United States v. Walker, Thomas

In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3052

United States of America,

Plaintiff-Appellee,

v.

Thomas Walker,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 776--William J. Hibbler, Judge.

Argued February 16, 2001--Decided November 9, 2001

Before Easterbrook, Manion, and Diane P.
Wood, Circuit Judges.

Diane P. Wood, Circuit Judge. After
robbing a Chicago bank, Thomas Walker was
caught when his two accomplices pointed
the police in his direction. While
suffering from heroin withdrawal, he
confessed to his crime, and was later
indicted, tried, and convicted. He now
asserts that the district court
erroneously rejected his motion to
suppress the confession and made a
variety of trial errors. While we are not
prepared to say that this was a flawless
proceeding, a combination of the required
standards of review and the harmless
error rule, taken in the context of the
powerful case against Walker, leads us to
affirm the judgment of the district
court.

I

Walker was known around his neighborhood
as "Charlie Brown." In October 1999, he
approached his friend and later co-
defendant, Keith Johnson, and suggested
that the two should rob a bank. Keith
Johnson agreed, and they decided to rob
the TCF National Bank at 3333 W. 26th
Street in Chicago on October 8, 1999.
Keith Johnson in turn enlisted the help
of Willie McLaurin to serve as their
driver; McLaurin agreed, and borrowed a
blue Dodge Intrepid from his cousin,
Kenya Banks, for the job. As the three
were proceeding toward the bank, Walker
had McLaurin detour so that Walker could
pick up a black bag and purchase some
heroin. Walker used the heroin as they
continued on to the bank. At about 4:30
p.m., Walker entered the bank, drew his
gun and ordered everyone to the floor. He
then jumped over the counter, emptied two
counter drawers, and ordered a teller, at
gunpoint, to open a vault. Keith Johnson,
also armed, stood guard in the bank
lobby. McLaurin stayed in the car. The
three fled with about $21,400.

Based on the license plate number
provided to officers by a bystander
outside the bank, officers traced the
getaway car to Banks, and then to
McLaurin, who was arrested on October 13.
McLaurin talked, providing detailed
information about the involvement of two
individuals he knew as "Keith" and
"Charlie Brown." The officers then showed
photographs of Keith Johnson and Thomas
Walker to McLaurin, and he identified
them as the individuals who robbed the
bank. Officers next arrested Keith
Johnson, who corroborated McLaurin’s
story of the robbery and pointed to
Thomas Walker as the other robber.

Chicago Police Department (CPD) officers
arrested Walker at about 4:00 p.m. on
October 19 and held him overnight. When
he woke up the next morning, he was sick
with diarrhea, vomiting, and stomach
pain, and at about 9:00 that morning, he
was taken to the hospital emergency room.
The doctor there diagnosed him as
suffering from heroin withdrawal and gave
him an intravenous treatment of morphine
and other medications. At 11:05 a.m., the
doctor discharged him and returned him to
the custody of the CPD, writing on the
discharge form that Walker’s condition
was "good." The doctor later testified
that at the time of Walker’s departure,
Walker was "alert and oriented," and that
he was "with the program."

Upon his release, the CPD transported
Walker to the FBI headquarters. FBI
Agents Daniel Spotts and Nanette Skopelja
took custody of him at about 12:45 p.m.,
read him his Miranda rights, and began an
interrogation. Walker was still obviously
ill at this time; not only had he vomited
in the car on the way to the FBI offices,
he also vomited three times during the
brief interrogation, and Agent Spotts
gave him a plastic bag to use. After an
ambiguous exchange about Walker’s desire
for a lawyer, Walker eventually signed a
Federal Advice of Rights form waiving his
right to remain silent and confessed both
orally and in writing. Agent Spotts
prepared a handwritten summary of
Walker’s statements, which included the
following facts: (1) McLaurin drove
Walker and Keith Johnson to the TCF bank
on October 8; (2) once inside the bank,
Walker vaulted the counter, took cash
from a teller and placed it inside a blue
book bag; (3) after robbing the bank,
Keith Johnson and Walker were driven to
another location where they split the
money; and (4) Walker spent his share of
the money on gambling, clothes, and
heroin. Walker also viewed surveillance
photos from the bank and identified one
of the robbers as Keith Johnson and then,
with regard to another robber in the
photo whose face was blocked, he stated
that it "could have been me." Walker also
looked at a lineup and identified
McLaurin as the person who drove him to
and from the bank.

