UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4762

GEORGE P. SMITH,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CR-00-343)

Submitted: June 17, 2002

Decided: July 17, 2002

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

S. Neil Stout, FLAX & STOUT, Richmond, Virginia, for Appellant.

Paul J. McNulty, United States Attorney, John S. Davis, Assistant

United States Attorney, Richmond, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

George P. Smith appeals his 384-month sentence for conspiracy to

distribute and possess with intent to distribute fifty grams or more of

cocaine base, in violation of 21 U.S.C.A. § 846 (West 2001); possession with intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a) (West 1999), and aiding and abetting in violation of 18

U.S.C. § 2 (1994); possession of a firearm during and in relation to

a drug trafficking offense, in violation of 18 U.S.C.A. § 924(c) (West

2000); and possession of a firearm by a convicted felon, in violation

of 18 U.S.C.A. § 922(g)(1) (West 2000). Smith was tried before a

jury and convicted on all counts.

On appeal, Smith argues that the court’s failure to instruct the jury

not to draw an adverse inference based on his decision not to testify

on his own behalf denied him his Fifth Amendment protection against

self-incrimination as defined in Carter v. Kentucky, 450 U.S. 288

(1981). 

Failure to give a "no adverse inference" instruction to the jury is

subject to harmless error analysis. United States v. Burgess, 175 F.3d

1261, 1266 (11th Cir. 1999); Hunter v. Clark, 934 F.2d 856, 860-61

(7th Cir. 1991); Finney v. Rothgerber, 751 F.2d 858, 864 (6th Cir.

1985); Richardson v. Lucas, 741 F.2d 753, 756 (5th Cir. 1984). However, when the defendant fails to timely object to the jury instructions,

we review for plain error. United States v. Brand, 80 F.3d 560, 567

(1st Cir. 1996); United States v. Ramirez, 810 F.2d 1338, 1344 (5th

Cir. 1987). In order to overturn Smith’s conviction, this court must

find plain error that affects substantial rights and seriously affects the

fairness, integrity or public reputation of the judicial proceeding. Fed.

R. Crim. P. 52(b). In order to satisfy this requirement, Smith has the

burden of showing that the instruction prejudiced him. United States

v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998). 

Although the court plainly erred by failing to instruct the jury not

to draw an adverse inference based on Smith’s failure to testify, Smith

has not shown that he was prejudiced by this error, as the Government

2 UNITED STATES v. SMITH
did not comment on his failure to testify and the evidence of Smith’s

guilt was overwhelming. 

Accordingly, we affirm Smith’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

UNITED STATES v. SMITH 3