1

The district court severed a seventh count of using a

dangerous and deadly weapon to forcibly assault a federal officer

in violation of 18 U.S.C. § 111(b). The government subsequently

dismissed this count. 

 2The Honorable Thomas M. Shanahan, United States District

Judge for the District of Nebraska. 

_____________

No. 95-3175

_____________

United States of America, *

 *

Plaintiff-Appellee, * Appeal from the United States

* District Court for the

v. * District of Nebraska.

*

Cleophus Davis, Jr., *

*

Defendant-Appellant. *

_____________

 Submitted: March 12, 1996

 Filed: December 23, 1996 _____________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges. _____________

HANSEN, Circuit Judge.

Cleophus Davis, Jr., was convicted by a jury of three counts

of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d)

(1988); and three counts of using a firearm during and in relation

to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (1988

Supp. V).1 Davis appeals his convictions and sentence, claiming

numerous points of error by the district court.2 We affirm. 
2

I. Background

This case involves the armed robbery of three separate,

federally insured financial institutions in Omaha, Nebraska. Two

of the armed robberies occurred only minutes apart on January 29,

1994. The third took place on March 12, 1994. Cleophus Davis was

arrested and charged with all three robberies. We recite the facts

in the light most favorable to the verdict. 

The first robbery occurred at approximately 9:15 a.m. on

January 29, 1994. An individual of medium build wearing dark

sweatpants, a dark stocking cap ski mask, white tennis shoes, and

white gloves entered the Mid City Bank located at the 74th Street

Plaza, armed with a dark-colored, short-barrelled gun. With the

gun aimed at the teller, the suspect demanded money, and at some

point during the robbery, he fired a shot but no one was injured.

The robber fled with $1,511. 

No witnesses at the 74th Street Mid City Bank saw the robber's

face because of the ski mask, but Ethel Griffin had been in her car

in the plaza parking lot where the Mid City Bank is located. While

she stated she could not identify the individual, she had noticed

an African-American male as described above enter the bank. After

hearing gunfire, she saw the same man leave the bank with a ski

mask over his face and a yellow bag in his hand. The man ran by

Ms. Griffin and turned north into a walkway that leads to another

parking lot. Authorities discovered fresh footprints in the snow

heading through the walkway toward the parking lot. The footprints

measured approximately 11 inches long. Authorities also recovered

a bullet fragment from the scene and later determined it to be a

.38 caliber lead bullet with markings consistent with being fired

from a gun with a very worn or heavily leaded barrel. 

Minutes later, at approximately 9:20 a.m., an individual with

a ski mask over his face entered the Streamliner Credit Union at
3

210 North 78th Street and demanded money from the teller. (There

was testimony that it takes three to five minutes to travel by car

to this location from the Mid City Bank on 74th Street.) With a

gun aimed at the teller, he said, "Fifties and hundreds, b****,

fifties and hundreds." (Trial Tr. at 415.) Teller Susan Grow

testified that the robber was an African-American male -- she could

see his skin through the ski mask eye holes. She estimated that he

was approximately 5'5'' to 5'8'' tall and weighed approximately 140

pounds. Another employee testified that the robber was

approximately 5'7'' or 5'8'' tall with a thin build. The robber

fled with $4,945. 

Again, fresh shoe prints were found in the snow along the path

where the robber fled. The police photographed the prints. An

Omaha police senior crime laboratory technician testified that the

prints found near the Streamliner Credit Union were similar to

those found near the scene of the first robbery at the 74th Street

Mid City Bank. 

Less than two months later, on March 12, 1994, an armed

robbery took place at the Mid City Bank at 304 South 42nd Street in

Omaha. Shortly after 11 a.m., bank teller Rita Kuchcinski heard a

loud popping noise. She looked up to see an African-American male

in a dark-colored stocking cap with a white scarf around his neck

and a dark-colored gun in his right hand. The robber pointed the

gun at Ms. Kuchcinski's head and repeatedly demanded, "Give me all

your hundreds and fifties." (Trial Tr. at 675.) He also said,

"Come on, b**** . . . There's got to be more." (Id. at 676, 677).

The vice president of the bank, Kenneth Grigsby, came out of his

office upon hearing the loud noise. He saw an African-American

male as described above leaning into Ms. Kuchcinski's teller booth

and brandishing a dark-colored revolver. He estimated that the

robber stood 5'6'' to 5'7'' tall and weighed 140 to 150 pounds.

The individual fled with $2,400.
4

Around the time of this robbery, John Coats was in his car at

a stoplight on the intersection of 42nd Street and Farnum, near the

42nd Street Mid City Bank. Mr. Coats noticed an African-American

male jogging toward him from the direction of the bank, crossing

the street against the light. Mr. Coats watched as the man

approached and ran past Coats' automobile. The man had something

white, like a towel, wrapped around his neck that blew off as he

ran, but he did not attempt to stop it or retrieve it. This

behavior caught Mr. Coats' attention, and he continued to watch in

his rearview mirror until he could no longer see the man. Mr.

Coats testified that at the time, he wondered what was happening

because he knew "that bank gets held up a lot." (Trial Tr. at

622.) Mr. Coats described the man he saw as having an angular face

and estimated him to be in his mid- to late-20s, between 5'7'' and

5'10'' tall, weighing around 165 pounds. 

After learning that the bank had been robbed on the morning

when he had observed this unusual behavior, Mr. Coats reported to

the FBI what he had seen. He, along with the bank teller from the

42nd Street Mid City Bank, Ms. Kuchcinski, provided information for

an FBI artist to sketch a likeness of the suspect. Both described

an individual with an angular face, but neither witness was

satisfied with the sketch. These two witnesses also participated

in a police identification lineup. Out of a lineup of four

individuals, Mr. Coats identified Davis, noting a "strong

probability" or an "80 to 90 percent probability" of being the

person he saw after the robbery. (Trial Tr. at 632, 654.) Ms.

Kuchcinski could not decide between Davis and one other person in

the physical lineup, but she was able to identify Davis through a

voice identification procedure where she listened to four

individuals say the phrase, "Give me all your fifties and hundreds"

-- a phrase the robber had repeatedly said to Kuchcinski.

The evidence also shows that a few days before the first armed

robberies on January 29, the Omaha police impounded a 1978 Lincoln
5

Continental automobile that was registered to Davis's girlfriend,

Jessica Carr (now his wife). On the very morning of the first two

robberies between 10:00 and 11:30 a.m., Davis and Carr went to a

used car dealer and indicated that they wanted to purchase a 1985

Nissan 300ZX. They paid $2,600 cash and registered it under Carr's

name. Davis indicated to the dealer that he had recently received

the money from a tax refund. The government presented evidence to

demonstrate that neither Davis nor Carr had received any such

refund. In fact, Davis was not employed, he was making his living

"hustling" (Trial Tr. at 1074), and the IRS had no records of Davis

filing any income tax documents from 1990 through 1993. The

evidence also indicated that although the Nissan 300ZX was

registered to Carr, Davis drove it and took care of it. 

When he was arrested, Davis was wearing shoes that measured 11

inches long, and a partial box of .38 caliber wadcutter cartridges

was found in plain view in the Nissan 300ZX. Davis was 25 years

old, stood approximately 5'8'' tall, and weighed approximately 140

pounds. Davis denied any involvement in the bank robberies or in

the purchase of the Nissan. 

The .38 caliber wadcutter cartridges found in a box in the

Nissan were later tested against the bullets found at the crime

scenes. The crime scene bullets bore markings similar to each

other, indicating that they were possibly fired by the same gun.

The bullets from the box found in the Nissan were determined to be

analytically indistinguishable from the bullets recovered at the

74th Street Mid City Bank and the 42nd Street Mid City Bank. An

expert testified that such a finding is rare and that the bullets

must have come from the same box or from another box that would

have been made by the same company on the same day. 

Two FBI agents later searched the Nissan 300ZX with the

consent of its owner, Jessica Carr. They were looking for a gun,

which they did not find. They found a receipt from some repairs
6

that had been done to the vehicle, an estimate for those repairs,

and a pair of tennis shoes. After searching the car, the agents

allowed Jessica Carr to take some personal items out of the car.

Agent Holmquist testified that she took the Nissan 300ZX owner's

manual, a little white pillow, a chess or checkers box, and some

other personal items. She then asked for a box to carry the items

in, and the agents found a brown cardboard box to give her. 

In late June 1994, upon belief that evidence of the robbery

was located in Shauna Copeland's apartment, where Jessica Carr had

been staying, FBI agents obtained and executed a search warrant for

that apartment. Authorities searched Copeland's apartment and

found a brown cardboard box that Ms. Carr was storing there. Agent

Holmquist of the FBI testified that the box looked like the one he

had given Carr to carry the personal items she had retrieved from

the Nissan. Within the box, agents found the Nissan owner's

manual, a little white pillow, a chess set, a picture of Cleophus

Davis, an invoice with Davis's name on it, and a .38 caliber snub

nosed revolver. The FBI later tested the gun and found it to have

a very worn, heavily leaded barrel, consistent with the markings on

the bullets recovered from the crime scenes. An expert witness

opined that it is possible that the bullets recovered from the 74th

Street Mid City Bank and the 42nd Street Mid City Bank were fired

from this weapon. 

Davis was charged in a superseding indictment with three

counts of armed robbery and three counts of use of a firearm in

connection with a crime of violence. A jury convicted Davis of all

six counts, and the district court sentenced him to a total term of

670 months of imprisonment. Davis appeals. 

II. Sufficiency of the Evidence

Davis first challenges the sufficiency of the evidence to

sustain his convictions. The district court denied his motion for
7

acquittal and his motion for a new trial. Davis argues that the

district court erred in denying his motions because the evidence in

this case is as equally strong to infer innocence as it is to infer

guilt. We disagree. 

We review the denial of a motion for acquittal by viewing the

evidence in the light most favorable to the verdict, giving the

government the benefit of all reasonable inferences to be drawn

from the evidence. United States v. French, 88 F.3d 686, 687-88

(8th Cir. 1996); United States v. Teitloff, 55 F.3d 391, 393 (8th

Cir. 1995). We will uphold the conviction against a challenge to

the sufficiency of the evidence unless "a reasonable factfinder

must have entertained a reasonable doubt about the government's

proof of one of the offense's essential elements." Id. (internal

quotations omitted). See Jackson v. Virginia, 443 U.S. 307, 317

(1979). This standard applies even when the conviction rests

entirely on circumstantial evidence. United States v. Wilcox, 50

F.3d 600, 602-03 (8th Cir. 1995). 

"[W]here the government's evidence is equally strong to infer

innocence as to infer guilt, the verdict must be one of not guilty

and the court has a duty to direct an acquittal." United States v.

Kelton, 446 F.2d 669, 671 (8th Cir. 1971). In determining the

strength of the evidence in a circumstantial case, "it is the

totality of the circumstances that must be weighed in making a

decision on a motion for acquittal." United States v. Kelton, 519

F.2d 366, 367 (8th Cir.), cert. denied, 423 U.S. 932 (1975). 

We conclude that the government presented a substantial amount

of circumstantial evidence from which the jury could reasonably

find (beyond a reasonable doubt) that Davis committed all three

robberies. To summarize, the two eye witnesses to the last robbery

(at the 42nd Street Mid City Bank) identified Davis out of court.

Mr. Coats, who had seen the robber run across the street,

identified Davis in a lineup, and Ms. Kuchcinski, the teller from
8

whom the robber had demanded money, narrowed the physical lineup to

Davis and one other and then identified Davis's voice in a voice

identification procedure. Although no eyewitnesses saw the

suspect's face at the first two robbery scenes, Davis can also be

logically linked to them from the evidence at the last robbery

scene. Davis's physical characteristics fit the general

descriptions given by all the witnesses at all the crime scenes.

