United States v. Bosket , 356 F. App'x 648 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4890
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMANI JAWARA BOSKET,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:07-cr-01362-GRA-1)
Submitted: October 30, 2009 Decided: December 15, 2009
Before MICHAEL, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, A. Lance Crick, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demani Jawara Bosket appeals his jury conviction for
possessing a firearm and ammunition after having been convicted
of a crime punishable by imprisonment for a term exceeding one
year, in violation of 18 U.S.C. § 922(g)(1) (2006). On appeal,
he contends the district court erred by informing the jury that
he had elected not to testify, by using the term “felon,” and by
commenting on specific evidence in its instructions, and that
the errors were cumulatively prejudicial. We affirm.
Because Bosket raises these issues for the first time
on appeal, our review is for plain error. See Fed. R. Crim. P.
52(b); United States v. Reid, 523 F.3d 310, 315 (4th Cir.),
cert. denied, 129 S. Ct. 663 (2008). To establish plain error,
Bosket must show that an error occurred, that the error was
plain, and that the error affected his substantial rights. See
United States v. Olano, 507 U.S. 725, 732 (1993). Even if he
makes this threshold showing, the decision whether to correct
the error is within our sound discretion. Id. at 735-36.
Bosket first contends that the district court plainly
erred when it informed the jury that he had elected not to
testify or to offer any evidence, and that consequently, they
would be moving into the final phases of the trial. The court
had previously instructed the jury that Bosket had no burden to
prove his innocence or to present any evidence; he had the right
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to remain silent; and they were prohibited from using the fact
that he may not testify against him. The court subsequently
reminded the jury that the burden was on the Government to
persuade them beyond a reasonable doubt that Bosket was guilty,
and Bosket had no obligation to offer any evidence.
Bosket contends that the district court’s comment
regarding his decision not to testify was a violation of his
right not to incriminate himself under the Fifth Amendment. We
disagree. The district court did not instruct the jury that
Bosket’s silence was evidence of guilt, but in fact instructed
them that the decision not to testify could not be used against
him. Because the district court did not adversely comment on
Bosket’s silence, there was no plain error. See Lakeside v.
Oregon, 435 U.S. 333, 338-39 (1978).
Bosket next contends the district court’s references
to the term “felon” constituted plain error in violation of the
Rules of Evidence and his right to a fair trial. He argues
there was an “obvious danger that the jury would convict [him]
because he was a convicted felon.” We find no plain error. As
we have observed, the term “crime punishable by imprisonment for
a term exceeding one year” in 18 U.S.C. § 922(g)(1) is commonly
referred to as a “felony.” United States v. Milton, 52 F.3d 78,
79 n.1 (4th Cir. 1995). Moreover, we have held that “in a
felon-in possession case such as this, the district court must
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instruct the jury that the government must prove beyond a
reasonable doubt that at the time the defendant possessed the
firearm he had a qualifying previous felony conviction, that is
a prior conviction for an offense punishable by a term of
imprisonment exceeding one year.” Id. at 81. Therefore, while
a defendant who stipulates to the existence of a prior felony
conviction may exclude evidence concerning the nature of the
felony conviction, he may not exclude evidence concerning the
existence of the felony conviction. Id. at 81 n.7.
In this case, Bosket stipulated that he was “a person
who has been convicted for a crime(s) punishable by imprisonment
for a term exceeding one year for purposes of Title 18, United
States Code, Section 922(g)(1).” The district court instructed
the jury that the Government had to prove Bosket had “been
convicted of a crime punishable by a term of imprisonment
exceeding one year”; that this was “the definition of a felon
under federal law, convicted of a crime punishable by a term of
imprisonment exceeding one year”; and that Bosket had stipulated
he “has been previously convicted of a crime punishable by a
term of imprisonment exceeding one year, and therefore, he is in
fact a felon under federal law.” The court also instructed them
that the law prohibited any person who had been convicted of a
crime punishable by imprisonment for a term exceeding one year
from possessing any type of weapon or ammunition. Finally, the
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court gave a limiting instruction that the fact that Bosket had
admitted he was a felon by previous conviction should not be
considered by the jury in deciding whether he possessed the
weapon in this case, and he was presumed innocent until proven
guilty. We find no plain error in the court’s instructions.
Bosket next contends the district court improperly
commented on specific evidence when charging the jury.
“District courts are necessarily vested with a great deal of
discretion in constructing the specific form and content of jury
instructions.” Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1293
(4th Cir. 1995) (citation omitted). “So long as the charge is
accurate on the law and does not confuse or mislead the jury, it
is not erroneous.” Id. at 1294. Jury instructions should be
drawn with reference to the particular facts of the case on
trial, because abstract instructions that are not adjusted to
the facts of a particular case may confuse the jury. United
States v. Holley, 502 F.2d 273, 276 (4th Cir. 1974). “Different
factual situations obviously call for different degrees of
particularity,” id. at 277, and “the choice of generality versus
specificity in the charge is a matter left to the sound
discretion of the trial courts.” Hardin, 50 F.3d at 1295.
Bosket first complains that the district court used
the term “road stop” rather than “law enforcement’s sweeping
checkpoint” when giving an instruction on the proof required
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concerning the date of the offense, which occurred at a traffic
checkpoint. As noted by the Government, the Supreme Court has
used a similar term, i.e., roadblock, when referring to traffic
checkpoints. See City of Indianapolis v. Edmond, 531 U.S. 32,
38 (2000). We find no plain error in the charge.
Bosket also complains about the district court’s
charge that the jury had to decide whether the Government had
proven beyond a reasonable doubt that he “tossed the pistol in
evidence to the ground while he was running away from” police,
contending it implied he possessed the firearm and corroborated
the account of Government witnesses. The district court had
explained that Bosket’s mere presence was insufficient to prove
he possessed the firearm, and its charge concerning what the
Government must prove was not confusing or misleading. Finally,
Bosket contends that the district court’s errors were
cumulatively prejudicial. Because we find no plain error, we
conclude Bosket cannot show any prejudice.
We therefore affirm the district court’s judgment. 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
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