UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5011
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES JEFFREY DUNCAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (7:06-cr-00079-F)
Submitted: October 22, 2008 Decided: June 19, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jason H. Cowley, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Jeffrey Duncan challenges his conviction for
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000). Duncan argues on appeal that the
district court committed plain error by admitting evidence at trial
that he located the firearm and turned it over to state officials
because those actions, taken pursuant to a domestic violence
protective order, violated his Fifth Amendment privilege against
self-incrimination.
Because no objection was made to the admission of the
evidence during trial, we review the claim for plain error. Fed.
R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993). Duncan thus must show: (1) there was error; (2) the error
was plain; and (3) the error affected his substantial rights. Id.
at 732-34. “‘Plain’ is synonymous with ‘clear’ or, equivalently,
‘obvious.’” Id. at 734. “At a minimum, a court of appeals cannot
correct an error pursuant to Rule 52(b) unless the error is clear
under current law.” Id. When the conditions in Rule 52(b) are
satisfied, we may exercise our discretion to notice the error only
if the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted). “Central to this inquiry is a
determination of whether, based on the record in its entirety, the
proceedings against the accused resulted in a fair and reliable
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determination of guilt.” United States v. Cedelle, 89 F.3d 181,
186 (4th Cir. 1996).
The Self-Incrimination Clause of the Fifth Amendment
provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V, cl.
3. “[T]he privilege protects a person only against being
incriminated by his own compelled testimonial communications.”
Doe v. United States, 487 U.S. 201, 207 (1988) (internal quotation
and citations omitted). Although the privilege is most often
applied to compelled statements, it also “applies to acts that
imply assertions of fact” that are testimonial in nature. Id. at
209. “The difficult question whether a compelled communication is
testimonial for purposes of applying the Fifth Amendment often
depends on the facts and circumstances of the particular case.”
Id. at 214-15 (citation omitted). A compelled action is
nontestimonial if it is not compelled for the purpose of obtaining
knowledge that the person taking the action might have. See id. at
217 (citation omitted).
“[I]n the ordinary case, if a witness under compulsion to
testify makes disclosures instead of claiming the privilege, the
government has not ‘compelled’ him to incriminate himself.”
Minnesota v. Murphy, 465 U.S. 420, 427 (1984) (internal quotation
and citation omitted). “[A]n individual may lose the benefit of
the privilege without making a knowing and intelligent waiver.”
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Id. at 428 (internal quotation and citation omitted). Under a
well-known exception, courts must exclude “incriminating statements
obtained during custodial interrogation unless the suspect fails to
claim the Fifth Amendment privilege after being suitably warned of
his right to remain silent and of the consequences of his failure
to assert it.” Id. at 430 (citing Miranda v. Arizona, 384 U.S.
436, 467-69, 475-77 (1966)). The privilege also need not be
claimed when the government seeks to induce a person, either
expressly or by implication, “to forgo the Fifth Amendment
privilege by threatening to impose economic or other sanctions
capable of forcing the self-incrimination which the Amendment
forbids.” Murphy, 465 U.S. at 434 (internal quotation and citation
omitted). The person must have been “deterred from claiming the
privilege by a reasonably perceived threat of [sanctions].” Id. at
439.
In this case, Duncan’s production of the gun is
nontestimonial, as no evidence suggests he was compelled to produce
it for the purpose of revealing his knowledge or admission that he
possessed a firearm. Nor were Duncan’s actions “compelled” because
Duncan never claimed the Fifth Amendment privilege in response to
the domestic violence protective order directing him to turn over
a firearm to state officials, and no evidence suggests the
Government sought to induce forfeiture of the privilege by
threatening sanctions through service of the protective order.
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Duncan was never arrested or otherwise subjected to custodial
interrogation in connection with the protective order. The
protective order stated that Duncan could be imprisoned for up to
thirty months if he failed to comply with the order by turning over
a firearm. However, it does not appear that the state intended to
induce Duncan to incriminate himself by issuing the protective
order or that Duncan was deterred from claiming the privilege
against self-incrimination by the sanctions described in the order.
The ostensible purpose of the order was to protect the person whose
complaint prompted the order from domestic violence, and Duncan
appears to have been unaware that he would incriminate himself by
admitting that he possessed a firearm. In fact, Duncan disclaimed
possession of the firearm or knowledge of its whereabouts when he
was served with the protective order, but helped law enforcement
officers search his residence for the firearm when he was served
with the order. Duncan also disclaimed ownership or possession of
the firearm when he testified on his own behalf at trial. Because
the admission of evidence that Duncan located the firearm and
turned it over to state officials did not clearly violate his Fifth
Amendment privilege against self-incrimination under current law,
its admission did not constitute plain error.
For the reasons stated above, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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