US v. William Black, No. 10-5143 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5143 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM JOSEPH BLACK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:09-cr-00131-FL-1) Submitted: November 22, 2011 Decided: December 14, 2011 Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Joseph Black was convicted, following a jury trial, of nine counts of receipt of child pornography, in violation of 18 U.S.C.A. § 2252(a)(2) (West Supp. 2011), and two counts of possession of child pornography, in violation of 18 U.S.C.A. § 2252(a)(4)(B) (West Supp. 2011). The district court sentenced Black to 262 months imprisonment and a lifetime term of supervised release. This appeal timely followed. Black s sole appellate contention is that the district court erred in denying his motion for a mistrial, which was predicated on the prosecutor s questioning of a law enforcement witness regarding Black s post-Miranda 1 silence. We review a district court s refusal to grant a mistrial for an abuse of discretion. See United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009) (providing standard of review), cert. denied, 130 S. Ct. 2128 (2010). Black argues that, while conducting his direct examination of State Bureau of Investigation Agent Mike Smith, the prosecutor engaged in a line of questioning that impinged on Black s right to remain silent, in violation of Doyle v. Ohio, 426 U.S. 610 (1976). We agree with the Government that there was no Doyle violation in this case. 1 The facts of this case are Miranda v. Arizona, 384 U.S. 436 (1966). 2 very similar to those in Greer v. Miller, 483 U.S. 756, 764-65 (1987), in that, like Greer, the district court here sustained the objection to the improper questioning permit the inquiry that Doyle forbids. and thus did not Greer, 483 U.S. at 764. We are not persuaded by Black s attempts to distinguish his case from Greer. Concluding that there was no Doyle violation does not end our inquiry, however. As the Supreme Court explained in Greer, [a]lthough the prosecutor s question did not constitute a Doyle violation, the fact remains that the prosecutor attempted to violate the rule of Doyle by asking an improper question in the presence of the jury. Id. at 765. An attempted Doyle violation amounts to a claim of prosecutorial misconduct, which violates due process if it is so egregious that it effectively denies the defendant a fair trial. Id. When reviewing such a claim, we must evaluate the challenged remark in at 766 (internal conclude the prosecutor s context. Id. quotation marks omitted). We readily questioning, while improper, was not so egregious as to render Black s trial fundamentally unfair. limited, the and district prompt objection to it. court crafted a First, the court improper sustained questioning defense was counsel s With the parties input, the district curative instruction, 3 ordering the jury to disregard the impermissible attempted answers by Smith. line of questioning and any This court generally follow[s] the presumption that the jury obeyed the limiting instructions of the district court. 451 (4th Cir. United States v. Williams, 461 F.3d 441, 2006) (internal quotation marks omitted). Further, the Government did not otherwise mention or reference Black s post-arrest silence. Finally, the record is replete with the evidence Accordingly, to we support hold the jury s district court guilty did not verdicts. abuse its discretion in denying Black s motion for a mistrial. For the foregoing court s judgment. 2 facts and materials legal before reasons, we affirm the district We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 2 Black does not raise any arguments on appeal relevant to his 262-month sentence. 4
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