United States v. Adams , 335 F. App'x 338 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4180
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT KEITH ADAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:06-cr-00112-jct-1)
Argued: May 15, 2009 Decided: June 29, 2009
Before MICHAEL, SHEDD, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded for resentencing
by unpublished per curiam opinion.
ARGUED: Terry Neill Grimes, GRIMES & WILLIAMS, P.C., Roanoke,
Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: Melvin E. Williams, GRIMES & WILLIAMS, P.C., Roanoke,
Virginia, for Appellant. Julia C. Dudley, Acting United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Keith Adams was convicted of obstruction of
proceedings in an official investigation, in violation of 18
U.S.C. § 1505, and making a materially false statement, in
violation of 18 U.S.C. § 1001(a)(2). Adams appeals, raising
twelve separate arguments challenging the district court’s
resolution of pre- and post-trial motions, the admission of
certain evidence, the sufficiency of the evidence, the propriety
of certain jury instructions, and the fairness of his trial due
to alleged prosecutorial misconduct.
The Government concedes that Adams’ conviction for
obstruction should be vacated, and contends that this concession
makes most of Adams’ remaining arguments moot. The Government
further contends the evidence was sufficient to convict Adams on
the material false statement charge, and that any errors that
may have occurred regarding that charge were harmless.
For the reasons set forth below, we affirm Adams’
conviction for making a false statement. However, because the
Government concedes that Adams’ conviction for obstruction
should be vacated, we vacate Adams’ conviction for that count
and remand for resentencing.
2
I.
Prior to his arrest, Adams was a Sergeant with the Henry
County Sheriff’s Department (“HCSD”). In March 2005, a joint-
agency investigation revealed wide-spread corruption and
criminal activity within the HCSD. As a result of the
investigation, at least twenty individuals in the HCSD,
including Adams, were prosecuted for federal crimes.
In a six-count indictment, Adams was charged with
relieving, comforting and assisting a person who had committed
an offense against the United States in order to hinder or
prevent that person’s apprehension, trial and punishment, in
violation of 18 U.S.C. § 3 (“Count I”); concealing knowledge of
the commission of a narcotics felony by performing acts in
violation and contravention of his sworn duties as a law
enforcement officer, in violation of 18 U.S.C. § 4 (“Count II”);
obstruction of justice by impeding an official investigation, in
violation of 18 U.S.C. § 1512(c)(2) (“Count III”); obstruction
of justice by impeding an agency proceeding, in violation of 18
U.S.C. § 1505 (“Count IV”); and two counts of making false
material statements to a government agent, in violation of 18
U.S.C. § 1001(a)(2) (“Count V” and “Count VI”).
Prior to trial, the district court dismissed Count III.
Adams was tried by a jury on the five remaining counts. He was
acquitted on Counts I, II, and VI, but convicted by the jury on
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Counts IV and V. The district court sentenced Adams to separate
terms of imprisonment of 12 months and one day for each count,
to run concurrently, and to a period of 24 months’ supervised
release on each count, also to run concurrently.
Adams noted a timely appeal, raising twelve issues of
alleged error. Additional facts relating to each issue will be
discussed in context.
II.
A.
Several of Adams’ arguments challenge his conviction on
Count IV, for obstruction of proceedings in an official
investigation, in violation of 18 U.S.C. § 1505. As noted, the
Government concedes “for purposes of this appeal that a criminal
investigation by the [Drug Enforcement Agency] or [Federal
Bureau of Investigation] is not a ‘pending proceeding’ within
the scope of 18 U.S.C. § 1505, and requests that Adams’
conviction on Count [IV] be vacated . . . .” (Appellee’s Br.
15.) In light of the Government’s concession, we will vacate
Adams’ conviction on Count IV. Furthermore, because of this
4
disposition, we need not address Adams’ remaining arguments
challenging his conviction on that charge. 1
B.