After Agent Spotts drafted the written
statement, he read it to Walker, who
signed it. Walker was then taken for an
initial appearance before the magistrate
judge; from there, he was moved to the
Metropolitan Correctional Center (MCC).
Upon a visit to the MCC clinic at about
7:00 that night, he was again diagnosed
with heroin withdrawal and given some
painkillers.

Walker, Keith Johnson, and McLaurin were
charged with conspiracy to commit bank
robbery and aggravated bank robbery, in
violation of 18 U.S.C. sec. 371 and 18
U.S.C. sec.sec. 2113(a) and (d). Walker
and Keith Johnson were also charged with
use of a firearm in connection with a
violent crime, in violation of 18 U.S.C.
sec. 924(c)(1). Keith Johnson and
McLaurin entered into plea agreements
with thegovernment, while Walker went to
trial.

Prior to trial, Walker moved to suppress
his confession because it was made
involuntarily and in violation of his
rights to remain silent and to have a
lawyer present. The court held a three-
day suppression hearing but ultimately
denied the motion to suppress. It also
denied Walker’s motion to compel
production of Agent Spotts’s notes of his
interview with Walker, finding that the
notes were cumulative of the FBI report,
which had already been produced.

At trial, both Keith Johnson and
McLaurin testified against Walker, and
the government used Walker’s own
confession. Walker’s defense theory was
that there were only two people involved
in the robbery, or, if there were three
people involved, he was not one of them.
In order to support this defense, he
called Andre Maurice Johnson (no relation
to co-conspirator Keith), who had
recently been incarcerated on separate
drug charges, to testify that he had been
with Walker at the time of the robbery.
The jury was not convinced by his alibi,
and after a three-day trial it convicted
Walker on the conspiracy and aggravated
robbery charges and acquitted him on the
firearm charge. His motions for a
judgment of acquittal and a new trial
were denied, and he was sentenced to 276
months’ imprisonment.

II

A. Confession

For understandable reasons, the argument
Walker has emphasized on appeal concerns
the admission of his confession. "The
ultimate question of whether a confession
is voluntary is a matter of law that must
be reviewed de novo in this court."
United States v. Jordan, 223 F.3d 676,
683 (7th Cir. 2000). Nonetheless, we
review the court’s factual findings only
for clear error, id., especially when the
suppression decision turned on the
credibility of the witnesses. See United
States v. Withers, 972 F.2d 837, 841 (7th
Cir. 1992). The same standard applies to
a district court’s consideration of
whether a waiver of Miranda rights was
voluntary, see United States v. Combs,
222 F.3d 353, 362 (7th Cir. 2000), and
whether a defendant invoked his right to
counsel, see United States v. McKinley,
84 F.3d 904, 910 (7th Cir. 1996).

1. Voluntariness

Walker argues that his confession was
involuntary because he was under the
duress of physical pain resulting from
his heroin withdrawal. Additionally (and
perhaps in the context of this physical
distress), he claims that he confessed
only after Agent Spotts promised him the
use of a restroom, a visit with his
children, medical care, and leniency from
the judge.

Credibility determinations by the
district court doom the latter set of
claims. With regard to the use of the
bathroom, Agent Spotts denied that Walker
ever asked to use the bathroom, and the
district court judge believed the agent.
With respect to medical care and visits
with the children, Agent Spotts testified
that Walker never asked for either of
these. In his denial of the suppression
motion, the district court judge did not
explicitly refer to the claims of
promises regarding medical care and
visits with Walker’s children. The judge
did make it clear, however, that he had
found Walker utterly lacking in
credibility, and that he was adopting
Agent Spotts’s version of these events.
This is enough, though perhaps barely so,
to encompass the medical care and child
visitation issues as well. We note also
that it strains belief to think that
Walker would have been told that he could
receive medical care only if he signed
the confession, in light of the fact that
the authorities had already made medical
treatment available to him with no such
strings attached.

With regard to promises of leniency,
Agent Spotts admitted that he "explained
to [Walker] that his cooperation, his
truthfulness, his honesty and
forthrightness in explaining to us what
his role was in that bank robbery would
in my experience go a long way toward
helping him in front of the judge in this
case." Spotts also admitted to telling
Walker that although the "right to
silence is an absolute, based on my
experience, if they are cooperative with
us, if I give them a chance to tell their
side of the story, be cooperative and be
completely honest, somewhere down the
line that is reflected in court." We have
consistently held that promises to bring
the defendant’s cooperation to the
attention of the prosecutor do not render
a confession involuntary. See United
States v. Westbrook, 125 F.3d 996, 1005
(7th Cir. 1997); United States v.
Rutledge, 900 F.2d 1127, 1130 (7th Cir.
1990).

That leaves Walker’s physical condition,
which is certainly the most important
point he raises. It is clear that Walker
was in physical pain (not many people
find vomiting too comfortable). But
whether the physical pain was so acute as
to make his confession involuntary
depends on the underlying facts of the
situation. The district court chose to
believe the testimony of the emergency
room physician, who said that when Walker
left the hospital, he was "alert and
oriented" and "with the program." His
condition was noted as "good" on the
discharge form. The court also credited
the testimony of Agent Spotts, who
reported that during the interview and
the lineups, "[Walker] seemed to be in a
clear state of mind and coherent in his
thinking." Agent Spotts also testified
that Walker never complained about
feeling ill and never asked for medical
assistance. Finally, the booking agent at
the MCC testified that the defendant had
enough composure and understanding to
complete his medical history form and
answer questions at the prison later that
day. The factual background against which
we make our determination of
voluntariness is thus one in which Walker
was in command of himself, albeit
suffering from some physical discomfort.
The latter is not enough, on this record,
to render his confession involuntary.

Nonetheless, it does seem to us that the
government could have handled this in a
way that would have obviated the need for
such fine line drawing. It offers no
reason why it could not have waited the
24 to 48 hours that, according to the
physician, it would have taken for Walker
to be through the most painful hours of
withdrawal. There could be a case in
which a suspect’s vulnerable physical
condition rendered anything he said
involuntary. The key point here, however,
is that a suspect’s physical pain or drug
use does not make a confession
involuntary as a matter of law. See
United States v. Schwensow, 151 F.3d 650,
659 (7th Cir. 1998). The district court’s
finding that Walker was able to make a
coherent decision to confess voluntarily
was not clearly erroneous; we therefore
uphold the finding of voluntariness.
 2. Waiver of Miranda rights

At the suppression hearing, Agent Spotts
testified that, prior to beginning the
interview, he read Walker his Miranda
rights from a Federal Advice of Rights
Form 395 and told Walker that if he
understood his rights he should sign the
form. The form describes the well-known
rights of the suspect to remain silent,
to have a lawyer, and so forth, and it
concludes with a "Waiver of Rights"
statement that reads, "I have read this
statement of my rights and I understand
what my rights are. At this time, I am
willing to answer questions without a
lawyer present." After Agent Spotts read
the form to him, Walker signed it.

Walker admitted for purposes of the
suppression hearing that Agent Spotts
read the description of his rights from
the form, but he claimed that he did not
understand them. Walker claimed that, if
he did sign the form, he thought he was
only acknowledging that his rights had
been read to him--he did not know he was
waiving his rights to a lawyer or to
remain silent. Walker also admitted that
he knows what his rights are, that he is
very familiar with them, and that he has
been read his rights many times by law
enforcement officers. The district court
judge rejected Walker’s story, finding
that Walker, with his prior history of
arrests and his tenth grade education,
knew how to read and knew what he was
signing. And, as already discussed, the
district court weighed the medical
evidence of all the witnesses and
concluded that Walker’s physical
condition did not preclude him from
making a voluntary waiver of his Miranda
rights. This determination was not
clearly erroneous.

