                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4263


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MARCO ANTRIONE CHERRY, JR., a/k/a Marco Antrione Cherry,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:11-cr-00071-RGD-FBS-1)


Argued:   May 17, 2013                    Decided:    June 13, 2013


Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson and Judge Wynn joined.


ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.     Sherrie Scott
Capotosto, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.      ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia; Richard J.
Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Norfolk, Virginia, for Appellant.       Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.
DUNCAN, Circuit Judge:

      Marco Cherry appeals his conviction of various firearm and

drug crimes, arguing that the Speedy Trial Act required that his

indictment be dismissed as untimely and that the district judge

plainly   erred   in   revealing    details      of   his     criminal     history

before the jury was polled.         We determine that the Speedy Trial

Act   precludes   dismissal   of     an       untimely      indictment     when   a

defendant fails to move for dismissal prior to trial.                    Next, we

find that although the district judge’s comments to the jury

were erroneous, they did not rise to the level of plain error.

Accordingly, we affirm Cherry’s convictions.



                                     I.

                                     1.

      On March 9, 2010, Norfolk Police Officers Alex Keeling and

Frank Been saw a black Hummer fail to stop at a stop sign.                    They

attempted to initiate a traffic stop, activating their lights

and siren and using their loudspeaker to instruct the driver of

the vehicle to pull over.          The driver failed to stop, and the

officers gave chase.      While in pursuit, Officer Keeling saw a

cigar-shaped object, which he later determined was a marijuana

cigar, being tossed out of the window.

      After driving for several blocks, the driver pulled the

vehicle   over.    The   police     identified        the    driver   as    Lamont

                                          2
Jordan; Cherry was the passenger.                    The officers approached the

vehicle and smelled marijuana through its open windows.                             Officer

Been took Jordan several feet away from the vehicle to speak

with   him.      The     officers      decided       to    search     the    vehicle,      and

Officer Keeling ordered Cherry to step out of the car.                                  Cherry

became “very aggressive” and attempted to push Officer Keeling.

J.A. 215.      A struggle ensued, during which a metal object, which

Officer Keeling thought to be a firearm, hit the ground.                                Cherry

then attempted to flee.               Officer Keeling tackled Cherry to the

ground, and Officer Been, responding to Officer Keeling’s call

for backup, threatened to use a Taser on Cherry.                             When Officer

Been activated the Taser, it automatically recorded a video of

the encounter.         Cherry stopped struggling and the officers took

him into custody.

       Once they had handcuffed Cherry and allowed him to stand

up,    the    officers    recovered          from    the    ground     two       small    bags

containing      pills,      twenty      of     which       turned     out    to    be     3,4-

Methylenedioxymethamphetamine                 hydrochloride      (commonly         known    as

ecstacy),      and   nine    of       which    turned      out   to    be    a    different

controlled      substance,        a    stimulant       called       N-Benzylpiperazine.

The Taser video shows the bags of pills lying on the ground as

Cherry stood up, and recorded Officer Been exclaiming that there

was “E [ecstasy] all over the place.”                       J.A. 270.        Other police

officers arrived at the scene, one of whom, Officer Eric Ortiz,

                                                 3
recovered    a   Glock    nine-millimeter              pistol    from       the    ground       in

front of the Hummer on the passenger side, where Officer Keeling

had first struggled with Cherry.

                                            2.

       On July 12, 2010, Cherry was charged in a federal criminal

complaint with possession with intent to distribute ecstasy in

violation of 21 U.S.C. § 841(a)(1), possession of a firearm in

furtherance      of    drug    trafficking        in       violation    of    18       U.S.C.   §

924(c), and possession of a firearm after a felony conviction in

violation of 18 U.S.C. § 922(g).                      An arrest warrant was issued

along    with    the    complaint,        and     the       warrant    was    filed       as    a

detainer at the Chesapeake city jail, where Cherry was serving a

Virginia state sentence.

