United States v. Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4316
TYRONE MARCEL SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-00-311-DKC)
Submitted: March 27, 2002
Decided: April 19, 2002
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Anthony D. Martin, SOLOMON & MARTIN, Greenbelt, Maryland,
for Appellant. Thomas M. DiBiagio, United States Attorney, Mythili
Raman, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SMITH
OPINION
PER CURIAM:
Tyrone Marcel Smith was convicted after a jury trial for being a
felon in possession of a firearm, in violation of 18 U.S.C.A.
§ 922(g)(1) (West 2000). On appeal, Smith argues that the Govern-
ment improperly threatened a defense witness and made prejudicial
comments during its opening and closing statements. Finding no
reversible error, we affirm.
In response to a 911 call, the police located a vehicle, later deter-
mined to belong to Smith, and saw a handle of a black automatic
handgun underneath the front passenger seat. After waiving his
Miranda rights, Smith gave several incriminating oral statements to
a police detective.
At trial, Smith subpoenaed Jonathan Lewis to testify. Lewis had
stated by affidavit that the gun belonged to him. The Government
asked the court to conduct a voir dire examination of Lewis as to his
understanding of the issues surrounding the waiver of his Fifth
Amendment privilege. During Lewis’s voir dire, Smith conferred with
his attorney and decided not to call Lewis to testify.
Smith argues the Government engaged in prosecutorial misconduct
when it denied him a fair trial by threatening Lewis with prosecution
for perjury. Because Smith did not object at trial, our review is for
plain error. United States v. Olano, 507 U.S. 725, 732 (1993). To pre-
vail on a claim of prosecutorial misconduct, Smith must show: (1) the
Government’s remarks and conduct were improper; and (2) the
remarks or 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). We have reviewed the record and find the
Government’s comments regarding the consequences of Lewis’s
potential testimony were not improper.
Smith also argues the Government engaged in prosecutorial mis-
conduct during its opening statement and closing argument by
describing him as a felon and a criminal, and thereby violated his
UNITED STATES v. SMITH 3
right to a fair trial. Even were we to find the Government’s remarks
improper, the remarks were not extensive, the evidence against Smith
was strong, and whatever prejudicial effect the comments may have
had was cured by the district court’s instruction to the jury.* Accord-
ingly, we conclude that Smith was not prejudiced by these remarks.
See United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983)
(providing the analytical framework for determining whether the
defendant suffered prejudice from the prosecutor’s improper
remarks).
We grant Smith’s motions to file a pro se supplemental brief, to
supplement that brief, and to file a pro se appendix. In his pro se brief,
Smith argues the district court violated his Fifth and Sixth Amend-
ment rights to put on a defense. Smith argues that Lewis’s affidavit
and testimony should have been admitted; however, Lewis was avail-
able at trial and Smith chose not to call him. Moreover, the district
court’s ruling that a portion of Roselyn Seupaul’s proffered testimony
was inadmissible hearsay was not erroneous. United States v. Young,
248 F.3d 260, 270-71 (4th Cir.), cert. denied, 121 S. Ct. 2617 (2001)
(holding that the exclusion of statement under Federal Rules of Evi-
dence did not violate due process because the statement was not a
third-party confession).
Smith also argues his counsel provided ineffective assistance for
failing to object to incriminating statements made by Smith, failing
to call Lewis, and failing to call the investigators who interviewed
Lewis. Claims of ineffective assistance of counsel generally are not
cognizable on direct appeal unless the record conclusively establishes
counsel’s ineffective representation. United States v. King, 119 F.3d
290, 295 (4th Cir. 1997). Our review of the record does not conclu-
sively establish that counsel was ineffective. Therefore, this issue is
not cognizable on direct appeal.
We affirm Smith’s convictions and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
*The district court instructed the jury that the fact of the defendant’s
prior conviction was relevant only for the limited purpose of determining
whether all of the elements of the § 922(g) offense had been sufficiently
proven.
4 UNITED STATES v. SMITH
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED