UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4455

EDWARD WILLIE JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-97-480-PJM)

Submitted: June 22, 1999

Decided: August 26, 1999

Before MURNAGHAN, WILKINS, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Lynne
A. Battaglia, United States Attorney, Rod J. Rosenstein, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Edward Willie Johnson appeals his convictions for falsification of
a material fact in violation of 18 U.S.C.A. § 1001 (West Supp. 1999),
18 U.S.C. § 2 (1994), theft of government property (Freon), in viola-
tion of 18 U.S.C.A. § 641 (West Supp. 1999), 18 U.S.C. § 2, and false
statement in violation of 18 U.S.C. § 1001. On appeal, Johnson con-
tends that the trial court erred in allowing the case agent to testify
about a statement made by a witness during the investigation, that the
prosecutor improperly commented on his failure to provide an expla-
nation for the incriminating document and that this amounted to plain
error as referencing Johnson's failure to testify, and that the district
court's instructions on aiding and abetting were incorrect and
amounted to plain error. We affirm.

Johnson contends that the district court erred in allowing Detective
Luke to testify to the substance of his conversation with Alonzo
Mason. Specifically, Luke testified that, in response to his inquiry as
to whether Mason saw Johnson distribute Freon to Mike Thompson,
Mason replied that "he had not seen anyone there." (J.A. at 58). Over
Johnson's objection, the district court ruled that this was not hearsay,
because it was not offered for the truth of the matter asserted.

This court reviews a district court's evidentiary rulings for abuse
of discretion, but such rulings are subject to a harmless error analysis
under Federal Rule of Criminal Procedure 52(a). See United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997). An evidentiary error is
deemed harmless if a reviewing court can say "with fair assurance,
after pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error." Kotteakos v. United States, 328 U.S. 750, 765
(1946).

                     2
The challenged statement was relevant to count three of the indict-
ment, which charged Johnson with making a false statement to an
National Institute of Health detective "by providing a signed affidavit
. . . stating that [Johnson] had issued freon to Mike Thompson and
another man at approximately 4:20 p.m. on July 31, 1997, when in
truth, as the defendant well knew, he did not issue freon to anyone at
that time." (J.A. at 10). The government asserts that the challenged
statement was offered for reasons other than to prove the truth of the
matter asserted, such as, to show that the false statement by Johnson
was material, to show Luke's state of mind in requesting Johnson to
walk through the power plant to identify Thompson, or to rebut the
defense's contention that Detective Luke focused on Johnson without
fully investigating the case.

However, assuming that the statement was admitted for the truth of
the matter asserted in violation of the rule against admission of hear-
say evidence, we find that admission of the statement did not
adversely affect Johnson's substantial rights. See Fed. R. Crim. P.
52(a); United States v. Nyman, 649 F.2d 208, 212 (4th Cir. 1980)
(quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir.
1969)). Therefore, we find any error to be harmless. See Kotteakos,
328 U.S. at 765.

Because Johnson failed to object to the closing argument, John-
son's contention on appeal that the prosecutor improperly commented
on his failure to testify is reviewed for plain error. See Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). During
closing argument, the prosecutor repeatedly remarked that Johnson
provided no explanation for the document containing his initials not-
ing that he distributed the Freon to Mike Thompson. However,
remarking on the failure of the defense, as opposed to the defendant,
to counter or explain the evidence is not impermissible comment on
the defendant's failure to testify as prohibited by Griffin v. California,
380 U.S. 609, 615 (1965). See United States v. Knowles, 66 F.3d
1146, 1163 (11th Cir. 1995) (finding no error in"Did you ever hear
an explanation for that?"). We find that the prosecutor's comments in
this case are directed at the failure of the defense to present an expla-
nation, rather than directed at Johnson's failure to take the witness
stand and testify. To the extent they had the effect of drawing atten-
tion to Johnson's failure to testify, we find that the comments did not

                     3
prejudice Johnson's substantial rights so as to amount to reversible
error, much less plain error. See United States v. Harrison, 716 F.2d
1050, 1052 (4th Cir. 1983); Olano, 507 U.S. at 732.

Lastly, Johnson contends that the district court erred in instructing
the jury on the law of aiding and abetting. Because he failed to object
to the instructions, this court's review is for plain error. See Fed. R.
Crim. P. 52(b); Olano, 507 U.S. at 736.

Because the instructions as a whole, see Cupp v. Naughten, 414
U.S. 141, 146-47 (1973), adequately define the crime of aiding and
abetting, we find that the district court did not err in instructing the
jury. Further, even if the instructions amounted to error, in light of the
substantial evidence of Johnson's guilt, he failed to show that the
instructions as given affected the outcome of the proceedings and
seriously affected the fairness, integrity, or public reputation of the
proceedings, as required to reverse for plain error. See Olano, 507
U.S. at 732; see also Johnson v. United States , 520 U.S. 461, 469-70
(1997) (affirming conviction even though court failed to instruct jury
on element of crime).

In conclusion, we affirm Johnson's convictions. 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

                     4