       On Friday, April 1, 2011, the Chesapeake jail authorities

notified    Cherry      that    he    was    being         “released”        to    a    federal

detainer, and notified the U.S. Marshals Service that he had

completed his state sentence.                    On Monday, April 4, 2011, an

agent    with    the     Bureau      of     Alcohol,          Tobacco,       Firearms       and

Explosives transported Cherry from the Chesapeake jail to the

U.S.    District      Court    in    Norfolk.           That    day,    the       court    held

Cherry’s initial appearance and issued an order of temporary

detention.       On     Wednesday,        April       6,    2011,     the    court      held    a

detention hearing and ordered that Cherry be detained pending

further proceedings.            On May 4, 2011, a grand jury issued an

                                                  4
indictment     charging   Cherry    with   the    crimes    set   forth    in    the

complaint. 1      The district court set the case for trial on June

30, 2011.

     Prior to trial, Cherry’s court-appointed attorney filed a

motion to withdraw.       The court granted the motion and appointed

another     attorney.      Cherry    subsequently         filed   a     motion   to

suppress, which the court denied.                He also filed a motion to

continue his trial, which the court granted.                  Cherry filed no

motions related to the timeliness of his indictment under the

Speedy    Trial    Act.   The   court      ultimately      held   the    trial    on

September 20-21, 2011.

     At trial, the Norfolk police officers testified as to the

circumstances surrounding Cherry’s arrest, the events preceding

and succeeding it, and the evidence they had recovered from the

scene.     Cherry also testified: he stated that the object that

fell from him during the struggle was a chain necklace, not a

gun, and that the gun and tablets the police had recovered were

not his.       He also testified that he was not aware that smoking

marijuana       was   illegal--testimony          which     was       subsequently

impeached when the government elicited testimony from him that

     1
       A grand jury later returned a superseding indictment that
differed from the original indictment only in that it changed
the   chemical  description   of  ecstasy--replacing  the   term
“methylenedioxyamphetamine”                                 with
“methylenedioxymethamphetamine.”



                                           5
he had a recent previous arrest for marijuana possession.                         As to

other     aspects      of     Cherry’s     criminal        history,     the     parties

stipulated that he had been convicted of a felony.

       The trial lasted for two days.               The jury deliberated during

the afternoon of the second day and returned a verdict before

the end of the day.              During deliberations, the jury sent two

notes to the court.           First, they asked to see the video recorded

by the Taser again, which they reviewed twice.                          Second, they

asked the court, “Was there anybody else that was standing by

the vehicle or on site before Officer Ortiz arrived?”                         J.A. 511.

The court told the jury to consider the evidence that had been

presented      to   them,    and   allowed    them    to    have     Officer    Ortiz’s

testimony read back to them.

       When    the     jury      had   finished       deliberating,         the     jury

foreperson handed the verdict form, which she had signed, to the

clerk, who passed it to the district judge.                    The judge returned

the guilty verdict to the clerk, who proceeded to read it aloud.

The    clerk    then    asked,     “Members    of    the     jury,    is   this     your

verdict, so say you all?”                J.A. 514.     All the members of the

jury    indicated      an   affirmative     response.        At    this    point,   the

judge thanked the jury and added the following remarks:

        Sometimes all of the information is not given to you.
        This defendant had previously been convicted of
        distributing a controlled substance, had previously
        been convicted of resisting arrest, and had previously


                                              6
     been convicted of carrying a firearm in furtherance of
     a drug trafficking crime.

     I only tell you that to tell you that these things are
     not admissible because of the way the rules are
     written, that a person has to be judged on this
     particular crime, but I just thought I would tell you
     about that because it tells you a little bit about Mr.
     Cherry’s background and it will give you some idea of
     that.

     I thank you for your paying close attention, just so
     you would know what, unfortunately, I know because I
     can see all of this information, and you haven’t seen
     it and it would not be admissible.    But the rules of
     evidence under these circumstances didn’t permit it.

J.A. 514-15.     Immediately following these comments, it became

clear that the defense counsel wished to poll the jury.                  The

clerk asked each juror, in succession, “Is this your verdict?”

Id. at 515-16.    And each juror replied that it was.        Id.



                                  II.

     Cherry argues that we should reverse the verdict for two

reasons.    First, he contends that the district court should have

dismissed the indictment as untimely under the Speedy Trial Act,

notwithstanding his failure to move for its dismissal prior to

trial.     Second, he argues that the district judge’s comments to

the jury revealing his criminal history before the jury could be

polled   constituted   plain   error.       We   address   each    of   these

arguments in turn.




