                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4340


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAHEEM BRYANT-ROYAL,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:12-cr-00040-WDQ-1)


Submitted:   February 27, 2015                Decided:   May 21, 2015


Before SHEDD, DUNCAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Rachel Yasser, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland;
Christine Duey, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      A jury convicted Daheem Bryant-Royal of sexual abuse of a

minor in violation of 18 U.S.C. § 2243(a).                        Bryant-Royal appeals

his conviction on three grounds.                    He claims (1) the prosecutor’s

discussion        during     closing          argument       of     his     out-of-court

statements not in evidence deprived him of his constitutional

right to a fair trial; (2) his counsel’s inappropriate remarks

at closing argument deprived him of the effective assistance of

counsel;    and    (3)     the   district         court    erred    by    admitting   into

evidence the testimony of his ex-girlfriend and phone records

showing text messages and phone calls between the two on the

night of the incident at issue.                    For the reasons that follow, we

affirm.



                                              I.

                                              A.

      On September 4, 2011, Bryant-Royal, who was 21 years old at

the     time,     attended       a    party         with    a     group     of   teenaged

acquaintances      who     lived     at   a   military       base    in    Maryland   (the

“Base”).        Prior to the party, Bryant-Royal made plans to meet

his ex-girlfriend after the party.                    During the evening, Bryant-

Royal stated his intention to “get some tonight.”                         S.J.A. 170.

      The party guests included M.J., who was 15 years old at the

time.     M.J. consumed alcoholic beverages at the party.                        When the

                                              2
guests   decided   to   leave   the   party,   she    required   assistance

walking to the car, and vomited multiple times during the drive

back to the Base.       Over the course of the drive, Bryant-Royal,

also in the car and expressing frustration that the trip was

taking too long, made several unsuccessful attempts to call his

ex-girlfriend.     She eventually answered his call, but said that

she would not see him that night because he would be returning

to the Base too late.

     The group returned to the Base and dropped off Bryant-Royal

before driving to another guest’s house.             M.J. was carried into

the house and left near a toilet.           Shortly thereafter, Bryant-

Royal arrived at the house.           A member of the group testified

that Bryant-Royal was agitated because he had not been able to

meet his ex-girlfriend.     J.A. 97.       After a time, everyone at the

house except for Bryant-Royal and M.J. went to bed.              They awoke

to find M.J. crying in the living room, her hair and clothes

disheveled.   M.J. stated that Bryant-Royal had raped her.              Her

friends took her home, and M.J. reported the sexual assault to

her parents and law enforcement officials.              Forensic evidence

confirmed that sexual intercourse had taken place between M.J.

and Bryant-Royal.

                                      B.

    Bryant-Royal was indicted under 18 U.S.C. § 2243 (Count

One, for “[s]exual abuse of a minor or ward”), and 18 U.S.C.

                                      3
§ 2242 (Count Two, for “[s]exual abuse”).                                   Count One required

the   government          to    prove   that          Bryant-Royal,             “in    the    special

maritime and territorial jurisdiction of the United States . . .

knowingly engage[d] in a sexual act with another person who[]

(1) ha[d] attained the age of 12 years but ha[d] not attained

the age of 16 years; and (2) [wa]s at least four years younger

than [he].”         18 U.S.C. § 2243(a).                       Bryant-Royal’s knowledge of

M.J.’s age was not an element of the offense.                                      Id. § 2243(d).

However, Bryant-Royal             raised      an       affirmative              defense--which      he

had   the        burden      to   “establish              by    a        preponderance       of    the

evidence”--that he “reasonably believed that [M.J.] had attained

the   age    of     16       years”   at     the       time         of    the    incident.         Id.

§ 2243(c)(1).           To rebut this defense, the prosecution introduced

the   testimony         of     M.J.   and    a     friend           of    hers,       each   of   whom

testified about a different conversation in which Bryant-Royal

asked about M.J.’s age and was told that she was 15.                                         J.A. 72,

99.

