UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5546

ODELL WALKER, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, Chief District Judge.

(CR-94-14, CR-94-99)

Argued: September 24, 1996

Decided: January 8, 1997

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Norman Butler, Charlotte, North Carolina, for Appellant.

Brian Lee Whisler, Assistant United States Attorney, Charlotte, North

Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States

Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

The defendant, Odell Walker, Jr., was charged in two bills of

indictment filed July 6, 1994 with a total of 18 counts arising from

six armed robberies, all in violation of 18 U.S.C.§§ 2113(a), 2113(d),

and 924(c). At Walker's jury trial, the district court refused to suppress identification evidence from a pretrial lineup, all of which

defense counsel was unable to attend. The court also denied Walker's

motions for a mistrial and judgment of acquittal based on an asserted

Brady violation by the prosecution. The jury found Walker guilty on

ten of the indictment's 18 counts. Walker now appeals, and we affirm.

I.

The indictments in this case alleged that Walker committed six

armed robberies at various banks throughout the Western District of

North Carolina between July 14, 1993 and May 23, 1994. Before trial,

Walker moved to suppress several eyewitness identifications from a

lineup held on July 1, 1994 at the Mecklenburg County Jail. The

lineup took place during Walker's detention at the jail pursuant to a

criminal complaint charging him with a recent bank robbery which

was entirely separate from those charged here. At that time, he had

not been charged or indicted in any of the bank robberies that were

the subject of the lineup at issue here. Walker's attorney was called

as a courtesy by the officers. Although he was otherwise engaged, he

managed to attend the lineup while it was being composed and for the

last eight witnesses viewing the lineup. He had to leave the lineup

while five witnesses viewed it.1 The district court refused to suppress

these eyewitness identifications at Walker's trial because it found that

a prosecution had not yet commenced on those offenses.

Walker's jury trial began February 22, 1995 and concluded March

1, 1995. On the third day of trial, Walker's counsel was permitted to

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1 The government voluntarily moved to dismiss the original bank robbery charge on which Walker was being detained. The court granted this

motion, and the case went to trial only on crimes involved in the July 1

lineup.

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inspect internal FBI files because he believed they contained certain

unspecified, discoverable material. The defense attorney located in

these files several internal FBI memoranda describing tips received

from citizen callers during the investigation after pictures of suspects

taken from bank surveillance photographs were released to the press.

The tips named four persons other than the defendant as the subjects

of the pictures. The defense then argued that the government should

be sanctioned for failing to disclose this exculpatory material, that the

court should declare a mistrial, and for judgment of acquittal based

on Brady v. Maryland, 373 U.S. 83 (1963). The court denied these

motions. The defense, however, was permitted to cross-examine several government witnesses using the internal FBI documents.

The jury convicted Walker, with respect to five of the robberies, of

five counts of bank robbery (18 U.S.C. § 2113(a)) and five counts of

armed bank robbery (18 U.S.C. § 2213(d)). Walker was acquitted on

five counts of using a firearm during a crime of violence (18 U.S.C.

§ 924(c)). As to a sixth bank robbery, the jury deadlocked, and the

district court declared a mistrial on all three counts pertaining to that

crime.

Walker now appeals his convictions arising from the five robberies.

He first argues that the lineup procedure denied him his Sixth Amendment right to counsel and that the district court accordingly erred in

refusing to suppress the identification evidence. He next contends that

the district court erred in denying his motions for a mistrial and judgment of acquittal based on the asserted Brady violations.

II.

The Sixth Amendment guarantees the right to counsel during all

"critical stages of the prosecution," including pretrial lineups. United

States v. Wade, 388 U.S. 218, 237 (1967). The Supreme Court later

clarified that the right to counsel announced in Wade attaches only to

lineups conducted "at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment." Moore v. Illinois,

434 U.S. 220, 226 (1977); Kirby v. Illinois, 406 U.S. 682, 689 (1972).

At the time of the lineup here, Walker had not been indicted or

charged in any of the bank robberies that were its subject. Even if the

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formal stages enumerated in Kirby and Moore are not the only points

at which the right to counsel accrues, we are satisfied in this case that

a criminal prosecution had not yet been initiated as to the lineup's

subject matter. Nothing in the record indicates that the lineup constituted anything other than an investigatory procedure for assembling

evidence on the instant robberies. The requisite adversary judicial

criminal proceedings simply had not begun as to those offenses.

