                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-25-1994

USA v. Brink
Precedential or Non-Precedential:

Docket 93-3397




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                     ___________

                     No. 93-3397
                     ___________


               UNITED STATES OF AMERICA

                          v.

                 WILLIAM HARRY BRINK,
                                 Appellant

   _______________________________________________

   On Appeal from the United States District Court
      for the Western District of Pennsylvania
            (D.C. Criminal No. 93-00035)
                 ___________________


                Argued April 13, 1994

Before:   BECKER, MANSMANN and SCIRICA, Circuit Judges

               (Filed Otober 27, 1994)


               ALEXANDER H. LINDSAY, JR., ESQUIRE (Argued)
               Lindsay, Lutz, Jackson, Pawk & McKay
               408 North Main Street
               Butler, Pennsylvania 16001

                 Attorney for Appellant


               PAUL J. BRYSH, ESQUIRE (Argued)
               Office of United States Attorney
               633 United States Post Office & Courthouse
               Pittsburgh, Pennsylvania 15219

                 Attorney for Appellee
                          __________________

                        OPINION OF THE COURT
                         __________________


SCIRICA, Circuit Judge.



            William Harry Brink appeals his conviction for bank

robbery.    Brink contends the government violated his Sixth

Amendment right to counsel by placing him in a cell with a known

informant in a deliberate attempt to elicit self-incriminating

statements.    He also contends the district court erred by

allowing him to introduce an eyewitness' prior identification

only for impeachment purposes, rather than as substantive

evidence.    Although Brink has made a colorable Sixth Amendment

claim, the record before us is inadequate to resolve it because

the district court denied Brink's request for an evidentiary

hearing.    Therefore, we will vacate the judgment of conviction

and sentence and remand for an evidentiary hearing to decide that

issue.
                       I. Facts and Procedure

            On December 16, 1992, a masked gunman robbed the

Farmers National Bank in East Brady, Pennsylvania and stole

$4,434.00 in cash.    Brink was arrested for the crime and charged

with bank robbery, 18 U.S.C. § 2113(a) (1988); armed bank

robbery, id. § 2113(d); and use of a firearm in a crime of
violence, id. § 924(c).

            Before trial, Brink was confined to Clarion County

prison where he shared a cell with Ronald Scott.    After learning
Scott was scheduled to testify at his trial, Brink discovered

Scott had been an informant for the Pennsylvania State Police and

the Federal Bureau of Investigations on five previous occasions.

Brink requested a pre-trial evidentiary hearing to determine

Scott's involvement with the State Police and the FBI.   The court

denied Brink's motion.   At trial, Scott testified that, while in

Clarion County prison, Brink confessed to committing the bank

robbery and admitted to manufacturing an alibi.

          The principal eyewitnesses at trial were Annette Miller

and Marilyn Ann Simpson, two bank tellers on duty at the time of

the robbery, who identified Brink as the robber after testifying

that they knew him both as a customer and from prior

associations.   They based their identifications on the visible

parts of his face, his mannerisms and his voice.   Miller stated

that although she got a good look at his eyes, she could not

remember what color they were.    An FBI agent, however, testified

that the day after the robbery, Miller told him the robber had

dark eyes.1

          The prosecution also introduced photographs taken by

bank surveillance cameras,2 testimony that Brink had been seen

with stacks of money the night after the robbery, and evidence




1
.   Brink has light hazel eyes.
2
 . The pictures taken were inconclusive as to the robber's
identity.
that $220 was found in the sofa of a house where Brink had been

doing construction work during the week of the robbery.3

            In defense, Brink offered the testimony of John Olcus,

his neighbor, and Natalie Reefer, a mail carrier.     Olcus

testified that he saw Brink at his house at or near the time of

the robbery.4   Reefer, who did not know Brink but was standing

with Olcus when a car drove up to Brink's home around the time of

the robbery, testified that she saw a red Subaru drive up to

Brink's house and that Olcus told her Brink was the driver.

