United States v. McGill

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4320
RODNEY LAMARK MCGILL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Dennis W. Shedd, District Judge.
(CR-99-659-DWS)
Submitted: January 31, 2001
Decided: February 26, 2001
Before WILLIAMS and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
W. Rhett Eleazer, Chaplin, South Carolina, for Appellant. Marshall
Prince, OFFICE OF THE UNITED STATES ATTORNEY, Colum-
bia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MCGILL
OPINION
PER CURIAM:
Rodney LaMark McGill appeals his conviction on four counts
related to his involvement in the robbery of Bordertown, a video
poker casino located in South Carolina. The indictment against
McGill and twelve other individuals charged him in four of its fifteen
counts with robbery, 18 U.S.C. 1951(a) (1994), and its related con-
spiracy charge, see id. and 18 U.S.C. § 2 (1994), use of a firearm in
relation to a felony, 18 U.S.C. § 924(c)(1)(A)(ii) (1994), and its ana-
log conspiracy offense. 18 U.S.C. § 924(o) (1994). After a trial, the
jury found McGill guilty on all four counts. McGill noted a timely
appeal and his counsel filed a brief pursuant to Anders v. California,
386 U.S. 738, 744 (1967), in which he represents that there are no
arguable issues of merit in this appeal. Nonetheless, in his brief, coun-
sel addressed the possibility that the district court impermissibly
restricted the scope of cross-examination of a prosecution witness
through its rulings on the admissibility of hearsay evidence. McGill
filed a supplemental brief asserting that he should not have been con-
victed of conspiracy with respect to robberies other than the one in
which he actually participated. McGill also contends that the prosecu-
tion’s closing argument was improper and that both his trial counsel
and appellate counsel failed to render constitutionally sufficient assis-
tance. Finding no merit to any of these claims of error, and discover-
ing no other reversible error in our review of the record, we affirm
the conviction and sentence.
In his brief on appeal, counsel assails the district court’s ruling on
the admissibility of certain testimony from a prosecution witness and
contends that the ruling unduly limited McGill’s right to cross-
examination. Restrictions on the scope of cross-examination are
within the sound discretion of the trial judge, and trial courts are gen-
erally given wide latitude to set reasonable limits to prevent harass-
ment, prejudice, or confusion of the issues. United States v. Ambers,
85 F.3d 173, 175-76 (4th Cir. 1996). With respect to the testimony at
issue, the district court correctly excluded the testimony as hearsay.
See Fed. R. Evid. 801(c). Consequently, we have no difficulty in find-
ing that the district court did not abuse its discretion with respect to
this rather mundane limitation on the scope of cross-examination.
UNITED STATES v. MCGILL 3
In his pro se supplemental brief, McGill also raised several claims
of error. First, although McGill suggests that the error constitutes a
"variation" from his indictment, he advances an argument that the evi-
dence was insufficient to convict him of conspiracy, contending that
he was involved in only the Bordertown robbery. See United States
v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). However, a
conspirator may be a member of a conspiracy without knowing its full
scope, or all of its members, and without taking part in full range of
its activities. United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.
1993). McGill became a willing member of the conspiracy by assum-
ing a role in the Bordertown robbery.
McGill also contends that the prosecution mischaracterized certain
evidence in its closing argument. The test for error in argument is
whether the allegedly improper remarks so infected the trial with
unfairness that the resulting conviction is a denial of due process.
Darden v. Wainwright, 477 U.S. 168, 181 (1986). Moreover, absent
plain error, an improper closing argument is not grounds for reversal
where the defendant has not objected and moved for a mistrial. United
States v. DePew, 932 F.2d 324, 328 (4th Cir. 1991). Even assuming
the mischaracterization occurred, McGill alleged nothing that would
suggest that the comments were more than merely isolated and only
minimally prejudicial. United States v. Odom, 736 F.2d 104, 117-18
(4th Cir. 1984). There was no reversible error and certainly no plain
error with respect to the prosecution’s closing argument.
Finally, McGill contends that both his appellate and trial counsel
failed to render constitutionally sufficient assistance. See Strickland
v. Washington, 466 U.S. 668, 688 (1984). However, a claim of inef-
fective assistance of counsel is only appropriate on direct appeal
where counsel’s ineffectiveness is apparent from the face of the
record. United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992).
Because several of McGill’s contentions of error on the part of appel-
late counsel rely on allegations apart from the trial record, counsel
cannot have erred in declining to present McGill’s claims for the first
time on direct appeal. McGill also suggests that there was error as a
result of the fact that the specific details of the prosecution’s wit-
nesses’ plea agreements were not made known to the jury. At its core,
this contention goes to trial counsel’s performance and his handling
of cross-examination is therefore inappropriate for direct appeal. See
4 UNITED STATES v. MCGILL
United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). There
is no attorney error apparent from the record that would require us to
consider this claim of error.
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
counsel believes such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel’s motion must state that a copy thereof was served on
the client.
McGill’s conviction and sentence are affirmed. McGill’s motion in
"opposition to" counsel’s Anders brief is denied. 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