UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5155
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
COREY RESHON SIMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-326)
Submitted: December 22, 2006 Decided: January 19, 2007
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Robert John
Gleason, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Reshon Simpson was convicted by a jury of one count
of possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2000). Simpson was sentenced to 155 months’
imprisonment. We affirm the conviction and sentence.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there were no
meritorious grounds for appeal, but raising the following issues:
(1) the district court erred by holding an off-the-record bench
conference; (2) the court’s instruction to the jury was improper;
and (3) the Government’s closing argument contained improper
remarks. Although Simpson was notified of his right to file a pro
se supplemental brief, he did not do so.
As Simpson raises each of these issues for the first time
on appeal, review is for plain error. See United States v. White,
405 F.3d 208, 215 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).
To establish plain error, Simpson must show that an error occurred,
that the error was plain, and that the error affected his
substantial rights. Id.
First, Simpson contends that the district court erred by
holding an off-the-record bench conference. In criminal cases, all
proceedings held in open court, including bench conferences, see
generally United States v. Snead, 527 F.2d 590 (4th Cir. 1975) (per
curiam), must be recorded verbatim. See 28 U.S.C. § 753(b) (2000).
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This requirement “safeguard[s] a defendant’s right to appellate
review.” United States v. Gillis, 773 F.2d 549, 554 (4th Cir.
1985). Responsibility to ensure compliance with § 753 lies with
the court, not the reporter or the parties. See United States v.
Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985); United States v.
Garner, 581 F.2d 481, 488 (5th Cir. 1978). Accordingly, violations
of the statute ordinarily constitute judicial error.
However, the error does not warrant reversal unless the
defendant can demonstrate that the missing portion of the
transcript specifically prejudices his efforts to appeal. See
Gillis, 773 F.2d at 554. “Prejudice is found when a trial
transcript is so deficient that it is impossible for the appellate
court to determine if the district court has committed reversible
error.” United States v. Huggins, 191 F.3d 532, 537 (4th Cir.
1999) (internal quotation marks omitted).
While the district court erred by failing to ensure
compliance with § 753, Simpson does not claim, and nothing in the
joint appendix suggests, that the omission of a single bench
conference renders the trial transcript so inadequate as to make
Simpson’s substantive assignments of error unreviewable.
Therefore, we conclude Simpson has failed to establish that the
omission prejudiced his ability to effect a meaningful appeal.
Next, Simpson contends that the district court improperly
instructed the jury. Parts of a jury instruction should not be
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viewed in isolation, but should be considered in light of the
instruction as a whole. United States v. Morrison, 991 F.2d 112,
116 (4th Cir. 1993). Even if it is determined that “the trial
court erroneously instructed the jury, ‘[i]t is the rare case in
which an improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial court.’”
United States v. Muse, 83 F.3d 672, 678 (4th Cir. 1996) (quoting
Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
Simpson challenges the following portion of the district
court’s instruction to the jury:
Your decision on the facts of this case should not be
determined by the number of witnesses testifying for or
against a party. You should consider all the facts and
circumstances in evidence to determine which of the
witnesses you choose to believe or not believe. You may
find that the testimony of a smaller number of witnesses
on one side is more credible than the testimony of a
greater number of witnesses on the other side.
He argues that this instruction shifted the burden of proof to the
defense by implying that he should present evidence on his own
behalf. Simpson further argues that the instruction called for a
credibility-weighing test that was more similar to a preponderance
of the evidence standard than to proof beyond a reasonable doubt.
The challenged instruction was directly preceded by the
court’s instruction regarding the defendant’s “constitutional right
not to take the stand and testify and not to speak at all or offer
evidence.” Thereafter, the court reminded the jury that the burden
of proof rests “entirely” on the government. Therefore, when
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considering the instruction as a whole, and in light of the fact
that Simpson did not object to the instruction at trial, we
conclude the challenged instruction does not warrant reversal.
Finally, Simpson contends that the Government’s closing
argument, as it pertained to the gunshot residue evidence, was
improper. We review a claim of prosecutorial misconduct “to
determine whether the conduct so infected the trial with unfairness
as to make the resulting conviction a denial of due process.”
United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)
(internal quotation marks omitted). The misconduct will constitute
reversible error if the defendant can establish (1) that the
prosecutor’s remarks or conduct were improper and (2) that the
remarks or conduct prejudicially affected the defendant’s
substantial rights so as to deprive him of a fair trial. Id.
Relevant factors in the determination of prejudice include:
(1) the degree to which the prosecutor’s remarks had a
tendency to mislead the jury and to prejudice the
defendant; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of the
defendant; (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.
Id. at 185-86.
The gunshot residue evidence presented at trial was
inconclusive on the ultimate question of who fired, and thereby
possessed, the weapon at issue. Though the gunshot residue test
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indicated that Simpson had “elevated levels of barium on [his]
right palm,” and the other two individuals present did not, the
test was not determinative of who fired the weapon on the night in
question.
During its closing argument, the Government stated that
the gunshot residue test was inconclusive, but argued:
[The gunshot residue expert] found on the defendant’s
wipings from his right hand elevated levels of barium.
Barium is one of the three components of gunshot residue.
And [the expert] found elevated levels on that hand.
Now, the defense may try to tell you that [another
individual] was the shooter. Well, that would be
physically impossible because we know where the shell
casings were, we know where the passenger was in the
vehicle. But regardless, the wipings from [the other
individual’s] hands showed no significant amounts of
barium, antimony or lead. That if there were any amounts
found on [the other individual’s] wipings, that they were
below the threshold. They were background amounts.
There was no elevated level of barium like there was in
the defendant’s case.
Additionally, the Government reminded the jury in its rebuttal that
“the defendant is not excluded as having possibly fired the gun.
In fact, the defendant had elevated levels of barium on his right
palm, and we know he’s right-handed . . . .”
The remarks at issue comprised only a fraction of the
Government’s lengthy closing and rebuttal arguments. Even if the
remarks could be said to have prejudiced Simpson by misleading the
jury or diverting its attention, such prejudice was minimal when
compared to the sheer volume of evidence introduced to establish
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Simpson’s guilt. Thus, we conclude Simpson has failed to establish
that the Government’s remarks constitute reversible error.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Simpson’s conviction and sentence.
This court requires that counsel inform her client, in writing, of
his right to petition 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 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 contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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