                                        7
                                A.

     The Speedy Trial Act requires that a defendant be indicted

within thirty days of arrest and tried within seventy days from

the later of the filing of the information or indictment or the

defendant’s initial appearance before a judicial officer.      18

U.S.C. § 3161(b), (c)(1); United States v. Leftenant, 341 F.3d

338, 343 (4th Cir. 2003).     The district court’s interpretation

of the Speedy Trial Act is a question of law, which we review de

novo.   Leftenant, 341 F.3d at 342.

     The “Sanctions” section of the Speedy Trial Act, 18 U.S.C.

§ 3162, lays out in subsection (a) the consequences for failing

to timely indict or bring to trial a defendant:

     (1) If, in the case of any individual against whom a
     complaint is filed charging such individual with an
     offense, no indictment or information is filed within
     the time limit required by section 3161(b) as extended
     by section 3161(h) of this chapter, such charge
     against that individual contained in such complaint
     shall be dismissed or otherwise dropped. . . .

     (2) If a defendant is not brought to trial within the
     time limit required by section 3161(c) as extended by
     section 3161(h), the information or indictment shall
     be dismissed on motion of the defendant. The defendant
     shall have the burden of proof of supporting such
     motion but the Government shall have the burden of
     going forward with the evidence in connection with any
     exclusion of time under subparagraph 3161(h) (3). . .
     . Failure of the defendant to move for dismissal prior
     to trial or entry of a plea of guilty or nolo
     contendere shall constitute a waiver of the right to
     dismissal under this section.

18 U.S.C. § 3162(a) (emphasis added).



                                      8
       Cherry argues that because the waiver clause is included

only       in    §   3162(a)(2)--the         speedy       trial       provision      of     the

“Sanctions” section--and not § 3162(a)(1)--the speedy indictment

provision--there         is    no   requirement          that     a   motion    under          the

speedy indictment provision of the Act be filed before trial.

Indeed, he contends that the speedy indictment provision does

not even require the defendant to file a motion at all.                               Cherry

cites      the   principle     that    “where          Congress   includes      particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or

exclusion,”          Russello v. United States, 464 U.S. 16, 23 (1983)

(alterations and citation omitted), arguing that had Congress

intended the speedy indictment right to be waived upon failure

to move for dismissal before trial, it would have included the

waiver      language     not    only    in     §       3162(a)(2),      but    also       in    §

3162(a)(1).

       This      argument     rests    on,    as       the   government       puts    it,        a

contention “that ‘section’ does not mean section.’”                             Appellee’s

Br. at 15.           Although creative, this argument cannot change the

plain language of the statute. 2                   The waiver clause applies to


       2
        The implausibility of Appellant’s interpretation was
further illustrated at oral argument; even Cherry’s appellate
counsel referred to 18 U.S.C. § 3162(a)(1) and (2) as
     (Continued)
                                                   9
“this   section”--i.e.,     Section    3162,    which   governs    both    the

speedy trial right and the speedy indictment right.                    Despite

Cherry’s   attempt   to   argue    otherwise,   §   3162(a)(2)    is   only   a

paragraph of a subsection of the Speedy Trial Act, and not its

own “section.”       Its waiver provision--that “[f]ailure of the

defendant to move for dismissal prior to trial or entry of a

plea of guilty or nolo contendere shall constitute a waiver of

the right to dismissal under this section”--thus refers not only

to that paragraph, but to all of § 3162.

     The terminology used throughout the U.S. Code bears out

this intuitive reading.          The terms “section,” “subsection,” and

“paragraph” are used consistently, and “section” always refers

to the subdivision smaller than a chapter and larger than a

subsection.      See      U.S.    Senate,    The    United   States     Code,

http://www.senate.gov/pagelayout/legislative/one_item_and_teaser

s/usCode_page.htm (last visited May 30, 2013) (“The U.S. Code is

organized by subject area into 50 titles. Titles are further

broken down by chapter and section. Citations to the U.S. Code

look like this: 42 U.S.C. 1382 or 42 § 1382. This means the law

appears in title 42, section 1382 of the Code.”).




“subsections.”      Oral   Argument   at    3:45,            available        at
http://www.ca4.uscourts.gov/OAaudiotop.htm.



                                        10
     Moreover,    all     other    circuits       to        have   addressed       this

question have determined that a defendant who does not file a

speedy indictment motion before trial waives his right to raise

that issue.      See United States v. Spagnuolo, 469 F.3d 39, 41

(1st Cir. 2006); United States v. Gamboa, 439 F.3d 796, 804 (8th

Cir. 2006); United States v. Lewis, 980 F.2d 555, 560 (9th Cir.

1992), abrogated on other grounds by Bloate v. United States,

559 U.S. 196 (2010).

     We   join   our    sister    circuits       in    interpreting        the   plain

language of § 3162(a)(2) to mean that a defendant who fails to

move for dismissal prior to trial on the basis of an untimely

indictment    waives    his   right   to   move       for    dismissal     under    the

speedy indictment provision of the Speedy Trial Act. 3

                                      B.

     Next,    Cherry    argues    that     the    district         court   erred     by

revealing his criminal history before the jury could be polled.

Federal Rule of Criminal Procedure 31(d) provides that “[a]fter

a verdict is returned but before the jury is discharged, the

court must on a party’s request, or may on its own, poll the

jurors individually.”         If the poll reveals that the verdict was

     3
       Cherry and the government also disagree about whether
Cherry was indicted within thirty days of his arrest, as
calculated under the Speedy Trial Act. Because we hold that he
waived any right to move for dismissal by failing to raise the
issue before trial, we do not reach this question.



                                           11
not   unanimous,      the    court       may    direct       the    jury      to     deliberate

further    or    declare     a     mistrial.             Rule   31(d)       “establishes         an

absolute    right     to    have     the      jury       polled.”       United       States     v.

Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972).

      Because Cherry did not object after the court revealed his

criminal history, we review the court’s action for plain error.

Under the plain error standard, a defendant must demonstrate

“(1) that an error occurred, (2) that the error was plain, and

(3) that it affected his substantial rights.”                               United States v.

Penniegraft,      641      F.3d    566,       575     (4th      Cir.    2011).           If    the

defendant       establishes        those       threshold        requirements,            we    may

exercise our discretion to correct the error “when failure to do

so would result in a miscarriage of justice, such as when the

defendant is actually innocent or the error seriously affects

the   fairness,       integrity          or     public       reputation         of    judicial

proceedings.”         Id. (quoting United States v. Olano, 507 U.S.

725, 736 (1993)) (alteration omitted).

                                               1.

      It    is    fundamental         that          “[n]otwithstanding             the        broad

discretion accorded trial judges,” a judge “must maintain such a

demeanor that ‘every one shall recognize that what is said from

the   bench      is   the     cool    and       well-balanced           utterance         of     an

impartial       judge,      and    has     in       it    naught       of    the     heat      and

partisanship of the advocate.’”                      United States v. Godwin, 272

                                                    12
F.3d    659,    676-77      (4th     Cir.   2001)   (quoting     Wallace        v.   United

States, 281 F.2d 656, 665 (4th Cir. 1960)).                       For this reason,

the “privilege of the judge to comment on the facts has its

inherent limitations.”               Quercia v. United States, 289 U.S. 466,

470    (1933).        These     limitations     apply     even   after      a    jury    has

returned a verdict, for a verdict is not final until it has been

recorded, after the parties have had adequate time to request a

poll.     See Government of the Virgin Islands v. Hercules, 875

F.2d 414, 419 (3d Cir. 1989) (“‘[A] verdict is not final when

announced.’          Rather, ‘the test for validity of the verdict is

whether it ‘was certain, unqualified and unambiguous considering

the circumstances of the receipt of the verdict and poll of the

jurors relative to their verdict.’”) (alteration and citations

omitted).

