US v. Charles Ellis, No. 07-5117 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5117 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES ELLIS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 sentence Ellis imposed for appeals his conducting convictions straw and purchases 324-month 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. errors are subject to plain error review. Olano, 507 U.S. 725, 731-33 (1993). Therefore, the United States v. 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, 2 inflammatory, and unnecessarily Ellis tied contends him that to this at least amounted four to a unspecified character crimes. attack deprived him of his Fifth Amendment right to a fair trial. and 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 guns. the firearms recovered from crime sites as crime Ellis does not contest that the firearms were recovered from crime scenes and there was no testimony that Ellis was involved in associated any with particularly overt the one acts guns. which related to Therefore seriously the there affects crimes is no the later error, 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 3 a new trial to cure the 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 personal belief occurs in the when the prosecutor credibility of a indicates witness. a 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 trustworthiness from solicitation government impermissible vouching. of witnesses assertions of may be also Id. (citing United States v. Piva, 870 F.2d 753, 760 (1st Cir. 1989)). Impermissible vouching and necessarily mandate retrial, however. bolstering do not Instead, [t]he relevant question is whether the prosecutor[ s] comments so infected the trial with unfairness as to denial of due process. quotation marks make the resulting conviction a Sanchez, 118 F.3d at 198 (internal 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. 4 The Gaskins Assistant whether he United agreed illegally sell guns. to Attorney Ellis s (AUSA) suggestion Gaskins simply replied, [n]o. then asked, [w]hy not? answer. States asked that he The AUSA The Government did not linger over his Nor did the AUSA refer to the answer in his closing statement. The testimony does bolstering requiring remand. not implicate impermissible 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 Gaskins status as a felon. the jury s attention from 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. was no affected contemporaneous the fundamental Ellis states that, although there objection made fairness of to the the comment, trial it because it involved the five strongest witnesses against him. A infect[] the prosecutor s trial with improper closing unfairness conviction a denial of due process. 5 as to argument make the may so resulting 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 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 require a new trial. in cumulative error that would 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. 6 586, 597 whether (2007), a and sentence that closer the to court the did not statutory fully consider 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. In Gall and in Id. 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. failing Either to consider treating the § the Guidelines 3553(a) factors mandatory adequately or would Gall, 128 S. Ct. constitute a significant procedural error. at 597. as However, in this case, after stating its belief that the Guidelines range was too severe, the court went on to impose a sentence Guidelines three range. years below Nothing the 360-month the record in 7 low end indicates of the that the court believed Although Ellis that claims it could that the not vary court further erroneously downward. 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. court considered sentence. the § 3553(a) factors in Finally, the fashioning the 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 8
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