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.