                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4282


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DAVID EARL WATTS, a/k/a High Gear, a/k/a Driver,

                Defendant - Appellant.



                                 10-4283


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAMES BARNARD HAITHCOCK, a/k/a Boss Hog,

                Defendant – Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Florence.      Terry L. Wooten, District
Judge. (4:08-cr-00372-TLW-1; 4:08-cr-00372-TLW-5)


Argued:   September 21, 2011                 Decided:   November 9, 2011


Before GREGORY, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion.       Judge Gregory   wrote   the
opinion, in which Judge Wynn and Judge Diaz joined.


ARGUED: Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence,
South Carolina; Gregory Poole Harris, HARRIS & GASSER, LLC,
Columbia, South Carolina, for Appellants.   Jimmie Ewing, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Jeffrey Mikell Johnson, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

       This case is on appeal from appellants’ convictions and

sentence for one count of conspiring to possess with intent to

distribute     methamphetamine     in    violation          of   21    U.S.C.    § 841.

Appellants present five claims of error to this Court: (1) the

district court improperly denied appellants’ motion to suppress

evidence seized in connection with a search of appellant Watts’s

home   after   the   Government    lost       the    search       warrant;      (2)   the

district     court   erroneously    denied          appellants’        motion    for    a

mistrial after the prosecutor improperly relied on statements

not in evidence during her closing arguments; (3) the prosecutor

unfairly     attacked    appellants’         trial      attorneys        during        the

rebuttal argument, depriving them of a fair trial; (4) there was

insufficient evidence for the court to attribute 6.3 kilograms

of   methamphetamine    to     Watts;    and    (5)    there      was    insufficient

evidence for the court to impose a two-level, “managerial role”

enhancement     to   Watts’s    sentence.           After    careful      review,       we

reject each of these arguments and affirm.



                                        I.

       Defendant-appellants      David       Earl    Watts       and   James    Barnard

Haithcock were, along with several others, indicted, tried, and

convicted of one count of conspiring to possess with intent to

distribute methamphetamine, in violation of 21 U.S.C § 841.                            The

                                         3
Government alleged that from 1999 up to indictment, Watts and

Haithcock      participated            in    a    conspiracy          to     produce    and    sell

methamphetamine with thirty to fifty other people.                                     The police

obtained       evidence       from      a     number       of    sources,          including   two

searches of Watts’s home.

     Before         trial     Watts         joined      co-defendant          Flint     Ratliff’s

motion to suppress evidence that was obtained pursuant to the

2003 search of Watts’s home on grounds that it violated Watts’s

Fourth     Amendment         rights.             At     the     hearing,       the     Government

informed       the    district          court         that      the    search       warrant    and

accompanying         affidavit         had       been      lost.           After    hearing    the

testimony      of    Christopher            Page,      a   narcotics         officer    with    the

Chesterfield County Sheriff’s Office, the court found that the

search warrant did exist, that there was sufficient evidence to

support    a     finding          of   probable         cause,        and    that     the   Fourth

Amendment’s particularity requirement was satisfied.

     At trial, the court heard from several witnesses, including

Watt’s    ex-wife,      Karen          Watts     (“Karen”).            The    Government       also

introduced evidence obtained in a second search of Watts’s home

conducted in 2005.            Appellant Haithcock also took the stand.                          He

testified, inter alia, that he was arrested in May 2008 in a

methamphetamine investigation.                        After spending several days in

jail,    Haithcock          and     his      attorney         met     with    DEA     agents   and

provided a proffer statement about his methamphetamine use.                                     On

                                                  4
cross    examination,   the   prosecutor    impeached     Haithcock,   making

extensive use of the proffer statement.           The Government referred

to the proffer during its closing arguments, arguing that “just

based on Mr. Haithcock’s statement . . . to the DEA that you

could convict each of these defendants . . . .”             Also during the

prosecution’s closing, the Government made several references to

defense counsel’s argument, calling it a “red herring” defense

that is “improper” and mere “speculation.”           The Government spoke

about defense counsel, telling the jury, “They don’t want you to

focus on the testimony.         They don’t want you to focus on the

evidence,” and later, “[L]ook at the way he cross examined every

one of these witnesses . . . .”            The Government also discussed

the plea agreements it made with several witnesses; it told the

jury that plea agreements “[are] designed, I submit to you, to

force truthful cooperation.”

