United States v. Dugger ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4934
RICHARD KEITH DUGGER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James C. Turk, District Judge.
(CR-96-9-A)
Submitted: August 4, 1998
Decided: September 23, 1998
Before LUTTIG and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Monroe Jamison, Jr., Abingdon, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Richard A. Lloret, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury found Richard Keith Dugger guilty of conspiracy to distrib-
ute methamphetamine, in violation of 21 U.S.C. § 846 (1994), and of
possession with intent to distribute methamphetamine, in violation of
21 U.S.C. § 841 (1994). On appeal, Dugger challenges the sufficiency
of the evidence and alleges prosecutorial misconduct. Additionally,
Dugger claims that he was prejudiced by being seen in handcuffs by
some of the jurors and also that the district court abused its discretion
in denying his motion for new trial based on the newly discovered
evidence of the recantation of a witness' testimony.
First, Dugger claims that the evidence was insufficient to support
his convictions. In support of this claim, Dugger attacks the credibil-
ity of the witnesses who testified against him and the sufficiency of
their testimony. This court reviews sufficiency of the evidence chal-
lenges by determining whether, viewing the evidence in the light most
favorable to the Government, any rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing the suffi-
ciency of the evidence, this court does not weigh the evidence nor
consider the credibility of witnesses. See United States v. Arrington,
719 F.2d 701, 704 (4th Cir. 1983).
We find Dugger's sufficiency of the evidence claim unavailing.
The record is replete with evidence that was more than adequate to
support Dugger's convictions. The testimony of numerous witnesses
established that Dugger conspired to possess and to distribute and also
possessed methamphetamine. See United States v. Burgos, 94 F.3d
849, 857-58 (4th Cir. 1996) (in banc). Thus, taking the evidence in
the light most favorable to the Government, we conclude that a ratio-
nal jury could have found Dugger guilty of the conspiracy and posses-
sion charges. See Burgos, 94 F.3d at 862.
Next, Dugger claims that opposing counsel's remarks during clos-
ing arguments entitle him to a new trial. Specifically, Dugger avers,
and the Government concedes, that it was error for the prosecutor dur-
ing closing argument to refer to a guilty plea that was not put into evi-
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dence. Because Dugger did not object to the statements, this court
reviews for plain error. See United States v. Olano, 507 U.S. 725, 732
(1993). Reversal based upon improper remarks by the prosecutor is
merited when the remarks were actually improper and when they prej-
udicially affected the defendant's substantial rights so as to deprive
him of a fair trial. See United States v. Brockington, 849 F.2d 872,
875 (4th Cir. 1988). Reading the prosecutor's remarks in context, we
find that Dugger fails to establish that the prosecutor's remarks denied
him a fair trial. The prosecutor's comments about one of the defen-
dant's guilty plea, which had not been put into evidence, was not
directed at Dugger but was arguing the credibility of another witness.
The trial court instructed the jury that the statements and arguments
of counsel were not evidence. Further, we find that the record reveals
that the evidence was sufficient to support Dugger's convictions and
that the prosecutor's comments were not deliberately made to mislead
the jury. Thus, we conclude that the prosecutor's error did not affect
Dugger's substantial rights or seriously affect the fairness, integrity or
public reputation of judicial proceedings.
To the extent that Dugger alleges that he was prejudiced by being
seen in handcuffs on one occasion by some of the jurors, we find that
he has no claim. Dugger's counsel pointed out the incident to the trial
court but did not request a curative instruction or a mistrial. We there-
fore review Dugger's claim for plain error. See Olano, 507 U.S. at
732. We conclude that the incident was isolated, that Dugger failed
to establish actual prejudice, and that Dugger did not show that the
incident affected the fairness of the trial.
Finally, Dugger asserts that the district court erred by denying his
motion for new trial based upon the newly discovered evidence of
Carl David Daye's recantation of testimony. The district court's
docket sheet fails to show that Dugger appealed the order denying his
motion for a new trial and, thus, this court lacks jurisdiction to review
that order. Dugger's initial notice of appeal was filed December 10,
1996. Dugger filed his motion for new trial on July 30, 1997. This
court remanded the case to allow the district court to act on the
motion. The district court denied his motion for new trial by order
entered on October 27, 1997. The unamended notice of appeal filed
December 10, 1996, is not effective to bring the order entered in
October 1997 under our jurisdiction. See United States v.
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Cunningham, 145 F.3d 1385, 1392-93 (D.C. Cir. 1998). We therefore
find that Dugger's claim that the district court erred in denying his
motion for new trial is not properly before this court.
Accordingly, we affirm Dugger's conviction and sentence. We
grant Dugger's motions to file a pro se supplemental brief and to
amend that brief, to the extent that the documents were before the dis-
trict court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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