United States Court of Appeals

For the Eighth Circuit

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No. 17-3750

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Darius Devon Nickelous

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Waterloo

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Submitted: November 15, 2018

Filed: February 26, 2019

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Before BENTON, BEAM, and ERICKSON, Circuit Judges.

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BENTON, Circuit Judge.

Darius D. Nickelous was convicted of unlawfully possessing a firearm in

violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), 922(g)(9), and 924(a)(2). The district
court sentenced him to 120 months’ imprisonment. He appeals his conviction.

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Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Nickelous was convicted of unlawfully possessing a firearm after a shooting

at a fraternity party. He claims the district court erred in denying his motion for

judgment of acquittal because the evidence was insufficient. This court reviews de

novo the “denial of a motion for judgment of acquittal.” United States v. Roberts,

881 F.3d, 1049, 1052 (8th Cir. 2018). The evidence is viewed “in the light most

favorable to the jury verdict and giving the verdict the benefit of all reasonable

inferences.” United States v. Casteel, 663 F.3d 1013, 1019 (8th Cir. 2011). Reversal

is appropriate “only if no reasonable jury could have found the defendant guilty

beyond a reasonable doubt.” Id.

Nickelous stipulated to all elements of conviction except possession of a

firearm. See United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996) (to convict

“under 18 U.S.C. § 922(g)(1), the government had to show beyond a reasonable doubt

that (1) he had been convicted of a felony; (2) he thereafter possessed a firearm; and

(3) the firearm had traveled in or affected interstate commerce”). The government

produced as evidence of possession: (1) Nickelous admitted attending a fraternity

party and having an altercation there; (2) his former classmate testified she heard a

gunshot at the party and then saw Nickelous, wearing a red sweatshirt, waving a

silver revolver; (3) two other people at the party—one a security guard and the other

a member of the Army National Guard—testified the shooter was wearing a red

sweatshirt; (4) a police officer testified that multiple partygoers reported a shooting

by a man wearing a red sweatshirt; (5) another officer, who found Nickelous 200 feet

The Honorable Linda R. Reade, United States District Judge for the Northern 1

District of Iowa.

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fromthe party (wearing a red sweatshirt), testified that he saw Nickelous drop a metal

object next to a pickup truck; (6) the officer testified that Nickelous refused to stop

when ordered; (7) the officer found a silver revolver in the spot where Nickelous

dropped the object; and (8) when officers apprehended Nickelous, his hand was

bleeding, and he said he had “gotten his ass kicked at the party.”

Nickelous questions his classmate’s credibility, arguing her testimony is biased

and based on “assumptions and prejudices.” However, “[t]his court does not weigh

the credibility of the witnesses or the evidence. The jury has the sole responsibility

to resolve conflicts or contradictions in testimony, and credibility determinations are

resolved in favor of the verdict.” United States v. Aldridge, 664 F.3d 705, 715 (8th

Cir. 2011) (internal citation omitted).

Nickelous also challenges the conviction because there was no physical

evidence. But “there is sufficient evidence to support a conviction for felon in

possession where a gun was immediately recovered from the location where the

defendant was observed dropping something.” United States v. Jefferson, 206 Fed.

Appx. 654, 655 (8th Cir. 2006). See United States v. Bailey, 831 F.3d 1035, 1039

(8th Cir. 2016) (holding evidence was sufficient where a firearm was recovered

“along the route” of defendant’s flight within 45minutes of his apprehension); United

States v. Light, 406 F.3d 995, 997-98 (8th Cir. 2005) (holding evidence was

sufficient where police “recovered a gun from the alley” where defendant was

apprehended even though no one saw him drop it or “kept an eye on the spot where

the gun was found”).

The district court did not err in finding the evidence sufficient to convict.

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II.

Nickelous argues the district court erred in excluding expert testimony on

eyewitness identification. “This court reviews the exclusion of expert testimony for

abuse of discretion.” United States v. Martin, 391 F.3d 949, 954 (8th Cir. 2004).

