UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4724

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EMMETT LEE CAHOON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at New Bern. David A. Faber, Chief

District Judge. (CR-02-59)

Submitted: April 30, 2004 Decided: June 17, 2004

Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David C. Sutton, JAMES & SUTTON, P.A., Greenville, North Carolina,

for Appellant. Frank D. Whitney, United States Attorney, John H.

Bennett, John Stuart Bruce, Christine Witcover Dean, Assistant

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Following a jury trial, Emmett Lee Cahoon was convicted

on two counts of possession of stolen firearms and aiding and

abetting the same, in violation of 18 U.S.C. §§ 922(j), 2 (2000).

The district court sentenced Cahoon to concurrent twenty-one month

prison terms on each count. Cahoon timely appealed. 

The sole issue on appeal is whether the district court

should have granted Cahoon’s motion for a new trial because the

government improperly brought a number of guns into the courtroom

that proved to be inadmissible. To obtain a new trial on a claim

of prosecutorial misconduct, a defendant must show that the

prosecutor’s conduct or remarks were improper, and that the conduct

or remarks prejudicially affected his substantial rights so as to

deprive him of a fair trial. United States v. Scheetz, 293 F.3d

175, 185 (4th Cir.), cert. denied, 537 U.S. 963 (2002). We review

the denial of a motion for a new trial for abuse of discretion.

United States v. Russell, 221 F.3d 615, 619 (4th Cir. 2000).

We find, as did the district court, that the prosecution

acted improperly in bringing the guns into the courtroom. To

determine whether this improper conduct prejudicially affected

Cahoon’s substantial rights so as to deprive him of a fair trial,

this Court considers several factors, including:

(1) the degree to which the prosecutor’s

[conduct] had a tendency to mislead the jury

and to prejudice the defendant; (2) whether

the [conduct was] isolated or extensive; (3)
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absent the [conduct], the strength of

competent proof introduced to establish the

guilt of the defendant; (4) whether the

[conduct was] deliberately placed before the

jury to divert attention to extraneous

matters; (5) whether the prosecutor’s [conduct

was] invited by improper conduct of defense

counsel; and (6) whether curative instructions

were given to the jury.

Scheetz, 293 F.3d at 186. Given the substantial evidence

supporting the jury’s guilty verdict, the fact that the district

court found as a fact that the guns were brought into the courtroom

in good faith, and taking the remaining factors into consideration,

we find that the prosecutor’s conduct did not prejudicially affect

Cahoon’s substantial rights so as to deprive him of a fair trial.

Accordingly, we conclude that the district court did not abuse its

discretion in denying Cahoon’s motion for a new trial based on

prosecutorial misconduct. 

For these reasons, we affirm Cahoon’s convictions. 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