His choice of words when demanding money at the last robbery was

very similar to his choice of words at the Streamliner Bank (the

second robbery). The shoes he wore when arrested were the same

length as the footprints in the snow where the suspect fled from

the first two robberies. 

Additionally, expert testimony demonstrated a high probability

that the bullets spent at the first robbery and the last robbery

originated from the same box of cartridges. They can be linked to

Davis because they are analytically indistinguishable from the

partial box of cartridges found in the Nissan that Davis and Carr

purchased, a very rare finding. When told that a box of .38

caliber wadcutter cartridges had been found in the Nissan 300ZX,

would be evaluated, and would be compared with the bullets found at

the robbery scenes, Davis looked at the interviewing officer,

smiled and said, "You don't have a gun, do you?" (Trial Tr. at

1076.) Davis then asked if any fingerprints had been found at the

banks; he told the officer, "Bring me some fingerprints and we'll

talk." (Id.) The .38 caliber snub-nosed gun, found in the

possessions that were clearly linked to the defendant, had a

heavily leaded and worn barrel, which is consistent with the

markings on the bullets found at both the first and last crime

scenes. 

The government also introduced evidence of motive very close

in time to the crimes. The car Davis drove was repossessed a few

days before the first robberies, and Davis used a large sum of cash

to purchase the Nissan 300ZX on the very day of the first two
9

robberies -- a time when the defendant had no job or legitimate

source of income. Further, Davis lied to the car salesman about

the source of the cash. 

After reviewing the entire record, we are satisfied that the

evidence in this case, "although circumstantial, is not equivocal

on its face," and was therefore properly submitted to the jury.

Kelton, 519 F.2d at 367. Viewing the totality of the evidence in

the light most favorable to the verdict, the evidence is sufficient

for the jury to have found guilt on all of the counts beyond a

reasonable doubt. Davis points to conflicts that existed in the

evidence in an attempt to discredit the verdict. This attempt

fails, because regardless of the conflicts, our review only

considers the reasonable inferences that may be drawn when the

evidence is viewed in the light most favorable to the verdict. The

jury was responsible for resolving conflicts in the evidence. The

district court did not err by denying Davis's motion for judgment

of acquittal. 

Davis also contends that the district court abused its

discretion by denying his motion for a new trial, arguing that the

verdict is contrary to the great weight of the evidence. In

assessing whether the defendant is entitled to a new trial on this

basis, the district court weighs the evidence and evaluates anew

the credibility of the witnesses to determine if a miscarriage of

justice may have occurred. United States v. Rodriguez, 812 F.2d

414, 417 (8th Cir. 1987); United States v. Lincoln, 630 F.2d 1313,

1319 (8th Cir. 1980). We review the district court's denial of a

new trial on this ground for "a clear and manifest abuse of

discretion." Rodriguez, 812 F.2d at 417. Having carefully

reviewed the record, we cannot say that the district court

committed a clear and manifest abuse of discretion by denying

Davis's motion for a new trial. 
 3

Davis proposed the following theory of defense instruction:

Cleophus Davis has pleaded not guilty to the charges

made in counts I - VI of the Indictment. Davis' plea of

not guilty puts in issue each of the essential elements

of the offenses charged and imposes upon the government

the burden of proving each of the essential elements of

those charges beyond a reasonable doubt. 

Cleophus Davis contends that he is not guilty

because he has been mistakenly identified as the

perpetrator. Accordingly, the following must be noted:

First, Davis should not be prejudiced by the fact

that neither the government nor himself identified who

the actual perpetrator was. 

Second, you are free to consider and weigh the

effect of the government's failure to adduce any direct

evidence against Davis that proved that Davis was the

person who actually committed the robberies. 

Third, as a general rule the law makes no

distinction between direct and circumstantial evidence,

but simply requires that you be satisfied of the

defendant's guilt beyond a reasonable doubt before

convicting him. In considering circumstantial evidence,

keep certain things in mind. The circumstances must be

proved beyond a reasonable doubt. These circumstance[s]

should be consistent with guilt and inconsistent with

innocence. They ought to be of such a conclusive or

positive tendency as to convince you of guilt beyond a

reasonable doubt than of some other conclusion.

Therefore, if the circumstances are susceptible of two

equally reasonable constructions -- one indicating guilt

and the other innocence -- then, of course, you should

find the defendant innocent. 

(Appellant's Addend. at 14-15.) 

10

III. Theory of Defense 

Davis contends that the district court erred by failing to

incorporate into the jury instructions his suggested instruction on

his theory of defense -- misidentification.3

 A defendant is
11

entitled to an instruction on his theory of defense if the

defendant makes a proper request, if there is evidence to support

the instruction, and if the instruction contains a correct

statement of the law. United States v. Gonzales, 90 F.3d 1363,

1371 (8th Cir. 1996); United States v. Long Crow, 37 F.3d 1319,

1323 (8th Cir. 1994), cert. denied, 115 S. Ct. 1167 (1995). We

review for an abuse of discretion the district court's refusal to

give a particularly worded "theory of defense" instruction,

Gonzales, 90 F.3d at 1371, but we review de novo the question of

whether there is sufficient evidence to submit an affirmative

theory of defense, Long Crow, 37 F.3d at 1323. 

In this case, while the district court rejected Davis's

particularly worded theory of defense instruction, it did not

reject as unsupported by the evidence his defense of

misidentification. Instead, the district court adopted Davis's

instruction in part, incorporating the claim of mistaken identity

into an existing instruction that set forth the presumption of

innocence and the government's burden of proof. (See Supp. R. at

43; Jury Instr. 4.) To Instruction 4, the district court added the

following: "Also, Cleophus Davis contends that he is not guilty

because he has been mistakenly identified as the perpetrator of the

offenses stated in the Superseding Indictment." (Id.) We conclude

that the inclusion of this paragraph sufficiently instructed the

jury on Davis's misidentification theory of defense.

The district court rejected the remainder of Davis's proposed

instruction, which explained circumstantial evidence and reasonable

doubt. The contents of the remainder of Davis's proposed

instruction were cumulative of material already covered in other

parts of the existing jury instructions. Instruction 6 adequately

explained the reasonable doubt standard, and Instruction 7

adequately directed the jury to consider the reasonable inferences

arising from the evidence and informed them that the law makes no
 4

Jury Instruction 6 stated as follows: 

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.

