UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5443

MICHAEL WILLS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-94-515-A)

Argued: September 27, 1996

Decided: October 29, 1996

Before WILKINSON, Chief Judge, and RUSSELL and HALL,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Hilton Wise, Fairfax, Virginia, for Appellant.
Markus Heinz Meier, Special Assistant United States Attorney, FED-
ERAL TRADE COMMISSION, Washington, D.C., for Appellee. ON
BRIEF: Helen F. Fahey, United States Attorney, Casey R. Triggs,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Michael Wills appeals his conviction and 28-month sentence for
possessing a homemade knife, or "shank," at the District of Colum-
bia's prison in Lorton, Virginia. Finding no error, we affirm.

I.

According to the government's evidence at trial, on November 29,
1994, correctional officers at Lorton received an anonymous note.
The note stated that defendant Michael Wills was in possession of a
shank because he had been stabbed by a fellow inmate. A search of
Wills and his cell was ordered.

Officers Cooper and Dunmore attempted to search Wills in a small
room in the cell block. When Dunmore noticed a pointed object in
Wills' underwear, Wills became agitated. The officers feared that he
would resist, and so they had him put his clothes back on and took
him to the control center, where he could be searched in a safer, more
secure environment.

At the control center, the shift commander, Captain Johnson,
assisted Cooper in the strip search. After Wills had disrobed down to
his underwear, he pulled out a shank and said, "This is what you're
looking for."

Wills was charged with prisoner possession of a shank, in violation
of Va. Code § 53.1-203(4), assimilated to acts at Lorton by 18 U.S.C.
§ 13. He was convicted following a jury trial and was sentenced to 28
months in prison, a period of supervised release, and a $50 special
assessment. He appeals.

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II.

Wills was serving time for a 1989 assault with a knife, and had also
been convicted in 1992 for stabbing another inmate with a shank. In
February 1993, during a shakedown of his cell, two shanks had been
found hidden in a light fixture. The government sought to make broad
use of these prior acts at trial. In its discretion, the district court kept
the government reined in, but all of the evidence was eventually
admitted for one purpose or another. Wills contends that its admission
was reversible error. We disagree.

A day before trial, the government served notice of its intent to
offer, and a request to admit, evidence of the prior convictions and
acts under Fed. R. Evid. 404(b). The district court's pretrial order had
required that any such notice be served at least five days before trial.
Wills moved in limine to exclude the evidence, and the government
withdrew its request to use the evidence in its case-in-chief. The gov-
ernment presented its case and rested.

Then the defendant took the stand in his own defense. Once he
became a witness, the bases of possible admissibility widened. The
government asked the court's permission to introduce the evidence to
impeach Wills' credibility. The district court made a wise ruling --
the government could offer only the fact of Wills' two prior felony
convictions under Rule 609, but no underlying details, because of the
risk of unfair prejudice from the jury's knowing of Wills' prior use
of knives and shanks. See United States v. Sanders, 

, 298
(4th Cir. 1992) (unfair prejudice arising from similarity of prior
crimes may substantially outweigh impeachment value; if so, courts
should exclude the evidence or limit it to the fact of conviction with-
out more).

Wills told his story: the officers planted the shank in his shirt dur-
ing the strip search, in retaliation for his having filed a lawsuit against
some of them. Then defense counsel asked Wills whether he had ever
possessed a shank before, and Wills said yes, but just not on the day
charged.1
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1 Wills' admission distinguishes this case from Sanders. In that case, it
was the government, and not the defendant, that first introduced evidence

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The government asked the court to reconsider its limitations on the
use of the prior convictions. Reasoning that Wills' admission had
removed the unfair prejudice issue, the court allowed the government
to inquire about Wills' motive for prior possession of a shank and the
factual details of his convictions. Wills freely admitted those details,
but then he slipped up by testifying that the incident resulting in his
second conviction was the only time he had possessed a shank at Lor-
ton. The government then was permitted to ask Wills about the two
shanks found in his cell during the 1993 shakedown.

The rules permit the admission of evidence of prior convictions and
acts for certain purposes, and the district court carefully restricted it
to the rules' boundaries (and gave the appropriate limiting instruc-
tions, we should add). The district court's rulings on evidence are
reviewed for abuse of discretion. We see no abuse of discretion.

III.

A.

Wills' other two arguments need not detain us long. He first asserts
that the district court somehow confused the jury about the meaning
of reasonable doubt.

During deliberations, the jury asked for a definition of reasonable
doubt. Our decision in United States v. Reives , 

 (4th Cir.),
cert. denied, 

 (1994), had just been announced, and the
district court proposed to counsel to follow it, i.e., the court would
simply repeat its original instruction about reasonable doubt. There
was no objection. The court then addressed the assembled jury:

            I'm going to repeat to you the definition that I gave to you
           at the outset. In doing so, I want you to remember that you
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of the inmate's prior possession and use of shanks. We held that the
details of these events (which had resulted in convictions) provided little
additional impeachment value under Rule 609, but added a great deal of
unfair prejudice. Sanders, 964 F.2d at 298. Here, up until Wills' admis-
sion, the district court had done just what Sanders permitted: limiting the
evidence of prior convictions for similar conduct to the bare fact of con-
viction.

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          should not take this instruction out of context but you should
          consider all of the instructions as a whole.

The court reread its instruction, again with no objection. Review is
therefore for plain error. United States v. Olano, 

 (1993).

Wills argues that, by labeling its reread instruction as a "defini-
tion," the court misled the jury into believing it was getting something
different than it heard the first time. This argument is specious. Be it
labeled an instruction or a definition, it was a"repeat" of the words
used "at the outset," and its content was unobjectionable. There was
no error, plain or otherwise.

B.

Wills' last argument relates to his sentence. Under the Assimilated
Crimes Act, the punishment must be "like" that imposed in state
courts. 18 U.S.C. § 13(a). The sentencing guidelines apply to the ful-
lest extent possible, subject to the minimum and maximum in the state
statute. United States v. Young, 

, 150 (4th Cir. 1990). In
Virginia, prisoner possession of a shank is a Class 6 felony, punish-
able by (i) one to five years in prison, with no fine; or (ii) up to twelve
months in prison, a fine of up to $2,500, or both. Va. Code § 18.2-
10(f). Virginia also has a $30 charge similar to the federal $50 special
assessment. Va. Code § 19.2-368.18.

Wills was sentenced to 28 months and no fine, which would be
proper under the assimilated state law. He argues, however, that the
extra $20 in the special assessment is a "fine," and his imprisonment
should therefore be capped at 12 months.2

When the special assessment was first enacted, some courts,
including this one, held that it could not be imposed in an Assimilated
Crimes Act case unless state law also provided for it. See, e.g., United
States v. King, 

, 315 (4th Cir. 1987). In response, Con-
gress added 18 U.S.C. § 3013(d), which specifically made the $50
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2 He does not advocate the less drastic "cure": capping his assessment
at $30.

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assessment applicable to those cases. It follows, then, that state law
is now wholly irrelevant on the issue, and the $50 does not make
Wills' sentence "unlike" that to which he would be subject in state
court.

The judgment of the district court is affirmed.

AFFIRMED

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