                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4448


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BRANDON C. BURRUS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:07-cr-00194-RGD-JEB-1)


Argued:   March 25, 2010                  Decided:   April 23, 2010


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Arenda Lauretta Allen, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant.       Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.    ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Frances H. Pratt, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant.   Dana J. Boente, United States Attorney, Alexandria,
Virginia, D. Monique Broadnax, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

      A jury convicted Brandon Burrus of one count of being a

felon in possession of a firearm, 18 U.S.C. § 922(g)(1).                    Burrus

appeals his conviction.        We affirm.

      First, Burrus argues that the district court erred when it

refused   to    allow    the    government     to    retract       an   erroneous

peremptory strike in order to seat a qualified African-American

juror.    According to Burrus, the district court’s refusal to

seat the qualified African-American juror violated his rights

under the Equal Protection Clause of the Fourteenth Amendment,

which forbids the use of a peremptory challenge for a racially

discriminatory purpose.             Batson v. Kentucky, 476 U.S. 79, 86

(1986).

      As part of Batson’s three-part test, Burrus carries the

burden of demonstrating purposeful discrimination on the part of

the   government.       Id.    at    98.   Here,     to    the    extent   Burrus’

argument implicates Batson, he did not carry his burden below of

demonstrating    purposeful         discrimination    on    the    part    of   the

government.     There simply is nothing in the record to undermine

the race neutral reason for the strike offered by the Assistant

United State Attorney (AUSA).              The qualified African-American

juror was struck by mistake, with the AUSA instead intending to

strike a juror who appeared to be asleep at times during jury

selection.     Such mistakes certainly do not rise to the level of

                                       - 3 -
purposeful        discrimination       under     Batson.         See,     e.g.,   United

States       v.   Watford,      468    F.3d    891,     914-15    (6th     Cir.     2006)

(rejecting        Batson      claim   where     AUSA    made     honest    mistake     in

striking African-American juror).                  Accordingly, Burrus’ Batson

claim must be rejected. 1

        Second, Burrus argues that the district court’s extensive

questioning        of   his    only    witness     at    trial,     Brittany      Ayers,

deprived him of a fair trial.                 According to Burrus, the district

court questioned Ayers so extensively and aggressively that it

became a second AUSA in the case.

        Because Burrus failed to object to the district court’s

questioning, our review is for plain error.                        United States v.

Olano, 507 U.S. 725, 736 (1993).                  Plain error requires (1) an

error, (2) that is plain, and (3) that affects the defendant’s

substantial rights.             Id.    If these three elements are met, 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.          (citation     and

internal quotation marks omitted).




        1
        To the extent Burrus attacks the methodology for
exercising peremptory challenges employed by the district court
in this case, we reject the argument.     Cf. United States v.
Williams, 986 F.2d 86, 88 n.3 (4th Cir. 1993) (noting the
legitimacy of the jury box method).



                                         - 4 -
       Under the Federal Rules of Evidence, a district court is

authorized to “interrogate witnesses, whether called by itself

or by a party.”              Fed. R. Evid. 614(b).                        On appeal, we will

afford deference to the district court’s decision to exercise

its authority under Rule 614(b) to question a witness.                                        United

States    v.    Smith,       452       F.3d    323,       333     (4th     Cir.      2006).        The

discretion       enjoyed          by    a     district       court        to    interject         with

questions      is     not    limitless         and    is    reviewed           for   an    abuse    of

discretion.          United States v. Smith, 441 F.3d 254, 268 (4th Cir.

2006).      Whether         the    district         court       so    abused     its      discretion

during    its       questioning         of     a    witness          so   as    to   deprive       the

defendant of a fair trial, as opposed to a perfect trial, is

determined      by     looking         not    at    the    complained          of    questions      in

isolation, but at the record as a whole for indicators of “bias

that    might    indicate         a    belief       on    the     judge’s       part”      that    the

defendant was guilty.                  United States v. Parodi, 703 F.2d 768,

775-76 (4th Cir. 1983).

       In this case, the district court’s extensive questioning of

Ayers went to clarifying his extremely confusing testimony as to

how the firearms recovered in Burrus’ car were his (Ayers’) as

opposed to those of Burrus.                        Given Ayers’ extremely confusing

testimony, it is understandable that the district court went to

great    lengths       to    question         him    in     an       effort     to    clarify      his

testimony       so    that    the       jury,       and     the      district        court,    could

                                               - 5 -
properly understand the substance of the testimony.          We find no

abuse of discretion.       See United States v. Castner, 50 F.3d

1267, 1272 (4th Cir. 1995) (holding that the district court’s

interruptions   and    questions    fulfilled   its   duty   to   clarify

confused factual issues).      Moreover, any prejudice suffered by

Burrus was cured by the district court’s numerous instructions,

instructing the jury that it should draw no inferences from its

questioning.    See United States v. Martin, 189 F.3d 547, 555

(7th Cir. 1999) (noting that cautionary instructions may cure or

diminish any prejudice that could have resulted from district

court’s questioning).

     For the reasons stated herein, the judgment of the district

court is affirmed. 2

                                                                  AFFIRMED




     2
       Finding no error, we also reject Burrus’ argument that he
is entitled to relief under a cumulative error theory.



                                   - 6 -
