     Case: 10-20818     Document: 00511660659         Page: 1     Date Filed: 11/09/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 9, 2011
                                     No. 10-20818
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

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.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 2   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.




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