                      United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                  ________________

                                     No. 04-1028
                                  ________________

United States of America,                   *
                                            *
             Appellee,                      *
                                            *       Appeal from the United States
      v.                                    *       District Court for the
                                            *       Eastern District of Arkansas
Rodricho Martin,                            *
                                            *
             Appellant.                     *

                                  ________________

                                  Submitted: September 14, 2004
                                      Filed: December 14, 2004 (Corrected: 1/4/05)
                                  ________________

Before LOKEN, Chief Judge, BEAM, and GRUENDER, Circuit Judges.
                            ________________

GRUENDER, Circuit Judge.

       Rodricho Martin appeals his convictions for interference with interstate
commerce by threats or violence, in violation of 18 U.S.C. § 1951, and for use of a
firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Martin argues
that the district court1 erred in (1) admitting unreliable eyewitness identifications, (2)
excluding the testimony of his expert on eyewitness identifications, (3) failing to


      1
       The Honorable George Howard, Jr., United States District Judge for the
Eastern District of Arkansas.
declare a mistrial because of two alleged violations of Doyle v. Ohio, 426 U.S. 610
(1976), and (4) prohibiting his attorney from arguing that a witness avoided a
mandatory life sentence by testifying. We affirm.

I. BACKGROUND

       On March 29, 2002, David Michael, the proprietor, and Gene Clay, an
employee, were working at Michael Motor Company, a used car dealership in Pine
Bluff, Arkansas. Around 10:00 or 10:30 a.m., three men entered the dealership and
asked Michael about purchasing and financing a car. The three men then left.

       Later that day, they returned. Larry Taggart and a man later identified as
Rodricho Martin accompanied Michael into the business office to complete credit
documents while the third man, Jason Taggart, remained in the car lot. Once inside,
Larry Taggart first discussed his creditworthiness with Michael and then excused
himself to use the restroom. Upon his return, Taggart hit Michael on the head with
a handgun and knocked him from his chair. The other inside assailant, Martin, began
fighting with Michael. The assailants struggled with Michael over a cash box and
telephone. At that point, Martin told Taggart to shoot Michael. Michael grabbed at
the gun in Taggart’s hands. The gun discharged into the ceiling, and Martin and
Taggart ran from the office. Michael was not shot, but he suffered hearing loss from
the gun discharge.

      The Pine Bluff Police Department’s investigation led to Jason and Larry
Taggart. Both Michael and Clay identified Jason Taggart in a photographic spread
on April 1, 2002. Michael also identified Larry Taggart, but Clay did not. The next
day, police arrested both Taggarts, who confessed to their involvement in the robbery
and implicated Martin as the third suspect.




                                         2
       Based on the Taggarts’ statements, Detective Henry Hudspeth and other police
officers went to Martin’s home and left a business card with a note asking him to
come to the police station. Martin appeared at the Pine Bluff Police Department on
April 2, 2002. An officer took a Polaroid photograph of Martin to be used in a
photographic spread shown to Michael and Clay. However, Martin refused to exhibit
a straight face for the camera and kept “bugging his eyes, making funny or strange
faces with his mouth and all.” Later that day, police showed the resulting photograph
to Michael and Clay in a six-picture photographic spread. Both Michael and Clay
stated that the picture of Martin resembled the third suspect, but neither were sure
because Martin’s facial contortions distorted his appearance.

      In August 2002, four months after the crime, police obtained a normal picture
of Martin from an Arkansas State Police database. Using the undistorted photograph
of Martin, they showed Michael and Clay another six-picture photographic spread.
Both Michael and Clay identified Martin without hesitation in this spread. Martin’s
photograph was the only one to occur in both of the photographic spreads shown to
Michael and Clay.

      A grand jury indicted Martin for one count of interference with interstate
commerce by threats or violence, in violation of 18 U.S.C. § 1951, and one count of
using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). A jury
convicted Martin of both counts. The district court sentenced Martin to consecutive
prison terms of 63 months on Count 1 and 120 months on Count 2, followed by three
years of supervised release.




