United States v. Cleophus Davis ( 1996 )


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  •                               _____________
    No. 95-3175
    _____________
    United States of America,            *
    *
    Plaintiff-Appellee,    *   Appeal from the United States
    *   District Court for the
    v.                              *   District of Nebraska.
    *
    Cleophus Davis, Jr.,                 *
    *
    Defendant-Appellant.   *
    _____________
    Submitted:   March 12, 1996
    Filed: December 23, 1996
    _____________
    Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
    _____________
    HANSEN, Circuit Judge.
    Cleophus Davis, Jr., was convicted by a jury of three counts
    of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d)
    (1988); and three counts of using a firearm during and in relation
    to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (1988
    Supp. V).1 Davis appeals his convictions and sentence, claiming
    numerous points of error by the district court.2 We affirm.
    1
    The district court severed a seventh count of using a
    dangerous and deadly weapon to forcibly assault a federal officer
    in violation of 18 U.S.C. § 111(b). The government subsequently
    dismissed this count.
    2
    The Honorable Thomas M. Shanahan, United States District
    Judge for the District of Nebraska.
    I.   Background
    This case involves the armed robbery of three separate,
    federally insured financial institutions in Omaha, Nebraska. Two
    of the armed robberies occurred only minutes apart on January 29,
    1994. The third took place on March 12, 1994. Cleophus Davis was
    arrested and charged with all three robberies. We recite the facts
    in the light most favorable to the verdict.
    The first robbery occurred at approximately 9:15 a.m. on
    January 29, 1994.    An individual of medium build wearing dark
    sweatpants, a dark stocking cap ski mask, white tennis shoes, and
    white gloves entered the Mid City Bank located at the 74th Street
    Plaza, armed with a dark-colored, short-barrelled gun. With the
    gun aimed at the teller, the suspect demanded money, and at some
    point during the robbery, he fired a shot but no one was injured.
    The robber fled with $1,511.
    No witnesses at the 74th Street Mid City Bank saw the robber's
    face because of the ski mask, but Ethel Griffin had been in her car
    in the plaza parking lot where the Mid City Bank is located. While
    she stated she could not identify the individual, she had noticed
    an African-American male as described above enter the bank. After
    hearing gunfire, she saw the same man leave the bank with a ski
    mask over his face and a yellow bag in his hand. The man ran by
    Ms. Griffin and turned north into a walkway that leads to another
    parking lot. Authorities discovered fresh footprints in the snow
    heading through the walkway toward the parking lot. The footprints
    measured approximately 11 inches long. Authorities also recovered
    a bullet fragment from the scene and later determined it to be a
    .38 caliber lead bullet with markings consistent with being fired
    from a gun with a very worn or heavily leaded barrel.
    Minutes later, at approximately 9:20 a.m., an individual with
    a ski mask over his face entered the Streamliner Credit Union at
    2
    210 North 78th Street and demanded money from the teller. (There
    was testimony that it takes three to five minutes to travel by car
    to this location from the Mid City Bank on 74th Street.) With a
    gun aimed at the teller, he said, "Fifties and hundreds, b****,
    fifties and hundreds."    (Trial Tr. at 415.)    Teller Susan Grow
    testified that the robber was an African-American male -- she could
    see his skin through the ski mask eye holes. She estimated that he
    was approximately 5'5'' to 5'8'' tall and weighed approximately 140
    pounds.     Another employee testified that the robber was
    approximately 5'7'' or 5'8'' tall with a thin build. The robber
    fled with $4,945.
    Again, fresh shoe prints were found in the snow along the path
    where the robber fled. The police photographed the prints. An
    Omaha police senior crime laboratory technician testified that the
    prints found near the Streamliner Credit Union were similar to
    those found near the scene of the first robbery at the 74th Street
    Mid City Bank.
    Less than two months later, on March 12, 1994, an armed
    robbery took place at the Mid City Bank at 304 South 42nd Street in
    Omaha. Shortly after 11 a.m., bank teller Rita Kuchcinski heard a
    loud popping noise. She looked up to see an African-American male
    in a dark-colored stocking cap with a white scarf around his neck
    and a dark-colored gun in his right hand. The robber pointed the
    gun at Ms. Kuchcinski's head and repeatedly demanded, "Give me all
    your hundreds and fifties." (Trial Tr. at 675.) He also said,
    "Come on, b**** . . . There's got to be more." (Id. at 676, 677).
    The vice president of the bank, Kenneth Grigsby, came out of his
    office upon hearing the loud noise. He saw an African-American
    male as described above leaning into Ms. Kuchcinski's teller booth
    and brandishing a dark-colored revolver. He estimated that the
    robber stood 5'6'' to 5'7'' tall and weighed 140 to 150 pounds.
    The individual fled with $2,400.
    3
    Around the time of this robbery, John Coats was in his car at
    a stoplight on the intersection of 42nd Street and Farnum, near the
    42nd Street Mid City Bank. Mr. Coats noticed an African-American
    male jogging toward him from the direction of the bank, crossing
    the street against the light.      Mr. Coats watched as the man
    approached and ran past Coats' automobile. The man had something
    white, like a towel, wrapped around his neck that blew off as he
    ran, but he did not attempt to stop it or retrieve it.         This
    behavior caught Mr. Coats' attention, and he continued to watch in
    his rearview mirror until he could no longer see the man.       Mr.
    Coats testified that at the time, he wondered what was happening
    because he knew "that bank gets held up a lot." (Trial Tr. at
    622.) Mr. Coats described the man he saw as having an angular face
    and estimated him to be in his mid- to late-20s, between 5'7'' and
    5'10'' tall, weighing around 165 pounds.
    After learning that the bank had been robbed on the morning
    when he had observed this unusual behavior, Mr. Coats reported to
    the FBI what he had seen. He, along with the bank teller from the
    42nd Street Mid City Bank, Ms. Kuchcinski, provided information for
    an FBI artist to sketch a likeness of the suspect. Both described
    an individual with an angular face, but neither witness was
    satisfied with the sketch. These two witnesses also participated
    in a police identification lineup.       Out of a lineup of four
    individuals, Mr. Coats identified Davis, noting a "strong
    probability" or an "80 to 90 percent probability" of being the
    person he saw after the robbery. (Trial Tr. at 632, 654.) Ms.
    Kuchcinski could not decide between Davis and one other person in
    the physical lineup, but she was able to identify Davis through a
    voice identification procedure where she listened to four
    individuals say the phrase, "Give me all your fifties and hundreds"
    -- a phrase the robber had repeatedly said to Kuchcinski.
    The evidence also shows that a few days before the first armed
    robberies on January 29, the Omaha police impounded a 1978 Lincoln
    4
    Continental automobile that was registered to Davis's girlfriend,
    Jessica Carr (now his wife). On the very morning of the first two
    robberies between 10:00 and 11:30 a.m., Davis and Carr went to a
    used car dealer and indicated that they wanted to purchase a 1985
    Nissan 300ZX. They paid $2,600 cash and registered it under Carr's
    name. Davis indicated to the dealer that he had recently received
    the money from a tax refund. The government presented evidence to
    demonstrate that neither Davis nor Carr had received any such
