United States v. Neely , 63 F. App'x 671 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4704
RONALD DARRELL NEELY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CR-02-34)
Submitted: April 15, 2003
Decided: April 30, 2003
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Charles R. Allen, Jr., Roanoke, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Jennifer R. Bockhorst, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. NEELY
OPINION
PER CURIAM:
Following a jury trial, Ronald Darrell Neely was convicted on one
count of possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (2000). The district court sentenced Neely to
seventy-two months in prison. Neely appeals, raising three grounds of
error. Finding no merit to his claims, we affirm his conviction.
Neely filed a motion to proceed pro se and be appointed standby
counsel; the court granted the motion. On appeal, Neely argues that
the court erred by denying his motion for access to legal resources.
The government must provide a criminal defendant with access to an
adequate law library or adequate access to counsel, but not both.
Bounds v. Smith, 430 U.S. 817, 828 (1977); Williams v. Leeke, 584
F.2d 1336, 1339 (4th Cir. 1978). Where a defendant has elected to
proceed pro se in a criminal case, he can be required to rely on
standby counsel to overcome any research handicaps due to incarcera-
tion. United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir. 1978).
Because Neely had standby counsel available to assist him, we find
that the district court did not err by denying his motion for access to
legal resources.
Next, Neely claims that the district court erred by denying his
motion for judgment of acquittal because the government failed to
establish that his civil rights had not been restored. The lack of resto-
ration of civil rights is not an element of the offense stated in
§ 922(g), but is a component of the element under § 922(g) that the
accused was convicted in any court of a crime punishable by more
than a year in prison. United States v. Clark, 993 F.2d 402, 406 (4th
Cir. 1993). Under 18 U.S.C. § 921(a)(20) (2000), a crime punishable
by a prison term exceeding one year does not include "[a]ny convic-
tion . . . for which a person . . . has had civil rights restored . . . unless
such . . . restoration of civil rights expressly provides that the person
may not ship, transport, possess, or receive firearms." Thus, in every
§ 922(g)(1) prosecution, the court must determine whether the juris-
diction in which the predicate conviction occurred restores felons’
civil rights. United States v. Essick, 935 F.2d 28, 30 (4th Cir. 1991).
UNITED STATES v. NEELY 3
In Virginia, felons’ civil rights are not automatically restored by
the passage of time. To regain his rights, a felon must receive a par-
don from the governor. Va. Const. art. V, § 12. Accordingly, we find
that the government was not required to prove that Neely’s civil rights
had not been restored and the district court did not err by denying the
motion for judgment of acquittal. Cf. United States v. Thomas, 52
F.3d 82, 85 (4th Cir. 1995) (government not required to prove that
defendant’s civil rights had not been restored where predicate North
Carolina offense was committed within five years of § 922 crime and
therefore did not trigger North Carolina’s automatic restoration of
civil rights).
Finally, Neely argues that the district court erred by failing to
declare a mistrial when the government commented in closing argu-
ments that Neely had not testified. The government made the remark
when it objected to Neely commenting (falsely) in his pro se closing
argument that he was in the military and that his unit was the first to
respond to the scene of the crash of the hijacked airplane in Pennsyl-
vania on September 11, 2001.
The prosecutor’s remarks were isolated, consisting of two sen-
tences at the end of closing arguments, made in response to Neely’s
closing argument. The remarks were not made deliberately to divert
the jury’s attention to extraneous matter. Absent these remarks, there
was strong proof that Neely was guilty, namely unrefuted evidence
presented at trial that Neely possessed a firearm in Virginia that had
traveled in interstate commerce and that Neely was a convicted felon.
Moreover, the court twice instructed the jury that Neely had the right
not to testify and that the jury could not make adverse inferences from
his exercise of that right. Under these circumstances, we find that
Neely was not prejudiced by the prosecutor’s remarks. United States
v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983).
For these reasons, we affirm Neely’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED