Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1986)

MEMORANDUM^** 

George Lee Mixon appeals his conviction for bank robbery and carrying a firearm. We affirm.

FACTS AND PROCEEDINGS

On November 19, 1985 and on February 7, 1986, a man robbed a bank in Los Angeles at gunpoint. Later, three bank employees identified Mixon as the robber. Before trial, Mixon filed a motion in limine to admit expert testimony regarding eyewitness identification. Mixon also submitted proposed voir dire questions regarding the relationship between eyewitness identification and the level of certainty of identification. The district court denied both motions. At trial, Mixon renewed the motion to admit expert testimony regarding eyewitness identification, but again the district court denied it. Mixon timely appeals.

DISCUSSION

Mixon contends that the district court abused its discretion when it refused to admit the expert opinion on eyewitness identification. We disagree.

This court has "set forth four criteria to determine the helpfulness of expert testimony: (1) qualified expert; (2) proper subject; (3) conformity to a generally accepted explanatory theory; and (4) probative value compared to prejudicial effect." United States v. Christophe, 833 F.2d 1296, 1299 (9th Cir. 1987). In Christophe, this court also held that the type of expert testimony Mixon seeks to use does not conform to a generally accepted explanatory theory. Id.

Here, we hold that the district court did not abuse its discretion when it excluded the expert testimony. The testimony failed to conform to a generally accepted explanatory theory, and thus does not satisfy the third criteria of the test. Id. at 1299-1300. Moreover, Mixon was not prejudiced because the cross-examinations of the witnesses were sufficient to bring to the jury's attention any difficulties in the identifications. Id. at 1300.

Mixon contends that the district court abused its discretion in denying his requested voir dire questions regarding eyewitness identification.

There may be a need for specific voir dire questioning if the case involves (1) racial overtones; (2) matters on which the community is commonly known to harbor strong feelings; or (3) other forms of bias and distorting influence which have become evident through experience with juries. United States v. Toomey, 764 F.2d 678, 682 (9th Cir. 1985), cert. denied, 474 U.S. 1069 (1986); United States v. Jones, 722 F.2d 528, 529-30 (9th Cir. 1983). When the requested voir dire questions do not fall within any of these three categories, the defendant has the burden of laying a foundation showing that his questions are " 'reasonably calculated to discover an actual and likely source of prejudice....' " Jones, 722 F.2d at 530 (quoting United States v. Robinson, 475 F.2d 376, 381 (D.C. Cir. 1973)).

Here, we find that the district court properly denied Mixon's request to ask voir dire questions concerning eyewitness identification. This case does not involve racial overtones, emotional issues, or some other form of bias. Additionally, Mixon fails to demonstrate that his questions were reasonably calculated to discover an actual and likely source of prejudice.

AFFIRMED.