                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 10a0081p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                 X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                     No. 08-3196

                                                  ,
                                                   >
                                                  -
          v.

                                                  -
                       Defendant-Appellant. -
 HAYWOOD ALGEE,
                                                  -
                                                N
                  Appeal from the United States District Court
                   for the Northern District of Ohio at Akron.
                No. 07-00384—Donald C. Nugent, District Judge.
                                 Argued: March 2, 2010
                          Decided and Filed: March 24, 2010
            Before: MARTIN, ROGERS, and McKEAGUE, Circuit Judges.

                                   _________________

                                       COUNSEL
ARGUED: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Robert F. Corts, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Jeffrey B. Lazarus, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, Debra K. Migdal, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant. Robert F. Corts,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        BOYCE F. MARTIN, JR., Circuit Judge. Haywood Algee worked at the post office
in Twinsburg, Ohio. He was solely responsible for tending the stamp vending machines.
After the local Postmaster noticed irregularities with the amount of money and stamps in the
machines, the Inspector General’s Office set up a “sting” operation to determine whether
Algee was responsible for the irregularities. After executing the sting, the government


                                             1
No. 08-3196         United States v. Algee                                            Page 2


charged Algee with one count of theft of postal property, one count of misappropriation of
postal funds, one count of making false oral statements, and one count of making a false
written statement. The case went to trial, and the jury acquitted Algee on the theft and
misappropriation of postal property counts but convicted him on the false statements counts.
He was sentenced to three years of probation, with thirty days of home confinement.

        Algee’s appeal raises four issues going to the validity of his conviction: (1) whether
there was sufficient evidence to convict him of the false statement allegations; (2) whether
the court’s refusal to include a specific unanimity instruction was prejudicial error;
(3) whether the district court failed to rule on proposed jury instructions prior to closing
arguments as required by Federal Rule of Criminal Procedure 30(b) and, if so, whether the
error was prejudicial to Algee’s ability to give a proper closing argument; and (4) whether
the district court properly allowed testimony from government witnesses that the sting,
which was called an “integrity test,” was specifically targeted at Algee. For the reasons set
forth below, we reject Algee’s arguments regarding the sufficiency of evidence, the district
court’s admission of evidence regarding the circumstances of the “integrity test,” and the
lack of a specific unanimity instruction. As for the alleged Rule 30(b) violation, we agree
with Algee that the district court violated the Rule when it provided a copy of the jury
instructions to defense counsel mere seconds before the prosecution began its closing
argument, without any meaningful discussion of the instructions or opportunity for counsel
to review the instructions. However, because the Rule 30(b) error did not prevent Algee
from arguing any material aspect of his theory of defense at closing argument, Algee did not
suffer prejudice sufficient to mandate a retrial. We therefore AFFIRM the district court’s
judgment and convictions.

                                              I.

        Algee was a “flex-time” employee at the post office who worked odd hours, a sort
of jack-of-all-trades. One of his duties was keeping the stamp vending machines stocked
with stamps and currency and collecting the currency. He had access to a safe in the back
of the office where he kept extra stamps and petty cash. Algee was the only employee
responsible for the vending machines, and he was the only person with access to the
machines and the safe, aside from the Postmaster. The Postmaster had noticed some
No. 08-3196          United States v. Algee                                              Page 3


discrepancies in the accounting of the vending machines, both shortages and overages. He,
therefore, informed the Inspector General’s Office, which began an investigation.

        The Inspector General decided to conduct an “integrity test,” which is essentially a
controlled situation that allows for surveillance and investigation. The Inspector General
staged a burglary of one of the vending machines, making it appear to have been vandalized,
early in the morning of December 18, 2006. Postal agents emptied the machine of all stamps
and currency and then put exactly $186.00 in marked currency and $370.20 worth of marked
stamps in the machine. They then installed a hidden camera to record the machine and
posted agents throughout the office. For reasons not apparent from the record, they did not
set up surveillance on the safe or Algee’s locker.

        When Algee and another employee, Harvey Jacobs, arrived around 2:00 a.m. on the
18th, they noticed that the machine had been vandalized. Algee collected all of the money
and stamps from the machine and walked into the back of the office, apparently out of sight
of the hidden camera and the agents. Algee and Jacobs called the local police and Officer
Miktarian arrived. Unbeknownst to Algee and Jacobs, the local police had been informed
of the “integrity test” earlier in the evening. In the process of taking a report of the apparent
burglary, Miktarian inquired about the money and stamps still in the machine after the
vandalism. Algee stated that he had taken all of the currency and stamps from the machine
and placed it in a white cloth bag in the safe. He went back to the safe and returned with the
white bag. Miktarian told Algee to give the money to Algee’s supervisor and then left.

