
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1759                                    UNITED STATES,                                      Appellee,                                          v.                                 GARY WAYNE JACKMAN,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Miriam Conrad, Federal Public Defender, for appellant.            _____________            Robert E. Richardson, Assistant United States Attorney, with  whom            ____________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   February 9, 1995                                 ____________________                      STAHL,  Circuit  Judge.    In this  appeal  of  his                      STAHL,  Circuit  Judge.                              ______________            conviction  for  bank  robbery,  defendant-appellant  Gary W.            Jackman  alleges an  abuse of  discretion in  certain of  the            district court's  evidentiary rulings.   Finding no  abuse of            discretion, we affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      On  December  24, 1992,  a  man  wearing a  Florida            Marlins baseball  cap and a  bulky winter jacket  walked into            the Boston Five Cents  Savings Bank in Revere, Massachusetts,            handed teller Deanna Megna a note demanding money, stating he            had  a gun, and walked out  after being given $1,740 from the            teller's drawer.  Megna described  the man  immediately after            the  robbery as "skinny" and  "blond."  About  a month later,            Megna easily picked  Jackman as  the Revere robber  out of  a            six-man lineup in Glastonbury, Connecticut, where Jackman was            being  held  in  connection  with  a  bank robbery  in  Avon,            Connecticut. Photographs  of the Revere robber,  taken by the            bank's surveillance  camera, were  shown by investigators  to            Jackman's ex-wife, Deborah Jackman,  and to two acquaintances            of Jackman,  Harry Stetson and  David Hurlock.   Although the            photographs showed  only part of the robber's  face beneath a            baseball  cap  and  were  somewhat  grainy, Deborah  Jackman,            Stetson and  Hurlock all told  investigators that the  man in            the photographs was Jackman.  Prior to identifying Jackman as                                         -2-                                          2            the  man  in  the  Revere robbery  photos,  Deborah  Jackman,            Stetson and Hurlock  all viewed a much clearer  photograph of            the  Connecticut  robber  taken  during the  course  of  that            robbery  and  identified the  robber  as Jackman.    Both the            Connecticut robber and the Revere robber appear to be wearing            a Florida Marlins baseball cap and a heavy winter coat.                        At trial, Megna testified about the robbery and her            identification of Jackman at the  lineup, but she was  unable            to  make  an  in-court  identification of  Jackman.1    James            Genco, the  Assistant United States  Attorney who  prosecuted            Jackman in Connecticut and who oversaw the Glastonbury lineup            (which  was  viewed  by  witnesses to  both  the  Revere  and            Connecticut  bank robberies), testified about the composition            of the  lineup and Megna's  identification of Jackman  as the            Revere  robber.  The district court  warned the government to            advise Genco not to make any  references to the fact that  he            was   a  federal   prosecutor   from  Connecticut   and   not            Massachusetts, or  that Jackman had been  tried and convicted            of  another   bank  robbery.    Nevertheless,  the  following                                            ____________________            1.  The  jury   also  heard   testimony  that  none   of  the            fingerprints found on the note  handed to Megna matched those            of  Jackman.  Megna testified that she did not notice whether            the  robber  was wearing  gloves,  and  a fingerprint  expert            testified  that  extremely cold  hands  might  not leave  any            fingerprints on a note.   A National Weather Service employee            testified at  Jackman's trial  that the temperature  at Logan            Airport  around the  time  of the  Revere robbery  was thirty            degrees Fahrenheit, with an equivalent  windchill temperature            of minus four degrees.                                         -3-                                          3            colloquy  took place  as the  prosecutor questioned  Genco on            direct examination about the Glastonbury lineup:                      Q.   Could you  tell --  give the  jury a                      general   description    of   those   six                      individuals [in the lineup]?                      A.    They  were  all  basically selected                      because they fit  the description of  the                      robber.  They were white males --                           Ms. Conrad: Objection.                      A.  -- with mustaches.                           The court:  Overruled.                      A.    