    refund. In fact, Davis was not employed, he was making his living
    "hustling" (Trial Tr. at 1074), and the IRS had no records of Davis
    filing any income tax documents from 1990 through 1993.         The
    evidence also indicated that although the Nissan 300ZX was
    registered to Carr, Davis drove it and took care of it.
    When he was arrested, Davis was wearing shoes that measured 11
    inches long, and a partial box of .38 caliber wadcutter cartridges
    was found in plain view in the Nissan 300ZX. Davis was 25 years
    old, stood approximately 5'8'' tall, and weighed approximately 140
    pounds. Davis denied any involvement in the bank robberies or in
    the purchase of the Nissan.
    The .38 caliber wadcutter cartridges found in a box in the
    Nissan were later tested against the bullets found at the crime
    scenes.   The crime scene bullets bore markings similar to each
    other, indicating that they were possibly fired by the same gun.
    The bullets from the box found in the Nissan were determined to be
    analytically indistinguishable from the bullets recovered at the
    74th Street Mid City Bank and the 42nd Street Mid City Bank. An
    expert testified that such a finding is rare and that the bullets
    must have come from the same box or from another box that would
    have been made by the same company on the same day.
    Two FBI agents later searched the Nissan 300ZX with the
    consent of its owner, Jessica Carr. They were looking for a gun,
    which they did not find. They found a receipt from some repairs
    5
    that had been done to the vehicle, an estimate for those repairs,
    and a pair of tennis shoes. After searching the car, the agents
    allowed Jessica Carr to take some personal items out of the car.
    Agent Holmquist testified that she took the Nissan 300ZX owner's
    manual, a little white pillow, a chess or checkers box, and some
    other personal items. She then asked for a box to carry the items
    in, and the agents found a brown cardboard box to give her.
    In late June 1994, upon belief that evidence of the robbery
    was located in Shauna Copeland's apartment, where Jessica Carr had
    been staying, FBI agents obtained and executed a search warrant for
    that apartment.    Authorities searched Copeland's apartment and
    found a brown cardboard box that Ms. Carr was storing there. Agent
    Holmquist of the FBI testified that the box looked like the one he
    had given Carr to carry the personal items she had retrieved from
    the Nissan.    Within the box, agents found the Nissan owner's
    manual, a little white pillow, a chess set, a picture of Cleophus
    Davis, an invoice with Davis's name on it, and a .38 caliber snub
    nosed revolver. The FBI later tested the gun and found it to have
    a very worn, heavily leaded barrel, consistent with the markings on
    the bullets recovered from the crime scenes. An expert witness
    opined that it is possible that the bullets recovered from the 74th
    Street Mid City Bank and the 42nd Street Mid City Bank were fired
    from this weapon.
    Davis was charged in a superseding indictment with three
    counts of armed robbery and three counts of use of a firearm in
    connection with a crime of violence. A jury convicted Davis of all
    six counts, and the district court sentenced him to a total term of
    670 months of imprisonment. Davis appeals.
    II.   Sufficiency of the Evidence
    Davis first challenges the sufficiency of the evidence to
    sustain his convictions. The district court denied his motion for
    6
    acquittal and his motion for a new trial. Davis argues that the
    district court erred in denying his motions because the evidence in
    this case is as equally strong to infer innocence as it is to infer
    guilt. We disagree.
    We review the denial of a motion for acquittal by viewing the
    evidence in the light most favorable to the verdict, giving the
    government the benefit of all reasonable inferences to be drawn
    from the evidence. United States v. French, 
    88 F.3d 686
    , 687-88
    (8th Cir. 1996); United States v. Teitloff, 
    55 F.3d 391
    , 393 (8th
    Cir. 1995). We will uphold the conviction against a challenge to
    the sufficiency of the evidence unless "a reasonable factfinder
    must have entertained a reasonable doubt about the government's
    proof of one of the offense's essential elements." 
    Id. (internal quotations
    omitted). See Jackson v. Virginia, 
    443 U.S. 307
    , 317
    (1979).   This standard applies even when the conviction rests
    entirely on circumstantial evidence. United States v. Wilcox, 
    50 F.3d 600
    , 602-03 (8th Cir. 1995).
    "[W]here the government's evidence is equally strong to infer
    innocence as to infer guilt, the verdict must be one of not guilty
    and the court has a duty to direct an acquittal." United States v.
    Kelton, 
    446 F.2d 669
    , 671 (8th Cir. 1971).      In determining the
    strength of the evidence in a circumstantial case, "it is the
    totality of the circumstances that must be weighed in making a
    decision on a motion for acquittal." United States v. Kelton, 
    519 F.2d 366
    , 367 (8th Cir.), cert. denied, 
    423 U.S. 932
    (1975).
    We conclude that the government presented a substantial amount
    of circumstantial evidence from which the jury could reasonably
    find (beyond a reasonable doubt) that Davis committed all three
    robberies. To summarize, the two eye witnesses to the last robbery
    (at the 42nd Street Mid City Bank) identified Davis out of court.
    Mr. Coats, who had seen the robber run across the street,
    identified Davis in a lineup, and Ms. Kuchcinski, the teller from
    7
    whom the robber had demanded money, narrowed the physical lineup to
    Davis and one other and then identified Davis's voice in a voice
    identification procedure.      Although no eyewitnesses saw the
    suspect's face at the first two robbery scenes, Davis can also be
    logically linked to them from the evidence at the last robbery
    scene.     Davis's physical characteristics fit the general
    descriptions given by all the witnesses at all the crime scenes.
    His choice of words when demanding money at the last robbery was
    very similar to his choice of words at the Streamliner Bank (the
    second robbery). The shoes he wore when arrested were the same
    length as the footprints in the snow where the suspect fled from
    the first two robberies.
    Additionally, expert testimony demonstrated a high probability
    that the bullets spent at the first robbery and the last robbery
    originated from the same box of cartridges. They can be linked to
    Davis because they are analytically indistinguishable from the
    partial box of cartridges found in the Nissan that Davis and Carr
    purchased, a very rare finding.      When told that a box of .38
    caliber wadcutter cartridges had been found in the Nissan 300ZX,
    would be evaluated, and would be compared with the bullets found at
    the robbery scenes, Davis looked at the interviewing officer,
    smiled and said, "You don't have a gun, do you?" (Trial Tr. at
    1076.) Davis then asked if any fingerprints had been found at the
    banks; he told the officer, "Bring me some fingerprints and we'll
    talk."   (Id.)   The .38 caliber snub-nosed gun, found in the
    possessions that were clearly linked to the defendant, had a
    heavily leaded and worn barrel, which is consistent with the
    markings on the bullets found at both the first and last crime
    scenes.
    The government also introduced evidence of motive very close
    in time to the crimes. The car Davis drove was repossessed a few
    days before the first robberies, and Davis used a large sum of cash
    to purchase the Nissan 300ZX on the very day of the first two
    8
    robberies -- a time when the defendant had no job or legitimate
    source of income. Further, Davis lied to the car salesman about
    the source of the cash.
    After reviewing the entire record, we are satisfied that the
    evidence in this case, "although circumstantial, is not equivocal
    on its face," and was therefore properly submitted to the jury.
    