3. Invocation of Right to Counsel

Agent Spotts testified that as he was
reading Walker his rights, Walker told
him that "he wasn’t sure whether he
should talk to [Agent Spotts] because he
was afraid it would piss his lawyer off."
After Walker made this comment, Agent
Spotts left the interview room for about
30 minutes in order to confer with his
supervisor and a legal advisor as to
whether he was required to stop the
questioning; he was advised to continue.
Agent Spotts testified that upon
returning to the interview room, he told
Walker that he had two choices: Walker
"could either talk to me, be cooperative,
give us the truth in his view as to what,
his involvement in the bank robbery or he
could specifically ask for an attorney
and I told him that if he does ask me for
an attorney that this interview would
have been terminated and no further
questions would have been asked." Walker
then told Spotts to "go ahead."
Of course, Walker remembers the events
differently. He admits that Agent Spotts
left for 30 minutes, but he claims that
he had explicitly told the officer that
he wanted to talk to a lawyer and even
gave him the name of a lawyer who was
then representing him in a state court
criminal proceeding. Walker claims that
Agent Spotts then said, "You don’t have a
lawyer. You can’t afford a lawyer," and
continued with the interrogation. Walker
claims that he asked for his lawyer at
least one more time and was ignored.

The district court believed Agent
Spotts’s version of the events, and we
have no basis on which we could upset
such a credibility determination.
Accepting Agent Spotts’s version of the
events, we do not find Walker’s reference
to counsel to be an unambiguous or
unequivocal request for a lawyer that a
reasonable officer in light of the
circumstances would have understood as
such. See Davis v. United States, 512
U.S. 452, 458-59 (1994); United States v.
Muhammad, 120 F.3d 688, 698 (7th Cir.
1997); McKinley, 84 F.3d at 909. Indeed,
Agent Spotts properly gave Walker the
opportunity to clarify his comment about
counsel. Yet rather than clarifying that
he was explicitly asking for a lawyer,
Walker instead told Agent Spotts to "go
ahead" with the questioning. For all
these reasons, the district court did not
err in denying Walker’s motion to
suppress his statement to the FBI or in
allowing it to be used against him at
trial.

B. Prosecutor’s Closing Statements

In the closing statements, defense
counsel implied that Agent Spotts was
lying when he testified about the defend
ant’s confession and that Agent Spotts
should not be believed. The prosecutor
therefore responded in his closing
rebuttal statement that "if you are to
believe what [defense counsel] said, you
would have to believe that Agent Spotts
was lying, that he didn’t take this
confession from the defendant." Walker
argues that this statement distorted the
burden of proof because it told the jury
that in order to acquit the defendant,
the jury had to believe that Agent Spotts
had lied.

If the prosecutor had indeed made such
a statement, it would probably be
improper, see United States v. Vargas,
583 F.2d 380, 386-87 (7th Cir. 1978)
(statements "that in effect distort the
burden of proof by suggesting incorrectly
what the jury must find in order to reach
a certain verdict" may constitute grounds
for reversal). But Walker has subtly
changed the gist of the prosecutor’s
statement. In fact, rather than telling
the jury that in order to acquit it had
to believe that Agent Spotts had lied,
the prosecutor simply repeated the
defendant’s version of the facts--that
Spotts was not to be believed. This was a
fair response to defense counsel’s
argument.

Walker also complains about the
prosecutor’s statements in closing that
the defendant "told" the jury that
McLaurin and Keith Johnson were telling
the truth when they testified against
Walker at trial:

[H]ow do you know that [Keith Johnson and
McLaurin] were telling the truth? You
know because the defendant told you that.
He told you that in his confession, in
his statement to Agent Spotts when he was
interviewed. The defendant told you that
he committed the robbery . . . . That’s
how you know that what Willie McLaurin
and Keith Johnson told you was the truth.
He confessed to it.

