UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5443

MICHAEL WILLS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-94-515-A)

Argued: September 27, 1996

Decided: October 29, 1996

Before WILKINSON, Chief Judge, and RUSSELL and HALL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Hilton Wise, Fairfax, Virginia, for Appellant.

Markus Heinz Meier, Special Assistant United States Attorney, FEDERAL TRADE COMMISSION, Washington, D.C., for Appellee. ON

BRIEF: Helen F. Fahey, United States Attorney, Casey R. Triggs,

Special Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael Wills appeals his conviction and 28-month sentence for

possessing a homemade knife, or "shank," at the District of Columbia's prison in Lorton, Virginia. Finding no error, we affirm.

I.

According to the government's evidence at trial, on November 29,

1994, correctional officers at Lorton received an anonymous note.

The note stated that defendant Michael Wills was in possession of a

shank because he had been stabbed by a fellow inmate. A search of

Wills and his cell was ordered.

Officers Cooper and Dunmore attempted to search Wills in a small

room in the cell block. When Dunmore noticed a pointed object in

Wills' underwear, Wills became agitated. The officers feared that he

would resist, and so they had him put his clothes back on and took

him to the control center, where he could be searched in a safer, more

secure environment.

At the control center, the shift commander, Captain Johnson,

assisted Cooper in the strip search. After Wills had disrobed down to

his underwear, he pulled out a shank and said, "This is what you're

looking for."

Wills was charged with prisoner possession of a shank, in violation

of Va. Code § 53.1-203(4), assimilated to acts at Lorton by 18 U.S.C.

§ 13. He was convicted following a jury trial and was sentenced to 28

months in prison, a period of supervised release, and a $50 special

assessment. He appeals.

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II.

Wills was serving time for a 1989 assault with a knife, and had also

been convicted in 1992 for stabbing another inmate with a shank. In

February 1993, during a shakedown of his cell, two shanks had been

found hidden in a light fixture. The government sought to make broad

use of these prior acts at trial. In its discretion, the district court kept

the government reined in, but all of the evidence was eventually

admitted for one purpose or another. Wills contends that its admission

was reversible error. We disagree.

A day before trial, the government served notice of its intent to

offer, and a request to admit, evidence of the prior convictions and

acts under Fed. R. Evid. 404(b). The district court's pretrial order had

required that any such notice be served at least five days before trial.

Wills moved in limine to exclude the evidence, and the government

withdrew its request to use the evidence in its case-in-chief. The government presented its case and rested.

Then the defendant took the stand in his own defense. Once he

became a witness, the bases of possible admissibility widened. The

government asked the court's permission to introduce the evidence to

impeach Wills' credibility. The district court made a wise ruling --

the government could offer only the fact of Wills' two prior felony

convictions under Rule 609, but no underlying details, because of the

risk of unfair prejudice from the jury's knowing of Wills' prior use

of knives and shanks. See United States v. Sanders, 964 F.2d 295, 298

(4th Cir. 1992) (unfair prejudice arising from similarity of prior

crimes may substantially outweigh impeachment value; if so, courts

should exclude the evidence or limit it to the fact of conviction without more).

Wills told his story: the officers planted the shank in his shirt during the strip search, in retaliation for his having filed a lawsuit against

some of them. Then defense counsel asked Wills whether he had ever

possessed a shank before, and Wills said yes, but just not on the day

charged.1

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1 Wills' admission distinguishes this case from Sanders. In that case, it

was the government, and not the defendant, that first introduced evidence

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The government asked the court to reconsider its limitations on the

use of the prior convictions. Reasoning that Wills' admission had

removed the unfair prejudice issue, the court allowed the government

to inquire about Wills' motive for prior possession of a shank and the

factual details of his convictions. Wills freely admitted those details,

but then he slipped up by testifying that the incident resulting in his

second conviction was the only time he had possessed a shank at Lorton. The government then was permitted to ask Wills about the two

shanks found in his cell during the 1993 shakedown.

The rules permit the admission of evidence of prior convictions and

acts for certain purposes, and the district court carefully restricted it

to the rules' boundaries (and gave the appropriate limiting instructions, we should add). The district court's rulings on evidence are

reviewed for abuse of discretion. We see no abuse of discretion.

III.

A.

Wills' other two arguments need not detain us long. He first asserts

that the district court somehow confused the jury about the meaning

of reasonable doubt.

During deliberations, the jury asked for a definition of reasonable

doubt. Our decision in United States v. Reives , 15 F.3d 42 (4th Cir.),

cert. denied, 114 S.Ct. 2679 (1994), had just been announced, and the

district court proposed to counsel to follow it, i.e., the court would

simply repeat its original instruction about reasonable doubt. There

was no objection. The court then addressed the assembled jury:

 I'm going to repeat to you the definition that I gave to you

at the outset. In doing so, I want you to remember that you

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of the inmate's prior possession and use of shanks. We held that the

details of these events (which had resulted in convictions) provided little

additional impeachment value under Rule 609, but added a great deal of

unfair prejudice. Sanders, 964 F.2d at 298. Here, up until Wills' admission, the district court had done just what Sanders permitted: limiting the

evidence of prior convictions for similar conduct to the bare fact of conviction.

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should not take this instruction out of context but you should

consider all of the instructions as a whole.

The court reread its instruction, again with no objection. Review is

therefore for plain error. United States v. Olano, 507 U.S. 725 (1993).

Wills argues that, by labeling its reread instruction as a "definition," the court misled the jury into believing it was getting something

different than it heard the first time. This argument is specious. Be it

labeled an instruction or a definition, it was a"repeat" of the words

used "at the outset," and its content was unobjectionable. There was

no error, plain or otherwise.

B.

Wills' last argument relates to his sentence. Under the Assimilated

Crimes Act, the punishment must be "like" that imposed in state

courts. 18 U.S.C. § 13(a). The sentencing guidelines apply to the fullest extent possible, subject to the minimum and maximum in the state

statute. United States v. Young, 916 F.2d 147, 150 (4th Cir. 1990). In

Virginia, prisoner possession of a shank is a Class 6 felony, punishable by (i) one to five years in prison, with no fine; or (ii) up to twelve

months in prison, a fine of up to $2,500, or both. Va. Code § 18.2-

10(f). Virginia also has a $30 charge similar to the federal $50 special

assessment. Va. Code § 19.2-368.18.

Wills was sentenced to 28 months and no fine, which would be

proper under the assimilated state law. He argues, however, that the

extra $20 in the special assessment is a "fine," and his imprisonment

should therefore be capped at 12 months.2 

When the special assessment was first enacted, some courts,

including this one, held that it could not be imposed in an Assimilated

Crimes Act case unless state law also provided for it. See, e.g., United

States v. King, 824 F.2d 313, 315 (4th Cir. 1987). In response, Congress added 18 U.S.C. § 3013(d), which specifically made the $50

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2 He does not advocate the less drastic "cure": capping his assessment

at $30.

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assessment applicable to those cases. It follows, then, that state law

is now wholly irrelevant on the issue, and the $50 does not make

Wills' sentence "unlike" that to which he would be subject in state

court.

The judgment of the district court is affirmed.

AFFIRMED

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