                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1007
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                James Robert Dowty

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Rapid City
                                    ____________

                           Submitted: February 14, 2020
                               Filed: July 6, 2020
                                 ____________

Before LOKEN, BENTON, and KELLY, Circuit Judges.
                           ____________

KELLY, Circuit Judge.

       A jury convicted James Dowty of second-degree murder and discharging a
firearm during a crime of violence. These charges arose from a shooting on the Pine
Ridge Reservation in South Dakota. Dowty appeals several rulings from the district
court.1 Because we find no basis for reversal, we affirm.

                                   I. Background

       The grand jury indicted Dowty on one count of second-degree murder in
violation of 18 U.S.C. § 1111 and one count of discharging a firearm during the
commission of a crime of violence under 18 U.S.C. § 924(c)(1)(A)(iii). The
government alleged that, shortly after 3:00 a.m. on July 20, 2016, Dowty shot and
killed 14-year-old T.C. while she was walking along a street with three friends:
Donovan Youngman, age 19; A.R.C., age 17; and R.O., age 15.

       Dowty proceeded to trial, where R.O. was the first to testify. She explained
that, shortly after midnight on July 20, 2016, she drank alcohol with T.C., A.R.C., and
Youngman. She and T.C. also smoked marijuana and consumed Robitussin. At
around 3:00 a.m., the four friends began walking along a street in Pine Ridge. She
told the jury, “It wasn’t pitch black. You could see because of the street lights.” As
the group walked, R.O. observed someone walking ahead of them wearing red shoes,
shorts, and a backpack. R.O. testified that Dowty often wore a backpack. The group
made a turn by cutting through a parking lot, and the person ahead turned that
direction as well.

       R.O. identified James Dowty as the person walking in front of the group. She
was “certain” it was him because she saw his face and because she and Dowty are
related. As the friends walked, T.C. asked whether the person was Dowty’s brother
“Joe Joe,” but R.O. explained it was James because Joe Joe is “smaller.” R.O.,
however, did not clearly identify Dowty in the courtroom as the person she had seen


      1
       The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.

                                         -2-
that night. She instead testified that one of Dowty’s older Facebook photos, admitted
into evidence at trial, depicted the person she saw.

       R.O. also testified that Youngman and A.R.C. skipped rocks in Dowty’s
direction but did not hit him. This caused Dowty to turn twice towards the group.
As he turned the second time, he held a gun in his hands. He fired the gun, striking
and ultimately killing T.C. R.O. again confirmed she was “certain” Dowty was the
shooter because she recognized his face before he pulled the trigger.

       Youngman’s trial testimony was similar to R.O.’s. Before the gunshot, he
noticed the shooter wore red, or red and white, shoes; a hat; a black hooded
sweatshirt; and a backpack. Youngman recognized the person as Dowty because he
had seen him in Pine Ridge. Youngman testified that A.R.C. threw a rock towards
Dowty without hitting him. Dowty then turned around twice, the second time
shooting T.C. Youngman explained that streetlights were illuminated at the time. He
identified Dowty in the courtroom as the shooter.

       On cross-examination, Youngman acknowledged that he initially told law
enforcement he was not sure what the shooter was wearing and did not identify the
shooter as Dowty, but rather referred to the shooter as simply “that guy.” He also
admitted that in September 2016, about two months after the shooting, he told
officers that he did not see the shooter’s face. He confirmed that he previously told
officers the shooter looked like “a little kid” as he walked.

       A.R.C. also testified at trial. He noticed the shooter’s red shoes, black hooded
sweatshirt, hat, backpack, and shorts. Before the shooting, as the friends cut through
the parking lot and passed near the shooter, A.R.C. recognized him as Dowty. A.R.C.
admitted he threw rocks near Dowty. He saw Dowty turn around twice, firing a
gunshot the second time and hitting T.C. He identified Dowty in court as the person
who shot T.C.

                                         -3-
      On cross-examination, A.R.C. agreed he had told responding officers that the
shooter wore a white T-shirt, black hat, low-top Nike shoes, blue jean shorts and
white ankle socks. He admitted he never told officers the shooter wore a black
hoodie. He further agreed he told officers that he did not really know Dowty and had
seen him just once before.

       Trina Andrews and Michelle Alexander also testified. They were driving
together near the area when T.C. was shot. A young man flagged them down, asked
if they had a phone, and explained that his friend had been shot. Andrews called 911
and relayed the dispatcher’s questions to the teenagers. When Andrews asked who
the shooter was, R.O. responded, “It’s Jimmy Dowty!” Alexander told the jury that
the area was well lit by streetlights.

