                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-5170


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

LARRY A. HILL,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Margaret B. Seymour, District
Judge. (3:08-cr-00734-MBS-1)


Submitted:   July 21, 2011                  Decided:    August 11, 2011


Before KING and     DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. William N. Nettles,
United States Attorney, Jeffrey Mikell Johnson, Robert F. Daley,
Jr., Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      A   jury     convicted      Larry       Hill    of       one    count      of    perjury

pursuant to 18 U.S.C. § 1623 (“Count 1”), and one count of

obstruction of justice pursuant to 18 U.S.C. §§ 1503(a) and (b)

(“Count    2”).     Hill    was   sentenced          to    a    total       of   63    months’

imprisonment. Hill’s counsel filed an appeal raising six issues:

(1)   Whether      Hill’s   grand      jury       testimony      was       constitutionally

obtained; (2) Whether the district judge committed plain error

in failing to recuse herself from Hill’s trial; (3) Whether the

district court abused its discretion in admitting evidence of

Hill’s past involvement with the Capital Consortium Group; (4)

Whether      the     evidence      was     sufficient            to        support       Hill’s

convictions; (5) Whether the indictment and jury instructions

were impermissibly vague; and (6) Whether the government used

Hill’s invocation of the Fifth Amendment as evidence against him

at trial. We reject all of Hill’s contentions and affirm.

      Hill    first    argues      that       the    district         court      abused    its

discretion in permitting him to be prosecuted on the basis of

testimony he gave after he attempted to invoke his right to

silence.     However,“[i]t        is    well      established             that   a    defendant

cannot immunize acts of perjury through suppression of false

statements      that   were     taken     in      violation          of    the   defendant’s

constitutional rights.” United States v. Kennedy, 372 F.3d 686,

693 (4th Cir. 2004). Nor does Hill succeed on his claim that his

                                              2
case falls into the narrow category of cases where a perjury

conviction should be overturned because “the false statements

were induced by prosecutorial misconduct so unfair as to amount

to   a    denial      of   due    process,”      id.    at   695-96,    as   the    only

misconduct that he claims is the prosecutor’s failure to grant

him immunity or to seek a citation for contempt before indicting

him for perjury.

         In   considering        claims   that   a     defendant’s     testimony    was

compelled in violation of the constitution, we must determine

whether he was properly instructed before giving such testimony.

See United States v. Bollin, 264 F.3d 391, 414 (4th Cir. 2001)

(finding       that    proper      warnings      regarding     a   witness’s       Fifth

Amendment rights “eliminate[] any possible compulsion to self-

incrimination”). A witness is not permitted to invoke his right

to silence in response to any question he does not want to

answer. See Hoffman v. United States, 341 U.S. 479, 486 (1951)

(“The witness is not exonerated from answering merely because he

declares that in so doing he would incriminate himself . . .                          .

It is for the court to say whether his silence is justified and

to require him to answer if ‘it clearly appears to the court

that he is mistaken.”) (internal citations omitted). Here, the

record reflects that Hill was correctly instructed on his rights

and ordered to answer only questions where he possessed no Fifth

Amendment privilege.

                                            3
     Hill next argues that the district judge erred in failing

to recuse herself from his criminal proceedings because she had

presided      over   an    earlier     civil          trial    involving         fraudulent

conduct relevant to this case. As Hill did not raise this claim

before the district court, we review for plain error. See United

States   v.    Rooks,     596   F.3d   204,       210     (4th      Cir.   2010).    While

recusal is appropriate any time the judge’s impartiality might

reasonably be questioned, see United States v. Mitchell, 886

F.2d 667, 671 (4th Cir. 1989), “judicial rulings alone almost

never constitute a valid basis for a bias or partiality motion,”

see United States v. Lentz, 524 F.3d 501, 530 (4th Cir. 2008))

(citing Liteky v. United States, 510 U.S. 540, 555 (1994)). See

also Shaw v. Martin, 733 F.2d 304, 308 (4th Cir. 1984) (finding

that a judge does not abuse his discretion by denying a recusal

motion if the complaint is merely based upon the judge's rulings

in the instant case or related cases or attitude derived from

his experience on the bench). Consequently, Hill provides us

with no reason to find that the district judge’s failure to

recuse constituted error, plain or otherwise.

     Hill next argues that the district court violated Federal

Rules of Evidence 401, 403, and 404 by admitting evidence of

Hill’s   past    associations        with       the    Capital      Consortium      Group.

These    contentions      are    without         merit.       All    of    the    disputed

evidence was properly admitted because it was directly relevant

                                            4
to the question at hand: whether Hill committed perjury before

the grand jury. Furthermore, we find that the evidence was not

unduly prejudicial, and was introduced only what was relevant

and necessary to prove up the offenses charged in the instant

case.

       Hill next claims that the district court erred in denying

his Rule 29 motion and his Motion for Judgment of Acquittal.

When considering a challenge to the sufficiency of the evidence,

we determine whether, “after viewing the evidence in the light

most favorable to the prosecution, any trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “Reversal

for insufficient evidence is reserved for ‘the rare case where

the prosecution’s failure is clear.’” United States v. Ashley,

606 F.3d 135, 138-39 (4th Cir. 2010) (quoting United States v.

Beidler,    110   F.3d   1064,      1067       (4th   Cir.   1997)).   The   record

reflects that this is not such a rare case; rather, there was

ample evidence presented at trial to support Hill’s convictions.

       Hill also argues that Counts 1 and 2 of the indictment were

duplicitous and that he was subjected to double jeopardy. Again,

we review this claim for plain error. See Rooks, 596 F.3d at

210.    Because   both   of   the   charged       offenses    required   proof   of

elements that the other did not, Hill was not subject to double

jeopardy. See United States v. Siers, 873 F.2d 747, 750 (4th

                                           5
Cir. 1989) (citing Blockburger v. United States, 284 U.S. 299,

304 (1932)).

     Hill’s final contention is that it was improper for the

government     to   indicate      to   him       that    his    testimony     before   the

grand jury was secret and then prosecute him for attempting to

assert his right to remain silent. As the record was redacted to

remove all references to the Fifth Amendment during Hill’s grand

jury testimony from appearing in Hill’s trial, Hill’s claim is

again without merit.

     We therefore affirm the judgment of the district court; we

also deny Hill’s motion for leave to file a pro se supplemental

brief.   We    dispense    with    oral      argument       because     the    facts   and

legal    contentions      are   adequately          presented      in   the    materials

before   the    court     and   argument         would    not    aid    the   decisional

process.

                                                                                AFFIRMED




                                             6
