United States v. Temple ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4128
DAVID TEMPLE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-96-21-S)
Submitted: August 19, 1997
Decided: September 11, 1997
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.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, Tarra DeShields-Minnis,
Assistant 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Unpublished opinions are not binding precedent in this circuit.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).
OPINION
PER CURIAM:
David Temple was convicted by a jury of being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1) (1994), and
aiding and abetting the same in violation of 18 U.S.C. § 2 (1994). The
court sentenced Temple to 235 months imprisonment as an armed
career offender and also imposed a fifty dollar special assessment.
Temple's attorney filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), challenging the district court's
denial of his Batson v. Kentucky, 476 U.S. 79 (1986), objection.
Counsel also challenges the jury instructions and alleges prosecutorial
overreaching. Counsel asserts that, in his view, the issues raised are
without merit and that there are no other meritorious grounds for
appeal. Temple was informed of his right to file a pro se supplemental
brief, which he failed to file. Because we conclude that the district
court did not clearly err in accepting the Government's explanation
for exercising its peremptory challenge, and because we find no
reversible error in the jury instructions and no prosecutorial over-
reaching requiring reversal of Temple's conviction, we affirm.
Temple first contends that the district court erred in overruling his
Batson objection to the Government's use of a peremptory challenge
to strike an African-American juror allegedly on account of race.1 The
Government provided a race neutral explanation for its peremptory
challenge; the Government stated that it struck the juror because,
despite the juror's claim to the contrary, the Government thought the
juror would be biased because her fiance was incarcerated for a drug
offense. See Matthews v. Evatt, 105 F.3d 907, 917 (4th Cir. 1997),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. May 27, 1997) (No.
96-9163). We find that the district court's factual determination
accepting the Government's reasoning is supported by the record and
is not clearly erroneous. See United States v. Tindle, 860 F.2d 125,
129 (4th Cir. 1988).
Next, Temple avers that the district court abused its discretion in
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1 The panel ultimately included three African-American jurors.
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instructing the jury. First, Temple complains that the court, in remind-
ing the jury that it had heard evidence regarding the use of fingerprint
examination in the case, abused its discretion when it commented,
"[l]aw enforcement techniques are not your concern."2 Temple further
complains that the district court abused its discretion in instructing the
jury on the purpose of the federal firearms statute, saying that the
instruction was unduly prejudicial because it drew the judge's atten-
tion to the fact that Temple was a convicted felon.
We conclude that the district court did not abuse its discretion in
instructing the jury. We find that the jury instructions, viewed in their
entirety, adequately advised the jury on the relevance of the investiga-
tive techniques utilized in the case. See United States v. Mason, 954
F.2d 219, 222 (4th Cir. 1992) (holding that identical instruction was
not error). Further, we determine that the district court's decision to
instruct the jury as to why local law enforcement officials were in fed-
eral court was within its sound discretion. See United States v.
Russell, 971 F.2d 1098, 1107 (4th Cir. 1992).
Finally, Temple claims that the district court erred in overruling his
objection to the prosecutor's rebuttal closing argument, which alleg-
edly impermissibly vouched for a government witness by telling the
jury that no racial bias existed in the case. The record reveals that, in
her closing remarks, the prosecutor did not, directly or indirectly,
vouch for the credibility of the Government's witness. See generally
United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993). We find
that the prosecutor's rebuttal closing comments were a legitimate
response to the defense's closing arguments to the jury stating that the
evidence in the case was manufactured by racist police officers. See
generally United States v. Young, 470 U.S. 1, 12-13 (1985) (holding
that conviction will not be reversed if prosecution's argument was
invited by defense's argument and did no more than"right the scale").
Further, we conclude that the prosecution's comments did not prejudi-
cially affect Temple's substantial rights so as to deprive him of a fair
trial, and thus we find that the district court did not err in overruling
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2 The test on the firearm, conducted several months after Temple's
arrest, revealed no fingerprints. However, Temple's conviction was sup-
ported by testimony from a police officer who saw Temple remove the
gun from his waistband and throw it away in an attempt to hide it.
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the defense's objection to the prosecution's rebuttal closing argument.
See United States v. Mitchell, 1 F.3d 235, 241-42 (4th Cir. 1993) (out-
lining test for reversible prosecutorial misconduct).
In accordance with the requirements of Anders , we have examined
the entire record and find no meritorious issues for appeal. Accord-
ingly, we affirm Temple's sentence and conviction. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel's motion must state
that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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