                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-5209



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOHN LEWIS MASSEY,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:04-cr-00499)


Submitted:   October 1, 2007             Decided:   December 11, 2007


Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Stacey D. Haynes, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Following a jury trial, John Lewis Massey was convicted

of one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (2000).

After being sentenced to 295 months’ imprisonment, Massey timely

noted an appeal.     On appeal, Massey contests the denial of his

motion to suppress the inculpatory statement he gave while in

custody and the denial of his motion for a mistrial.               For the

reasons outlined below, we affirm.

           Taken in the light most favorable to the government,

Evans v. United States, 504 U.S. 255, 257 (1992), the evidence

adduced at trial established the following facts. On September 27,

2002, at approximately 4:00 a.m., Massey approached the apartment

building where Angela Patterson (“Angela”), Massey’s ex-girlfriend,

and   Angela’s   mother,   Mary   Patterson   (“Mary”),   lived.     After

observing that Massey had a firearm, Angela called the police.

Shortly thereafter, Mary witnessed Massey discharge the firearm.

           Hearing the 911 call over the police radio, Richard

Imboden, a security guard employed by the leasing company for the

apartment complex, immediately responded.           Imboden saw Massey

running through the complex and, as he gave chase, observed Massey

remove a gun from the waistband of his pants and throw it over a

fence into a wooded area.          Upon their arrival on the scene,

Lancaster Police Department Officers Grant and McCowan searched the


                                   - 2 -
wooded area and recovered the firearm approximately thirty minutes

later.

          While in custody at the police station, Massey asked to

speak with Lancaster Police Department Detective Pat Parsons.

Prior to speaking with Massey, Parsons used the Department’s notice

of rights and waiver of rights form (“waiver form”) to advise

Massey his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

Massey indicated that he understood the rights as read to him by

Parsons, was willing to waive those rights, and that he wished to

talk with Parsons.   Parsons gave Massey the waiver form so he could

read the waiver provision; Massey signed the waiver form and

Parsons witnessed the signature.

          At Massey’s request, Parsons wrote Massey’s statement,1

in which Massey admitted he owned the gun retrieved by the police.

In signing the statement, Massey averred he had read the statement,

and that it was true and correct to the best of his knowledge.

Massey made no changes to the statement as written by Parsons.

          Prior to the commencement of trial, Massey moved to

suppress his statement.    Massey maintained Parsons did not read

Massey his Miranda rights and that Parsons did not provide Massey




     1
      At Parsons’ request, Massey initialed the statement where it
indicated Parsons was writing the statement at Massey’s direction.


                               - 3 -
the waiver form.2       Massey further maintained that, though he signed

the written statement, he did not know or understand its contents

because    he   could    not    read     or   write.       Massey     further   denied

admitting the gun was his.

            To refute Massey’s contention that he was illiterate, the

Government      presented      several    letters      Massey    sent   Angela    from

prison.    Although Massey admitted signing and sending the letters,

he denied writing them himself.                  According to Massey, he had

dictated the letters to another inmate and later copied them so

they would be in his own handwriting.

            At the suppression hearing, Parsons testified that he

read the entire waiver form aloud to Massey — including the waiver

provision — and that Massey signed it.                 Although Parsons conceded

he did not inquire as to Massey’s ability to read or write, Parsons

testified he gave Massey the statement to read and sign, which

Massey did.

            In denying Massey’s motion, the district court found that

Parsons    informed     Massey     of    his     Miranda    rights,     that    Massey

understood      those   rights,     and       that   Massey     had   knowingly   and

voluntarily waived them. Crediting Parsons’ testimony that he read

the waiver form to Massey, the district court relied on Massey’s

testimony that he understood documents read aloud to buttress the



     2
        Massey acknowledged that his signature appeared on the waiver
form.

                                         - 4 -
court’s conclusion that the waiver was knowingly entered and that

the statement was voluntarily given.             After his motion to suppress

was denied, Massey proceeded to trial, where he was convicted of

the charged offense.

              Massey’s first claim on appeal restates the argument

raised and rejected by the district court at the suppression

hearing: that, because he cannot read or write, Massey did not

understand the waiver; thus, because he did not knowingly waive his

Miranda rights, the inculpatory statement was not voluntary.3 This

court reviews the district court’s factual findings underlying the

adjudication of a motion to suppress for clear error, and the

district court’s legal determinations de novo.                  United States v.

Grossman, 400 F.3d 212, 216 (4th Cir. 2005).               When a suppression

motion has been denied, this court reviews the evidence in the

light most favorable to the Government.             Id.