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II. DISCUSSION

      A. Eyewitness Identifications2

       Martin argues that the pretrial photographic spreads from which Michael and
Clay identified him as the third robber were irreparably unreliable, rendering the
resulting eyewitness identifications inadmissible violations of due process. He
contends that presenting two spreads that shared only his picture was impermissibly
suggestive and that neither Michael nor Clay should have been allowed to identify
him as the third suspect. We disagree.

       This court reviews determinations of admissibility of evidence for abuse of
discretion. United States v. Kehoe, 310 F.3d 579, 590 (8th Cir. 2002). To determine
whether the identifications by Michael and Clay were unreliable, this court employs
the two-step analysis of Graham v. Solem, 728 F.2d 1533, 1541 (8th Cir. 1984).
Martin must first establish that the photographic spreads shown to Michael and Clay
were “impermissibly suggestive.” Id. (quoting Simmons v. United States, 390 U.S.
377, 384 (1968)). If the spreads were impermissibly suggestive, “the second inquiry
is whether, under the totality of the circumstances of the case, the suggestive
confrontation created ‘a very substantial likelihood of irreparable misidentification.’”
Graham, 728 F.2d at 1541 (quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977)).

      The photographic spreads used to identify Martin were not impermissibly
suggestive. In Armstrong v. Gammon, 195 F.3d 441 (8th Cir. 1999), this court held
that an out-of-court identification based on two six-person photographic spreads
sharing only a picture of the defendant was not impermissibly suggestive and that the

      2
       In this case, our analysis applies equally to the in-court identifications and out-
of-court photographic spread identifications of Martin by Michael and Clay. For this
reason, we use the terms “eyewitness identification” or “identification” to refer to
both in-court and out-of-court identifications.
                                            4
corresponding in-court identification was not unreliable. Id. at 445 (citing United
States v. Johnson, 56 F.3d 947, 954 (8th Cir. 1995)). The first photographic spread
in Armstrong contained a three-year-old picture of the defendant that the victim
tentatively identified as her attacker. The second photographic spread, presented
three days later, contained a photograph of the attacker taken after his arrest, and the
victim identified the defendant without hesitation. As in Armstrong, the witnesses
in this case thought a picture in the first spread resembled the suspect but could not
make a positive identification because of some distortion. When an undistorted
picture was presented later, both witnesses confidently identified the suspect.

       The spreads in this case are less suggestive than those in Armstrong. First, in
Armstrong, only three days separated the display of the two spreads to the witness.
In this case, a full four months passed between the review of the two spreads,
lessening any suggestive tendency. Second, Martin’s intentional facial contortions
likely created more distortion than the three years of aging between the photographs
in the Armstrong spreads. Following Armstrong, we conclude that the photographic
spreads in this case were not impermissibly suggestive.

       Even if the spreads were impermissibly suggestive, they would not have
created a substantial likelihood of irreparable misidentification. To determine
whether an identification procedure would create a substantial likelihood of
irreparable misidentification, we consider factors such as “the opportunity of the
witness to view the suspect during the commission of the crime; the witness's degree
of attention; the accuracy of the witness's prior description of the suspect; the level
of certainty demonstrated by the witness at the confrontation; and the length of time
between the crime and the confrontation.” Brodnicki v. City of Omaha, 75 F.3d 1261,
1265 (8th Cir. 1996) (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).

      Applying these factors to this case, we conclude that the two photographic
spreads with Martin’s picture did not create a substantial likelihood of irreparable

                                           5
misidentification. Michael and Clay each had a significant opportunity to view
Martin both during his first visit to the car lot as a potential customer and later during
his participation in the crime. Indeed, Michael struggled with Martin in close
proximity and with good reason for heightened attention. Although both Michael and
Clay were hesitant to identify Martin as the third robber because of his contorted face
in the first spread, both were certain of their identifications in the second spread.
There is no reason to believe that the four months between the robbery and their
viewing of the second spread would diminish their ability to identify a man who had
violently attempted to rob them.

       For these reasons, we hold that the photographic spreads shown to Michael and
Clay were not impermissibly suggestive and did not create a substantial likelihood of
irreparable misidentification. The trial court committed no error in allowing Michael
and Clay to identify Martin as the third suspect.

