UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5546

ODELL WALKER, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CR-94-14, CR-94-99)

Argued: September 24, 1996

Decided: January 8, 1997

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Norman Butler, Charlotte, North Carolina, for Appellant.
Brian Lee Whisler, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States
Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

The defendant, Odell Walker, Jr., was charged in two bills of
indictment filed July 6, 1994 with a total of 18 counts arising from
six armed robberies, all in violation of 18 U.S.C.§§ 2113(a), 2113(d),
and 924(c). At Walker's jury trial, the district court refused to sup-
press identification evidence from a pretrial lineup, all of which
defense counsel was unable to attend. The court also denied Walker's
motions for a mistrial and judgment of acquittal based on an asserted
Brady violation by the prosecution. The jury found Walker guilty on
ten of the indictment's 18 counts. Walker now appeals, and we affirm.

I.

The indictments in this case alleged that Walker committed six
armed robberies at various banks throughout the Western District of
North Carolina between July 14, 1993 and May 23, 1994. Before trial,
Walker moved to suppress several eyewitness identifications from a
lineup held on July 1, 1994 at the Mecklenburg County Jail. The
lineup took place during Walker's detention at the jail pursuant to a
criminal complaint charging him with a recent bank robbery which
was entirely separate from those charged here. At that time, he had
not been charged or indicted in any of the bank robberies that were
the subject of the lineup at issue here. Walker's attorney was called
as a courtesy by the officers. Although he was otherwise engaged, he
managed to attend the lineup while it was being composed and for the
last eight witnesses viewing the lineup. He had to leave the lineup
while five witnesses viewed it.1 The district court refused to suppress
these eyewitness identifications at Walker's trial because it found that
a prosecution had not yet commenced on those offenses.

Walker's jury trial began February 22, 1995 and concluded March
1, 1995. On the third day of trial, Walker's counsel was permitted to
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1 The government voluntarily moved to dismiss the original bank rob-
bery charge on which Walker was being detained. The court granted this
motion, and the case went to trial only on crimes involved in the July 1
lineup.

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inspect internal FBI files because he believed they contained certain
unspecified, discoverable material. The defense attorney located in
these files several internal FBI memoranda describing tips received
from citizen callers during the investigation after pictures of suspects
taken from bank surveillance photographs were released to the press.
The tips named four persons other than the defendant as the subjects
of the pictures. The defense then argued that the government should
be sanctioned for failing to disclose this exculpatory material, that the
court should declare a mistrial, and for judgment of acquittal based
on Brady v. Maryland, 373 U.S. 83 (1963). The court denied these
motions. The defense, however, was permitted to cross-examine sev-
eral government witnesses using the internal FBI documents.

The jury convicted Walker, with respect to five of the robberies, of
five counts of bank robbery (18 U.S.C. § 2113(a)) and five counts of
armed bank robbery (18 U.S.C. § 2213(d)). Walker was acquitted on
five counts of using a firearm during a crime of violence (18 U.S.C.
§ 924(c)). As to a sixth bank robbery, the jury deadlocked, and the
district court declared a mistrial on all three counts pertaining to that
crime.

Walker now appeals his convictions arising from the five robberies.
He first argues that the lineup procedure denied him his Sixth Amend-
ment right to counsel and that the district court accordingly erred in
refusing to suppress the identification evidence. He next contends that
the district court erred in denying his motions for a mistrial and judg-
ment of acquittal based on the asserted Brady violations.

II.

The Sixth Amendment guarantees the right to counsel during all
"critical stages of the prosecution," including pretrial lineups. United
States v. Wade, 388 U.S. 218, 237 (1967). The Supreme Court later
clarified that the right to counsel announced in Wade attaches only to
lineups conducted "at or after the initiation of adversary judicial crim-
inal proceedings--whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment." Moore v. Illinois,
434 U.S. 220, 226 (1977); Kirby v. Illinois, 406 U.S. 682, 689 (1972).

At the time of the lineup here, Walker had not been indicted or
charged in any of the bank robberies that were its subject. Even if the

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formal stages enumerated in Kirby and Moore are not the only points
at which the right to counsel accrues, we are satisfied in this case that
a criminal prosecution had not yet been initiated as to the lineup's
subject matter. Nothing in the record indicates that the lineup consti-
tuted anything other than an investigatory procedure for assembling
evidence on the instant robberies. The requisite adversary judicial
criminal proceedings simply had not begun as to those offenses.

Nevertheless, Walker contends that his Sixth Amendment right to
counsel had attached because the offenses that were the subject of the
lineup (bank robberies in the Western District of North Carolina)
were so similar to the bank robbery charge for which he was being
detained. This argument is without merit.

Another defendant attempted unsuccessfully to raise a similar Sixth
Amendment claim in United States v. Kidd, 12 F.3d 30 (4th Cir.
1993), cert. denied, 62 U.S.L.W. 3705 (U.S. Apr. 25, 1994) (No. 93-
8489). There, the government contacted the defendant and purchased
drugs from him after he had been indicted on drug distribution
charges. The defendant argued that the post-indictment offense and
pending charge were so closely related that his right to counsel had
attached. We, however, concluded that the offenses were factually
distinct and independent because they involved different purchasers-
informants, occurred at different times, and took place in different
locations. That the two transactions involved the same type of crime
was insufficient to trigger the Sixth Amendment's application. Kidd,
12 F.3d at 33.

Likewise in this case, the bank robberies at issue in the July 1
lineup and the bank robbery with which Walker then stood charged
involved different banks at distinct times and dates between 1993 and
early 1994. We therefore reject Walker's contention that his right to
counsel had attached as to the offenses that were the subject of the
lineup. Accordingly, the district court properly refused to suppress the
identification evidence arising from the lineup. On similar facts the
Fifth Circuit has come to the same conclusion as do we. United States
v. Tyler, 592 F.2d 261 (5th Cir. 1979).

III.

Walker also challenges the district court's denial of his motions for
a mistrial and judgment of acquittal based on the government's

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alleged failure to disclose exculpatory evidence before trial under
Brady v. Maryland, 373 U.S. 83 (1963). The exculpatory evidence at
issue in this case comprises reports of tips called into law enforce-
ment by citizens naming four individuals other than the defendant as
looking similar to photos of bank robbers they had seen in newspa-
pers or on television. The defense did not learn of the existence of
these tips until the third day of trial.

Even though information may be exculpatory, no due process vio-
lation occurs as long as the Brady material is disclosed to a defendant
in time for its effective use at trial. United States v. Smith Grading &
Paving, Inc., 760 F.2d 527, 532 (4th Cir.), cert. denied, 474 U.S 1005
(1985). This is so because a defendant's ability to use the information
effectively at trial indicates that its delayed disclosure did not affect
the trial's outcome. Here, defense counsel received the information
before the close of the prosecution's case-in-chief. In fact, the defense
was able to cross-examine investigators extensively about the tips and
what steps were taken to follow up on them. Moreover, at no time
during the trial did defense counsel request a continuance to further
pursue this new information.2 Rather, counsel chose to pursue the
more exculpatory, and therefore more risky, measures of moving for
a mistrial and later for judgment of acquittal. Although the govern-
ment should have informed Walker of the tips before trial, we cannot
say that their delayed disclosure sufficiently prejudiced his defense to
deprive him of due process. See United States v. Gordon, 844 F.2d
1397, 1403 (9th Cir. 1988) (cross-examination can cure prejudice cre-
ated by Brady violation); Smith Grading & Paving, 760 F.2d at 532
(ability to use exculpatory evidence extensively in cross-examination
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2 The D.C. Circuit rejected a defendant's Brady claim on similar
grounds in United States v. Henson, 486 F.2d 1292 (D.C. Cir. 1973). In
that case, the defendant asserted that the government's failure to disclose
certain documents before trial prevented the defense from developing
hypotheses concerning other persons who might have committed the
offenses charged. The court concluded that defense counsel's failure to
request a continuance, ability to call the other suspects, and ability to
argue to the jury in closing that six other persons could have committed
the murder with which the defendant was charged indicated that the
delayed disclosure did not produce a prejudicial error. Henson, 486 F.2d
at 1302 n.10.

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can remedy Brady violation). For the reasons stated, we are of opin-
ion that the district court properly denied the defendant's motions for
mistrial and judgment of acquittal based on the government's asserted
Brady violation.3

The judgment of the district court is accordingly

AFFIRMED.
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3 We have given the defendant the benefit of the doubt in analyzing his
Brady motion. The pictures which were released to the press were found
by the defendant's attorney in a file on a robbery of the First Citizens
Bank in Bessemer City, not one of the six robberies involved here, and
the pictures may well have not been identified with any particular rob-
bery by the witnesses. If it had turned out that the photographs involved
were taken during a robbery which was not charged here, they, of course,
would be entirely inadmissible under any theory, and the government's
position should have been more briefly affirmed than by the reasoning
we have related in the body of the opinion.

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