The Honorable Stephen M. Reasoner, Chief Judge, United States 1

District Court for the Eastern District of Arkansas. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3036

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Derrick Wayne Walker, *

* [UNPUBLISHED]

Appellant. *

___________

 Submitted: April 7, 1997

 Filed: April 16, 1997

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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

___________

PER CURIAM.

After a jury found Derrick Wayne Walker guilty of bank robbery and

using and carrying a firearm during and in relation to a crime of violence,

in violation of 18 U.S.C. §§ 2114(d) and 924(c)(1), the district court1

sentenced him to 105 months imprisonment and three years supervised

release. On appeal, counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), raising a number of potential errors in

the pretrial, trial, and sentencing proceedings. We affirm.

Pretrial Errors. Initially, counsel argues that the district court

erred in denying a defense motion to suppress the pre-trial 
Walker's motion to suppress physical evidence is moot as the 2

challenged physical evidence was not introduced at trial. See Fed.

R. Crim. P. 52(a); United States v. Arias-Villanueva, 998 F.2d

1491, 1502 (9th Cir. 1993); United States v. Brown, 584 F.2d 252,

255 (8th Cir. 1978).

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identification of Walker and any resultant in-court identification

testimony. We disagree. Upon our review of the record, including

2

suppression-hearing testimony that the witnesses were presented with

photographic lineups on separate occasions, and that the officers did not

suggest which photo to select, we agree with the district court that the

identification procedures were not unduly suggestive. See United States

v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995). We also agree with the court

that Walker waived any complaint about the photograph used in the lineup

by failing to raise the issue during his suppression hearing. See Fed. R.

Crim. P. 12(b)(3); Fed. R. Crim. P. 12(f).

Trial Errors. As the only African-American venireperson the

government struck knew one of the government's witnesses, we reject

counsel's argument that the district court erred in finding that the

government had articulated a race-neutral reason for the strike. See

United States v. Gibson, 105 F.3d 1229, 1231-32 (8th Cir. 1997) (standard

of review); see also Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995) (per

curiam); United States v. Williamson, 53 F.3d 1500, 1509 (10th Cir.)

(reason was race-neutral where prospective juror was acquainted with

witness), cert. denied, 116 S. Ct. 218 (1995).

Next, we reject counsel's challenge to the sufficiency of the

evidence against Walker. Viewing the evidence in the light most favorable

to the verdict and granting the government every reasonable inference, we

conclude there was sufficient evidence for a reasonable fact-finder to

conclude Walker committed the crimes 
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charged. See United States v. Triplett, 104 F.3d 1074, 1080 (8th Cir.

1997). The evidence against Walker included the testimony of two bankteller eyewitnesses that a man robbed the bank at gunpoint, that Walker was

the robber, and that a dye pack was included with the robbery money.

Additionally, Walker paid his motel bill with dye-stained money, and

Walker's acquaintances and relatives testified Walker stole a pistol and

car for use in the robbery, talked about the robbery, and possessed dyestained money. 

We also reject counsel's argument that the district court abused its

discretion in admitting an out-of-court statement Walker made to a motel

employee. See Fed. R. Evid. 801(d)(2)(A); United States v. Darden, 70 F.3d

1507, 1528 (8th Cir. 1995), cert. denied, 116 S. Ct. 1449, and cert.

denied, 116 S. Ct. 2567 (1996). Further, we see no abuse of discretion in

the district court's denial of Walker's request for a mistrial, which

Walker made after the prosecutor referred to Walker's probable-cause

hearing while cross-examining a defense witness. Defense counsel objected

before the prosecutor made any reference to whether probable cause was

found; read in context, it does not appear that the question was intended

to adduce inadmissible evidence; the question was not duplicated; and the

jury was admonished to disregard it. See United States v. Hale, 1 F.3d

691, 694 (8th Cir. 1993).

Counsel also claims that the district court erred in accepting an

Eighth Circuit instruction concerning attempts to influence witnesses.

Because a government witness testified at trial that Walker asked him to

retract his previous statements to the government implicating Walker in the

robbery, we conclude the district court did not abuse its discretion in

submitting the instruction. See Manual of Model Criminal Jury Instructions

for the District Courts of the Eighth Circuit, No. 4.09 & Comments (West

1996); Gibson, 105 F.3d at 1233; cf. United States v. Hall, 
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565 F.2d 1052, 1055 (8th Cir. 1977) (per curiam) (attempt to influence

witness is admissible evidence and jury determines what weight to give it).

Sentencing Errors. Finally, counsel argues that the district court

erred in refusing to grant Walker's motion for a downward departure based

on "a one-time act of serious crime." We see the district court's refusal

to depart downward as an unreviewable exercise of discretion. See United

States v. Jackson, 56 F.3d 959, 960 (8th Cir. 1995). In any event,

Walker's robbery was not an aberrant act under our cases. See United

States v. Premachandra, 32 F.3d 346, 349 (8th Cir. 1994). Further, because

the sentence imposed falls within the Guidelines range to which Walker did

not object, he may not argue the court erred in sentencing him in the

middle of that range. See United States v. Garrido, 38 F.3d 981, 986 (8th

Cir. 1994).

After reviewing the record in accordance with Penson v. Ohio, 488

U.S. 75, 80 (1988), we have found no nonfrivolous issues.

Accordingly, we affirm the judgment of the district court. Counsel's

motion to withdraw is granted.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.