Dr. Fisher’s testimony.

AFFIRMED.

2

Case: 10-20818 Document: 00511660659 Page: 2 Date Filed: 11/09/2011