                            UNPUBLISHED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by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                                 3
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).


                                                7
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.

                                              8
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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