    Kelton, 519 F.2d at 367
    . Viewing the totality of the evidence in
    the light most favorable to the verdict, the evidence is sufficient
    for the jury to have found guilt on all of the counts beyond a
    reasonable doubt. Davis points to conflicts that existed in the
    evidence in an attempt to discredit the verdict.       This attempt
    fails, because regardless of the conflicts, our review only
    considers the reasonable inferences that may be drawn when the
    evidence is viewed in the light most favorable to the verdict. The
    jury was responsible for resolving conflicts in the evidence. The
    district court did not err by denying Davis's motion for judgment
    of acquittal.
    Davis also contends that the district court abused its
    discretion by denying his motion for a new trial, arguing that the
    verdict is contrary to the great weight of the evidence.        In
    assessing whether the defendant is entitled to a new trial on this
    basis, the district court weighs the evidence and evaluates anew
    the credibility of the witnesses to determine if a miscarriage of
    justice may have occurred. United States v. Rodriguez, 
    812 F.2d 414
    , 417 (8th Cir. 1987); United States v. Lincoln, 
    630 F.2d 1313
    ,
    1319 (8th Cir. 1980). We review the district court's denial of a
    new trial on this ground for "a clear and manifest abuse of
    discretion."    
    Rodriguez, 812 F.2d at 417
    .      Having carefully
    reviewed the record, we cannot say that the district court
    committed a clear and manifest abuse of discretion by denying
    Davis's motion for a new trial.
    9
    III.   Theory of Defense
    Davis contends that the district court erred by failing to
    incorporate into the jury instructions his suggested instruction on
    his theory of defense -- misidentification.3       A defendant is
    3
    Davis proposed the following theory of defense instruction:
    Cleophus Davis has pleaded not guilty to the charges
    made in counts I - VI of the Indictment. Davis' plea of
    not guilty puts in issue each of the essential elements
    of the offenses charged and imposes upon the government
    the burden of proving each of the essential elements of
    those charges beyond a reasonable doubt.
    Cleophus Davis contends that he is not guilty
    because he has been mistakenly identified as the
    perpetrator. Accordingly, the following must be noted:
    First, Davis should not be prejudiced by the fact
    that neither the government nor himself identified who
    the actual perpetrator was.
    Second, you are free to consider and weigh the
    effect of the government's failure to adduce any direct
    evidence against Davis that proved that Davis was the
    person who actually committed the robberies.
    Third, as a general rule the law makes no
    distinction between direct and circumstantial evidence,
    but simply requires that you be satisfied of the
    defendant's guilt beyond a reasonable doubt before
    convicting him. In considering circumstantial evidence,
    keep certain things in mind. The circumstances must be
    proved beyond a reasonable doubt. These circumstance[s]
    should be consistent with guilt and inconsistent with
    innocence.   They ought to be of such a conclusive or
    positive tendency as to convince you of guilt beyond a
    reasonable doubt than of some other conclusion.
    Therefore, if the circumstances are susceptible of two
    equally reasonable constructions -- one indicating guilt
    and the other innocence -- then, of course, you should
    find the defendant innocent.
    (Appellant's Addend. at 14-15.)
    10
    entitled to an instruction on his theory of defense if the
    defendant makes a proper request, if there is evidence to support
    the instruction, and if the instruction contains a correct
    statement of the law. United States v. Gonzales, 
    90 F.3d 1363
    ,
    1371 (8th Cir. 1996); United States v. Long Crow, 
    37 F.3d 1319
    ,
    1323 (8th Cir. 1994), cert. denied, 
    115 S. Ct. 1167
    (1995). We
    review for an abuse of discretion the district court's refusal to
    give a particularly worded "theory of defense" instruction,
    
