       _____________

        No. 95-3325
       _____________

United States of America,               *
                                        *
           Plaintiff-Appellee,          *
                                        *
     v.                                 *
                                        *
Antwon A. Warfield,                     *
                                        *
           Defendant-Appellant.         *

                                               Appeals from the United States
                                               District Court for the
                                               Western District of Missouri.


       _____________

        No. 95-3326
       _____________

United States of America,               *
                                        *
           Plaintiff-Appellee,          *
                                        *
     v.                                 *
                                        *
Brian M. Thomas,                        *
                                        *
           Defendant-Appellant.         *


                                   _____________

                      Submitted:    March 13, 1996

                         Filed:     October 2, 1996
                                   _____________

Before MCMILLIAN, BEAM, and HANSEN, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.
     Antwon   A.   Warfield   and   Brian      M.   Thomas   appeal   from   the   final
                                    1
judgments of the district court after they were convicted of armed bank
robbery in violation of 18 U.S.C. § 2113(a) and (d), conspiracy to commit
armed bank robbery in violation of 18 U.S.C. § 371, and Thomas was
convicted of aiding and abetting armed bank robbery in violation of 18
U.S.C. §§ 2 and 2113(a) and (d).        Both raise various trial-related rulings
as a basis for reversal of their convictions.          After carefully considering
the record, we affirm the judgments of the district court.


                                          I.


     On December 8, 1993, the Boatmen's Bank at 8550 Holmes in Kansas
City, Missouri, was robbed by several individuals.           It was robbed again on
December 17, 1993.    The two robberies were conducted in the same manner,
and in a manner identical to the robberies of several area fast-food
restaurants earlier that year.          Prior to arriving at the business to be
robbed, the robbers would remove the license plates from their vehicle.
Two robbers would enter the business wearing nylon stocking masks and work
gloves.    One robber carried a firearm and stood by the door, covering
customers and employees.      The other robber would vault over the counter,
open the cash drawer, and remove the entire cash tray and its contents.
With the cash tray in hand, the robbers would flee the premises to the
getaway car, which a third robber had strategically positioned for a quick
getaway.   The robberies were always executed extremely rapidly, with the
time the robbers spent inside the establishment lasting around a minute.


     Warfield was charged in the superseding indictment with one count of
armed bank robbery and one count of conspiracy to commit




     1
      The Honorable Joseph E. Stevens, Jr., United States
District Judge for the Western District of Missouri.

                                         -2-
armed bank robbery in connection with the December 17, 1993, robbery of
Boatmen's Bank.    Thomas was charged with armed bank robbery in connection
with the December 8, 1993, robbery of Boatmen's Bank, and aiding and
abetting armed bank robbery and conspiracy to commit armed bank robbery
stemming from the December 17 robbery.      The case proceeded to trial, and
a jury found the Appellants guilty on each count with which they were
charged.    After being sentenced by the district court, Warfield and Thomas
appeal.



                                      II.


WARFIELD'S APPEAL
                                       A.


      Warfield argues that the district court, adopting the report and
recommendation of a United States Magistrate Judge,2 abused its discretion
by overruling his motion to sever his trial from co-defendant Thomas's
trial.     "[W]e review the district court's denial of a motion for severance
for   an   abuse of discretion which resulted in `severe or compelling
prejudice.'"    United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir. 1995)
(quoting United States v. Rimell, 21 F.3d 281, 289 (8th Cir.), cert.
denied, 115 S. Ct. 453 (1994)).    "To show such prejudice, a defendant must
establish something more than the mere fact that his chance for acquittal
would have been better had he been tried separately.    He must affirmatively
demonstrate that the joint trial prejudiced his right to a fair trial."
United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir. 1995) (internal
quotation omitted), cert. denied, 116 S. Ct. 966 (1996).         Finally, we
observe that "[r]arely, if ever, will it be




      2
      The Honorable John T. Maughmer, Chief United States
Magistrate Judge for the Western District of Missouri.

                                      -3-
improper    for    co-conspirators      to    be    tried    together."   Id.       (internal
quotations and citation omitted) (alteration in original).


       "When a defendant moves for a severance, a district court must first
determine    whether    joinder    is   proper      under   Federal    Rule    of    Criminal
Procedure 8.      If joinder is proper, the court still has discretion to order
a severance under Federal Rule of Criminal Procedure 14."                     United States
v. Darden, 70 F.3d 1507, 1526 (8th Cir. 1995), cert. denied, 116 S. Ct.
1449 (1996).      Rule 8 and Rule 14 are to be given a liberal construction in
favor of joining the trial of several defendants.                Id.


       Rule 8 permits the joinder of defendants "if they are alleged to have
participated in the same act or transaction or in the same series of acts
or transactions constituting an offense or offenses."              Fed. R. Crim. P. 8.
For proper joinder under this provision, "[i]t is not necessary that every
defendant have participated in or be charged with each offense."                     Darden,
70 F.3d at 1527 (internal quotations omitted).                  Under Rule 8 then, the
joinder    of   Warfield   and    Thomas     was   clearly    appropriate      because    the
superseding indictment alleged that they conspired to commit, and Warfield
subsequently engaged in while Thomas aided and abetted, armed robbery of
Boatmen's Bank on December 17, 1993.


       If joinder is proper under Rule 8, the defendant seeking severance
has the heavy burden of demonstrating that a joint trial will impermissibly
infringe his right to a fair trial.           Id.    This burden may be satisfied by
showing that the jury was unable to compartmentalize the evidence against
each   defendant or that the defendants' defenses are irreconcilable.
Jackson, 64 F.3d at 1217.


       Warfield claims that he satisfied this onerous burden because the
jury was unable to compartmentalize the evidence with respect to each
defendant.      Specifically, Warfield observes that a plethora




                                             -4-
of evidence was presented concerning Thomas's past criminal involvement,
specifically Thomas's arrest on June 16, 1993, his participation in robbing
several restaurants, and his involvement in the December 8, 1993, robbery
of Boatmen's Bank.   Warfield claims that with these numerous instances of
bad conduct presented against Thomas, the "spillover effect" deprived him
of his constitutional right to a fair trial.     We disagree.


     This case involved co-conspirators who were charged in the indictment
for their respective roles in the December 17 robbery.      A good deal of
evidence presented at trial concerned the plan, and the execution of the
plan, to rob the Boatmen's Bank on December 17, and the Appellants'
involvement therein.   Further, the district court instructed the jury that
it was to view the evidence presented against one defendant as applicable
to only that defendant and we assume, as we must, that the jury followed
this instruction.    Fregoso, 60 F.3d at 1328.   Finally, Warfield presents
nothing more than an unsupported assertion that he was prejudiced by the
failure to sever.    However, "a claim of potential prejudice is not enough
to prevail on this issue."    Jackson, 64 F.3d at 1217.


     Warfield thus has failed to carry his heavy burden to show that his
joint trial with co-conspirator Thomas prejudiced his right to a fair
trial.   Accordingly, we reject Warfield's claim that the district court
erred by denying his motion for severance.


                                     B.


     Warfield next claims that the district court erred by failing to
issue a Writ of Habeas Corpus Ad Testificandum, compelling one Terrance
Davis to appear at trial to testify.        At the time Warfield made his
request, Davis was incarcerated in the United States Penitentiary at
Leavenworth, Kansas, having been tried and convicted for his participation
in the same December 17, 1993,




                                     -5-
robbery of Boatmen's Bank for which Warfield was being tried.                Davis's
direct appeal was pending at that time before this court.                 See United
States v. Davis, 65 F.3d 172, 1995 WL 507320 (8th Cir. 1995) (unpublished
opinion affirming conviction).     Warfield sought to question Davis about the
December 17 robbery.


     The district court held a hearing on the issue with Davis's attorney
present.   Davis's counsel stated to the court in no uncertain terms that
if the court required Davis to appear and take the stand, Davis would
unequivocally    exercise   his   Fifth    Amendment    privilege   against    self-
incrimination.    In light of counsel's representation, the district court
overruled Warfield's request that Davis be compelled to appear and take the
stand.


     Warfield takes issue with the district court's ruling, claiming that
the court simply speculated that Davis would exercise his Fifth Amendment
privilege against self-incrimination.       We have held that a representation
to the district court by a witness's counsel that the witness would
exercise his Fifth Amendment rights if called to testify is sufficient for
the district court to refuse to compel that witness to appear.            See United
States v. Swanson, 9 F.3d 1354, 1359 (8th Cir. 1993) (district court's
exclusion of testimony by witness not improper when witness's attorney
informed court that witness would assert Fifth Amendment right of self-
incrimination    if   called).     Thus,    in   this   case,   Davis's    counsel's
representation that Davis would exercise his Fifth Amendment privilege
against self-incrimination, coupled with the fact that Davis's appeal was
still pending before this court, was a sufficient basis for the district
court to conclude that that is precisely what Davis would have done.


     Warfield claims that under this court's holding in United States v.
Doddington, 822 F.2d 818 (8th Cir. 1987), the district court should have
compelled Davis's presence at trial and




                                      -6-
determined at that time whether Davis would invoke the privilege against
self-incrimination.       Doddington, however, actually supports the district
court's refusal to compel Davis's presence.            There we held that "a
defendant does not have the right to call a witness to the stand simply to
force invocation of the right against self-incrimination in the presence
of the jury."      822 F.2d at 822.   See also United States v. Robaina, 39 F.3d
858, 862 (8th Cir. 1994) (A "defendant's right to compulsory process does
not include the right to compel a witness to waive his or her Fifth
Amendment privilege against self incrimination.").


        Finally, Warfield claims that if Davis had exercised his Fifth
Amendment rights, the district court could have granted Davis "judicial"
immunity or compelled the government to offer Davis use immunity.          This
argument also fails.        We have not heretofore recognized the concept of
"judicial" immunity, see Robaina, 39 F.3d at 863,3 and decline to do so
here.       Additionally, use immunity can only be granted when it is formally
requested by the Attorney General, id., and the district court is without
power to compel the government to grant a witness immunity.         Doddington,
822 F.2d at 821.      See also Robaina, 39 F.3d at 863 (holding that district
court correctly concluded that it could not order the government to grant
use immunity).




        3
      "This concept arises from case law, which holds that a
court possesses an inherent power to grant a witness use immunity
in order to effectuate the defendant's compulsory process right
to secure essential exculpatory testimony." Robaina, 39 F.3d at
863 n.3. Even if we were to formally recognize the concept,
which we decline to do here, the doctrine is applicable only if
the proffered testimony of the witness is "clearly exculpatory."
United States v. Hardrich, 707 F.2d 992, 993-94 (8th Cir.), cert.
denied, 464 U.S. 991 (1983). In this case, however, it does not
appear that Warfield's counsel had discussed the case with Davis,
and thus we cannot conclude that Davis's testimony would have
been clearly exculpatory, no proffer of the same having been
made.

                                        -7-
     Accordingly, we reject Warfield's claims that the district court
erred by failing to order Davis's presence at trial.4


                                      C.


     Warfield contends that the district court impermissibly interfered
with his closing argument.     To put this argument in context, a bit of
background information is required.    The government presented evidence that
on December 17, 1993, sometime in the late morning or early afternoon, Jeff
Hudspeth and Troy Taylor met with Thomas at Thomas's residence and Warfield
arrived approximately one-half hour later.    The four discussed robbing the
Boatmen's Bank, and subsequently did so at approximately 2:00 p.m.        To
combat this evidence of his involvement in the robbery, Warfield employed
an alibi defense, presenting evidence that on December 17 he was at his
place of employment the entire morning and that in the afternoon hours he
was with his girlfriend, Davetta Cooksey, and later at a chiropractor's
office.   Significantly, during cross-examination of Taylor and Hudspeth by
Warfield's counsel, both witnesses agreed that the purported meeting at
Thomas's residence took place in the morning.     The obvious purpose behind
obtaining this testimony from Taylor and Hudspeth was to argue to the jury
that Warfield could not have been at the meeting because he was at his
place of employment all morning.


     Warfield's counsel was in the midst of making that argument in his
closing argument when the following exchange took place:

     Mr. Mullen (Warfield's counsel): But what do Hudspeth
     and Taylor say? What is the testimony of these liars?
     There is a meeting that occurs that morning.       No
     question




     4
      Having reached this conclusion, we decline to address the
government's alternative argument that Warfield's request to have
Davis appear was untimely.

                                      -8-
     she wouldn't lie.    So they have to be lying.       And if
     they are lying --

     Mr. Newbert (prosecutor):      Your honor.

     The Court:    Just a minute.

(Trial Tr. at 928-29.)    The court then informed Warfield's counsel at a
sidebar held outside of the jury's hearing that characterizing the meeting
as having taken place in the "morning" was "deceptive," that he was
implying something not in the record, and informed counsel that counsel
could, if he wished, argue that the meeting took place "shortly before
noon."   (Id. at 929.)


     Warfield contends that the district court, by restricting his counsel
to argue that the purported meeting took place "shortly before noon,"
hindered counsel's ability to outline the discrepancy in the witness's
testimony.   Warfield points out that ordinarily counsel is permitted wide
latitude in making closing argument and that in this case the district
court's actions impermissibly restricted this latitude, which in turn
prejudiced his defense.   We disagree.


     We afford district courts wide latitude in controlling closing
arguments.   United States v. McGuire, 45 F.3d 1177, 1189 (8th Cir.), cert.
denied sub nom. Mandacina v. United States, 115 S. Ct. 2558 (1995).         In
this case, the court was well within its discretion in suggesting to
Warfield's counsel that he characterize the meeting as occurring "shortly
before noon" rather than in the morning.          Although Taylor and Hudspeth
stated that the meeting took place in the morning, they both testified that
the meeting occurred around the noon hour.            The district court was
justifiably concerned that, although counsel's description of the meeting
taking place in the morning was technically correct, this characterization
created the potential that the jury would be misled.      The district court's
requirement that Warfield's counsel,




                                     -9-
if he wished to further discuss the time that the meeting took place,
characterize it as occurring "shortly before noon" did not preclude counsel
from arguing the alibi theory of defense because his client's time card
showed       he left his workplace in Olathe, Kansas, at noon and, more
importantly, confined counsel's argument to the evidence presented.


        The district court committed no abuse of discretion by its actions
with respect to Warfield's counsel's closing argument.


                                                D.


        Warfield contends that the district court erred by giving the jury
an Allen5 instruction after the jury indicated that it was unable to reach
a verdict with respect to one defendant.                  The jury received the case at
12:45       p.m.   on    the   fifth   day   of    trial.     That   same    afternoon,   at
approximately 4:00 p.m., the jury sent a note to the district judge,
stating "Decision on one defendant and deadlocked on the other.                        What
should we do?"          (Trial Tr. at 948.)        After a discussion with the parties,
the court reconvened the jury in the courtroom at 4:30 p.m. and gave it an
instruction modeled after § 10.02 of the Eighth Circuit Manual of Model
Criminal Jury Instructions.6            About an hour after the jury received the
Allen       instruction,       it   returned      with   guilty   verdicts   against   both
Appellants.




        5
      "Named after Allen v. United States, 164 U.S. 492, 17 S.
Ct. 154, 41 L. Ed. 528 (1896), `[t]hese charges expressly direct
jurors to reconsider their positions, and address the minority or
dissenting jurors alternatively, when a majority is for
conviction or when a majority is for acquittal.'" United States
v. Cortez, 935 F.2d 135, 140 n.4 (8th Cir. 1991) (quoting Potter
v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982)).
        6
      The full text of the district court's instruction is set
forth in Appendix A at the end of this opinion.

                                               -10-
      Warfield acknowledges that this court has consistently approved the
giving of an Allen instruction to a deadlocked jury.              Nonetheless, he
argues that in the context of this case, such an instruction was erroneous
because of its coercive nature, particularly given the district court's
failure to question the jury regarding its numerical division.             He also
claims that the instruction should have been given before the jury retired
to deliberate, rather than after deadlock had occurred.           We reject these
arguments.


      Initially, we dismiss Warfield's suggestion that the district court
committed error by not inquiring about the numerical division of the jury.
The rule is clearly to the contrary.       It is a per se ground for reversal
to do so.     United States v. Webb, 816 F.2d 1263 (8th Cir. 1987).               The
Supreme Court emphatically said so in Brasfield v. United States, 272 U.S.
448 (1926).   Our circuit's case law declared it so before the Supreme Court
decided Brasfield. See St. Louis & S.F.R.R. v. Bishard, 147 F. 496 (8th
Cir. 1906); Stewart v. United States, 300 F. 769, 782 (8th Cir. 1924).


      In reviewing a claim that an Allen charge was impermissibly coercive,
we examine four factors: (1) the content of the instruction, (2) the length
of   deliberation   after   the   Allen   charge,    (3)   the   total   length    of
deliberation, and (4) any indicia that the jury was coerced or pressured.
United States v. Thomas, 946 F.2d 73, 76 (8th Cir. 1991).         We note that the
content of the district court's instruction was nearly identical, and
substantively was identical, to that contained in § 10.02 of the Eighth
Circuit   Manual of Model Criminal Jury Instructions.              In Thomas, we
expressly approved the language of Model Instruction § 10.02.            Id. at 76.
At the time it received the charge, the jury had deliberated almost four
hours and was deadlocked; we note that in           United States v. Cortez, 935
F.2d 135, 142 (8th Cir. 1991), cert. denied, 502 U.S.             1062 (1992), we
approved the giving of an Allen




                                     -11-
instruction to a jury that had been deadlocked approximately four and one-
half hours.     Although the jury's return with a verdict approximately one
hour after receiving the Allen charge is somewhat expeditious, we do not
believe the postinstruction deliberation time, or the total deliberation
time, in this case raises an inference of coercion.           See Thomas, 946 F.2d
at 76 (one and one-half hours postinstruction deliberation time and nine
hours of total deliberation after a two-day trial did not raise an
inference of coercion); Cortez, 935 F.2d at 142 (four and one-half hours
postinstruction deliberation and nine hours total deliberation did not
raise an inference of coercion).        Finally, Warfield is unable to point to
any record evidence of coercion or pressure on the jury.            Considering these
factors,   we   conclude   that   the   giving   of   the   Allen   charge   was   not
impermissibly coercive.


     We also reject Warfield's claim that the Allen instruction should
have been provided to the jury before it reached deadlock.               Although we
have indicated that it is preferable for the district court to include the
substance of such a charge in its original instructions, before deadlock
has occurred, see Potter v. United States, 691 F.2d 1275, 1277 (8th Cir.
1982), we have never held that to be the only permissible method of giving
an Allen charge.    In fact, Allen itself, like the overwhelming majority of
cases we have encountered in which an Allen issue has been raised, dealt
with the propriety of the instruction after deadlock occurred.            See, e.g.,
Allen v. United States, 164 U.S. 492, 501 (1896); Thomas, 946 F.2d at 76;
Cortez, 935 F.2d at 140.    Therefore, Warfield's argument that the district
court should have given this instruction to the jury before deadlock, if
it was to give the instruction at all, must be rejected.


     In sum, we hold that the district court committed no error when it
gave an Allen charge to the jury.




                                        -12-
THOMAS'S APPEAL


                                           A.


        Thomas claims that the district court erred in preventing him from
showing his bare feet to prosecution witness Yolanda Jones, and later to
the jury.      This claim stems from certain testimony Jones gave on cross-
examination.     Jones was a teller at Boatmen's Bank when the December 8,
1993, robbery occurred.       After testifying on direct examination about the
robber who jumped the teller counter during the robbery, Jones stated on
cross-examination that she got a good look at the robber's feet and that
one foot had a knot or protrusion that was observable, caused either by the
robber's foot or by his boot.      Although Jones initially testified that she
would not be able to recognize the foot again if she saw it, she
subsequently stated that she "[p]robably could" identify it if she saw it
again.    (Trial Tr. at 465.)


        Thomas's counsel then requested that the court permit Thomas to show
Jones    his   bare   feet,   ostensibly    to   illustrate   that   Thomas   had   no
discernable abnormalities on either foot.          The district court denied this
request because Jones had not seen the robber's bare feet but only saw them
with boots on.        The district court suggested to Thomas's counsel that
because Jones testified that she saw the robber's feet with boots on, it
would be permissible to have Thomas put boots or shoes on and, with them
on, display his feet to Jones.      Thomas's counsel declined this suggestion.


        Later, at the close of Thomas's case, Thomas's counsel requested that
the court permit Thomas to show his bare feet to the jury, again basing
this request on Jones's testimony regarding the protrusion on the robber's
foot.    The district court demurred, again on the basis that Jones had not
seen the robber's bare foot, and thus the record evidence did not support
such a demonstration.




                                       -13-
     Thomas claims that the district court erred by refusing to permit him
to display his bare feet to Jones as well as to the jury.   He argues that
because identification was one of the crucial issues at trial, the court's
rulings denied him his right to a fair trial.


     We find Thomas's claim unpersuasive.   We review the district court's
rulings concerning the admission of evidence, including the admission of
exhibits or the conducting of demonstrations, for an abuse of discretion.
United States v. Woodfork, 955 F.2d 518, 519 (8th Cir. 1992).    The issue
raised here is almost identical to that we addressed in Woodfork.    There
the defendant was charged with bank robbery and was identified as the
perpetrator of the crime by several bank employees.    Id. at 518-19.    At
trial, the defendant requested permission to approach the jury and display
a prominent gold front tooth because the bank employees had stated that
they got a good look at the robber and did not notice anything conspicuous.
Id. at 519.   The district court rejected the defendant's request because
it was possible that the defendant might not have opened his mouth
sufficiently during the robbery to make the tooth discernible.     Id.   We
held that the district court's ruling fell within the district court's
ample discretion.   Id.


     Similarly, the district court's denial of Thomas's request to display
his bare foot to Jones or the jury did not constitute an abuse of
discretion.   The court reasoned that Jones had testified that she saw a
protrusion on the top of the robber's boot.   Permitting Thomas to display
his bare feet to either Jones or the jury would have created a condition
that was without support in the record.   Additionally, the district court
attempted to accommodate




                                   -14-
Thomas by permitting him to show Jones how his feet appeared with boots on,
the condition that Jones testified she saw.7


       Thus, the district court committed no abuse of discretion by refusing
to permit Thomas to show his bare feet to Jones or the jury.8


                                            B.


       Thomas contends that the district court impermissibly restricted his
cross-examination of government witness Jeffrey Hudspeth concerning the
contents of Hudspeth's plea agreement.            Hudspeth had been charged with, and
pled guilty to, participating in the December 8 and December 17 robberies
of   Boatmen's   Bank,   and   was   cooperating      with   the    government,    having
testified in front of the grand jury, in Terrance Davis's trial, and in the
present trial.     Hudspeth's plea agreement was admitted into evidence.              The
plea   agreement    referred   to    the    requirements     that    Hudspeth     provide
assistance to the government concerning the bank robberies at issue, as
well as provide assistance to other governmental entities concerning the
prosecution of a drive-by double murder in Kansas City, Missouri.                     The
district court granted the government's motion




       7
      We find the case Thomas relies on, United States v. Bay,
748 F.2d 1344 (9th Cir. 1984) (subsequent case history omitted),
readily distinguishable. There the defendant, who had been
charged with bank robbery, had prominent tatoos on the back of
his hands. Id. at 1345. A prosecution witness testified that
she saw the robber's hands and stated the only noticeable feature
of the hands was the defendant's long, thin fingers. Id. The
Ninth Circuit held that the district court abused its discretion
when it refused to permit the defendant to show his hands to the
jury. Id. at 1346-47. Here, however, the district court was
willing to permit Thomas to show his feet to Jones and the jury
on the condition that he display them in the same condition as
Jones testified that she saw the robber's feet, with boots on.
       8
      We have also examined Thomas's confrontation clause claim
and conclude that it is entirely without merit.

                                           -15-
in limine that precluded Warfield and Thomas from questioning Hudspeth
about the double murder case.   The district court reasoned that information
surrounding the double murder concerned a collateral matter and that it was
potentially too prejudicial.9


     Thomas complains that the district court's ruling impermissibly
restricted his cross-examination of Hudspeth.      He argues that he should
have been permitted to question Hudspeth about the details of the double
murder, so the jury could have received a complete account of the favorable
treatment the government provided to Hudspeth as a result of Hudspeth's
guilty plea and cooperation.    By receiving this information, the jury would
have been able to properly evaluate Hudspeth's biases and his potential for
coloring his testimony in favor of the government.      By failing to permit
inquiry into this area, Hudspeth continues, the district court violated his
Sixth Amendment right of confrontation.     We disagree.


     We have serious doubts that Thomas preserved this issue for appeal.
A review of the transcript indicates that Warfield's counsel, not Thomas's
counsel, strenuously argued in favor of permitting inquiry into this area
and lodged a specific objection when the district court rejected Warfield's
counsel's argument.   At no time did Thomas make any argument, or more
importantly, lodge any objection to the district court's denial of this
request.   Thomas has therefore waived this issue.      See United States v.
Brown, 33 F.3d 1014, 1017 (8th Cir. 1994) (failure of party to object to
issue at trial precludes appellate review).


     Even assuming that Thomas properly preserved this issue, we conclude
that the district court properly denied Thomas the




     9
      There is no dispute that Hudspeth was simply a bystander-
witness to the drive-by shooting. It does not appear that he was
ever a suspect in the commission of the crime.

                                     -16-
opportunity to question Hudspeth about the Missouri state double murder
case.    It is true that "[t]he Confrontation Clause of the Sixth Amendment
guarantees to a defendant the opportunity for effective cross-examination
of witnesses against him, including inquiry into the witnesses' motivation
and bias."     United States v. Willis, 997 F.2d 407, 415 (8th Cir. 1993),
cert. denied, 114 S. Ct. 704 (1994).       The right to examine witnesses under
this provision is not without limitation, however.                  District courts
"`retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the
witness' safety, or interrogation that is repetitive or only marginally
relevant.'"    United States v. Juvenile NB, 59 F.3d 771, 778 (8th Cir. 1995)
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)).                 A key
factor in determining whether a defendant's right of confrontation has been
violated is whether the defendant had other means at his disposal to obtain
the effect that the excluded examination would have allegedly established.
United States v. Campbell, 845 F.2d 782, 788 (8th Cir.), cert. denied, 488
U.S. 965 (1988).       Absent a clear abuse of discretion and a showing of
prejudice, we will not reverse a district court's ruling limiting cross-
examination of a prosecution witness on the basis that it impermissibly
infringed upon the defendant's right of confrontation.              Willis, 997 F.2d
at 415.


        In this case, Thomas claims that he wished to question Hudspeth about
the details of the Missouri murder case to show the extent of the benefits
that    Hudspeth    received   by   pleading    guilty   and   cooperating   with   the
government.        The district court committed no abuse of discretion in
precluding Thomas from pursuing this line of questioning.               Hudspeth was
simply a witness to the double murders and, as part of his plea agreement,
agreed to assist Missouri state authorities in the prosecution of that
case.    He was not charged in the murder case.          The homicides were clearly




                                         -17-
collateral matters in this case because Hudspeth, given that he was only
a witness to the murders, would have had no reason to fabricate his
testimony or to be biased for the government in this case.   Thus, inquiry
into this area would have been of little, if any, benefit to Thomas, other
than to portray Hudspeth as an individual who is around violent crimes.


     On the other hand, Warfield's counsel was given ample opportunity to
vigorously cross-examine Hudspeth in detail regarding the benefits Hudspeth
received by pleading guilty to the robberies at issue in this case and
cooperating with the government by providing testimony against his co-
conspirators.   Counsel for Thomas and Warfield conducted a thorough cross-
examination of Hudspeth, consuming almost 45 pages of trial transcript,
about Hudspeth's bias and motive to lie, and his past criminal history.
The Appellants also questioned Hudspeth at length about his testimony
before the grand jury, at the Davis trial, and in the present trial.


     Under these circumstances, we have little difficulty in concluding
that the district court committed no abuse of discretion in precluding
examination of Hudspeth concerning the Missouri state double murders that
he witnessed.


                                     C.


     Thomas claims that the district court abused its discretion in
admitting evidence of other crimes or bad acts that he committed. He claims
that this evidence has no relevance to the offenses charged in this case
because the other crimes and bad acts were simply unrelated collateral
conduct.   He also argues that the probative value in admitting this
evidence was substantially outweighed by its prejudicial impact.




                                   -18-
     The district court admitted the following items of bad acts evidence
with which Thomas takes issue:   On June 1, 1993, Thomas was a passenger in
a vehicle that was suspected as being the getaway vehicle for a robbery of
a Pizza Hut store on May 28, 1993.    Thomas was questioned concerning the
identity   of the driver of the vehicle.       Several days later, after
determining that Thomas had not been completely truthful with them, law
enforcement officers questioned Thomas again, and he admitted he had
previously lied to them about the identity of the driver of the vehicle.


     On June 16, 1993, Thomas was stopped while driving a vehicle because
of a traffic violation and because law enforcement officers believed that
the perpetrator of the Pizza Hut robbery was riding with Thomas.   After the
other individual was placed under arrest, Thomas consented to a search of
the vehicle, during which officers discovered a handgun, ski mask, and a
pair of brown work gloves in the glove compartment of the vehicle.   The day
after this stop, Thomas was interviewed by officers and stated that the
vehicle he had been driving the previous day was his, and he had exclusive
use of it.    Several bank employees positively identified a photograph of
the car as the vehicle that was used as a getaway car after the December
17, 1993, bank robbery.


     Jason Hopkins, the evening manager of a Subway restaurant in Kansas
City, testified that he was working on October 21, 1993, when the store was
robbed.    He stated that the robbers wore stocking masks and heavy work
gloves.    He stated that one of the robbers vaulted over the counter with
a blue cloth bag and put the cash tray in the bag.     Hudspeth and Taylor
testified that Thomas participated in this robbery, along with robberies
of several other local fast-food establishments.


     Thomas was picked up by law enforcement officers on August 2, 1994,
for running a stop sign.   During a subsequent search of the




                                    -19-
vehicle, officers discovered two loaded handguns, three nylon stocking
masks, three pairs of gloves, a pillowcase, and a bandanna.       Appellant
Warfield was a passenger in the vehicle.         A nylon stocking cap was
recovered from Warfield's front pocket.     The stop occurred within two
blocks of two banks.


     The admissibility of evidence of other bad acts is governed by
Federal Rule of Evidence 404(b), which provides:

     Evidence of other crimes, wrongs, or acts is not
     admissible to prove the character of a person in order
     to show action in conformity therewith.       It may,
     however, be admissible for other purposes, such as
     proof of motive, opportunity, intent, preparation,
     plan, knowledge, identity, or absence of mistake or
     accident . . . .



Fed. R. Evid. 404(b).     We have adopted a four-part test to determine
whether other bad acts evidence is admissible under Rule 404(b).     To be
admissible, the evidence must be "(1) relevant to a material issue; (2)
proved by a preponderance of the evidence; (3) higher in probative value
than in prejudicial effect; and (4) similar in kind and close in time to
the crime charged."    United States v. Shoffner, 71 F.3d 1429, 1432 (8th
Cir. 1995) (internal quotations).   Rule 404(b) is a rule of inclusion and
precludes the admission of evidence which tends only to prove a defendant's
criminal tendencies.    Id.   We review the district court's admission of
other bad acts evidence for an abuse of discretion.       United States v.
Mejia-Uribe, 75 F.3d 395, 397 (8th Cir. 1996).   However, "we will overturn
the admission of Rule 404(b) evidence only if `the appellant can show that
the evidence in question clearly had no bearing upon any of the issues
involved.'"   United States v. Baker, 82 F.3d 273, 276 (8th Cir. 1996)
(quoting United States v. Street, 66 F.3d 969, 976 (8th Cir. 1995)).




                                    -20-
     "Evidence of prior crimes or bad acts is admissible to show a common
plan or scheme, or intent."     Baker, 82 F.3d at 276 (internal citations
omitted).   The plain terms of the rule also permit the introduction of such
evidence if it is offered to show preparation.     See Fed. R. Evid. 404(b).
In this case, the evidence of other bad acts was relevant for one or
several of these purposes.      The evidence obtained as a result of the
traffic stops on June 17, 1993, and August 2, 1994, during which Thomas
possessed tools of the robber's trade, was relevant to show preparation to
rob a bank and a common plan or scheme.    This is because numerous witnesses
from the two Boatmen's Bank robberies testified that the robbers wore
stocking masks and work gloves.   The evidence regarding the August 2 stop
was particularly relevant to show preparation because the traffic stop
occurred within a couple of blocks of two banks.    The fact that the August
2 stop occurred after the robberies of the Boatmen's Bank at issue here is
of no import.    See United States v. DeAngelo, 13 F.3d 1228, 1231 (8th
Cir.), cert. denied, 114 S. Ct. 2717 (1994).    The evidence concerning the
August 2 stop was also relevant because officers found a pillowcase in the
vehicle, which related to the testimony from the Boatmen's Bank employees
that the robbers removed the cash tray from the bank's drawer and put the
tray in a cloth bag or pillowcase.


     Similarly, the evidence from the Subway robbery was relevant to    show
a common pattern or scheme.   The Subway manager testified that the robbers
were wearing masks and gloves, which was the same attire worn by the
Boatmen's Bank robbers.    The witness also stated that one of the robbers
vaulted over the counter, took the cash tray out of the register, and put
the tray in a blue cloth bag.   This was similar to the method by which the
Boatmen's Bank robberies were carried out.


