UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5011

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES JEFFREY DUNCAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Fox, Senior

District Judge. (7:06-cr-00079-F)

Submitted: October 22, 2008 Decided: June 19, 2009

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. George E. B. Holding, United States Attorney, Anne M.

Hayes, Jason H. Cowley, Assistant United States Attorneys, Raleigh,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

James Jeffrey Duncan challenges his conviction for

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (2000). Duncan argues on appeal that the

district court committed plain error by admitting evidence at trial

that he located the firearm and turned it over to state officials

because those actions, taken pursuant to a domestic violence

protective order, violated his Fifth Amendment privilege against

self-incrimination.

Because no objection was made to the admission of the

evidence during trial, we review the claim for plain error. Fed.

R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32

(1993). Duncan thus must show: (1) there was error; (2) the error

was plain; and (3) the error affected his substantial rights. Id.

at 732-34. “‘Plain’ is synonymous with ‘clear’ or, equivalently,

‘obvious.’” Id. at 734. “At a minimum, a court of appeals cannot

correct an error pursuant to Rule 52(b) unless the error is clear

under current law.” Id. When the conditions in Rule 52(b) are

satisfied, we may exercise our discretion to notice the error only

if the error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. at 736 (internal

quotation marks omitted). “Central to this inquiry is a

determination of whether, based on the record in its entirety, the

proceedings against the accused resulted in a fair and reliable
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determination of guilt.” United States v. Cedelle, 89 F.3d 181,

186 (4th Cir. 1996).

The Self-Incrimination Clause of the Fifth Amendment

provides that “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself.” U.S. Const. amend. V, cl.

3. “[T]he privilege protects a person only against being

incriminated by his own compelled testimonial communications.”

Doe v. United States, 487 U.S. 201, 207 (1988) (internal quotation

and citations omitted). Although the privilege is most often

applied to compelled statements, it also “applies to acts that

imply assertions of fact” that are testimonial in nature. Id. at

209. “The difficult question whether a compelled communication is

testimonial for purposes of applying the Fifth Amendment often

depends on the facts and circumstances of the particular case.”

Id. at 214-15 (citation omitted). A compelled action is

nontestimonial if it is not compelled for the purpose of obtaining

knowledge that the person taking the action might have. See id. at

217 (citation omitted). 

“[I]n the ordinary case, if a witness under compulsion to

testify makes disclosures instead of claiming the privilege, the

government has not ‘compelled’ him to incriminate himself.”

Minnesota v. Murphy, 465 U.S. 420, 427 (1984) (internal quotation

and citation omitted). “[A]n individual may lose the benefit of

the privilege without making a knowing and intelligent waiver.”
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Id. at 428 (internal quotation and citation omitted). Under a

well-known exception, courts must exclude “incriminating statements

obtained during custodial interrogation unless the suspect fails to

claim the Fifth Amendment privilege after being suitably warned of

his right to remain silent and of the consequences of his failure

to assert it.” Id. at 430 (citing Miranda v. Arizona, 384 U.S.

436, 467-69, 475-77 (1966)). The privilege also need not be

claimed when the government seeks to induce a person, either

expressly or by implication, “to forgo the Fifth Amendment

privilege by threatening to impose economic or other sanctions

capable of forcing the self-incrimination which the Amendment

forbids.” Murphy, 465 U.S. at 434 (internal quotation and citation

omitted). The person must have been “deterred from claiming the

privilege by a reasonably perceived threat of [sanctions].” Id. at

439.

In this case, Duncan’s production of the gun is

nontestimonial, as no evidence suggests he was compelled to produce

it for the purpose of revealing his knowledge or admission that he

possessed a firearm. Nor were Duncan’s actions “compelled” because

Duncan never claimed the Fifth Amendment privilege in response to

the domestic violence protective order directing him to turn over

a firearm to state officials, and no evidence suggests the

Government sought to induce forfeiture of the privilege by

threatening sanctions through service of the protective order.
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Duncan was never arrested or otherwise subjected to custodial

interrogation in connection with the protective order. The

protective order stated that Duncan could be imprisoned for up to

thirty months if he failed to comply with the order by turning over

a firearm. However, it does not appear that the state intended to

induce Duncan to incriminate himself by issuing the protective

order or that Duncan was deterred from claiming the privilege

against self-incrimination by the sanctions described in the order.

The ostensible purpose of the order was to protect the person whose

complaint prompted the order from domestic violence, and Duncan

appears to have been unaware that he would incriminate himself by

admitting that he possessed a firearm. In fact, Duncan disclaimed

possession of the firearm or knowledge of its whereabouts when he

was served with the protective order, but helped law enforcement

officers search his residence for the firearm when he was served

with the order. Duncan also disclaimed ownership or possession of

the firearm when he testified on his own behalf at trial. Because

the admission of evidence that Duncan located the firearm and

turned it over to state officials did not clearly violate his Fifth

Amendment privilege against self-incrimination under current law,

its admission did not constitute plain error.

For the reasons stated above, we affirm the district

court’s judgment. We dispense with oral argument because the

facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the

decisional process.

AFFIRMED