                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3750
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                              Darius Devon Nickelous

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa - Waterloo
                                  ____________

                          Submitted: November 15, 2018
                            Filed: February 26, 2019
                                 ____________

Before BENTON, BEAM, and ERICKSON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       Darius D. Nickelous was convicted of unlawfully possessing a firearm in
violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), 922(g)(9), and 924(a)(2). The district
court1 sentenced him to 120 months’ imprisonment. He appeals his conviction.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                          I.

       Nickelous was convicted of unlawfully possessing a firearm after a shooting
at a fraternity party. He claims the district court erred in denying his motion for
judgment of acquittal because the evidence was insufficient. This court reviews de
novo the “denial of a motion for judgment of acquittal.” United States v. Roberts,
881 F.3d, 1049, 1052 (8th Cir. 2018). The evidence is viewed “in the light most
favorable to the jury verdict and giving the verdict the benefit of all reasonable
inferences.” United States v. Casteel, 663 F.3d 1013, 1019 (8th Cir. 2011). Reversal
is appropriate “only if no reasonable jury could have found the defendant guilty
beyond a reasonable doubt.” Id.

       Nickelous stipulated to all elements of conviction except possession of a
firearm. See United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996) (to convict
“under 18 U.S.C. § 922(g)(1), the government had to show beyond a reasonable doubt
that (1) he had been convicted of a felony; (2) he thereafter possessed a firearm; and
(3) the firearm had traveled in or affected interstate commerce”). The government
produced as evidence of possession: (1) Nickelous admitted attending a fraternity
party and having an altercation there; (2) his former classmate testified she heard a
gunshot at the party and then saw Nickelous, wearing a red sweatshirt, waving a
silver revolver; (3) two other people at the party—one a security guard and the other
a member of the Army National Guard—testified the shooter was wearing a red
sweatshirt; (4) a police officer testified that multiple partygoers reported a shooting
by a man wearing a red sweatshirt; (5) another officer, who found Nickelous 200 feet


      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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from the party (wearing a red sweatshirt), testified that he saw Nickelous drop a metal
object next to a pickup truck; (6) the officer testified that Nickelous refused to stop
when ordered; (7) the officer found a silver revolver in the spot where Nickelous
dropped the object; and (8) when officers apprehended Nickelous, his hand was
bleeding, and he said he had “gotten his ass kicked at the party.”

       Nickelous questions his classmate’s credibility, arguing her testimony is biased
and based on “assumptions and prejudices.” However, “[t]his court does not weigh
the credibility of the witnesses or the evidence. The jury has the sole responsibility
to resolve conflicts or contradictions in testimony, and credibility determinations are
resolved in favor of the verdict.” United States v. Aldridge, 664 F.3d 705, 715 (8th
Cir. 2011) (internal citation omitted).

       Nickelous also challenges the conviction because there was no physical
evidence. But “there is sufficient evidence to support a conviction for felon in
possession where a gun was immediately recovered from the location where the
defendant was observed dropping something.” United States v. Jefferson, 206 Fed.
Appx. 654, 655 (8th Cir. 2006). See United States v. Bailey, 831 F.3d 1035, 1039
(8th Cir. 2016) (holding evidence was sufficient where a firearm was recovered
“along the route” of defendant’s flight within 45 minutes of his apprehension); United
States v. Light, 406 F.3d 995, 997-98 (8th Cir. 2005) (holding evidence was
sufficient where police “recovered a gun from the alley” where defendant was
apprehended even though no one saw him drop it or “kept an eye on the spot where
the gun was found”).

      The district court did not err in finding the evidence sufficient to convict.




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                                           II.

       Nickelous argues the district court erred in excluding expert testimony on
eyewitness identification. “This court reviews the exclusion of expert testimony for
abuse of discretion.” United States v. Martin, 391 F.3d 949, 954 (8th Cir. 2004).
“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.’” Id., quoting Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592
(1993); Fed. R. Evid. 702. The district court “has broad discretion” in balancing the
reliability and probative value of evidence “against its prejudicial effect.” United
States v. Kime, 99 F.3d 870, 883 (8th Cir. 1996).

