United States v. Gore , 102 F. App'x 292 ( 2004 )

Certiorari granted, April 4, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4566
VANDER MOORE GORE, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4908
JOHNNY LEE GORE, a/k/a Manager,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4084
ANTHONY BYRON PRIDGEN, a/k/a Big
Ant,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Senior District Judge.
(CR-01-627)
Submitted: May 17, 2004
Decided: June 22, 2004
2 UNITED STATES v. GORE
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William I. Diggs, DIGGS, DANIELSON, L.L.C., Myrtle Beach,
South Carolina; James A. Brown, Jr., LAW OFFICES OF JIM
BROWN, P.A., Beaufort, South Carolina; Reynolds Williams, WILL-
COX, BUYCK & WILLIAMS, P.A., Florence, South Carolina, for
Appellants. J. Strom Thurmond, Jr., United States Attorney, Rose
Mary Parham, Robert C. Jendron, Assistant United States Attorneys,
Columbia, South Carolina; Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Vander Moore Gore (Vander Gore), Johnny Lee Gore (Johnny
Gore), and Anthony B. Pridgen appeal their convictions and sentences
for conspiracy to possess with intent to distribute fifty grams or more
of cocaine base, five kilograms or more of cocaine, fifty kilograms or
more of marijuana, and less than 100 grams of heroin in violation of
21 U.S.C. § 841(a)(1) (2000). We affirm.
Vander Gore argues an undercover informant’s credibility was
improperly bolstered when the district court permitted testimony that
the informant had participated in numerous other drug buys. Because
Vander Gore did not object to the admission of this evidence at trial,
UNITED STATES v. GORE 3
we review for plain error. See United States v. Carr, 303 F.3d 539,
543 (4th Cir. 2002) ("[A]n appellate court may correct an error not
brought to the attention of the trial court if (1) there is an error (2) that
is plain and (3) that affects substantial rights. If all three of these con-
ditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings."
(internal quotation marks and alteration omitted)), cert. denied, 537
U.S. 1138 (2003). In light of the overwhelming evidence against
Vander Gore, we conclude the admission of this testimony did not
seriously affect the fairness of his trial.
Vander Gore also argues that the testimony of several witnesses
was bolstered when they were allowed to testify that they had
received downward departures for their substantial assistance to the
government. Because Vander Gore did not object to this testimony at
trial, we also review this issue for plain error. Carr, 303 F.3d at 543.
The Government may introduce a witness’s plea agreement during
direct examination if: "(1) the prosecutor’s questions do not imply
that the government has special knowledge of the witness’s veracity;
(2) the trial judge instructs the jury on the caution required in evaluat-
ing the witness’s testimony; and (3) the prosecutor’s closing argument
contains no improper use of the witness’s promise of truthful coopera-
tion." See United States v. Romer, 148 F.3d 359, 369 (4th Cir. 1998)
(citing United States v. Henderson, 717 F.2d 135, 138 (4th Cir.
1983)). Because we conclude the Government did not make improper
use of this testimony and the district court gave a limiting instruction,
we affirm Vander Gore’s conviction and sentence.
Johnny Gore argues it was plain error for the Government to
inform the jury that three co-defendants had pled guilty and to men-
tion the convictions of other family members. Evidence of a non-
testifying co-defendant’s guilty plea should not be put before the jury.
United States v. Blevins, 960 F.2d 1252, 1260 (4th Cir. 1992). The
test for reversible prosecutorial misconduct generally has two compo-
nents: that (1) the prosecutor’s remarks or conduct must in fact have
been improper and (2) such remarks or conduct must have prejudi-
cially affected the defendant’s substantial rights so as to deprive the
4 UNITED STATES v. GORE
defendant of a fair trial. United States v. Mitchell, 1 F.3d 235, 240
(4th Cir. 1993).
The factors to consider when evaluating the issue of prejudice to
the defendant are (1) the degree to which the prosecutor’s remarks
have a tendency to mislead the jury; (2) whether the remarks were
isolated or extensive; (3) absent the remarks, the strength of compe-
tent proof introduced to establish the guilt of the accused; and (4)
whether the comments were deliberately placed before the jury to
divert attention to extraneous matters. Id. at 241.
The Government concedes its comments were improper. However,
because Johnny Gore admitted he had been involved in the conspiracy
and the crux of his case centered on whether he had adequately with-
drawn from the conspiracy, we conclude the Government’s state-
ments were not so prejudicial that they deprived Johnny Gore of a fair
trial.
Johnny Gore also argues the Government improperly vouched for
and bolstered the credibility of several witnesses. Because Johnny
Gore did not object to the Government’s statements during trial, we
review for plain error. Carr, 303 F.3d at 543.
A prosecutor may neither vouch for nor bolster the testimony of a
witness in its arguments to the jury. United States v. Sanchez, 118
F.3d 192, 198 (4th Cir. 1997). Vouching occurs when the prosecutor
indicates a personal belief in the credibility of a witness. A prosecutor
may not make explicit personal assurances that a witness is trustwor-
thy. United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993). Bol-
stering is an implication by the Government that the testimony of a
witness is corroborated by evidence that the Government knows, but
that the jury does not know. Id.If improper vouching or bolstering has occurred, we then consider
(1) the degree to which the comments could have misled the jury; (2)
whether the comments were isolated or extensive; (3) the strength of
proof of guilt absent the inappropriate comments; and (4) whether the
comments were deliberately made to divert the jury’s attention. San-
chez, 118 F.3d at 198. However, because we conclude the Govern-
UNITED STATES v. GORE 5
ment did not commit any improper vouching or bolstering, we affirm
Johnny Gore’s conviction and sentence.
Pridgen argues he was denied a fair trial because it was obvious to
the jury that the district court was biased against him and his attorney.
A judge’s participation during trial should never reach the point that
it appears clear to the jury that the judge believes the accused is
guilty, or becomes so pervasive in his interruptions and interrogations
that he may appear to usurp the role of either prosecutor or defense
counsel. United States v. Godwin, 272 F.3d 659, 677 (4th Cir. 2001).
"[J]udicial rulings alone almost never constitute a valid basis for a
bias or partiality motion . . . . [They] can only in the rarest circum-
stances evidence the degree of favoritism or antagonism required [to
make fair judgment impossible] . . . when no extrajudicial source is
involved." Liteky v. United States, 510 U.S. 540, 555 (1994) (citation
omitted).
We conclude the district court’s comments about which Pridgen
complains are insufficient to show any deep-seated or unequivocal
antagonism that rendered a fair judgment for Pridgen impossible. We
therefore affirm Pridgen’s conviction and sentence.
Accordingly, we affirm Vander Gore’s, Johnny Gore’s, and Prid-
gen’s convictions and sentences. We also deny Johnny Gore’s motion
to file a pro se supplemental brief. 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