              Massey’s    challenge   to   the    denial   of    his    motion   to

suppress is entirely predicated on his position that the district

court erred in reaching its credibility determinations.                   However,

this       court   does   not   review     the     factfinder’s        credibility

determinations.      Columbus-America Discovery Group v. Atlantic Mut.

Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995); see also United States

v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).              Given that factual


       3
      Massey does not contend that the waiver form was inadequate,
and even a cursory review thereof reveals that it conformed to the
dictates of Miranda.

                                      - 5 -
issues involved in a motion to suppress are reviewed for clear

error and that this court will not second-guess the district

court’s credibility determination, this claim fails.

             Massey next challenges the district court’s denial of his

motion for a mistrial.    Massey’s motion was predicated on Angela’s

testimony on cross-examination regarding how certain she was that

Massey was carrying a gun.          The challenged testimony was as

follows:

      Q:     It was a silver gun with a brown handle?
      A:     Uh-huh (affirmative response)
      Q:     Did you notice anything else about the gun?
      A:     Un-huh (negative response). John carried numerous guns,
             anyway.

Defense counsel immediately objected; the district court struck the

last statement and instructed the jury that it could not be

considered as evidence.

             Despite the limiting instruction, defense counsel moved

for a mistrial.      Acknowledging the improper purpose that likely

prompted the statement, the district court nonetheless denied the

motion, noting it would give a further curative instruction.         When

the   jury   returned,   the   district   court   issued   the   following

instruction:

      Ladies and gentlemen of the jury, the only issue in this
      case is whether or not the government can prove beyond a
      reasonable doubt whether or not Mr. Massey possessed a
      firearm and ammunition on September 27th, 2002. I am
      striking and have stricken and want to make sure you
      understand that the statement volunteered by Ms.
      Patterson during her testimony before the break was
      inadmissible.   Even though you heard it, you may not

                                  - 6 -
        consider it at all and it may not be part of your
        deliberations at all. It was improper . . . . You may
        not consider this in deciding what the facts are in this
        case in any manner whatsoever.

              On appeal, Massey contends that, though the district

court properly struck this testimony from the record, it erred in

denying the motion for a mistrial because this improper testimony

went     to   “the   only   critical    fact   at   trial,   which   was   not

conclusively proven by the remaining evidence.”

              We review the denial of a motion for a mistrial for abuse

of discretion.       United States v. Dorlouis, 107 F.3d 248, 257 (4th

Cir. 1997).      “In order for the trial court’s ruling to constitute

such an abuse of discretion, the defendant must show prejudice; no

prejudice exists, however, if the jury could make individual guilt

determinations by following the court’s cautionary instructions.”

United States v. Dorsey, 45 F.3d 809, 817 (4th Cir. 1995) (internal

citation omitted).      Reversal is required only if there is a clear

abuse of discretion and a “‘reasonable possibility that the jury’s

verdict was influenced by the material that improperly came before

it.’”    United States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992)

(quoting United States v. Barnes, 747 F.2d 246, 250 (4th Cir.

1984)).

              We conclude the mere utterance of the statement did not

require that the district court declare a mistrial.            The statement

was an isolated remark that was stricken immediately after it was

offered, was not repeated or referenced by the Government, and was

                                       - 7 -
the subject of an appropriate cautionary instruction. Moreover, in

light of the overwhelming evidence of Massey’s guilt, it cannot

reasonably be contended that, but for this statement, the jury

would have acquitted Massey.     Through the testimony of the three

eye-witnesses   —   Angela,   Mary,   and   Imboden   —   the   Government

conclusively established Massey’s possession of the firearm on the

morning of September 27, 2002.        Because the Government presented

ample evidence of Massey’s guilt, the district court properly

denied the motion for a mistrial.4

          Accordingly, we affirm Massey’s conviction.           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




     4
      Massey analogizes his case to United States v. Tate, 715 F.2d
864 (4th Cir. 1983), in which this court vacated the defendant’s
conviction because the district court improperly admitted evidence
regarding the defendant’s prior possession of a firearm. Id. at
865-66.
     The circumstances here, however, are readily distinguishable
from Tate. First and foremost, unlike in Tate where the evidence
of the defendant’s prior bad act was admitted, the district court
here struck the challenged statement from the record. Further, the
district court twice instructed the jury that it could not consider
the statement as part of the body of evidence. As this court has
repeatedly held, “[t]he law assumes that, except in extraordinary
circumstances, jurors follow a court’s instructions.”      Jones v.
Polk, 401 F.3d 257, 264 (4th Cir. 2005).      Tate simply does not
afford Massey any relief.

                                 - 8 -