(Supp. R. at 45.) 

12

distinction between circumstantial and direct evidence. (See Supp.

R. at 45-46.) 

Davis specifically argues, however, that nowhere did the

court's jury instructions state that the jury must find the

defendant not guilty if the circumstantial evidence was equally

susceptible to guilt as to innocence. This argument, in essence,

is based on nothing more than a particular wording of the

government's burden of proof, which is guilt beyond a reasonable

doubt. 

[S]o long as the court instructs the jury on the

necessity that the defendant's guilt be proved beyond a

reasonable doubt, the Constitution does not require that

any particular form of words be used in advising the jury

of the government's burden of proof. Rather, "taken as

a whole, the instructions [must] correctly conve[y] the

concept of reasonable doubt to the jury." 

Victor v. Nebraska, 511 U.S. 1, 5 (1994) (alterations in original).

We have specifically and repeatedly approved the reasonable doubt

instruction given by the district court in this case4 "as an

accurate statement of the requisite burden of proof." United

States v. Rogers, 91 F.3d 53, 56 (8th Cir. 1996). Accordingly, we

hold that the district court did not abuse its discretion by

refusing to adopt the defendant's particularly worded jury

instruction.
13

The standard offered by the defendant is the legal standard

used by district courts to determine whether the case should be

submitted to the jury. See Kelton, 446 F.2d at 671. While an

instruction on this standard has been approved where the overall

instructions properly placed the burden on the government to prove

every element of the crime beyond a reasonable doubt, see United

States v. Vaglica, 720 F.2d 388, 391 (5th Cir. 1983), it in fact

has also been condemned "because standing alone, [the] language may

mislead a jury into thinking that the government's burden is

somehow less than proof beyond a reasonable doubt," United States

v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989) (internal quotations

omitted). We see no reason to transform the standard by which a

motion for judgment of acquittal is tested into a required jury

instruction. Additionally, the lack of a particularly worded

instruction did not prevent Davis's attorney from vigorously

arguing to the jury the standard that he offered in his proposed

instruction. (See Trial Tr. at 1418, 1435.) 

IV. Identification Procedures

Davis contends that the district court erred by refusing to

suppress the in-court identification by John Coats, the witness who

observed the robber from his car while waiting at a stoplight near

the last robbery scene. Because this claim implicates Davis's

right to constitutional procedural due process, we review this

question de novo. United States v. Johnson, 56 F.3d 947, 953 (8th

Cir. 1995). 

"Reliability is the linchpin in determining the admissibility

of identification testimony . . . ." Manson v. Brathwaite, 432

U.S. 98, 113, 114 (1977). Identification testimony will be

suppressed only if the procedure was "so impermissibly suggestive

as to give rise to a very substantial likelihood of irreparable

misidentification." Simmons v. United States, 390 U.S. 377, 384

(1968); accord Manson, 432 U.S. at 116; United States v. Rogers, 73
14

F.3d 774, 778 (8th Cir.), cert. denied, 116 S. Ct. 1889 (1996);

United States v. Murdock, 928 F.2d 293, 297 (8th Cir. 1991). This

determination turns upon the totality of the circumstances in each

case, considering factors that "include the opportunity of the

witness to view the criminal at the time of the crime, the witness'

degree of attention, the accuracy of his prior description of the

criminal, the level of certainty demonstrated at the confrontation,

and the time between the crime and the confrontation." Manson, 432

U.S. at 114. We must weigh the totality of these circumstances

against "the corrupting effect of the suggestive identification

itself" to determine whether suppression is warranted. Id. 

Davis contends that Mr. Coats' in-court identification was

made under an impermissibly suggestive procedure because Davis was

the only African-American male seated at the defense counsel table,

and the only other African-American individual present was a man in

the back of the courtroom. While recognizing the potential

suggestive nature of in-court identifications where an AfricanAmerican defendant is seated at counsel table, we have previously

rejected claims similar to the one Davis makes here, finding that

although the in-court identification procedure may have been

suggestive or tainted, it was not so impermissibly suggestive as to

lead to a likelihood of irreparable misidentification. See Rogers,

73 F.3d at 778 (holding no due process violation where counsel

attacked the reliability and credibility of the identification

during cross-examination and the testimony of two other witnesses

identified the defendant); Murdock, 928 F.2d at 297 (holding no due

process violation where defendant did not request special seating

or object to the racial composition of the courtroom, the

identifications were open to attack on cross-examination, and the

identifications were reliable under the totality of the

circumstances). We agree with the Ninth Circuit's assessment that

"[t]here is no constitutional entitlement to an in-court line-up or

other particular methods of lessening the suggestiveness of incourt identification, such as seating the defendant elsewhere in
15

the room. These are matters within the discretion of the court."

United States v. Domina, 784 F.2d 1361, 1369 (9th Cir. 1986), cert.

denied, 479 U.S. 1039 (1987). 

In this case, Davis made a specific objection to the racial

composition of the courtroom and requested that he not be seated at

counsel table during the identification procedures. The district

court denied the request, concluding that the defendant was

adequately protected by cross-examination. The district court did

not abuse its discretion because our review of the record convinces

us that the government's questions were not suggestive, the

witness's in-court identification was vigorously attacked on crossexamination, and more importantly, other circumstances indicate

that the witness's testimony was reliable enough to be presented to

the jury. 

On the day of the crime, Mr. Coats had observed a man running

away from the direction of the 42nd Street Mid City Bank and toward

his car as he was stopped at a street light. Mr. Coats viewed him

with a good degree of attention and continued to watch him through

the rearview mirror until he was out of sight, because of his

unusual behavior. Within a few days after the crime, Mr. Coats

provided a detailed description of the man he saw running by his

car. Coats also chose Davis out of a pretrial lineup, identifying

Davis with a "strong probability" or an "80 to 90 percent

probability" of being the person he saw running from the 42nd

Street Mid City bank after the robbery. (Trial Tr. at 632, 654.)