    Gonzales, 90 F.3d at 1371
    , but we review de novo the question of
    whether there is sufficient evidence to submit an affirmative
    theory of defense, Long 
    Crow, 37 F.3d at 1323
    .
    In this case, while the district court rejected Davis's
    particularly worded theory of defense instruction, it did not
    reject   as  unsupported   by   the  evidence   his  defense   of
    misidentification.   Instead, the district court adopted Davis's
    instruction in part, incorporating the claim of mistaken identity
    into an existing instruction that set forth the presumption of
    innocence and the government's burden of proof. (See Supp. R. at
    43; Jury Instr. 4.) To Instruction 4, the district court added the
    following: "Also, Cleophus Davis contends that he is not guilty
    because he has been mistakenly identified as the perpetrator of the
    offenses stated in the Superseding Indictment." (Id.) We conclude
    that the inclusion of this paragraph sufficiently instructed the
    jury on Davis's misidentification theory of defense.
    The district court rejected the remainder of Davis's proposed
    instruction, which explained circumstantial evidence and reasonable
    doubt.    The contents of the remainder of Davis's proposed
    instruction were cumulative of material already covered in other
    parts of the existing jury instructions. Instruction 6 adequately
    explained the reasonable doubt standard, and Instruction 7
    adequately directed the jury to consider the reasonable inferences
    arising from the evidence and informed them that the law makes no
    11
    distinction between circumstantial and direct evidence. (See Supp.
    R. at 45-46.)
    Davis specifically argues, however, that nowhere did the
    court's jury instructions state that the jury must find the
    defendant not guilty if the circumstantial evidence was equally
    susceptible to guilt as to innocence. This argument, in essence,
    is based on nothing more than a particular wording of the
    government's burden of proof, which is guilt beyond a reasonable
    doubt.
    [S]o long as the court instructs the jury on the
    necessity that the defendant's guilt be proved beyond a
    reasonable doubt, the Constitution does not require that
    any particular form of words be used in advising the jury
    of the government's burden of proof. Rather, "taken as
    a whole, the instructions [must] correctly conve[y] the
    concept of reasonable doubt to the jury."
    Victor v. Nebraska, 
    511 U.S. 1
    , 5 (1994) (alterations in original).
    We have specifically and repeatedly approved the reasonable doubt
    instruction given by the district court in this case4 "as an
    accurate statement of the requisite burden of proof."        United
    States v. Rogers, 
    91 F.3d 53
    , 56 (8th Cir. 1996). Accordingly, we
    hold that the district court did not abuse its discretion by
    refusing to adopt the defendant's particularly worded jury
    instruction.
    4
    Jury Instruction 6 stated as follows:
    A reasonable doubt is a doubt based upon reason and
    common sense, and not the mere possibility of innocence.
    A reasonable doubt is the kind of doubt that would make
    a reasonable person hesitate to act.     Proof beyond a
    reasonable doubt, therefore, must be proof of such a
    convincing character that a reasonable person would not
    hesitate to rely and act upon it. However, proof beyond
    a reasonable doubt does not mean proof beyond all
    possible doubt.
    (Supp. R. at 45.)
    12
    The standard offered by the defendant is the legal standard
    used by district courts to determine whether the case should be
    submitted to the jury. See 
    Kelton, 446 F.2d at 671
    . While an
    instruction on this standard has been approved where the overall
    instructions properly placed the burden on the government to prove
    every element of the crime beyond a reasonable doubt, see United
    States v. Vaglica, 
    720 F.2d 388
    , 391 (5th Cir. 1983), it in fact
    has also been condemned "because standing alone, [the] language may
    mislead a jury into thinking that the government's burden is
    somehow less than proof beyond a reasonable doubt," United States
    v. Attanasio, 
    870 F.2d 809
    , 818 (2d Cir. 1989) (internal quotations
    omitted). We see no reason to transform the standard by which a
    motion for judgment of acquittal is tested into a required jury
    instruction.    Additionally, the lack of a particularly worded
    instruction did not prevent Davis's attorney from vigorously
    arguing to the jury the standard that he offered in his proposed
    instruction. (See Trial Tr. at 1418, 1435.)
    IV.   Identification Procedures
    Davis contends that the district court erred by refusing to
    suppress the in-court identification by John Coats, the witness who
    observed the robber from his car while waiting at a stoplight near
    the last robbery scene.    Because this claim implicates Davis's
    right to constitutional procedural due process, we review this
    question de novo. United States v. Johnson, 
    56 F.3d 947
    , 953 (8th
    Cir. 1995).
    "Reliability is the linchpin in determining the admissibility
    of identification testimony . . . ." Manson v. Brathwaite, 
    432 U.S. 98
    , 113, 114 (1977).       Identification testimony will be
    suppressed only if the procedure was "so impermissibly suggestive
    as to give rise to a very substantial likelihood of irreparable
    misidentification." Simmons v. United States, 
    390 U.S. 377
    , 384
    (1968); accord 
    Manson, 432 U.S. at 116
    ; United States v. Rogers, 73
    
    13 F.3d 774
    , 778 (8th Cir.), cert. denied, 
    116 S. Ct. 1889
    (1996);
    United States v. Murdock, 
    928 F.2d 293
    , 297 (8th Cir. 1991). This
    determination turns upon the totality of the circumstances in each
    case, considering factors that "include the opportunity of the
    witness to view the criminal at the time of the crime, the witness'
    degree of attention, the accuracy of his prior description of the
    criminal, the level of certainty demonstrated at the confrontation,
    and the time between the crime and the confrontation." 
    Manson, 432 U.S. at 114
    . We must weigh the totality of these circumstances
    against "the corrupting effect of the suggestive identification
    itself" to determine whether suppression is warranted. 
    Id. Davis contends
    that Mr. Coats' in-court identification was
    made under an impermissibly suggestive procedure because Davis was
    the only African-American male seated at the defense counsel table,
    and the only other African-American individual present was a man in
    the back of the courtroom.       While recognizing the potential
    suggestive nature of in-court identifications where an African-
    American defendant is seated at counsel table, we have previously
    rejected claims similar to the one Davis makes here, finding that
    although the in-court identification procedure may have been
    suggestive or tainted, it was not so impermissibly suggestive as to
    lead to a likelihood of irreparable misidentification. See 
    Rogers, 73 F.3d at 778
    (holding no due process violation where counsel
    attacked the reliability and credibility of the identification
    during cross-examination and the testimony of two other witnesses
    identified the defendant); 
    Murdock, 928 F.2d at 297
    (holding no due
    process violation where defendant did not request special seating
    or object to the racial composition of the courtroom, the
    identifications were open to attack on cross-examination, and the
    identifications were reliable under the totality of the
    circumstances). We agree with the Ninth Circuit's assessment that
    "[t]here is no constitutional entitlement to an in-court line-up or
    other particular methods of lessening the suggestiveness of in-
    court identification, such as seating the defendant elsewhere in
    14
    the room. These are matters within the discretion of the court."
    United States v. Domina, 
    784 F.2d 1361
    , 1369 (9th Cir. 1986), cert.
    denied, 
    479 U.S. 1039
    (1987).
    In this case, Davis made a specific objection to the racial
    composition of the courtroom and requested that he not be seated at
    counsel table during the identification procedures. The district
    court denied the request, concluding that the defendant was
    adequately protected by cross-examination. The district court did
    not abuse its discretion because our review of the record convinces
    us that the government's questions were not suggestive, the
    witness's in-court identification was vigorously attacked on cross-
    examination, and more importantly, other circumstances indicate
    that the witness's testimony was reliable enough to be presented to
    the jury.
    On the day of the crime, Mr. Coats had observed a man running
    away from the direction of the 42nd Street Mid City Bank and toward
    his car as he was stopped at a street light. Mr. Coats viewed him
    with a good degree of attention and continued to watch him through
    the rearview mirror until he was out of sight, because of his
    unusual behavior. Within a few days after the crime, Mr. Coats
    provided a detailed description of the man he saw running by his
    car. Coats also chose Davis out of a pretrial lineup, identifying
    Davis with a "strong probability" or an "80 to 90 percent
    probability" of being the person he saw running from the 42nd
    Street Mid City bank after the robbery. (Trial Tr. at 632, 654.)
    The district court found that the lineup procedure was not
    suggestive (the witnesses reviewed the lineup separately and were
    advised that there was no obligation to choose anyone), and Davis
    does not challenge the reliability of the lineup in this appeal.
    Rita Kuchcinski, another eye witness, also identified Davis through
    out-of-court procedures that were determined not to be suggestive
    in any way. Thus, this case did not rest solely on the reliability
    of Mr. Coats' in-court identification, and given the total
    15
    circumstances, the arguably suggestive nature of the in-court
    identification was not so impermissibly suggestive as to create "a
    very substantial likelihood of irreparable misidentification."
    
