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United States v. Smith , 40 F. App'x 826 ( 2002 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                             No. 01-4762
GEORGE P. SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-00-343)
Submitted: June 17, 2002
Decided: July 17, 2002
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
S. Neil Stout, FLAX & STOUT, Richmond, Virginia, for Appellant.
Paul J. McNulty, United States Attorney, John S. Davis, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. SMITH
OPINION
PER CURIAM:
George P. Smith appeals his 384-month sentence for conspiracy to
distribute and possess with intent to distribute fifty grams or more of
cocaine base, in violation of
    21 U.S.C.A. § 846
     (West 2001); posses-
sion with intent to distribute cocaine, in violation of
    21 U.S.C. § 841
    (a) (West 1999), and aiding and abetting in violation of
    18 U.S.C. § 2
     (1994); possession of a firearm during and in relation to
a drug trafficking offense, in violation of
    18 U.S.C.A. § 924
    (c) (West
2000); and possession of a firearm by a convicted felon, in violation
of
    18 U.S.C.A. § 922
    (g)(1) (West 2000). Smith was tried before a
jury and convicted on all counts.
On appeal, Smith argues that the court’s failure to instruct the jury
not to draw an adverse inference based on his decision not to testify
on his own behalf denied him his Fifth Amendment protection against
self-incrimination as defined in Carter v. Kentucky,
    450 U.S. 288
    (1981).
Failure to give a "no adverse inference" instruction to the jury is
subject to harmless error analysis. United States v. Burgess,
    175 F.3d 1261
    , 1266 (11th Cir. 1999); Hunter v. Clark,
    934 F.2d 856
    , 860-61
(7th Cir. 1991); Finney v. Rothgerber,
    751 F.2d 858
    , 864 (6th Cir.
1985); Richardson v. Lucas,
    741 F.2d 753
    , 756 (5th Cir. 1984). How-
ever, when the defendant fails to timely object to the jury instructions,
we review for plain error. United States v. Brand,
    80 F.3d 560
    , 567
(1st Cir. 1996); United States v. Ramirez,
    810 F.2d 1338
    , 1344 (5th
Cir. 1987). In order to overturn Smith’s conviction, this court must
find plain error that affects substantial rights and seriously affects the
fairness, integrity or public reputation of the judicial proceeding. Fed.
R. Crim. P. 52(b). In order to satisfy this requirement, Smith has the
burden of showing that the instruction prejudiced him. United States
v. Hastings,
    134 F.3d 235
    , 240 (4th Cir. 1998).
Although the court plainly erred by failing to instruct the jury not
to draw an adverse inference based on Smith’s failure to testify, Smith
has not shown that he was prejudiced by this error, as the Government
UNITED STATES v. SMITH                      3
did not comment on his failure to testify and the evidence of Smith’s
guilt was overwhelming.
Accordingly, we affirm Smith’s conviction and sentence. We dis-
pense 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