UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-4586

KEVIN PARHAM,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-96-459-S)

Submitted: April 14, 1998

Decided: May 15, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Clarke F. Ahlers, Columbia, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, James G. Warwick, Assistant United
States Attorney, Andrew G.W. Norman, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Kevin Parham seeks review of his jury convictions for conspiracy
to commit bank robbery in violation of 18 U.S.C.A.§ 371 (West 1994
& Supp. 1997), bank robbery in violation of 18 U.S.C.A. § 2113(a),
(f) (West 1994 & Supp. 1997), and using and carrying a firearm in
the commission of a crime of violence in violation of 18 U.S.C.A.
§ 924(c) (West Supp. 1997). He was sentenced to 240 months'
imprisonment. On appeal, Parham alleges prosecutorial misconduct
and contends that the district court abused its discretion when it
denied a defense request for a mistrial, that the district court abused
its discretion when it denied a defense request for a continuance, and
that he received ineffective assistance of counsel. Finding no revers-
ible error, we affirm.

The evidence at trial demonstrated that Parham and Reginald Nel-
son entered Nations Bank, a bank insured by the Federal Deposit
Insurance Corporation, each armed with a shotgun. Nelson vaulted
the counter, while Parham stood guard at the front of the bank near
the manager's office. Nelson emptied the money from the tellers'
drawers and removed a money clip which set off the bank alarm.
Thereafter the two were seen fleeing from the bank by a witness.

The witness notified the police of the robbery and provided the
police with the license plate number of the getaway vehicle and a
description of the suspects. The license plate number was traced back
to the residence of Nelson's girlfriend, Marilyn Kellum. At trial Kel-
lum testified that the night before the robbery, Kellum drove Nelson
to Parham's grandmother's house for a brief meeting. She further tes-
tified that on the day of the robbery she and Nelson picked up Parham
and the three drove back to Kellum's residence. After the three
arrived at her residence, Nelson and Parham borrowed her vehicle.
Kellum then testified that while she was sleeping she heard Nelson

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and Parham return with her vehicle, run into the house, and slam the
back door. Thereafter, she heard a helicopter and police outside and
heard Nelson tell Parham to stop hiding the money.

When police arrived at Kellum's residence they located the get-
away vehicle parked behind her house. Hostage negotiator Gentry tes-
tified that during negotiations he spoke with a man inside Kellum's
residence who identified himself as Kevin Parham. After a brief
stand-off, Kellum, Nelson, and Parham surrendered and exited the
house.

During a search of the getaway vehicle the police recovered a dye-
stained police radio scanner, a loaded shotgun, a black neoprene
mask, a right-handed dye-stained glove, Parham's white sneakers that
the bank manager testified looked "just like the shoes" the robber
standing guard was wearing, and other articles of clothing worn by
the bank robbers. Inside Kellum's residence the police recovered dye-
stained pillow cases and a total of $75,000, some of which was dye-
stained.

Nelson and Parham were charged with conspiracy to commit bank
robbery, bank robbery, and use and carrying of a firearm in the com-
mission of a crime of violence. Nelson entered a plea of guilty while
Parham entered a plea of not guilty. At the end of Parham's first trial
the jury was deadlocked and the court declared a mistrial. After
Parham's second trial, a jury found him guilty on all counts.

I

Parham claims that his Sixth Amendment right to effective assis-
tance of counsel was violated because the prosecutor made disparag-
ing remarks about defense counsel during his rebuttal closing
argument. In essence, Parham asserts that the prosecutor's statements
amounted to prosecutorial misconduct because the prosecutor
attempted to discredit defense counsel by suggesting to the jurors that
he had deceived or misled them with his remarks.

We will analyze this claim as a due process argument and deter-
mine whether Parham has shown that the prosecutor's remarks were

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improper and that they prejudicially affected his substantial rights so
as to deprive him of a fair trial. See United States v. Wilson, 135 F.3d
291, 297 (4th Cir. 1998). We find that the challenged statements do
not rise to this level.

When recounting Parham's grandmother's testimony for the prose-
cution, the prosecutor said that he had been waiting for defense coun-
sel to attack the grandmother's credibility. We fail to see how this
comment conveyed to the jury that defense counsel enjoyed a reputa-
tion for forensic misconduct, as Parham claims. We find no improper
comment nor the requisite prejudice.