    Simmons, 390 U.S. at 384
    . "We are content to rely upon the good
    sense and judgment of American juries, for evidence with some
    element of untrustworthiness is customary grist for the jury mill.
    Juries are not so susceptible that they cannot measure
    intelligently the weight of identification testimony that has some
    questionable feature." 
    Manson, 432 U.S. at 116
    .
    Davis also challenges the voice identification procedure.
    Rita Kuchcinski, the bank teller at the 42nd Street Mid City Bank,
    participated in both the physical lineup and voice identification
    procedures. During the lineup, she could not decide between two
    individuals -- Davis and one other person -- but she did identify
    Davis by his voice. The voice identification procedure consisted
    of requiring four individuals to repeat the phrase that the robber
    had repeatedly yelled at Kuchcinski: Give me all your hundreds and
    fifties. Kuchcinski was not allowed to see the individuals as they
    spoke. Kuchcinski identified Davis's voice and testified that she
    was quite sure that her identification was accurate.
    Davis contends that Kuchcinski could not have had sufficient
    opportunity to listen to the robber's voice at the time of the
    crime, because the robber made only one statement to her. This
    argument is not factually accurate according to our reading of the
    record, and in any event, it puts the cart before the horse.
    Through this argument, Davis attempts to demonstrate a likelihood
    of irreparable misidentification without first demonstrating that
    the voice identification procedure itself was in any way
    suggestive. An irreparable likelihood of misidentification does
    not arise through the circumstances of the crime alone but arises
    upon the government's use of suggestive identification procedures
    when combined with the specific circumstances of the crime. Absent
    an impermissibly suggestive identification procedure, there can be
    16
    no due process violation.    Accordingly, we find this claim to be
    without merit.
    V.     Evidentiary Issues
    Davis contends that the district court erred by denying his
    motion to suppress evidence seized at Shauna Copeland's apartment.
    "In reviewing the grant or denial of a motion to suppress evidence
    on Fourth Amendment grounds, we are bound by the district court's
    findings of fact regarding the circumstances of the search unless
    we believe on the basis of the record as a whole that the district
    court clearly erred." United States v. Riedesel, 
    987 F.2d 1383
    ,
    1387 (8th Cir. 1993). Clear error occurs when the decision is not
    supported by substantial evidence, reflects an erroneous view of
    the applicable law, or leaves us with a definite and firm
    conviction that a mistake has been made. 
    Teitloff, 55 F.3d at 393
    .
    "We may reverse the district court's ultimate ruling on the
    suppression motion, however, if the ruling reflects an erroneous
    view of the applicable law." 
    Riedesel, 987 F.2d at 1388
    . This
    amounts to a de novo review of the ultimate decision of a district
    court to deny a motion to suppress. United States v. Gomez, 
    16 F.3d 254
    , 256 (8th Cir. 1994).
    "Fourth Amendment rights are personal and may not be asserted
    vicariously . . . ." 
    Id. (citing Rakas
    v. Illinois, 
    439 U.S. 128
    ,
    138-44 (1978)). Consequently, the defendant must demonstrate "a
    legitimate expectation of privacy in the area searched or the item
    seized." 
    Id. In this
    case, Davis failed to demonstrate either.
    The apartment searched was the residence of Shauna Copeland. Davis
    does not contend that he lived at this address or that he was a
    guest in the home at the time of the search. See Minnesota v.
    Olson, 
    495 U.S. 91
    , 95-100 (1990) (holding overnight guest had a
    legitimate   expectation   of   privacy  in   the   host's  home).
    Furthermore, Davis does not claim ownership of the box, which
    Jessica Carr was storing at this address.      Absent a legitimate
    17
    expectation of privacy in Shauna Copeland's apartment or in the
    box, the search and seizure did not violate Davis's Fourth
    Amendment rights.
    Davis also contends the district court erred by admitting
    irrelevant and prejudicial evidence -- namely, information about
    his failure to file income tax returns, information about the
    purchase of the Nissan 300ZX, a bullet recovered from a parking lot
    during surveillance of Davis's residence, and testimony concerning
    two guns.      "We review [the] district court's ruling on
    admissibility of evidence for an abuse of discretion," United
    States v. Mendoza, 
    85 F.3d 1347
    , 1351 (8th Cir. 1996), discussing
    each piece of evidence in turn.
    Davis argues that the income tax information was not relevant
    within the meaning of Federal Rules of Evidence 401 and 402, and to
    the extent the tax information was relevant at all, its relevance
    was outweighed by its prejudicial effect. See Fed. R. Evid. 403.
    Also, Davis contends that the tax information violated Federal Rule
    of Evidence 404(b).       Contrary to Davis's assertions, the
    information that Davis had not filed income tax returns for the
    preceding two years was relevant to a material issue of fact at
    trial, its prejudicial effect did not outweigh that probative
    value, and it was not offered to show bad character. "Rule 404(b)
    only forbids introduction of extrinsic bad acts whose only
    relevance is to prove character, not bad acts that form the factual
    setting of the crime in issue." United States v. Williams, 
    95 F.3d 723
    , 731 (8th Cir. 1996). The tax evidence was relevant to the
    factual issues of this case because it demonstrated Davis's lack of
    a legitimate source of income at the time he and Carr purchased the
    Nissan 300ZX with cash and refuted the explanation he gave the car
    dealer concerning the source of the cash. See United States v.
    Vannerson, 
    786 F.2d 221
    , 224 (6th Cir.) (holding robber's failure
    to file income taxes was relevant to demonstrate his pre-theft
    income and to negate defendant's claim that he received income from
    18
    playing in bands), cert. denied, 
    476 U.S. 1123
    (1986).
    Furthermore, the prejudicial effect of this evidence did not
    outweigh its probative value.
    Similarly, the testimony concerning the purchase of the Nissan
    300ZX was relevant to material factual issues and was not unfairly
    prejudicial. The purchase of this automobile and expenditures made
    for its maintenance explained what may have happened to the
    proceeds from the bank robberies.     Davis's involvement in the
    purchase and maintenance of the Nissan 300ZX, in which
    incriminating evidence was found, helped link Davis to that
    evidence and to the crimes at issue.
    Davis contests the admission of a .38 caliber shell found in
    the parking lot near his apartment, arguing that it did not make it
    more probable that he committed the robberies. To the contrary,
    this evidence was relevant to Davis's use of a .38 caliber gun, and
    expert testimony linked this particular shell to the box of
    cartridges found in the Nissan. Expert testimony also linked that
    box of cartridges to the bullets recovered from the crime scenes.
    Likewise, the testimony concerning the .38 caliber guns was
    relevant.   From examining the bullets recovered from the crime
    scenes, an expert was able to conclude that the gun that shot these
    bullets had a very worn and heavily leaded barrel. The first gun
    tested, which was linked to a different suspect, was eliminated
    from the investigation because it did not have a worn and heavily
    leaded barrel that could have made the marks found on the bullets
    at the robbery scenes. The .38 caliber gun found in the box of
    personal items linked to Davis that Jessica Carr was storing at
    Shauna Copeland's apartment, on the other hand, matched the
    physical descriptions of the gun used during the crimes and had a
    very dirty barrel with heavy lead deposits, which could have
    produced the marks on the bullets found at the crime scenes. The
    testimony concerning these guns bears obvious relevance to the
    19
    crimes charged because it permits the inference that the gun found
    in the box of items linked to Davis was in fact the gun used during
    the robberies. Again, the probative value of the evidence was not
    outweighed by its prejudicial effect.        We find no abuse of
    discretion in the district court's evidentiary rulings.
    VI.   Scientific Evidence
    The Federal Rules of Evidence provide that expert scientific
    testimony is admissible pursuant to Rule 702 if the district court
    first concludes, pursuant to Rule 104(a), "that the expert is
    proposing to testify to (1) scientific knowledge that (2) will
    assist the trier of fact to understand or determine a fact in
    issue." Daubert v. Merrell Dow Pharm., Inc., 
    509 U.S. 579
    , 592
    (1993); accord United States v. Martinez, 
    3 F.3d 1191
    , 1196 (8th
    Cir. 1993), cert. denied, 
    510 U.S. 1062
    (1994). The Supreme Court
    has emphasized that Rule 702 envisions a flexible inquiry: "Its
    overarching subject is the scientific validity -- and thus the
    evidentiary relevance and reliability -- of the principles that
    underlie a proposed submission.     The focus, of course, must be
    solely on principles and methodology, not on the conclusions that
    they generate." 
    Daubert, 509 U.S. at 594-95
    . Relevant, but not
    exclusive, concerns when assessing the reliability of the evidence
    include (1) whether the theory or technique can or has been tested,
    (2) whether it has been subjected to peer review and publication,
    (3) the known or potential rate of error of the technique, and (4)
    general acceptance among the scientific community. 
    Id. at 593-94;
    United States v. Kime, 
    99 F.3d 870
    , 883 (8th Cir. 1996); United
    States v. Reynolds, 
    77 F.3d 253
    , 254 n.1 (8th Cir. 1996).        We
    review for an abuse of discretion the district court's decision
    regarding the admissibility of scientific evidence. See 
    Johnson, 56 F.3d at 952
    .
    The district court held a preliminary evidentiary hearing to
    determine the admissibility of the expert testimony proffered by
    20
    the government on Inductively Coupled Plasma-Atomic Emission
    Spectrometry (ICP), a process used in this case to analyze and
    compare trace elements found in the bullet fragments.          The
    government presented the testimony of John Riley, special agent of
    the FBI, who specializes in the analysis of various materials for
    their elemental and trace elemental composition. Mr. Riley has
    been doing this work for approximately 27 years. He has a bachelor
    of science degree in chemistry and a master of science degree in
    forensic science. He has also authored articles and lectured on
    this subject.
    Mr. Riley testified that ICP, an analysis that the FBI has
    been using for approximately 10 years, is a generally accepted
    scientific technique that has been subjected to testing,
    publication, and peer review, and the technique is the same no
    matter who performs it. Another procedure used to accomplish the
    same basic analysis is neuron activation analysis. The FBI has
    been using the neuron activation analysis since the mid-1960s but
    now favors ICP for trace elemental analysis because ICP is more
    sensitive.   ICP can determine trace elements down to parts per
    million (.0000001 percent). The procedure determines which of five
    trace elements are present in the bullets to be compared. If the
    same elements are present in each, then the procedure determines
    the percentage of each element present. If the same elements are
    present in the same amounts then they are analytically
    indistinguishable.
    Mr. Riley testified that research has been conducted on the
    composition and comparison of bullets manufactured at the same
    plant on either the same or different days and at different plants.
    The research revealed that while 400,000 bullets could be produced
    at a factory in one day, the composition of those bullets will vary
    vastly unless they were manufactured side by side, because lead is
    a heavy molten metal that cannot be mixed into a completely
    homogenous mixture throughout; pockets of different elemental
    21
    compositions will exist and additional lead of differing elemental
    compositions is periodically added to the cauldron throughout a
    day, changing the elemental composition of the bullets produced.
    Based on this research and the results of the trace elemental
    composition ICP analysis, the expert concluded that the bullets at
    issue were analytically indistinguishable from some of the bullets
    in the box of cartridges found in the Nissan, that they were
    generally similar to the remaining bullets in that box, and that
    there was a high correlation between the two bullets found at the
    crime scenes. He also concluded that these bullets must have been
    manufactured at the same Remington factory, must have come from the
    same batch of lead, must have been packaged on or about the same
    day, and could have come from the same box.
    Defense counsel attacked the information by reading one
    paragraph from a book (see Trial Tr. at 838), which criticized
    neuron activation analysis (ICP was the analysis used here),
    because there is no way of knowing exactly how many bullets
    manufactured by the same company have this same elemental
    composition. The expert in this case admitted having no way of
    knowing how many other bullets Remington produced on the same day
    as these that also would have a composition that is analytically
    indistinguishable from the bullets tested here.
    At the end of this hearing, the court determined that there
    was a sufficient scientific basis to admit the expert's testimony.
    The court concluded that the book criticizing this use of the
    evidence goes to weight and credibility, not the scientific basis
    of the evidence. Davis does not attempt to demonstrate that ICP is
    not a scientifically valid technique for determining the trace
    elemental composition of bullets, or does he attempt to demonstrate
    that Agent Riley improperly performed the technique. Instead, he
    challenges the conclusion that because the bullets are analytically
    indistinguishable from those found in Davis's cartridge box, they
    22
    must have come from that box. He also argues that the evidence was
    more prejudicial than probative for this reason.
    We conclude that the district court fully executed its
    gatekeeping function, see 
    Martinez, 3 F.3d at 1196
    , and did not
    abuse its discretion by admitting the expert testimony.       The
    evidence made it more probable than not that the expended bullets
    originated from the cartridge box found in the Nissan. Davis was
    free to challenge the expert's conclusions and point out the
    weaknesses of the analysis to the jury during cross-examination.
    Weight and credibility are the province of the jury. "Vigorous
    cross-examination, presentation of contrary evidence, and careful
    instruction on the burden of proof are the traditional and
    appropriate means of attacking shaky but admissible evidence."
    
