United States v. Williams , 39 F. App'x 815 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4515
ROBERT L. WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Cameron McGowan Currie, District Judge.
(CR-00-922)
Submitted: January 31, 2002
Decided: March 12, 2002
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert J. Harte, ROBERT J. HARTE, P.C., Aiken, South Carolina,
for Appellant. William Kenneth Witherspoon, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WILLIAMS
OPINION
PER CURIAM:
Robert L. Williams appeals his conviction and sentence for posses-
sion with intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a) (1994). Williams noted a timely appeal to his conviction and
his counsel filed a brief pursuant to Anders v. California, 386 U.S.
738, 744 (1967), in which he represents that there are no arguable
issues of merit in this appeal. Nonetheless, in his brief, counsel con-
sidered and rejected the possibility that the district court erred in
denying counsel’s motion for a mistrial following a reference at trial
to Williams’ invocation of his Fifth Amendment right to remain
silent. The time for filing a supplemental brief has passed and Wil-
liams has not filed a brief despite being advised of his right to do so
and obtaining an extension of the deadline for filing. Because we find
counsel’s assignment of error to be without merit and can discern no
other reversible error in the record on appeal, we affirm Williams’
conviction and sentence.
On appeal, Williams’ counsel suggests that a comment, volun-
teered by one of the arresting officers during cross-examination indi-
cating that Williams opted to exercise his right to remain silent upon
arrest, violated his rights under Doyle v. Ohio, 426 U.S. 610, 619
(1976). In determining whether the comment constitutes reversible
error, a court must consider: (1) how the prosecutor used the post-
arrest silence; (2) which party opened the line of questioning; (3)
other evidence of defendant’s guilt; (4) the frequency and intensity of
the prosecutor’s reference; and (5) the opportunity for the district
court to grant a mistrial or give a curative instruction to the jury. Wil-
liams v. Zahradnick, 632 F.2d 353, 361-62 (4th Cir. 1980). Subjecting
the record to that analysis, we have no difficulty in concluding that
the witness’s stray remark was harmless. The singular comment was
not intentionally elicited by the prosecution and the district judge
struck the comment and instructed the jury that the fact that Williams
declined to make a statement was not a matter for their consideration.
Williams’s due process rights were not adversely affected. See id.As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
UNITED STATES v. WILLIAMS 3
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
counsel believes that such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel’s motion must state that a copy thereof was served on
the client.
Williams’ conviction and sentence are affirmed. 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