UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4071

ELBERT BLANGO,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-350-A)

Submitted: October 31, 1996

Decided: November 20, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Frank Salvato, Alexandria, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Thomas C. Bradley, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

In 1995, Inmate Elbert Blango was returning from a work detail to
Lorton Reformatory. During a routine shakedown, Officer Quispe
found a small amount of marijuana. Blango tried to grab the drug and
eat it. During the resulting scuffle, Blango struck Sergeant Wilkes. He
was indicted for two drug-related offenses and for assault on a correc-
tional officer, in violation of 22 D.C. Code § 505(a). The drug counts
were dropped during trial, but Blango was convicted of the remaining
charge. He was sentenced to twelve months imprisonment consecu-
tive to his existing sentence, followed by two years of supervised
release. Blango appeals that conviction.

I

Blango first contends that he was denied the right to adequately
cross-examine Officer Quispe. Blango attempted to impeach Quispe
with a disciplinary report from his employment file. After reviewing
the material, the district court ruled that the report, for insubordination
and violation of policy, was only marginally relevant to Quispe's
truthfulness.

While a criminal defendant has a fundamental right to effectively
cross-examine a witness, Davis v. Alaska, 

, 315-16
(1974), the trial court may place reasonable limits on cross-
examination to prevent harassment of or prejudice to the witness, and
questions of questionable relevance. Delaware v. Van Arsdall, 

, 679 (1986). We review such restrictions for abuse of discre-
tion. United States v. Carty, 

, 1010 (1st Cir. 1993).

We conclude that the district court did not abuse its discretion in
its ruling on the disciplinary report. The contents of the report were
not related to the incidents of the case, or to Quispe's bias or general
truthfulness. Counsel for Blango fully cross-examined Quispe about
the incident in question. In addition, Quispe's testimony was primar-
ily concerned with the drug charges--he testified that he was too con-
cerned with recovering the marijuana on the floor to attend to the

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struggle between Wilkes and Blango. Wilkes and another officer testi-
fied and were cross-examined about the struggle. Therefore, this
claim entitles Blango to no relief.

II

In his closing argument, the prosecutor stated:

          [T]he defendant will punch somebody in front of other offi-
          cers; because he knows, one, that he will either get away
          with it when he does it, or, two, they will hit him back, and
          he will have a lawsuit against the District of Columbia. In
          fact, that's probably what he's hoping for. He can make
          some money out of it. Sure, he'll punch an officer in front
          of others. It's a no-lose situation.

Blango argues that these comments were reversible error, as there was
no evidence that he had filed or intended such a lawsuit.

Counsel for Blango did not object to these statements. Absent plain
error, an improper closing argument by the prosecutor is not grounds
for reversal where the defendant has not objected. United States v.
DePew, 

, 327-28 (4th Cir.), cert. denied, 

(1991). Therefore, we review the issue for plain error. Fed. R. Crim.
P. 52(b); United States v. Olano, 

, 734 (1993). Plain
error is: (1) an error, (2) clear and obvious under existing law, (3)
which is so prejudicial as to affect the outcome of the proceedings,
and (4) which seriously affects the fairness, integrity, or public repu-
tation of the proceedings. United States v. Hanno, 

, 45 (4th
Cir. 1994).

Even if Blango could satisfy us that the first two elements of the
plain error standard were met, we are convinced that he could not
meet the last two elements. The prosecutor's closing argument was
not so prejudicial as to affect the jury's verdict. The quoted comment
was the only such statement in the prosecutor's remarks. The jury
heard no evidence that Blango had filed or intended to file a lawsuit
against the officers or the city. The prosecution presented ample evi-
dence that Blango struggled with the officers and struck Sergeant

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Wilkes. Soon after the prosecutor's comments, the district court
reminded the jury that the arguments of counsel are not evidence.
Thus, Blango has not established prejudice which might have affected
the outcome. Nor do we conclude that the fairness or public integrity
of the trial was affected.

III

During jury selection, the district court noted a shortage of jurors.
At a bench conference, the judge and counsel for both sides agreed
to recall a juror previously excused for hardship. After defense coun-
sel finished exercising his peremptory challenges, they were again
one juror short. The judge suggested either agreeing to use eleven
jurors or continuing the case to another day. Counsel for Blango, after
calling the defendant to the bench, suggested restoring one of the
jurors he had struck. All parties agreed to this solution, and the trial
proceeded.

Blango now argues that he should have been present at the bench
during the entire discussion, and that the subsequent use of a struck
juror is improper. Any right Blango had to be present at the bench
conference during jury selection, he waived by failing to raise an
objection in the district court. United States v. Ford, 

,
1369 (4th Cir. 1996); see United States v. Gagnon, 

, 528
(1985).

As to the reinstatement of the jurors, defense counsel suggested or
agreed to both contested actions, foregoing other options suggested by
the district court. Therefore, he is entitled to no relief. See United
States v. Evans, 

, 1127-28 (4th Cir. 1980) (substituting
alternate juror after deliberations had begun did not prejudice con-
senting defendant), cert. denied, 

(1981).

We affirm Blango's conviction and sentence. 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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