      B. Expert Testimony

       Prior to trial, the district court held a hearing to determine whether Martin
could present to the jury expert testimony on eyewitness identification from Edward
Geiselman, Ph.D. Dr. Geiselman testified about his qualifications, the scientific
validity of his field, and the assistance his testimony might provide to jurors in
evaluating the accuracy of eyewitness identifications. Martin contends that the
district court erred in not allowing Dr. Geiselman to testify at trial as an expert on
eyewitness identification. We disagree.

       This court reviews the exclusion of expert testimony for abuse of discretion.
United States v. Rose, 731 F.2d 1337, 1345 (8th Cir. 1984). 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.” Daubert v.
Merrell Dow Pharm., 509 U.S. 579, 592 (1993); Fed. R. Evid. 702. We need not

                                            6
consider whether Dr. Geiselman proffered scientific knowledge, as we hold that the
district court did not abuse its discretion because his testimony would not have
substantially aided the jury in understanding or determining a fact in issue. See
Daubert, 509 U.S. at 591.

       Dr. Geiselman’s proffered testimony related only to the general reliability of
eyewitness identifications. He would not have offered an opinion as to the reliability
of either Michael’s or Clay’s identifications of Martin. The general reliability of
eyewitness identification is a matter of common understanding. In fact, the district
court specifically instructed the jury to weigh the strength of Michael’s and Clay’s
eyewitness identifications by considering various reliability-related factors, including
the length of time the witness observed the person, the prevailing conditions such as
distance and visibility, and the strength of later identifications. See United States v.
Kime, 99 F.3d 870, 884 (8th Cir. 1996) (“The advisory committee’s notes [to Fed. R.
Evid. 702] make it clear that when the layman juror would be able to make a common
sense determination of the issue without the technical aid of such an expert, the expert
testimony should be excluded as superfluous.”); United States v. Harris, 995 F.2d
532, 535 (4th Cir. 1993) (affirming the exclusion of proffered eyewitness
identification expert testimony because “jurors using common sense and their
faculties of observation can judge the credibility of an eyewitness identification,
especially since deficiencies or inconsistencies in an eyewitness’s testimony can be
brought out with skillful cross-examination”).

       In addition, the eyewitness identifications of Martin by Michael and Clay were
fully corroborated by the Taggarts’ testimony against Martin. This corroborating
evidence provided by Martin’s co-conspirators further supports the district court’s
decision to exclude Dr. Geiselman’s testimony. See United States v. Davis, 260 F.3d
965, 970 (8th Cir. 2001) (holding that the district court did not err by excluding an
eyewitness identification expert because “we are ‘especially hesitant to find an abuse
of discretion unless the government’s case against the defendant rested exclusively

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on uncorroborated eyewitness testimony’”) (quoting United States v. Blade, 811 F.2d
461, 465 (8th Cir. 1987)).

      Thus, the district court did not err in excluding Dr. Geiselman’s testimony.

      C. Alleged Doyle Violations

       During direct examination of Detective Hudspeth, the prosecution asked him
when he first became aware that the Polaroid of Martin was shown in a photographic
spread to Michael and Clay. Detective Hudspeth responded, “After I read Rodricho
Martin his rights and he wanted a lawyer.” Martin’s attorney objected and moved for
a mistrial on the ground that the statement was an improper reference to Martin’s
invocation of his right to counsel. The district court refused to grant a mistrial but
offered to give a curative instruction, which Martin’s attorney refused. Later during
direct examination, Detective Hudspeth again mentioned that Martin asked for a
lawyer. Martin’s attorney again moved for a mistrial, which the district court denied.

       Martin argues that Detective Hudspeth’s references to his invocation of his
right to counsel after a Miranda warning constituted reversible error under Doyle v.
Ohio, 426 U.S. 610 (1976). We disagree.

       To determine whether a putative Doyle violation constitutes reversible error,
we first ask whether a Doyle violation occurred, and, second, whether that violation
was harmless beyond a reasonable doubt. United States v. Burns, 276 F.3d 439, 441-
42 (8th Cir. 2002). We need not address the first part of this analysis, because even
if we assume that Detective Hudspeth’s statements violated Martin’s rights under
Doyle, we hold that those alleged violations would have been harmless beyond a
reasonable doubt.