      At the sentencing hearing, the district court attributed

6.3   kilograms   of    methamphetamine     to   Watts.     The   court   also

imposed a two-level enhancement for Watts’s leadership role in

the conspiracy.    Watts was sentenced to 360 months in prison.



                                    II.

        We consider each of appellants’ five claims of error in

turn.



                                     5
A. The Lost Search Warrant

         Appellant Watts argues that the district court improperly

denied     his   motion     to    suppress       evidence      after       the    Government

admitted that it lost the search warrant.                       In hearing an appeal

of   a    district      court’s    denial        of   a     motion    to    suppress,       an

appellate court reviews findings of fact for clear error and

determinations of probable cause de novo.                            Ornelas v. United

States, 517 U.S. 690, 699 (1996); United States v. Richardson,

607 F.3d 357, 369 (4th Cir. 2010).

         The   Fourth      Amendment       generally          requires       that        before

searching a home, the police must procure a warrant issued by a

neutral magistrate; this warrant must be supported by probable

cause and contain a particular description of the place to be

searched and the items to be seized.                          U.S. CONST. amend. IV.

Searches       conducted    without    a    valid          warrant    are   presumptively

unreasonable, Groh v. Ramirez, 540 U.S. 551, 559 (2004), and the

exclusionary rule bars a prosecutor from introducing evidence

obtained in violation of the Fourth Amendment during its case-

in-chief, Davis v. United States, 131 S. Ct. 2419, 2424 (2011).

However, an officer acting with an objectively reasonable good-

faith     belief   that     the   search     was      in     accord    with      the     Fourth

Amendment        overcomes         deficits           in      probable           cause     and

particularity.          See id.     Moreover, the Government may also use

unconstitutionally obtained evidence to impeach the defendant’s

                                             6
testimony.      United States v. Leon, 468 U.S. 897, 910 (1984).                        If

an error is found with a district court’s ruling, this Court

subjects that ruling to harmless error review, asking whether

the defect “affect[ed] substantial rights.”                          FED. R. CRIM. P.

52(a).       Evidence admitted in violation of the Constitution is

harmless if the appellate court finds “the constitutional error

was harmless beyond a reasonable doubt.”                         United States v. Abu

Ali,   528    F.3d    210,    256     (4th      Cir.     2008)    (citing    Chapman    v.

California, 385 U.S. 18, 24 (1967)).

       In this case, Watts contends that the Government did not

meet its burden of proof in demonstrating that the lost warrant

both   existed       and   complied        with    the    Fourth    Amendment.         The

Government responds by arguing that it did meet its burden and

that in any case, the error was harmless.                        This Circuit has not

had occasion to address the appropriate standard for searches

involving a subsequently lost warrant.                       It is clear that the

Fourth Amendment’s particularity requirement must be satisfied

by the contents of the warrant itself, and not by its supporting

documents.       Groh,     540      U.S.   at     557    (finding    a   constitutional

violation      when    the       affidavit,        but     not     the   warrant,      was

sufficiently particular).              But Groh left open the question of

whether any evidence besides the warrant itself can be used to

prove a missing warrant’s existence or contents.                            The Eleventh

Circuit   considered         this    question       in    United    States    v.   Pratt,

                                             7
where it held that “when a warrant is not in evidence at a

suppression hearing, a prosecutor must prove, by a preponderance

of the evidence, the missing search warrant’s exact language

describing the place to be searched and the persons or items to

be seized.”          United States v. Pratt, 438 F.3d 1264, 1270 (11th

Cir. 2006).

       Without ruling on the appropriate legal standard for cases

involving         lost     search    warrants,     we     find   that     even    if   the

Government         violated       Watts’s   Fourth      Amendment   rights       and   the

district          court    erred    in   failing     to    suppress     the      evidence

collected from the search, the error was harmless.                        Because only

Watts has standing to challenge the search of his home, we do

not consider the effect the alleged Fourth Amendment violation

had on Haithcock’s conviction and sentence.

       Over an eight-day trial where more than two dozen witnesses

testified, only two made any mention of the first search of

Watts’s home. *            One, Investigator Wayne Jordan, told the jury

that       officers       found    methamphetamine;       the    other,    Christopher

Page, said the police found “several guns,” a set of scales, and

two        bags     containing       what    was     later       determined       to    be

methamphetamine.            None of these facts was necessary to establish

Watts’s guilt.             The fact that Watts possessed methamphetamine

       *
       The search at issue here took place on November 24, 2003;
a second search occurred at the same location on July 14, 2005.


                                             8
was effectively admitted by the defense during closing arguments

when counsel told the jury there was “no doubt” that Watts used

methamphetamine.         Moreover, the 2005 search of Watts’s home,

which neither appellant challenges, produced substantially the

same evidence against Watts and then some:                       upon arrival, the

police found Karen and Watts (who was not present at the first

search) sitting in front of a coffee table with two lines of

white    powder    in    front    of    them;     the    police    also       recovered

methamphetamine,        plastic   baggies,       digital    scales,       a   security

monitor, empty gel caps, empty ephedrine boxes, and a cutting

agent.    And while we register some concern with respect to the

introduction of evidence that there were guns inside Watts’s

home, we also note that Watts was not charged with any crime

relating to the possession of a firearm.

     Besides      the   evidence       obtained    by    the     2005   search,     the

prosecution also put on nine witnesses who testified that they

purchased or received methamphetamine from Watts.                       Karen and a

woman named Jeannie Street both testified that they provided

Watts    with     pseudoephedrine        pills     for     the     manufacture      of

methamphetamine.        Ms. Street also said that she allowed Watts to

bury tanks of anhydrous ammonia in her yard.                     Several witnesses

also told the jury that they saw Watts making methamphetamine,

and three said that Watts himself showed them how to manufacture

the drug.    In considering the substantial and mostly uncontested

                                          9
evidence admitted into the record against Watts, we find beyond

a   reasonable     doubt    that     any   Fourth    Amendment     violation       was

harmless.

B. The Motion for a Mistrial

       Appellants contend that it was improper for the Government

to refer to Haithcock’s proffer statement to the DEA during its

closing arguments because that statement was never admitted into

evidence.     The Fourth Circuit reviews a district court’s denial

of a motion for a mistrial for abuse of discretion.                             United

States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003).                      When the

motion concerns the Government’s closing arguments, this Circuit

requires the application of a two-pronged test:                         “(1) whether

the    prosecutor’s       remarks    or    conduct    was    improper,      and    (2)

whether     such   remarks     or    conduct      prejudicially     affected       the

defendant’s substantial rights so as to deprive [him] of a fair

trial.”     Id. (citing United States v. Francisco, 35 F.3d 116,

120 (4th Cir. 1994)).         An appellate court also reviews claims of

improper closing arguments for harmless error.                    FED. R. CRIM. P.

52(a).      To find the error harmless, this Court “need only be

able   to   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.”

United    States   v.     Heater,    63    F.3d   311,     325   (4th    Cir.     1995)

(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

                                           10
       A fundamental rule of law is that “argument is limited to

the facts in evidence.”                United States v. Wilson, 135 F.3d 291,

298     (4th    Cir.     1998).           Past    inconsistent       statements       cannot

normally       be    used    as    substantive         evidence,    as     Rule    802    bars

hearsay from being admitted. FED. R. EVID. 802.                           The defendant’s

previous statements, however, are not hearsay.                              FED. R. EVID.

801(d)(2)(A).               Relevant,        non-hearsay      evidence       is     normally

admissible.          FED. R. EVID. 402.           Here, Haithcock’s statement was

relevant:       it directly contradicted several statements he made

during his direct examination.                        And of course, any party may

impeach a witness’s testimony.                        FED. R. EVID. 607.          Thus, the

statement was straightforwardly admissible.                          See United States

v. DiSantis, 565 F.3d 354, 359 (7th Cir. 2009) (finding no error

where    the        district      court      instructed     the     jury    that     it       may

consider       the     defendant’s           prior     inconsistent        statements          as

substantive         evidence).         The    only     question     is    whether    it       was

admitted.

       The record indicates that the prosecutor mentioned only one

fact    from    the     proffer       that    Haithcock     did     not    testify       to    on

direct or cross examination:                     that he had “his attorney, Mr.

McBratney” with him when he made the statement.                               However, we

cannot    conclude,          based    on     this     one   minor    detail,       that       the

prosecution’s closing arguments were improper under Francisco,

much     less        that      they       prejudicially       affected        appellants’

                                                 11
substantial rights.        “[T]o parse through a prosecutor’s closing

statement for minor infelicities loses sight of the function of

our adversary system, which is to engage opposing views in a

vigorous manner.”       United States v. Johnson, 587 F.3d 625, 632-

33 (4th Cir. 2009).        The district court’s denial of appellants’

motion for a mistrial, therefore, was proper.

C. The Government’s Closing Arguments

      Appellants    next      claim   that     the   prosecution’s        comments

during its closing arguments about defense counsel were improper

and that the Government bolstered and vouched for its witnesses.

A   district   court    has   broad   discretion      with   respect      to   oral

arguments.     It will be overturned only for abuse of discretion

under Stockton’s two-part test.              See Stockton, 349 F.3d at 762.

Appellants did not object to the prosecutor’s comments, a fact

they concede here.       Appellant’s Br. 38.         When a defendant fails

to object at trial, the appellate court reviews only for plain

error.    United States v. Baptiste, 596 F.3d 214, 226 (4th Cir.

2010).

      While    courts   grant   counsel      great   latitude   in    presenting

their    closing   arguments,     the    “guiding     principle      is   that   a

prosecutor should not strike ‘foul blows.’”                  United States v.

Ollivierre, 378 F.3d 412, 418 (4th Cir. 2004), rev’d on other

grounds, 543 U.S. 1112 (2005).           It is therefore “improper for a

prosecutor to launch a personal attack upon the defense attorney

                                        12
or upon defense attorneys generally.”                      Id.    Here, the comments

made by the prosecutor about defense counsel, while pointed,

were   not    personal    attacks.         It   is     true      that    the     prosecutor

referred to defense counsel’s theory as a “red herring defense,”

and made comments like “They don’t want you to focus on the

testimony you’ve heard in this case,” and at one point during a

sharp back-and-forth, the Government even commented in reference

to defense counsel’s actions, “It’s misleading, Your Honor, and

I object.”        But none of these are personal attacks against the

defendant’s attorney; they reflect a spirited disagreement with

the arguments made by the opposing party and do not concern the

attorneys themselves.           See Ollivierre, 378 F.3d at 418 (finding

that the prosecution’s comments, including that defense counsel

“tries to weave in distorted facts to try to make his argument,”

were   not    improper).        Moreover,       the    comments         simply    were   not

attacks under Ollivierre:            litigation at times becomes heated,

and the comments here do not rise to anything near the level of

acrimony     necessary     to    reverse    a    district        court     on    abuse-of-

discretion grounds.

