                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-5010



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

           versus


NATHAN A. CHAPMAN, JR.,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-03-301-WDQ)


Argued:   September 20, 2006                 Decided:   December 8, 2006


Before WILLIAMS and TRAXLER, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Traxler wrote the opinion, in which Judge Williams
and Judge Floyd joined.


ARGUED: William R. Martin, BLANK ROME, L.L.P., Washington, D.C.,
for Appellant. Jefferson McClure Gray, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.     ON BRIEF: Rod J.
Rosenstein, United States Attorney, Craig M. Wolff, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
TRAXLER, Circuit Judge:

     Nathan Chapman was the chairman of the board, chief executive

officer, and majority shareholder of various financial services

companies       including     The    Chapman      Company,     Chapman     Capital

Management, and, later, eChapman.com.               Chapman was convicted of

numerous    crimes    stemming      from    his   management    of   the   various

companies and from his conduct during the initial public offering

(“IPO”)    of   the   stock   of    eChapman.      Chapman     appeals,    raising

multiple challenges to his convictions, sentence, and restitution

award.    We affirm Chapman’s convictions and the restitution award,

but we vacate his sentence and remand for re-sentencing.


                                           I.

     The charges for which Chapman was convicted stemmed from two

relatively distinct sets of facts: Chapman’s conduct in connection

with the IPO of eChapman stock and his improper use of “business

development funds” provided to him by his various companies.                   We

will set out the facts surrounding the IPO first and then discuss

Chapman’s use of the business development funds. The facts that we

set out, of course, are those established at trial when the

evidence is viewed in the light most favorable to the government.

                                           A.

     After working as a public accountant for several years,

Chapman started his own financial services companies:                The Chapman

Company, an investment banking and retail brokerage firm, and

                                           3
Chapman    Capital     Management,      an    investment   advisory   firm   that

managed money for public and private pension funds.

     Chapman, through Chapman Capital Management, later took over

management and operation of Minority Equity Trust, a “fund of

funds” that managed and invested funds for several pension funds,

including the State Retirement and Pension System of Maryland (the

“Maryland Pension System”).          Minority Equity Trust used multiple

independent      investment    advisory       firms   (called    subadvisors)   to

manage the fund and allotted a portion of the total funds it

managed    to   each   subadvisor    for      investing    and   managing.      The

subadvisors had different investment styles or specialties--some

invested    in     growth     stocks,        others   in   small-capitalization

companies, etc. All of the subadvisors were controlled by women or

minorities.

     When Chapman took over Minority Equity Trust, he renamed it

Domestic Emerging Markets Minority Equity Trust (DEM-MET), but its

purpose (to provide opportunities for minority money managers)

remained the same, and all of the subadvisors in DEM-MET were women

or minorities. Shortly after Chapman took over DEM-MET, one of the

subadvisors left. Chapman replaced that subadvisor with Alan Bond,

who at the time was enjoying great success on Wall Street and made

regular appearances on a PBS television show focusing on investment

and finance.       Bond’s investment specialty was large-cap growth




                                         4
stocks.   He received from DEM-MET an initial allocation of $10

million to manage.

     Under the rules established by Chapman Capital Management,

DEM-MET subadvisors were required to invest in stocks found on a

list of pre-approved companies or get approval before investing in

a stock not on the list.      Subadvisors could not invest in stocks

where liquidity of the stocks was limited by the company size or

insider ownership of more than 50% of the company shares.                The

various pension funds participating in DEM-MET also had certain

restrictions    on   the   stocks   that   could   be   purchased   by   the

subadvisors.

     When Chapman took over DEM-MET, his companies were private,

and he was the majority stockholder.       In 1997, he spun off Chapman

Capital Management from The Chapman Company, placed each company

under a separate holding company, and announced that he would hold

IPOs for 40% of the outstanding stock in each holding company.           The

IPOs were structured as “firm offer” IPOs--unless the minimum

number of shares specified in the registration statement were sold,

the IPO would not proceed.

     The IPOs were successful, in that the minimum number of shares

were sold.     In both cases, however, the minimum number of shares

were sold only because of large purchases of the stock by Alan

Bond.   Bond used DEM-MET funds to purchase the shares in one of the

IPOs and used funds of other clients to buy into the other IPO.


                                     5
      Bond testified at trial that the Chapman IPOs were not a good

fit for him--the stock was not liquid, given that the companies

were small and Chapman retained a majority interest, and there was

a great deal of risk associated with the ventures.                  Bond also

testified that the companies were much smaller than the large-cap

growth stocks he focused on.      He testified that the only reason he

bought into the IPOs was because Chapman pressured him and assured

him that more DEM-MET money to manage would come his way if Bond

invested in the IPOs.        Bond was concerned that there might be a

conflict of interest in using DEM-MET funds to buy into the IPOs,

since Chapman (through Chapman Capital Management) controlled DEM-

MET and was the one selling and benefitting from the IPOs.              Chapman

assured Bond that there was no conflict, and Bond ultimately

invested in the IPOs.

      In May 1999, Chapman began planning a third IPO.            This time he

was   going   to   reunite    Chapman       Holdings   and    Chapman   Capital

Management Holdings and turn them into an internet-based financial

services company called eChapman.com.              Chapman initially hoped to

sell 3.3 million shares at $14-16 dollars a share. Chapman’s early

efforts to get investors to commit to purchasing shares in the

eChapman IPO, however, were not overly successful.

      In December 1999, Alan Bond was indicted for a kickback scheme

involving a New York stock broker.            After the indictment, many of

Bond’s   clients   abandoned    him,        and   DEM-MET’s   outside   advisor


                                        6
recommended that Bond be terminated as subadvisor.                  Chapman, who

was solely responsible for the decision, declined to terminate

Bond.   Not long after the indictment, Chapman visited Bond in New

York.   He told Bond that he was not going to fire him, but he also

told Bond that he expected Bond to be the “pinch hitter in reserve”

on the eChapman IPO.      Bond understood that to mean that Chapman

expected   Bond   to   again    help   him   out   if   the   IPO    was   under-

subscribed.

     In early 2000, before the eChapman IPO opened, the “dot-com

bubble” burst, and the stock value of many Internet stocks dropped

dramatically.     Chapman had already spent a great deal of money in

legal and accounting fees preparing for the IPO, so he pressed on

despite the less favorable market conditions.            Chapman reduced the

number of shares to be offered to 1.26 million and lowered the

price to $13 per share.        Investors, however, were still expressing

little interest in the eChapman IPO.         The discussion about the IPO

in the financial press was almost uniformly negative.                   Analysts

believed that the $13 per share price was too high and that the

Chapman companies that were merging to form eChapman did not have

a good track record.     There was also concern that the structuring

of the deal created an incentive for the owners of the companies

that were being merged to sell their shares as soon as eChapman was

born, which would create an immediate downward pressure on the

price of an already overvalued stock.


                                       7
     Faced with limited outside interest in the IPO, Chapman again

pressured Bond to buy into the eChapman IPO.        Bond told Chapman he

could not invest, in part because he had so few clients left after

the indictment (only six, including DEM-MET), and eChapman did not

fit within the needs of any of those clients.        Chapman persisted,

and Bond eventually capitulated, agreeing to buy 200,000 shares

with DEM-MET funds. The purchase of the eChapman IPO violated DEM-

MET’s investment guidelines, and Bond testified at trial that the

purchase   was   not   consistent   with   his   usual   stock   selection

strategy. Chapman also pressured another DEM-MET subadvisor to buy

eChapman stock.        That subadvisor (who bought 20,000 shares),

testified that without Chapman’s pressure, “I would not have

participated, period.”     J.A. 980.

     The eChapman IPO closed on June 20, 2000, and public trading

of the stock began the next day.        By the end of the first day of

public trading, the stock, which had been offered at $13 per share,

was trading for between $7 and $8 per share.         The 200,000 shares

that Bond had bought for DEM-MET thus lost more than $1 million in

value in a single day.

     A few days later, Chapman called Bond again and told him that

an underwriter had dropped out, which meant that the IPO was under-

subscribed and should not have proceeded.        Chapman pressured Bond

to buy still more eChapman stock at the original offering price

rather than its then-current price of around $7 per share.            When


                                    8
Bond protested, Chapman promised Bond that he would give him more

DEM-MET money to manage if he bought more eChapman shares.               Bond

capitulated and agreed to buy for DEM-MET’s account another 175,000

shares of eChapman stock at $13 per share.            In late June, Bond

bought the additional shares, causing an immediate loss to DEM-MET

of   50%   of    its   investment.   Bond   and   Chapman   structured    the

purchases to make it look as if the stocks had been bought on the

day that trading opened.         Bond had to liquidate well-performing

stocks in DEM-MET’s portfolio to raise the cash necessary to buy

the eChapman stock.

