UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 94-5210

LEE B. PHILLIPS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-93-331)

Argued: December 8, 1995

Decided: February 5, 1996

Before RUSSELL and HALL, Circuit Judges, and THORNBURG,
United States District Court Judge for the Western District
of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Walter Stephen Booth, Bethesda, Maryland, for Appel-
lant. Stuart A. Berman, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

On August 5, 1993, a grand jury for the United States District
Court for the District of Maryland returned a twelve count bill of
indictment charging the defendant with bank fraud and aiding and
abetting in violation of 18 U.S.C. §§ 1344 and 2. He was found guilty
on all counts by jury verdict returned December 1, 1993.

Defendant made numerous post-trial motions, all of which were
denied by the district court. Most issues raised by these rulings have
been abandoned with the exception of challenges to the sufficiency of
the evidence, the district court's decision to permit the government to
reopen its case, and a jury instruction to which no objection was
entered at the time of trial.

For the reasons stated below, the judgment of the lower court is
affirmed. Additional facts will be recited as necessary to support or
clarify this court's ruling.

We first address the defendant's challenge to the sufficiency of the
government's evidence to support the jury's verdict. In reviewing the
sufficiency of proffered evidence to support a jury verdict, the analy-
sis must be whether, viewing the evidence in the light most favorable
to the government, any rational trier of facts could have found the
defendant guilty beyond a reasonable doubt. United States v. Reavis,
48 F.3d 763 (4th Cir.), cert. denied, 115 S. Ct. 2597 (1995).

Both the government and defendant presented lengthy and compre-
hensive evidence. Considering this evidence in a light most favorable
to the government, a rational jury could find that defendant Phillips
conceived and was substantially involved in a scheme to defraud the
First National Bank of St. Mary's (FNBSM), a financial institution
whose deposits were insured by the Federal Deposit Insurance Corpo-

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ration (FDIC), from on or about May 1991, through on or about June
1992; that the scheme was to be done and ultimately was accom-
plished by obtaining a line of credit through FNBSM, and thereafter
submitting requests for advancements under the credit line, which
requests were supported by false documentation; that the bank hon-
ored the fraudulent requests and thereby lost substantial sums of
money; that the successful conduct of the scheme involved not only
defendant but others with whom he worked; and that from the incep-
tion, the scheme to defraud was primarily guided to fruition by the
defendant Phillips. Thus, the government's evidence was fully ade-
quate to support a jury finding that the defendant was guilty of the
charges laid against him beyond a reasonable doubt.

The nature and extent of defendant's involvement, if any, was dis-
puted by extensive cross examination and his own testimony. The
jury had full benefit of all the evidence and ample opportunity to see,
hear and consider all contentions of the parties as well as the judge's
instructions.

Defendant's argument in sum on this point is that the government's
evidence was inaccurate, inconsistent, and unreliable.

          The jury, not the reviewing court, weighs the credibility of
          the evidence and resolves any conflicts in the evidence pres-
          ented, and if the evidence supports different, reasonable
          interpretations, the jury decides which interpretation to
          believe.

United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994), cert.
denied, 115 S. Ct. 954 (1995) (citations omitted). Therefore, defen-
dant's challenge to the sufficiency of the government's evidence to
prove defendant's guilt is overruled.

We next determine whether the lower court committed prejudicial
error in permitting the government to reopen its case and introduce
additional evidence after having rested its case-in-chief.

After the government rested, defendant moved for judgment of
acquittal because the government had failed to prove FNBSM was

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insured by the FDIC. The district court denied the motion. After the
defendant had begun his case, the district court reconsidered and
asked for further argument on the point, but made no final decision.
The government then requested the district court to permit it to reopen
its case to present FDIC certification over defendant's objection. The
district court granted the request, but did not take government evi-
dence at that time. These proceedings were had in the jury's absence.

Five days later, after defense counsel stated to the district court that
he did not know if he had further witnesses to call, the government
asked to present its evidence on the FDIC issue and provide brief
rebuttal testimony by calling a single witness. After colloquy between
the district court and attorneys, defense counsel stated he had "no
objection" to the government's witness proceeding to testify. Defense
counsel also did not object to the judge's indication that he would
give no jury instruction as to the government's witness being pres-
ented out of order.

Inasmuch as defendant lodged a timely objection to the granting of
the government's motion to reopen its case, the lower court's decision
is reviewed for abuse of discretion. United States v. Paz, 927 F.2d
176, 179 (4th Cir. 1991). In evaluating whether that discretion was
abused, this court has articulated the following criteria:

          In exercising its discretion, the court must consider the time-
          liness of the motion, the character of the testimony, and the
          effect of the granting of the motion. The party moving to
          reopen should provide a reasonable explanation for failure
          to present the evidence in its case-in-chief. The evidence
          proffered should be relevant, admissible, technically ade-
          quate, and helpful to the jury in ascertaining the guilt or
          innocence of the accused. The belated receipt of such testi-
          mony should not "imbue the evidence with distorted impor-
          tance, prejudice the opposing party's case, or preclude an
          adversary from having an adequate opportunity to meet the
          additional evidence offered."

United States v. Peay, 972 F.2d 71, 73 (4th Cir. 1992), cert. denied,
113 S. Ct. 1027 (1993) (other citations omitted).