They  were  all  white  males  with                      mustaches  and   approximately  the  same                      color  of hair  that we had  described to                      us.                      Conrad,  Jackman's  attorney,  objected again,  was            overruled,  and subsequently  moved for  a mistrial.   On the            videotape  of the  lineup  shown to  the  jury, the  six  men            appeared  to have  brown or  darker  hair; Megna  had already            testified  that   immediately  after  the  robbery   she  had            described the  robber as  having  blond hair.   Thus,  Conrad            argued, the jury could easily have inferred either that Megna            or  someone  else  had  provided  authorities   with  another            description  of the Revere robber  as having darker hair, or,            more sinister,  that  Genco arranged  the lineup  based on  a            description provided  in another robbery altogether, and that            Jackman  was a suspect  in that robbery  as well.   The court            denied Jackman's motion for a mistrial, but it instructed the            jury  "to disregard any of the testimony of this witness with                                         -4-                                          4            respect to the  description of  the individual  and how  this            witness  went about choosing the other members of the lineup.            That evidence  has been stricken  and you're not  to consider            it."                      Deborah Jackman, Stetson and Hurlock also testified            at trial, offering their  opinions as to the identity  of the            man  in  the  Revere  robbery  photographs  as  is  sometimes            permitted under  Fed. R.  Evid. 701, which  allows non-expert            opinion testimony under certain conditions.                      Deborah   Jackman  testified  that  she  had  known            Jackman since 1972  and was  married to him  from 1976  until            1990  (the  couple separated  in  1988).   After  the  couple            separated, she  continued to see Jackman  every other weekend            when Jackman, exercising his visitation rights, would pick up            and return  their children.   She testified that  Jackman had            worn  a dirty-blond  mustache for  many years,  that  he wore            baseball caps, and that the coat worn by the Revere robber in            the photographs was similar to one worn by Jackman before the            couple  separated.  She told the jury that she recognized the            man in  the surveillance  photographs as her  ex-husband, and            answered in the negative when asked if there was any doubt in            her mind that it was he.                      Hurlock  testified that he  had known Jackman since            1986, when Jackman lived in Unionville, Connecticut.  Hurlock            told  the jury that Jackman was an occasional customer at his                                         -5-                                          5            convenience store, that both he and  Jackman were involved in            coaching  youth baseball teams from 1987 until 1990, and that            in  late  1990, Jackman  came to  his  store wearing  a bulky            jacket  not  unlike  that  pictured  in  the  Revere  robbery            photographs  to  discuss  the possibility  of  coaching youth            basketball.   He also testified that  Jackman wore a baseball            cap the vast majority of the times he had seen  him.  Hurlock            told  the jury that he recognized the man in the surveillance            photographs as Jackman.                      Stetson testified  that he had  known Jackman since            1985 when Jackman and his former wife moved next door to him.            In  1989, after  the Jackmans  separated, Jackman  lived with            Stetson  for about  six months and  Stetson continued  to see            Jackman occasionally until November 1991.  Stetson, too, told            the  jury  that  he  recognized  the  man  pictured   in  the            surveillance photographs and  had no doubt  that the man  was            Jackman.                      The  jury also  heard testimony from  John Jackman,            the defendant's brother.  He testified  that, in his opinion,            the  man in the surveillance photographs was not his brother,                                                         ___            and  he pointed out to the jury what he thought were features            distinguishing his brother from the man in the picture.                      The  jury convicted  Jackman of  one count  of bank            robbery, 18 U.S.C.   2113(a).  Jackman raises  several issues            on  appeal.   He  contends  that  the  testimony  of  Deborah                                         -6-                                          6            Jackman,  Stetson  and  Hurlock  should  have  been  excluded            because   it  was  not  helpful  to  the  jury,  it  was  not            susceptible to cross-examination, and it presented dangers of            unfair  prejudice that substantially outweighed its probative            value.  Jackman also argues that the district court committed            reversible error by allowing Genco to testify at all, as well            as by refusing  to grant a mistrial after  Genco alluded to a            description  of  the  robber   not  provided  by  anyone  who            testified in the case.  