                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5155



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


COREY RESHON SIMPSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-326)


Submitted:   December 22, 2006            Decided:   January 19, 2007


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


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Robert John
Gleason, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Corey Reshon Simpson was convicted by a jury of one count

of possession of a firearm by a felon, in violation of 18 U.S.C.

§   922(g)(1)       (2000).           Simpson       was    sentenced    to   155    months’

imprisonment.        We affirm the conviction and sentence.

              On appeal, counsel filed a brief pursuant to Anders v.

California,         386   U.S.        738    (1967),        asserting    there     were    no

meritorious grounds for appeal, but raising the following issues:

(1) the district court erred by holding an off-the-record bench

conference; (2) the court’s instruction to the jury was improper;

and    (3)    the    Government’s           closing       argument   contained     improper

remarks.      Although Simpson was notified of his right to file a pro

se supplemental brief, he did not do so.

              As Simpson raises each of these issues for the first time

on appeal, review is for plain error.                      See United States v. White,

405 F.3d 208, 215 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

To establish plain error, Simpson must show that an error occurred,

that    the    error      was    plain,       and    that     the    error   affected     his

substantial rights.             Id.

              First, Simpson contends that the district court erred by

holding an off-the-record bench conference. In criminal cases, all

proceedings held in open court, including bench conferences, see

generally United States v. Snead, 527 F.2d 590 (4th Cir. 1975) (per

curiam), must be recorded verbatim. See 28 U.S.C. § 753(b) (2000).


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This requirement “safeguard[s] a defendant’s right to appellate

review.”     United States v. Gillis, 773 F.2d 549, 554 (4th Cir.

1985).     Responsibility to ensure compliance with § 753 lies with

the court, not the reporter or the parties.        See United States v.

Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985); United States v.

Garner, 581 F.2d 481, 488 (5th Cir. 1978). Accordingly, violations

of the statute ordinarily constitute judicial error.

            However, the error does not warrant reversal unless the

defendant    can   demonstrate   that   the   missing   portion   of   the

transcript specifically prejudices his efforts to appeal.              See

Gillis, 773 F.2d at 554.         “Prejudice is found when a trial

transcript is so deficient that it is impossible for the appellate

court to determine if the district court has committed reversible

error.”     United States v. Huggins, 191 F.3d 532, 537 (4th Cir.

1999) (internal quotation marks omitted).

            While the district court erred by failing to ensure

compliance with § 753, Simpson does not claim, and nothing in the

joint appendix suggests, that the omission of a single bench

conference renders the trial transcript so inadequate as to make

Simpson’s     substantive   assignments       of   error   unreviewable.

Therefore, we conclude Simpson has failed to establish that the

omission prejudiced his ability to effect a meaningful appeal.

            Next, Simpson contends that the district court improperly

instructed the jury.     Parts of a jury instruction should not be


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viewed in isolation, but should be considered in light of the

instruction as a whole.    United States v. Morrison, 991 F.2d 112,

116 (4th Cir. 1993).      Even if it is determined that “the trial

court erroneously instructed the jury, ‘[i]t is the rare case in

which an improper instruction will justify reversal of a criminal

conviction when no objection has been made in the trial court.’”

United States v. Muse, 83 F.3d 672, 678 (4th Cir. 1996) (quoting

Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).

           Simpson challenges the following portion of the district

court’s instruction to the jury:

     Your decision on the facts of this case should not be
     determined by the number of witnesses testifying for or
     against a party. You should consider all the facts and
     circumstances in evidence to determine which of the
     witnesses you choose to believe or not believe. You may
     find that the testimony of a smaller number of witnesses
     on one side is more credible than the testimony of a
     greater number of witnesses on the other side.

He argues that this instruction shifted the burden of proof to the

defense by implying that he should present evidence on his own

behalf.   Simpson further argues that the instruction called for a

credibility-weighing test that was more similar to a preponderance

of the evidence standard than to proof beyond a reasonable doubt.

           The challenged instruction was directly preceded by the

court’s instruction regarding the defendant’s “constitutional right

not to take the stand and testify and not to speak at all or offer

evidence.” Thereafter, the court reminded the jury that the burden

of proof rests “entirely” on the government.       Therefore, when

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considering the instruction as a whole, and in light of the fact

that Simpson did not object to the instruction at trial, we

conclude the challenged instruction does not warrant reversal.

            Finally, Simpson contends that the Government’s closing

argument, as it pertained to the gunshot residue evidence, was

improper.        We review a claim of prosecutorial misconduct “to

determine whether the conduct so infected the trial with unfairness

as to make the resulting conviction a denial of due process.”

United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)

(internal quotation marks omitted). The misconduct will constitute

reversible error if the defendant can establish (1) that the

prosecutor’s remarks or conduct were improper and (2) that the

remarks     or    conduct   prejudicially   affected   the   defendant’s

substantial rights so as to deprive him of a fair trial.             Id.

Relevant factors in the determination of prejudice include:

     (1) the degree to which the prosecutor’s remarks had a
     tendency to mislead the jury and to prejudice the
     defendant; (2) whether the remarks were isolated or
     extensive; (3) absent the remarks, the strength of
     competent proof introduced to establish the guilt of the
     defendant; (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.

Id. at 185-86.

            The gunshot residue evidence presented at trial was

inconclusive on the ultimate question of who fired, and thereby

possessed, the weapon at issue.       Though the gunshot residue test

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indicated that Simpson had “elevated levels of barium on [his]

right palm,” and the other two individuals present did not, the

test was not determinative of who fired the weapon on the night in

question.

            During its closing argument, the Government stated that

the gunshot residue test was inconclusive, but argued:

     [The gunshot residue expert] found on the defendant’s
     wipings from his right hand elevated levels of barium.
     Barium is one of the three components of gunshot residue.
     And [the expert] found elevated levels on that hand.
     Now, the defense may try to tell you that [another
     individual] was the shooter.       Well, that would be
     physically impossible because we know where the shell
     casings were, we know where the passenger was in the
     vehicle.   But regardless, the wipings from [the other
     individual’s] hands showed no significant amounts of
     barium, antimony or lead. That if there were any amounts
     found on [the other individual’s] wipings, that they were
     below the threshold.     They were background amounts.
     There was no elevated level of barium like there was in
     the defendant’s case.


Additionally, the Government reminded the jury in its rebuttal that

“the defendant is not excluded as having possibly fired the gun.

In fact, the defendant had elevated levels of barium on his right

palm, and we know he’s right-handed . . . .”

            The remarks at issue comprised only a fraction of the

Government’s lengthy closing and rebuttal arguments.   Even if the

remarks could be said to have prejudiced Simpson by misleading the

jury or diverting its attention, such prejudice was minimal when

compared to the sheer volume of evidence introduced to establish



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Simpson’s guilt. Thus, we conclude Simpson has failed to establish

that the Government’s remarks constitute reversible error.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   Accordingly, we affirm Simpson’s conviction and sentence.

This court requires that counsel inform her client, in writing, of

his right to petition the Supreme Court of the United States for

further review.       If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel     may   move    this    court      for   leave    to     withdraw     from

representation.       Counsel’s motion must state that a copy thereof

was served on the client.         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




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