       The     purpose     of   a    jury   poll    “is   to   give   each       juror    an

opportunity, before the verdict is recorded, to declare in open

court his assent to the verdict which the foreman has returned,”

to ensure that “a unanimous verdict has in fact been reached and

that no juror has been coerced or induced to agree to a verdict

to which he has not fully assented.”                      United States v. Carter,

772    F.2d    66,    68    (4th     Cir.   1985)   (quoting     Miranda        v.   United

States, 255 F.2d 9, 17 (1st Cir. 1958)).                    To inject remarks that

might    influence         jurors’    decisions     before     they   may       be   polled

individually is thus improper.                     It is error for a judge to

                                               13
remark on the culpability of the defendant, the merits of the

case, or the correctness of the verdict before a party has the

opportunity to request a poll.       See United States v. Harlow, 444

F.3d 1255, 1267 (10th Cir. 2006) (recognizing that “intervening

comments by a judge can undermine the defendant’s right to poll

the jury”); United States v. Randle, 966 F.2d 1209, 1213 (7th

Cir. 1992) (finding reversible error where, after receiving the

verdict from the jury, the judge proceeded to read the probation

officer’s   memorandum,   which    detailed     the     defendant’s   criminal

history).

     By commenting on inadmissible aspects of the defendant’s

criminal history before allowing defense counsel a reasonable

amount of time in which to request a poll of the jury, the court

erred.   And because all district judges are no doubt aware of

their duty to “take special care to maintain an appearance of

impartiality,” Anderson v. Warden, Md. Penitentiary, 696 F.2d

296, 299 (4th Cir. 1982), the court’s error was plain.

                                    2.

     Even   where   a   district   court      plainly    errs,   we   will   not

overturn a verdict unless that error affected the defendant’s

substantial rights, which generally means that the “error must

have been prejudicial.”      Olano, 507 U.S. at 734.             The defendant

has the burden of showing that the error “‘affected the outcome

of the trial,’ or ‘probably influenced the verdicts’ against

                                         14
him.”     United States v. Rolle, 204 F.3d 133, 139 (4th Cir. 2000)

(quoting      Olano,      507     U.S.     at    734-35)      (alterations        omitted).

“Where the evidence is overwhelming and a perfect trial would

reach the same result, a substantial right is not affected.”

Godwin, 272 F.3d at 680 (citation omitted).                        Cherry is unable to

shoulder this burden: the evidence against him was overwhelming

and   the    circumstances         surrounding          the     erroneous      remarks       are

strong    indicia        that    the    jury    had     reached    a    unanimous       guilty

verdict.

      Both        Officer       Keeling    and      Officer       Been     gave       detailed

testimony        concerning      Cherry’s       activities       at    the     time    of    his

arrest      and    the    items        recovered      afterward.          In    particular,

Officer Keeling testified as to his struggle with Cherry next to

the Hummer, and stated that he heard the sound of a metal object

falling     to     the   ground,       which,    based     on    his     experience         as   a

police officer, he thought was a gun.                         He also testified that,

after he tackled Cherry to the ground, placed him in handcuffs,

and stood him up, he and his partner “were able to recover two

bags of suspected narcotics” from that site.                              J.A. 223.              As

Officer Keeling put it, “as soon as we picked him up we saw [the

bags] sitting right there,” “[l]iterally, within three feet” of

where he had tackled Cherry to the ground.                             Id. at 244.          This

testimony was corroborated by Officer Been’s testimony, as well

as by the recording made by Officer Been’s Taser.                            Of particular

                                                   15
significance, in the video, after the altercation between Cherry

and Officer Keeling, Officer Been can be heard saying, “Damn, E

all over the place”--in other words, that “[t]here’s ecstasy on

the   ground   and   it’s   a   large   quantity     of   it.”    Id.   at   270.

Officer Ortiz also testified.           He stated that he arrived at the

scene while Officer Keeling was with Cherry on the ground, and

that he recovered a small semiautomatic handgun from the ground,

five to ten feet from the Hummer.          He further stated that he did

not see any jewelry or anything else in the vicinity.                   The only

opposing   evidence     was     Cherry’s       own   testimony,    which     was

impeached and uncorroborated.