     Finally, the evidence concerning the June 1, 1993, stop when Thomas
was a passenger in the stopped vehicle, and Thomas's




                                    -21-
subsequent admission that he had not been truthful with officers on June
1, were offered simply to provide a background regarding why the officers
subsequently stopped him on June 17, 1993: They thought that the individual
who had committed the Pizza Hut robberies was riding with Thomas.            Given
the relationship between the bad acts evidence and the issues in the case,
we have no difficulty concluding that the evidence was relevant to a
material issue in the case.        We also note that pursuant to Thomas's
counsel's request, the district court instructed the jury to disregard the
witness Cooper's testimony about the Pizza Hut robbery and shooting.              Tr.
at 375.


     We likewise find Thomas's claim that the evidence was unfairly
prejudicial to be without merit.        Federal Rule of Evidence 403 permits
exclusion   of   evidence   if   the   probative   value   of    the   evidence   is
substantially outweighed by its prejudicial effect.             Fed. R. Evid. 403.
The rule "is concerned only with unfair prejudice, that is, an undue
tendency to suggest decision on an improper basis."              United States v.
Butler, 56 F.3d 941, 944 (8th Cir. 1995) (internal quotations omitted).
The challenged evidence in this case does not suggest a decision on an
inappropriate basis.    As noted above, it simply was offered to show the
conspirators' preparation and pattern, and the June 1, 1993, evidence was
simply offered for background information.          Additionally, the district
court instructed the jury that the evidence of other bad acts was not to
be considered to prove the acts charged.            We have held that unfair
prejudice is unlikely to be found where the district court instructed the
jury that the bad acts evidence was not to be used as proof that the
defendant committed the charged offense.      See, e.g., Baker, 82 F.3d at 276;
Butler, 56 F.3d at 944.




                                       -22-
       Therefore, the district court did not abuse its discretion in
admitting evidence of prior bad acts Thomas committed.10



                                     D.


       Thomas claims that the district court violated his right to a fair
trial by demonstrating judicial bias against him when the court made
several comments in the presence of the jury.    Thomas claims that these
statements, combined with the court's refusal to permit him to show his
feet to Jones or the jury, evince the district court's prejudice against
him.   He further argues that the district court's refusal to instruct the
jury to disregard the court's bias against him left the prejudicial impact
of the court's statements uncured.


       "We have always been reluctant to disturb a judgment of conviction
by reason of a few isolated, allegedly prejudicial comments of a trial
judge, particularly in a long trial."     United States v. Evans, 30 F.3d
1015, 1018 (8th Cir. 1994) (internal quotations and citation omitted),
cert. denied, 115 S. Ct. 1383 (1995).      We will, however, reverse the
conviction if the court's comments throughout a trial are one-sided and
interfere with a defendant's case to such an extent that the defendant is
deprived of the right to a fair trial.    Id.




       10
      We reject as completely unfounded Thomas's assertion that
he failed to receive adequate notice that the government intended
to introduce this Rule 404(b) evidence as required by that rule.
See Fed. R. Evid. 404(b) (requiring reasonable notice of intent
to use evidence under that provision). A cursory review of the
record indicates that Thomas's counsel was informed well in
advance of trial that the government intended to use this
evidence. See (Gov't's Addend. at 3.) (outlining over two weeks
in advance of trial government's intention to introduce evidence
of June 16, 1993, and August 2, 1994, traffic stops, and evidence
relating to robbery of Subway restaurant).

                                   -23-
       Thomas's evidence falls far short of this mark.    For the reasons
discussed above, we reject Thomas's claim that the court's refusal to
permit him to show his feet to Jones or to the jury was erroneous.     The
district court's comments which Thomas claims show bias, many of which
Thomas selectively quotes without providing the context in which the
comment was made, relate primarily to the efficient, orderly presentation
of evidence and the examination of witnesses.       For instance, in one
incident Thomas points to as supportive of his claim of judicial bias, the
district court asked Thomas's counsel whether counsel was almost through
with the questioning and presentation of a bank surveillance tape, to which
counsel indicated that he was.    When counsel continued asking questions
regarding the tape and then experienced difficulty in locating the frame
he desired, the district court stated that "[w]e really have to get going
with this . . .," and, after counsel could not locate the desired frame,
the court dismissed the jury for its morning recess.    (Trial Tr. at 224-
25.)   On another occasion, the district court ordered Thomas's counsel to
refrain from arguing with a prosecution witness after counsel had asked
repetitive questions concerning the witness's reluctance to speak with
counsel.11   These statements simply relate to the conduct of a criminal
trial, for which the district court possesses broad discretion.     United
States v. Frayer, 9 F.3d 1367, 1374 (8th Cir. 1993), cert. denied sub nom.
Haney v. United States, 115 S. Ct. 77 (1994).




       11
      In another incident, Thomas objected to the prosecution's
questions on one ground and the district court informed the
prosecution that the whole line of questioning was improper based
on a different reason that the court itself raised. Thomas
claims that by failing to adopt his basis for excluding the
questions and instead relying upon the court's reasoning, the
district court was attempting to ridicule counsel. After
reviewing the record, we must disagree and note that the
prosecution, rather than Thomas's counsel, was the recipient of
the court's criticism.

                                   -24-
       The district court did on several occasions admonish Thomas's counsel
to cease a line of questioning, and at one point characterized a question
posed by Thomas's counsel as "misleading." (Trial Tr. at 358.)                   Again,
however, for the most part the court's comments related to the orderly
administration of the trial and the few, isolated comments that Thomas
points to were not improper when read in context.             Finally, the trial in
this   case   was   somewhat   lengthy,   consuming    over   850   pages   of    trial
transcript.    Given the paucity of judicial statements about which Thomas
complains, compared to the length of the trial, any prejudice which might
have accrued did not deprive Thomas of his right to a fair trial.
Accordingly, the district court's comments reflected no judicial bias and
the court committed no error in refusing to instruct the jury to disregard
the court's comments.


                                          E.