Adams also challenges the sufficiency of the evidence to
convict him on Count V. In assessing the sufficiency of the
evidence, the Court determines whether the jury’s verdict is
sustained by “substantial evidence, taking the view most
favorable to the Government, to support it.” United States v.
Pierce, 409 F.3d 228, 231 (4th Cir. 2005) (quoting Glasser v.
United States, 315 U.S. 60, 80 (1942)) (internal quotation marks
omitted). “[S]ubstantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc).
Count V charged Adams with making a false material
statement to agents of the Federal Bureau of Investigation
(“FBI”), in violation of 18 U.S.C. § 1001(a)(2). This statute
1
In addition to raising several arguments directly
challenging his conviction on Count IV, Adams contends that his
convictions for Counts IV and V violated the Double Jeopardy
Clause. Because we are vacating his conviction as to Count IV,
this argument is also moot. See United States v. Bass, 310 F.3d
321, 323 (5th Cir. 2002) (holding Double Jeopardy argument is
moot where the court had held that one of the convictions at
issue must be vacated for other reasons); United States v. Otis,
127 F.3d 829, 835 (9th Cir. 1997) (same).
5
prohibits an individual from “knowingly and willfully” making
“any materially false, fictitious, or fraudulent statement or
representation” “in any matter within the jurisdiction of the
executive . . . branch of the Government.” 18 U.S.C.A. §
1001(a)(2) (West 2000 & Supp. 2008). Adams asserts the
Government failed to meet its burden of proving Adams “knowingly
and willfully made a false statement” to the FBI Agents.
(Appellant’s Br. 44.)
The evidence adduced at trial showed that James Vaught, a
former HCSD officer, eventually cooperated with investigators
and agreed to wear a wire to record conversations with other
members of the HCSD. The Government recorded a January 2006
conversation between Vaught and Adams, during which Vaught told
Adams he was looking for known drug dealer Wilbert Brown in
order to sell him a half-kilogram of cocaine.
On March 24, 2006, FBI Agents Stan Slater and Mark Austin
(collectively “the Agents”) interviewed Adams as part of their
investigation. During that recorded interview, Adams twice told
the Agents he had no idea why Vaught had been looking for Brown
in January 2006. In light of these recordings, which were
played for the jury, we conclude that sufficient evidence exists
to support the guilty verdict as to Count V.
6
C.
Adams contends the district court erred in denying several
pre-trial motions: a motion to suppress the March 24, 2006
statements to the FBI Agents, a motion to dismiss the
indictment, a motion to order a bill of particulars, and a
motion to order separate trials of each count. We address each
claim in turn.
Adams argues the district court should have suppressed all
of the statements he made during the March 24, 2006 interview
with the Agents because they promised him that any statements
made during that interview would be kept confidential. As a
consequence, Adams contends that using his statements to the
Agents as the basis for Count V violated what effectively was a
promise of immunity. 2 In reviewing the denial of a motion to
suppress, this Court “reviews the district court’s factual
findings for clear error, and its legal conclusions de novo.”
United States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007).
Adams’ argument fails because the transcript of the March 24,
2006 interview shows that the Agents did not promise Adams
immunity from prosecution. The context of their statements
2
The Government also relied on statements Adams made in the
March 2006 interview as part of its proof regarding Count VI.
However, because Adams was acquitted of that charge, his
argument related to Count VI is moot because acquittal afforded
him a complete remedy. See United States v. Burns, 990 F.2d
1426, 1439 (4th Cir. 1993).
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shows that they would not report anything Adams told the Agents
to Adams’ supervisors in the HCSD. The Agents clearly and
repeatedly told Adams that anything he told them could be used
to prosecute him. Furthermore, the transcript of the March 24,
2006 interview shows that Adams first told the Agents that he
did not know why Vaught wanted to find Brown prior to the
Agents’ purported promise of confidentiality. Although Adams
subsequently reiterated his statement, Adams’ initial statement
alone was sufficient to convict Adams of making a material false
statement to the Agents, as charged in Count V. Accordingly,
the district court did not err in denying Adams’ motion to
suppress.
Adams next contends the district court erred by failing to
dismiss the indictment because the indictment lacked specificity
with regard to Counts I, II, and IV. Adams’ argument is
unavailing as to Counts I and II because he was acquitted of
those counts. That acquittal afforded him a complete remedy to
any perceived error. See Burns, 990 F.2d at 1439. Similarly,
no error is cognizable as to Count IV because we are vacating
Adams’ conviction as to that count, so this contention is now
moot. See Consolidation Coal Co. v. Local 1643, 48 F.3d 125,
130 n.6 (4th Cir. 1995).
Adams also asserts the district court abused its discretion
by failing to order a bill of particulars. See United States v.
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MacDougall, 790 F.2d 1135, 1153 (4th Cir. 1986) (review is for
abuse of discretion). Adams maintains that the indictment’s
allegations were too vague for him to adequately prepare for
trial, and that a bill of particulars was necessary to pinpoint
the location of any information in the voluminous evidence that
the Government planned to use against him.
“[T]he purpose of a bill of particulars is to enable a
defendant to obtain sufficient information on the nature of the
charge against him so that he may prepare for trial, minimize
the danger of surprise at trial, and enable him to plead his
acquittal or conviction in bar of another prosecution for the
same offense.” United States v. Schembari, 484 F.2d 931, 934-35
(4th Cir. 1973). However, the purpose of a bill of particulars
is “fully satisfied” when the Government turns over its entire
file to the defendant. Id. at 935.
Here, the Government maintained an open file policy,
informed Adams that all the evidence against him would be found
in transcripts of Vaught’s recordings, and provided
electronically-searchable transcripts of those recordings.
Moreover, Adams’ arguments during the motion to dismiss the
indictment show that Adams knew specifically what the
Government’s evidence was well before trial. On this record, it
is clear that the purpose of a bill of particulars was
9
fulfilled, and the district court did not abuse its discretion
in refusing to grant Adams’ motion.
Adams contends the court should have ordered separate
trials on the various counts of the indictment. Specifically,
he asserts there should have been separate trials on Counts I
and II, Count V, and Count VI because although Counts I and II
related to each other, the other counts were not properly joined
and a single trial was prejudicial. “Whether offenses in an
indictment are improperly joined under [Fed. R. Crim. P. 8(a)]
is a question of law reviewed de novo.” United States v.
Cardwell, 433 F.3d 378, 384-85 (4th Cir. 2005). Whether the
district court erred in denying a Rule 14 motion to sever
properly-joined charges is reviewed for abuse of discretion.
Id. at 385. The principles governing joinder are clear:
Under Federal Rule of Criminal Procedure 8(a), a
single indictment may charge a defendant with multiple
counts if the offenses charged are of the same or
similar character, or are based on the same act or
transaction, or are connected with or constitute parts
of a common scheme or plan. Joinder of related
charges is broadly permitted to avoid needless
duplication of judicial proceedings, particularly
where evidence of one charge would be admissible to
prove another charge. Nonetheless, Rule 14(a)
provides that [i]f the joinder of offenses . . .
appears to prejudice a defendant or the government,
the court may order separate trials of counts. The
party seeking severance bears the burden of
demonstrating a strong showing of prejudice, and we
are mindful that the district court’s denial of a
motion to sever should be left undisturbed, absent a
showing of clear prejudice or abuse of discretion.
10
United States v. Branch, 537 F.3d 328, 341 (4th Cir. 2008)
(internal quotation marks and citations omitted) (alterations in
original).
We conclude the charges were properly joined in a single
indictment and the district court did not abuse its discretion
in permitting a single trial of all the charges against Adams.
The charges that went to trial all stemmed from Adams’ purported
knowledge of criminal conduct at HCSD, his efforts to conceal
that activity, and his subsequent failure to be forthcoming to
FBI Agents during their investigation into HCSD. Accordingly,
the charges were of a similar character and were sufficiently
connected to be joined in the same indictment.
Having determined the charges were properly joined, we next
consider whether the district court abused its discretion by
failing to sever the charges. It is readily apparent from the
record that “[t]rying the [charges] separately would have led to
significant inconvenience for the government and its witnesses,
and required needless duplication of judicial resources in light
of the legal, factual, and logistical relationship between the
charges.” See United States v. Mir, 525 F.3d 351, 357 (4th Cir.
2008). As just two examples, Agent Slater testified as to key
evidence related to all of the charges against Adams, and
Vaught’s testimony related to Counts I, II, IV, and V. In light
of the district court’s broad authority to permit a single trial
11
of properly-joined charges, we find no error in the exercise of
its discretion doing so.
D.
Adams claims the admission of two pieces of evidence
constituted prejudicial error. First, he asserts the admission
of his testimony on cross-examination that he had an
extramarital affair was irrelevant and highly prejudicial.
Second, he asserts the testimony of Wynona Dudley as to
statements made by her deceased boyfriend, Calvin Rayfield
Moore, were inadmissible under the Federal Rules of Evidence
governing admission of hearsay.
Adams filed a motion in limine to exclude any evidence that
he had an extramarital affair. The district court deferred a
decision on that motion to “see how the evidence develop[ed]” at
trial. (J.A. 210.) Although the Government asked Adams during
cross-examination whether he had engaged in extramarital
affairs, Adams did not object. Accordingly, this Court reviews
the admission of that evidence for plain error. United States
v. Ellis, 121 F.3d 908, 918 (4th Cir. 1997) (holding review is
limited to plain error when a district court defers ruling on a
motion in limine regarding certain evidence and the defendant
fails to object when that evidence is subsequently introduced
during trial).
12
Under the plain error standard of review, to establish
our authority to notice an error not preserved by a
timely objection, a defendant must demonstrate (1)
that an error occurred, (2) that the error was plain,
and (3) that it affected his substantial rights. If
the defendant satisfied these threshold requirements,
correction of the error is within our discretion,
which is “appropriately exercised only when failure to
do so would result in a miscarriage of justice, such
as when the defendant is actually innocent or the
error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.”
United States v. Farrior, 535 F.3d 210, 222 (4th Cir. 2008)
(quoting United States v. Promise, 255 F.3d 150, 161 (4th Cir.
2001) (en banc)). We conclude the admission of this evidence
cannot be said to have affected Adams’ substantial rights or the
fairness of the trial in light of the overwhelming evidence of
Adams’ guilt as to Count V.
More troubling was the admission, over Adams’ objection, of
Dudley’s hearsay testimony as to statements her deceased
boyfriend, Moore, purportedly made to her. Dudley testified
Moore told her that Adams accepted payoffs from him in order for
Moore to continue dealing drugs. Adams asserts the admission of
this hearsay testimony constituted prejudicial error because it
was not admissible under any of the exceptions regarding the
admissibility of hearsay evidence. Adams further contends that
even though the testimony directly related to Counts IV and VI,
its admission deprived Adams of a fair trial on the remaining
charges against him, including Count V.
13
When the issue has been properly preserved, decisions
regarding the admission of evidence are reviewed for abuse of
discretion. United States v. Lancaster, 96 F.3d 734, 744 (4th
Cir. 1996) (en banc). Evidentiary rulings are also subject to
review for harmless error under Fed. R. Crim. P. 52(a) and will
be found harmless if the reviewing court can conclude, “without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (internal quotations
omitted.)