Walker made no objection to this
statement at trial, and so our review is
for plain error only. United States v.
Olano, 507 U.S. 725, 732-35 (1993).
Walker argues that the remark implied
that because the defendant did not
testify at trial, the jury was required
to trust the version of events offered by
Agent Spotts, McLaurin, and Keith
Johnson. Walker argues that this was an
impermissible commentary on the
defendant’s failure to take the stand.
But it is clear that it was not the
prosecutor’s "manifest intention" to
refer to the defendant’s silence; nor was
the remark of "such a character that the
jury would ’naturally and necessarily’
take it to be a comment on the
defendant’s silence." See United States
v. Ashford, 924 F.2d 1416, 1425 (7th Cir.
1991), quoting United States v. Perez,
870 F.2d 1222, 1229 (7th Cir. 1989). The
prosecutor was merely commenting that the
version of the events given by McLaurin
and Keith Johnson was consistent with the
version given by Walker to Agent Spotts.
The prosecutor’s comments did not violate
any rule, much less plainly so.

C. Evidentiary Decisions

Walker also challenges several of the
district court’s evidentiary decisions,
which we review for abuse of discretion,
see United States v. Curry, 79 F.3d 1489,
1494 (7th Cir. 1996), except where the
objections were not made at trial, in
which case we review only for plain
error. Olano, 507 U.S. at 736.

1. Testimony and Physical Restraint of
Andre Maurice Johnson

First, Walker complains about the
government’s use of physical restraints
on his alibi witness, Andre Maurice
Johnson. Andre Johnson, who at the time
of trial was incarcerated at Vandalia
Correctional Center, was brought into the
courtroom in the presence of the jury in
handcuffs and leg shackles, and was
accompanied by armed uniformed guards.
Although the handcuffs were removed
during his testimony, the leg chains
remained. In contrast, government
witnesses Keith Johnson and McLaurin, who
were also incarcerated at the time, were
not handcuffed or shackled when they
testified. They were accompanied only by
marshals in business suits. Walker argues
that this treatment of Andre Johnson was
highly prejudicial to his case.

The defense did not object to this
treatment of Andre Johnson during trial,
so we review only for plain error. Olano,
507 U.S. at 736. Defense counsel explains
that he did not object because to do so
would have just drawn more attention to
the shackles, but this is no excuse for
the omission. The proper response is to
call for a sidebar and make this kind of
sensitive objection outside the view and
hearing of the jury. There is thus no
justification for the lack of an
objection that would take this out of the
scope of the plain error rule.

The first question is whether there was
error at all; if so, we must then
consider whether it was so fundamental
that it requires reversal. We are
troubled by the way that Andre Johnson
was treated. As a general rule, criminal
defendants are entitled to have their
witnesses appear before the jury without
physical restraints. See Harrell v.
Israel, 672 F.2d 632, 635 (7th Cir.
1982). "Because of the potential for pre
judice, this court has required a showing
of ’extreme need’ to justify the use of
physical restraints at trial." Id. at
635-36. Here, though, Walker never
objected, and so the prosecutor never had
any occasion to address the question
whether the physical restraints were
necessary because Andre Johnson was
either violent or an escape risk. The
government’s appellate brief is also
silent on this point, although we
understand that the lack of an
opportunity to make a record hampers any
such effort. It is not proper to shackle
simply because a witness is an inmate at
a maximum security prison. See United
States v. Esquer, 459 F.2d 431, 433 (7th
Cir. 1972). It seems to us quite possible
that the use of the shackles was error,
although we cannot be certain without a
proper factual basis.