            A jury found Brink guilty on all three counts.     Brink

filed a motion for a new trial, which the court denied.       This

timely appeal followed.      We have jurisdiction under 28 U.S.C. §

1291 (1988).
                       II.    Right to Counsel

            Over objection, Brink's pre-trial cellmate, Ronald

Scott, testified that, while in Clarion County prison, Brink told

him that he robbed the Farmers National Bank and how he devised

an alibi.    Brink contends the government violated his Sixth

Amendment right to counsel by placing him in a cell with Scott
3
 . Two FBI expert witnesses also testified. A photography
expert testified to five similar features between the denim
jacket worn by the robber in the surveillance photographs and a
jacket obtained from Brink's home. A firearms expert testified
that the gun in the photographs was a revolver, as was the gun
obtained from Brink's home. Both experts stated they could not
positively identify the objects in the photographs as the objects
in evidence.

4
 . Brink's house is approximately 4½ miles from Farmers National
Bank. Olcus testified it would take at least 10 minutes to drive
from the bank to Brink's house.
because, he claims, Scott was a government agent deliberately

attempting to elicit incriminating evidence outside the presence

of Brink's counsel.    We apply plenary review to the district

court's application of legal precepts, see Gregoire v. Centennial

Sch. Dist., 907 F.2d 1366, 1370 (3d Cir.), cert. denied, 498 U.S.

899 (1990), and clearly erroneous review to its factual findings,

see United States v. Kim, 27 F.3d 947, 958 (3d Cir. 1994);

Monachelli v. Warden, SCI Graterford, 884 F.2d 749, 750 (3d Cir.

1989).

            The deliberate use of jailhouse informants to elicit

incriminating information may violate a defendant's right to

counsel. United States v. Henry, 447 U.S. 264, 274 (1980); see

also Massiah v. United States, 377 U.S. 201, 206 (1964).      In

Massiah v. United States, the Supreme Court held the government

violates a prisoner's Sixth Amendment right to counsel when it

uses, as evidence, statements made by the defendant "which [it]

had deliberately elicited from him after he had been indicted and

in the absence of his counsel."     Id. at 206.   Massiah, a merchant

seamen, had been charged with various narcotics offenses.       Id. at

202.     After release on bail, Massiah met with Colson, a co-

defendant, in Colson's parked car where, unbeknownst to Massiah,

Colson had allowed government agents to install a radio

transmitter under the front seat.    Id. at 202-03.    During the

course of their meeting, an FBI agent overheard Massiah make

incriminating statements, which the agent later recounted at

trial.    On appeal, Massiah maintained that use of the radio

transmitter was an illegal search under the Fourth Amendment and
that admission of the agent's testimony violated his rights under

the Fifth and Sixth Amendments by forcing him to incriminate

himself and by interrogating him outside the presence of his

attorney.   Id. at 203-04.   Without reaching his other arguments,

the Court agreed with Massiah on the Sixth Amendment claim.

Noting that the Constitution guarantees the right to counsel as

much during the period between arraignment and trial as during

the trial itself, the Court stated, "`if such a rule is to have

any efficacy it must apply to indirect and surreptitious

interrogations as well as those conducted in the jailhouse.

[M]assiah was more seriously imposed upon . . . because he did

not even know that he was under interrogation by a government

agent.'"    Id. at 206 (quoting United States v. Massiah, 307 F.2d

62, 72-73 (2d Cir. 1962) (Hays, J., dissenting)).

            In United States v. Henry, the Court reaffirmed the

principles of Massiah on facts similar to this case.    Like here,

the defendant in a bank robbery prosecution challenged the

admission of his pre-trial cellmate's testimony on the grounds

that the cellmate was a government agent. 447 U.S. at 265.    Even

though the informant was given specific instructions not to

question Henry about his case, the Court found the government had

in fact "deliberately elicited" the information from Henry,

stating, "[e]ven if the agent's statement that he did not intend

that [the informant] would take affirmative steps to secure

incriminating information is accepted, he must have known that

such propinquity likely would lead to that result."    Id. at 271.
Consequently, the Court found that the government violated
Henry's right to counsel by "intentionally creating a situation

likely to induce Henry to make incriminating statements without

the assistance of counsel."    Id. at 274; see also Maine v.

Moulton, 474 U.S. 159 (1985) (right to counsel violated where

codefendant, as government agent, meets with defendant and

discusses crime, even though defendant, not government, requested

meeting).

            Massiah and Henry establish that the government

violates a pre-trial detainee's right to counsel when it

deliberately creates a situation in which a prisoner is likely to

make incriminating statements, Henry, 447 U.S. at 274, and

deliberately uses an informant to elicit information from the

prisoner, Massiah, 447 U.S. at 269.   But the Court stopped short

of excluding all incriminating statements reported by jailhouse

informants, and "left open the question whether the Sixth

Amendment forbids admission in evidence of an accused's

statements to a jailhouse informant who was `placed in close

proximity but [made] no effort to stimulate conversations about

the crime charged.'" Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986)

(quoting Henry, 447 U.S. at 271 n.9)(alteration in Kuhlmann).
            In Kuhlmann v. Wilson, the Court held that where a

prisoner makes incriminating statements to a passive listener --

a "listening post" -- the introduction of the prisoner's

statements does not violate his right to counsel because the

informant's presence does not constitute an interrogation. 477

U.S. at 459 (primary concern of Massiah line of decisions is
secret interrogation with techniques equivalent to direct police
interrogation).    In that case, the defendant and two accomplices

robbed a taxicab garage and murdered the night dispatcher.       Id.

at 438-39.    After arraignment, Kuhlmann was held in detention and

placed in a cell with Lee, a police informant, who had agreed to

aid the police in getting information about Kuhlmann's

accomplices.     Id. at 439.    Lee had been expressly instructed not

to ask Kuhlmann any questions about his case, but instead to

"keep his ears open."     Id.    Although Kuhlmann never divulged the

names of his accomplices, he admitted to committing the crime to

Lee who reported it to the police.       The state trial court

expressly found that Lee did not elicit statements from Kuhlmann

and that Kuhlmann's statements were "spontaneous" and

"unsolicited."    Id. at 440.     Kuhlmann was then convicted by a

jury.   After unsuccessful appeals in the state court system and

unsuccessful petitions for federal habeas corpus, the Supreme

Court handed down its opinion in Henry whereupon Kuhlmann renewed

his petition for federal habeas corpus.       After a divided panel of

the United States Court of Appeals for the Second Circuit granted

Kuhlmann's petition, id. at 441-43, the Supreme Court reversed.

Noting the presumption of correctness that must be afforded the

trial court's factual finding, id. at 460, the Court held that
introduction of Kuhlmann's self-incriminating statements did not

violate his right to counsel because his spontaneous statements

were not the result of an interrogation, id. at 459.

             Henry and Kuhlmann set the bounds for using a

prisoner's self-incriminating statements made to jailhouse

informants.    The government violates a prisoner's right to
counsel when it places that prisoner in a cell with a jailhouse

informant who "deliberately use[s] his position to secure

incriminating information from [the defendant] when counsel was

not present." Henry, 447 U.S. at 270.   But it does not violate a

prisoner's rights where "by luck or happenstance -- the State

obtains incriminating statements from the accused after the right

to counsel has attached." Kuhlmann, 477 U.S. at 459.

          In finding the government deliberately elicited

statements from the defendant in Henry, the Court found three

factors to be significant: (1) the informant acted under

instructions as a paid informant for the government;5 (2) the

informant appeared to be just another inmate; and (3) the

defendant was in custody at the time the informant engaged him in

conversations. 447 U.S. at 270.   Because Scott presented himself

as just another inmate and Brink was in custody the second and

third factors are evident here.   The only questions are whether

Scott was acting as a government agent when he got Brink to tell

him about the crime and whether that information was elicited

deliberately.

          In this case, even though Scott maintains he was not

instructed to question Brink about the robbery, there is some


5
 . Although the Supreme Court emphasized the fact that the
informant was "paid", 447 U.S. at 270 & n.7, we do not understand
the Court to imply that only informants who receive cash are
"paid informants." Instead, we believe the Court meant that any
informant who is offered money, benefits, preferential treatment,
or some future consideration, including, but not limited to, a
reduction in sentence, in exchange for eliciting information is a
paid informant.
evidence that Scott deliberately elicited information from

Brink.6   On this record, however, it is unclear whether Scott was

acting as a government agent while sharing Brink's cell.     An

inmate who voluntarily furnishes information without instruction

from the government is not a government agent, even if the

informant had been an agent in the past. See United States v. Van

Scoy, 654 F.2d 257, 260 (3d Cir.), cert. denied, 454 U.S. 1126

(1981).     Because Scott admitted acting as a government agent in

other cases,7 but denied receiving any promises or rewards for

informing on Brink, he may fall within this category.