       Similarly, the Government did not impermissibly bolster or

vouch for its witnesses.            Impermissible “[v]ouching occurs when

a prosecutor indicates a personal belief in the credibility or

honesty      of   a   witness;    bolstering          is   an    implication        by   the

government that the testimony of a witness is corroborated by

                                           13
evidence known to the government but not known to the jury.”

United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997).

However, such improper comments do not always require retrial:

the issue is whether “the prosecutors’ comments so infected the

trial    with    unfairness    as   to   make    the    resulting      conviction    a

denial of due process.”            Id. (citing United States v. Mitchell,

1 F.3d 235, 240 (4th Cir. 1993)).                     With respect to vouching,

this Court adopted the Tenth Circuit’s explanation of the types

of comments that are appropriate with regard to plea agreements

in closing arguments:

        Presenting evidence on a witness’ obligation to
        testify truthfully pursuant to an agreement with the
        government and arguing that this gives the witness a
        strong motivation to tell the truth is not, by itself,
        improper vouching. . . .    Use of the ‘truthfulness’
        portions of [a plea agreement] becomes impermissible
        vouching only when the prosecutors explicitly or
        implicitly   indicate  that   they  can   monitor  and
        accurately verify the truthfulness of the witness’
        testimony.

United States v. Collins, 401 F.3d 212, 216 (4th Cir. 2005)

(citing United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.

1990)).

        Here, the Government did not improperly vouch.                       The only

statement       made   with   respect    to     the    plea   agreements      is    the

prosecution’s      remark,    “[I]t’s    designed,       I    submit    to   you,    to

force     truthful     cooperation.”            This    did    not     suggest      the

prosecution      was   able   to    “monitor     and     accurately     verify      the


                                         14
truthfulness” of any testimony; it is instead a general comment

implying that the witness has “a strong motivation” to tell the

truth.    See also United States v. Celestine, 43 Fed.Appx. 586,

596 (4th Cir. 2002) (finding the prosecutor’s closing remarks

were not improper in part because the phrase “I contend to you”

indicates     “routine     argument,      and       not    the     expression      of    the

prosecutor’s       personal     opinion”).                As    for      the   charge     of

bolstering, there is simply no indication the Government ever

suggested     it     had   evidence       not       known        to   the      jury     that

corroborated       any   witness’s    testimony.               Appellant’s       argument,

therefore, is rejected.

D. The Quantity of Methamphetamine

       Turning to his sentence, Watts argues that the district

court erred in attributing 6.3 kilograms of methamphetamine to

him.     This      Court   reviews    a   district             court’s    drug    quantity

finding for clear error.         United States v. Kellam, 568 F.3d 125,

147 (4th Cir. 2009).           That burden is satisfied when the review

of all of the evidence leaves the court “‘with the definite and

firm conviction that a mistake has been committed.’”                             Easley v.

Cromartie, 532 U.S. 234 (2001) (quoting United States v. United

States Gympsum Co., 333 U.S. 364, 395 (1948)).

       When   a    defendant    objects        to   a     quantity       of    drugs,    the

district court must make an independent, factual determination

of the issue.       United States v. Williams, 152 F.3d 392, 300 (4th

                                          15
Cir. 1998).         In reaching its decision, the district court must

find that it is more probable than not that the defendant was

responsible for at least the quantity of drugs attributable to

him.        United States v. Kiulin, 360 F.3d 456, 461 (4th Cir.

2004).       Precise calculations of the amount of drugs are not

required; the district court may approximate the quantity to be

used for sentencing.             United States v. Uwaeme, 975 F.2d 1016,

1018 (4th Cir. 1992) (quoting 18 U.S.C. § 3742(e) (2003)).                                  A

conspirator         may   be    held    accountable        for    all    of    the    drugs

attributable        to    the   conspiracy       as   long   as    it    was   reasonably

foreseeable that the drugs would be involved in the conspiracy.

United States v. Osborne, 345 F.3d 281, 284-85 (4th Cir. 2003)

(citing United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir.