We address each of these arguments in            turn.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Admissibility of Lay Opinion Testimony            __________________________________________                      We  review  a  district court's  admission  of  lay            opinion testimony under Fed. R. Evid. 701 for  manifest abuse            of discretion.   Keller v. United States, 38 F.3d 16, 31 (1st                             ______    _____________            Cir.  1994); United States v.  Paiva, 892 F.2d  148, 156 (1st                         _____________     _____            Cir. 1989).                      1.  Helpfulness                          ___________                      Rule 701  allows for  the admission of  lay opinion            testimony only if  the testimony is "(a)  rationally based on            the  perception of  the witness  and (b)  helpful to  a clear            understanding of the witness's testimony or the determination            of a fact in issue."  Jackman challenges the admission of the            testimony  of  his ex-wife,  Hurlock  and  Stetson under  the                                         -7-                                          7            second prong  of Rule 701,  arguing that the  jury was  in as            good a  position  as these  three  witnesses to  compare  the            surveillance photographs to Jackman, and that therefore their            testimony was not helpful.                      The admissibility of opinion  testimony identifying            a  defendant from  surveillance  photographs is  an issue  of            first  impression  for this  Circuit.    A  number  of  other            circuits, however,  have ruled in a  variety of circumstances            that such testimony may indeed be helpful to  the jury and is            therefore admissible  in the  trial court's discretion.2   We                                            ____________________            2.  See,  e.g., United States v. Maddox, 944 F.2d 1223, 1230-                ___   ____  _____________    ______            31  (6th  Cir.)  (testimony  by  police  officer  identifying            defendant in photograph seized in  raid of drug house helpful            despite  absence  of  prior contacts  or  other circumstances            giving  witness advantage in  evaluating photograph;  jury is            free to assess credibility  of such testimony), cert. denied,                                                            _____ ______            112 S.  Ct. 400, 610 (1991), 112 S. Ct. 948, 1219, 1978, 2317            (1992), amended sub nom. United States v. Arnold, 12 F.3d 599                    _______ ___ ___  _____________    ______            (6th Cir. 1993), cert. denied, 114 S. Ct. 1328 (1994); United                             _____ ______                          ______            States  v. Stormer, 938 F.2d  759, 762 (7th  Cir. 1991) (four            ______     _______            police  officers' testimony identifying former police officer            as robber in surveillance photographs helpful  where officers            had worked with defendant for several years, photographs were            of poor  quality and  robber  wore baseball  cap and  hosiery            pulled  over face);  United States  v. Wright, 904  F.2d 403,                                 _____________     ______            404-5 (8th  Cir. 1990)  (identification of defendant  in bank            surveillance photograph by law enforcement  officers and bail            bondsman who had known defendant for periods ranging from two            to   thirteen  years   admissible  where   photograph  showed            partially  obscured face  of robber  and defendant  had grown            slight  beard  since  time  of  robbery);  United  States  v.                                                       ______________            Langford, 802 F.2d 1176, 1179  (9th Cir. 1986) (testimony  of            ________            defendant's cousin and  parole officer identifying  defendant            in  bank  surveillance  photographs  helpful  because  parole            officer  had met with defendant about 50 times and cousin had            known defendant most  of his life);  United States v.  Allen,                                                 _____________     _____            787  F.2d  933,  936   (4th  Cir.  1986)  (identification  of            defendants in bank surveillance photographs by police officer            and  parole  officer  familiar  with  defendants  "especially                                         -8-                                          8            agree that such  testimony is admissible,  at least when  the            witness possesses sufficiently relevant familiarity  with the            defendant that  the jury  cannot also  possess, and  when the            photographs  are  not  either  so unmistakably  clear  or  so            hopelessly obscure that the  witness is no better-suited than            the  jury to make the  identification.  See  United States v.                                                    ___  _____________            Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984) ("A witness's            __________            opinion  concerning the identity  of a  person depicted  in a            surveillance photograph is admissible  if there is some basis            for concluding that the  witness is more likely  to correctly            identify  the  defendant  from  the photograph  than  is  the            jury."); cf. United  States v. LaPierre, 998  F.2d 1460, 1465                     ___ ______________    ________            (9th Cir. 1993) (excluding opinion testimony by investigating            police   officer   identifying   defendant  in   surveillance            photograph  because defendant's  appearance  had not  changed            between  time of robbery and trial and officer had never seen            defendant  before   in  person).3     Familiarity  with   the                                            ____________________            helpful"  where photographs  depict  only  parts of  robbers'            faces),  vacated  on other  grounds,  479  U.S. 1077  (1987);                     _______  __ _____  _______            United States v.  Borrelli, 621 F.2d  1092, 1095 (10th  Cir.)            _____________     ________            (stepfather's  identification  of  defendant from  photograph            helpful  because  stepfather  had  knowledge  of  defendant's            appearance  both before and at  time of robbery and defendant            had  grown  moustache and  changed  hairstyle  since time  of            robbery), cert. denied, 449 U.S. 956 (1980).                      _____ ______            3.  The Seventh  Circuit has deemed "helpful"  testimony by a            witness  who  had  seen  the defendant  on  a  single  social            occasion and nearly a year prior to identifying him in a bank            surveillance photograph, even without evidence of a change in            the defendant's  appearance, on  the theory that,  when shown            the photograph, the  witness could "compare the person in the                                         -9-                                          9            defendant's appearance  at the  time the crime  was committed            would  be  relevant;  so,  too, would  familiarity  with  the            defendant in clothing similar  to that worn by the  person in            the  photograph at  issue,  or general  familiarity with  the            defendant's appearance acquired over a  period of time and in            a variety of contexts.  As the Fourth Circuit has stated:                      [T]estimony by those who  knew defendants                      over a period of time and in a variety of                      circumstances  offers  to   the  jury   a                      perspective it could  not acquire in  its                      limited  exposure  to defendants.   Human                      features  develop in the  mind's eye over                      time.    These  witnesses had  interacted                      with defendants  in a way the  jury could                      not,  and in  natural settings  that gave                      them    a    greater   appreciation    of                      defendants'  normal  appearance.    Thus,                      their  testimony  provided the  jury with                      the opinion of  those whose exposure  was                      not limited  to three days  in a  sterile                      courtroom setting.            United  States v. Allen, 787  F.2d 933, 936  (4th Cir. 1986),            ______________    _____            vacated on the grounds, 479 U.S. 1077 (1987).            _______ __ ___ _______                      Under   these   standards,  the   district  court's            admission of  the testimony  of Deborah Jackman,  Hurlock and            Stetson did not constitute  an abuse of discretion.   All the            surveillance photographs  of the  Revere robber  are somewhat            blurred,  and  they show  only  part  of the  robber's  face,                                            ____________________            bank surveillance  photograph with every person  she had ever            met,  whereas the jury could  only compare the  person in the            surveillance photographs to the defendant."  United States v.                                                         _____________            Jackson,  688 F.2d 1121,  1125 (7th Cir. 1982).   The case at            _______            hand does not  present us with  facts as extreme as  those in            Jackson, and  we express no opinion on how we would rule in a            _______            similar case.                                           -10-                                          10            primarily the  left side  from eye-level down.   Furthermore,            although  the record does not indicate how Jackman dressed at            trial,  it is virtually certain  that he did  not appear each            day wearing a bulky  winter jacket and a baseball  cap pulled            down  low over  his forehead.4   Thus,  because the  jury was            only able  to compare the  grainy photographs  of the  Revere            robber  with Jackman  as  he appeared  at  trial and  in  the            videotaped lineup, the identification by  the three witnesses            conceivably was of help to the jury.                      Deborah Jackman, Hurlock and Stetson testified that            they had known the defendant for extended periods of time and            had  seen  him  on  multiple occasions  under  a  variety  of            circumstances.   Each had  seen the defendant  numerous times            wearing a baseball cap.  Deborah Jackman and Hurlock had seen            him  wearing a  coat  that resembled  the  coat worn  by  the            robber.   While it is  true that neither  Hurlock nor Stetson            had seen the defendant for at least several months before the            Revere  robbery, and  thus could  not testify that  they were            familiar with the defendant's  appearance at the precise time            of the  robbery, this  potential weakness in  their testimony            did not render it inadmissible  and was highlighted on cross-            examination and  in defense counsel's closing  argument.  The                                            ____________________            4.  The jurors were  able to view Jackman  wearing a baseball            cap on the  videotaped lineup  and during  a short  courtroom            demonstration that  the prosecution  requested.   These brief            views in unnatural settings did not make the three witnesses'            testimony unhelpful.                                         -11-                                          11            fact  remains   that  all   three  witnesses  had   far  more            opportunity  than the jury to perceive Jackman from a variety            of  angles   and  distances  and   under  different  lighting            conditions.   Unlike  the jury, they  were familiar  with the            defendant's  carriage and  posture.   In sum,  the witnesses'            testimony  was helpful  to  the jury  and did  not constitute            "meaningless  assertions which  amount  to  little more  than            choosing up sides."  Fed.  R. Evid. 701 advisory  committee's            note.                      2.  Availability of Cross-Examination                          _________________________________                      Jackman next  contends that  because  he could  not            fully  cross-examine Deborah  Jackman,  Hurlock and  Stetson,            their testimony should have been excluded under Fed. R. Evid.            701 and Fed. R. Evid. 403.  Specifically, Jackman argues that            because the district court had already ruled that evidence of            the  Connecticut  robbery  was  unduly  prejudicial and  off-            limits, he could not inquire about the  effect the witnesses'            viewing of  the Connecticut  robbery photograph had  on their            subsequent identification of him  in the Revere  photographs.                      The court's ruling, however,  could not possibly be            construed  as meaning  that  the defendant  could not  elicit                                             _________            testimony related  to the Connecticut bank  robbery on cross-            examination.  Defendants are often confronted  with witnesses            who  possess  knowledge  of  the  defendant's  past  criminal            history,   knowledge  that   cannot  be  introduced   by  the                                         -12-                                          12            prosecution.  Although such  knowledge could potentially be a            source  of bias infecting the witness's testimony, we know of            no evidentiary  doctrine that would  ordinarily exclude  such            testimony simply because  cross-examination by the  defendant            about that  knowledge could be  highly damaging to  his case.            Thus, Jackman's  failure to cross-examine these  witnesses on            this issue was  not ordained by the court,  but was instead a            tactical decision.  See Wright, 904 F.2d  at 406 (defendant's                                ___ ______            decision  not to cross-examine  law enforcement  officers for            bias was tactical decision); Allen, 787  F.2d at 937 (failure                                         _____            to  cross-examine law  enforcement  officers on  bias was  "a            tactical  choice by  defendants similar  to  those frequently            faced at trial").  But see United States v. Calhoun, 544 F.2d                               ___ ___ _____________    _______            291, 296-97  (6th Cir.  1976) (defendant's failure  to cross-            examine probation officer on possible bias was not  waiver of            right to cross-examine because "the choice given is not real,            and  amounts to a choice  between the rock  and the whirpool"            (internal quotation omitted)).                      Jackman  urges us  to  adopt the  reasoning of  the            Sixth  Circuit   in  Calhoun,   in  which  the   court  ruled                                 _______            inadmissible  identification  testimony   by  a   defendant's            probation  officer  because   of  the  unfairly   prejudicial            evidence the jury  would have heard had  the defendant cross-            examined the witness on his possible biases.  Id. at 296.  It                                                          ___            is true that we have stated that the admission of lay opinion                                         -13-                                          13            evidence is favored "provided it is  well founded on personal            knowledge  and  susceptible  to  cross-examination."   United                                                                   ______            States  v.  Paiva,  892  F.2d   148,  157  (1st  Cir.  1989).            ______      _____            Furthermore, the advisory committee's  note to Rule 701 makes            clear that  the rule's justification  relies in part  on "the            natural characteristics of the adversary system" and the fact            that  "cross-examination  and  argument  will  point  up  the            weakness" of broadly asserted opinion testimony.  Thus, there            may be cases in which these safeguards are  absent to such an            extent that  to admit the opinion  testimony would constitute            an abuse  of discretion.  To  the extent that Calhoun  may be                                                          _______            read as  imposing a ban  on identification testimony  by non-            percipient witnesses  who may  possess biases that  cannot be            fully  explored  on  cross-examination  without   exposing  a            defendant's prior criminal history, we decline to follow that            case.  We believe that a better reading of Calhoun limits its                                                       _______            application  to   those  cases  in   which  a  non-percipient            identification witness's  only encounters with  the defendant            involved his criminal past, and thus the defendant's possible            avenues of  "safe" cross-examination are so  limited that the            testimony might not carry  the adversarial safeguards assumed            by the drafters of Rule 701.5  This is not such a case.                                            ____________________            5.  In reading Calhoun in  this way, we simply mean  to state                           _______            that  we  believe  it  was  this  logic,  and not  a  per  se            exclusion, that  informed the  Sixth Circuit's decision.   We            leave for another day whether if presented with facts similar            to those in Calhoun, we would rule as the Sixth Circuit did.                        _______                                         -14-                                          14                      All three of  the opinion  witnesses had  extensive            contacts  with Jackman  prior to,  and wholly  separate from,            their  having  viewed  the  Connecticut  robbery  photograph.            Thus,  Jackman's possible avenues of "safe" cross-examination            were  manifold, and  his counsel  quite  effectively traveled            down several  of them,  exposing Deborah  Jackman's potential            biases   against   her  ex-spouse,   Hurlock's  comparatively            infrequent   contacts  with  the   defendant,  and  Stetson's            reliance on  medication for depression and  anxiety, which he            failed to take the morning he first identified Jackman in the            Revere  robbery  photographs.    The single  area  of  cross-            examination  that  Jackman  could  not  explore  without  the            potential of opening  up his prior  criminal history was  the            possible bias caused  by the witnesses' prior  viewing of the            Connecticut  robbery   photograph.    This   "limitation"  on            Jackman's   cross-examination  was  of  the  defendant's  own            choosing and  was insufficient to make  the opinion testimony            inadmissible under Rule 701 or Rule 403.                      3.  The Need for an Evidentiary Hearing                          ___________________________________                      For  reasons similar  to  those  expressed in  Part            II.A.2, supra, we reject Jackman's argument that the district                    _____            court's failure  to grant him an opportunity  to question the            opinion  witnesses   outside   the  presence   of  the   jury            constituted an  abuse of discretion.   While granting Jackman            that opportunity, at least in the form of voir dire  if not a                                         -15-                                          15            full   evidentiary  hearing,   might  have   been  "eminently            sensible,"  see Nassar v. Vinzant, 519 F.2d 798, 802 n.4 (1st                        ___ ______    _______            Cir.),  cert. denied,  423 U.S.  898 (1975),  and under  some                    _____ ______            circumstances  perhaps necessary, see, e.g., United States v.                                              ___  ____  _____________            Stormer, 938  F.2d 759,  763 (7th Cir.  1991) (identification            _______            testimony  by  police  officers  admissible  where  extensive            examination conducted outside presence  of jury), again, this            is  not such  a case.   The  opinion witnesses  had extensive            familiarity  with Jackman wholly  distinct from  his criminal            history and were familiar  with his appearance in  a baseball            cap and a  heavy winter jacket.  