            But the record also contains evidence suggesting that

Scott may have had a tacit agreement with the government.     Scott

testified that he began informing in the hopes of having his

sentence reduced.    The government trained him as an informant and

at one point a government agent told Scott that his cooperation

would be reported to the United States Attorney and the Attorney

General.8    Therefore, Scott may have informed on Brink on the

6
 . The district court did not make a finding on whether Scott
elicited information from Brink, but there is a colorable claim
that Scott may have been more than just a listening post. On
cross-examination, at trial, Scott admitted that when acting as a
government agent his method of obtaining information was to lie
to his cellmates to gain their trust. Scott admitted lying to
Brink, and acknowledged he had gained Brink's trust. Scott also
discussed Brink's case with him, telling Brink he thought Brink
was guilty, and even discussed the possibility of Brink escaping
during a break in the trial.
7
 . Scott admitted to volunteering to be a government informant
in 1990 or 1991. Since then he has informed on at least six
inmates in three jails or prisons.
8
 . This case is unlike Van Scoy, where the informant did not
receive any favorable treatment from the FBI, 654 F.2d at 260,
reasonable assumption that government officials were aware of his

actions and would reward him in the future, if not presently,

with a recommendation for a reduction in his sentence.

            It is also significant that after Scott began

informing, the government placed him in a cell with a pretrial

detainee.    Scott testified that a state trooper approached him

while he was sharing a cell with Brink to ask if Brink had given

Scott any information about the crime.    Since the government was

aware of Scott's propensity to inform on his cellmates, we

believe that placing him in a cell with a pretrial detainee could

represent a deliberate effort to obtain incriminating information

from a prisoner in violation of his Sixth Amendment right to

counsel.    Cf. Henry, 447 U.S. at 271 (government presumed to have

known that placing informant in a cell with pretrial detainee

would lead to informant taking affirmative steps to get

incriminating statements).

            We believe Brink has raised a colorable claim that the

government violated his constitutional right to counsel by

placing him in a cell with a known informant who may have been

acting as a government agent.    In these instances, the trial

court should conduct an evidentiary hearing and make the

necessary findings since such conduct, if proven, could violate a

defendant's rights under the Sixth Amendment.9   Because the
(..continued)
since the government honored Scott's request to be placed in the
witness protection program after he testified against a cellmate
in an earlier trial.
9
 . "Most constitutional errors have been held amenable to
harmless-error analysis." Sullivan v. Louisiana, 113 S. Ct. 2078,
district court declined to hold an evidentiary hearing, we will

vacate the judgment of conviction and sentence and remand for a

hearing to determine whether Brink's rights under the Sixth

Amendment were violated.   Should the district court make this

determination, Brink will be entitled to a new trial.
                   III.    Prior Identification

          At trial, bank teller Annette Miller testified she was

unable to recall the bank robber's eye color.     FBI Agent

McEachern testified that the day after the robbery, Miller told

him the bank robber had dark colored eyes.   Brink, whose eyes are

light hazel, sought to use Miller's prior statement as

substantive evidence of his innocence, but the court refused and

instead gave the following instruction:
          You will recall that certain witnesses who
          testified during the trial had made
          statements before this trial about matters at
          issue in this case. These earlier statements
(..continued)
2081 (1993). Because the erroneous admission of a coerced
confession does not automatically warrant a new trial, see Milton
v. Wainwright, 407 U.S. 371, 377-78 (1972); see also Arizona v.
Fulminante, 499 U.S. 279, 311 (1991) (Opinion of Rehnquist, C.J.,
for the Court), the district court judgment would stand if
admitting Brink's confession was harmless beyond a reasonable
doubt, Chapman v. California, 386 U.S. 18, 24 (1967); see also
Fulminante, 499 U.S. at 295-96. We find, however, that the
admission of Brink's confession, if error, was not harmless.
When reviewing constitutional violations for harmless error our
inquiry "is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was
surely unattributable to the error." Sullivan, 113 S. Ct. at
2081. On this record we hold the guilty verdict was not surely
unattributable to the introduction of Brink's confession, and
therefore was not harmless. Cf. Fulminante, 499 U.S. at 296-302
(admission of coerced confession was not harmless despite
admission of a second, lawfully-obtained confession and other
circumstantial evidence).
            were brought to your attention to help you
            decide if you believe that witness'
            testimony. You cannot use these earlier
            statements as evidence in this case.


