UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4448
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON C. BURRUS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:07-cr-00194-RGD-JEB-1)
Argued: March 25, 2010 Decided: April 23, 2010
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Arenda Lauretta Allen, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Frances H. Pratt, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Alexandria,
Virginia, D. Monique Broadnax, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Brandon Burrus of one count of being a
felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Burrus
appeals his conviction. We affirm.
First, Burrus argues that the district court erred when it
refused to allow the government to retract an erroneous
peremptory strike in order to seat a qualified African-American
juror. According to Burrus, the district court’s refusal to
seat the qualified African-American juror violated his rights
under the Equal Protection Clause of the Fourteenth Amendment,
which forbids the use of a peremptory challenge for a racially
discriminatory purpose. Batson v. Kentucky, 476 U.S. 79, 86
(1986).
As part of Batson’s three-part test, Burrus carries the
burden of demonstrating purposeful discrimination on the part of
the government. Id. at 98. Here, to the extent Burrus’
argument implicates Batson, he did not carry his burden below of
demonstrating purposeful discrimination on the part of the
government. There simply is nothing in the record to undermine
the race neutral reason for the strike offered by the Assistant
United State Attorney (AUSA). The qualified African-American
juror was struck by mistake, with the AUSA instead intending to
strike a juror who appeared to be asleep at times during jury
selection. Such mistakes certainly do not rise to the level of
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purposeful discrimination under Batson. See, e.g., United
States v. Watford, 468 F.3d 891, 914-15 (6th Cir. 2006)
(rejecting Batson claim where AUSA made honest mistake in
striking African-American juror). Accordingly, Burrus’ Batson
claim must be rejected. 1
Second, Burrus argues that the district court’s extensive
questioning of his only witness at trial, Brittany Ayers,
deprived him of a fair trial. According to Burrus, the district
court questioned Ayers so extensively and aggressively that it
became a second AUSA in the case.
Because Burrus failed to object to the district court’s
questioning, our review is for plain error. United States v.
Olano, 507 U.S. 725, 736 (1993). Plain error requires (1) an
error, (2) that is plain, and (3) that affects the defendant’s
substantial rights. Id. If these three elements are met, 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. (citation and
internal quotation marks omitted).
1
To the extent Burrus attacks the methodology for
exercising peremptory challenges employed by the district court
in this case, we reject the argument. Cf. United States v.
Williams, 986 F.2d 86, 88 n.3 (4th Cir. 1993) (noting the
legitimacy of the jury box method).
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Under the Federal Rules of Evidence, a district court is
authorized to “interrogate witnesses, whether called by itself
or by a party.” Fed. R. Evid. 614(b). On appeal, we will
afford deference to the district court’s decision to exercise
its authority under Rule 614(b) to question a witness. United
States v. Smith, 452 F.3d 323, 333 (4th Cir. 2006). The
discretion enjoyed by a district court to interject with
questions is not limitless and is reviewed for an abuse of
discretion. United States v. Smith, 441 F.3d 254, 268 (4th Cir.
2006). Whether the district court so abused its discretion
during its questioning of a witness so as to deprive the
defendant of a fair trial, as opposed to a perfect trial, is
determined by looking not at the complained of questions in
isolation, but at the record as a whole for indicators of “bias
that might indicate a belief on the judge’s part” that the
defendant was guilty. United States v. Parodi, 703 F.2d 768,
775-76 (4th Cir. 1983).
In this case, the district court’s extensive questioning of
Ayers went to clarifying his extremely confusing testimony as to
how the firearms recovered in Burrus’ car were his (Ayers’) as
opposed to those of Burrus. Given Ayers’ extremely confusing
testimony, it is understandable that the district court went to
great lengths to question him in an effort to clarify his
testimony so that the jury, and the district court, could
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properly understand the substance of the testimony. We find no
abuse of discretion. See United States v. Castner, 50 F.3d
1267, 1272 (4th Cir. 1995) (holding that the district court’s
interruptions and questions fulfilled its duty to clarify
confused factual issues). Moreover, any prejudice suffered by
Burrus was cured by the district court’s numerous instructions,
instructing the jury that it should draw no inferences from its
questioning. See United States v. Martin, 189 F.3d 547, 555
(7th Cir. 1999) (noting that cautionary instructions may cure or
diminish any prejudice that could have resulted from district
court’s questioning).
For the reasons stated herein, the judgment of the district
court is affirmed. 2
AFFIRMED
2
Finding no error, we also reject Burrus’ argument that he
is entitled to relief under a cumulative error theory.
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