United States v. Rogers ( 2005 )

Vacated by Supreme Court, May 16, 2005
Certiorari granted, May 16, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4290
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RASHAAN CARDELL ROGERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-03-43)
Submitted: November 24, 2004 Decided: January 4, 2005
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rashaan Rogers appeals from his conviction for possession
of a firearm by a convicted felon. On appeal, he challenges the
district court’s failure to issue limiting instructions and asserts
that the Government’s closing argument constituted prosecutorial
misconduct. After a careful review of the record, we affirm.
Rogers first argues that the district court abused its
discretion by declining his requests for two jury instructions.
See United States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999)
(standard of review). A refusal to grant a requested instruction
is reversible error only if the instruction (1) was correct;
(2) was not substantially covered by the court’s charge; and
(3) involved a point so important that failure to give the
instruction seriously impaired the defendant’s defense. United
States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995). We find that the
failure to issue the requested instructions did not prejudice
Rogers’ defense, and thus, the court did not abuse its discretion.
Next, Rogers raises several claims of prosecutorial
misconduct relating to the closing argument of the Government. A
claim of prosecutorial misconduct is reviewed to determine whether
the conduct complained of so infected the trial with unfairness as
to make the resulting conviction a denial of due process. United
States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002). To prevail
under this standard, Rogers must show that “the prosecutor’s
- 2 -
remarks or conduct were improper and, second . . . that such
remarks or conduct prejudicially affected his substantial rights”
so as to deprive him of a fair trial. Id. As to Rogers’ claims
that were not preserved at trial, the standard is modified to the
degree that he must demonstrate plain error. United States v.
Olano, 507 U.S. 725, 732-34 (1993). We find no resulting prejudice
from any of the prosecutor’s comments.
Accordingly, we affirm Rogers’ conviction. In addition,
because Rogers’ counsel has filed an appropriate brief, we deny his
motion to file a supplemental pro se brief and decline to address
any issues raised in his pro se Fed. R. App. P. 28(j) filing. 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
- 3 -