        A couple of hours later, Algee’s surpervisor, Brenda Ellenberger, arrived. She asked
both Algee and Jacobs to give written statements about what had occurred. Algee’s
statement indicated that he had retrieved $76.00 in currency and $120.60 worth of stamps
from the machine.

        Next, around 5:00 a.m., Office of the Inspector General Agents Balfour and
Catanzarito (the “IG Agents”) arrived. The IG Agents collected the written statements from
Ellenberger and then interviewed Jacobs and Algee. They asked Algee for an accounting
of the money and stamps that he took from the machine. He stated that he had placed all the
money and stamps into a white cloth bag and placed the bag in the safe. They retrieved the
bag and counted the money and stamps in Algee’s presence. They counted $76.00 in cash
No. 08-3196         United States v. Algee                                            Page 4


and $120.60 worth of stamps. Included in the cash was an unmarked $20 bill that had not
been placed in the machine by the agents. The agents repeatedly asked Algee if the contents
of the bag were all that he had retrieved from the safe, and he repeatedly answered in the
affirmative. They then got a written statement from Algee, in which he stated that the total
paper currency that he had found was $76.00.

        Next, Agent Springer, the lead agent from the Inspector General’s Office, arrived.
Based on the statements made to the IG Agents and the fact that only $76.00 had been found
in the bag, Agent Springer had contacted the United States Attorney’s Office and decided
to arrest Algee. Immediately upon arrival at the post office, Springer arrested Algee, read
him his Miranda rights, and informed Algee that the vandalism was part of an integrity test
and that they knew the machine had contained more than $76.00. Algee replied by saying
something along the lines of “well, then everything must be in my safe somewhere . . . I must
have gotten things mixed up, and they must be in my safe.” Agents searched Algee’s car and
locker but did not find the money. Agent Springer then conducted a video-taped search of
the safe, at which time he found the rest of the marked bills and stamps. Agent Springer
testified that the way the money and stamps were placed in the safe indicated a conscious
separation and then commingling of the marked items with other items in the safe. For
instance, some of the marked bills were found interspersed in a bundle of unmarked bills that
were rubber-banded together.

        Algee was charged with one count of theft of postal property in excess of $100.00
in violation of 18 U.S.C. § 1707, one count of misappropriation of postal funds in violation
of 18 U.S.C. § 1711, one count of making a false statement regarding the amount of money
found in the vending machine in violation of 18 U.S.C. § 1001(a)(2), and one count of
making a false written statement about the amount of money in the machine in violation of
18 U.S.C. § 1001(a)(3). With regard to the false statement counts, the only specific
information alleged in the indictment is the date of the statement and the general substance
of the statement; there are no specific allegations regarding to whom the statement was made
or the exact wording of the statement. The same holds true for the verdict form, which
merely points back to the allegations in the indictment.
No. 08-3196         United States v. Algee                                             Page 5


        Prior to trial, Algee moved in limine under Evidence Rules 403 and 404(b) to
exclude evidence related to the “integrity test” and the fact that Algee was specifically under
investigation. Algee did not want the jury to hear that it was a sting operation directed at
him for fear that the jury would assume that “where there’s smoke, there’s fire.” The
government contended that, to prevent juror confusion, it needed to be able to provide the
jury context about why there were only marked bills in the machine and why there was video
surveillance. The district court allowed the government to address the background in general
terms by having its witnesses testify that they were investigating discrepancies in the money
and inventory in the vending machine. However, when cross-examining the Twinsburg
Postmaster, defense counsel asked whether there had been overages as well as shortages of
cash in the machine, to which the Postmaster responded in the affirmative. The government
contended that this line of questioning by defense counsel opened the door for the
government to go into more specifics about the nature of the investigation, the frequency of
shortages as compared to the infrequency of overages, and Algee’s being specifically
targeted in the investigation and integrity test. The court agreed and admitted all of this
information into evidence.

        Also prior to trial, Algee submitted proposed jury instructions. One of his proposed
jury instructions was a specific unanimity instruction, as follows:

        Counts Three and Four of the indictment, allege a number of false or
        fraudulent statements or writings were made by defendant.
        The government is not required to prove that all of the purported false
        statements alleged in Counts Three and Four of the indictment are, in fact,
        false.
        However, each of you must agree on which statement, and/or which writing,
        if any, the government proved was false or fraudulent beyond a reasonable
        doubt. In other words, your decision as to the false statement proven must
        be unanimous. 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 charges in Count Three and/or Count Four of the
        indictment.

(Def.’s Prop. Instr. No. 28.)

        Trial commenced and, immediately after the defense rested, the court moved into
closing statements. At that point, the court had not conducted a charging conference
No. 08-3196         United States v. Algee                                               Page 6


regarding jury instructions and had not provided the attorneys with a copy of the jury
instructions that the court intended to use. Algee’s attorney asked for a side-bar, and the
following transpired:

        MS. MIGDAL: Your Honor, I have a motion that I would like to make at
        side bar.
        THE COURT: Rule 29 motion?
        MS. MIGDAL: Yes, but also there’s another matter if I could address it
        quickly.
        THE COURT: We’ll do it after the arguments. Let’s not waste any more
        time.
        MS. MIGDAL: It’s with regard to the instructions.
        THE COURT: I haven’t instructed yet.
        MS. MIGDAL: With regard to providing counsel with the instructions.
        THE COURT: Here. There you go.
        MS. MIGDAL: Actually, Your Honor --
        THE COURT: Come over here. There you go (handing.) Go ahead.
        Proceed.
        MS. MIGDAL: Your Honor, may we --
        THE COURT: Later.
        MR. CORTS: Thank you, Your Honor.

(Trial Tr., Vol III, 545:21-546:14.)

        The government began closing arguments immediately thereafter. After closing
arguments, but before the court read the instructions to the jury, there was another exchange
regarding the jury instructions, specifically the proposed unanimity instruction:

        MS. MIGDAL: I would ask the Court -- I don’t see a unanimity instruction
        with regard to Count 24, and – I’m sorry, Counts 3 and 4. Counts 3 and 4,
        the false statement counts, oral and written, both refer to more than one oral
        or written statement, and so the concern is that without the unanimity
        instruction that we propose on page 28 of our instruction, that there could be
        a less than unanimous jury if they don’t agree, if they don’t all agree on the
        same statement.
        I believe that’s it, Your Honor.
        THE COURT: Okay. I think the instruction sets forth the correct statement
        of law, and I will allow you to raise that issue again at the conclusion, and
        we’ll see. Show time.

(Trial Tr., Vol. III, 600:24-601:12.) The court then brought the jury in and read the
instructions. The instructions did not include a specific unanimity instruction. Defense
counsel renewed her objection to the lack of a unanimity instruction after the court had
No. 08-3196          United States v. Algee                                           Page 7


finished instructing the jury, to which the court responded “okay” and nothing more. (Trial
Tr., Vol. III, 632:2-4.)

        The jury returned a verdict of not guilty on the theft charges and guilty on the false
statement charges. Algee moved for judgment of acquittal under Rule 29, which was denied.
The court sentenced Algee to three years’ probation, with one month of home confinement.
Algee timely appealed.

                                              II.

A.      SUFFICIENCY OF THE EVIDENCE

        The elements of a false statement conviction under 18 U.S.C. § 1001 are: (1) the
defendant made a statement; (2) the statement was false; (3) the defendant knew the
statement was false; (4) such statement was relevant to the function of a federal department
or agency; and (5) the false statement was material. United States v. Brown, 151 F.3d 476,
484 (6th Cir. 1998). Algee argues that there was insufficient evidence to prove the third
element, that he knew his statements to be false when he stated that he only retrieved $76.00
from the machine and that all the money from the machine was in the white bag. His
primary argument at trial in defense of the false statement charges was that he was confused
and rushed when he collected the money and put it in the safe, believing that there had just
been a burglary, and must have forgotten that he had just thrown some of the money in the
safe while putting other money in the bag.

        We review de novo the district court’s denial of a motion for a judgment of acquittal,
and must determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Circumstantial evidence alone is
sufficient to sustain a conviction and such evidence need not remove every reasonable
hypothesis except that of guilt.” United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006)
(quoting United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)).

        In this case, there was ample circumstantial evidence from which the jury could infer
that Algee knew that he had taken more money from the machine than what he indicated in
No. 08-3196         United States v. Algee                                             Page 8


his oral and written statements. His story, first told less than an hour after the incident and
steadfastly maintained until confronted with its actual falsity, was that he put all of the
money into the white bag immediately. However, the money in the white bag was
significantly less than what was in the machine and included one $20 bill that was not even
in the machine. Further, the search of the safe revealed that the marked bills were
interspersed with other money in a manner that suggests intentional mixing. Thus, it would
not have been unreasonable for the jury to infer that Algee knew he had only put some of the
cash in the bag. In light of this reasonable inference, the jury’s verdict must be sustained.

