36 F3d 1095 United States v. Scott

36 F.3d 1095

UNITED STATES of America, Plaintiff-Appellee,
Gerald Raynard SCOTT, Defendant-Appellant.

No. 94-5047.

United States Court of Appeals, Fourth Circuit.

Submitted: August 25, 1994.
Decided: September 23, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CR-93-101-BR)

C. Winston Gilchrist, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant.

Janice McKenzie Cole, United States Attorney, John Howarth Bennett, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.



Before RUSSELL and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.



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Gerald Raynard Scott appeals from the district court judgment convicting him of violations of 18 U.S.C.A. Sec. 2119 (West 1984 & Supp.1994) and 18 U.S.C.A. Sec. 2312 (West 1970 & Supp.1994). We affirm.


Scott raises only one issue on appeal, and the facts underlying the claim are undisputed. Scott's counsel's closing argument conceded guilt regarding the Sec. 2312 count but argued that the prosecution's proof of use of a real firearm required for a Sec. 2119 conviction was insufficient. The prosecution argued that its eyewitness testimony that the gun was real was the only evidence in the case and was "undisputed" and "unchallenged."


Because the language of the statements was not "manifestly intended to be, or [ ] of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify," the remarks were not improper comment. United States v. Whitehead, 618 F.2d 523, 527 (4th Cir.1980) (citation omitted) (emphasis in original); see also United States v. Jenkins, 544 F.2d 180, 180-81 (4th Cir.1976) (statements that evidence was "uncontradicted" not improper), cert. denied, 431 U.S. 931 (1977). Further, defense counsel invited the comments (made during the prosecution's rebuttal) by contending that the government had failed to show that the gun was real.*


Therefore, we affirm the judgment. 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.



We note that Scott did not object to the prosecution's comments in this respect when they were first made in the prosecution's closing argument. Thus, the substance of the objected-to comments was already before the jury because counsel failed to object to the comments