       Nickelous’s expert opined that there was “a high probability that without
conscious intent” and “ no intentional bias,” the classmate “misconstrued some other
object like a phone as a gun.” The district court excluded the proposed testimony
because it would not assist the trier of fact. “The evaluation of eyewitness testimony
is for the jury alone. It is the exclusive province of the jury to determine the
believability of a witness. . . . An expert is not permitted to offer an opinion as to the
believability or truthfulness of a victim’s story.” Id. at 884 (internal quotation marks
omitted). Defense counsel is “capable of exposing to the jury any potentially
unreliable bases underlying” the eyewitness identification “through cross
examination.” Id.

       The district court also excluded the evidence because its limited relevance was
outweighed by the danger of misleading the jury. As in Kime, “the district court
properly recognized the very real danger that the proffered expert testimony could
either confuse the jury or cause it to substitute the expert’s credibility assessment for
its own.” Id. The district court did not abuse its discretion in excluding the
testimony here, especially because the conviction did not rest solely on the
classmate’s eyewitness testimony. See United States v. Davis, 260 F.3d 965, 970 (8th

                                           -4-
Cir. 2001) (holding that, like here, the district court did not err by excluding an
eyewitness identification expert because this court is “especially hesitant to find an
abuse of discretion unless the government’s case against the defendant rested
exclusively on uncorroborated eyewitness testimony”).

                                     *******

      The judgment is affirmed.

ERICKSON, Circuit Judge, concurring.

       I concur in the Court’s opinion but write separately to note an area of concern.
During the two decades that have elapsed since we decided United States v. Kime,
99 F.3d 870 (8th Cir. 1996), significant developments have occurred in our
understanding of memory science. The American Psychological Association has
taken the position in amicus filings that the reliability of witness memory can be
influenced by many factors that may not be readily apparent to lay persons. See Brief
for American Psychological Association as Amicus Curiae Supporting Petitioner,
Perry v. New Hampshire, 565 U.S. 228 (2012) (No. 10-8974), 2011 WL 3488994; see
also Brief for American Psychological Association as Amicus Curiae Supporting
Appellant, Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) (No. 28 EAP 2011),
2011 WL 7784187. Cognitive psychologists have reminded courts that the popular
conception of memory is often incorrect, noting that when we “experience an
important event, we do not simply record it in our memory as a videotape recorder
would.” Elizabeth F. Loftus, et al., Eyewitness Testimony: Civil and Criminal § 2-2,
at 12 (4th ed. 2007). The relationship between eyewitness observations and the
reliability of testimony in legal systems has been an area of intense interest in recent
years and, as the science develops, so too will our application of the science. See,
e.g., United States v. Bartlett, 567 F.3d 901, 906 (7th Cir. 2009) (“It will not do to
reply that jurors know from their daily lives that memory is fallible. The question that

                                          -5-
social science can address is how fallible, and thus how deeply any given
identification should be discounted.”).

       I agree that, under the facts as developed in this case, the district court did not
abuse its discretion by excluding Dr. Maclin’s testimony. I note, however, that some
of our prior language in Kime may be overbroad in light of the developing science.
District judges would be well served to consider each case individually and not rush
headlong into the conclusion that proffered expert testimony should be excluded in
all (or even most) cases because of its potential to confuse the jury, invade the
province of the jury, or because defense counsel is capable of exposing to the jury any
potentially unreliable bases underlying the eyewitness identification through cross
examination.

       Current scientific evidence reveals at least a controversy over whether or not
the usual legal process for rooting out witness unreliability is satisfactory in the
context of eyewitness identifications without fully informing the jury of the nature of
memory—including through the use of expert testimony. As I believe the district
court inquiry regarding admissibility in each case must be individualized and based
on the facts actually presented, I simply note that district courts should consider
carefully all of the circumstances before exercising their discretion to exclude such
evidence. In this case, the district court developed a sufficient record to support its
exercise of discretion. Under other circumstances, it might well be a better exercise
of discretion to admit the proffered evidence.
                         ______________________________




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