United States v. Thomas ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4164
MELVIN AVON THOMAS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-95-0175-S)
Submitted: May 29, 1998
Decided: June 22, 1998
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James K. Bredar, Federal Public Defender, Denise C. Barrett, Assis-
tant Federal Public Defender, Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Philip S. Jackson, Assis-
tant United States Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Melvin A. Thomas appeals from his conviction for possession of
a firearm after having been convicted of a felony, 18 U.S.C. § 922(g)
(1994), for which he was sentenced to 235 months imprisonment, fol-
lowed by two years of supervised release. Thomas claims (1) that the
district court should have granted a mistrial when an agent from the
Bureau of Alcohol, Tobacco and Firearms (ATF) offered to escort
jurors to their cars during a recess in the deliberations, and (2) that
the prosecution improperly referred to Thomas' prior felony convic-
tions during closing argument. For the reasons that follow, we affirm.
Thomas was indicted following his arrest in December 1994 after
a search of his person revealed a 9 mm handgun in his jacket pocket.
At trial, the following stipulation regarding Thomas' criminal history
was read to the jury:
It is agreed and stipulated between the parties that the defen-
dant, Melvin A. Thomas, has been convicted of a crime
classified as a felony in a state courts, and that this crime is
punishable by imprisonment for a term exceeding one year.
It has also been stipulated that this conviction occurred prior
to December 19, 1994, and that the defendant has not yet
had his civil rights restored.
During closing argument, the Government stated that Thomas had
"five previous convictions disqualifying him from being able to pos-
sess a weapon." Thomas' attorney did not object.
The jury began deliberations on the afternoon of November 20,
1996. When later that evening the jury had not reached a verdict, the
district court recessed for the day. Several jurors rode in an elevator
with an AFT agent who had been present during the trial. The agent
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offered to escort one of the jurors to her car and, according to the
juror, "something [was] mentioned about the females not feeling safe
walking to their vehicles because of the high crime area" although she
could not attribute the statement to the agent, nor was she aware that
he was an ATF agent. Thomas' attorney witnessed this encounter and
immediately contacted an assistant United States Attorney who inter-
vened. There was no other contact between the ATF agent and the
juror.
The following morning, after the jury had announced it had
reached its verdict but before the verdict was read, the district court
conducted an individual voir dire of each member of the jury. Based
on these interviews, the district court found that none of the jurors
associated the ATF agent with the prosecution and that the two jurors
who had contact with him clearly stated that the contact did not affect
his or her deliberations in any way. Upon completion of the voir dire,
the district court asked Thomas' attorney if she wished to move for
a mistrial, to which she responded "no." The district court then
decided not to grant a mistrial sua sponte. Thomas appeals.
Because Thomas did not move for a mistrial or object to the prose-
cution's comment during closing argument, we review both of these
claims for plain error. See United States v. Olano, 507 U.S. 725(1993); Fed. R. Crim. P. 52(b). Thomas must therefore show that the
trial court erred, that the error was plain, and that it affected his sub-
stantial rights. Even if these factors were satisfied, we will not exer-
cise our discretion to correct the error unless it"seriously affected the
fairness, integrity or public reputation of judicial proceedings." See
Olano, 507 U.S. at 732. Our review of the record discloses no plain
error.
With respect to the improper comment made by the prosecution
during closing argument, we find that the comment was made in iso-
lation, that it did not affect the central issue in the case, that the evi-
dence against Thomas was strong, and that whatever prejudicial effect
the comment may have had was cured by the district court's instruc-
tion to the jury.* See United States v. Harrison , 716 F.2d 1050,
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*The district court instructed the jury as follows:
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1051-52 (4th Cir. 1983) (factors to be considered in determining
whether improper argument by government counsel has so prejudiced
the trial process as to require reversal of conviction include:
(1) whether the remarks were isolated or pronounced and persistent;
(2) the centrality of the issue affected by the error; (3) the steps
taken to mitigate the error; and (4) whether the comment was deliber-
ately made to divert attention to extraneous matters).
Second, we find that the district court's refusal to declare a mistrial
with respect to the improper contact with the jury did not constitute
plain error because the court carefully questioned every member of
the jury about the impact of the contact and reasonably found no basis
for granting a mistrial. See United States v. Ford, 88 F.3d 1350, 1363
(4th Cir.) (district court's failure to declare a mistrial after one juror
was contacted inappropriately did not constitute plain error where
court carefully questioned juror about impact of third-party contact
and juror insisted that she could continue to deliberate fairly and
objectively), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3369 (U.S.
Nov. 18, 1996) (No. 96-6379); see also United States v. Sanders, 962
F.2d 660, 668-70 (7th Cir. 1992) (presumption of prejudice from any
private communication with juror is rebutted if court finds that there
is no reasonable possibility that the verdict was affected by the con-
tact).
Accordingly, we affirm Thomas' conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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The fact that Mr. Thomas has been convicted before is before
you only because it is pertinent to one of the elements of the
offense and it should not be considered by you in terms of any-
thing else. For example, you may not say that just because he has
been convicted before, he is guilty of this. In other words, you
are not to consider the fact that he has a prior record in any way
of affecting the other elements of the offense which the Govern-
ment must prove beyond a reasonable doubt.
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