                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4911


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WESLEY E. PHILLIPS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:09-cr-00188-LO-1)


Submitted:   July 14, 2010                   Decided:    August 6, 2010


Before MOTZ and    SHEDD,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Anthony    L. Ricco, Steven Z. Legon, New York, New York, for
Appellant.   Neil H. MacBride, United States Attorney, Benjamin
L. Hatch, Assistant United States Attorney, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             A   jury     convicted        Wesley        E.     Phillips,         Jr.,   of     two

counts of making false statements to the Department of Housing

and    Urban      Development        (“HUD”)            during     the        course     of      an

investigation, in violation of 18 U.S.C. § 1001 (2006).                                         The

district      court     sentenced         him       to    two     years       of     probation.

Phillips appeals his convictions, challenging the exclusion of

two defense witnesses, the adequacy of the jury instructions,

and   the    sufficiency      of    the    evidence.             Finding       no    reversible

error, we affirm.

             Phillips first contends that the district court erred

by    excluding     two     defense       witnesses.             He        asserts    that      the

witnesses’ testimony would have demonstrated the bias of a key

government       witness.          Although         a    criminal          defendant      has    a

constitutional        right   to    present          evidence      in       his    favor,      see,

e.g., United States v. Moussaoui, 382 F.3d 453, 471 (4th Cir.

2004),      “a defendant’s         right     to         present        a    defense      is     not

absolute; criminal defendants do not have a right to present

evidence     that     the   district       court,         in     its       discretion,        deems

irrelevant or immaterial.”                 United States v. Malloy, 568 F.3d

166, 177 (4th Cir. 2009) (internal quotation marks and citations

omitted), cert. denied, 130 S. Ct. 1736 (2010).                                    We review a

district court’s evidentiary rulings for an abuse of discretion.



                                                2
United States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010) (stating

standard of review).

               With    these     standards         in    mind,       our    review    of    the

portions    of    the     trial      transcript         included      in    the    record    on

appeal leads us to conclude that the district court did not

abuse    its    discretion        by       excluding     the     witnesses’        testimony.

Moreover,       even     assuming      that       the   district       court      abused    its

discretion, we hold that any error was harmless in light of

defense counsel’s extensive cross-examination of the government

witness sought to be impeached.                    See United States v. Kelly, 510

F.3d 433, 439 (4th Cir. 2007) (finding exclusion of impeachment

evidence    harmless       where       witness      subjected        to    vigorous    cross-

examination       attacking       credibility).             Thus,         Phillips    is    not

entitled to relief on this claim.

               Next,     Phillips       contends        that    the       district    court’s

definition of materiality was an inaccurate statement of the law

in light of United States v. Gaudin, 515 U.S. 506 (1995).                                   “We

review the district court’s decision to give or refuse to give a

jury instruction for abuse of discretion.”                                United States v.

Green,    599     F.3d    360,       377    (4th    Cir.   2010).           In    determining

whether the district court abused its discretion, “we consider

whether[,] taken as a whole and in the context of the entire

charge,     the       instructions          accurately         and    fairly      state     the

controlling       law.”        Id.     at   378    (internal         quotation     marks    and

                                               3
citation      omitted).        Because       the   district     court    correctly

instructed the jury on the materiality element of the offenses,

we conclude that Phillips’ claim fails.

              Phillips      also    asserts        that   the     evidence     was

insufficient         to    establish     that      his    statements      to   the

investigating agent were material.                 This court reviews de novo

the district court’s decision to deny a motion pursuant to Fed.

R. Crim. P. 29.           Green, 599 F.3d at 367.         Where, as here, the

motion was based on a claim of insufficient evidence, “[t]he

verdict of a 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).

This court confines “reversal [of a conviction] on grounds of

insufficient evidence . . . to cases where the prosecution’s

failure is clear.”          Green, 599 F.3d at 367 (internal quotation

marks and citation omitted).

              We have reviewed the record on appeal and conclude

that Phillips’ false statements to the investigating agent were

material.      See United States v. Garcia-Ochoa, 607 F.3d 371, 375

(4th Cir. 2010) (“The test of materiality is whether the false

statement has a natural tendency to influence agency action or

is capable of influencing agency action.”) (internal quotation

marks and citation omitted)).            Although Phillips argues that the

agent   was    not    competent    to   testify     regarding    HUD’s    decision

                                         4
making authority, his argument is belied by the record.                          Thus,

we   conclude     that    the    district       court   did   not    err   in   denying

Phillips’ Rule 29 motion. ∗

               Finally,    Phillips    challenges       his   convictions       on   the

ground    that    the     prosecutor    made      an    improper     comment    during

closing argument.          We review a claim of prosecutorial misconduct

to determine “whether the [misconduct] so infected the trial

with unfairness as to make the resulting conviction a denial of

due process.”        United States v. Caro, 597 F.3d 608, 624 (4th

Cir. 2010) (internal quotation marks and citation omitted).                          In

order     to     reverse     a    conviction        based     upon     prosecutorial

misconduct, “the defendant must show (1) ‘that the prosecutor’s

remarks or conduct were improper’ and (2) ‘that such remarks or

conduct prejudicially affected his substantial rights so as to

deprive him of a fair trial.’”                   Id. at 624-25 (quoting United

States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)).




      ∗
       To the extent Phillips raises for the first time on appeal
a claim that HUD did not have jurisdiction over Phillips’ use of
his personal firearm, we have reviewed his claim for plain error
and find none.    See United States v. Jackson, __ F.3d __, __,
2010 WL 2528730, at *3 (4th Cir. June 24, 2010) (No. 09-4753)
(discussing meaning of “jurisdiction” for purposes of making
false statements in violation of § 1001); United States v.
Wallace, 515 F.3d 327, 331-32 (4th Cir. 2008) (reviewing
sufficiency of evidence for plain error where defendant did not
file Rule 29 motion in district court).



                                            5
            Phillips failed to object to the Government’s closing

argument.      Thus, our review is only for plain error, and there

is none.     See United States v. Sanchez, 118 F.3d 192, 197 (4th

Cir.   1997)      (stating   standard   of    review).       The    prosecutor’s

closing argument was based on facts before the jury.                        In any

event, the district court ameliorated any prejudice that may

have resulted from the prosecutor’s comment by instructing the

jury that arguments of counsel were not evidence.                  See Caro, 597

F.3d   at   626    (discussing   factors     courts    should      consider    when

assessing prejudice, including whether court gave jury curative

instructions).       Thus, Phillips is not entitled to relief.

            Accordingly, we affirm the district court’s judgment.

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




                                        6