      Chapman quickly followed through on his promise to Bond.             He

gave Bond a $1.5 million eChapman investment portfolio to manage,

and he also gave Bond another $10 million in DEM-MET funds to

manage.    Bond used much of the additional DEM-MET money to buy back

the stock that he had liquidated to finance the eChapman purchase.

      In August 2001, Bond was indicted a second time on federal

securities charges. These charges accused Bond of “cherry picking”

-- day-trading in the same stocks in his personal account that he

was trading in for DEM-MET and two other clients, and assigning the

profitable trades to himself and the unprofitable ones to the

clients.        At that point, Chapman terminated Bond as a DEM-MET

subadvisor.       Bond was convicted in 2002 on the cherry-picking

charges, and he then pleaded guilty to the kickback charges.




                                     9
       Chapman’s conduct in connection with the eChapman IPO formed

the factual basis for multiple counts of mail and wire fraud,

investment advisory fraud, and making false statements to the

Securities and Exchange Commission.      The jury ultimately convicted

Chapman of eleven counts of wire fraud, two counts of mail fraud,

three counts of investment advisory fraud, and one count of making

a false statement to the SEC.

                                  B.

       As chief executive officer of his various companies, Chapman

regularly requested that “business development” checks (ranging

from   $500 to almost $10,000) be issued to him, to cover travel and

other expenses associated with getting and maintaining clients.

From 1997 to mid 2002, Chapman received more than $460,000 in

business development funds. He always converted the checks to cash

(that is, he did not deposit them in his checking account, but

instead cashed them at the bank) and he never submitted receipts or

other documentation to show how the money was spent.

       During the time that he was getting the business development

checks, however, Chapman was also making extensive use of the

company credit card when he traveled.     Hotel rooms, plane tickets,

meals, etc., were placed on the credit card.            According to the

government, Chapman charged more than one million dollars on

company credit cards during the period of time that he collected

$460,000   in   business   development   funds.    Of    those   charges,


                                  10
approximately $250,000 were for personal expenses, while somewhat

less than $800,000 were for company-related travel and other

business expenses.

     The   government     presented      fairly     compelling      evidence

demonstrating   that    Chapman   was    using    much   of   the   business

development cash to support his mistresses.               From 1998-1999,

Chapman gave nearly $50,000 in cash to Debra Humphries.             And from

1998-2002, Chapman gave Yelinde Tyler more than $200,000 in cash,

plus at least another $70,000 in gifts, trips, and meals.               The

government compiled a chart comparing the dates and amounts of

business development checks received by Chapman and the dates and

amounts of cash deposits into the women’s bank accounts. While the

correlation was not perfect, there was enough of a correlation that

the jury could reasonably conclude that much of the business

development cash was going to the mistresses, not to legitimate

business expenses.

     This improper use of the business development funds provided

the factual basis for multiple counts of wire fraud, as well as

several counts of making false statements on income tax returns.

The jury convicted Chapman of four counts of wire fraud and two

counts of making false statements on tax returns.


                                   II.

     Chapman, an African-American, contends that he is entitled to

a new trial because the government used its peremptory strikes to

                                   11
remove African-American females from the jury, in violation of

Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny.                 We find

no reversible error.

     “When making a Batson motion, the defendant must first make a

prima    facie   showing   of   purposeful     discrimination.          Once   the

defendant establishes a prima facie case of discrimination, the

burden shifts to the prosecutor to articulate a race-neutral [or

gender-neutral] explanation for the challenge.”               United States v.

Grimmond, 137 F.3d 823, 833-34 (4th Cir. 1998) (citation and

internal quotation marks omitted).           “If the prosecutor satisfies

this requirement, the burden shifts back to the defendant to prove

that the explanation given is a pretext for discrimination.                    The

ultimate burden always rests with the opponent of the challenge to

prove    purposeful    discrimination.”        Id.    at    834   (citation    and

internal    quotation      marks   omitted).         When    reviewing    Batson

challenges, we give “great deference” to the district court’s

determination     of    whether    a   strike     was       exercised    for    an

impermissible reason.       Id. at 833.

     When selecting the jury, the government used five of its six

peremptory challenges, and all of those challenges were used to

remove black women from the jury panel.1             After Chapman made his


     1
      The government did not use its sixth peremptory strike, and
two black males were seated on the jury. The government used none
of the four strikes allotted to it for the selection of eight
alternate jurors.    The alternates selected included two black
females and one black male.

                                       12
Batson motion, the government explained its strikes as follows. As

to Juror 23, the government stated, “[s]he’s young.          She works as

an office assistant at Giant.          You know, the other jurors were

probably better able to appreciate some of the complicated evidence

in this case.”     J.A.     206-07.     As to Juror 37, the government

explained that “[s]he came up to the bench and spoke here.         I just

had a reading of her as somewhat vacant.        She just didn’t seem as

smart.”    J.A. 207.   The government explained that it struck Juror

47 because “[s]he just seemed very unhappy to be here.        That’s what

my observation of her was when she walked into the room. . . .        I’m

going on the basis of her demeanor and the way she’s been looking

at us.”    J.A. 208.      As to Juror 51, the government stated that

“[s]he’s had her arms crossed the entire time she’s been in here.

. . . [S] he’s got a hard look on her face. . . and just seems like

someone who could be difficult in the jury room. . . . It was just

her general demeanor. . . .       She looked very fed up.”   J.A. 208-09.

Finally, the government explained that it struck Juror 82 because

she works “with the Office of the Public Defender in the city, and

sometimes people who work for the Public Defender’s Office have

particular views about the Government.”        J.A. 209.

     The    district      court    concluded   that   the    government’s

explanations for the strikes were race- and gender-neutral, and the

court rejected Chapman’s claim that the reasons given by the

government were pretextual because they were not based on any


                                      13
objective    criteria.      Accordingly,      the    district   court   denied

Chapman’s Batson motion.2

     On appeal, Chapman suggests that the facial expression or

demeanor    of   a   potential   juror   is   an    impermissible   basis   for

exercising a strike.      We disagree.

     This court has long recognized that a juror’s demeanor is a

neutral basis upon which to exercise a peremptory strike.                   See

United States v. Grandison, 885 F.2d 143, 149 (4th Cir. 1989)

(“Numerous valid factors may influence a prosecutor to strike a

particular potential juror, including current and past employment,

general appearance and demeanor. . . .” (internal quotation marks

omitted)); cf. Howard v. Moore, 131 F.3d 399, 408 (4th Cir. 1997)



     2
      After the government explained its reason for each strike,
the district court, before hearing from Chapman, described each
explanation as “not a pretext.” See J.A. 207-09. As noted above,
the question of pretext comes in at the third step of the Batson
inquiry--if the defendant makes a prima facie showing, the
government must articulate a race- and gender-neutral explanation
for its strikes, and the defendant is then required to show that
the articulated reason is pretext for unlawful discrimination.
Since Chapman had made no argument at the time that the court
declared the explanations to be non-pretextual, it is likely that
the district court simply misspoke, intending to describe the
explanations as neutral rather than non-pretextual. In any event,
we note that counsel for Chapman had the opportunity to make his
arguments as to why the government’s explanations were pretext for
unlawful discrimination, and the district court denied the Batson
motion after hearing from Chapman. See J.A. 211. Thus, even if
the district court prematurely (that is, before hearing from
Chapman) concluded that the government’s explanations for its
strikes were not pretextual, any error was cured by the subsequent
opportunity for Chapman to make his Batson argument. We also note
that Chapman does not argue on appeal that the district court
prevented him from adequately presenting his Batson claim.

                                     14
(en banc) (“Both the prosecutor and defense counsel must be allowed

to   make   credibility    determinations   when    exercising    peremptory

challenges.    For example, counsel may consider the characteristics

of the other prospective jurors against whom peremptory challenges

might be exercised; to reevaluate the mix of jurors and to take

into account tone, demeanor, facial expression, emphasis--all those

factors that make the words uttered by the prospective juror

convincing    or   not.”   (internal    quotation   marks   and   alteration

omitted)). If the district court did not observe the expression or

demeanor that the attorney claimed justified the strike, the court

may well conclude that the proffered explanation is not credible.

There is, however, no requirement that the attorney exercising the

strike offer objective evidence to support his view of the juror’s

demeanor.     See Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (per

curiam) (“The second step of [the Batson inquiry] process does not

demand an explanation that is persuasive, or even plausible.              At

this second step of the inquiry, the issue is the facial validity

of the prosecutor’s explanation. Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the reason offered will

be deemed race neutral.” (internal quotation marks and alteration

omitted)); cf. Hernandez v. New York, 500 U.S. 352, 365 (1991) (“In

the typical peremptory challenge inquiry, the decisive question

will be whether counsel’s race-neutral explanation for a peremptory

challenge should be believed.       There will seldom be much evidence


                                       15
bearing on that issue, and the best evidence often will be the

demeanor of the attorney who exercises the challenge.           As with the

state of mind of a juror, evaluation of the prosecutor’s state of

mind based on demeanor and credibility lies peculiarly within a

trial judge’s province.” (internal quotation marks omitted)).

      In this case, the demeanor of the potential juror was the

government’s   proffered   explanation      for   many   of   its   strikes.

Because Chapman offered no evidence tending to show that these

explanations were pretextual, the district court properly denied

Chapman’s objection as to those strikes.            See United States v.

Cordoba-Mosquera, 212 F.3d 1194, 1198 (11th Cir. 2000) (per curiam)

(“[W]e give great deference to the trial judge’s determination that

the peremptory strike was not racially motivated.             Deference is

particularly   warranted   here,    where   the   proffered   race-neutral

explanation centered on the juror's body language and mannerisms

that signaled inattentiveness, behaviors that are especially given

to on-the-spot interpretation.” (citations and internal quotation

marks omitted)); United States v. Love, 419 F.3d 825, 828 (8th Cir.

2005) (finding no error in denying Batson motion when district

court believed prosecutor’s explanation that he struck potential

juror because she rolled her eyes at him, and defendant offered no

persuasive evidence of pretext).

      Chapman also contends that the other explanations proffered by

the   government   (regarding   a   juror’s   age   or   occupation)    were


                                    16
pretextual because similarly-situated white jurors were not struck

by the government.         See Miller-El v. Dretke, 545 U.S. 231, 241

(2005) (“If a prosecutor’s proffered reason for striking a black

panelist applies just as well to an otherwise-similar nonblack who

is permitted to serve, that is evidence tending to prove purposeful

discrimination to be considered at Batson’s third step.”).                      For

example, Chapman notes on appeal that the government did not strike

three white jurors who were younger than Juror 23, even though the

government contended that it struck Juror 23 in part because of her

youth.   Chapman also points to other white jurors accepted by the

government who had low-level or low-skilled jobs.                        Since the

government    noted     Juror    23's   job   as     an   office   assistant    when

questioning her ability “to appreciate some of the complicated

evidence    in   this   case,”    J.A.   207,       Chapman   contends   that    the

government’s     failure    to    strike      the    white    low-skilled   jurors

suggests that the explanation for striking Juror 23 was pretext.

     Chapman, however, never made these arguments to the district

court.     That is, he pointed to no similarly-situated jurors that

were seated by the government.             Instead, Chapman simply asserted

that the government’s explanations were pretext and argued that

there must be some sort of objective standard before the government

could strike a juror based on demeanor, an argument we have already

rejected.




                                         17
     In this circuit, the failure to argue pretext after the

challenged strikes have been explained constitutes a waiver of the

initial Batson objection.   See Davis v. Baltimore Gas & Elec. Co.,

160 F.3d 1023, 1027 (4th Cir. 1998).      The failure to argue a

specific basis for pretext may likewise constitute a waiver of the

right to make that specific challenge to the Batson ruling on

appeal.   If the issue is waived, the issue is not reviewable on

appeal; an issue that is merely forfeited is reviewable for plain

error.    See United States v. Olano, 507 U.S. 725, 733 (1993);

United States v. David, 83 F.3d 638, 641 n.5 (4th Cir. 1996).   We

need not decide, however, whether Chapman waived rather than

forfeited his specific juror-comparison arguments.   Assuming that

it is appropriate to apply plain error review to these claims, we

decline to exercise our discretion to notice and correct any error.

     “In reviewing for plain error, we must affirm unless an

appellant can show that (1) an error was made, (2) it was plain,

and (3) it affected the appellant’s substantial rights.”    United

States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005), cert. denied,

126 S. Ct. 1925 (2006).     “[T]he correction of plain error lies

within our discretion, which we do not exercise unless the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (internal quotation marks omitted). An

error is plain if it is obvious.      See Olano, 507 U.S. at 734

(explaining that for purposes of plain-error review, “‘[p]lain’ is


                                18
synonymous with ‘clear’ or, equivalently, ‘obvious’”).    From the

record before us, it is not obvious that any of the jurors pointed

to by Chapman on appeal were sufficiently similar to the jurors

struck by the government to give rise even to an inference of

pretext.

     The jurors who were accepted by the government but were

younger than Juror 23 all had what appear to be higher-skilled jobs

than Juror 23, while the accepted jurors with low-level or low-

skilled jobs were older than Juror 23.   The age, occupation, and

educational level of a potential juror are all permissible bases

for the exercise of a strike, see Howard, 131 F.3d at 408, and

there is nothing inherently pretextual about trading off one factor

for another--for example, accepting a younger but more educated

juror.     See United States v. Lane, 866 F.2d 103, 106 (4th Cir.

1989) (“In the selection of a jury panel, prosecutors and defense

counsel use their peremptory challenges depending on many valid

factors. For example, although one may be searching for jurors who

have a certain characteristic such as a college degree, a juror who

did not complete college may nevertheless be accepted because he

possesses other desirable characteristics.”).   Because the record

before us does not clearly show that the government seated white or

male jurors who were situated similarly to the black female jurors

that it struck, we cannot conclude that the district court erred,

let alone plainly erred, by denying Chapman’s Batson motion.


                                19
                                  III.

     Chapman   next   contends   that    the   district   court   erred    by

permitting lay witnesses called by the government to testify about

the existence of a fiduciary duty on the part of Chapman and to

give their opinion about whether Chapman breached that duty.              And

in a related argument, Chapman contends that the district court

erred by precluding his expert witnesses from testifying about

various aspects of the fiduciary-duty question.

                                   A.

     As noted above, the relationship between Bond and Chapman and

Bond’s use of DEM-MET money to buy into the eChapman IPOs provided

the factual basis for many of the charges against Chapman.         Some of

those charges required the jury to consider whether fiduciary

duties existed and whether Chapman breached those duties.                  At

trial, the government did not present expert testimony on the

definition, existence, or breach of fiduciary duty.                It did,

however, ask several of its lay witnesses questions about Chapman’s

fiduciary duties.

     On appeal, Chapman contends that the fiduciary-duty testimony

was in fact expert testimony.           Because the witnesses were not

identified as experts prior to trial and their opinions were not

subjected to the reliability requirements of Rule 702 of the

Federal Rules of Evidence, Chapman contends that the district court




                                   20
erred by permitting lay witnesses to give what is properly viewed

as expert testimony.3

     Under   Rule   702,   “a   witness   qualified   as   an   expert   by

knowledge, skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise,” so long as

“scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact

in issue.”   Fed. R. Evid. 702.      Rule 701, however, states that

     [i]f the witness is not testifying as an expert, the
     witness’ testimony in the form of opinions or inferences
     is limited to those opinions or inferences which are (a)
     rationally based on the perception of the witness, (b)
     helpful to a clear understanding of the witness’
     testimony or the determination of a fact in issue, and
     (c) not based on scientific, technical, or other
     specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701.    Subparagraph (c), which was added to Rule 701

in 2000, was intended “to eliminate the risk that the reliability

requirements set forth in Rule 702 will be evaded through the

simple expedient of proffering an expert in lay witness clothing.”

Fed. R. Evid. 701 Advisory Committee’s note to 2000 Amendments.




     3
      In his brief, Chapman suggests that expert testimony was
required to establish the nature and scope of the fiduciary duties
owed by the various parties involved in the transactions at issue.
Chapman does not, however, contend that the absence of expert
testimony renders the government’s evidence insufficient to support
his convictions. Under these circumstances, there is no reason for
us to consider the abstract question of whether expert testimony
was required in this case. We instead focus on the question of
whether the district court erred by permitting lay witnesses to
provide expert testimony.

                                   21
      “Rule 701 permits lay witnesses to offer an opinion on the

basis of relevant historical or narrative facts that the witness

has   perceived.”        Certain    Underwriters    at   Lloyd’s,   London    v.

Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000) (internal quotation

marks omitted).     The rule does not, however,

      permit a lay witness to express an opinion as to matters
      which are beyond the realm of common experience and which
      require the special skill and knowledge of an expert
      witness.   A critical distinction between Rule 701 and
      Rule 702 testimony is that an expert witness must possess
      some specialized knowledge or skill or education that is
      not in the possession of the jurors.

Id. (citation and internal quotation marks omitted). As we explain

below,    while   most   of   the   challenged     testimony   reflected     the

“particularized knowledge that the witness had by virtue of his

position,” United States v. Ayala-Pizarro, 407 F.3d 25, 28 (1st

Cir.) (internal quotation marks and alteration omitted), cert.

denied, 126 S. Ct. 247 (2005), that knowledge did not render the

witness’s fiduciary-duty testimony improper under Rule 701.                  See

id. (concluding that police officer’s testimony about how drug

points operate and how heroin typically is packaged was admissible

as lay witness testimony under Rule 701, because the testimony was

based on the officer’s observations and experience on prior drug

arrests).    To the extent that any of the testimony might be viewed

as improper expert testimony, its admission was harmless.

         The testimony about which Chapman complains is that of

various people who were involved in or affected by the Bond-


                                       22
eChapman transactions: an employee of Tremont Advisors, the outside

advisor to DEM-MET; two DEM-MET administrators; employees of two of

the entities with funds invested in DEM-MET, Alliant Energy and the

Maryland    Pension   System;   and   Alan   Bond   himself.     When    this

testimony is read in context, it is clear that the witnesses were

in the main talking about “historical or narrative facts” perceived

by those witnesses, which is a proper subject of lay testimony.

Sinkovich, 232 F.3d at 203.

     For example, Cathy Sweeney, who worked for the outside advisor

to DEM-MET, wrote Chapman a letter after Bond was indicted in which

she recommended that Bond be terminated as a DEM-MET subadvisor.

In that letter she told Chapman that

     it would be seen as seriously detrimental to both Chapman
     and the DEM-MET if it was widely known that Bond was a
     significant shareholder in Chapman Holdings.           If
     investigated, it could be viewed that friendship, perhaps
     due to this large investment, surpassed fiduciary
     responsibility. Therefore, to avoid possible criticisms,
     we feel that the best course of action is to terminate
     the relationship with Bond in DEM-MET.

J.A. 722.    The government questioned Sweeney about what she meant

when she referred to “fiduciary responsibility” in the letter. The

district    court   overruled   Chapman’s    objection   and   allowed   the

inquiry to proceed.        Sweeney explained that “[t]he fiduciary

responsibility is the responsibility that the manager [Chapman] and

the advisor [Bond] has to the pensioneers, to the participants in

the pension plans and their beneficiaries.”          J.A. 723.



                                      23
      Chapman does not contend (nor could he) that Sweeney’s letter

was inadmissible.     And once the letter was admitted, it was proper

for   Sweeney    to     explain    what     she   meant   by      “fiduciary

responsibility.”      She was not testifying as an expert, but was

instead simply testifying about historical or narrative facts. See

Sinkovich, 232 F.3d at 203. The district court therefore properly

rejected    Chapman’s    claim    that    Sweeney’s   testimony    was   not

admissible under Rule 701.

      Similarly, Maria Thompson, a DEM-MET administrator, testified

about her concerns when she learned that Bond had bought a large

portion of the shares in Chapman Holdings.         She testified that the

transaction “raise[d] a flag in my mind about ERISA of having one

of our subadvisors owning part of the company,” J.A. 765, which

“had the appearance of conflict of interest to me.”               J.A. 767.

Thompson was not explaining to the jury the technical scope of a

fiduciary’s responsibility under ERISA or any other statute; she

simply explained the reaction she had when she learned about Bond’s

purchase of the Chapman Holdings IPO.             Her testimony was thus

properly admitted lay testimony.

      Robert Rusch, an employee of Alliant Energy, which had funds

being managed by DEM-MET, testified that the contract between

Chapman Capital Management (which manages DEM-MET) and Alliant

provided that Chapman Capital Management was a fiduciary as defined

by ERISA.    When the government asked Rusch “what goes into the


                                     24
concept of being a fiduciary,” J.A. 954, Chapman objected.                The

district court permitted the government to question Rusch about his

understanding of the contract to which his company was a party.

Rusch explained that, as to the duties of a fiduciary as used in

the contract, “the most important part . . . is whatever actions

you take with respect to the assets of the trust, you have to make

sure that whatever you do is in the best interests of the plan

participants, and that is those people that are going to be

receiving   payments   eventually    out   of   these   monies     for   their

retirement.”   J.A. 956-57.     This testimony was likewise properly

admitted. Rusch was testifying about his personal understanding of

the obligations imposed by a contract to which his company was a

party, a typical and proper subject for lay witness testimony. See

Ayala-Pizarro, 407 F.3d at 28.

     A similar analysis applies to much of the other testimony

about which Chapman complains.        Lisa Foley, a DEM-MET subadvisor

who participated in the eChapman IPO after pressure from Chapman,

testified   briefly    about   her   understanding      of   the   fiduciary

responsibilities spelled out in the contract between her company

and Chapman.   Art Lynch, the Maryland Pension System’s director of

equities, testified about his understanding of the “prudent man

rule” set out in the Pension System’s investment operations manual

and testified that he believed Bond’s investment in eChapman

violated the fiduciary obligations set forth in the operations


                                     25
manual.     These witnesses simply testified about their personal

knowledge and perceptions of the historical facts surrounding the

relevant transactions.4     While the witnesses had particularized

knowledge that they learned through their jobs, that does not

convert their lay testimony into impermissible expert testimony.

See Bank of China v. NBM LLC, 359 F.3d 171, 181 (2d Cir. 2004)

(concluding that bank employee assigned to investigate scheme by

bank customers to defraud the bank could testify about the results

of   his   investigation:   “The   fact   that   Huang   has   specialized

knowledge, or that he carried out the investigation because of that

knowledge, does not preclude him from testifying pursuant to Rule

701, so long as the testimony was based on the investigation and

reflected his investigatory findings and conclusions, and was not

rooted exclusively in his expertise in international banking. Such

opinion testimony is admitted not because of experience, training

or specialized knowledge within the realm of an expert, but because


      4
      In his brief, Chapman contends that Alan Bond’s testimony
about his understanding of the requirements of the prudent man rule
amounted to impermissible expert testimony. At trial, counsel for
Chapman initially objected to Bond’s testimony, but he quickly
withdrew his objection, stating that “[w]e have no objection to him
rendering what he believes this means.”         J.A. 1078.     This
withdrawal of the objection amounts to a waiver of any complaint
about Bond’s testimony, precluding us from considering the issue
even under plain error review. See United States v. Rodriguez, 311
F.3d 435, 437 (1st Cir. 2002) (explaining that “[a] party who
identifies an issue, and then explicitly withdraws it, has waived
the issue,” and that a waived issue “cannot be resurrected on
appeal”); United States v. Masters, 118 F.3d 1524, 1526 (11th Cir.
1997) (per curiam) (declining to apply plain-error review where
defendant knowingly waived objection to upward departure).

                                   26
of the particularized knowledge that the witness has by virtue of

his position in the business.” (internal quotation marks and

alteration omitted)); accord Ayala-Pizarro, 407 F.3d at 28.

     The only challenged testimony that approaches the line between

lay and expert testimony was that of Jackie Ford, a DEM-MET

administrator.   Ford testified that she believed Bond’s investment

for DEM-MET in the Chapman IPO was “a direct conflict of interest,”

an opinion that was “based on the fiduciary responsibilities of an

investment manager.”       J.A. 846-47.       After the district court

overruled Chapman’s objection, Ford elaborated:

     [A]s an investment manager, it’s your responsibility to
     manage the portfolio for the benefit of the client, and
     to have one of your own instruments or company holdings
     into their portfolio seemed to me to be a direct conflict
     of interest.     It doesn’t seem as though you were
     conducting your business . . . for the benefit [of the
     client].

J.A. 851.    Chapman objected again, and the court sustained the

objection.

     Assuming    without    deciding    that     Ford’s     testimony   was

impermissible    expert    testimony,   the    error   in   admitting   her

statement was harmless.        See Bank of China, 359 F.3d at 183

(concluding that the improper admission of expert testimony through

a lay witness is subject to harmless error review); United States

v. Williams, 81 F.3d 1321, 1327 (4th Cir. 1996) (holding that error

in admission of evidence is harmless if the improper evidence did

not substantially influence the jury).         Given the other properly-


                                   27
admitted testimony generally describing the nature of a fiduciary’s

responsibilities, we cannot conclude that this limited exchange

with one witness substantially influenced the jury.

                                        B.

      Chapman    also     contends    that   the   district     court   erred    by

restricting the grounds upon which his expert witnesses could

testify.      The district court is vested with broad discretion when

determining whether to limit the testimony of an expert witness.

See United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994);

United   States v. Barsanti, 943 F.2d 428, 432 (4th Cir. 1991).

      The government presented evidence indicating that it was a

conflict of interest for Chapman to pressure the DEM-MET sub-

advisors to participate in the eChapman IPO: Chapman Capital

Management, which was controlled by Chapman, was DEM-MET’s manager

and primary investment advisor.          Because Chapman was the majority

shareholder in the companies that were combining to form eChapman

and   would    be   the    majority    shareholder     of   eChapman,    Chapman

personally benefitted from the purchases of eChapman stock that he

pressured the DEM-MET subadvisors to make.

      Chapman sought to have his expert testify that, under certain

circumstances,      transactions      between      affiliated    companies      are

permitted under the Investment Company Act of 1940, 15 U.S.C.A. §§

80a-1 to 80a-64 (West 1997 & Supp. 2006).                   Chapman wanted his

expert to testify about SEC Rule 10f-3, which permits a mutual


                                        28
fund, if certain conditions are satisfied, to purchase securities

in an IPO even though the broker-dealer selling the securities is

affiliated with the mutual fund advisor and the broker-dealer is a

member of the IPO underwriting syndicate. See 17 C.F.R. § 270.10f-

3 (2006).

      The district court refused to permit this line of questioning,

in part because the Investment Company Act of 1940 does not govern

the   relationship   between   Chapman   Capital   and   DEM-MET;   that

relationship is instead governed by The Investment Advisors Act of

1940, 15 U.S.C.A. §§ 80b-1 to 80b-21 (West 1997 & Supp. 2006).

Moreover, the district court noted that Rule 10f-3 permits the

affiliated transactions only if certain conditions are met, such as

the percentage of the IPO offering that will be bought by the

mutual fund.   Even if the rule were applicable to this case, those

conditions would not have been satisfied.     See J.A. 1664.    Because

neither the statute nor the rule about which the expert would have

testified applied to the transactions at issue in this case, the

proffered testimony would have served only to confuse the jury. We

therefore conclude that the district court did not abuse its

discretion by prohibiting this line of inquiry.5


      5
      Chapman also contends that the district court erred by
refusing to permit Earl Bravo to testify about the Board of
Director’s knowledge of Rule 10f-3, in order to demonstrate to the
jury that not all affiliated transactions are impermissible. Even
assuming that Bravo’s testimony could be considered relevant, the
district court, for the reasons explained above, was well within
its discretion to exclude the testimony. See Fed. R. Evid. 403

                                  29
     Chapman also sought to present expert testimony describing the

fiduciary duties of an investment manager under the contracts

between Chapman Capital Management (as manager of DEM-MET) and the

Maryland Pension System.           To the extent that Chapman’s experts

would testify about whether a fiduciary duty existed, the district

court noted that the legal definition of fiduciary duty would be

presented   to   the    jury    through     its   instructions      and   that   the

testimony Chapman sought to present would therefore amount to an

improper legal opinion.         The court explained that it would permit

Chapman, as it had the government, to present lay testimony from

representatives    of    Chapman       Capital    Management   to    testify,      as

representatives    of    a     party   to   the   contract,    about      what   they

believed their responsibilities under the contract to be. However,

the court concluded that it would intrude upon the province of the

jury to allow Chapman to present what would amount to an expert

opinion that Chapman did not violate the law.              See J.A. 1599.

     Rule 702 permits expert testimony where it is helpful to the

trier of fact.    See Fed. R. Evid. 702.            While expert testimony is

not inadmissible simply because it touches on an ultimate issue,

such testimony is “excludable under Rule 702 if it does not aid the

jury.”   United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002).

“Expert testimony that merely states a legal conclusion is less


(noting that relevant evidence may be excluded if the “probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury”).

                                         30
likely to assist the jury in its determination.”                  Id.; see also

United   States    v.   Duncan,   42    F.3d        97,   101   (2d    Cir.   1994)

(“Generally, the use of expert testimony is not permitted if it

will usurp either the role of the trial judge in instructing the

jury as to the applicable law or the role of the jury in applying

that law to the facts before it.        When an expert undertakes to tell

the jury what result to reach, this does not aid the jury in making

a decision, but rather attempts to substitute the expert’s judgment

for the jury’s.” (citations and internal quotation marks omitted)).

     As the district court noted, the contract outlined the nature

of Chapman’s fiduciary duties and having an expert testify as to

whether Chapman violated those duties would not be particularly

helpful to the jury.        See Barile, 286 F.3d at 760.                 Having an

expert testify more generally about the existence and scope of a

fiduciary   duty    under    various         (and    sometimes        inapplicable)

securities laws could confuse the jury and usurp the district

court’s obligation to explain the governing law to the jury.

Therefore, given the deference that we must accord a district

court’s determination of whether expert testimony will be helpful

to the jury, we simply cannot conclude that the district court

erred by excluding Chapman’s proffered expert testimony.


                                       IV.

     The government’s theory of the case was that Chapman needed to

generate money because he was living well above his means, and the

                                       31
government offered as evidence in this regard his improper use of

the business development funds.       The government bolstered its case

on this issue by presenting evidence of the significant loans that

Chapman took from his companies and but never repaid.               Some of the

loans were used to resolve personal charges that Chapman put on his

company credit card.       The companies paid the entire credit card

bills, and charges that the bookkeeper identified as personal (such

as a charge to Victoria’s Secret) were treated as a receivable and

placed in a “due from officer” account.            Chapman never paid these

charges, and at the end of the year Chapman executed promissory

notes in the amount of the balance of the “due from officer”

account.     These loans (totaling approximately $250,000) were never

approved by the Board of Directors in advance, although they

typically were ratified by the Board months later.

      Chapman    also   borrowed   large     amounts   of    money   from    the

companies for purposes unrelated to the credit card charges.                 For

example, he borrowed $100,000 to make a donation to a church;

$45,000 to buy a Corvette for himself, and approximately $240,000

to put a down payment on his house.                While Chapman executed

promissory notes for these loans, the loans were not approved in

advance by the Board, but were instead ratified after the fact.

Chapman never made any principal or interest payments on any of the

loans.   Eventually, the Board rolled all of the unpaid notes into

a   single   promissory   note,    payable    on   demand,    for    more   than


                                     32
$1,000,000.   As of the time of trial, the Board had yet to demand

payment of the note.

      On appeal, Chapman contends that the district court erred by

admitting evidence of the loans under Rule 404(b) of the Federal

Rules of Evidence. Under Rule 404(b), evidence of uncharged crimes

or other acts “is not admissible to prove the character of a person

in order to show action in conformity therewith.          It may, however,

be   admissible   for   other   purposes,    such   as   proof    of   motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”            Fed. R. Evid. 404(b).         Rule

404(b) is “a rule of inclusion, not exclusion.”           United States v.

Smith, 441 F.3d 254, 262 (4th Cir.), cert. denied, 75 U.S.L.W. 3174

(U.S. Oct. 2, 2006).     To be admissible under Rule 404(b), evidence

must be “(1) relevant to an issue other than character; (2)

necessary; and (3) reliable.”       United States v. Wells, 163 F.3d

889, 895 (4th Cir. 1998) (internal quotation marks omitted).                We

have no difficulty concluding that the evidence of the loans was

properly admitted under Rule 404(b).

      First, the evidence was clearly relevant to the question of

motive. The government contended at trial that Chapman’s motive in

converting the business development checks to his own use was his

taste for things that he otherwise could not afford.             That Chapman

also “borrowed” but yet never repaid more than $1,000,000 from his

companies is further evidence of his inability to live within his


                                    33
means and thus of his motive to convert company funds to his own

use.    See United States v. Aramony, 88 F.3d 1369, 1377 (4th Cir.

1996) (“To be relevant, evidence need only to have any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would    be    without    the    evidence.”   (internal     quotation   marks

omitted)).

