UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4071

ELBERT BLANGO,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-95-350-A)

Submitted: October 31, 1996

Decided: November 20, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Frank Salvato, Alexandria, Virginia, for Appellant. Helen F. Fahey,

United States Attorney, Thomas C. Bradley, Special Assistant 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Unpublished opinions are not binding precedent in this circuit.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).
OPINION

PER CURIAM:

In 1995, Inmate Elbert Blango was returning from a work detail to

Lorton Reformatory. During a routine shakedown, Officer Quispe

found a small amount of marijuana. Blango tried to grab the drug and

eat it. During the resulting scuffle, Blango struck Sergeant Wilkes. He

was indicted for two drug-related offenses and for assault on a correctional officer, in violation of 22 D.C. Code § 505(a). The drug counts

were dropped during trial, but Blango was convicted of the remaining

charge. He was sentenced to twelve months imprisonment consecutive to his existing sentence, followed by two years of supervised

release. Blango appeals that conviction.

I

Blango first contends that he was denied the right to adequately

cross-examine Officer Quispe. Blango attempted to impeach Quispe

with a disciplinary report from his employment file. After reviewing

the material, the district court ruled that the report, for insubordination

and violation of policy, was only marginally relevant to Quispe's

truthfulness.

While a criminal defendant has a fundamental right to effectively

cross-examine a witness, Davis v. Alaska, 415 U.S. 308, 315-16

(1974), the trial court may place reasonable limits on crossexamination to prevent harassment of or prejudice to the witness, and

questions of questionable relevance. Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986). We review such restrictions for abuse of discretion. United States v. Carty, 993 F.2d 1005, 1010 (1st Cir. 1993).

We conclude that the district court did not abuse its discretion in

its ruling on the disciplinary report. The contents of the report were

not related to the incidents of the case, or to Quispe's bias or general

truthfulness. Counsel for Blango fully cross-examined Quispe about

the incident in question. In addition, Quispe's testimony was primarily concerned with the drug charges--he testified that he was too concerned with recovering the marijuana on the floor to attend to the

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struggle between Wilkes and Blango. Wilkes and another officer testified and were cross-examined about the struggle. Therefore, this

claim entitles Blango to no relief.

II

In his closing argument, the prosecutor stated:

[T]he defendant will punch somebody in front of other officers; because he knows, one, that he will either get away

with it when he does it, or, two, they will hit him back, and

he will have a lawsuit against the District of Columbia. In

fact, that's probably what he's hoping for. He can make

some money out of it. Sure, he'll punch an officer in front

of others. It's a no-lose situation.

Blango argues that these comments were reversible error, as there was

no evidence that he had filed or intended such a lawsuit.

Counsel for Blango did not object to these statements. Absent plain

error, an improper closing argument by the prosecutor is not grounds

for reversal where the defendant has not objected. United States v.

DePew, 932 F.2d 324, 327-28 (4th Cir.), cert. denied, 502 U.S. 873

(1991). Therefore, we review the issue for plain error. Fed. R. Crim.

P. 52(b); United States v. Olano, 507 U.S. 725, 734 (1993). Plain

error is: (1) an error, (2) clear and obvious under existing law, (3)

which is so prejudicial as to affect the outcome of the proceedings,

and (4) which seriously affects the fairness, integrity, or public reputation of the proceedings. United States v. Hanno, 21 F.3d 42, 45 (4th

Cir. 1994).

Even if Blango could satisfy us that the first two elements of the

plain error standard were met, we are convinced that he could not

meet the last two elements. The prosecutor's closing argument was

not so prejudicial as to affect the jury's verdict. The quoted comment

was the only such statement in the prosecutor's remarks. The jury

heard no evidence that Blango had filed or intended to file a lawsuit

against the officers or the city. The prosecution presented ample evidence that Blango struggled with the officers and struck Sergeant

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Wilkes. Soon after the prosecutor's comments, the district court

reminded the jury that the arguments of counsel are not evidence.

Thus, Blango has not established prejudice which might have affected

the outcome. Nor do we conclude that the fairness or public integrity

of the trial was affected.

III

During jury selection, the district court noted a shortage of jurors.

At a bench conference, the judge and counsel for both sides agreed

to recall a juror previously excused for hardship. After defense counsel finished exercising his peremptory challenges, they were again

one juror short. The judge suggested either agreeing to use eleven

jurors or continuing the case to another day. Counsel for Blango, after

calling the defendant to the bench, suggested restoring one of the

jurors he had struck. All parties agreed to this solution, and the trial

proceeded.

Blango now argues that he should have been present at the bench

during the entire discussion, and that the subsequent use of a struck

juror is improper. Any right Blango had to be present at the bench

conference during jury selection, he waived by failing to raise an

objection in the district court. United States v. Ford, 88 F.3d 1350,

1369 (4th Cir. 1996); see United States v. Gagnon, 470 U.S. 522, 528

(1985).

As to the reinstatement of the jurors, defense counsel suggested or

agreed to both contested actions, foregoing other options suggested by

the district court. Therefore, he is entitled to no relief. See United

States v. Evans, 635 F.2d 1124, 1127-28 (4th Cir. 1980) (substituting

alternate juror after deliberations had begun did not prejudice consenting defendant), cert. denied, 452 U.S. 943 (1981).

We affirm Blango's conviction and sentence. 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

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