UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4793

ANTHONY MITCHELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-97-130-A)

Submitted: September 8, 1998

Decided: October 6, 1998

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gregory Bruce English, ENGLISH & SMITH, Alexandria, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, Peter D.
Hardy, Special Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Anthony Mitchell appeals his conviction for one count of assault
resulting in serious bodily injury, in violation of 18 U.S.C.A.
§ 113(a)(6) (West Supp. 1998) (count two of the indictment). Mitchell
was also indicted for one count of assault with intent to kill while
armed, in violation of 18 U.S.C.A. § 113(a)(1) (West Supp. 1998)
(count one), and one count of prisoner possession of a shank, in viola-
tion of 18 U.S.C.A. § 13 (West Supp. 1998), assimilating Va. Code
Ann. § 53.1-203(4) (Michie 1994) (count three). At his first jury trial,
the jury found Mitchell guilty of count three. The court declared a
mistrial as to the remaining counts because the jury had deadlocked
on them. The Government retried Mitchell on counts one and two.
The jury found Mitchell guilty of count two and again deadlocked on
count one. The Government moved to dismiss count one without prej-
udice, which the district court granted. The district court sentenced
him on counts two and three, and Mitchell filed a timely notice of
appeal. He appeals the conviction on count two only, alleging that the
district court erred in making several evidentiary rulings, in failing to
ask a requested question during the jury venire, and in failing to grant
a mistrial for a Brady violation in the first trial. Finding no error, we
affirm.

The charges arose from an incident that occurred at the maximum
security facility of the Lorton Correctional Complex. Correctional
officers took several inmates to the recreation yard including Mitchell
and Tyrone Johnson. Shortly thereafter, Mitchell stabbed Johnson
several times, causing him serious injury. Several officers testified at
trial that they saw Mitchell lunging toward Johnson and Johnson
backing away from Mitchell in a crawling fashion. Officers also testi-
fied that they saw Mitchell throw an item over the fence. Officers
found a shank in the area where Mitchell threw the item. At trial,
Mitchell testified and alleged that he was acting in self defense.

Mitchell first alleges that the district court erred by failing to grant
him a mistrial after Major Steven Smith, the then acting warden for
operations at Lorton, described the maximum security facility at Lor-
ton as "a facility surrounded by a wall, housing 600 inmates, which

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are the worst . . . ." (JA 559). The court gave a curative instruction
to the jury immediately after Smith's remark and stated "[a]ll right,
ladies and gentleman, disregard the testimony concerning the nature
of the individuals in the Maximum Security [facility]. It is not really
what the case is about. It is unnecessary for your consideration of the
facts before you." (JA 560-61). Mitchell claims that the curative
instruction was completely inadequate and makes a conclusory argu-
ment that the remark denied him a fair trial.

The remark cannot be found to have deprived Mitchell of a fair
trial. We review the court's decision to grant or deny a mistrial for
an abuse of discretion. See United States v. Dorsey, 45 F.3d 809, 817
(4th Cir. 1995). A district court abuses its discretion only when the
defendant demonstrates prejudice from the remark and that a jury
could still find guilt while following the curative instruction. Id.
(quoting United States v. West, 877 F.2d 281, 287-88 (4th Cir. 1989)).
A review of the record does not suggest any probability that the jury
did not follow the instruction or that the remark was highly prejudi-
cial.

Next, Mitchell alleges that the district court erred by preventing
him from cross-examining Corporal Day regarding a prior reprimand.
We review the district court's evidentiary rulings for an abuse of dis-
cretion. See United States v. ReBrook, 58 F.3d 961, 967 (4th Cir.
1995). The Government gave the defense a letter disclosing that Cor-
poral Day received a letter of admonition for inexcusable negligence
of duty for failing to strip search inmates prior to the inmates going
out into the recreation yard. The reprimand was for one occasion on
which Day failed to search inmates and one of the inmates then pro-
duced a shank from his clothing in the recreation yard.

The Government called Corporal Day to testify. On direct exami-
nation, Day testified that he did not remember whether he searched
the victim on the day of the stabbing before Mitchell entered the yard.
He stated that, if he did not, another officer would have performed a
strip search on Mitchell because that was the standard procedure.
During cross-examination, defense counsel approached the bench and
sought permission to impeach Day by asking about the letter of admo-
nition. The district court declined to allow defense counsel to inquire
into the matter because Day had not stated that he always performed

                    3
a strip search on inmates entering the yard. The district court noted
that it would be improper for defense counsel to lead Day into making
that statement.

The Government called Day as part of its case in rebuttal. On redi-
rect, the Government did not ask him any questions regarding
searches of inmates entering the yard. Day testified to the search of
the yard after the incident to retrieve any weapons. On recross-
examination of Day, defense counsel asked Day if he always per-
formed his assigned duties and Day stated that he did. The court told
defense counsel in a sidebar conference that that was the same ques-
tion that it previously ruled improper. The court then instructed the
jury to disregard the question and answer because they were irrele-
vant.

On appeal, Mitchell argues that the court's ruling was improper
because the reprimand might show bias in Day's testimony, assuming
that Day feared a second reprimand if he stated that he did not search
the inmates on this occasion. Mitchell argues that the evidence also
should have been admitted so that the jury would not be misled into
believing that Lorton officers always carry out their duties.

First, the district court correctly noted that the Government's direct
examination of Day did not include questioning on whether he always
searched the inmates before they entered the yard. The Government
only questioned Day regarding the incident which took place that day.
Day did not affirmatively assert that he always searched the inmates
prior to the entry into the yard. Cross-examination is limited to the
subject matter of the direct examination, except in matters of credibil-
ity and when the court, in its discretion, allows for additional inquiry.
See Fed. R. Evid. 611(b).

In any event, even if the district court erred in disallowing ques-
tioning regarding the reprimand, the error was harmless. See United
States v. Whittington, 26 F.3d 456, 466 (4th Cir. 1994) (citation omit-
ted) (holding that, even if the trial court abuses its discretion when
making an evidentiary ruling, this court will not reverse a conviction
if the error was harmless). On recross-examination, defense counsel
was able to elicit testimony from Day that Lorton inmates frequently
possess shanks, that prisoners possess shanks in surprising circum-

                     4
stances, and that Lorton officers do not always find all the shanks
possessed by the prisoners. This testimony established that it could be
possible for the victim to have had a shank in the yard without the
officers' knowledge. Mitchell's assertion that the reprimand would
show bias in Day's testimony because he would be fearful of a second
reprimand is speculative at best, particularly considering the thorough
investigation previously conducted. Therefore, we find that the dis-
trict court did not commit reversible error in refusing to admit Day's
reprimand.

Mitchell next argues that the district court abused its discretion in
failing to grant a mistrial when the Government referred to his testi-
mony before "another jury" instead of the required language of "an-
other proceeding." During pre-trial proceedings, the district court
ruled that the parties could not refer to the previous "trial" of the
Defendant, but could refer to a "prior proceeding." During cross-
examination of Mitchell, the Government inadvertently referred to
Mitchell's prior testimony before "another jury." Immediately thereaf-
ter, the trial court called a bench conference and notified the Govern-
ment that it had just violated the court's ruling that the first trial must
be referred to as a prior proceeding. The Government stressed that the
error was unintentional, which the court accepted. Mitchell proffered
a curative instruction, which the court rejected. Instead, the court
instructed the jury:

            Ladies and gentlemen, you are to disregard any reference
            [the Government] made to another proceeding. That is of no
            concern to you and should not enter into or influence your
            deliberations in any way. The law requires you to render
            your verdict based only on the evidence you see and hear
            presented in this trial.

(JA 769).

In light of the judge's immediate curative instruction, which the
jury is presumed to have followed, see Greer v. Miller, 483 U.S. 756,
766 n.8 (1987), the isolated nature of the statement, and the signifi-
cant evidence of guilt, the prosecutor's misstatement did not prejudice
Mitchell to the extent that it deprived him of a fair trial. See United
States v. Bennett, 984 F.2d 597, 608 (4th Cir. 1993). As a result,

                     5
Mitchell has failed to show prejudice, and cannot demonstrate an
abuse of discretion on the part of the district court in denying the
motion for a mistrial. See Dorsey, 45 F.3d at 817.

Mitchell's last argument regarding the trial court's evidentiary rul-
ings is that the court erred in allowing the Government to impeach
Mitchell on cross-examination by asking him about his silence as to
certain issues when he was interviewed directly after the incident.
Lieutenant Henry Williams, a zone supervisor at Lorton, testified that
immediately after Mitchell stabbed the victim, he advised Mitchell of
his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and inter-
viewed Mitchell after he agreed to talk. Williams testified that during
the interview Mitchell told him that he stabbed Johnson because John-
son had been bothering him for some time and that he was left with
no alternative but to attack Johnson. Williams also testified that, dur-
ing the interview after the attack, Mitchell never mentioned that John-
son possessed a weapon, that Johnson's shank was left in the yard, or
that he acted in self defense.

Mitchell testified that before the stabbing Johnson threatened to
sodomize him. He also testified that immediately before the stabbing
he had refused Johnson's request for sex. Mitchell testified that while
out in the recreation yard, Johnson again made aggressive homosex-
ual advances. He then pulled a knife out from somewhere on his per-
son and came at Mitchell to attack him. Mitchell testified that he
fended off the attack, and wrestled with Johnson while Johnson
attempted to stab him. He stated that he pushed Johnson back and
then ran to a place in the yard where he had secreted a shank approxi-
mately two and a half years earlier. Mitchell testified that he stabbed
Johnson as Johnson continued to come toward him because he was
afraid.

On cross-examination, the Government attempted to impeach
Mitchell by demonstrating that the story he was offering at trial con-
tradicted what he told Officer Williams. In response to the Govern-
ment's questions, Mitchell admitted that he never told Williams that
Johnson had threatened to sodomize him, that Johnson attacked him
first with a shank, or that the shank used by Johnson was still lying
in the yard just after the incident occurred.

                     6
Mitchell objected to this line of questioning as improper because
he deemed it to be use of his post-Miranda silence for impeachment
purposes in violation of the Due Process Clause of the Fourteenth
Amendment. See Doyle v. Ohio, 426 U.S. 610, 617-18 (1976). Doyle,
however, does not bar questioning about statements made by a defen-
dant who voluntarily spoke after receiving valid Miranda warnings.
See Anderson v. Charles, 447 U.S. 404, 408 (1980). A defendant's
silence as to certain subjects while voluntarily speaking after Miranda
warnings is not the same silence protected by Doyle. Id. at 409. Sev-
eral circuits have held that the Government may cross-examine a
defendant regarding inconsistencies between trial testimony and prior
statements. See, e.g., United States v. Butler, 924 F.2d 1124, 1129-30
(D.C. Cir. 1991); United States v. Makhlouta, 790 F.2d 1400, 1409
(9th Cir. 1986); United States v. Schulz, 698 F.2d 365, 367 (8th Cir.
1983); Grieco v. Hall, 641 F.2d 1029, 1034 (1st Cir. 1981). We there-
fore do not find any error by the district court in allowing questioning
on the inconsistencies between Mitchell's statements to Williams dur-
ing the interview after the incident and Mitchell's testimony at trial.

Next, Mitchell argues that the trial court committed reversible error
when it refused to ask prospective jurors whether they could presume
that the Defendant was innocent even though he had previously been
convicted of a crime. This court reviews a trial court's decisions at
voir dire for abuse of discretion. See Rosales-Lopez v. United States,
451 U.S. 182, 188-89 (1981). A district court does not abuse its dis-
cretion by asking a general question that is satisfactory to address a
specific prejudice issue feared by the defendant. See United States v.
Lancaster, 96 F.3d 734, 739 (4th Cir. 1996) (citations omitted), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3569 (U.S. Feb. 18, 1997) (No.
96-6450). Mitchell argues that this case of a prisoner alleging self
defense in the stabbing of another prisoner dictates that the voir dire
include specific questions to reveal bias. Mitchell does not adequately
support his argued need for specific questions. Indeed, Lancaster was
an inmate assault case similar to this case.

We find that the district court did not abuse its discretion in this
instance. Although the court did not ask the exact question posed by
defense counsel, it posed questions about the venire's involvement
with law enforcement, investigated potential jurors' opinions of Lor-
ton when disclosed at the bench, and their inability for any other rea-

                    7
son to render a fair and impartial verdict. Because the court addressed
the concerns reflected in Mitchell's voir dire question, there was no
error in its omission.

Finally, Mitchell argues that the district court erred when it denied
his motion to dismiss counts one and two of the indictment with prej-
udice, due to prosecutorial misconduct. After Mitchell's first trial,
which resulted in a hung jury on counts one and two and therefore a
mistrial, and before the second trial, the Government disclosed sev-
eral exculpatory evidentiary items to the defense that the first team of
Government prosecutors did not disclose. Based upon this disclosure,
Mitchell moved to dismiss the remaining two counts of the indict-
ment. Mitchell argues that the Double Jeopardy Clause is implicated
in this case because, if he had had the materials, he would have been
acquitted. Mitchell partially bases this assumption on his opinion that
the Government prosecutors were not as well prepared in the first trial
and subsequently had more time to prepare for the second trial.
Mitchell also urges this court to announce a new rule for Brady viola-
tions.

The Double Jeopardy Clause does not prevent a retrial after a mis-
trial due to a deadlocked jury. See Richardson v. United States, 468
U.S. 317, 324 (1984). While the Double Jeopardy Clause bars a retrial
after the prosecution has acted in bad faith and deliberately provoked
the defendant's motion for a mistrial, that is not applicable to the
sequence of events in this case. See United States v. Borromeo, 954
F.2d 245, 247 (4th Cir. 1992).

The proper remedy for a Brady violation is another trial, not a dis-
missal of the charges. See California v. Trombetta, 467 U.S. 479,
486-87 (1984). This court has addressed a nearly identical scenario
and found that the second trial cured any errors caused by withhold-
ing exculpatory material. See United States v. Borokinni, 748 F.2d
236, 238 (4th Cir. 1984). We decline Mitchell's invitation to disre-
gard precedent and create a new remedy for Brady violations in these
circumstances.

The conviction is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-

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sional process.

AFFIRMED

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