### 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 Derrick Wayne Walker, * * [UNPUBLISHED] Appellant.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

___________ Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

___________ PER CURIAM.
After a jury found Derrick Wayne Walker guilty of bank robbery an d 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 court 1 senten ced him to 105 months imprisonment and three years supervise d releas e. 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. S ee Fed. R. Crim. P. 52(a); United States v. Arias-Villanueva , 998 F.2 d 1491, 1502 (9th Cir. 1993) ; United States v. Brown , 584 F.2d 252, 255 (8th Cir. 1978)
. -2- identification of Walker and any resultant in-court identificatio n testimony
. We disagree. Upon our review of the record, includin g 2
su ppression-hearing testimony that the witnesses were presented wit h 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 cour t that Walker waived any complaint about the photograph used in the lineup by failing to raise the issue during his suppres sion hearing. See Fed. R. Crim. P. 12(b)(3); Fed. R. Crim. P. 12(f).
Tria l Errors. As the only African-American venireperson th e govern ment struck knew one of the government's witnesses, we rejec t coun sel's argument that the district court erred in finding that th e governm ent had articulated a race-neutral reason for the strike. Se e United States v. Gibs on , 105 F.3d 1229, 1231-32 (8th Cir. 1997) (standard of revi ew); see also Purkett v. Elem , 115 S. Ct. 1769, 1771 (1995) (pe r curi am); United States v. Williamson , 53 F.3d 1500, 1509 (10th Cir. ) (r eason was race-neutral where prospective juror was acquainted wit h witness), cert. denied , 116 S. Ct. 218 (1995).
Next, we reject counsel's challenge to the sufficiency of th e evidence against Walker. Viewing the evidence i n the light most favorable to the verdict and gr anting the government every reasonable inference, we conclu de there was sufficient evidence for a reasonable fact-finder t o conclude Walker committed the crimes

### -3-

charged. See United States v. Triplett , 104 F.3d 1074, 1080 (8th Cir
. 1997). The evidence against Walker included the testimony of two bank

teller eyewitnesses that a man robbed the bank at gunpoint, that Walker wa s the ro bber, and that a dye pack was included with the robbery money
. Additi onally, Walker paid his motel bill with dye-stained money, an d 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 th at 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.3 d 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 dis trict court's denial of Walker's request for a mistrial, whic h Wa lker made after the prosecutor referred to Walker's probable-caus e hearing while cross-examining a defense witness. Defense counsel objected before the prosecutor made any reference to whether probable cause wa s found; read in contex t, it does not appear that the question was intended to adduce inadmissibl e evidence; the question was not duplicated; and the jury wa s admonished to disregard it. See United States v. Hale , 1 F.3 d 691, 694 (8th Cir. 1993). Couns el also claims that the district court erred in accepting a n Eigh th 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 th e robbery, we conclude the district court did not abuse its discretion i n submitting the instruction. See Manual of Model Criminal Jury Instruction s 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 ,

### -4-

565 F .2d 1052, 1055 (8th Cir. 1977) (per curiam) (attempt to influenc e witness is admissible evidence and jury determines what weight to give it)
. Sentencin g 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 th e district court's refusal to depart downward as an unreviewable exercise of discretion. See United States v. J ackson , 56 F.3d 959, 960 (8th Cir. 1995). In any event , Wal ker's robbery was not an aberrant act under our cases. See Unite d States v. Premachandra , 32 F.3d 346, 349 (8th Cir. 1994). Further, becaus e the sentence imposed falls within the Guidelines range to which Walker did not objec t, he may not argue the court erred in sentencing him in th e middle of that range. See United States v. Garrido , 38 F.3d 981, 986 (8t h Cir. 1994).
After reviewing the record in accordance with Penson v. Ohio , 48 8 U.S. 75, 80 (1988), we have found no nonfrivolous issues. Accordingly, we affirm the judgment of the district court. Cou nsel's motion to withdraw is granted.
A true copy.

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