The district court found that the lineup procedure was not

suggestive (the witnesses reviewed the lineup separately and were

advised that there was no obligation to choose anyone), and Davis

does not challenge the reliability of the lineup in this appeal.

Rita Kuchcinski, another eye witness, also identified Davis through

out-of-court procedures that were determined not to be suggestive

in any way. Thus, this case did not rest solely on the reliability

of Mr. Coats' in-court identification, and given the total
16

circumstances, the arguably suggestive nature of the in-court

identification was not so impermissibly suggestive as to create "a

very substantial likelihood of irreparable misidentification."

Simmons, 390 U.S. at 384. "We are content to rely upon the good

sense and judgment of American juries, for evidence with some

element of untrustworthiness is customary grist for the jury mill.

Juries are not so susceptible that they cannot measure

intelligently the weight of identification testimony that has some

questionable feature." Manson, 432 U.S. at 116. 

Davis also challenges the voice identification procedure.

Rita Kuchcinski, the bank teller at the 42nd Street Mid City Bank,

participated in both the physical lineup and voice identification

procedures. During the lineup, she could not decide between two

individuals -- Davis and one other person -- but she did identify

Davis by his voice. The voice identification procedure consisted

of requiring four individuals to repeat the phrase that the robber

had repeatedly yelled at Kuchcinski: Give me all your hundreds and

fifties. Kuchcinski was not allowed to see the individuals as they

spoke. Kuchcinski identified Davis's voice and testified that she

was quite sure that her identification was accurate. 

Davis contends that Kuchcinski could not have had sufficient

opportunity to listen to the robber's voice at the time of the

crime, because the robber made only one statement to her. This

argument is not factually accurate according to our reading of the

record, and in any event, it puts the cart before the horse.

Through this argument, Davis attempts to demonstrate a likelihood

of irreparable misidentification without first demonstrating that

the voice identification procedure itself was in any way

suggestive. An irreparable likelihood of misidentification does

not arise through the circumstances of the crime alone but arises

upon the government's use of suggestive identification procedures

when combined with the specific circumstances of the crime. Absent

an impermissibly suggestive identification procedure, there can be
17

no due process violation. Accordingly, we find this claim to be

without merit. 

V. Evidentiary Issues

Davis contends that the district court erred by denying his

motion to suppress evidence seized at Shauna Copeland's apartment.

"In reviewing the grant or denial of a motion to suppress evidence

on Fourth Amendment grounds, we are bound by the district court's

findings of fact regarding the circumstances of the search unless

we believe on the basis of the record as a whole that the district

court clearly erred." United States v. Riedesel, 987 F.2d 1383,

1387 (8th Cir. 1993). Clear error occurs when the decision is not

supported by substantial evidence, reflects an erroneous view of

the applicable law, or leaves us with a definite and firm

conviction that a mistake has been made. Teitloff, 55 F.3d at 393.

"We may reverse the district court's ultimate ruling on the

suppression motion, however, if the ruling reflects an erroneous

view of the applicable law." Riedesel, 987 F.2d at 1388. This

amounts to a de novo review of the ultimate decision of a district

court to deny a motion to suppress. United States v. Gomez, 16

F.3d 254, 256 (8th Cir. 1994). 

"Fourth Amendment rights are personal and may not be asserted

vicariously . . . ." Id. (citing Rakas v. Illinois, 439 U.S. 128,

138-44 (1978)). Consequently, the defendant must demonstrate "a

legitimate expectation of privacy in the area searched or the item

seized." Id. In this case, Davis failed to demonstrate either.

The apartment searched was the residence of Shauna Copeland. Davis

does not contend that he lived at this address or that he was a

guest in the home at the time of the search. See Minnesota v.

Olson, 495 U.S. 91, 95-100 (1990) (holding overnight guest had a

legitimate expectation of privacy in the host's home).

Furthermore, Davis does not claim ownership of the box, which

Jessica Carr was storing at this address. Absent a legitimate
18

expectation of privacy in Shauna Copeland's apartment or in the

box, the search and seizure did not violate Davis's Fourth

Amendment rights. 

Davis also contends the district court erred by admitting

irrelevant and prejudicial evidence -- namely, information about

his failure to file income tax returns, information about the

purchase of the Nissan 300ZX, a bullet recovered from a parking lot

during surveillance of Davis's residence, and testimony concerning

two guns. "We review [the] district court's ruling on

admissibility of evidence for an abuse of discretion," United

States v. Mendoza, 85 F.3d 1347, 1351 (8th Cir. 1996), discussing

each piece of evidence in turn. 

Davis argues that the income tax information was not relevant

within the meaning of Federal Rules of Evidence 401 and 402, and to

the extent the tax information was relevant at all, its relevance

was outweighed by its prejudicial effect. See Fed. R. Evid. 403.

Also, Davis contends that the tax information violated Federal Rule

of Evidence 404(b). Contrary to Davis's assertions, the

information that Davis had not filed income tax returns for the

preceding two years was relevant to a material issue of fact at

trial, its prejudicial effect did not outweigh that probative

value, and it was not offered to show bad character. "Rule 404(b)

only forbids introduction of extrinsic bad acts whose only

relevance is to prove character, not bad acts that form the factual

setting of the crime in issue." United States v. Williams, 95 F.3d

723, 731 (8th Cir. 1996). The tax evidence was relevant to the

factual issues of this case because it demonstrated Davis's lack of

a legitimate source of income at the time he and Carr purchased the

Nissan 300ZX with cash and refuted the explanation he gave the car

dealer concerning the source of the cash. See United States v.

Vannerson, 786 F.2d 221, 224 (6th Cir.) (holding robber's failure

to file income taxes was relevant to demonstrate his pre-theft

income and to negate defendant's claim that he received income from
19

playing in bands), cert. denied, 476 U.S. 1123 (1986).

Furthermore, the prejudicial effect of this evidence did not

outweigh its probative value. 