B.      EVIDENTIARY RULING

        Algee moved in limine to exclude any testimony about the fact of or the purpose of
the “integrity test.” From the transcript of the brief oral argument on the matter (Trial Tr.,
Vol. I, 103:7-109:3), it is clear that his main concern with this information was its relation
to the theft counts. The theft counts arguably had weak jury appeal because the rest of the
money was in the post office’s safe, not in Algee’s locker or car or pocket. So, Algee feared
that the government would try to buttress the theft counts by implying to the jury that Algee,
the only person with access to a vending machine that had indisputably experienced cash
shortages in the past, had actually succeeded in stealing cash in the past, thus prompting the
integrity test aimed at Algee. The government countered that it needed to explain to the jury
why there was a known quantity of marked bills in a vending machine and a camera secretly
recording the machine.

        At the end of the discussion on the motion in limine, the court ruled that the
government could generally indicate that there had been discrepancies with the vending
machine. Algee was willing to agree to discussion of discrepancies at the post office, but he
objected to specific reference to the vending machine as it would be known by the jury that
Algee was the only person with access to the machine. He therefore objected to the ruling
before the jury was brought in.

        When the Postmaster testified, the government trod relatively lightly around the
circumstances of the investigation. On cross-examination, however, Algee’s attorney asked
about whether there had been overages as well as shortages in the machines. The
government took this line of questioning to have opened the door to delve into more
No. 08-3196          United States v. Algee                                             Page 9


specifics about the investigation, which the court later agreed was the case. (Trial Tr., Vol.
II, 220:15-20.) The government then elicited the fact that the investigation was aimed
specifically at Algee because he was the only one with access to the vending machines.

        We review the court’s decision to allow the evidence for abuse of discretion. United
States v. Copeland, 321 F.3d 582, 595-96 (6th Cir. 2003). Algee contends that this evidence
was impermissible “prior bad acts” evidence under Rule 404(b). The government contends
that the evidence was not offered as proof of Algee’s prior bad acts, but rather was res gestae
evidence offered to give context to what transpired.

        Regardless of how it is characterized, however, the evidence was properly admitted.
Even Algee agrees that the jury was entitled to know why the government had placed an
exact amount of marked bills and stamps into the machine, which was the predicate for both
the theft and false statement charges. If there had been no context as to why the investigators
were there with marked currency and undercover surveillance, the jury would likely have
been confused. Thus, there was no problem with allowing witnesses to discuss discrepancies
with the accounting of the vending machines in general terms.

        It is less clear that defense counsel’s questioning about the existence of overages as
well as shortages opened the door to allow the government to elicit the fact that Algee was
specifically the target of the investigation. One does not seem necessarily to flow from the
other. However, it is irrelevant because, by that point, all of the information was already
properly in front of the jury. The jurors properly were aware of the cause of the
investigation, and they properly knew that Algee was the only person with access to the
vending machine. Thus, the jury necessarily knew that the investigation was aimed at a
machine for which only Algee was responsible. That the government took the next step and
explicitly informed the jury of this fact was not unduly prejudicial in light of what the jurors
had already heard. Accordingly, the court’s admission of this evidence was not an abuse of
discretion.

C.      SPECIFIC UNANIMITY INSTRUCTION

        As described above, Algee made substantially the same false statement—that all the
money from the vending machine was in the white bag—to several people. He made the
No. 08-3196          United States v. Algee                                              Page 10


statement to the police officer, his supervisor, the two IG Agents, and Agent Springer.
Similarly, he made substantially the same written statement to his supervisor and to the IG
Agents. But, neither the indictment nor the verdict form specified which exact statement was
being charged. Therefore, Algee requested that the court include a specific unanimity
instruction in its charge to the jury, directing that the jury had to agree unanimously as to
which statement Algee knew to be false. As the district court noted, Algee’s proposed jury
instruction was a correct statement of the law—the jury had to be unanimous as to which
statement to which person they were convicting Algee. Thus, the question is whether it was
reversible error for the court not to give the instruction.