       Two agents testified about their investigation. FBI Special Agent Matthew
Thatcher said he found a pair of red Nike low-top shoes, two black backpacks, black
denim shorts, a red and black ball cap, and a black ball cap in Dowty’s bedroom.
These were admitted into evidence. Bureau of Indian Affairs Special Agent Theodore
Thayer testified about measurements taken at the scene. He explained officers found
a shell casing approximately 226 feet from where T.C. was hit. Neither the bullet nor
the gun was ever found.

       The forensic pathologist who conducted T.C.’s autopsy, Dr. Donald Habbe,
also testified. He observed a gunshot wound to T.C.’s abdomen consistent with being
shot from 50 to 70 yards. The wound was caused by a 9 mm bullet, generally
matching the shell casing from the scene.

       The defense called Paul Michel, O.D., who testified about “the eye as a sensory
organ” and factors affecting eyewitness identification. Considering lighting, distance,
and movement in a hypothetical setting like where T.C. was shot, Dr. Michel opined
that “identification to the exclusion of all other persons . . . couldn’t happen.” On

                                         -4-
cross-examination, Dr. Michel acknowledged his opinion did not account for an
eyewitness who had prior experience with the person they identified.

       In rebuttal, the government called Oglala Sioux Tribe Police Officer Jesse
Brewer, who responded to the scene of the shooting. He testified that overhead lights
were illuminated where the crime occurred. The district court admitted footage from
Brewer’s body camera that captured the scene as he first arrived. Brewer said the
recording was not enhanced and accurately showed the street as it was that night.

       Trial concluded on May 5, 2017, with the jury convicting Dowty on both
counts. Dowty subsequently filed a motion for judgment of acquittal under Federal
Rule of Criminal Procedure 29 and a motion for new trial under Rule 33(a). The
district court denied both motions by written order. The court later sentenced Dowty
to 360 months in prison and five years of supervised release.

                                   II. Discussion

      Dowty raises four issues on appeal. We address each in turn.

                                          A.

       Dowty first argues the district court erred by denying his Rule 33(a) motion for
a new trial. The court concluded the weight of the evidence was not so strongly in
favor of acquittal that the jury’s verdicts may have been a miscarriage of justice. We
will reverse the district court’s Rule 33(a) ruling only if it is “a clear and manifest
abuse of discretion.” United States v. Amaya, 731 F.3d 761, 764 (8th Cir. 2013).

      “Upon the defendant’s motion, the court may vacate any judgment and grant
a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). When
considering a motion for a new trial, the district court may “weigh the evidence,

                                         -5-
disbelieve witnesses, and grant a new trial even where there is substantial evidence
to sustain the verdict.” Amaya, 731 F.3d at 764.

        Despite the broad discretion district courts enjoy under Rule 33(a), there are
“limits,” and the courts “must exercise the Rule 33 authority sparingly and with
caution.” Id. (cleaned up). New-trial motions “based on the weight of the evidence
are generally disfavored.” United States v. Camacho, 555 F.3d 695, 705 (8th Cir.
2009). “A district court may grant a new trial for insufficiency of the evidence only
if the evidence weighs heavily enough against the verdict that a miscarriage of justice
may have occurred.” United States v. Delacruz, 865 F.3d 1000, 1006 (8th Cir. 2017).
A court “should not grant a motion for a new trial simply because it would have
reached a different verdict.” United States v. Bertling, 510 F.3d 804, 808 (8th Cir.
2007).

       Dowty argues the evidence against him was “not overwhelming.” He
maintains the government’s case rested on the identification testimony of three
witnesses who admittedly had been consuming alcohol and controlled substances on
the night in question. Dowty faults the district court’s Rule 33(a) analysis for not
recognizing “differences” in the eyewitness accounts and “how their stories changed”
over time. He also relies on his own expert’s testimony that, under the circumstances,
it would be impossible to identify the shooter “to the exclusion of all other persons.”
Dowty suggests the district court applied the wrong standard to decide his Rule 33(a)
motion when it held that “the weight of the evidence” is not sufficiently in favor of
acquittal such that the jury’s verdict was “a miscarriage of justice.”

       The district court did not abuse its discretion. While Dowty believes the
district court misapplied the law, the court expressly followed our precedent by
weighing the evidence and assessing the credibility of the witnesses before deciding
the evidence was not so strongly in favor of acquittal that the jury’s verdicts may have
been a miscarriage of justice. See Delacruz, 865 F.3d at 1006; Amaya, 731 F.3d at

                                          -6-
764. Consistent with our case law, the court explained it would “not grant a motion
for a new trial simply because it would have reached a different verdict.” See
Bertling, 510 F.3d at 808.

