                                             NOT PRECEDENTIAL


       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                  __________

                      NO. 10-4721
                      __________


           UNITED STATES OF AMERICA

                           v.

                  BRAD WILLIAMS,
                             Appellant

                      __________

     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
          (D.C. Crim. No. 1-10-cr-00020-001)
       District Judge: Hon. William W. Caldwell
                      __________

       Submitted Under Third Circuit LAR 34.1(a)
                  September 12, 2011

Before: SLOVITER, SCIRICA, and SMITH, Circuit Judges

              (Filed: September 14, 2011)
                      __________


                       OPINION

                      __________
SLOVITER, Circuit Judge.

         Brad Williams was convicted by a jury of possession with intent to distribute

marijuana in violation of 21 U.S.C. § 841(a)(1)(D). He was sentenced to thirteen months

imprisonment. Williams asks this court to vacate the judgment of conviction and to

remand for a new trial for two reasons. He argues that the District Court committed plain

error by (1) admitting the testimony of two law enforcement officers that he had refused

to consent to a search of his home and (2) admitting the statement by an officer that may

have suggested a comment on Williams’ exercise of his right to proceed to trial. We will

affirm.1

         During trial, two officers testified that Williams had refused to consent to a search

of his home.2 Williams argues that this testimony was designed to show a consciousness


1
  The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This
court has jurisdiction pursuant to 28 U.S.C. § 1291. This court reviews the District
Court’s admission of testimony for plain error where, as here, the defendant did not
object to the testimony at issue during trial. Fed. R. Crim. P. 52(b). Under this standard,
we must find that an error was committed, the error was plain, and the error affected the
defendant’s substantial rights. United States v. Wolfe, 245 F.3d 257, 260-61 (3d Cir.
2001). If those conditions are met, we may exercise our discretion to notice a forfeited
error, but only if the error “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. at 261 (internal quotation omitted).
2
    The challenged testimony was as follows:

         Q: [Assistant United States Attorney]: Did you ask for consent to search the
         apartment?
         A: [Inspector Corrado]: Yes, we did.

         Q: Did you receive consent?

         A: No. He refused consent.

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of guilt. He points out that this court has held that an invocation of the protection

afforded by the Fourth Amendment to be free of unreasonable search and seizure cannot

be used by a prosecutor as evidence of guilt. See United States v. Thame, 846 F.2d 200,

207 (3d Cir. 1988). The Government counters that the testimony was elicited to explain

the steps the officers took before obtaining a search warrant. We see no error in the

admission of these statements.

       Williams also argues that the statement of one of the officers was a comment on

Williams’ exercise of his right to proceed to trial. Indeed, it would have been error if the

prosecutor or a Government witness had commented on Williams’ exercise of his Sixth

Amendment right to proceed to a jury trial. See Cunningham v. Zant, 928 F.2d 1006,

1019 (11th Cir. 1991); see also United States ex rel. Macon v. Yeager, 476 F.2d 613, 616

(3d Cir. 1973). The allegations stem from Inspector Corrado’s response to a question

about why he had not attempted to take fingerprints: “Just an investigative step I chose

not to take. I didn’t think we would honestly be here.” App. at 81. Williams argues that

the statement was “obviously a comment” on Williams’ decision to go to trial and an

improper opinion of guilt. Appellant’s Br. at 14. A review of the testimony does not

easily lead to that inference. We see no error in the admission of this statement.



App. at 58. Later, Trooper Fry testified:

       [Trooper Fry]: At that point, I asked him for consent to search the residence, [to]
       which he didn’t really provide an answer, and then I believe that he said no and
       that he wanted an attorney.
App. at 113.

                                              3
       Even if we were to accept Williams’ argument, Williams has not demonstrated

that he suffered any prejudice. The evidence of Williams’ guilt was overwhelming. The

prosecution presented evidence at trial that Williams picked up a package that the postal

authorities had determined contained a large quantity of marijuana, addressed to a

fictitious person, and attempted to take it back to his apartment. When confronted about

the package, Williams fabricated a story about picking up the package for a neighbor, a

fact that his neighbors denied. Even more significant, police found additional marijuana

in quantities consistent with distribution, digital scales and packaging material inside

Williams’ apartment. Given this evidence it is very unlikely that the outcome of the trial

would have been different if the challenged testimony had not been admitted. There was

no plain error in admitting the testimony.

       Based on the foregoing, we will affirm.




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