United States v. Omar Antwan Walker

[DO NOT PUBLISH]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.
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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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