Nevertheless, Walker contends that his Sixth Amendment right to

counsel had attached because the offenses that were the subject of the

lineup (bank robberies in the Western District of North Carolina)

were so similar to the bank robbery charge for which he was being

detained. This argument is without merit.

Another defendant attempted unsuccessfully to raise a similar Sixth

Amendment claim in United States v. Kidd, 12 F.3d 30 (4th Cir.

1993), cert. denied, 62 U.S.L.W. 3705 (U.S. Apr. 25, 1994) (No. 93-

8489). There, the government contacted the defendant and purchased

drugs from him after he had been indicted on drug distribution

charges. The defendant argued that the post-indictment offense and

pending charge were so closely related that his right to counsel had

attached. We, however, concluded that the offenses were factually

distinct and independent because they involved different purchasersinformants, occurred at different times, and took place in different

locations. That the two transactions involved the same type of crime

was insufficient to trigger the Sixth Amendment's application. Kidd,

12 F.3d at 33.

Likewise in this case, the bank robberies at issue in the July 1

lineup and the bank robbery with which Walker then stood charged

involved different banks at distinct times and dates between 1993 and

early 1994. We therefore reject Walker's contention that his right to

counsel had attached as to the offenses that were the subject of the

lineup. Accordingly, the district court properly refused to suppress the

identification evidence arising from the lineup. On similar facts the

Fifth Circuit has come to the same conclusion as do we. United States

v. Tyler, 592 F.2d 261 (5th Cir. 1979).

III.

Walker also challenges the district court's denial of his motions for

a mistrial and judgment of acquittal based on the government's

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alleged failure to disclose exculpatory evidence before trial under

Brady v. Maryland, 373 U.S. 83 (1963). The exculpatory evidence at

issue in this case comprises reports of tips called into law enforcement by citizens naming four individuals other than the defendant as

looking similar to photos of bank robbers they had seen in newspapers or on television. The defense did not learn of the existence of

these tips until the third day of trial.

Even though information may be exculpatory, no due process violation occurs as long as the Brady material is disclosed to a defendant

in time for its effective use at trial. United States v. Smith Grading &

Paving, Inc., 760 F.2d 527, 532 (4th Cir.), cert. denied, 474 U.S 1005

(1985). This is so because a defendant's ability to use the information

effectively at trial indicates that its delayed disclosure did not affect

the trial's outcome. Here, defense counsel received the information

before the close of the prosecution's case-in-chief. In fact, the defense

was able to cross-examine investigators extensively about the tips and

what steps were taken to follow up on them. Moreover, at no time

during the trial did defense counsel request a continuance to further

pursue this new information.2 Rather, counsel chose to pursue the

more exculpatory, and therefore more risky, measures of moving for

a mistrial and later for judgment of acquittal. Although the government should have informed Walker of the tips before trial, we cannot

say that their delayed disclosure sufficiently prejudiced his defense to

deprive him of due process. See United States v. Gordon, 844 F.2d

1397, 1403 (9th Cir. 1988) (cross-examination can cure prejudice created by Brady violation); Smith Grading & Paving, 760 F.2d at 532

(ability to use exculpatory evidence extensively in cross-examination

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2 The D.C. Circuit rejected a defendant's Brady claim on similar

grounds in United States v. Henson, 486 F.2d 1292 (D.C. Cir. 1973). In

that case, the defendant asserted that the government's failure to disclose

certain documents before trial prevented the defense from developing

hypotheses concerning other persons who might have committed the

offenses charged. The court concluded that defense counsel's failure to

request a continuance, ability to call the other suspects, and ability to

argue to the jury in closing that six other persons could have committed

the murder with which the defendant was charged indicated that the

delayed disclosure did not produce a prejudicial error. Henson, 486 F.2d

at 1302 n.10.

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can remedy Brady violation). For the reasons stated, we are of opinion that the district court properly denied the defendant's motions for

mistrial and judgment of acquittal based on the government's asserted

Brady violation.3

The judgment of the district court is accordingly

AFFIRMED.

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3 We have given the defendant the benefit of the doubt in analyzing his

Brady motion. The pictures which were released to the press were found

by the defendant's attorney in a file on a robbery of the First Citizens

Bank in Bessemer City, not one of the six robberies involved here, and

the pictures may well have not been identified with any particular robbery by the witnesses. If it had turned out that the photographs involved

were taken during a robbery which was not charged here, they, of course,

would be entirely inadmissible under any theory, and the government's

position should have been more briefly affirmed than by the reasoning

we have related in the body of the opinion.

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