       Dowty essentially challenges the weight of the government’s identification
evidence. As explained above, this type of claim is “generally disfavored.” See
Camacho, 555 F.3d at 705. Three witnesses testified that they saw Dowty shoot T.C.
All said they recognized him from previous encounters. R.O. and Youngman both
explained that they saw Dowty’s face. Officer Brewer testified that the area where
the teenagers saw Dowty was “highly illuminated.” Trina Andrews and Michelle
Alexander, who attempted to help T.C. at the scene, corroborated this testimony.
When Andrews asked who shot T.C., R.O. shouted “It’s Jimmy Dowty!” Even
granting that the teenagers were under the influence of alcohol and controlled
substances, their testimony was not without support.

       The three teenagers also testified consistently in material ways. They provided
consistent details about Dowty’s appearance and actions, as well as other details, such
as A.R.C.’s throwing rocks towards Dowty. Objective physical evidence supported
their testimony. The shooter’s items of clothing that the three witnesses
described—black backpack, dark hats, and red and white shoes—were found in
Dowty’s bedroom. Moreover, Dowty was able to cross-examine the teenagers about
any inconsistencies in their testimony and about whether their accounts had changed
over time. While the government’s case might not have been “overwhelming,” we
cannot say the district court’s decision to deny a new trial was a clear and manifest
abuse of discretion. See Amaya, 731 F.3d at 764; see also Delacruz, 865 F.3d at 1006
(affirming denial of Rule 33(a) motion where certain witnesses “were motivated by
the potential for leniency, were memory-impaired from past drug use, and provided
some inconsistent statements” because they “told a consistent narrative” of the
defendant’s conduct).



                                         -7-
                                           B.

       Dowty next argues the district court erred by allowing three of the
government’s witnesses to meet before trial. Prior to jury selection, the government
asked that Youngman, A.R.C., and R.O. be allowed to meet because A.R.C. was
“struggling emotionally” and wanted to see his friends. A.R.C. was in custody on
unrelated charges. Dowty objected, but the district court permitted the teenagers to
meet for ten minutes before trial. The court instructed Dowty’s defense investigator,
deputy marshals, and the government’s witness coordinator to supervise the meeting
and ensure the witnesses made “no suggestion of any kind, direct or indirect, about
any matters connected to the case whatsoever.” During the meeting, A.R.C. stated
that law enforcement said T.C.’s death was his fault. At this, the supervisors ended
the meeting. As everyone was leaving the room, Youngman told A.R.C., “Don’t
worry, we got this Bro.”

       We review “a district court’s rulings regarding sequestration orders for abuse
of discretion, granting wide latitude to the court and requiring the moving party to
show prejudice.” Camacho, 555 F.3d at 702. Dowty has not shown the district court
abused its discretion by allowing the three witnesses to meet. Indeed, given that the
brief meeting was supervised by the defense investigator, deputy marshals, and the
government’s witness coordinator, and the district court’s order that the witnesses not
directly or indirectly speak about the case, the court did not breach its “wide latitude”
by allowing the meeting. See id.

       Even if the district court abused its discretion, Dowty has not shown resulting
prejudice. See id. He contends Youngman’s statement to A.R.C., “Don’t worry, we
got this Bro,” affected his substantial rights. The district court carefully considered
this argument—which Dowty did not bring to its attention until after trial—and
decided “it is entirely unclear what [e]ffect [Youngman’s statement] had on any trial
testimony. Defense counsel had a full opportunity to cross-examine A.R.C. and

                                          -8-
Youngman on their alleged statements,” but chose not to do so. This undermines
Dowty’s claim that the incident caused prejudice. Dowty speculates that Youngman’s
statement shows a covert agreement among the witnesses to testify against him at
trial, but he offers nothing else to support this conclusion. Given these
circumstances, Dowty has not demonstrated reversible error. See id.

                                           C.

       Dowty also challenges the district court’s final instructions to the jury. Dowty
did not submit proposed jury instructions to the district court. At the pretrial
conference, he made no objections to the court’s proposed instructions, including
those related to witness credibility. The court instructed the jury generally on the
credibility of witnesses based on Eighth Circuit Model Criminal Instruction § 3.04.
The court told the jury to consider, among other things, the witness’s opportunity to
“see or hear the things testified about,” whether the witness said “something different
at an earlier time,” the witness’s “drug or alcohol use,” and the “extent to which the
testimony is consistent with any evidence that you believe.” See 8th Cir. Model
Crim. Jury Instr. § 3.04 (2017) (“Credibility of Witnesses”). On appeal, Dowty
argues the district court plainly erred by not giving a more specific instruction on
eyewitness testimony. See 8th Cir. Model Crim. Jury Instr. § 4.08 (2017)
(“Eyewitness Testimony”).

       The trial court “has wide discretion in formulating the jury instructions.”
United States v. Blazek, 431 F.3d 1104, 1109 (8th Cir. 2005). We review for plain
error the failure to give an instruction not requested at trial. United States v. Larsen,
427 F.3d 1091, 1095 (8th Cir. 2005). To prevail, a defendant must show plain error
that affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993).
When the jury instructions, “taken as a whole, fairly and adequately submitted the
issues to the jury,” there is no plain error. United States v. Banks, 706 F.3d 901, 908
(8th Cir. 2013).