        “A refusal to give requested instructions is reversible error only if (1) the instructions
are correct statements of the law; (2) the instructions are not substantially covered by other
delivered charges; and [(3)] the failure to give the instruction impairs the defendant’s theory
of the case.” United States v. Hargrove, 416 F.3d 486, 489 (6th Cir. 2005). This Court has
previously stated that “a jury instruction addressing specific or augmented unanimity is
necessary if ‘1) a count is extremely complex, 2) there is a variance between the indictment
and the proof at trial, or 3) there is a tangible risk of jury confusion.’” United States v.
Krimsky, 230 F.3d 855, 860 (6th Cir. 2000) (quoting United States v. Thomas, 74 F.3d 701,
712 (6th Cir. 1996)). Moreover, “a single count that presents more than one potential basis
for conviction does not automatically require a unanimity instruction. . . . Rather, we have
consistently recognized that the need arises when it is shown that there is a genuine risk that
the jury is confused or that a conviction may occur as the result of different jurors concluding
that a defendant committed different acts.” Id. (internal citations and quotations omitted).

        In this case, the first and second bases for a specific unanimity instruction are not
present—the false statement counts are not extremely complex and there is no variance
between the indictment and the proof. Thus, it comes down to whether there is a tangible
risk of jury confusion. Algee primarily argues that one juror could have focused on the
statement to the IG Agents and the next juror could have focused on the statement to Agent
Springer, and similarly for the written statements. This argument is unpersuasive. All of the
statements were materially identical, giving rise to the prototypical situation of a single count
presenting “more than one potential basis for conviction.” Id. If the jury believed that Algee
knowingly made a false statement to the IG Agents, the jury necessarily believed that Algee
No. 08-3196          United States v. Algee                                             Page 11


knew it to be false when he made the same statement to Agent Springer. It was never
Algee’s theory at trial that he made the statement to one person but not to another person.
Instead, his defense was that he never knew any of the statements to be false. Thus, if the
jury rejected this defense theory as to one statement, it necessarily rejected the theory for all
of the statements. As the record does not support a finding of potential for juror confusion,
it was not error for the district court to refuse to give the specific unanimity instruction.

D.      FEDERAL RULE OF CRIMINAL PROCEDURE 30(b)

        1.      Was there a violation?

        Federal Rule of Criminal Procedure 30(b) states: “The court must inform the parties
before closing arguments how it intends to rule on the requested instructions.” FED. R.
CRIM. P. 30(b) (emphasis added). “The rule is grounded in ‘basic concepts of fairness,’
allowing ‘counsel to conform their arguments to the law as it will thereafter be presented by
the judge to the jury.’” United States v. Rommy, 506 F.3d 108, 125 (2d Cir. 2007) (quoting
United States v. James, 239 F.3d 120, 124 (2d Cir. 2000)).

        In this case, the district court clearly violated Rule 30(b) when it “ruled” on jury
instructions by providing defense counsel a copy of the jury instructions just seconds before
closing arguments began, without having had any discussion about the contents of the
instructions. The purpose of the Rule is to allow counsel a meaningful opportunity to tailor
their closing arguments to the court’s pronouncement of the law governing the case. A few
seconds is not a meaningful opportunity. Furthermore, the court’s actions placed defense
counsel in the untenable position of either paying attention to the government’s closing
argument or familiarizing herself with the law of the case, as she could not reasonably be
expected to do both.

        2.      Was the violation prejudicial?

        Once it has been determined that the district court violated Rule 30(b), the question
becomes whether the error was prejudicial. We have not had the opportunity to discuss in
any detail what kind or quantum of prejudice flowing from a Rule 30(b) violation is
sufficient to prompt remand for a new trial. However, circuits that have addressed this issue
appear unanimous in holding that the general question is whether the court’s failure to rule
No. 08-3196            United States v. Algee                                                      Page 12


on requested jury instructions prejudiced or inhibited counsel’s ability to argue her theory
of the case. E.g. Rommy, 506 F.3d at 125 (“Reversal on the basis of a Rule 30 violation is
warranted, however, only where the defendant can show that he was substantially misled in
formulating his [closing] arguments or otherwise prejudiced.”) (internal citations and
quotations omitted); United States v. Foppe, 993 F.2d 1444, 1451 (9th Cir. 1993) (“‘Failure
to comply with Rule 30 is reversible error, however, only if counsel’s closing argument was
prejudicially affected thereby.’”) (quoting United States v. Gaskins, 849 F.2d 454, 458 (9th
Cir. 1988)). “A party suffers prejudice if it ‘was unfairly prevented from arguing his or her
defense to the jury or was substantially misled in formulating and presenting arguments.’”
Foppe, 993 F.2d at 1451 (quoting Gaskins, 849 F.2d at 458).