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       We use the following factors to determine whether a Doyle violation was
harmless beyond a reasonable doubt: “whether the government made repeated Doyle
violations, whether any curative effort was made by the trial court, whether the
defendant’s exculpatory evidence is ‘transparently frivolous,’ and whether the other
evidence of the defendant’s guilt is ‘otherwise overwhelming.’” Bass v. Nix, 909
F.2d 297, 305 (8th Cir. 1990); see also Vick v. Lockhart, 952 F.2d 999, 1002 (8th Cir.
1991).

       This case is similar to United States v. Wiley, 29 F.3d 345, 349-50 (8th Cir.
1994). In Wiley, the defendant testified that he was in the “wrong place at the wrong
time,” and gave an explanation of the events surrounding his arrest for cocaine
possession that this court considered “fraught with incredible elements.” Id. at 350.
This court held that, despite three conceded Doyle violations for which no curative
actions were taken, the evidence was so overwhelming and the defense so frivolous
that the errors were harmless.

       Comparing the application of the Bass factors in the instant case to their
application in Wiley, we conclude that the alleged Doyle violations here are harmless
beyond a reasonable doubt. With respect to the first two Bass factors, in Wiley the
prosecution conceded three Doyle violations; in the instant case, there are two alleged
violations. In this case, the court offered to give a curative instruction; in Wiley, no
curative instruction was offered.

       With respect to the third Bass factor, in Wiley the defendant at least offered an
alternative explanation of the relevant events. Martin offered no alibi and no rebuttal
of the prosecution’s evidence of his participation in the robbery. The only
exculpatory evidence presented by Martin was his father’s testimony concerning the
“bad blood” between the Taggarts and Martin. We find that this defense is
“transparently frivolous” for purposes of the Bass harmless-error analysis. See, e.g.,
United States v. Grant, 17 F.3d 935, 944 (7th Cir. 1994) (“[T]he less believable the

                                           9
defense, . . . the more likely the conclusion that the constitutional error did not
contribute to the conviction.”) (quotation omitted).

       The final Bass factor is whether the evidence of guilt was otherwise
overwhelming. Two eyewitnesses and both co-conspirators identified Martin as the
third robber. In his brief, even Martin admits that “[i]f the testimony of both co-
defendants [is] taken as truth and the identifications of Michael and Clay are received
as undeniable, then the evidence against the defendant was overwhelming.” The
testimony of two co-conspirators along with two eyewitness identifications
constitutes overwhelming evidence of Martin’s guilt. See United States v. Turner,
966 F.2d 440, 442-43 (8th Cir. 1992) (holding repeated Doyle violations harmless in
light of overwhelming evidence of guilt).

      Based on our application of the Bass factors, we hold that, assuming without
deciding that Detective Hudspeth’s statements violated Doyle, these errors would be
harmless beyond a reasonable doubt.

      D. Limitation on Closing Argument

      Martin argues that the district court committed reversible error by prohibiting
counsel from arguing during closing that Larry Taggart avoided a mandatory life
sentence by testifying against him. We disagree.

       This court reviews rulings on the conduct of closing arguments for abuse of
discretion. United States v. Flynn, 196 F.3d 927, 930 (8th Cir. 1999). We afford
district courts “broad discretion in controlling closing arguments and will not reverse
a conviction absent a showing of abuse of discretion.” United States v. McGuire, 45
F.3d 1177, 1189 (8th Cir. 1995). Even if the district court erred in refusing to allow
Martin’s attorney to argue certain inferences during his closing argument, this court
will not reverse if the error was harmless. Fed. R. Crim. P. 52(a); see also Cochenour

                                          10
v. Cameron Savings and Loan, F.A., 160 F.3d 1187, 1190-91 (8th Cir. 1998) (holding
that the district court’s refusal to allow plaintiff’s attorney to address a particular
issue in his closing argument was harmless error); United States v. Daniele, 886 F.2d
1046, 1052-53 (8th Cir. 1989) (holding that the district court erred in excluding
testimony offered to impeach a Government witness, but that error was harmless
because the defendant was able to thoroughly cross-examine the witness on the same
subject).

