United States v. Gabriel Mitchell , 584 F. App'x 44 ( 2014 )


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  •                                 UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-4628
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    GABRIEL DANIEL MORRISON MITCHELL, a/k/a G,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Newport News. Mark S. Davis, District
    Judge. (4:12-cr-00010-MSD-LRL-2)
    Submitted:    August 29, 2014             Decided:   September 16, 2014
    Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Randall D.    Unger, LAW OFFICE OF RANDALL D. UNGER, Bayside, New
    York, for    Appellant.   Dana J. Boente, United States Attorney,
    Howard J.    Zlotnick, Brian J. Samuels, Assistant United States
    Attorneys,   Newport News, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    A jury convicted Gabriel Daniel Morrison Mitchell of
    conspiracy to interfere with commerce by robbery, in violation
    of   18    U.S.C.      §   1951    (2012);          interference     with   commerce   by
    robbery,        in    violation    of      18    U.S.C.      §   1951;   carjacking,   in
    violation of 18 U.S.C. § 2119 (2012); and possessing a firearm
    during a crime of violence, in violation of 18 U.S.C. § 924(c)
    (2012).        The district court sentenced Mitchell to a term of 260
    months’        imprisonment.         On    appeal,      Mitchell     asserts   that    the
    district court erred in admitting testimony in violation of Fed.
    R.   Evid.      608(a);     the    Government          improperly    cross-examined     a
    defense        witness     about      another          witness’s     credibility;      the
    Government made improper remarks during closing argument; the
    district court erroneously refused to read back a portion of the
    testimony        as   requested      by    the       jury;   and   the   district   court
    failed to ensure that Mitchell knowingly and voluntarily waived
    his right to testify.             Finding no merit in Mitchell’s arguments,
    we affirm.
    A.
    We review a district court’s evidentiary rulings for
    abuse     of    discretion     and    will       only    overturn    rulings   that    are
    arbitrary and irrational.                 United States v. Cloud, 
    680 F.3d 396
    ,
    401 (4th Cir. 2012).              Further, evidentiary rulings are subject
    to harmless error review; an error is harmless when we can say
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    “with fair assurance, after pondering all that happened without
    stripping the erroneous action from the whole, that the judgment
    was not substantially swayed by the error.”                    United States v.
    Johnson, 
    617 F.3d 286
    , 292 (4th Cir. 2010) (internal quotation
    marks omitted).        We conclude, based on the record, that any
    opinion    testimony   presented    in       violation    of     Rule   608(a)    was
    harmless.
    B.
    In asserting error by the Government in its cross-
    examination of Mitchell’s codefendant, Antonio McGhee, Mitchell
    acknowledges that our review is for plain error.                        Under this
    standard    of   review,    Fed.   R.    Crim.    P.     52(b)    “authorizes      an
    appeals court to correct a forfeited error only if (1) there is
    an error, (2) the error is plain, and (3) the error affects
    substantial rights.”         Henderson v. United States, 
    133 S. Ct. 1121
    ,     1126   (2013)     (internal       quotation     marks     and      brackets
    omitted).    Because Rule 52(b) is permissive, we will correct the
    error only if it “seriously affects the fairness, integrity or
    public    reputation   of    judicial    proceedings.”            
    Id. at 1126-27
    (internal quotations marks and brackets omitted).
    Appellate courts have held that it is inappropriate
    for counsel to ask one witness whether another witness is lying
    because “[s]uch questions invade the province of the jury and
    force a witness to testify as to something he cannot know, i.e.,
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    whether     another     is     intentionally     seeking       to     mislead     the
    tribunal.”        United States v. Harris, 
    471 F.3d 507
    , 511 (3d Cir.
    2006)    (collecting       cases).    Here,    the    Government      did   not   ask
    McGhee whether another witness was “lying” or otherwise force
    him   to   testify    to    something   about    which    he    could    not    know.
