                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4684


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY C. CARROTHERS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00260-MOC-DSC-3)


Submitted:   November 17, 2015            Decided:   February 3, 2016


Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Roderick M. Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC,
Charlotte, North Carolina, for Appellant.      Jill Westmoreland
Rose, Acting United States Attorney, Anthony J. Enright,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        Anthony       Carrothers     was    convicted       after    a   jury       trial       of

conspiracy      to     commit      bank    fraud,    in     violation     of       18    U.S.C.

§§ 371,      1344     (2012),      and    aiding    and    abetting      bank      fraud,       in

violation of 18 U.S.C. §§ 2, 1344 (2012).                       On appeal, Carrothers

challenges only his convictions.                   Finding no error, we affirm.

        First, Carrothers argues that the district court erred in

not   allowing        him    to    call    codefendant      Gregory      Anderson          as    a

witness so Anderson could assert his Fifth Amendment privilege

in    front     of     the     jury.        We     review    the     district           court’s

evidentiary ruling on this issue for an abuse of discretion.

United States v. Branch, 537 F.3d 328, 342 (4th Cir. 2008).

        We   conclude       that    the    district       court    did   not       abuse    its

discretion.         Although Anderson pled guilty, he had not yet been

sentenced at the time of Carrothers’ trial, thereby entitling

him to assert the privilege.                     Mitchell v. United States, 526

U.S. 314, 328-29 (1999).                 The district court allowed Carrothers

to question Anderson outside the presence of the jury, Anderson

asserted the privilege, and the court found that the privilege

was properly invoked.                See United States v. Sayles, 296 F.3d

219, 223 (4th Cir. 2002).

        Second,       Carrothers     asserts       that   the     Government       committed

prosecutorial misconduct (1) in seeking and obtaining from the

grand    jury     a    third      superseding      indictment       after      a    jury    was

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selected, but not empaneled, and the district court had denied

the   Government’s    motion      to   redact    the   second    superseding

indictment, and (2) in opposing his efforts to have Anderson

assert his Fifth Amendment privilege before the jury.                Because

Carrothers failed to allege prosecutorial misconduct before the

district court, we review for plain error.                 United States v.

Alerre, 430 F.3d 681, 689 (4th Cir. 2005) (applying plain error

standard to prosecutorial-misconduct claim); see United States

v. Obey, 790 F.3d 545, 547 (4th Cir. 2015) (setting forth plain

error standard).

      We conclude that Carrothers cannot show error, let alone

plain error.     To establish prosecutorial misconduct, Carrothers

must establish “(1) that the prosecutor’s remarks or conduct

were improper and (2) that such remarks or conduct prejudicially

affected his substantial rights so as to deprive him of a fair

trial.”   United States v. Caro, 597 F.3d 608, 624-25 (4th Cir.

2010) (internal quotation marks omitted).              The government has

broad discretion in how to charge a defendant.             United States v.

Armstrong, 517 U.S. 456, 464 (1996).            Additionally, at least one

circuit   has   upheld   the    government’s     actions    in   obtaining    a

superseding     indictment     after   selecting   a   jury   but   prior    to

empaneling it.       United States v. Del Vecchio, 707 F.2d 1214,

1216 (11th Cir. 1983).         Moreover, the Government played no role

in Anderson’s decision to assert his Fifth Amendment privilege,

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as it was his privilege to assert.                  Mitchell, 526 U.S. at 329-

30.    The Government was also not obligated to offer Anderson

immunity to testify.            United States v. Moussaoui, 382 F.3d 453,

466 (4th Cir. 2004).

      Finally, Carrothers argues that the district court erred in

denying his motion for a judgment of acquittal.                        “We review a

district court’s denial of a motion for judgment of acquittal de

novo.”     United States v. Reed, 780 F.3d 260, 269 (4th Cir.),

cert. denied, 136 S. Ct. 112, 113, 167 (2015).                      The jury verdict

“must be sustained if there is substantial evidence, taking the

view most favorable to the government, to support it.”                              Id.

(internal quotation marks omitted).                    “Substantial evidence is

that which a reasonable finder of fact could accept as adequate

and sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.”              Id. at 269-70 (internal quotation

marks omitted).

      To    establish       Carrothers        was   guilty     of     conspiracy     in

violation    of   18       U.S.C.     § 371,    “the     Government      must     prove

. . . an    agreement       between     two    or     more   people    to   commit    a

crime[]     and   .    .    .    an   overt     act    in    furtherance     of     the

conspiracy,” United States v. Cone, 714 F.3d 197, 213 (4th Cir.

2013) (internal quotation marks omitted), as well as Carrothers’

“willing participation” in the conspiracy to commit bank fraud,

United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004); see

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United States v. Adepoju, 756 F.3d 250, 255 (4th Cir. 2014)

(stating elements of bank fraud under 18 U.S.C. § 1344:                                       “(1)

the    defendant      knowingly       executed       or    attempted         a       scheme    or

artifice     to     defraud      a    financial      institution         [or          knowingly

executed     a     scheme   to       obtain    property      held       by       a    financial

institution through false or fraudulent pretenses], (2) he did

so    with   intent    to     defraud,        and   (3)    the    institution            was    a

federally insured or chartered bank”).                     To establish Carrothers

was guilty of aiding and abetting bank fraud, the Government was

required     to    establish     he     “(1)      [took]   an    affirmative            act    in

furtherance of [bank fraud], (2) with the intent of facilitating

the offense’s commission.”               Rosemond v. United States, 134 S.

Ct. 1240, 1245 (2014).

       The evidence introduced at trial showed that, at Anderson’s

instructions,       Carrothers        added       codefendant      Maria         Herrera,       a

woman whom he did not know, to his bank account and procured a

check that she used to purchase a home.                     Herrera testified that

the money was not hers and that she did not have the necessary

funds to purchase the home.                   The evidence further showed that

Carrothers requested at least one bank statement with Herrera’s

name   on    his    account.         Carrothers      admitted      that       he      knew    his

actions were designed so Anderson would not be connected to the

transaction.         The    evidence      also      established         that         Carrothers

visited      a     check-cashing        establishment            with        Anderson         and

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deposited large amounts of cash into the same checking account

from which he procured the check used by Herrera.                The evidence

also showed that Anderson received kickbacks from the sale of

the home that were not disclosed to the lenders.             The jury also

heard testimony that Carrothers recruited at least one friend to

join in his “investments” with Anderson.           We therefore conclude

that the evidence was sufficient to sustain the jury’s verdict.

     Accordingly, we affirm the district court’s judgment.                 We

dispense   with     oral   argument   because     the    facts    and   legal

contentions   are   adequately   presented   in    the   materials      before

this court and argument would not aid the decisional process.



                                                                     AFFIRMED




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