UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4826
DAVID L. FARMER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CR-02-47)
Submitted: April 7, 2004
Decided: May 12, 2004
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael A. Bragg, BRAGG & ASSOCIATES, P.L.C., Abingdon,
Virginia, for Appellant. John L. Brownlee, United States Attorney, R.
Lucas Hobbs, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FARMER
OPINION
PER CURIAM:
David L. Farmer appeals his conviction by a jury of two counts of
threatening federal witnesses, in violation of 8 U.S.C. § 1512(b)(1)
(2000). Finding no reversible error, we affirm.
On appeal, Farmer asserts that the district court erred in denying
his motion for a new trial based on the prosecutor’s remark that two
Government witnesses, Jerry Poore and Edwin Shomaker, had given
credible testimony in a prior trial. Farmer asserts the prosecutor’s
comment constituted improper bolstering of the witnesses’ testimony
based on another jury’s decision in a different proceeding. A prosecu-
tor’s improper closing argument may "so infect[ ] the trial with
unfairness as to make the resulting conviction a denial of due pro-
cess." United States v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998)
(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)) (internal
quotation marks omitted). In determining whether a defendant’s due
process rights were violated by a prosecutor’s closing argument, this
Court considers whether the remarks were, in fact, improper, and, if
so, whether the improper remarks so prejudiced the defendant’s sub-
stantial rights that the defendant was denied a fair trial. Id.
The prosecutor’s argument in this case was improper. This Court
has held that "it is the providence of the defendant’s jury to resolve
issues of credibility: referring to what another jury may have done is
clearly improper." United States v. Mitchell, 1 F.3d 235, 240 (quoting
United States v. Samad, 754 F.2d 1091, 1100 (4th Cir. 1984) (observ-
ing that a prosecutor may not argue evidence not presented to the
jury)). The prosecutor’s statement that "[b]ase[d], in part, on [Poore
and Shomaker’s] credible testimony [Ealy] was convicted," clearly
constituted an improper invitation to the jury to consider evidence not
presented at trial. The comment in this case, however, although erro-
neous, was not so prejudicial as to deny Farmer a fair trial. After ana-
lyzing the comment under the six-factor test articulated in Wilson, we
conclude that the comment did not so substantially prejudice Farmer’s
rights that he was denied a fair trial. Wilson, 135 F.3d at 299. The dis-
trict court’s denial of the motion for a new trial was thus not an abuse
of discretion. See United States v. Stewart, 256 F.3d 231, 241 (4th
UNITED STATES v. FARMER 3
Cir. 2001) (setting forth standard for reviewing denial of motion for
new trial).
Accordingly, we affirm Farmer’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED