                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 13-4628


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

GABRIEL DANIEL MORRISON MITCHELL, a/k/a G,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, District
Judge. (4:12-cr-00010-MSD-LRL-2)


Submitted:    August 29, 2014             Decided:   September 16, 2014


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randall D.    Unger, LAW OFFICE OF RANDALL D. UNGER, Bayside, New
York, for    Appellant.   Dana J. Boente, United States Attorney,
Howard J.    Zlotnick, Brian J. Samuels, Assistant United States
Attorneys,   Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                A jury convicted Gabriel Daniel Morrison Mitchell of

conspiracy to interfere with commerce by robbery, in violation

of   18    U.S.C.      §   1951    (2012);          interference     with   commerce   by

robbery,        in    violation    of      18    U.S.C.      §   1951;   carjacking,   in

violation of 18 U.S.C. § 2119 (2012); and possessing a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c)

(2012).        The district court sentenced Mitchell to a term of 260

months’        imprisonment.         On    appeal,      Mitchell     asserts   that    the

district court erred in admitting testimony in violation of Fed.

R.   Evid.      608(a);     the    Government          improperly    cross-examined     a

defense        witness     about      another          witness’s     credibility;      the

Government made improper remarks during closing argument; the

district court erroneously refused to read back a portion of the

testimony        as   requested      by    the       jury;   and   the   district   court

failed to ensure that Mitchell knowingly and voluntarily waived

his right to testify.             Finding no merit in Mitchell’s arguments,

we affirm.

                                                A.

                We review a district court’s evidentiary rulings for

abuse     of    discretion     and    will       only    overturn    rulings   that    are

arbitrary and irrational.                 United States v. Cloud, 680 F.3d 396,

401 (4th Cir. 2012).              Further, evidentiary rulings are subject

to harmless error review; an error is harmless when we can say

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“with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.”                    United States v.

Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (internal quotation

marks omitted).        We conclude, based on the record, that any

opinion    testimony   presented    in       violation    of     Rule   608(a)    was

harmless.

                                        B.

            In asserting error by the Government in its cross-

examination of Mitchell’s codefendant, Antonio McGhee, Mitchell

acknowledges that our review is for plain error.                        Under this

standard    of   review,    Fed.   R.    Crim.    P.     52(b)    “authorizes      an

appeals court to correct a forfeited error only if (1) there is

an error, (2) the error is plain, and (3) the error affects

substantial rights.”         Henderson v. United States, 133 S. Ct.

1121,     1126   (2013)     (internal       quotation     marks     and      brackets

omitted).    Because Rule 52(b) is permissive, we will correct the

error only if it “seriously affects the fairness, integrity or

public    reputation   of    judicial    proceedings.”            Id.   at    1126-27

(internal quotations marks and brackets omitted).

            Appellate courts have held that it is inappropriate

for counsel to ask one witness whether another witness is lying

because “[s]uch questions invade the province of the jury and

force a witness to testify as to something he cannot know, i.e.,

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whether     another     is     intentionally     seeking       to     mislead     the

tribunal.”        United States v. Harris, 471 F.3d 507, 511 (3d Cir.

2006)    (collecting       cases).    Here,    the    Government      did   not   ask

McGhee whether another witness was “lying” or otherwise force

him   to   testify    to    something   about    which    he    could    not    know.

Rather     than     seeking    to    invade     the    jury’s       province,     the

Government’s       questions    highlighted     the    fact    that     credibility

determinations were for the jury to decide.                    In any event, we

conclude    that    Mitchell    fails   to    establish    plain      error.      See

United States v. Beasley, 495 F.3d 142, 149 (4th Cir. 2007)

(finding no plain error in absence of controlling precedent).

                                        C.

            Although we have held that error that is plain occurs

when a prosecutor states that a defendant has lied under oath,

see United States v. Woods, 710 F.3d 195, 203 (4th Cir.), cert.

denied, 134 S. Ct. 312 (2013), we will reverse a conviction

based on improper prosecutorial remarks only if “the remarks

were, in fact, improper, and . . . the improper remarks so

prejudiced the defendant’s substantial rights that the defendant

was denied a fair trial.”            United States v. Chong Lam, 677 F.3d

190, 209 (4th Cir. 2012) (internal quotation marks omitted).                       In

assessing prejudice, we consider

      (1) the degree to which the prosecutor's remarks have
      a tendency to mislead the jury and to prejudice the
      accused; (2) whether the remarks were isolated or

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       extensive; (3) absent the remarks, the strength of
       competent proof introduced to establish the guilt of
       the   accused;    (4)   whether    the    comments    were
       deliberately   placed   before   the    jury   to   divert
       attention to extraneous matters; (5) whether the
       prosecutor's remarks were invited by improper conduct
       of   defense   counsel;   and   (6)    whether    curative
       instructions were given to the jury.

United States v. Wilson, 624 F.3d 640, 656–57 (4th Cir. 2010).

These factors are to be viewed in the context of the trial as a

whole, and no single factor is dispositive.                         United States v.

Lighty, 616 F.3d 321, 361 (4th Cir. 2010).                        Our assessment of

the record in light of the above factors leads us to conclude

that     Mitchell      was    not   so    prejudiced         by   the   prosecutor’s

problematic remarks that he was denied a fair trial.

                                           D.

            Mitchell complains that the trial court refused the

jury’s request during deliberation to have the testimony of two

witnesses       read   back    to   it.        We   review    a     district    court’s

response to a jury request for abuse of discretion.                              United

States v. Foster, 507 F.3d 233, 244 (4th Cir. 2007).                           Although

the trial court has wide discretion to allow rereading of trial

testimony, it is disfavored because the jury might accord that

testimony undue emphasis.                See United States v. Rodgers, 109

F.3d 1138, 1143-44 (6th Cir. 1997).                   Here, the district court

denied    the    jury’s      request   precisely      for    this    reason,    and   we

conclude that the district court did not abuse its discretion.


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                                             E.

              Finally,        Mitchell     argues     that      the    district     court

failed to fully inquire into whether Mitchell’s decision not to

testify on his own behalf was a knowing and voluntary waiver of

his right to do so.                Because he failed to raise this issue

below, our review is for plain error.                     See Henderson, 133 S. Ct.

at 1126-27 (providing standard).                     We find no error, plain or

otherwise, as there is no affirmative duty on a district court

to   obtain    an   on-the-record          waiver    of    a   defendant’s      right   to

testify.      See United States v. McMeans, 927 F.2d 162, 163 (4th

Cir. 1991); see also Sexton v. French, 163 F.3d 874, 882 (4th

Cir. 1998) (“[T]rial counsel, not the court, has the primary

responsibility         for     advising      the    defendant     of     his    right   to

testify and for explaining the tactical implications of doing so

or not.”).

              Based on the foregoing, we affirm the judgment of the

district      court.         We   dispense    with    oral     argument    because      the

facts   and    legal     contentions         are    adequately    presented       in    the

materials      before    this      court     and    argument     would    not    aid    the

decisional process.

                                                                                 AFFIRMED




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