       Finally, Thomas claims that the prosecutor committed prosecutorial
misconduct during closing arguments.           He claims that the prosecutor made
misstatements of the facts in a manner calculated to mislead the jury
regarding the highly contested issue of identification, and the trial court
took no action.      We evaluate claims of prosecutorial misconduct under a
two-part test.      First, we ask whether the prosecutor's comments were in
fact improper, and second, if they were, we look to whether the remarks
prejudiced the defendant's right to a fair trial.         United States v. Karam,
37 F.3d 1280, 1289 (8th Cir. 1994), cert. denied sub nom. El Hani v. United
States, 115 S. Ct. 1113 (1995).        "Prosecutors, however, are entitled to
argue reasonably inferences to be drawn from the facts in evidence during
closing argument."     Id.     We review a district court's failure to grant a
mistrial for prosecutorial misconduct and the court's failure to give the
jury a cautionary instruction for an abuse of discretion.             United States
v. Crockett, 49 F.3d 1357, 1362 (8th Cir. 1995).




                                       -25-
        At trial, Thomas vigorously contested the issue of identification.
To that end, he focused on testimony from various Boatmen's Bank employees
who testified that the robber was 5'7" to 5'8", along with a police video
dispatch    transcript   reporting   that   the   robber   was   5'     to   5'6",   and
contrasted that with his evidence that he is 5'11".             Thomas specifically
called Boatmen's Bank employee Kent Stiles, who testified that he was in
the bank at the time of the December 8, 1993, robbery.             Stiles stated on
direct exam that the two robbers "were just of average height," which he
stated to the police in a statement after the robbery to be approximately
5'8".    (Trial Tr. at 511.)   On cross-examination by the government, Stiles
stated that he told the police that the robbers were approximately 5'8"
because the robbers "didn't seem to be abnormally short or tall.               So, you
know, I probably define average in terms of myself."        (Id. at 512.)       Stiles
stated that it was possible that, given his definition of "average height,"
the robbers could have been as tall as he is, and he stated that he is 6'.


        During closing argument, Thomas's counsel focused on the discrepancy
between the items of evidence illustrating that the robbers were 5'8" or
shorter and Thomas's height of 5'11".        During the government's rebuttal,
the following took place:

        MR. NEWBERT (prosecutor): And you remember Mr. Collum
        mentioned all these tellers. He didn't mention Kent
        Stiles.   He brought Kent Stiles in.    He is a bank
        employee. What did he tell you about that December
        8th bank robbery? He said he was six feet tall. He
        said the robber, he described the robber --

        MR. CULLOM   (Thomas's   counsel):   I    object   to    this
        statement.

        THE COURT: The jury will remember the evidence and
        will be guided by the evidence.




                                      -26-
     MR. NEWBERT: -- as average height and he considered
     himself a six footer as average height. He mentioned
     that.

(Trial Tr. at 941.)     The prosecutor then continued with his rebuttal
argument.


     Thomas claims that the prosecutor's statement was false and that the
district court should have declared a mistrial, or in the alternative, at
least admonished the jury to disregard the statement.   We disagree.   A fair
review of Stiles' testimony clearly indicates nothing improper about the
prosecutor's rebuttal argument.   When the prosecutor's statements are read
in their entirety, it is clear that the prosecutor was simply pointing out
that Stiles had testified that the robbers could be as tall as 6'.        In
short, the prosecutor was simply arguing an inference that could reasonably
be drawn from the testimony of a witness.


     Thus, the prosecutor did not make any improper statement that
prejudiced Thomas's right to a fair trial.   A fortiori, the district court
committed no error in failing to sustain Thomas's general objection, and
there was no reason to admonish the jury to disregard the prosecutor's
comments.


                                    III.


     For the reasons enumerated above, we affirm the judgments of the
district court.


     A true copy.


            Attest:


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




                                    -27-
                                APPENDIX A


      I will tell you, as stated in my instructions, it is your duty to
consult with one another and to deliberate with a view to reaching
agreement if you can do so without violence to your individual judgment.
Of course you must not surrender your honest convictions as to the weight
or effect of the evidence solely because of the opinions of other jurors
or for the mere purpose of returning a verdict. Each of you must decide
the case for yourself; but you should do so only after consideration of the
evidence with your fellow jurors.

      In the course of your deliberations you should not hesitate to re-
examine your views and to change your opinion if you are convinced it is
wrong. To bring twelve minds to a unanimous result you must examine the
questions submitted to you openly and frankly, with proper regard for the
opinions of others and with a willingness to re-examine your own views.

      Remember that if in your individual judgment the evidence fails to
establish guilt beyond a reasonable doubt, then the defendant should have
your vote for a not guilty verdict.        If all of you reach the same
conclusion, then the verdict of the jury must be not guilty. Of course the
opposite also applies.     If in your individual judgment the evidence
establishes guilt beyond a reasonable doubt, then your vote should be for
a verdict of guilty and if all of you reach that conclusion then the
verdict of the jury must be guilty. As I instructed you earlier, the
burden is upon the government to prove beyond a reasonable doubt every
essential element of the crimes charged.

      Finally, remember that you are not partisans; you are judges --
judges of the facts. Your sole interest is to seek the truth from the
evidence. You are the judges of the credibility of the witnesses and the
weight of the evidence.

      You may conduct your deliberations as you choose. But I suggest that
you carefully reconsider all the evidence bearing upon the questions before
you. You may take all the time that you feel is necessary.

      There is no reason to think that another trial of this case would be
tried in a better way or that a more conscientious, impartial or competent
jury would be selected to hear it. Any future jury must be selected in the
same manner and from the same source as you. If you should fail to agree
on a verdict, the case is left open and must be disposed of at some later
time.




                                   -28-
      Please go back now and finish your deliberations      in   a   manner
consistent with your good judgment as reasonable persons.

     You are excused.

(Trial Tr. at 954-57.)




                                 -29-