    Daubert, 509 U.S. at 596
    .
    VII.   Indictment Defects
    Davis contends that the district court erred by not dismissing
    the superseding indictment because of an irregularity consisting of
    a "re-vote" in the Grand Jury proceedings.        Federal Rule of
    Criminal Procedure 12(b)(2) requires defendants to raise defenses
    and objections based on the indictment prior to trial, and a
    failure to do so constitutes a waiver, Fed. R. Crim. P. 12(f).
    United States v. Prescott, 
    42 F.3d 1165
    , 1167 (8th Cir. 1994).
    Prior to trial, Davis filed a motion to disclose the grand jury
    minutes in order to search for irregularities in the proceedings.
    A magistrate judge reviewed the transcripts of the grand jury
    proceedings, found no irregularities, and denied the defendant's
    motion to review the transcripts, describing the request as a
    fishing expedition. Davis made no objection to the district court
    regarding this order and did not move to dismiss the superseding
    indictment on the basis of an irregularity. Accordingly, we will
    not entertain the issue. Any alleged defects in the indictment
    have been waived.
    23
    Davis also contends that the superseding indictment contained
    a fatal jurisdictional defect that the government failed either to
    amend or prove.    Count V charged Davis with armed robbery, in
    violation of 18 U.S.C. § 2113(a) and (d), of the 42nd Street Mid
    City Bank. The indictment stated that the 42nd Street Mid City
    Bank was insured by the National Credit Union Administration. In
    fact, however, the 42nd Street Mid City Bank was insured by the
    Federal Deposit Insurance Corporation (FDIC), and the government's
    evidence at trial proved that the bank was insured by the FDIC.
    Davis moved to dismiss or acquit on count V at the close of the
    government's evidence on the ground that the government failed to
    prove what it alleged in the indictment, but he did not renew that
    motion at the close of trial before deliberation and did not argue
    it in his motion for new trial.      Further, Jury Instruction 14
    required the jury to find that the 42nd Street Mid City Bank was
    insured by the FDIC, which is in accord with § 2113(f), and the
    record reveals no objection to the final form of Jury Instruction
    14. The jury convicted Davis on this count.
    Although the sufficiency of the indictment is a
    jurisdictional issue that may be raised at any time, an
    indictment that is challenged after jeopardy has attached
    will be liberally construed in favor of sufficiency. The
    indictment will then be upheld unless it is so defective
    that by no reasonable construction can it be said to
    charge the offense for which the defendants were
    convicted.
    United States v. Just, 
    74 F.3d 902
    , 904 (8th Cir. 1996).
    Section 2113 makes it a crime to engage in armed robbery of
    "any bank, credit union, or any savings and loan association." 18
    U.S.C. § 2113(a). Section 2113 separately defines "bank," as "any
    member bank of the Federal Reserve System, and any bank, banking
    association, trust company, savings bank, or other banking
    institution organized or operating under the laws of the United
    States . . . and any institution the deposits of which are insured
    24
    by the Federal Deposit Insurance Corporation."     
    Id. § 2113(f).
    Section 2113 also separately defines "credit union" as a "credit
    union the accounts of which are insured by the National Credit
    Union Administration Board." 
    Id. § 2113(g).
    Davis argues that
    because   these   are  separate   jurisdictional   elements,   the
    government's recital of the wrong federal insuring agency in the
    indictment is fatal. See United States v. Mize, 
    756 F.2d 353
    (5th
    Cir. 1985) (holding that reversal is required when a federal
    criminal statute has more than one separately defined basis of
    jurisdiction and the jurisdictional element stated in the
    indictment is constructively modified at trial); see also United
    States v. Fitzpatrick, 
    581 F.2d 1221
    (5th Cir. 1978) (holding
    § 2113 states three alternative bases for federal jurisdiction for
    robbery of a savings and loan institution, and a fatal defect
    occurred where indictment charged that the institution was
    federally insured while the court charged the jury on an alternate
    statutory basis for federal jurisdiction -- the presence of a
    federal charter).
    "As a general rule, an indictment is sufficient if it first,
    contains the elements of the charged offense and fairly informs a
    defendant of the charge against which he must defend, and second,
    enables him to plead double jeopardy as a bar to future
    prosecution." United States v. 
    Just, 74 F.3d at 903-04
    (internal
    quotations omitted).   It has long been the rule that "after an
    indictment has been returned its charges may not be broadened
    through amendment except by the grand jury itself." Stirone v.
    United States, 
    361 U.S. 212
    , 215-16 (1960). To convict a defendant
    on a charge not made against him in the indictment is fatal error
    that requires reversal. 
    Id. at 219.
    A mere variance between the
    indictment and the proof, however, which "occurs when the charging
    terms are left unaltered but the evidence offered at trial proves
    facts different from those alleged in the indictment," does not
    require reversal of a conviction unless the variance results in
    25
    actual prejudice. United States v. Koen, 
    31 F.3d 722
    , 724 (8th
    Cir. 1994), cert. denied, 
    115 S. Ct. 908
    (1995).
    We conclude that what occurred in the present case was not a
    jurisdictional defect but a mere variance between the indictment
    and the proof, which was not prejudicial to the defendant and
    therefore is not fatal to his conviction. "The federally insured
    status of a bank is an essential element that must be proved to
    sustain a conviction under 18 U.S.C. § 2113(a) and (d)." United
    States v. Mays, 
    822 F.2d 793
    , 795 (8th Cir. 1987). This essential
    element was present in the indictment, as the face of the
    indictment clearly indicates that the bank was federally insured in
    spite of the fact that the federal insurer was misnamed.       This
    misnomer did not broaden the charges against Davis, and the
    indictment was sufficiently clear to enable him to plead double
    jeopardy to a future prosecution for the same offense. See 
    Just, 74 F.3d at 903-04
    . The indictment informed Davis of the nature of
    the offense charged, the statutory violations involved and that a
    federal agency insured the funds of the bank.5 See United States
    v. Janoe, 
    720 F.2d 1156
    , 1159 (10th Cir. 1983) (holding an
    indictment for robbery was sufficient where the indictment
    incorrectly named the FDIC as the federal insurer instead of the
    Federal Savings and Loan Insurance Corporation), cert. denied, 
    465 U.S. 1036
    (1984). We agree with the Tenth Circuit that "[o]nly the
    failure to mention any federal insuring agency constitutes a fatal
    defect in an indictment."    
    Id. Inadvertently naming
    the wrong
    federal insuring agency does not deprive the court of jurisdiction
    as long as the proof conformed to the statutory elements.      Cf.
    United States v. Roberts, 
    859 F.2d 593
    , 594 (8th Cir. 1988)
    (holding no jurisdictional error where indictment and proof
    indicated the institution was insured by the Savings and Loan
    5
    Additionally, we note that in count I, the indictment
    correctly named the FDIC as insurer of the Mid City Bank on 74th
    Street -- the sister bank of the 42nd Street Mid City Bank.
    26
    Insurance Corporation, but the jury instructions mistakenly charged
    that the deposits were insured by the FDIC), cert. denied, 
    489 U.S. 1059
    (1989). In this case, the proof placed in evidence satisfied
    all of the elements of the statute referenced in the indictment and
    did not result in any prejudice to the defendant.
    VIII.   Severance
    Davis filed a motion to sever, seeking a separate trial of the
    counts relating to the March 1994 robbery.      The district court
    denied the motion and tried all counts of the indictment together.
    Davis contends that the district court abused its discretion.
    First, we observe that the counts were properly joined in one
    indictment.    Two or more offenses may be charged in the same
    indictment as long as the offenses charged "are of the same or
    similar character or are based on the same act or transaction or on
    two or more acts or transactions connected together or constituting
    parts of a common scheme or plan." Fed. R. Crim. P. 8. Joinder,
    then, is "proper when ``the two counts refer to the same type of
    offenses occurring over a relatively short period of time, and the
    evidence as to each count overlaps.'" United States v. Robaina, 
    39 F.3d 858
    , 861 (8th Cir. 1994) (quoting United States v. Shearer,
    