Similarly, the testimony concerning the purchase of the Nissan

300ZX was relevant to material factual issues and was not unfairly

prejudicial. The purchase of this automobile and expenditures made

for its maintenance explained what may have happened to the

proceeds from the bank robberies. Davis's involvement in the

purchase and maintenance of the Nissan 300ZX, in which

incriminating evidence was found, helped link Davis to that

evidence and to the crimes at issue. 

Davis contests the admission of a .38 caliber shell found in

the parking lot near his apartment, arguing that it did not make it

more probable that he committed the robberies. To the contrary,

this evidence was relevant to Davis's use of a .38 caliber gun, and

expert testimony linked this particular shell to the box of

cartridges found in the Nissan. Expert testimony also linked that

box of cartridges to the bullets recovered from the crime scenes.

Likewise, the testimony concerning the .38 caliber guns was

relevant. From examining the bullets recovered from the crime

scenes, an expert was able to conclude that the gun that shot these

bullets had a very worn and heavily leaded barrel. The first gun

tested, which was linked to a different suspect, was eliminated

from the investigation because it did not have a worn and heavily

leaded barrel that could have made the marks found on the bullets

at the robbery scenes. The .38 caliber gun found in the box of

personal items linked to Davis that Jessica Carr was storing at

Shauna Copeland's apartment, on the other hand, matched the

physical descriptions of the gun used during the crimes and had a

very dirty barrel with heavy lead deposits, which could have

produced the marks on the bullets found at the crime scenes. The

testimony concerning these guns bears obvious relevance to the
20

crimes charged because it permits the inference that the gun found

in the box of items linked to Davis was in fact the gun used during

the robberies. Again, the probative value of the evidence was not

outweighed by its prejudicial effect. We find no abuse of

discretion in the district court's evidentiary rulings. 

VI. Scientific Evidence

The Federal Rules of Evidence provide that expert scientific

testimony is admissible pursuant to Rule 702 if the district court

first concludes, pursuant to Rule 104(a), "that 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 Pharm., Inc., 509 U.S. 579, 592

(1993); accord United States v. Martinez, 3 F.3d 1191, 1196 (8th

Cir. 1993), cert. denied, 510 U.S. 1062 (1994). The Supreme Court

has emphasized that Rule 702 envisions a flexible inquiry: "Its

overarching subject is the scientific validity -- and thus the

evidentiary relevance and reliability -- of the principles that

underlie a proposed submission. The focus, of course, must be

solely on principles and methodology, not on the conclusions that

they generate." Daubert, 509 U.S. at 594-95. Relevant, but not

exclusive, concerns when assessing the reliability of the evidence

include (1) whether the theory or technique can or has been tested,

(2) whether it has been subjected to peer review and publication,

(3) the known or potential rate of error of the technique, and (4)

general acceptance among the scientific community. Id. at 593-94;

United States v. Kime, 99 F.3d 870, 883 (8th Cir. 1996); United

States v. Reynolds, 77 F.3d 253, 254 n.1 (8th Cir. 1996). We

review for an abuse of discretion the district court's decision

regarding the admissibility of scientific evidence. See Johnson,

56 F.3d at 952.

The district court held a preliminary evidentiary hearing to

determine the admissibility of the expert testimony proffered by
21

the government on Inductively Coupled Plasma-Atomic Emission

Spectrometry (ICP), a process used in this case to analyze and

compare trace elements found in the bullet fragments. The

government presented the testimony of John Riley, special agent of

the FBI, who specializes in the analysis of various materials for

their elemental and trace elemental composition. Mr. Riley has

been doing this work for approximately 27 years. He has a bachelor

of science degree in chemistry and a master of science degree in

forensic science. He has also authored articles and lectured on

this subject. 

Mr. Riley testified that ICP, an analysis that the FBI has

been using for approximately 10 years, is a generally accepted

scientific technique that has been subjected to testing,

publication, and peer review, and the technique is the same no

matter who performs it. Another procedure used to accomplish the

same basic analysis is neuron activation analysis. The FBI has

been using the neuron activation analysis since the mid-1960s but

now favors ICP for trace elemental analysis because ICP is more

sensitive. ICP can determine trace elements down to parts per

million (.0000001 percent). The procedure determines which of five

trace elements are present in the bullets to be compared. If the

same elements are present in each, then the procedure determines

the percentage of each element present. If the same elements are

present in the same amounts then they are analytically

indistinguishable. 

Mr. Riley testified that research has been conducted on the

composition and comparison of bullets manufactured at the same

plant on either the same or different days and at different plants.

The research revealed that while 400,000 bullets could be produced

at a factory in one day, the composition of those bullets will vary

vastly unless they were manufactured side by side, because lead is

a heavy molten metal that cannot be mixed into a completely

homogenous mixture throughout; pockets of different elemental
22

compositions will exist and additional lead of differing elemental

compositions is periodically added to the cauldron throughout a

day, changing the elemental composition of the bullets produced.

Based on this research and the results of the trace elemental

composition ICP analysis, the expert concluded that the bullets at

issue were analytically indistinguishable from some of the bullets

in the box of cartridges found in the Nissan, that they were

generally similar to the remaining bullets in that box, and that

there was a high correlation between the two bullets found at the

crime scenes. He also concluded that these bullets must have been

manufactured at the same Remington factory, must have come from the

same batch of lead, must have been packaged on or about the same

day, and could have come from the same box. 

Defense counsel attacked the information by reading one

paragraph from a book (see Trial Tr. at 838), which criticized

neuron activation analysis (ICP was the analysis used here),

because there is no way of knowing exactly how many bullets

manufactured by the same company have this same elemental

composition. The expert in this case admitted having no way of

knowing how many other bullets Remington produced on the same day

as these that also would have a composition that is analytically

indistinguishable from the bullets tested here. 

At the end of this hearing, the court determined that there

was a sufficient scientific basis to admit the expert's testimony.

The court concluded that the book criticizing this use of the

evidence goes to weight and credibility, not the scientific basis

of the evidence. Davis does not attempt to demonstrate that ICP is

not a scientifically valid technique for determining the trace

elemental composition of bullets, or does he attempt to demonstrate

that Agent Riley improperly performed the technique. Instead, he

challenges the conclusion that because the bullets are analytically

indistinguishable from those found in Davis's cartridge box, they
23

must have come from that box. He also argues that the evidence was

more prejudicial than probative for this reason. 

We conclude that the district court fully executed its

gatekeeping function, see Martinez, 3 F.3d at 1196, and did not

abuse its discretion by admitting the expert testimony. The

evidence made it more probable than not that the expended bullets

originated from the cartridge box found in the Nissan. Davis was

free to challenge the expert's conclusions and point out the

weaknesses of the analysis to the jury during cross-examination.

Weight and credibility are the province of the jury. "Vigorous

cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence."

Daubert, 509 U.S. at 596. 

VII. Indictment Defects

Davis contends that the district court erred by not dismissing

the superseding indictment because of an irregularity consisting of

a "re-vote" in the Grand Jury proceedings. Federal Rule of

Criminal Procedure 12(b)(2) requires defendants to raise defenses

and objections based on the indictment prior to trial, and a

failure to do so constitutes a waiver, Fed. R. Crim. P. 12(f).

United States v. Prescott, 42 F.3d 1165, 1167 (8th Cir. 1994).

Prior to trial, Davis filed a motion to disclose the grand jury

minutes in order to search for irregularities in the proceedings.

A magistrate judge reviewed the transcripts of the grand jury

proceedings, found no irregularities, and denied the defendant's

motion to review the transcripts, describing the request as a

fishing expedition. Davis made no objection to the district court

regarding this order and did not move to dismiss the superseding

indictment on the basis of an irregularity. Accordingly, we will

not entertain the issue. Any alleged defects in the indictment

have been waived. 
24

Davis also contends that the superseding indictment contained

a fatal jurisdictional defect that the government failed either to

amend or prove. Count V charged Davis with armed robbery, in

violation of 18 U.S.C. § 2113(a) and (d), of the 42nd Street Mid

City Bank. The indictment stated that the 42nd Street Mid City

Bank was insured by the National Credit Union Administration. In

fact, however, the 42nd Street Mid City Bank was insured by the

Federal Deposit Insurance Corporation (FDIC), and the government's

evidence at trial proved that the bank was insured by the FDIC.

Davis moved to dismiss or acquit on count V at the close of the

government's evidence on the ground that the government failed to

prove what it alleged in the indictment, but he did not renew that

motion at the close of trial before deliberation and did not argue

it in his motion for new trial. Further, Jury Instruction 14

required the jury to find that the 42nd Street Mid City Bank was

insured by the FDIC, which is in accord with § 2113(f), and the

record reveals no objection to the final form of Jury Instruction

14. The jury convicted Davis on this count. 

Although the sufficiency of the indictment is a

jurisdictional issue that may be raised at any time, an

indictment that is challenged after jeopardy has attached

will be liberally construed in favor of sufficiency. The

indictment will then be upheld unless it is so defective

that by no reasonable construction can it be said to

charge the offense for which the defendants were

convicted.

United States v. Just, 74 F.3d 902, 904 (8th Cir. 1996). 

Section 2113 makes it a crime to engage in armed robbery of

"any bank, credit union, or any savings and loan association." 18

U.S.C. § 2113(a). Section 2113 separately defines "bank," as "any

member bank of the Federal Reserve System, and any bank, banking

association, trust company, savings bank, or other banking

institution organized or operating under the laws of the United

States . . . and any institution the deposits of which are insured
25

by the Federal Deposit Insurance Corporation." Id. § 2113(f).

Section 2113 also separately defines "credit union" as a "credit

union the accounts of which are insured by the National Credit

Union Administration Board." Id. § 2113(g). Davis argues that

because these are separate jurisdictional elements, the

government's recital of the wrong federal insuring agency in the

indictment is fatal. See United States v. Mize, 756 F.2d 353 (5th

Cir. 1985) (holding that reversal is required when a federal

criminal statute has more than one separately defined basis of

jurisdiction and the jurisdictional element stated in the

indictment is constructively modified at trial); see also United

States v. Fitzpatrick, 581 F.2d 1221 (5th Cir. 1978) (holding

§ 2113 states three alternative bases for federal jurisdiction for

robbery of a savings and loan institution, and a fatal defect

occurred where indictment charged that the institution was

federally insured while the court charged the jury on an alternate

statutory basis for federal jurisdiction -- the presence of a

federal charter). 

"As a general rule, an indictment is sufficient if it first,

contains the elements of the charged offense and fairly informs a

defendant of the charge against which he must defend, and second,

enables him to plead double jeopardy as a bar to future

prosecution." United States v. Just, 74 F.3d at 903-04 (internal

quotations omitted). It has long been the rule that "after an

indictment has been returned its charges may not be broadened

through amendment except by the grand jury itself." Stirone v.

United States, 361 U.S. 212, 215-16 (1960). To convict a defendant

on a charge not made against him in the indictment is fatal error

that requires reversal. Id. at 219. A mere variance between the

indictment and the proof, however, which "occurs when the charging

terms are left unaltered but the evidence offered at trial proves

facts different from those alleged in the indictment," does not

require reversal of a conviction unless the variance results in
 5

Additionally, we note that in count I, the indictment

correctly named the FDIC as insurer of the Mid City Bank on 74th

Street -- the sister bank of the 42nd Street Mid City Bank. 

26

actual prejudice. United States v. Koen, 31 F.3d 722, 724 (8th

Cir. 1994), cert. denied, 115 S. Ct. 908 (1995). 

