UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5117
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES ELLIS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph R. Goodwin,
Chief District Judge. (6:06-cr-00037-1)
Submitted: November 12, 2008 Decided: November 26, 2008
Before WILKINSON, MICHAEL, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Steven I. Loew, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Ellis appeals his convictions and 324-month
sentence imposed for conducting straw purchases of firearms
through four women in the Parkersburg, West Virginia, area so he
could resell the firearms for profit in Boston. He was also
convicted of tampering with two of the witnesses. On appeal,
Ellis argues that his right to a fair trial was violated by
improper testimony and a remark by the prosecutor in closing
statements. He also contends that his sentence is unreasonable.
Finding no error, we affirm.
Ellis did not make any contemporaneous objections to
any of the evidentiary errors alleged on appeal. Therefore, the
errors are subject to plain error review. United States v.
Olano, 507 U.S. 725, 731-33 (1993). Four conditions must be met
before this court will notice plain error: (1) there must be
error; (2) it must be plain under current law; (3) it must
affect substantial rights, typically meaning the defendant is
prejudiced by the error in that it affected the outcome of the
proceedings; and (4) the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. Id. at
732-37.
Ellis first argues that the testimony of Agent Michael
Turner that five guns were found at crime scenes and calling the
guns “crime guns” was highly prejudicial, inflammatory, and
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unnecessarily tied him to at least four unspecified crimes.
Ellis contends that this amounted to a character attack and
deprived him of his Fifth Amendment right to a fair trial. The
Government maintains that the straw purchases and resales in
Boston were criminal acts, making the firearms “crime guns,” and
further that, because at least four firearms were recovered from
crime scenes, they were in fact accurately characterized as
crime guns.
We conclude that it was not error for Agent Turner to
refer to the firearms recovered from crime sites as “crime
guns.” Ellis does not contest that the firearms were recovered
from crime scenes and there was no testimony that Ellis was
involved in any overt acts related to the crimes later
associated with the guns. Therefore there is no error,
particularly one which “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Brewer, 1 F.3d 1430, 1435 (4th Cir. 1993).
Next, Ellis contends that the testimony of Delano
Gaskins, a former inmate with Ellis, that he decided not to
traffic in guns with Ellis because he had “changed around by the
grace of God” was unduly prejudicial and improperly used to
bolster the credibility of this Government witness who was a
convicted felon. Ellis seeks a new trial to cure the
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misconduct. The Government replies that any error is harmless,
if any error resulted at all.
A prosecutor may neither vouch for nor bolster the
testimony of a Government witness in arguments to the jury.
United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997).
Vouching generally occurs when the prosecutor indicates a
personal belief in the credibility of a witness. United
States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993). “While
improper vouching must generally come from the prosecutor’s own
mouth, a prosecutor’s solicitation of assertions of
trustworthiness from government witnesses may also be
impermissible vouching.” Id. (citing United States v. Piva, 870
F.2d 753, 760 (1st Cir. 1989)).
Impermissible vouching and bolstering do not
necessarily mandate retrial, however. Instead, “[t]he relevant
question is whether the prosecutor[’s] comments so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.” Sanchez, 118 F.3d at 198 (internal
quotation marks omitted). In making this determination, we
examine “(1) the degree to which the comments could have misled
the jury; (2) whether the comments were isolated or extensive;
(3) the strength of proof of guilt absent the inappropriate
comments; and (4) whether the comments were deliberately made to
divert the jury’s attention.” Id.
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The Assistant United States Attorney (AUSA) asked
Gaskins whether he agreed to Ellis’s suggestion that he
illegally sell guns. Gaskins simply replied, “[n]o.” The AUSA
then asked, “[w]hy not?” The Government did not linger over his
answer. Nor did the AUSA refer to the answer in his closing
statement. The testimony does not implicate impermissible
bolstering requiring remand. The remark was isolated, did not
mislead the jury as to relevant facts, was slight compared to
the rest of the evidence, and does not appear to have been
deliberately elicited to divert the jury’s attention from
Gaskins’ status as a felon. See Sanchez, 118 F.3d at 198.
Therefore there was no error, plain or otherwise.
During closing, the AUSA stated that the women who
purchased firearms had not purchased firearms since the straw
purchases--a fact not in the record. Ellis contends that this
was testifying to facts not in evidence. Although it was a
short statement, Ellis argues it was a broad assertion, which
tended to mislead the jury. Ellis states that, although there
was no contemporaneous objection made to the comment, it
affected the fundamental fairness of the trial because it
involved the five strongest witnesses against him.
A prosecutor’s improper closing argument may “so
infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.” United States v. Wilson,
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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
substantial rights that the defendant was denied a fair trial.
Id.
We conclude that even if the AUSA’s isolated remark
was improper, it did not so prejudice Ellis’s substantial rights
as to deny him a fair trial. Although the remark was about
facts not in evidence and involved the witnesses who purchased
firearms for Ellis, it did not address a crucial element of the
charges unsupported by other evidence. Considering the isolated
remark and the totality of the evidence as a whole, the remark
was not unduly prejudicial.
Finally, Ellis argues that together the crime guns
testimony, Gaskins’ testimony, and the AUSA’s allegedly improper
remark in closing resulted in cumulative error that would
require a new trial. However, no error resulted and therefore
the cumulative error analysis is not necessary.
Ellis argues that his sentence is procedurally
unreasonable because the district court imposed it prior to the
Supreme Court’s decision in Gall v. United States, 128 S. Ct.
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586, 597 (2007), and that the court did not fully consider
whether a sentence closer to the statutory minimums on each
count, which would require a variance far below the low end of
the Guidelines range, was reasonable. Ellis contends that the
court abused its discretion by presuming reasonableness of the
Guidelines range.
A sentence is reviewed for abuse of discretion, Gall,
128 S. Ct. at 597, with the review encompassing both procedural
soundness and substantive reasonableness. Id. In Gall and in
Kimbrough v. United States, 128 S. Ct. 558 (2007), the Supreme
Court clarified the sentencing judge’s authority to impose a
sentence outside the Guidelines range “based solely on the
judge’s view that the Guidelines range fails properly to reflect
§ 3553(a) considerations.” Kimbrough, 128 S. Ct. at 575
(internal quotation and citation omitted).
Ellis was sentenced before Gall and Kimbrough were
decided, so the district court did not have the benefit of those
decisions. Either treating the Guidelines as mandatory or
failing to consider the § 3553(a) factors adequately would
constitute a “significant procedural error.” Gall, 128 S. Ct.
at 597. However, in this case, after stating its belief that
the Guidelines range was too severe, the court went on to impose
a sentence three years below the 360-month low end of the
Guidelines range. Nothing in the record indicates that the
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court believed that it could not vary further downward.
Although Ellis claims that the court erroneously applied a
presumption of reasonableness to the Guidelines range, it varied
downward and there is no indication that the court was unaware
of the applicable statutory minimum sentences. Finally, the
court considered the § 3553(a) factors in fashioning the
sentence. We therefore find that Ellis has not demonstrated
procedural error.
We therefore affirm the convictions and sentence. We
deny Ellis’s pro se motion to file a pro se supplemental brief.
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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