The district  judge had both            the Connecticut  robbery photo and the  Revere robbery photos            before him;  his decision  that under these  circumstances, a            hearing   was  unnecessary   to  determine   whether  Deborah            Jackman's, Stetson's or  Hurlock's subsequent  identification            of Jackman  as the  Revere robber was  impermissibly tainted,            was well within his discretion.6                      4.  Implicit Bad Character Evidence                          _______________________________                                            ____________________            6.  Jackman also argues that he must have a new trial because            the district court failed to  make specific findings that the            opinion witnesses' testimony met the requirements of Rule 701            and gave  no indication  that  it had  weighed the  potential            prejudice presented by  the testimony  against its  probative            value, as required by Rule 403.  We reject these arguments as            meritless,  as there is ample  support in the  record for the            district court's  implicit conclusion  that the  testimony at            issue met the requirements of both these rules.                                         -16-                                          16                      We also reject Jackman's argument  that the opinion            testimony should have been excluded under Rule 403 because it            constituted "implicit"  bad character evidence.   Because the            witnesses knew  Jackman well and testified that  they had "no            doubt"  that the man in the Revere photograph was Jackman, so            this  argument  goes,  the  jury would  conclude  that  these            witnesses must have had other reasons to believe that Jackman            was  the kind of  man who would  commit a bank  robbery.  The            witnesses, however,  never testified about or  alluded to any            such reasons.   Indeed,  Stetson and Hurlock  testified about            Jackman's  involvement  in  Little  League  and  other  youth            sports.  If  their testimony did create  any unfair prejudice            of this type, it is certainly not clear that it substantially            outweighed  the testimony's  probative  value  such that  the            district court abused its discretion in admitting it.            B.  Genco's Testimony            _____________________                      Jackman's final  arguments  are that  the  district            court  abused  its   discretion,  first  in   permitting  the            Connecticut prosecutor  Genco to testify about  the lineup in            which Megna identified Jackman as the Revere robber, and then            in  refusing  to grant  a mistrial  when  Genco alluded  to a            description   the   government    apparently   obtained    in            investigating the Connecticut robbery.  Neither  point merits            extensive discussion.                                         -17-                                          17                      Genco  only  identified  himself  as  an  Assistant            United  States Attorney; no mention was made of the fact that            he  lived  and worked  in  Connecticut.   His  testimony  was            offered  to  authenticate the  videotape  of  the lineup,  to            explain how it  was arranged and to identify for the jury the            points on the videotape at which Megna entered and exited the            viewing  room.    This testimony,  the  government  contends,            enabled  it to argue in closing that Megna needed little time            in  the viewing  room  before identifying  Jackman.   Jackman            offered to stipulate to  the videotape's authenticity, but no            offer was made to  stipulate to the other aspects  of Genco's            testimony.  While  the testimony might have  been of marginal            utility, it was not wholly cumulative or overly lengthy,  and            its admission did not constitute an abuse of discretion.                      As for Genco's  "slip" concerning a description  of            "the  robber"  that  did  not comport  with  the  description            provided  by Megna,  a  mistrial was  not  called for.    The            reference  was allusive  enough and the  curative instruction            sufficient such that  we seriously  doubt that  the jury  was            able to  draw  any inference  damaging  to Jackman  based  on            Genco's blunder.   See  United States  v. Sepulveda,  15 F.3d                               ___  _____________     _________            1161, 1184 (1st Cir.  1993) ("Declaring a mistrial is  a last            resort,  only to  be  implemented .  . .  if the  trial judge            believes  that the jury's exposure to  the evidence is likely                                         -18-                                          18            to prove  beyond realistic  hope of repair."),  cert. denied,                                                            _____ ______            114 S. Ct. 2714 (1994).                      Affirmed.                      Affirmed.                      ________                                         -19-                                          19