    606 F.2d 819
    , 820 (8th Cir. 1979)). We review de novo the decision
    to join counts into a single indictment. 
    Id. (citing United
    States
    v. Lane, 
    474 U.S. 438
    , 449 n.12 (1986)).      The offenses charged
    relating to each bank robbery are the same -- armed robbery and use
    of a firearm in relation to a crime of violence. The proof for
    each count is overlapping and intertwined. Two of the robberies
    were committed on the same day, and the other was committed less
    than two months after the first two. We have affirmed the joinder
    of offenses when the time periods between them have spanned six
    months or greater.     See 
    id. The offenses
    charged in Davis's
    indictment were all properly joined.
    27
    The rule governing severance provides that once offenses have
    been properly joined, the district court may nonetheless order
    separate trials of the counts "[i]f it appears that a defendant or
    the government is prejudiced by a joinder of offenses." Fed. R.
    Crim. P. 14. "The decision to sever is within the sound discretion
    of the trial judge and the denial of a motion to sever is not
    subject to reversal absent a showing of real prejudice." United
    States v. Patterson, 
    20 F.3d 801
    , 805 (8th Cir. 1994) (internal
    quotations omitted). Prejudice may result from a possibility that
    the jury might use evidence of one crime to infer guilt on the
    other or that the jury might cumulate the evidence to find guilt on
    all crimes when it would not have found guilt if the crimes were
    considered separately. Closs v. Leapley, 
    18 F.3d 574
    , 578 (8th
    Cir. 1994). On the other hand, a defendant does not suffer any
    undue prejudice by a joint trial if the evidence is such that one
    crime would be probative and admissible at the defendant's separate
    trial of the other crime. 
    Robaina, 39 F.3d at 861
    .
    Davis contends that there was no connection between the March
    1994 robbery and the January 1994 robberies, and thus there is a
    danger that the jury may have cumulated the evidence to infer guilt
    of all crimes when, if tried separately, the jury might not have
    found enough evidence to convict him of all counts. We disagree.
    Davis's theory of defense was mistaken identity. Thus, evidence of
    the March 1994 robbery could have been admitted at a separate trial
    of the two January robberies to prove identity under Rule 404(b).
    Accordingly, Davis suffered no real prejudice from the joinder of
    offenses.
    IX.   Consecutive Sentences
    Finally, Davis contends that the district court abused its
    discretion by running his sentences consecutively. At sentencing,
    the district court properly treated each robbery count (counts I,
    III, and V) as a single count group.     United States Sentencing
    28
    Commission, Guidelines Manual, § 3D1.2, comment. (n.7) (Nov. 1994).
    The district court then correctly applied USSG § 3D1.4 to determine
    a combined offense level which was then used to sentence the
    defendant on each of the robbery counts to 130 months of
    imprisonment to be served concurrently. See USSG Ch.3, Pt.D. For
    the counts charging the use of a firearm during and in relation to
    a crime of violence, in violation of 18 U.S.C. § 924(c), the
    district court imposed a consecutive 60-month term of imprisonment
    for count II, a 240-month term for count IV, and another 240-month
    term for VI, resulting in a total consecutive sentence of 540
    months of imprisonment.     The express language of the statute
    prohibits the district court from allowing the firearms terms of
    imprisonment to run concurrently with each other or with the
    underlying crime of violence. 18 U.S.C. § 924(c)(1) ("nor shall
    the term of imprisonment imposed under this subsection run
    concurrently with any other term of imprisonment including that
    imposed for the crime of violence or drug trafficking crime in
    which the firearm was used or carried").     See also USSG 2K2.4,
    comment. (n.1) (acknowledging that "the statute requires a term of
    imprisonment imposed under this section to run consecutively to any
    other term of imprisonment"). Thus, the district court correctly
    imposed consecutive sentences for the firearms offenses. We note
    that the district court ordered the defendant's federal sentence to
    run concurrently with the defendant's existing Nebraska state court
    sentences.
    X.   Conclusion
    Accordingly, we affirm the judgment of the district court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    29
    