Even assuming the district court erred in admitting
Dudley’s hearsay testimony, we conclude its admission was
harmless. “In order for an error to have a substantial and
injurious effect or influence, it must have affected the verdict
. . . . [A]n error is harmless when the error did not
substantially sway or substantially influence” the jury’s
decision. United States v. Iskander, 407 F.3d 232, 240 (4th
Cir. 2005) (quoting Cooper v. Taylor, 103 F.3d 366, 370 (4th
Cir. 1996)). Any error in the admission of Dudley’s testimony
was harmless because the jury acquitted Adams on all but two
counts, we are vacating Adams’ conviction as to Count IV on
other grounds, and – as detailed above in section III.B. – the
evidence as to Adams’ guilt on Count V is completely independent
of Dudley’s testimony and plainly sufficient to support his
14
conviction. Accordingly, the admission of Dudley’s testimony
cannot be said to have “substantially influence[d]” the jury’s
decision, and any error in the admission of that testimony was
harmless.
E.
Adams asserts he was denied his constitutional right to a
fair trial because the Government improperly argued during its
opening and closing, as well as through witness questioning,
that Adams should be convicted because he associated with
individuals in the HCSD who had been convicted for their
criminal conduct.
We have reviewed the record, including the portions of the
Government’s opening and closing arguments and its questioning
of witnesses that Adams challenges as improper. We conclude the
Government did not cross the line into impermissible assertions
of guilt by association when it elicited brief, background
information from Agent Slater as to his investigation of the
HCSD and its witnesses regarding their participation in corrupt
acts with which Adams was not charged.
Unlike the cases relied upon by Adams, his charged conduct
– assisting in covering up criminal activity, obstruction of
justice, and providing false statements during a government
investigation – were linked to a broader scheme of criminal
activity in the police unit and the federal investigation into
15
that conduct. Consequently, evidence of Vaught’s criminal
conduct and Adams’ knowledge of and assistance thereto were
necessary aspects of proving the charges against Adams. In
addition, the Agents’ investigation of HCSD provided important
information into Adams’ conduct, including the recorded
conversation between Vaught and Adams and the context of the
March 24, 2006 interview between the Agents and Adams.
Similarly, the Government’s opening and closing arguments did
not suggest the jury should convict Adams based on others’
criminal conduct, but rather based on Adams’ own conduct in the
midst of corruption occurring throughout the HCSD. Because the
Government’s arguments targeted Adams’ own behavior in assisting
or covering up others’ criminal conduct, and his false
statements to the FBI Agents during their investigation of the
HCSD, Adams was not denied a fair trial.
F.
Adams contends the jury instructions related to Count V
“confused the jury as to whether it was required to unanimously
agree on the specific false statements made by Adams” and
therefore had the potential to deny Adams a fair trial by
allowing for conviction without the requisite unanimous
agreement. (Appellant’s Br. 44-45.) When a party challenges
jury instructions as creating jury confusion, the Court must
determine “whether there is a reasonable likelihood that the
16
jury has applied the challenged instructions in a way that
violates the Constitution.” Jones v. United States, 527 U.S.
373, 390 (1999) (internal quotation marks omitted). Here, the
district court instructed the jury:
Counts Five and Six of the indictment, which
charge the defendant with the knowing and willful
submission of false, fictitious, or fraudulent
statements alleges a number of false or fraudulent
statements. The government is not required to prove
that all of these statements that are alleged in
Counts Five and Six of the indictment as false are in
fact false.
Each juror must agree, however, with each of the
other jurors that the same statement or representation
alleged in Count Five and Count Six respectively to be
false, fictitious, or fraudulent is in fact false,
fictitious, or fraudulent.
The jury need not unanimously agree on each such
statement alleged, but, in order to convict, must
unanimously agree upon at least one such statement as
false, fictitious, or fraudulent when knowingly made
or used by the defendant.
Unless the government has proven the same false
or fraudulent statement to each of you beyond a
reasonable doubt, you must acquit the defendant of the
charge in either Count Five or Six of the indictment.
(J.A. 896-97.) We do not find that these instructions created a
reasonable likelihood that the jury applied them in a way that
violates the Constitution. Jurors are presumed to follow proper
jury instructions. See United States v. Williams, 461 F.3d 441,
451 (4th Cir. 2006). The instructions clearly state that the
jury must “unanimous agree upon at least one” statement the
Government alleged was “false, fictitious, or fraudulent when
17
made or used by” Adams. Thus, Adams’ jury instruction argument
is without merit.
