                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 06-10584                  OCTOBER 10, 2006
                          Non-Argument Calendar             THOMAS K. KAHN
                                                                CLERK
                        ________________________

                  D. C. Docket No. 03-00749-CR-1-BBM-1

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                   versus

OMAR ANTWAN WALKER,

                                                      Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                             (October 10, 2006)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     A jury convicted Omar Antwan Walker on all four counts of a superceding
indictment: Counts One and Four, interstate transportation of a stolen vehicle, in

violation of 18 U.S.C. § 2312; Count Two, assault on a federal officer, in violation

of 18 U.S.C. § 111(a) & (b); Count Three, carjacking, in violation of 18 U.S.C.

§ 2119. The district court sentenced Walker to terms of imprisonment totaling 162

months. He now appeals his convictions, raising three issues:

      1) whether the district court erred in denying his motion to suppress

evidence;

      2) whether the court erred in allowing the admission into evidence of an out-

of-court identification; and

      3) whether the court abused its discretion in allowing the Government to

introduce under Federal Rule of Evidence 404(b) evidence of a prior act to prove

appellant’s intent.

      Agents of the FBI attempted to arrest Walker on a fugitive warrant

stemming from an incident in Kalamazoo, Michigan. The agents learned that

Walker was staying with his cousin, Michael Pamplin, in an Atlanta, Georgia

apartment and attempted to arrest him while he and Pamplin were driving out of

the apartment complex. After a brief confrontation,Walker was able to flee from

the complex parking lot by ramming his car into a vehicle an agent had parked in

front of Walker’s car in an attempt to block him from exiting the parking lot.



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Walker was apprehended a short time later in Indiana. At the trial in this case, the

Government introduced the details of the Kalamazoo incident, which involved

Walker ramming his car into a car driven by a police officer and almost running

over a second police officer while attempting to avoid the officers’ attempt to

arrest him.

      The first issue on appeal concerns the district court’s denial of Walker’s

motion to suppress the evidence found in some bags Walker left in Pamplin’s

apartment. He asks us to reverse the court’s ruling because the court based it on

the erroneous finding that he had abandoned his bags.

      “As rulings on motions to suppress involve mixed questions of fact and law,

the district court's factual findings are reviewed under the clearly erroneous

standard, while that court's application of the law is subject to de novo review.”

United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994). “Because the

concept of abandonment ‘involves a factual issue,’. . . a district court's finding of

abandonment is reviewed under the clearly erroneous standard . . .” Id. For a

factual finding to be clear error, the court, after reviewing all the evidence, must

have a definite and firm conviction that a mistake has occurred. United States v.

Foster, 155 F.3d 1329, 1331 (11th Cir.1998).

      “In determining whether there has been abandonment, the critical inquiry is



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whether the person prejudiced by the search []voluntarily discarded, left behind, or

otherwise relinquished his interest in the property in question so that he could no

longer retain a reasonable expectation of privacy with regard to it at the time of the

search.” Ramos, 12 F.3d at 1022 (internal quotation and emphasis omitted).

“Whether abandonment occurred is a question of intent which may be inferred

from acts, words and ‘other objective facts.’” Id. at 1022-1023. Events that

occurred after the abandonment can be considered as evidence of a defendant’s

intent to abandon the property. United States v. Winchester, 916 F.2d 601, 604

(11th Cir. 1990). “While [Walker] bear[s] the burden of proving a legitimate

expectation of privacy in the areas searched, . . . the burden of proving

abandonment is on the government.” Ramos, 12 F.3d at 1023.

      We uphold the district court’s denial of Walker’s motion to suppress because

the court’s finding that Walker abandoned his bags was not clearly erroneous.

While there was no evidence that conclusively established that Walker intended to

abandon his property, the fact that he knew the authorities were after him and that

they knew he had been staying with Pamplin strongly supports the inference that

when Walker fled from the apartment parking lot, he did not plan to return.

      Addressing the second issue on appeal, Walker asserts that the district court

erred in admitting the out-of-court identification testimony of the carjacking



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victim, particularly without holding an evidentiary hearing because the

photographic array presented to the witness was unduly suggestive.

      Whether the admission of an out-of-court identification violates the

defendant’s due process rights is a mixed question of fact and law that is subject to

plenary review. Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988). We review

a district court’s finding that a pretrial identification procedure was not

impermissibly suggestive for clear error. See id. at 896. We apply a two-step

analysis in assessing the constitutionality of the decision to admit an out-of-court

identification. Id. at 895. First, we determine whether the original identification

procedure was unduly suggestive. Id. If we conclude that the procedure was

suggestive, we then consider whether, under the totality of the circumstances, the

identification was still reliable. Id. In making this determination, we consider five

factors: (1) opportunity to view; (2) degree of attention; (3) accuracy of the

description; (4) level of certainty; and (5) length of time between the crime and the

identification. Id.

      We find no error in the court’s admission of the out-of-court identification

because the finding that the identification was not impermissibly suggestive was

not clearly erroneous. The photographic array included six similar looking

African-American males who were similar in complexion and had short hair.



                                            5
There was no evidence that officers directed the victim’s attention to Walker’s

photograph, and, although there are some differences between each photo, nothing

unreasonably suggested that Walker was the actual suspect in the offense.

Furthermore, even if the lineup was suggestive, the identification by the victim was

still reliable under the totality of the circumstances.

      As to the third and final issue, Walker argues that the court abused its

discretion in allowing the Government to introduce evidence relating to the

Kalamazoo incident because the probative value of the evidence was outweighed

by the undue prejudice.

      We review a district court’s decision to admit Rule 404(b) evidence for an

abuse of discretion. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992).

Rule 404(b) provides that evidence of a person’s other crimes is not admissible to

show that the person acted in conformity therewith. Fed. R. Evid. 404(b).

Evidence of other crimes may, however, be admitted for other purposes, such as to

prove intent or absence of mistake or accident. Id.

      A three-part test exists for evaluating the admissibility of Rule 404(b)

evidence: (1) the evidence must be relevant to an issue other than the defendant’s

character; (2) there must be sufficient proof so that a jury could find that the

defendant committed the extrinsic act; and (3) the evidence must possess probative



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value that is not substantially outweighed by its undue prejudice, and the evidence

must meet the other requirements of Rule 403. Miller, 959 F.2d at 1538.

      No abuse of discretion occurred here. The evidence of the Kalamazoo

incident was plainly relevant to the issues of intent and absence of mistake.

Because Walker’s plea of not guilty placed his intent in issue, the evidence was

admissible provided that its probative value was not substantially outweighed by

undue prejudice. In this instance, the court did not err in concluding that its

probative value was not outweighed by undue prejudice; hence, admitting it did not

constitute an abuse of discretion.

      AFFIRMED.




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