      Larry Taggart admitted on cross-examination that he initially told police that
Martin held the gun during the robbery attempt but changed his story after accepting
a plea bargain and agreeing to testify. He also admitted that he had two prior
convictions for residential burglary which he believed to be crimes of violence.
Martin’s attorney sought to establish that Taggart changed his story to conform to
Michael’s account of the robbery in order to avoid a life sentence under the so-called
“three strikes” law. Martin’s attorney asked Taggart, “They told you that you were
an armed career criminal and subject to three strikes if you didn’t cut a deal, didn’t
they?” Taggart answered, “No, sir.” In further cross-examination, Taggart then
admitted that the prosecution agreed to dismiss a firearm charge carrying a ten-year
mandatory minimum sentence under 18 U.S.C. § 924(c) as part of its plea agreement
with him.

        During an in-chambers conference prior to closing arguments, the prosecution
objected to Martin’s attorney’s plan to argue that Taggart changed his story to avoid
a life sentence. The parties discussed whether Taggart was eligible for sentencing as
an “armed career criminal” or subject to a life sentence based on the “three strikes”
provision.3 The prosecution argued that Taggart could not have been charged as an

      3
        The armed career criminal statute, 18 U.S.C. § 924(e), provides for a
mandatory minimum sentence of 15 years’ imprisonment for anyone convicted under
18 U.S.C. § 922(g) who has three previous violent felony or serious drug convictions.
See, e.g., United States v. Menteer, 350 F.3d 767, 768 (8th Cir. 2003) (holding that
                                          11
armed career criminal.4 Martin’s attorney responded that Taggart “had two strikes
against him, this is a third strike,” but the district court sustained the prosecution’s
objection.

      Before addressing the merits of Martin’s claim, we disagree with the
prosecution’s claim that the “three strikes” issue was not preserved for appeal.
Although Martin’s attorney confused the basis for his argument with repeated
references to the armed career criminal statute, his references to the three strikes
provision were sufficient to preserve his objection.

       The district court sustained the prosecution’s objection because it would not
permit the jury to “deliberate on conjecture and speculation.” It is unclear from the
record whether the cited speculation concerned Taggart’s eligibility for a life sentence
or Taggart’s knowledge of his eligibility for a life sentence. If the speculation
concerned Taggart’s knowledge, then we cannot say that it was an abuse of discretion
to exclude an argument that Taggart was induced to change his story to avoid a life
sentence. Taggart testified that he was not told that he was subject to the three strikes
provision if he did not accept the plea agreement, and nothing else in the record
indicates that the parties contemplated the possibility that the agreement avoided a
life sentence for Taggart. See United States v. Warfield, 97 F.3d 1014, 1021 (8th Cir.


the defendant was properly sentenced as an “armed career criminal” under § 924(e)).

        The three-strikes sentencing enhancement of 18 U.S.C. § 3559(c) provides for
a life sentence upon a third conviction for certain serious violent crimes. See, e.g.,
United States v. Williams, 308 F.3d 833, 835 (8th Cir. 2002) (referring to the “three-
strikes enhancement” under 18 U.S.C. § 3559).
      4
        The prosecution argued that it could not charge Taggart as an armed career
criminal because the gun had not been recovered. Without the gun, the prosecution
argued that it could not prove that the gun had been shipped or transported in
interstate commerce, as required by 18 U.S.C. § 922(g).
                                           12
1996) (holding that the district court did not abuse its discretion by prohibiting
defense counsel from arguing claims that were not supported by the record).

       Even if we were to find error in excluding this argument, we would hold that
any error was harmless. The evidence of Martin’s guilt was overwhelming, and
Martin’s attorney fully explored a significant inducement for Taggart’s testimony by
establishing that the prosecution had agreed to dismiss a firearms charge with a
mandatory minimum ten-year sentence in return for Taggart’s cooperation. Cf.
United States v. Beckman, 222 F.3d 512, 524 (8th Cir. 2000) (holding that the critical
factors in determining whether a limitation of cross-examination violated the
Confrontation Clause are “whether defendant had other means available to obtain the
same effect as the excluded inquiry,” and whether a reasonable jury would have
“received a significantly different impression of a witness’s credibility had counsel
been permitted to pursue the proposed line of cross-examination”).

III. CONCLUSION

      For these reasons, we affirm Martin’s convictions.




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