       The    evidence   was    necessary   because   it   was   probative   of

Chapman’s motive.        See United States v. Queen, 132 F.3d 991, 997

(4th Cir. 1997) (explaining that to be admissible under Rule

404(b), the challenged evidence “must be necessary in the sense

that it is probative of an essential claim or an element of the

offense”).      Moreover, the evidence also furnishes context for the

crimes with which Chapman was charged.          See Smith, 441 F.3d at 262

(“Evidence is necessary, even if it does not relate to an element

of a charged offense, when it furnishes part of the context of the

crime.” (internal quotation marks omitted)).                The government’s

evidence showed that Chapman viewed company funds as his own.                He

used business development funds to help support two mistresses; he

charged numerous personal expenses on company credit cards and

never reimbursed the company for those charges; and he borrowed but

never repaid significant amounts of money.             The evidence of the

unpaid loans thus helped establish Chapman’s approach to the




                                       34
management of his companies and helped place the crimes with which

he was charged in context.

     The evidence of the loans was also reliable.    The promissory

notes executed by Chapman were identified by company witnesses, and

Chapman does not dispute their validity or amount. The evidence of

the loans was thus sufficiently reliable to be admitted under Rule

404(b).    See Aramony, 88 F.3d at 1378 (explaining that evidence is

reliable for purposes of Rule 404(b) “unless it is so preposterous

that it could not be believed by a rational and properly instructed

juror”).    Accordingly, we conclude that the government’s evidence

of the never-repaid loans satisfied the requirements of Rule

404(b).

     Evidence sought to be admitted under Rule 404(b), however,

must also satisfy the requirements of Rule 403:       the probative

value of the evidence must not be substantially outweighed by its

prejudicial effect.   See Fed. R. Evid. 403; Queen, 132 F.3d at 997.

The loan evidence was prejudicial in the sense that it was damaging

to Chapman’s case.     That is not the kind of prejudice, however,

that warrants exclusion under Rule 403.       See United States v.

Hammoud, 381 F.3d 316, 341 (4th Cir. 2004) (en banc) (“The mere

fact that the evidence will damage the defendant’s case is not

enough--the evidence must be unfairly prejudicial, and the unfair

prejudice must substantially outweigh the probative value of the

evidence.” (internal quotation marks omitted)), vacated on other


                                  35
grounds,    543    U.S.   1097   (2005).    Instead,    evidence   should    be

excluded under Rule 403 if “there is a genuine risk that the

emotions of a jury will be excited to irrational behavior, and ...

this risk is disproportionate to the probative value of the offered

evidence.”        Aramony, 88 F.3d at 1378 (internal quotation marks

omitted).

     The evidence presented at trial made it clear that the loans

had been approved by the Board of Directors (albeit after the

fact), such that there was nothing improper about the loans in and

of themselves.        During its opening and closing statements, the

government informed the jury that Chapman was not charged with any

crimes in connection with the loans, and the government explained

the limited purpose for which the jury should consider the loan

evidence.     When closing argument by the government seemed to

suggest that the jury could consider the loans as evidence that

Chapman had breached his fiduciary duty, the district court gave a

curative instruction, reminding the jury that Chapman was not

charged with any crime in connection with the loans and informing

the jury of the limited purposes for which the evidence was

admitted.     See J.A. 2077.       Under these circumstances, we do not

believe    that     the   admission   of   the   loan   evidence   created   a

disproportionate risk of irrational behavior on the part of the

jury.      Accordingly, we find no error in the district court’s

decision to admit the evidence of the loans.            See Aramony, 88 F.3d


                                      36
at 1378 (“Because the evidence sought to be excluded under Rule 403

is concededly probative, the balance under Rule 403 should be

struck in favor of admissibility, and evidence should be excluded

only sparingly.”); United States v. Simpson, 910 F.2d 154, 157 (4th

Cir. 1990) (explaining that a district court’s decision to admit

evidence over a Rule 403 objection will not be overturned “except

under   the   most   extraordinary        of   circumstances,    where   that

discretion has been plainly abused”             (internal quotation marks

omitted)).


                                     V.

     Chapman contends that the district court’s instructions to the

jury on the mail fraud charges were improper.                   According to

Chapman, the court’s instructions improperly suggested that breach

of fiduciary duty can constitute a per se violation of the mail

fraud statute, because the court failed to explain to the jury that

the government must prove a specific intent to defraud.                  This

argument is utterly without merit.

     The part of the instruction about which Chapman complains

provides that:

     [A] breach of a fiduciary duty effected in part by the
     use of the wires or mails may be a violation of the
     federal wire and mail fraud statutes, at least when the
     scheme is characterized also by the use of false
     representations or by concealment of, or failure to
     disclose, relevant and material facts.




                                     37
J.A. 2033.    Chapman contends this instruction was “prejudicially

incomplete” because it did not mention the requisite state of mind.

According to Chapman, “a reasonable juror reading this instruction

could conclude that a violation of the mail and wire fraud statutes

may arise from a breach of fiduciary alone, without any intent to

defraud.”    Brief of Appellant at 53.

     As the government points out, however, the very next paragraph

of the court’s instructions lists all of the elements of the

charge, see J.A. 2034, and on the next page of the instructions the

court explains that the government must prove that Chapman had the

specific intent to defraud. See J.A. 2035. Chapman’s challenge to

the jury instructions therefore fails.      See United States v.

Rahman, 83 F.3d 89, 92 (4th Cir. 1996) (“[I]n reviewing the

propriety of jury instructions, we do not view a single instruction

in isolation; rather we consider whether taken as a whole and in

the context of the entire charge, the instructions accurately and

fairly state the controlling law.”).


                                 VI.

     In his final challenge to his convictions, Chapman contends

that various actions by the government before and during trial

amount to prosecutorial misconduct that requires dismissal of the

indictment.




                                 38
                                          A.

      The pre-trial conduct about which Chapman complains involves

the   conduct    of    United   States     Attorney   Thomas      DiBiagio      when

obtaining     the     indictment    and    the   conduct    of    the    FBI    when

investigating the case.            Chapman, who was active in Democratic

Party politics, contends that he was the victim of a partisan

political witch hunt by DiBiagio, a Republican appointee.6 Chapman

also complains that DiBiagio obtained the indictment by presenting

his own “testimony” to the grand jury in the form of leading

questions.

      As to the conduct of the FBI, Chapman claims that an FBI agent

aggressively questioned a Democratic political strategist about

Chapman and Chapman’s relationship with former Maryland Governor

Paris     Glendening.      Chapman    contends    that     the   agent   told    the

strategist that Chapman “was going down,” and the agent asked the

strategist to become an informant and told him that he could be

paid for information provided.             When the strategist declined the

offer, the agent then offered to provide him with unfavorable

information about Republican candidates.



      6
      In the summer of 2004 (around the time of Chapman’s trial),
newspapers reported that DiBiagio had been pushing his staff to
make three “front page” white collar, public corruption cases by
early November, just days after the 2004 general election. J.A.
2091. DiBiagio was formally rebuked by the Attorney General and
was ordered not to seek further public corruption indictments
without approval from the Deputy Attorney General.       DiBiagio
resigned in December 2004.

                                          39
     “[A]s a general matter, a district court may not dismiss an

indictment for errors in grand jury proceedings unless such errors

prejudiced the defendants.”   Bank of Nova Scotia v. United States,

487 U.S. 250, 254 (1988).   Once a defendant is convicted by a jury

after trial, “any error in the grand jury proceeding connected with

the charging decision [is deemed] harmless beyond a reasonable

doubt.”   United States v. Mechanik, 475 U.S. 66, 70 (1986).

     Because Chapman was convicted by the petit jury, Mechanik

would seem to foreclose his claim that the indictment must be

dismissed because of misconduct before the grand jury.    In other

cases where such a claim is made after a guilty verdict, however,

we have gone on to consider whether the prosecutorial misconduct

“substantially influenced the grand jury’s decision to indict, or

if there is grave doubt that the decision to indict was free from

the substantial influence of such violations.”    United States v.

McDonald, 61 F.3d 248, 253 (4th Cir. 1995) (internal quotation

marks omitted), overruled on other grounds by United States v.

Wilson, 205 F.3d 720 (4th Cir. 2000) (en banc).       In our view,

Chapman’s claims fall far short of satisfying these standards.

     The decision to seek an indictment is one that is entrusted to

the sound discretion of the prosecutor, and a “presumption of

regularity supports their prosecutorial decisions.”   United States

v. Armstrong, 517 U.S. 456, 464 (1996) (internal quotation marks

omitted).   That presumption may be overcome, however, by “clear


                                 40
evidence”    that    the    prosecutor’s    decision    was    driven    by   a

constitutionally impermissible motive such as “race, religion, or

other arbitrary classification.”          Id.   The evidence that DiBiagio

was actively seeking out public corruption cases does not amount to

sufficiently clear evidence that DiBiagio’s decision to seek the

indictment was the product of a constitutionally impermissible

motive.

