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

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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