### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 cir c u m s t a ntial evidence and witness identifications base d on his voice and gait, Dr. Fisher’s testimony would have helped the jury to determine the reliability of the identifications. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 9, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 10-20818 Document: 00511660659 Page: 1 Date Filed: 11/09/2011No. 10-20818

Tindall has not shown that the district c o u rt abused its discretion in excluding Dr. Fisher’s testim o ny. See United States v. Jackson , 50 F.3d 1335, 1340 (5th Cir. 1995). Because the witnesses who identifie d 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 retur n ed the car about 20 minutes after the robbery; that two days before the robbery, he was in the ar e a o f 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; th at he was having severe financial problems at the time of the r obbery; that the robber’s helmet was very similar to one worn by Tindal and Lieutenant John Buckholtz i n c h arit able 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, 1 6 6 ( 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. Th e di s tri ct court did not abuse its discretion in determining that Dr. Fisher’s testimony would have been more confusing to the jury than helpful. Therefore, Tind all 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