Assuming for the sake of argument that
it was error, we turn to the question
whether the error was "plain." We find
that it was not. First, we note that the
defendant’s failure to raise an objection
at trial prevented the district court
from considering lesser alternatives. See
Harrell, 672 F.2d at 637-38. Second,
while restraints can affect a witness’s
credibility, Andre Johnson had already
fatally undermined his own credibility.
He contradicted his prior testimony as
well as earlier statements he had made to
the government. He admitted that he was a
drug dealer and kept a shotgun to protect
himself. Finally, his shackles were not
visible to the jury while he testified.
 2. Rule 404(b) Evidence

Walker also claims that some of the
testimony elicited from the government’s
witness, Keith Johnson, was evidence of
Walker’s bad character that was
impermissible under Federal Rule of
Evidence 404(b). During his direct
testimony, Keith Johnson testified that,
on the date of the robbery, he was with
Walker "off and on" all day, separating
only for about 30 minutes at a time. He
had earlier told investigators that he
actually was not with Walker at about
4:30 p.m. This apparent inconsistency
prompted the prosecutor to explore the
alibi further in her cross-examination of
Keith Johnson:

Q: Now, beginning that day, before we get
to the afternoon, did you and Charlie do
anything together?

A: Yes, ma’am. Every morning we do our
little old thing together, you know?

Q: What’s your little old thing that you
do together?

A: You know, we go out, we get us some
money together, you know.

Q: You get some money together?

A: Yes, ma’am.

Q: How do you get that money together?

At this time, the defense counsel
objected, knowing that Keith Johnson was
about to talk about the drug dealing
operation he had with Walker. But the
district court allowed the questioning to
continue, stating that "based upon the
witness’s testimony as to being with the
defendant off and on, I believe that a
party is allowed to establish the basis
of how he knows that they were together,
what times they were together, and what
activity they did." The cross-examination
went on, and the government elicited the
following information: (1) on October 8,
Keith Johnson and Walker were selling
drugs, as they did every day; (2) they
sold drugs in two different areas; (3) on
the same day, Walker had "workers" at the
spot where he habitually sold drugs; (4)
Keith Johnson did not know where
"Charlie" was at 4:30 in the afternoon
because Keith Johnson had no watch.
 This evidence was properly used to
attack Walker’s alibi and related only to
the events on October 8. Once defense
counsel puts an alibi witness on the
stand, the prosecutor is allowed to try
to establish exactly what the defendant
and the alibi witness were doing that day
and when they were doing it. See United
States v. Cavale, 688 F.2d 1098, 1112
(7th Cir. 1982) (when a party opens up a
subject, he cannot complain on appeal if
opposing party introduces evidence on
that subject). Even though it may have
reflected poorly on Walker’s character,
its admission did not violate Rule 404(b)
because it was used to refute the alibi,
not to show Walker’s propensity to commit
crimes. See United States v. Taylor, 728
F.2d 864, 871 (7th Cir. 1984). In
addition, the court instructed the jury
not to consider evidence of any drug
dealing, or use it as evidence that the
defendant committed any of the charged
crimes. Id. at 872.

3. Production of Agent Spotts’s Notes
of the Interview

Prior to trial, Walker moved to compel
production of Agent Spotts’s notes of
their interview. After reading the notes
and comparing them to the report, the
court found the notes to be cumulative of
the report and denied the motion for
production. This was not an abuse of
discretion, especially when we consider
that the defendant, who has now seen the
notes, cannot point to any
inconsistencies. See United States v.
Muhammad, 120 F.3d 688, 699 (7th Cir.
1997) (defendant is not entitled to an
agent’s notes if the report contains all
that was in the notes).

4. Statement of Daniel Alvarez

Cook County Sheriff’s Officer Gregory
Wing interviewed the witnesses outside of
the bank who saw the robbers escape in
the getaway car. During the government’s
direct examination of Wing, Wing was
asked whether one of the witnesses gave
him the license plate number of the
getaway car. He testified that he was
given the number, and he was then allowed
to read the number from his notes of the
interview. On cross-examination, the
defense counsel wanted to elicit
testimony from Wing that his notes also
stated that one of the witnesses, Daniel
Alvarez, saw one of the robbers flee the
bank, pull out car keys and open the car
door. (This was an attempt to show that
there were only two people involved in
the robbery.) The court refused to allow
the testimony, finding Alvarez’s
statement to be inadmissible hearsay.