We conclude that what occurred in the present case was not a

jurisdictional defect but a mere variance between the indictment

and the proof, which was not prejudicial to the defendant and

therefore is not fatal to his conviction. "The federally insured

status of a bank is an essential element that must be proved to

sustain a conviction under 18 U.S.C. § 2113(a) and (d)." United

States v. Mays, 822 F.2d 793, 795 (8th Cir. 1987). This essential

element was present in the indictment, as the face of the

indictment clearly indicates that the bank was federally insured in

spite of the fact that the federal insurer was misnamed. This

misnomer did not broaden the charges against Davis, and the

indictment was sufficiently clear to enable him to plead double

jeopardy to a future prosecution for the same offense. See Just,

74 F.3d at 903-04. The indictment informed Davis of the nature of

the offense charged, the statutory violations involved and that a

federal agency insured the funds of the bank.5 See United States

v. Janoe, 720 F.2d 1156, 1159 (10th Cir. 1983) (holding an

indictment for robbery was sufficient where the indictment

incorrectly named the FDIC as the federal insurer instead of the

Federal Savings and Loan Insurance Corporation), cert. denied, 465

U.S. 1036 (1984). We agree with the Tenth Circuit that "[o]nly the

failure to mention any federal insuring agency constitutes a fatal

defect in an indictment." Id. Inadvertently naming the wrong

federal insuring agency does not deprive the court of jurisdiction

as long as the proof conformed to the statutory elements. Cf.

United States v. Roberts, 859 F.2d 593, 594 (8th Cir. 1988)

(holding no jurisdictional error where indictment and proof

indicated the institution was insured by the Savings and Loan
27

Insurance Corporation, but the jury instructions mistakenly charged

that the deposits were insured by the FDIC), cert. denied, 489 U.S.

1059 (1989). In this case, the proof placed in evidence satisfied

all of the elements of the statute referenced in the indictment and

did not result in any prejudice to the defendant.

VIII. Severance

Davis filed a motion to sever, seeking a separate trial of the

counts relating to the March 1994 robbery. The district court

denied the motion and tried all counts of the indictment together.

Davis contends that the district court abused its discretion. 

First, we observe that the counts were properly joined in one

indictment. Two or more offenses may be charged in the same

indictment as long as the offenses charged "are of the same or

similar character or are based on the same act or transaction or on

two or more acts or transactions connected together or constituting

parts of a common scheme or plan." Fed. R. Crim. P. 8. Joinder,

then, is "proper when `the two counts refer to the same type of

offenses occurring over a relatively short period of time, and the

evidence as to each count overlaps.'" United States v. Robaina, 39

F.3d 858, 861 (8th Cir. 1994) (quoting United States v. Shearer,

606 F.2d 819, 820 (8th Cir. 1979)). We review de novo the decision

to join counts into a single indictment. Id. (citing United States

v. Lane, 474 U.S. 438, 449 n.12 (1986)). The offenses charged

relating to each bank robbery are the same -- armed robbery and use

of a firearm in relation to a crime of violence. The proof for

each count is overlapping and intertwined. Two of the robberies

were committed on the same day, and the other was committed less

than two months after the first two. We have affirmed the joinder

of offenses when the time periods between them have spanned six

months or greater. See id. The offenses charged in Davis's

indictment were all properly joined. 
28

The rule governing severance provides that once offenses have

been properly joined, the district court may nonetheless order

separate trials of the counts "[i]f it appears that a defendant or

the government is prejudiced by a joinder of offenses." Fed. R.

Crim. P. 14. "The decision to sever is within the sound discretion

of the trial judge and the denial of a motion to sever is not

subject to reversal absent a showing of real prejudice." United

States v. Patterson, 20 F.3d 801, 805 (8th Cir. 1994) (internal

quotations omitted). Prejudice may result from a possibility that

the jury might use evidence of one crime to infer guilt on the

other or that the jury might cumulate the evidence to find guilt on

all crimes when it would not have found guilt if the crimes were

considered separately. Closs v. Leapley, 18 F.3d 574, 578 (8th

Cir. 1994). On the other hand, a defendant does not suffer any

undue prejudice by a joint trial if the evidence is such that one

crime would be probative and admissible at the defendant's separate

trial of the other crime. Robaina, 39 F.3d at 861. 

Davis contends that there was no connection between the March

1994 robbery and the January 1994 robberies, and thus there is a

danger that the jury may have cumulated the evidence to infer guilt

of all crimes when, if tried separately, the jury might not have

found enough evidence to convict him of all counts. We disagree.

Davis's theory of defense was mistaken identity. Thus, evidence of

the March 1994 robbery could have been admitted at a separate trial

of the two January robberies to prove identity under Rule 404(b).

Accordingly, Davis suffered no real prejudice from the joinder of

offenses. 

IX. Consecutive Sentences

Finally, Davis contends that the district court abused its

discretion by running his sentences consecutively. At sentencing,

the district court properly treated each robbery count (counts I,

III, and V) as a single count group. United States Sentencing
29

Commission, Guidelines Manual, § 3D1.2, comment. (n.7) (Nov. 1994).

The district court then correctly applied USSG § 3D1.4 to determine

a combined offense level which was then used to sentence the

defendant on each of the robbery counts to 130 months of

imprisonment to be served concurrently. See USSG Ch.3, Pt.D. For

the counts charging the use of a firearm during and in relation to

a crime of violence, in violation of 18 U.S.C. § 924(c), the

district court imposed a consecutive 60-month term of imprisonment

for count II, a 240-month term for count IV, and another 240-month

term for VI, resulting in a total consecutive sentence of 540

months of imprisonment. The express language of the statute

prohibits the district court from allowing the firearms terms of

imprisonment to run concurrently with each other or with the

underlying crime of violence. 18 U.S.C. § 924(c)(1) ("nor shall

the term of imprisonment imposed under this subsection run

concurrently with any other term of imprisonment including that

imposed for the crime of violence or drug trafficking crime in

which the firearm was used or carried"). See also USSG 2K2.4,

comment. (n.1) (acknowledging that "the statute requires a term of

imprisonment imposed under this section to run consecutively to any

other term of imprisonment"). Thus, the district court correctly

imposed consecutive sentences for the firearms offenses. We note

that the district court ordered the defendant's federal sentence to

run concurrently with the defendant's existing Nebraska state court

sentences. 

X. Conclusion

Accordingly, we affirm the judgment of the district court. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.