United States v. Phillips ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4911
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WESLEY E. PHILLIPS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:09-cr-00188-LO-1)
Submitted: July 14, 2010 Decided: August 6, 2010
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Anthony L. Ricco, Steven Z. Legon, New York, New York, for
Appellant. Neil H. MacBride, United States Attorney, Benjamin
L. Hatch, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Wesley E. Phillips, Jr., of two
counts of making false statements to the Department of Housing
and Urban Development (“HUD”) during the course of an
investigation, in violation of 18 U.S.C. § 1001 (2006). The
district court sentenced him to two years of probation.
Phillips appeals his convictions, challenging the exclusion of
two defense witnesses, the adequacy of the jury instructions,
and the sufficiency of the evidence. Finding no reversible
error, we affirm.
Phillips first contends that the district court erred
by excluding two defense witnesses. He asserts that the
witnesses’ testimony would have demonstrated the bias of a key
government witness. Although a criminal defendant has a
constitutional right to present evidence in his favor, see,
e.g., United States v. Moussaoui, 382 F.3d 453, 471 (4th Cir.
2004), “a defendant’s right to present a defense is not
absolute; criminal defendants do not have a right to present
evidence that the district court, in its discretion, deems
irrelevant or immaterial.” United States v. Malloy, 568 F.3d
166, 177 (4th Cir. 2009) (internal quotation marks and citations
omitted), cert. denied, 130 S. Ct. 1736 (2010). We review a
district court’s evidentiary rulings for an abuse of discretion.
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United States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010) (stating
standard of review).
With these standards in mind, our review of the
portions of the trial transcript included in the record on
appeal leads us to conclude that the district court did not
abuse its discretion by excluding the witnesses’ testimony.
Moreover, even assuming that the district court abused its
discretion, we hold that any error was harmless in light of
defense counsel’s extensive cross-examination of the government
witness sought to be impeached. See United States v. Kelly, 510
F.3d 433, 439 (4th Cir. 2007) (finding exclusion of impeachment
evidence harmless where witness subjected to vigorous cross-
examination attacking credibility). Thus, Phillips is not
entitled to relief on this claim.
Next, Phillips contends that the district court’s
definition of materiality was an inaccurate statement of the law
in light of United States v. Gaudin, 515 U.S. 506 (1995). “We
review the district court’s decision to give or refuse to give a
jury instruction for abuse of discretion.” United States v.
Green, 599 F.3d 360, 377 (4th Cir. 2010). In determining
whether the district court abused its discretion, “we consider
whether[,] taken as a whole and in the context of the entire
charge, the instructions accurately and fairly state the
controlling law.” Id. at 378 (internal quotation marks and
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citation omitted). Because the district court correctly
instructed the jury on the materiality element of the offenses,
we conclude that Phillips’ claim fails.
Phillips also asserts that the evidence was
insufficient to establish that his statements to the
investigating agent were material. This court reviews de novo
the district court’s decision to deny a motion pursuant to Fed.
R. Crim. P. 29. Green, 599 F.3d at 367. Where, as here, the
motion was based on a claim of insufficient evidence, “[t]he
verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
This court confines “reversal [of a conviction] on grounds of
insufficient evidence . . . to cases where the prosecution’s
failure is clear.” Green, 599 F.3d at 367 (internal quotation
marks and citation omitted).
We have reviewed the record on appeal and conclude
that Phillips’ false statements to the investigating agent were
material. See United States v. Garcia-Ochoa, 607 F.3d 371, 375
(4th Cir. 2010) (“The test of materiality is whether the false
statement has a natural tendency to influence agency action or
is capable of influencing agency action.”) (internal quotation
marks and citation omitted)). Although Phillips argues that the
agent was not competent to testify regarding HUD’s decision
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making authority, his argument is belied by the record. Thus,
we conclude that the district court did not err in denying
Phillips’ Rule 29 motion. ∗
Finally, Phillips challenges his convictions on the
ground that the prosecutor made an improper comment during
closing argument. We review a claim of prosecutorial misconduct
to determine “whether the [misconduct] so infected the trial
with unfairness as to make the resulting conviction a denial of
due process.” United States v. Caro, 597 F.3d 608, 624 (4th
Cir. 2010) (internal quotation marks and citation omitted). In
order to reverse a conviction based upon prosecutorial
misconduct, “the defendant must show (1) ‘that the prosecutor’s
remarks or conduct were improper’ and (2) ‘that such remarks or
conduct prejudicially affected his substantial rights so as to
deprive him of a fair trial.’” Id. at 624-25 (quoting United
States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)).
∗
To the extent Phillips raises for the first time on appeal
a claim that HUD did not have jurisdiction over Phillips’ use of
his personal firearm, we have reviewed his claim for plain error
and find none. See United States v. Jackson, __ F.3d __, __,
2010 WL 2528730, at *3 (4th Cir. June 24, 2010) (No. 09-4753)
(discussing meaning of “jurisdiction” for purposes of making
false statements in violation of § 1001); United States v.
Wallace, 515 F.3d 327, 331-32 (4th Cir. 2008) (reviewing
sufficiency of evidence for plain error where defendant did not
file Rule 29 motion in district court).
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Phillips failed to object to the Government’s closing
argument. Thus, our review is only for plain error, and there
is none. See United States v. Sanchez, 118 F.3d 192, 197 (4th
Cir. 1997) (stating standard of review). The prosecutor’s
closing argument was based on facts before the jury. In any
event, the district court ameliorated any prejudice that may
have resulted from the prosecutor’s comment by instructing the
jury that arguments of counsel were not evidence. See Caro, 597
F.3d at 626 (discussing factors courts should consider when
assessing prejudice, including whether court gave jury curative
instructions). Thus, Phillips is not entitled to relief.
Accordingly, we affirm the district court’s judgment.
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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