                                          -9-
        Dowty contends the general witness-credibility instruction did not adequately
guide the jury’s assessment of the eyewitness testimony. See 8th Cir. Model Crim.
Jury Instr. § 3.04. He notes that Model Instruction § 4.08 provides additional factors
for the jury to consider when specifically judging the credibility of eyewitnesses.
These include the “length of time the witness had to observe the person,” the
“prevailing conditions at the time in terms of visibility or distance,” whether the
witness “had known or observed the person at earlier times,” and whether the witness
“made an identification that was inconsistent with the witness’s identification at
trial.” See 8th Cir. Crim. Jury Instr. § 4.08. Model Instruction § 4.08 also cautions
that the jury that it “must be satisfied beyond a reasonable doubt of the accuracy of
the identification of the defendant before you may find him guilty.” See id.

       Dowty relies on United States v. Mays, 822 F.2d 793 (8th Cir. 1987), to argue
for reversal. In Mays, we said it is “reversible error for a trial court to refuse [a more]
specific jury instruction where the government’s case rests solely on questionable
eyewitness identification.” Mays, 822 F.2d at 798. But Mays is distinguishable in
two ways. First, Dowty did not ask for a more specific instruction, so the district
court did not “refuse” one. See id. Second, the government’s case did not rest
“solely on questionable eyewitness identification.” See id. Dowty raised credibility
concerns, but the three people present during the shooting identified the shooter by
name as someone they recognized from previous encounters. First responders
supported crucial portions of the eyewitness testimony, including that overhead lights
were illuminated where T.C. was shot.

       Moreover, there is no error where the district court’s instructions “adequately
pointed out the relevant considerations to be weighed in gauging eyewitness
testimony.” United States v. Grey Bear, 883 F.2d 1382, 1388 (8th Cir. 1989). While
Model Instruction § 4.08 gives the jury more specific guidance, Model Instruction
§ 3.04 addressed Dowty’s concerns about the teenagers’ opportunity to “see or hear
the things testified about,” whether they said “something different at an earlier time,”

                                           -10-
their “drug or alcohol use,” and the “extent to which the testimony is consistent with
any evidence” the jury believed. See 8th Cir. Crim. Jury Instr. § 3.04. As a result,
there was no plain error. See Grey Bear, 883 F.2d at 1388.

                                           D.

       Lastly, Dowty contends the district court abused its discretion by denying his
request for the jury to view the area where T.C. was shot. Dowty wanted the jury to
go to the scene “at a time and under similar lighting conditions as existed at the time
of the shooting at approximately 3:58 a.m. on the morning of July 20, 2016.” The
district court denied this request in part because it “could bring in information that is
extraneous to any issue in the case.”

       The district court has inherent power to permit a jury to view places or objects
outside the courtroom. United States v. Triplett, 195 F.3d 990, 999 (8th Cir. 1999).
The court’s decision “to allow or disallow a jury viewing of an alleged crime scene
is highly discretionary.” Id. A district court does not abuse its discretion by denying
a viewing request when it would be “time-consuming and cumulative of photographic
evidence and the testimony presented at trial.” United States v. Scroggins, 648 F.3d
873, 875 (8th Cir. 2011) (cleaned up).

       Dowty contends that, because the government’s case relied on the credibility
of the three eyewitnesses, the district court’s decision to deny his viewing request
impeded his ability to confront those witnesses under the Confrontation Clause.
Dowty is wrong. The Sixth Amendment’s Confrontation Clause “bars the admission
of testimonial hearsay unless the declarant is unavailable and the defendant has had
a prior opportunity for cross examination.” United States v. Clifford, 791 F.3d 884,
887 (8th Cir. 2015) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). Dowty
does not identify any witness he was unable to cross examine. Indeed, he



                                          -11-
acknowledges that he “vigorously” contested the eyewitnesses’ identification
testimony.

      We cannot say that the district court abused its discretion by denying the
viewing request. This would have required jurors to travel approximately 90 miles
each way from Rapid City to Pine Ridge and to be present between 3 and 4 a.m.
Moreover, there was no assurance the jury would have encountered a sufficiently
similar scene, and the district court was concerned that such a viewing might also
“bring in information that is extraneous to any issue” in the case. Because the court
admitted testimony from numerous eyewitnesses—not limited to the three
teenagers—about the conditions on the night of the shooting, as well as photographs
and video depicting the scene, it decided Dowty’s request would be “time-consuming
and cumulative of photographic evidence and the testimony presented at trial.” See
Scroggins, 648 F.3d at 875 (cleaned up). There was no abuse of discretion.

      We affirm the district court’s judgment.
                      ______________________________




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