            Brink contends the district court erred because Federal

Rule of Evidence 801(d)(1)(C) allows statements of prior

identification to be admitted as substantive evidence.
                                  a.

             At the outset we must determine the proper scope of

review.     The government contends our review should be for plain

error.    Generally, we review evidentiary rulings for abuse of

discretion, see, e.g., In re Merritt Logan, Inc., 901 F.2d 349,
359 (3d Cir. 1990), but when no objection is made at trial we

review for plain error only. See Government of Virgin Islands v.

Smith, 949 F.2d 677, 681 (3d Cir. 1991); United States v. Castro,

776 F.2d 1118, 1128 (3d Cir. 1985), cert. denied, 475 U.S. 1029

(1986).10    This rule gives the court an opportunity to correct

any mistakes before charging the jury, Santos, 932 F.2d at 251;

United States v. Chicarelli, 445 F.2d 1111, 1115 (3d Cir.

1971)(quoting United States v. Provenzano, 334 F.2d 678, 690 (3d


10
 . The plain error doctrine "is intended to correct errors that
are `obvious' or that otherwise seriously affect the fairness,
integrity or public reputation of judicial proceedings.'"
Government of Virgin Islands v. Charleswell, 24 F.3d 571, 576 (3d
Cir. 1994) (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)). The doctrine provides for correction of a mistake "so
`plain' the trial judge [was] derelict in countenancing it, even
absent the defendant's timely" objection. United States v. Frady,
456 U.S. 152, 163 (1982); see also Government of Virgin Islands
v. Knight, 989 F.2d 619, 631-32 (3d Cir.), cert. denied, 114 S.
Ct. 556 (1993); United States v. Santos, 932 F.2d 244, 251 (3d
Cir.), cert. denied, 112 S. Ct. 592 (1991).
Cir.), cert. denied, 379 U.S. 947 (1964)), and prevents the

appellant from purposely failing to object in the hopes of later

asserting the court's error as the basis for a new trial,

Chicarelli, 445 F.2d at 1116 (quoting United States v. Grosso,

358 F.2d 154, 158 (3d Cir. 1966), rev'd on other grounds, 390

U.S. 62 (1968)).

          Brink challenged the instruction, stating, "With regard

to identification, we believe that under the federal rules it is

not hearsay."    The government maintains Brink's statement was not

specific enough to constitute an objection.   We disagree.

Although Brink did not mention Rule 801(d)(1)(C) expressly, his

objection was sufficiently specific to inform the district court.

Cf. Santos, 932 F.2d at 250-51 (finding appellant's statement "I

object to the refusal to charge points 1 through 6 of defendant's

proposed points of charge" too general to alert district court to

the specific objection raised on appeal); see also United States

v. Castro, 776 F.2d 1118, 1129 (3d Cir. 1985).    Because Brink's

challenge put the district court on notice of the issue now

raised on appeal, we review the district court ruling for abuse

of discretion.
                                 b.

          The Federal Rules of Evidence provide "A statement is

not hearsay if . . . one of identification of a person made after

perceiving the person." Fed. R. Evid. 801(d)(1)(C) (West 1994).

Statements of prior identification are admitted as substantive

evidence because of "the generally unsatisfactory and

inconclusive nature of courtroom identifications as compared with
those made at an earlier time under less suggestive conditions."

Fed. R. Evid. 801, Notes of Advisory Committee on 1972 Proposed

Rules; see S. Rep. No. 199, 94th Cong., 1st Sess. 2 (1975) ("Both

experience and psychological studies suggest that identifications

consisting of nonsuggestive lineups, photographic spreads, or

similar identifications, made reasonably soon after the offense,

are [more] reliable than in-court identifications.").     "Admitting

these prior identifications therefore provides greater fairness

to both the prosecution and the defense in a criminal trial."

Id.