G.
Lastly, Adams asserts numerous instances of prosecutorial
misconduct, which he contends prevented him from receiving a
fair trial. We have reviewed each claim and find those claims
either lack merit or fail to allege conduct that “so infected
the trial with unfairness as to make the resulting conviction a
denial of due process.” See United States v. Scheetz, 293 F.3d
175, 185 (4th Cir. 2002) (internal quotation marks omitted). 3
3
Adams’ final assertion of error is the district court’s
failure to grant his motion for judgment of acquittal or, in the
alternative, for a new trial. Adams does not raise any new
arguments related to this issue, but relies on the reasons set
forth in his individual assertions of error.
The Court reviews de novo the district court’s denial of a
Fed. R. Crim. P. 29 motion for judgment of acquittal. United
States v. Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129
S. Ct. 663 (2008). In conducting this review, “the verdict of
the 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). As
noted above, “substantial evidence” is “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Burgos, 94 F.3d at 862. We review a
district court’s denial of a Rule 33 motion for a new trial for
abuse of discretion. United States v. Smith, 451 F.3d 209, 216-
17 (4th Cir. 2006).
For the reasons set forth above, substantial evidence
supported Adams’ conviction on Count V. Accordingly, the
district court did not err in denying Adams’ motion for judgment
of acquittal and it did not abuse its discretion in denying his
motion for a new trial.
18
Only one of Adams’ assertions warrants any discussion.
Adams contends the Government’s closing argument improperly
attacked defense counsel’s integrity, and thereby prejudiced
Adams’ ability to receive a fair trial. In analyzing a “due
process claim premised on unfair prosecutorial conduct,” the
Court examines several factors, including “the nature of the
prosecutorial misconduct, the extent of the improper conduct,
the issuance of curative instructions from the court, any
defense conduct inviting the improper prosecutorial response,
and the weight of the evidence.” Humphries v. Ozmint, 397 F.3d
206, 218 (4th Cir. 2005) (en banc) (internal citations omitted).
Adams points to comments made by the Government during
rebuttal, and we conclude that they did not unfairly prejudice
the defendant in light of the “invited response” doctrine. As
the Supreme Court has stated:
The [prosecutor’s] remarks must be examined within the
context of the trial. . . . In this context, defense
counsel’s conduct, as well as the nature of the
prosecutor’s response is relevant. Indeed most Courts
of Appeals . . . have refused to reverse convictions
where prosecutors have responded reasonably in closing
argument to defense counsel’s attacks, thus rendering
it unlikely that the jury was led astray.
. . . . [T]he issue is not the prosecutor’s
license to make otherwise improper remarks, but
whether the prosecutor’s ‘invited response,’ taken in
context, unfairly prejudiced the defendant.
In order to make an appropriate assessment, the
reviewing court must not only weight the impact of the
prosecutor’s remarks, but must also take into account
defense counsel’s opening salvo. Thus the import of
the evaluation has been that if the prosecutor’s
19
remarks were “invited,” and did no more than respond
substantially in order to “right the scale,” such
comments would not warrant reversing a conviction.
United States v. Young, 470 U.S. 1, 12-13 (1985).
Here, defense counsel’s closing argument called into
question the integrity of the FBI Agents, the Government’s
witnesses, and even the prosecutors themselves. (Supp. J.A.
1167-69, 1172, 1177.) Accordingly, the Government’s rebuttal
statements responded to defense counsel’s contentions and did
not unfairly prejudice Adams.
III.
For the aforementioned reasons, we affirm the judgment of
the district court as to Adams’ conviction on Count Five (making
a material false statement), and vacate the judgment as to Count
Four (obstruction of justice). We remand for resentencing on
Count Five.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED FOR RESENTENCING
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