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USA v. Brink Precedential or Non-Precedential: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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation "USA v. Brink" (1994). 1994 Decisions. Paper 168. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/168
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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).