Although Wing was on the stand, his
notes on Alvarez’s statements were
hearsay and Alvarez’s statement in the
notes was hearsay-within-hearsay. See
United States v. Severson, 49 F.3d 268,
271-72 (7th Cir. 1995). (We note that the
license plate information suffers from
the same hearsay problems, but the
admission of that information has not
been challenged.) Walker offers no reason
for admitting either layer of hearsay. He
suggests, however, that since the notes
were admitted to refresh Officer Wing’s
memory as to the license plate, Federal
Rule of Evidence 106 required the court
to admit the rest of the notes for the
sake of completeness. But that rule does
not help Walker here; it would only apply
if he wanted the notes admitted to
"explain or qualify the portion offered
by the opponent" regarding the license
plate number. See United States v.
Glover, 101 F.3d 1183, 1190 (7th Cir.
1996). This was obviously not the use to
which defense counsel intended to put it.

5. List of "Charlie Browns"

At some point during the investigation,
the Chicago Police Department compiled a
list of names and addresses of six
previous offenders with the alias
"Charlie Brown." Walker asked that the
list be admitted; the court found that
the list itself was inadmissable hearsay
but that the defense could elicit the
information contained in the document
through the testimony of the person who
made the list.

Walker argues that the list was not
hearsay because it was not being used for
the truth of the matter asserted--i.e. to
show that there were others with the same
alias--but instead to show that the
government did not follow all of the
leads that it had. In other words, the
government knew that there were other
offenders with the same alias but showed
only Walker’s photo to McLaurin. This in
turn was supposed to suggest that it had
rushed to point the finger at Walker,
which might have undermined Agent
Spotts’s credibility.

Even if this theory avoids hearsay
problems, it is highly speculative at
best. Furthermore, the jury was told that
there was a list and the court permitted
defense counsel to ask Officer Wing about
the substance of the list, i.e. that the
investigators were aware that there were
at least five other past offenders living
in Chicago with the same nickname and
they chose only one as a suspect. Only
the actual piece of paper with the names
on it was excluded. Any conceivable error
in its exclusion was harmless.

6. Photo Lineups

Following the robbery, five TCF bank
employees viewed a photo lineup of six
black males. The lineup did not include a
photo of Walker, but it did include other
men that the police thought might have
been involved in the robbery. None of the
employees positively identified any of
the subjects as one of the robbers.
Rather, they each offered opinions that
certain subjects "had the same features"
or "looked similar" to one of the
robbers. Defense counsel wanted the
photographs used in the lineups submitted
as trial exhibits and wanted to elicit
testimony from Agent Spotts that these
witnesses had pointed to someone other
than Walker as one of the robbers. The
court refused to admit the photos.

This ruling was well within the court’s
discretion. The lineup and the resulting
identifications were very confusing.
Walker was not even included in the
lineup; the police officers were trying
to find out if anyone else was involved.
The witnesses’ testimony was exceedingly
vague. Some witnesses identified only the
person who stood in the lobby during the
robbery, not the person who vaulted the
counter. On top of that, defense counsel
ultimately was able to tell the jury
about these identifications. Agent Spotts
testified that at least two witnesses
pointed to someone other than Walker as
having similar features to one of the
robbers. Defense counsel was also allowed
to ask two testifying bank employees
about their identifications. As the
district judge noted, defense counsel
could have called all of the TCF
employees as trial witnesses if it wanted
to elicit testimony about the rest of the
identifications.

7. Spotts in Courtroom

Walker also complains about the fact
that Agent Spotts remained in the
courtroom throughout the trial. He waived
this objection, however, when defense
counsel affirmatively joined in the
motion to allow Spotts to be in the
courtroom during the trial. United States
v. Davis, 121 F.3d 335, 337-38 (7th Cir.
1997). There is thus no occasion for us
to address it further.

III

As we said at the outset, the most
difficult issue in this case concerns the
confession that Walker gave while he was
still suffering the symptoms of heroin
withdrawal. The district court’s factual
findings about his condition, however,
and the court’s conclusion that he was
able to make an informed and voluntary
decision to confess, resolve that point
against him. Whatever flaws may have
existed in the remainder of the trial do
not require reversal. We therefore AFFIRM
the district court’s judgment.