1993)).

       In    this    case,      appellants    concede        that,      because      of   the

conspiracy charge, Watts is liable for the uncontested 2.607

kilograms of methamphetamine attributed to his co-conspirators.

Appellant’s Br. 50.             As for the remaining 3.693 kilograms, the

district court relied heavily on the testimony of Karen.                                  In

evaluating      testimony,       “due     regard      to   the    opportunity        of   the

district court to judge the credibility of the witnesses” shall

be given.       Uwaeme, 975 F.2d at 1018.                  Here, the district court

did    not    err    in    crediting      Karen’s      testimony,       notwithstanding

appellants’         arguments      that     the       Wattses     had     a    tumultuous

                                            16
relationship and that Karen did not have significant contact

with Watts during part of the conspiracy.                       The district court

gave   several        reasons      for   finding     that    Karen’s      testimony    was

truthful:      it noted that her statements were mostly consistent;

that she “substantially incriminat[ed]” herself; that the court

observed her demeanor and found her to be credible; that she had

a basis to know the facts to which she testified; and that her

testimony was credited by the jury.                    Moreover, the presentence

report attributed 15.3 kilograms of methamphetamine to Watts.

Rather than taking a heavy-handed approach, the district court

“err[ed]    on       the    side   of    caution,”    used    “every      lowest   common

denominator          that    [it   could]     use,”    and    reduced      that    amount

substantially.             The drug weight attributed to Watts, therefore,

was not erroneous.

E. The Managerial Role Sentencing Enhancement

       Finally, appellant Watts argues that there was insufficient

evidence      for      the     court     to   impose    a     two-level       managerial

enhancement at sentencing because Watts, rather than having a

leading or supervisory role in the conspiracy, was merely one

member   of      a    “loose-knit”        organization       that    bought    and    sold

methamphetamine.            The Fourth Circuit reviews a district court’s

decision      to     apply    a    sentencing      adjustment       for   clear    error.

United States v. Sayles, 296 F.3d 219 (4th Cir. 2002).



                                              17
        A district court may impose a two-level enhancement against

a   defendant       that     it    finds       acted      as    “an      organizer,         leader,

manager, or supervisor” of the conspiracy.                            U.S.S.G. § 3B1.1(c).

In reaching its decision, district courts look to seven factors:

        (1) the exercise of decision making authority, (2) the
        nature of participation in the commission of the
        offense, (3) the recruitment of accomplices, (4) the
        claimed right to a larger share of the fruits of the
        crime, (5) the degree of participation in planning or
        organizing the offense, (6) the nature and scope of
        the illegal activity, and (7) the degree of control
        and authority exercised over others.

United States v. Cameron, 573 F.3d 179, 1984 (4th Cir. 2009)

(citing U.S.S.G. § 3B1.1, cmt. n.4).                       Here, the factors point in

favor of a finding that Watts acted in a managerial role.                                          To

begin    with,      Watts    had    significant           decision-making             authority,

acting    as    a    supervisor         on    a   number       of    occasions:            He,    for

example, ordered Karen to purchase pseudoephedrine pills and to

“bubble” liquid methamphetamine and would intermittently forbid

Karen    from       entering      the    house         where    he       and   the    other       co-

conspirators were cooking methamphetamine.                                Watts also taught

several of his co-conspirators how to make the drug, including

David Flake, Shaun Runyan, and Robert Rowell.                                  Finally, on one

occasion,       a    woman     named         Michelle     Goodwin         visited         Watts   to

purchase       methamphetamine;          Watts         directed      a    woman      to    pull    up

Goodwin’s shirt to see whether she had a recording device.                                        In

looking at the record as a whole, it is clear from the testimony


                                                  18
that Watts acted as an organizer and leader in the conspiracy.

The district court did not commit clear error in applying the

two-level managerial enhancement.



                              III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                      AFFIRMED




                               19