           Generally, evidence is admitted under Rule 801(d)(1)(C)

when a witness has identified the defendant in a lineup or

photospread, but forgets, or changes, his testimony at trial.

See, e.g., United States v. O'Malley, 796 F.2d 891, 898-99 (7th

Cir. 1986); United States v. Jarrad, 754 F.2d 1451, 1456 (9th

Cir.), cert. denied, 474 U.S. 830 (1985).     Although less common,

Miller's "exculpatory" prior identification falls within the

rule.   The rule's plain language does not exclude exculpatory

statements, nor can we find any reason to distrust the

reliability of this kind of identification.

           Moreover, the fact that FBI agent McEachern, rather

than Miller, recited Miller's statement at trial does not

preclude introducing her statement as substantive evidence.

Debate on the 1975 amendment to the Rule demonstrates Congress

was aware that third parties would testify to the witness's prior

statements. See 121 Cong. Rec. 31,867 (1975) (statement of Rep.
Hungate) ("The bill . . . applies to situations where an
eyewitness has previously identified a person out of court.     It

would admit into evidence testimony of that identification.     For

example, testimony by a police officer that at a lineup John Doe

identified the defendant as the man who robbed his store."). See

generally, Jack B. Weinstein and Margaret A. Berger, Weinstein's

Evidence, ¶ 801(d)(1)(C)[01], at 801-222 (1993) ("If at trial the

eyewitness fails to remember or denies that he made the

identification, the previous statements of the eyewitness can be

proved by the testimony of a person to whom the statement was

made, and the statement can be given substantive effect.").

Thus, Miller's statement should have been admitted as substantive

evidence.
                                 c.

            The government maintains that Brink is not entitled to

a new trial because the district court's error, if any, was

harmless.   Like resolution of Brink's Sixth Amendment claim,

resolving this issue depends on whether Scott was acting as a

government agent while collecting information on Brink.

            Under Federal Rule of Criminal Procedure 52(a) "any

error, defect or variance which does not affect substantial

rights shall be disregarded." Fed. R. Crim. P. 52(a)(West 1994).

An error that does not implicate a constitutional right is

harmless where it is "`unimportant in relation to everything else

the jury considered on the issue in question as revealed in the

record.'" United States v. Palmieri, 21 F.3d 1265, 1273 (3d Cir.

1994), petition for cert. filed Aug. 1, 1994 (No. 94-5463)
(quoting Yates v. Evatt, 500 U.S. 391, 403 (1991)).    Upon
reviewing the entire record, we believe that, provided Scott's

testimony was properly admitted at trial, the district court's

error was harmless.

          Scott testified that, when they were cellmates, Brink

confessed to the robbery.       The bank tellers, Miller and Simpson,

made positive in-court identifications11 and Brink's friend,
11
 .   Simpson testified:

          Q:      How do you know that Billy Brink robbed you on
                  December 16, 1992?

          A:      I could tell who he was. I could see through the
                  ski mask. The holes around the eyes and the mouth
                  were big enough to see. I could recognize his
                  features, his voice, the way he walked, his
                  mannerisms.

          Q:      Now you have identified several characteristics.
                  Did you know Billy Brink prior to December 16,
                  1992.

          A:      Yes, I did.

          Q:      And how was it that you knew him or knew of him?

          A:      I knew of him all his life. My son coached him in
                  midget football, I think junior high, and probably
                  varsity football also. But, I just know that he -
                  - you know, I have known of him.

          Q:      Now, was he a customer of the Farmers National
                  Bank?

          A:      Yes, he was.

          Q:      When was the last time you had seen him in the
                  bank prior to December 16th.

          A:      Probably around the first week in December he was
                  in the bank.

Appendix at 94.

Miller testified:
William Rumbarger, testified that on the evening after the

robbery, he saw Brink carrying two, three-quarter inch stacks of

cash in large denominations.   These, together with other

circumstantial evidence, provide sufficient evidence of Brink's

guilt.12


(..continued)

           Q:   And how is it that you were able to identify
                [Brink]?

           A:   Just -- when he came to the window, it was him. I
                mean, from what I know of him and seen of him, it
                was Bill Brink.

Appendix at 110.


           Q:   [Y]ou knew him because one of his friends was
                dating your best friend. Is that how you knew
                him?

           A:   That's how I knew who he was at first, yes.

           Q:   And then you also saw him play football.    Is that
                what your testimony is?

           A:   Yeah. I saw him play football and, I mean, we
                went to two small high schools. I mean, everybody
                knew who everybody was in the two schools.

Appendix at 114.
12
 . Claiming the pre-trial identifications of Miller and Simpson
were subject to the same limiting instruction as Miller's
statement regarding the robber's eye color, the government
contends the jury was instructed not to view their testimony as
substantive evidence, but instead to use it to judge their
credibility. Consequently, the government maintains that
limiting the use of Miller's statement about the robber's eye
color, if error, was harmless because the court's instruction
hurt the government's case more than the defendant's. Although
we find the government's argument unconvincing, we agree the
error was harmless.
          If Scott did not violate Brink's Sixth Amendment rights

his testimony was properly allowed into evidence. See Kuhlmann,

477 U.S. at 459 (evidence gained by luck or happenstance does not

violate defendant's right to counsel).   In that case, any error

regarding the identification was harmless because Brink's

confession coupled with the in-court identification and the

circumstantial evidence provides sufficient evidence of his

guilt.   On the other hand, if Brink's rights were violated he is

entitled to a new trial on that basis alone, see supra note 9,

and we would not need to reach the evidentiary issue.

Consequently, we hold that if, after an evidentiary hearing, the

district court determines Scott did not violate Brink's Sixth

Amendment rights, the district court's failure to admit Miller's

statement of prior identification was harmless error.13

13
 . Brink raises two other issues on appeal. He claims the
district court erred by not interrupting jury deliberations to
allow him to demonstrate that the denim jacket, taken from his
home and entered into evidence on the theory that it was worn
during the robbery, did not fit him. After jury deliberations
begin, a district judge has wide discretion in deciding whether
to reopen a case. United States v. Golomb, 754 F.2d 86, 89 (2d
Cir. 1985); see Drummond v. United States, 350 F.2d 983, 991 (8th
Cir. 1965) (Blackmun, J.), cert. denied sub nom. Castaldi v.
United States, 384 U.S. 944 (1966). The court denied Brink's
request because he offered no excuse for failing to raise the
issue earlier, and because it believed interrupting deliberations
might suggest to the jurors that the jacket was more important
than other pieces of evidence. We find no abuse of discretion
here. See Fernandez v. United States, 329 F.2d 899, 903 (9th
Cir.), cert. denied, 379 U.S. 832 (1964); cf. United States v.
Burger, 419 F.2d 1293, 1295 (5th Cir. 1969) (trial court should
exercise its discretion with caution).
     Brink also contests the district court's ruling that allowed
two experts to testify about similarities between items seized
from Brink's home and those identified on the bank's surveillance
photographs. Brink argues that because these experts were unable
to testify to a reasonable degree of scientific certainty, their
                         IV. Conclusion

          For the foregoing reasons, we will vacate the judgment

of the district court and remand this case for further

proceedings not inconsistent with this opinion.




(..continued)
testimony should have been stricken as conjecture. We find no
merit in this argument. The decision whether to admit expert
testimony is within the broad discretion of the trial court,
United States v. Downing, 753 F.2d 1224, 1229 (3d Cir. 1985);
United States v. Cyphers, 553 F.2d 1064, 1072 (7th Cir.), cert.
denied, 434 U.S. 843 (1977), and a court generally does not abuse
its discretion where the expert bases its opinion on the type of
data a reasonable expert in the field would use in rendering an
opinion on the subject at issue, see Deluca v. Merrell Dow
Pharmaceuticals, Inc., 911 F.2d 941, 955 (3d Cir. 1990); see also
Michael H. Graham, Expert Witness Testimony and the Federal Rules
of Evidence: Insuring Adequate Assurance of Trustworthiness, 1986
U. Ill. L. Rev. 43 (reasonable degree of scientific certainty
refers to whether the expert relied on a theory accepted by a
recognized segment of the particular field to which the expert
belongs); cf. Cyphers, 553 F.2d at 1072-73 ("[A]n expert's lack
of absolute certainty goes to weight of testimony, not its
admissibility."); Stutzman v. CRST, Inc., 997 F.2d 291, 296 (7th
Cir. 1993).