      Mitigating any potential damage done by the court’s ill-

advised comments was the fact that the jury was already aware

that Cherry was a convicted felon.             Although the jurors had not

been told what crimes Cherry had been convicted of, the parties

stipulated that he had been “convicted in a court in Virginia of

a qualifying felony crime punishable by imprisonment for a term

exceeding one year prior to the occurrence of the acts charged

as violations in the indictment.”               Id. at 360.       Furthermore,

during the trial, the members of the jury also became aware that

Cherry had previously been arrested for possession of marijuana,

as the government elicited testimony from Cherry as to that fact

in order to impeach his statement that he was not aware that

smoking marijuana was illegal.          Id. at 401.

                                          16
        Cherry   makes    much        of     the        fact    that     the     jury    twice

interrupted their deliberations to ask questions of the court.

The jury requested to see the Taser video recording again, and

asked whether there was anybody else standing by the vehicle

before Officer        Ortiz,   who         recovered       the    gun,      arrived     at    the

scene.       Such requests are not uncommon, and we do not find them

to be evidence of a lack of unanimity among the jurors as to

their ultimate findings.          Moreover, despite Cherry’s attempts to

cast the deliberations as long--and by implication, contentious-

-the jury returned its verdict on the same afternoon it retired.

     The fact that the jury foreperson presented the court with

a signed verdict form before the judge’s erroneous recitation of

Cherry’s      criminal   history       further           indicates       the    unlikelihood

that his statements affected the trial’s outcome.                                  The clerk

read the verdict aloud and asked, “Members of the jury, is this

your verdict, so say you all?”                 J.A. 514.              In response to this

question,      the    jurors   all     indicated           an    affirmative       response.

While a collective affirmation is not a substitute for a poll,

we find in this instance that it constitutes further evidence of

the unanimity of the jury and indicates the irrelevance of the

judge’s comments to the outcome of the trial.                           See United States

v. Miller, 59 F.3d 417, 421 (3d Cir. 1995) (“When [a collective

poll] is considered against the backdrop of a relatively simple

case,    a    short   period     of    deliberation              by   the      jury,    and   no

                                                   17
indication       in   the      record      that        any    of       the    jurors         displayed

reluctance or disagreement with the verdict, we cannot say that

the district court abused its discretion.”); Carter, 772 F.2d at

67-68.

       We further note that the judge’s comments in this case are

distinguishable         from       those    in       the    two    cases      from       our    sister

circuits       that   Cherry        relies       on,       Harlow,      444       F.3d       1255,   and

Randle, 966 F.2d 1209.                   The judicial comments to the jury in

both of those cases were considerably more egregious than those

at   issue      here.         In    Harlow,          the     judge      relayed          a    personal

conversation he had with a government witness which revealed

that     168     children          had     been        implicated            in     the        use    of

methamphetamine         provided           by        the     conspiracy            involving         the

defendant       and     the        terrible          impact       of     methamphetamine             on

communities.          444 F.3d at 1260.                     He went on to commend the

jurors on rendering a public service on par with several highly

publicized      cases.         Id.         In    Randle,       the      judge       read       out   the

probation report, which stated in part, “there is no combination

or   conditions       that     can       assure       that    this       defendant           will    not

continue to get into trouble with the law.                                    His track record

speaks for itself.”                966 F.2d at 1213.                   The judge’s comments

here were less inflammatory, although we acknowledge that they

could    have    been    understood             as    implying         the    accuracy         of    the

jury’s verdict.         See Harlow, 444 F.3d at 1268 (quoting Quercia,

                                                      18
289 U.S. at 470 (“The influence of the trial judge on the jury

is necessarily and properly of great weight and his lightest

word or intimation is received with deference, and may prove

controlling.”)).     Moreover, in Randle, the only case of these

two to result in a reversal, the judge denied defense counsel’s

request to conduct an individual poll outright.                966 F.2d at

1213.   Here, in contrast, the court allowed for a poll as soon

as it became clear that defense counsel desired that one be

conducted.

     Given these circumstances, it is difficult to imagine that

a different outcome might have resulted had the court not erred.

Accordingly,   we   find   that   the   error   did   not   affect   Cherry’s

substantial rights and does not warrant reversal.



                                   III.

     For the foregoing reasons, each of Cherry’s convictions is

                                                                     AFFIRMED.




                                        19
