The HONORABLE NANETTE K. LAUGHR EY, United States District Judge 1 for the Western District of Missouri.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1673

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Edwin F. Clay, * * [UNPUBLISHED] Defendant - Appellant. *

___________ Submitted: September 21, 1998 Filed: December 1, 1998

___________ Before LOKEN, LAY, and HANSEN, Circuit Judges.

___________ PER CURIAM.
Edwin F. C lay appeals his conviction for armed robbery of the Federa l Employees Credit Union in Kansas City in violation of 18 U.S.C. § 2113(a) and (d). Clay raises three issues on appeal. We affirm.
Fi rst, Clay argues the district court erred in denying his motion for a mistrial

. 1 Prior to trial, the prosecution advised that it would not seek to admit Clay’s prior bank-2-

robbery conviction into evidence (unless Clay testified) and would instr uct its witnesses “not to make any inferences or suggestions about a prior conviction.” At the start of the sec ond day of the two-day trial, the government called the other bank robber , Will iam Hazen, who described Clay’s role in planning and executing the robbery

. Duri ng the preliminary portion of Hazen’s rather lengthy testimony, the followin g exchange occurred: Q. In your conversations with [Clay], did he tell you where he had been living before moving to Restart in February of ‘97? A. He mentioned that he lived in Chicago for a period of time, and he had friends in St. Louis; and that he had been in jail quite a bit. (Emphasis added.) Clay immediately moved for a mistrial. The district court denied the motion, confirmed that Clay was not requestinga cautionary instruction to the jury, and then g ranted a brief recess so that Hazen could consult with his attorney

. Immediat ely after the recess, the court instructed the jury to “disregard the las t statement th at was made by Mr. Hazen.” Clay argues the district court abused it s discretion by giving a belated cautionary instruction instead of granting a mistria l becau se Hazen’s testimony that Clay “had been in jail quite a bit” was necessaril y constru ed by the jury as a highly prejudicial reference to a prior conviction. W e disagree. As the district court noted in denying the mistrial motion, “[b]e ing in jail does not necessa rily mean that he was convicted of a crime.” After careful review of th e trial record, we do not believe Hazen’s unanticipated statement could have substantially swayed the jury’s verdict despite the district court’s cauti onary instruction. See United States v. Maza , 93 F.3d 1390, 139 7 (8th Cir. 1996) (standard of review), cert. denied , 117 S. Ct. 1345 (1997). Accordingly, the court did not abuse its broad discretion i n denying Clay’s motion for a mistrial.-3-

Second, C lay argues that his in-court identification by four bank tellers wa s improperly suggestive

because the tellers had limited opportunities to see Clay during the two-minute bank robbery, be cause the tellers were no doubt influenced by a photo array they were shown shortly before trial, and because the district court decline d Clay’s request to seat him somewhere other than the defense table during the in-court ident ifications. All four tellers made positive in-court identifications of Clay as th e unmasked robber who shocked teller Stacey Crail with a stun g un and then took money from teller Carrie Moffett’s desk drawer and from the bank vault. Each teller described for the jury her opportunity to identify Clay as the robber in q uestion. We conclude the in-court identification procedures were not impermissibly suggestive and did not create a substa ntial likelihood of irreparable misidentification. See United States v. Davis , 103 F.3d 660, 670-71 (8th Cir. 1996) (standard of review), cert. denied , 117 S. Ct

. 2424 (1997). Finally, Clay argue s the district court erred in refusing to strike for cause seven prospectiv e jurors who had accounts at the Federal Employees Credit Union. Thi s contention cannot be grounds for reversal because non e of the seven served on the trial jury. Clay makes no claim the jury that heard the case was biased. See United States v. Horsman , 114 F.3d 822, 825 (8th Cir. 1997), cert. denied , 118 S. Ct. 702 (1998). The judgment of the district court is affirmed. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.