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The learned trial judge as well as counsel were uncertain as to
whether the technical evidence to be offered (the FDIC certificate)
was necessary since the government's evidence in chief had proved
that FNBSM was a financial institution within the meaning of 18
U.S.C. §§ 1344, 2 and 20. The admission of the certificate cured the
possibility of error. The evidence was relevant, admissible, techni-
cally adequate, and helpful to the jury in determining defendant's
guilt or innocence. There was nothing about the character of the evi-
dence or the manner of its admission to distort the importance of the
evidence or prejudice defendant's case. In truth, the fact of FDIC
insurance was never disputed and as has been noted in a case on
point:

          The trial court has some interest in seeing that justice is
          done and in seeing that all the facts are presented . . . the
          court's exercise of discretion should not be disturbed. The
          evidence in question was in effect a formal matter and the
          defendant ought not to be allowed to utilize the inadvertence
          in order to gain an unjust result.

United States v. Bolt, 776 F.2d 1463, 1472 (10th Cir. 1985) (citations
omitted). The district court did not abuse its discretion in permitting
the government to reopen its case to present the FDIC certificate.

The district court also permitted the same government witness to
offer rebuttal evidence during the course of his testimony rather than
requiring him to return after the defense had rested its case. Since no
objection was made to the order of witnesses, and since defense coun-
sel actually consented to the procedure, this decision is reviewed
under the plain error standard. United States v. Castner, 50 F.3d 1267,
1277 (4th Cir. 1995); Fed. R. Crim. P. 52(b).

Plain error has been given the following meaning by this court:

          [T]here must be (1) an error, such as deviation from a legal
          rule; (2) the error must be plain, meaning obvious or, at a
          minimum, clear under current law; (3) the error must affect
          substantial rights - in other words, the error must be so prej-
          udicial as to affect the outcome of the proceedings in the
          district court; and, finally, (4) the reviewing court must

                    5
          determine if the error "`seriously affects the fairness, integ-
          rity or public reputation of judicial proceedings.'"

Castner, 50 F.3d at 1277 (quoting United States v. Olano, 113 S. Ct.
1770, 1777-79 (1993)) (other citations omitted). Defendant bears the
burden of proof with respect to prejudice of his rights. Olano, 113 S.
Ct. at 1778.

The defendant has offered no factual basis for his assertion of plain
error. His speculation that the sequencing of the government witness,
at a time when defense counsel was uncertain as to whether he would
call additional defense witnesses, confused the jury and implied that
the government witness was a defense witness extends credulity
beyond reasonable bounds. At the time the government witness was
called, the prosecutor stated to the court and jury,"the United States
calls one additional witness, a Mr. Candela." Appellee's Brief at 30.
The prosecutor then proceeded to examine the witness. This court will
presume jurors compos mentis unless a contrary showing has been
made. The district court did not commit plain error either in sequenc-
ing the government's witness or in failing (without objection or
request from defense counsel) to instruct the jury concerning the
sequencing.

Finally, the court addresses the defendant's claim that the district
court's "willful blindness" instruction constituted prejudicial error.
The defendant did not object to the trial court's instruction during the
charge conference or after the instructions were given. Failure to
object below once again calls for review pursuant to the plain error
standard. United States v. McCaskill, 676 F.2d 995, 1001 (4th Cir.),
cert. denied, 459 U.S. 1018 (1982).

The instruction given is taken from 1A L. Sand, et al., Modern
Federal Jury Instructions, Instruction No. 44-5, and reads as follows:

          As a practical matter, then, in order to sustain the charges
          against the defendant, the government must establish beyond
          a reasonable doubt that he knew that his conduct as a partic-
          ipant was calculated to deceive and nonetheless, he associ-
          ated himself with the alleged fraudulent scheme.

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          The government can also meet its burden of showing that a
          defendant had actual knowledge of falsity if it established
          beyond a reasonable doubt that he acted with deliberate dis-
          regard of whether the statements were true or false, or with
          a conscious purpose to avoid learning the truth. If the gov-
          ernment establishes beyond a reasonable doubt that the
          defendant acted with deliberate disregard for the truth, the
          knowledge requirement would be satisfied unless the defen-
          dant actually believed the statements to be true. This guilty
          knowledge, however, cannot be established by demonstrat-
          ing that the defendant was merely negligent or foolish.

Id. (emphasis added).

On appeal, for the first time, the defendant asserts this instruction
unconstitutionally shifted the burden of proof to the defendant. This
court has already rejected such an argument. United States v.
Whittington, 26 F.3d 456, 462 (4th Cir. 1994). The instruction bears
no language which could arguably suggest any burden of proof is
shifted to defendant.

On appeal, for the first time, the defendant also asserts that such
an instruction is improper where the evidence supports both a finding
of actual knowledge and a willful blindness to avoid learning the
truth. "[W]hen there is evidence of both actual knowledge and delib-
erate ignorance, as in the case at bar, a willful blindness instruction
is appropriate." United States v. Mancuso, 42 F.3d 836, 846 (4th Cir.
1995) (quoting United States v. Schnabel, 939 F.2d 197, 204 (4th Cir.
1991)) (emphasis in original). The record contains abundant evidence
to support a jury finding of actual knowledge, as well as a deliberate
avoidance. Thus, the instruction was proper.

The defendant has had a fair trial free of prejudicial error. The
judgment of the lower court is affirmed.

AFFIRMED

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