United States v. Terry , 14 F. App'x 253 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4277
RALPH LEON TERRY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Cameron McGowan Currie, District Judge.
(CR-98-1118)
Submitted: April 27, 2001
Decided: July 31, 2001
Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Kenneth M. Mathews, Columbia, South Carolina, for Appellant. Scott
N. Schools, United States Attorney, Stacey D. Haynes, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. TERRY
OPINION
PER CURIAM:
Following a jury trial, Ralph Leon Terry was convicted on one
count of conspiracy to possess with intent to distribute and to distrib-
ute cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West
1999), and one count of possession with intent to distribute and distri-
bution of cocaine, in violation of 21 U.S.C.A. § 841(a)(1). The district
court sentenced Terry to concurrent ninety-seven-month prison terms
on each count. Terry filed a timely appeal, claiming that the district
court erred by failing to dismiss the indictment and by denying his
motion for a mistrial. We find no merit in his claims; consequently,
we affirm.
I.
Terry argues that the trial court erred by failing to dismiss the
indictment for governmental misconduct after the Federal Bureau of
Investigation ("FBI") seized and reviewed his papers while he was
awaiting a pretrial conference at the federal courthouse. To prevail on
a claim of governmental misconduct and obtain the extreme remedy
of dismissal of his indictment, a defendant must show: (1) the govern-
ment’s conduct was improper; and (2) the conduct prejudicially
affected his substantial rights so as to deprive him of a fair trial. See
United States v. Golding, 168 F.3d 700, 702 (4th Cir. 1999) (discuss-
ing prosecutorial misconduct); United States v. Derrick, 163 F.3d
799, 806 (4th Cir. 1998) (same).
Assuming without deciding that the seizure was improper, we find
that Terry cannot show that he was deprived of a fair trial. An FBI
agent who was not involved in the drug trafficking prosecution seized
the documents because they were believed to include an affidavit rele-
vant to an ongoing murder-for-hire investigation. The agent reviewed
the documents specifically to look for the affidavit and the rest of the
documents were returned to Terry. Although papers relating to the
drug trafficking case were initially seized with the affidavit, Terry
presented no evidence, and in fact does not argue on appeal, that any-
one involved in the drug trafficking investigation or prosecution ever
saw the documents or learned about their contents. We find that the
UNITED STATES v. TERRY 3
district court did not commit clear error by denying Terry’s motion
to dismiss the indictment. United States v. Ellis, 121 F.3d 908, 927
(4th Cir. 1997).
II.
Next, Terry argues that the district court erred by refusing to
declare a mistrial when a government witness, Terry A. Davis,
remarked during cross-examination that Terry liked to talk about kill-
ing people, despite the court’s earlier admonition to Davis not to com-
ment about Terry’s threat to kill his co-defendant. This court reviews
for abuse of discretion a district court’s decision to grant or deny a
request for a mistrial. United States v. Guay, 108 F.3d 545, 552 (4th
Cir. 1997). In order for a court’s denial of a motion for a mistrial to
amount to abuse of discretion, the defendant must show prejudice.
United States v. West, 877 F.2d 281, 287-88 (4th Cir. 1985).
During voir dire, Davis mentioned Terry’s threats against Jensen
and an investigator involved in his case. The judge, in stating that he
would allow most of Davis’ testimony, told Davis not to testify about
Terry’s threat against Jensen. Davis complied with the court’s direc-
tive, but when he remarked that he was afraid of Terry and defense
counsel asked him if Terry was a "big talker," Davis answered in the
affirmative and elaborated by saying that Terry enjoyed talking about
killing people. The court struck the remark from the record and
instructed the jury that it could not consider that comment in deciding
the case.
As the district court correctly noted, Davis did not violate the
court’s instruction not to discuss Terry’s threat to kill his co-
defendant. Moreover, Davis made his comment about Terry enjoying
discussing killing people only in response to defense counsel’s cross-
examination. In light of the judge’s curative instruction, which the
jury is presumed to have followed, Greer v. Miller, 483 U.S. 756, 766
n.8 (1987), the isolated nature of the statement, and the significant
evidence of guilt, we find that Terry failed to show prejudice and con-
sequently cannot show that the district court abused its discretion by
denying a mistrial.
4 UNITED STATES v. TERRY
III.
For these reasons, we affirm Terry’s convictions. 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