    Rather     than     seeking    to    invade     the    jury’s       province,     the
    Government’s       questions    highlighted     the    fact    that     credibility
    determinations were for the jury to decide.                    In any event, we
    conclude    that    Mitchell    fails   to    establish    plain      error.      See
    United States v. Beasley, 
    495 F.3d 142
    , 149 (4th Cir. 2007)
    (finding no plain error in absence of controlling precedent).
    C.
    Although we have held that error that is plain occurs
    when a prosecutor states that a defendant has lied under oath,
    see United States v. Woods, 
    710 F.3d 195
    , 203 (4th Cir.), cert.
    denied, 
    134 S. Ct. 312
    (2013), we will reverse a conviction
    based on improper prosecutorial remarks only if “the remarks
    were, in fact, improper, and . . . the improper remarks so
    prejudiced the defendant’s substantial rights that the defendant
    was denied a fair trial.”            United States v. Chong Lam, 
    677 F.3d 190
    , 209 (4th Cir. 2012) (internal quotation marks omitted).                       In
    assessing prejudice, we consider
    (1) the degree to which the prosecutor's remarks have
    a tendency to mislead the jury and to prejudice the
    accused; (2) whether the remarks were isolated or
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    extensive; (3) absent the remarks, the strength of
    competent proof introduced to establish the guilt of
    the   accused;    (4)   whether    the    comments    were
    deliberately   placed   before   the    jury   to   divert
    attention to extraneous matters; (5) whether the
    prosecutor's remarks were invited by improper conduct
    of   defense   counsel;   and   (6)    whether    curative
    instructions were given to the jury.
    United States v. Wilson, 
    624 F.3d 640
    , 656–57 (4th Cir. 2010).
    These factors are to be viewed in the context of the trial as a
    whole, and no single factor is dispositive.                         United States v.
    Lighty, 
    616 F.3d 321
    , 361 (4th Cir. 2010).                        Our assessment of
    the record in light of the above factors leads us to conclude
    that     Mitchell      was    not   so    prejudiced         by   the   prosecutor’s
    problematic remarks that he was denied a fair trial.
    D.
    Mitchell complains that the trial court refused the
    jury’s request during deliberation to have the testimony of two
    witnesses       read   back    to   it.        We   review    a     district    court’s
    response to a jury request for abuse of discretion.                              United
    States v. Foster, 
    507 F.3d 233
    , 244 (4th Cir. 2007).                           Although
    the trial court has wide discretion to allow rereading of trial
    testimony, it is disfavored because the jury might accord that
    testimony undue emphasis.                See United States v. Rodgers, 
    109 F.3d 1138
    , 1143-44 (6th Cir. 1997).                   Here, the district court
    denied    the    jury’s      request   precisely      for    this    reason,    and   we
    conclude that the district court did not abuse its discretion.
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    E.
    Finally,        Mitchell     argues     that      the    district     court
    failed to fully inquire into whether Mitchell’s decision not to
    testify on his own behalf was a knowing and voluntary waiver of
    his right to do so.                Because he failed to raise this issue
    below, our review is for plain error.                     See 
    Henderson, 133 S. Ct. at 1126-27
    (providing standard).                     We find no error, plain or
    otherwise, as there is no affirmative duty on a district court
    to   obtain    an   on-the-record          waiver    of    a   defendant’s      right   to
    testify.      See United States v. McMeans, 
    927 F.2d 162
    , 163 (4th
    Cir. 1991); see also Sexton v. French, 
    163 F.3d 874
    , 882 (4th
    Cir. 1998) (“[T]rial counsel, not the court, has the primary
    responsibility         for     advising      the    defendant     of     his    right   to
    testify and for explaining the tactical implications of doing so
    or not.”).
    Based on the foregoing, we affirm the judgment of the
    district      court.         We   dispense    with    oral     argument    because      the
    facts   and    legal     contentions         are    adequately    presented       in    the
    materials      before    this      court     and    argument     would    not    aid    the
    decisional process.
    AFFIRMED
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