Parham begins explaining his second allegation of prosecutorial
misconduct by attacking a comment made by the prosecutor that there
had been no other explanation given for why Parham was in Kellum's
home with Nelson, implying that he was there because he and Nelson
had just robbed the bank together. We agree with the district court
that this comment was not intended to be and would not be viewed
by the jurors as a comment on Parham's failure to testify. See United
States v. Francis, 82 F.3d 77, 78-79 (4th Cir.), cert. denied, 64
U.S.L.W. 3821 (U.S. June 10, 1996) (No. 95-8956); see also United
States v. Whitehead, 618 F.2d 523, 527 (4th Cir. 1980).

Parham concludes his explanation of the second ground by discuss-
ing the prosecutor's argument regarding anticipated defense conduct.
However, Parham failed to object to this comment at trial and we find
no plain error or resulting prejudice from it.

Parham next cites the prosecutor's remarks regarding general insti-
tutional conduct of the defense bar in cases where there is little physi-
cal evidence linking the defendant to the crime. We agree with the
district court that this was fair argument.

Finally, Parham points to his objection to the prosecutor's com-
ment that defense counsel had hinted that Kellum had something to
do with the robbery and that she was lying to the jury. The trial judge
immediately told the jury that he doubted whether the prosecutor's
recollection was accurate but that it was up to the jurors to decide for
themselves what had happened. After reviewing defense counsel's
argument on this point (J.A. 110-11), we understand why the prosecu-

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tor was left with this impression and find that his comment was not
improper. Moreover, the court's curative instructions eliminated any
possible prejudice. See United States v. Harrison, 716 F.2d 1050,
1053 (4th Cir. 1983).

II

Parham contends that the trial court erroneously denied his request
for a mistrial following impermissible testimony of a prosecution wit-
ness. At trial, hostage negotiator Gentry testified concerning the iden-
tity of the parties inside Kellum's residence immediately following
the bank robbery and those who exited the residence after the stand-
off. After the prosecutor asked Gentry if he had spoken with anybody
who came out of the residence, Gentry stated that he had spoken with
Nelson, who upon arrest proclaimed that he was a"victim of society."
Following defense counsel's objection, the court ruled that the state-
ment was inappropriate and admonished the jury to disregard the wit-
ness's statement. Because of this allegedly inappropriate comment,
Parham asserts that the court should have granted his motion for a
mistrial.

We review a trial judge's decision to deny a mistrial motion for
abuse of discretion. See United States v. Kennedy, 32 F.3d 876,
884-85 (4th Cir. 1994). A review of the record discloses that the court
did not abuse its discretion in denying Parham's motion for a mistrial.
Because there was nothing in this brief statement directly implicating
or referencing Parham, he was not prejudiced. See generally United
States v. Locklear, 24 F.3d 641, 646 (4th Cir. 1994). Furthermore, the
judge immediately instructed the jury to disregard this statement,
thereby curing any possible prejudice. See Harrison, 716 F.2d at
1053.

III

At the beginning of the second trial Parham requested a continu-
ance so he could obtain and review a transcript of the first trial.
Parham now argues that the court erroneously denied his request. The
district court's denial of a continuance is reviewed for abuse of dis-
cretion. United States v. Bakker, 925 F.2d 728, 735 (4th Cir. 1991).
The court's decision is reversible only if it is prejudicial. See id.

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Parham suggests that the court's ruling was unreasonable and arbi-
trary without explaining how it prejudiced him. However, Parham
was granted access to expedited transcripts of testimony from the first
trial which were used to cross-examine and impeach prosecution wit-
nesses at the second trial. Because Parham does not show any preju-
dice, we find that the court did not abuse its discretion. See id.

IV

Parham alleges that trial counsel deliberately "threw the case" and
attempted to have him convicted. A claim of ineffective assistance of
counsel is not reviewable on direct appeal unless it"conclusively
appears" from the record that defense counsel did not provide effec-
tive representation. United States v. Matzkin , 14 F.3d 1014, 1017 (4th
Cir. 1994). The record does not reveal that trial counsel was ineffec-
tive. In fact, the record contains several instances where the court
praised Parham's attorney. Because the record in this case does not
conclusively demonstrate ineffective assistance of counsel, we decline
to address this issue on direct appeal. See id.

Accordingly, we affirm the district court's judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the material before the court and argument would
not aid in the decisional process.

AFFIRMED

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