      Count Two required the government to prove that Bryant-

Royal, “in the special maritime and territorial jurisdiction of

the United States[,] . . . knowingly . . . engage[d] in a sexual

act with another person [who was] incapable of appraising the

nature      of    the     conduct;      or    .       .    .     physically           incapable     of

participation in, or communicating unwillingness to engage in,

that sexual act.”              18 U.S.C. § 2242.                Bryant-Royal’s defense for

                                                  4
Count Two centered on the theory that M.J. consented to the

sexual     act     and,       fearing       pregnancy          or     other       consequences,

concocted    the       rape    allegation.            By    contrast,         the     government

sought to prove that Bryant-Royal’s conduct was knowing because

it was motivated by his anger at not getting back in time to

meet his ex-girlfriend.                To prove this theory, the government

offered     the        testimony       of     Bryant-Royal’s            ex-girlfriend             to

establish    Bryant-Royal’s             state       of     mind      directly       before       the

assault.         She    testified       that    on       the    night       of    the     offense,

Bryant-Royal        called       her        approximately            nine        times.          The

government also introduced into evidence phone records showing

text messages and phone calls between the two on the night of

the offense.

       During closing argument, defense counsel began by arguing

that M.J. consented to the sexual acts.                             He suggested that M.J.

panicked when Bryant-Royal ejaculated inside of her because she

did not want to become pregnant.

       Turning     to     the      argument         that       Bryant-Royal           reasonably

believed M.J. was 16, defense counsel referred to out-of-court

statements        Bryant-Royal          allegedly          made       after       his      arrest.

Counsel stated that Bryant-Royal “thought she was 16.”                                         S.J.A.

356.      Counsel       explained       that        Bryant-Royal        “told       [U.S.        Army

Criminal Investigation Command], ‘I thought she was of age,’”

and    stated     that     the     jury      “didn’t        see       the     tape”       of     that

                                                5
statement.        S.J.A. 356.          The government objected to each of

these   assertions        because      they       referenced     statements     not    in

evidence.     The court overruled each objection, but instructed

the   jury   to    base    its    verdict          on   its    recollection     of    the

evidence.    See S.J.A. 357.           Given that Bryant-Royal’s statements

were not in evidence, the instruction effectively directed the

jury to disregard them.

      Thereafter, in rebuttal, the government also referred to

Bryant-Royal’s      out-of-court         statements,          noting:   “[I]f    we’re

going   to   talk    about       the    Defendant’s           prior   statements,     he

admitted [M.J.] looked young. . . . He admitted she had braces.

He didn’t say that she told him that she was 16.                          That’s not

what he said.        He said that he thought she was at least 21.”

S.J.A. 369 (emphasis added).              Defense counsel objected to these

statements, but the court again overruled the objection.

      The jury convicted Bryant-Royal on Count One (sexual abuse

of a minor) but was unable to reach a verdict as to Count Two

(sexual abuse).       The district court then sentenced Bryant-Royal

to 120 months’ incarceration for Count One, and dismissed Count

Two upon motion of the government.                  Bryant-Royal timely appealed

his conviction.




                                              6
                                            II.

       The    issues       before     us    on      appeal      are    whether          (1)   the

prosecutor’s discussion of Bryant-Royal’s out-of-court statement

that    he    thought       M.J.    was    21       deprived      Bryant-Royal           of    due

process, in violation of the Fifth Amendment to United States

Constitution;        (2)    Bryant-Royal’s            counsel’s      remarks       at    closing

argument deprived him of the effective assistance of counsel, in

violation of the Sixth Amendment; and (3) the district court

erred by admitting into evidence Bryant-Royal’s communications

with his ex-girlfriend.             We address each issue in turn.

                                             A.

       We    first    consider       Bryant-Royal’s            due    process       argument.

Bryant-Royal explains that, because no reasonable person could

have believed that M.J. was 21, the prosecutor’s assertion that

Bryant-Royal had said that he thought M.J. was 21 undermined his

more   reasonable       argument      that       he    believed       she    was    16.        The

government      concedes           that    the        prosecutor’s          statement         was

improper,     but    contends       that    the       remarks     were      invited      by   the

defense and did not prejudice the defendant.

       In    order     to    demonstrate            that   prosecutorial           misconduct

deprived him of due process, a defendant “must show [1] that the

[prosecutor’s]         remarks       were        improper       and      [2]       that       they

prejudicially affected the defendant’s substantial rights so as

to deprive [him] of a fair trial.”                     United States v. Wilson, 135

                                                7
F.3d 291, 297 (4th Cir. 1998) (alterations in original) (quoting

United     States    v.    Adam,     70    F.3d     776,    780     (4th    Cir.    1995))

(internal quotation marks omitted).                  Assuming, without deciding,

that the prosecutor’s remarks were improper, we consider six

factors to determine prejudice under the second prong of the

Wilson test:

      (1) the degree to which the prosecutor’s remarks have
      a tendency to mislead the jury and to prejudice the
      accused; (2) whether the remarks were isolated or
      extensive; (3) absent the remarks, the strength of
      competent proof introduced to establish the guilt of
      the   accused;    (4)   whether   the   comments   were
      deliberately   placed  before   the   jury  to   divert
      attention to extraneous matters[;] . . . (5) whether
      the prosecutor’s remarks were invited by improper
      conduct of defense counsel[;] . . . and (6) whether
      curative instructions were given to the jury.

United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010)

(alterations in original) (quoting Wilson, 135 F.3d at 299).

Ultimately, the question is “whether the prosecutor[’s] comments

‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’”                    Darden v. Wainwright, 477

U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)).

      Applying      the    factors      set   forth      above,     we     conclude      that

Bryant-Royal has failed to show that the remarks deprived him of

a   fair   trial.         First,   we     find    that     though    the    prosecutor’s

remarks had the potential to mislead the jury with respect to

Bryant-Royal’s       belief    about       M.J.’s    age,     the    remarks       did   not

                                              8
prejudice         him.         With    respect       to    Bryant-Royal’s             affirmative

defense, the jury had to determine “whether [Bryant-Royal] held

an opinion [that M.J. was older than fifteen,] and if so whether

that opinion was reasonable.”                   United States v. Yazzie, 976 F.2d

1252, 1256 (9th Cir. 1992).                     Although there was evidence that

could create an objectively reasonable belief that M.J. was at

least      16,    see    Appellant’s       Br.       at    13,       there    was    no     evidence

outside of defense counsel’s improper statements at closing as

to   how    old     Bryant-Royal         actually         believed       she       was.         Because

Bryant-Royal        thus       failed    to     show      by     a    preponderance             of    the

evidence         that    he    reasonably       believed         M.J.        was    at     least      16

regardless of the prosecutor’s remarks, those remarks did not

prejudice him.

       Second,          the    prosecutor’s          remarks         were     isolated.               The

prosecutor referred only once to the statement and discussed it

only    briefly.              Third,    there    was       competent          proof        at    trial

establishing        Bryant-Royal’s            guilt       for    Count       One.         Undisputed

evidence         established       the    elements         of        Count    One,        and,       with

respect     to     Bryant-Royal’s         affirmative            defense,       the       government

presented evidence that Bryant-Royal had been twice told that

M.J. was 15.

        Fourth, there is no reason to believe that the prosecutor’s

remarks were made in order to divert the jury’s attention to

extraneous matters.               To the contrary, and with respect to the

                                                 9
fifth factor, the comments appear to have been made in direct

response to defense counsel’s improper remarks.

      Sixth, and finally, any prejudice to Bryant-Royal was cured

by   the    district    court’s       final    jury    instructions.         The    court

instructed the jury to “rely upon [its] own recollection of the

evidence,” and not “[w]hat the lawyers ha[d] said.”                        S.J.A. 377.

A jury following this instruction would not have considered any

evidence of what Bryant-Royal said or did not say about his

belief in M.J.’s age because no such evidence was introduced.

And we presume that juries follow courts’ instructions.                                See,

e.g., United States v. Cone, 714 F.3d 197, 230 (4th Cir. 2013).

      Upon consideration of these six factors, we hold that the

prosecutor’s improper remarks at closing argument did not result

in a denial of due process.                See Bennett v. Angelone, 92 F.3d

1336,      1346-47     (4th    Cir.      1996)     (holding    that     although       the

prosecutor’s        improper       religious      argument     during      closing     was

“objectionable         and    unwarranted,”        when     “viewed   in    the     total

context     of   the    trial,      it   was     not   sufficiently     egregious       to

render [the defendant’s] trial fundamentally unfair” because of

the strength of the evidence against him and the curative jury

instruction).

                                            B.

      We     next      consider       Bryant-Royal’s         contention      that       his

attorney’s       remarks      at   closing       argument    deprived      him    of    the

                                            10
effective    assistance   of   counsel         in   violation        of   the    Sixth

Amendment.      Bryant-Royal        argues     that      defense     counsel         made

arguments that were (1) improper; (2) based on evidence not in

the record; (3) irrelevant to any disputed element or defense;

and (4) inflammatory to the jury.             See Appellant’s Br. at 22-24.

Bryant-Royal submits that these remarks operated collectively to

deprive him of effective counsel.

     We “routinely decline to address on direct appeal” a claim

of ineffective assistance “unless ‘the lawyer’s ineffectiveness

conclusively appears from the record.’”               United States v. Brown,

757 F.3d 183, 191 (4th Cir. 2014) (quoting United States v.

Bernard, 708 F.3d 583, 593 (4th Cir. 2013)).                       We follow that

practice here, and decline to reach Bryant-Royal’s ineffective-

assistance claim.

                                         C.

     Finally,    we   consider       Bryant-Royal’s         argument      that       the

district court erred by admitting evidence of his communications

with his ex-girlfriend on the night of the offense, in violation

of Federal Rule of Evidence 403.              That rule provides that “[t]he

court may exclude relevant evidence if its probative value is

substantially   outweighed     by    a    danger    of    one   or    more      of   the

following:   unfair   prejudice,      confusing       the   issues,       misleading

the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”     Fed. R. Evid. 403.             We “review a district

                                         11
court’s admission of evidence over a Rule 403 objection under a

broadly deferential standard.”                  United States v. Love, 134 F.3d

595, 603 (4th Cir. 1998) (quoting United States v. Simpson, 910

F.2d    154,     157    (4th     Cir.        1990))    (internal    quotation      marks

omitted).          Indeed,     “[a]     district       court’s    decision    to   admit

evidence over a Rule 403 objection will not be overturned except

under     the      most      extraordinary            circumstances,      where     that

discretion has been plainly abused.”                    United States v. Williams,

445 F.3d 724, 732 (4th Cir. 2006) (quoting Simpson, 910 F.2d at

157) (internal quotation marks omitted).

       Under    Rule      403,    a    trial    court     must    ask   “whether    such

evidence has the potential to cause undue prejudice, and if so,

whether      the    danger       of     such    undue     prejudice     substantially

outweighs its probative value.”                 United States v. Mark, 943 F.2d

444, 449 (4th Cir. 1991).                    “[W]hen reviewing a trial court’s

decision to admit evidence under Rule 403, we must look at the

evidence in a light most favorable to its proponent, maximizing

its    probative       value     and    minimizing      its     prejudicial   effect.”

United States v. Udeozor, 515 F.3d 260, 265 (4th Cir. 2008)

(quoting Simpson, 910 F.2d at 157) (internal quotation marks

omitted).       We find no such prejudice here.

       The     phone    records        and    testimony    of    Bryant-Royal’s      ex-

girlfriend had no bearing on Bryant-Royal’s reasonable belief

about M.J.’s age, which was the only disputed issue with regard

                                               12
to   Count      One,   the   only    count      for   which    he    was   convicted.

Moreover, Rule 403 excludes only evidence that has the potential

to     cause     undue    prejudice,       and    only    when      such   potential

substantially outweighs the evidence’s probative value.                           Mark,

943 F.2d at 449.         Here, while the evidence had little probative

value--at most, it established Bryant-Royal’s desire to engage

in sexual intercourse and his frustration that he was unable to

meet his ex-girlfriend that night--it also lacked prejudicial

effect.        The evidence suggested, if anything, that Bryant-Royal

wanted to see his ex-girlfriend late that night, not that he

planned to rape a person he knew to be 15.                    Because the evidence

did not carry the risk of causing prejudice that substantially

outweighed its probative value, the district court did not err

in admitting it.



                                          III.

       For the foregoing reasons, we affirm.                      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


       *
       We also deny as moot the government’s motion to supplement
the record, ECF No. 44.



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