Document Info

Docket Number: 95-3175

Filed Date: 12/23/1996

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (37)

Manson v. Brathwaite , 97 S. Ct. 2243 ( 1977 )

Daubert v. Merrell Dow Pharmaceuticals, Inc. , 113 S. Ct. 2786 ( 1993 )

United States v. Quentin Ira Lincoln , 630 F.2d 1313 ( 1980 )

United States v. Louis J. Attanasio, Marie L. Attanasio, ... , 870 F.2d 809 ( 1989 )

Stirone v. United States , 80 S. Ct. 270 ( 1960 )

Randy Lee Closs v. Walter Leapley, Warden, South Dakota ... , 18 F.3d 574 ( 1994 )

Jackson v. Virginia , 99 S. Ct. 2781 ( 1979 )

United States v. Glen Vaglica and Ronald Parker , 720 F.2d 388 ( 1983 )

United States v. Gary Stephen Domina , 784 F.2d 1361 ( 1986 )

united-states-v-martha-elena-gonzales-also-known-as-marta-gonzales , 90 F.3d 1363 ( 1996 )

United States v. Silvio Perez Rodriguez , 812 F.2d 414 ( 1987 )

United States v. Robert Arthur Fitzpatrick , 581 F.2d 1221 ( 1978 )

United States v. Gregory Murdock, A/K/A Prentice Parker , 928 F.2d 293 ( 1991 )

United States v. William Shearer , 606 F.2d 819 ( 1979 )

United States v. John Thomas Koen , 31 F.3d 722 ( 1994 )

United States v. Jose Lazaro Robaina , 39 F.3d 858 ( 1994 )

United States v. Hilton Jerry Kelton , 519 F.2d 366 ( 1975 )

United States v. Hilton Jerry Kelton , 446 F.2d 669 ( 1971 )

United States v. George T. Wilcox, Also Known as Tommy ... , 50 F.3d 600 ( 1995 )

United States v. Victor Manuel Gomez , 16 F.3d 254 ( 1994 )

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