       As to Chapman’s contention that DiBiagio engaged in misconduct

before the grand jury, Chapman does not dispute the government’s

contention that DiBiagio did not appear before the grand jury that

returned the superseding indictments in this case, nor is there any

indication that the grand jury that returned the superceding

indictment was ever presented with transcripts of any grand jury

examinations by DiBiagio.        Under these circumstances, we cannot

conclude that Chapman was prejudiced by any misconduct by DiBiagio

in the handling of the initial grand jury proceeding.                See United

States v. Feurtado, 191 F.3d 420, 425 (4th Cir. 1999) (concluding

that district court properly denied motion to quash indictment

where misleading grand jury testimony was not presented to the

grand jury that handed down a superseding indictment).

       As to the conduct of the FBI, we will assume for purposes of

this opinion that the FBI’s alleged heavy-handed tactics occurred

when   questioning    the   political     strategist   and    were   improper.

Chapman, however, has not even attempted to demonstrate how that


                                     41
conduct influenced the grand jury’s decision to indict.    Chapman

does not contend that the witness testified before the grand jury

or that his statements were otherwise presented to the grand jury.

Because Chapman has not established that the FBI misconduct had any

bearing on the grand jury’s decision to indict, the mere existence

of that misconduct does not warrant dismissal of the indictment.7

See United States v. Lee, 906 F.2d 117, 120 (4th Cir. 1990) (per

curiam) (“[A]s the Supreme Court has explained, absent demonstrable



     7
      When setting out of the facts of this case in his brief,
Chapman notes that DiBiagio himself ran roughshod over witnesses,
offering some witnesses preferential treatment by not prosecuting
them if they cooperated with him, but prosecuting a witness who
reluctantly testified for the government, and by promising one
witness (a state employee) that her job would be protected as long
as she cooperated with him. However, in the argument section of
Chapman’s brief where Chapman contends that the indictment should
be quashed on grounds of prosecutorial misconduct, Chapman makes no
mention of DiBiagio’s treatment of these witnesses.         Because
Chapman makes no argument as to why the treatment of these
witnesses might warrant dismissal of the indictment, we decline to
consider that issue sua sponte. See Fed. R. App. P. 28(a)(9)(A)
(requiring argument section of brief to contain “appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies”); cf. United States v. Williams, 461 F.3d 441, 448 n.3 (4th
Cir. 2006) (“Although Williams references the Self-Incrimination
Clause at various places in his brief, he neither argues nor cites
any authority for the proposition that the district court's ruling
conditioning the admissibility of the demonstration on his
willingness to take the stand ‘compelled [him] to be a witness
against himself’ in violation of the Self-Incrimination Clause. We
therefore do not consider the argument.”); United States v.
Hammoud, 381 F.3d 316, 334 n.7 (4th Cir. 2004) (en banc) (“Hammoud
suggests that the FBI should have abandoned the surveillance when
it became clear that no foreign intelligence information would be
obtained. Hammoud provides no argument supporting this claim,
however, and we therefore do not consider it.”), vacated on other
grounds, 543 U.S. 1097 (2005).

                                42
prejudice,    or    substantial    threat    thereof,    dismissal   of    the

indictment is plainly inappropriate, even though the violation may

have been deliberate.” (internal quotation marks omitted)).

                                     B.

     Chapman also contends that various actions of the government

at trial amount to misconduct severe enough, when considered

cumulatively,       to   require     dismissal     of     the     indictment.

Specifically, Chapman contends that dismissal of the indictment is

warranted because (1) the government wrongfully withheld evidence

that should have been turned over to Chapman under Brady v.

Maryland, 373 U.S. 83 (1963); (2) the government systematically

excluded black women from the jury; (3) the government referred to

Earl Bravo, a defense witness and former president of Chapman

Capital Management and Chapman board member, as a “co-schemer”; (4)

the government improperly presented evidence of the loans to

Chapman from his companies; and (5) the government improperly

vouched for its witnesses and made other improper statements during

closing argument.

     “In reviewing a claim of prosecutorial misconduct, we review

the claim to determine whether the conduct so infected the trial

with unfairness as to make the resulting conviction a denial of due

process.”    United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.

2002)   (internal    quotation     marks    omitted).     Generally,   cases

involving    prosecutorial   misconduct      occurring   during    trial   are


                                     43
remedied by the granting of a new trial, but that relief is

warranted only in “the most egregious cases.”         United States v.

Dudley, 941 F.2d 260, 264 (4th Cir. 1991).      Chapman cites no case

where the significantly more drastic remedy of dismissing the

indictment was found to be a proper remedy for prosecutorial

misconduct occurring during trial.      See United States v. Derrick,

163 F.3d 799, 807 (4th Cir. 1998) (“The dismissal of an indictment

altogether clearly thwarts the public’s interest in the enforcement

of its criminal laws in an even more profound and lasting way than

the requirement of a retrial.”). Assuming that such a remedy would

ever be appropriate, it seems clear that the conduct warranting a

dismissal of the indictment would need to be substantially more

egregious than conduct that would warrant the granting of a new

trial.    We   have   no   difficulty   concluding   that   the   alleged

misconduct at issue here was not sufficiently egregious to warrant

dismissal of the indictment.

     We have already concluded that the evidence of the loans was

properly admitted and that Chapman failed to establish any error in

the selection of the jury.     Because there was no error associated

with those claims, we will not consider them further.

     The Brady material that Chapman contends was withheld by the

government were the exhibits used in Alan Bond’s “cherry-picking”

trial.   Although Chapman did not receive the exhibits before the

trial started, he did receive them more than a month before Bond


                                   44
testified.      To the extent that the government should have provided

the material earlier, Chapman still had sufficient time to examine

the documents, and Chapman therefore was not prejudiced by the

delay.

       As to Earl Bravo, the government on one occasion described

Bravo,    one    of    Chapman’s      principal    deputies         at   the   Chapman

companies, as a “co-schemer” on the various fraud charges when

seeking to admit a statement made by Bravo.                    See Fed. R. Evid.

801(d)(2)(E)      (defining      as    not     hearsay    “a    statement        by     a

coconspirator of a party during the course and in furtherance of

the conspiracy”). The district court sustained Chapman’s objection

to the line of questioning, struck the reference to “co-schemer,”

and gave the jury a curative instruction the next day.                          Chapman

thus was not prejudiced by the single reference to Bravo as a co-

schemer.

       Finally, we consider Chapman’s contention that the government

made   improper       and   prejudicial      statements   during         its   rebuttal

closing    argument.         Because    Chapman    failed      to    object     to    the

statements when they were made, our review is for plain error only.

       The government’s statement that it had been an “incredible

privilege” to meet some of the witnesses did not amount to the

government vouching for those witnesses.             See, e.g., United States

v. Collins, 415 F.3d 304, 307 (4th Cir. 2005) (explaining that a

prosecutor improperly vouches for a witness if the prosecutor


                                          45
indicates his personal belief in the witness or indicates to the

jury that he can guarantee the truthfulness of a witness).             And the

government statement that the arguments of Chapman’s attorney “pain

me personally” was nothing more than an innocuous response to

various statements made in Chapman’s closing.8             Accordingly, these

statements were not improper.

       The prosecutor’s statements about his duty to seek justice and

to “make sure that the burden of punishment never falls on people

when it is not appropriate,” J.A. 1974, are the only comments that

are even arguably improper. See, e.g., United States v. Higgs, 353

F.3d       281,   332   (4th   Cir.   2003)   (“As   a   general   premise,   a

prosecutor’s repeated references to his or her personal opinion

about a defendant may indeed be found improper.”).                 Even if we

assume, however, that this argument was improper, we find no

prejudice.        The argument was but a small part of the government’s

lengthy closing and rebuttal arguments, and was, at most, just over

the edge of propriety.          It is thus “unlikely that [the argument]

had any measurable tendency to mislead the jury, nor does it appear

that the prosecutor had any intention to divert the attention of

the jury.”        Smith, 441 F.3d at 265.     Under these circumstances, we

cannot conclude that the argument was so plainly prejudicial as to

require us to notice and correct the error on plain error review.


       8
      For example, counsel for Chapman argued that the government
was “being dishonest” with the jury, J.A. 1933, and that the
government had “ruined a lot of lives.” J.A. 1947.

                                        46
     Accordingly, we conclude that none of the specific instances

of “misconduct” identified by Chapman amount to reversible error.

Errors that do not warrant reversal individually, however, can

warrant reversal when the cumulative effect of the errors is

considered.    See United States v. Martinez, 277 F.3d 517, 532 (4th

Cir. 2002) (“Under the ‘cumulative error doctrine,’ Martinez can

satisfy the requirements of the third prong of Olano if the

combined effect of the two Rule 11 errors affected his substantial

rights,    even   if   individually    neither   error   is   sufficiently

prejudicial.”).    But because we have identified, at most, only one

error, the cumulative error doctrine has no application to this

case.     Chapman’s motion to dismiss the indictment on grounds of

prosecutorial misconduct was thus properly denied.


                                  VII.

     Chapman contends that his sentence was imposed in violation of

the principles set forth in United States v. Booker, 543 U.S. 220

(2005).    We agree.

                                      A.

     Chapman was tried after the Supreme Court issued its decision

in Blakely v. Washington, 542 U.S. 296 (2004), but before the

issuance of our opinion in United States v. Hammoud, 381 F.3d 316

(4th Cir. 2004) (en banc), and the Supreme Court’s opinion in

Booker.    Anticipating that Blakely might lead to the invalidation

of the Sentencing Guidelines, the district court submitted certain

                                      47
sentencing     interrogatories     to     the    jury.        Answering   the

interrogatories, the jury concluded that the amount of loss caused

by the eChapman IPO charges was $5,000,856.00,9 and that Chapman

abused a position of trust with regard to the eChapman fraud

scheme.

     At sentencing (which took place after Hammoud but still before

Booker), the district court used the loss amount determined by the

jury to add an 18-level enhancement to the base offense level

established by the Guidelines.      The court also applied a two-level

enhancement based on the jury’s determination that Chapman abused

a position of trust.        The district court then applied other

enhancements    as   recommended   in    the    presentence    investigation

report--an enhancement for role in the offense and obstruction of

justice--to arrive at a total offense level of 32 and a Guideline

sentencing range of 121-151 months.              The district court then

departed     downward   three   levels,    which    yielded     a   Guideline

sentencing range of 87-108 months.         The district court sentenced

Chapman to 90 months.

                                    B.

     There are two types of Booker sentencing errors -- Sixth

Amendment errors and statutory errors.            A Sixth Amendment error

“occurs if a sentencing court enhances a sentence beyond the


     9
      The jury was unable to reach a unanimous decision on the
amount of loss caused by charges involving the business development
funds.

                                    48
maximum authorized by facts found by a jury beyond a reasonable

doubt or admitted by the defendant.”            United States v. Williams,

445 F.3d 724, 741 (4th Cir.) (internal quotation marks omitted),

cert. denied, 75 U.S.L.W. 3174 (U.S. Oct. 2, 2006).                  A statutory

error “occurs if the sentencing court treats the Guidelines as

mandatory, rather than as advisory.” Id. (internal quotation marks

omitted).     We agree with Chapman that a Sixth Amendment error

occurred in this case.

        The Guidelines establish a base offense level of six for

Chapman’s convictions. See U.S.S.G. § 2B1.1(a)(2). Adding to that

the 18-level loss amount enhancement and the two-level abuse of

position of trust enhancement authorized by the jury’s answers to

the special interrogatories, the highest offense level supported by

the jury’s findings is 26.           With Chapman’s category I criminal

history, the maximum sentence authorized by the jury’s findings was

63-78    months.    Because    the   90-month    sentence     imposed    by   the

district    court   exceeded     that      range,     the   district     court’s

application of the role in the offense and obstruction of justice

enhancements violated Chapman’s Sixth Amendment rights.

     The    government,   however,         contends    that    the     two-level

obstruction of justice enhancement was properly applied.                The jury

convicted Chapman on a charge of lying to the SEC in a letter, and

lying to the SEC in the letter was one of the grounds for the

obstruction enhancement.       The government therefore argues that the


                                      49
obstruction     enhancement     was       based    on     facts    alleged       in    the

indictment    and    found   beyond      a     reasonable    doubt     by    the      jury.

Because the 90-month sentence imposed is within the Guidelines

sentencing range for an offense level of 28, the government argues

that no Sixth Amendment violation occurred.

      While this argument has superficial appeal, it is foreclosed

by our decision in United States v. Hughes, 401 F.3d 540 (4th Cir.

2005). In Hughes, the defendant was convicted of several counts of

bankruptcy fraud based on statements he made in various schedules

he filed with the bankruptcy court and two counts of perjury based

on   false   testimony     given       while    under   oath      during     bankruptcy

proceedings.         At   sentencing      the     district     court    grouped        the

convictions    and    imposed   a       sentence    for     the    bankruptcy         fraud

charges; no independent sentence was imposed for the perjury

charges.     To account for the perjury convictions, however, the

district     court    imposed      a    two-level       obstruction         of   justice

enhancement, based on the false testimony before the bankruptcy

court.     See id. at 558.         The district court at sentencing also

applied several other fact-based enhancements to the defendant’s

sentence.     See id. at 544.

      When considering the Booker issue on appeal, the Hughes court

found Sixth Amendment error because the defendant’s sentence was

increased beyond what he would have received based only on the

facts as found by the jury.            The Hughes court stated that, with one


                                          50
exception     (an   enhancement    for      an    offense       occurring   during

bankruptcy proceedings), all of the enhancements to the sentence

“were based upon facts found by the district court, not by the

jury.”     See id. at 544 & n.3.

     Just as lying to the SEC is conduct that would support an

obstruction    of   justice   enhancement         under   the    Guidelines,     the

perjury for which the defendant in Hughes was convicted would

likewise    support   an   obstruction       of    justice    enhancement.        By

concluding that all of the enhancements (save one not relevant to

this analysis) that were applied in Hughes were based on facts not

found by the jury, the Hughes court implicitly rejected the very

argument made by the government in this case.                Accordingly, we are

constrained by Hughes to reject the Government’s argument that the

obstruction of justice enhancement was proper under Booker.                       We

therefore vacate Chapman’s sentence and remand for re-sentencing.


                                   VIII.

     The district court ordered Chapman to pay $5,000,856.00 in

restitution, the loss amount found by the jury, to two DEM-MET

clients--Alliant Energy and the Maryland Pension System.                    Chapman

raises   several    challenges    to   the       restitution     ordered    by   the

district court. Because these issues are raised for the first time

on appeal, we review them for plain error only.

     Chapman first contends that it was error for the district

court to adopt the loss amount found by the jury.                Chapman contends

                                       51
that it was error to submit the loss amount question to the jury,

and that the error was compounded when the district court adopted

the loss    amount found by the jury.

       Even assuming that it was error, during the uncertain time

between Blakely and Booker, to submit the loss-amount question to

the jury, Chapman fails to explain how he was prejudiced by the

issue being decided by the jury rather than the district court.

Moreover, although the district court ordered restitution in the

same amount as found by the jury, the court gave no indication that

it considered itself bound by the jury’s finding.                   Thus, if the

district    court   had   perceived     a    problem   with   the   loss   amount

determined by the jury, we have no reason to believe that the court

would not have made its own determination of the loss amount.                   And

because the amount of restitution ordered by the court is within

the range supported by the evidence presented at trial (and was in

fact    substantially     less   than   the    loss    amount   sought     by   the

government), we fail to see how Chapman was prejudiced by the

manner in which the court arrived at the amount of the restitution

award.10




       10
      Chapman also asserts in a single sentence that the district
court failed to observe the procedures for determining the amount
of restitution set forth in 18 U.S.C.A. §§ 3663A & 3664. Because
Chapman makes no argument on this point and does not even mention
the procedures that he believes the district court failed to
follow, we decline to consider the issue.    See Fed. R. App. P.
28(a)(9)(A); Williams, 461 F.3d at 448 n.3.

                                        52
     Chapman also contends that the district court should have

determined whether the victims have already been compensated for

their losses through the restitution that has been paid by Alan

Bond in connection with the cherry-picking charges.           This argument

is without merit.     Bond was involved in two crimes that happened to

cause losses to DEM-MET’s clients--the cherry-picking scheme and

the eChapman IPO scheme.      The crimes, however, were unrelated, and

they inflicted distinct and unrelated sets of losses on the DEM-MET

clients.     There is no reason why Chapman’s restitution obligation

should be offset by restitution paid by another criminal for an

unrelated crime that happened to inflict unrelated financial losses

on the victims of Chapman’s crimes.

     Under    these    circumstances,     we   decline   to   exercise   our

discretion to notice any errors that might have been associated

with the district court’s restitution order.



                                    IX.

     Accordingly, for the foregoing reasons, we affirm Chapman’s

convictions    and    the   restitution   order.     However,    we   vacate

Chapman’s sentence and remand for re-sentencing.



                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




                                    53
