                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4174


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN D. VILLANUEVA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:08-cr-00244-LO-2)


Submitted:   December 30, 2010            Decided:   February 11, 2011


Before NIEMEYER, SHEDD, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Philip Urofsky, Bryan Dayton, SHEARMAN & STERLING, LLP,
Washington, D.C., for Appellant. Neil H. MacBride, United States
Attorney, David B. Goodhand, Jack Hanly, Assistant United States
Attorneys, Justin W. Williams, UNITED STATES ATTORNEY’S OFFICE,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           A     federal       jury    convicted            John    D.    Villanueva       of

conspiracy      to    participate       as       a     government        employee     in    a

transaction in which he knew he had a financial interest, in

violation of 18 U.S.C. § 208 (2006), and aiding and abetting

participation as a government employee in a transaction in which

he knew he had a financial interest, in violation of 18 U.S.C.

§§ 2, 208 (2006).          The district court sentenced Villanueva to

six months of imprisonment on each count to run concurrently and

he now appeals.       For the reasons that follow, we affirm.

           Villanueva         first    argues        that    there    was     insufficient

evidence   to    support      the     convictions.            We    review     a    district

court’s decision to deny a Rule 29 motion for a judgment of

acquittal de novo.            United States v. Smith, 451 F.3d 209, 216

(4th Cir. 2006).        A defendant challenging the sufficiency of the

evidence faces a heavy burden.                   United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).                     The verdict of a jury must be

sustained “if, viewing the evidence in the light most favorable

to the prosecution, the verdict is supported by ‘substantial

evidence.’”          Smith,     451    F.3d      at     216    (citations          omitted).

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.”

Id.    (internal        quotation        marks          and        citation        omitted).

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Furthermore, “[t]he jury, not the reviewing court, weighs the

credibility of the evidence and resolves any conflicts in the

evidence     presented.”        Beidler,     110    F.3d   at    1067    (internal

quotation     marks      and    citation      omitted).          “Reversal        for

insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.”             Id. (internal quotation marks

and citation omitted).

       Section 208(a) provides that

            [W]hoever, being an officer or employee of the
       executive branch of the United States Government,
       . . . participates personally and substantially as a
       Government officer or employee, through decision,
       approval, disapproval, recommendation, the rendering
       of advice, investigation, or otherwise, in a . . .
       contract . . . which, to his knowledge, he [or] his
       spouse . . . has a financial interest—

            Shall be subject to the penalties set forth in
       section 216 of this title.

18 U.S.C. § 208(a).           “[L]iability for conflict of interest may

be founded on a variety of acts leading up to the formation of a

contract even if those acts are not specifically mentioned in

the text of section 208(a).”             United States v. Selby, 557 F.3d

968,    972-73    (9th   Cir.    2009)     (citation   omitted).          We     have

thoroughly reviewed the record and conclude that the Government

introduced       sufficient     evidence     from    which      the    jury    could

conclude that Villanueva was guilty of the charged offenses.

            Villanueva next argues that statements the Government

made    during      opening     and   closing       arguments         amounted     to

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prosecutorial misconduct.                 As Villanueva failed to object to the

prosecutor’s comments before the district court, we review this

issue for plain error.                    See Fed. R. Crim. P. 52(b); United

States    v.    Olano,       507     U.S.      725,     731-32      (1993).         Therefore,

Villanueva      must     demonstrate           that     there       was   error,     that   was

plain, and that affected his substantial rights.                                   Olano, 507

U.S. at 732.           Moreover, even if Villanueva demonstrates plain

error    occurred,       this      court       will     not    exercise      discretion      to

correct   the        error   “unless        the       error    seriously      affect[s]     the

fairness,           integrity      or       public           reputation       of     judicial

proceedings.”            Id.    (internal             quotation      marks    and     citation

omitted).

               To    succeed    on    a     claim       of    prosecutorial        misconduct,

Villanueva must show that the prosecutor’s remarks were improper

and that they “prejudicially affected his substantial rights so

as to deprive him of a fair trial.”                           United States v. Scheetz,

293 F.3d 175, 185 (4th Cir. 2002).                            “In reviewing a claim of

prosecutorial         misconduct,         we    review        the    claim    to    determine

whether the conduct so infected the trial with unfairness as to

make the resulting conviction a denial of due process.”                                     Id.

(internal quotation marks and citation omitted).                             In making this

determination, we will consider

     (1) the degree to which the prosecutor’s remarks had a
     tendency to mislead the jury and to prejudice the
     defendant; (2) whether the remarks were isolated or

                                                  4
     extensive; (3) absent the remarks, the strength of
     competent proof introduced to establish the guilt of
     the   defendant;   (4)   whether    the    comments   were
     deliberately   placed   before   the    jury   to   divert
     attention to extraneous matters; (5) whether the
     prosecutor’s remarks were invited by improper conduct
     of   defense   counsel;   and   (6)    whether    curative
     instructions were given to the jury.

Id. at 186 (citation omitted).             With these principles in mind,

we have reviewed the record and conclude that Villanueva has

failed to demonstrate that the prosecutor’s comments resulted in

prejudice.

            Finally,    Villanueva     argues   that   the      district    court

erred in refusing his proposed jury instruction on Fed. R. Evid.

404(b).      “‘The     decision   to   give     or   not   to    give   a    jury

instruction is reviewed for an abuse of discretion.’”                       United

States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006) (quoting

United States v. Moye, 454 F.3d 390, 398 (4th Cir. 2006) (en

banc)).     “‘We review a jury instruction to determine whether,

taken as a whole, the instruction fairly states the controlling

law.’”    Id. (quoting Moye, 454 F.3d at 398).               If we determine

that the district court erred in refusing an instruction, such

error “warrant[s] reversal of the conviction only if the error

is prejudicial based on a review of the record as a whole.”

Moye, 454 F.3d at 399 (internal quotation marks and citation

omitted).




                                       5
              Rule 404(b) prohibits the admission of “[e]vidence of

other crimes, wrongs, or acts . . . to prove the character of a

person in order to show action in conformity therewith.”                              Fed.

R. Evid. 404(b).            However, the rule does not apply to evidence

of acts intrinsic to the crime charged.                  United States v. Chin,

83    F.3d    83,    87    (4th   Cir.   1996).     “Other      criminal       acts     are

intrinsic when they are inextricably intertwined or both acts

are part of a single criminal episode or the other acts were

necessary       preliminaries       to   the    crime   charged.”            Id.   at    88

(internal quotation marks and citation omitted).                       This court has

also    recently          recognized     that   “[e]vidence       is     inextricably

intertwined with the evidence regarding the charged offense if

it forms an integral and natural part of the witness’s accounts

of    the    circumstances        surrounding     the   offenses       for    which     the

defendant was indicted.”             United States v. Wilson, 624 F.3d 640,

652    (4th    Cir.       2010)   (internal     quotation      marks    and    citation

omitted).

              Here, the district court refused Villanueva’s proposed

instruction, finding that the evidence at issue was intrinsic to

the    crimes       charged.       Having   reviewed     the    controlling        legal

standards, we conclude that the district court did not err in

determining that the evidence was inextricably intertwined with

the charged offenses.              Therefore, the district court did not



                                            6
abuse its discretion in denying Villanueva’s request for a jury

instruction.

            Accordingly, we affirm the judgment of the district

court.     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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