“Expert testimony is admissible only if 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.’” Id., quoting Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592

(1993); Fed. R. Evid. 702. The district court “has broad discretion” in balancing the

reliability and probative value of evidence “against its prejudicial effect.” United

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

Nickelous’s expert opined that there was “a high probability that without

conscious intent” and “ no intentional bias,” the classmate “misconstrued some other

object like a phone as a gun.” The district court excluded the proposed testimony

because it would not assist the trier of fact. “The evaluation of eyewitness testimony

is for the jury alone. It is the exclusive province of the jury to determine the

believability of a witness. . . . An expert is not permitted to offer an opinion as to the

believability or truthfulness of a victim’s story.” Id. at 884 (internal quotation marks

omitted). Defense counsel is “capable of exposing to the jury any potentially

unreliable bases underlying” the eyewitness identification “through cross

examination.” Id. 

The district court also excluded the evidence because its limited relevance was

outweighed by the danger of misleading the jury. As in Kime, “the district court

properly recognized the very real danger that the proffered expert testimony could

either confuse the jury or cause it to substitute the expert’s credibility assessment for

its own.” Id. The district court did not abuse its discretion in excluding the

testimony here, especially because the conviction did not rest solely on the

classmate’s eyewitnesstestimony. See United States v. Davis, 260 F.3d 965, 970 (8th

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Cir. 2001) (holding that, like here, the district court did not err by excluding an

eyewitness identification expert because this court is “especially hesitant to find an

abuse of discretion unless the government’s case against the defendant rested

exclusively on uncorroborated eyewitness testimony”).

* * * * * * * 

The judgment is affirmed.

ERICKSON, Circuit Judge, concurring.

I concur in the Court’s opinion but write separately to note an area of concern. 

During the two decades that have elapsed since we decided United States v. Kime,

99 F.3d 870 (8th Cir. 1996), significant developments have occurred in our

understanding of memory science. The American Psychological Association has

taken the position in amicus filings that the reliability of witness memory can be

influenced by many factors that may not be readily apparent to lay persons. See Brief

for American Psychological Association as Amicus Curiae Supporting Petitioner,

Perry v. New Hampshire, 565 U.S. 228 (2012)(No. 10-8974), 2011 WL 3488994;see

also Brief for American Psychological Association as Amicus Curiae Supporting

Appellant, Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) (No. 28 EAP 2011),

2011 WL 7784187. Cognitive psychologists have reminded courts that the popular

conception of memory is often incorrect, noting that when we “experience an

important event, we do not simply record it in our memory as a videotape recorder

would.” Elizabeth F. Loftus, et al., Eyewitness Testimony: Civil and Criminal § 2-2,

at 12 (4th ed. 2007). The relationship between eyewitness observations and the

reliability of testimony in legal systems has been an area of intense interest in recent

years and, as the science develops, so too will our application of the science. See,

e.g., United States v. Bartlett, 567 F.3d 901, 906 (7th Cir. 2009) (“It will not do to

reply that jurors know fromtheir daily lives that memory isfallible. The question that

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social science can address is how fallible, and thus how deeply any given

identification should be discounted.”).

I agree that, under the facts as developed in this case, the district court did not

abuse its discretion by excluding Dr. Maclin’s testimony. I note, however, that some

of our prior language in Kime may be overbroad in light of the developing science. 

District judges would be well served to consider each case individually and not rush

headlong into the conclusion that proffered expert testimony should be excluded in

all (or even most) cases because of its potential to confuse the jury, invade the

province of the jury, or because defense counsel is capable of exposing to the jury any

potentially unreliable bases underlying the eyewitness identification through cross

examination.

Current scientific evidence reveals at least a controversy over whether or not

the usual legal process for rooting out witness unreliability is satisfactory in the

context of eyewitnessidentifications without fully informing the jury of the nature of

memory—including through the use of expert testimony. As I believe the district

court inquiry regarding admissibility in each case must be individualized and based

on the facts actually presented, I simply note that district courts should consider

carefully all of the circumstances before exercising their discretion to exclude such

evidence. In this case, the district court developed a sufficient record to support its

exercise of discretion. Under other circumstances, it might well be a better exercise

of discretion to admit the proffered evidence.

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