         In this case, the question of whether the Rule 30(b) error was prejudicial to the
ability of Algee’s counsel to give her closing argument is tied, at least in part, to the issue
of the specific unanimity instruction. The rest of the jury instructions, especially with regard
to the false statement counts, were relatively boilerplate. Moreover, comparing the
government’s proposed instructions with the defense’s proposed instructions, there are no
material differences, save the presence of a specific unanimity instruction. Thus, Algee’s
counsel should have known that there was no real disagreement about the law and should
have thus prepared her remarks accordingly except, of course, for the issue of specific
             1
unanimity.

         The government contends that, because a specific unanimity instruction was not
required as a matter of law, the court’s failure to rule on the instruction before closing
was not prejudicial because the instruction would not have been included anyway. But
this is not necessarily true. Even though the court did not include the instruction, and
even though we have now found that a specific unanimity instruction was not required
as a matter of law, the instruction was still a correct statement of the law. The district


         1
           Aside from the actual content of the jury instructions, we cannot overlook the fact that the court
placed Algee’s attorney in the position of either paying attention to the government’s closing argument
or reviewing the instructions to make sure they actually said what counsel had expected. This alone could
form the predicate for prejudice sufficient to warrant retrial. For instance, if there was indication in the
record that counsel did, in fact, miss something important in the government’s closing argument because
she was reviewing the instructions, that would likely be sufficient to warrant reversal. However, because
there is no indication in this record that Algee’s attorney was unable to listen to the government’s closing,
there is no prejudice in that regard.
No. 08-3196        United States v. Algee                                         Page 13


court explicitly said it was a correct statement of the law, but did not do so until after
defense counsel had given her closing argument. Thus, because it was a correct
statement of the law, defense counsel could have argued the point in her closing even if
the jury was not specifically instructed on specific unanimity by the court.

       However, the packet of instructions handed to defense counsel immediately prior
to the beginning of closing arguments did not include the requested instruction. An
attorney in this situation would be reasonable in assuming that the court did not believe
the requested instruction to be a correct statement of the law. We cannot fault counsel
for erring on the side of caution by not arguing specific unanimity in light of the risk of
the court sustaining an objection from the government. Had the court conferred with
counsel in a meaningful manner prior to closing arguments, we assume that the court
would have said something similar to what it said after closing arguments—that even
though the specific unanimity instruction was a correct statement of the law, the court
did not feel the need to include it in the jury instructions. And had counsel heard this
before her closing argument, she could comfortably have argued the need for specific
unanimity to the jury.

       Furthermore, it seems clear, given her repeated insistence on a specific unanimity
instruction throughout the trial, that defense counsel would have mentioned to the jury
the need for specific unanimity if she felt that she could. So, in one sense, Algee was
prejudiced because his counsel was not able to deliver the exact closing argument that
Algee might have wished to give. However, as stated above, specific unanimity was not
a material aspect of Algee’s defense. Algee never took the position that he made the
statement to one person but not to another person. Instead, Algee’s defense was that he
did not intend to steal the money and that all of the statements were made without
knowledge of their falsity.

       Given the extraordinarily minor role of specific unanimity in Algee’s overall
defense theory, his inability to argue the issue to the jury did not prejudice him
sufficiently to warrant a retrial. Jury trials are fluid by nature. The law recognizes this
reality and allows for some play in the joints when it comes to reviewing the conduct of
No. 08-3196         United States v. Algee                                        Page 14


a trial to ensure its fundamental fairness. That general approach is also appropriate here.
In the case of a Rule 30(b) violation, the question is whether the error prevented the
defendant from arguing a material aspect (not just the material aspect, for a defendant
is allowed to present multiple material arguments in his defense) of his defense theory
to the jury. If it were the case that specific unanimity was a material aspect of Algee’s
theory of defense, regardless of its obvious weakness, his inability to argue the issue at
closing, based on a Rule 30(b) violation, would have prejudiced him severely by leaving
him essentially speechless before the jury. But that is not the case here. The record
plainly shows that specific unanimity was not material to Algee’s defense theory. Algee
had a full opportunity to argue all material aspects of his defense theory to the jury.
Accordingly, the district court’s Rule 30(b) violation did not result in prejudice to Algee
sufficient to warrant retrial.

                                             III.

        For the reasons set forth above, we AFFIRM Algee’s convictions.
