United States v. Adams

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4180

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT KEITH ADAMS,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:06-cr-00112-jct-1)

Argued: May 15, 2009 Decided: June 29, 2009

Before MICHAEL, SHEDD, and AGEE, Circuit Judges.

Affirmed in part, vacated in part, and remanded for resentencing
by unpublished per curiam opinion.

ARGUED: Terry Neill Grimes, GRIMES & WILLIAMS, P.C., Roanoke,
Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: Melvin E. Williams, GRIMES & WILLIAMS, P.C., Roanoke,
Virginia, for Appellant. Julia C. Dudley, Acting United States
Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert Keith Adams was convicted of obstruction of

proceedings in an official investigation, in violation of 18

U.S.C. § 1505, and making a materially false statement, in

violation of 18 U.S.C. § 1001(a)(2). Adams appeals, raising

twelve separate arguments challenging the district court’s

resolution of pre- and post-trial motions, the admission of

certain evidence, the sufficiency of the evidence, the propriety

of certain jury instructions, and the fairness of his trial due

to alleged prosecutorial misconduct.

The Government concedes that Adams’ conviction for

obstruction should be vacated, and contends that this concession

makes most of Adams’ remaining arguments moot. The Government

further contends the evidence was sufficient to convict Adams on

the material false statement charge, and that any errors that

may have occurred regarding that charge were harmless.

For the reasons set forth below, we affirm Adams’

conviction for making a false statement. However, because the

Government concedes that Adams’ conviction for obstruction

should be vacated, we vacate Adams’ conviction for that count

and remand for resentencing.

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 I.

Prior to his arrest, Adams was a Sergeant with the Henry

County Sheriff’s Department (“HCSD”). In March 2005, a joint-

agency investigation revealed wide-spread corruption and

criminal activity within the HCSD. As a result of the

investigation, at least twenty individuals in the HCSD,

including Adams, were prosecuted for federal crimes.

In a six-count indictment, Adams was charged with

relieving, comforting and assisting a person who had committed

an offense against the United States in order to hinder or

prevent that person’s apprehension, trial and punishment, in

violation of 18 U.S.C. § 3 (“Count I”); concealing knowledge of

the commission of a narcotics felony by performing acts in

violation and contravention of his sworn duties as a law

enforcement officer, in violation of 18 U.S.C. § 4 (“Count II”);

obstruction of justice by impeding an official investigation, in

violation of 18 U.S.C. § 1512(c)(2) (“Count III”); obstruction

of justice by impeding an agency proceeding, in violation of 18

U.S.C. § 1505 (“Count IV”); and two counts of making false

material statements to a government agent, in violation of 18

U.S.C. § 1001(a)(2) (“Count V” and “Count VI”).

Prior to trial, the district court dismissed Count III.

Adams was tried by a jury on the five remaining counts. He was

acquitted on Counts I, II, and VI, but convicted by the jury on

3
Counts IV and V. The district court sentenced Adams to separate

terms of imprisonment of 12 months and one day for each count,

to run concurrently, and to a period of 24 months’ supervised

release on each count, also to run concurrently.

Adams noted a timely appeal, raising twelve issues of

alleged error. Additional facts relating to each issue will be

discussed in context.

II.

A.

Several of Adams’ arguments challenge his conviction on

Count IV, for obstruction of proceedings in an official

investigation, in violation of 18 U.S.C. § 1505. As noted, the

Government concedes “for purposes of this appeal that a criminal

investigation by the [Drug Enforcement Agency] or [Federal

Bureau of Investigation] is not a ‘pending proceeding’ within

the scope of 18 U.S.C. § 1505, and requests that Adams’

conviction on Count [IV] be vacated . . . .” (Appellee’s Br.

15.) In light of the Government’s concession, we will vacate

Adams’ conviction on Count IV. Furthermore, because of this

4
disposition, we need not address Adams’ remaining arguments

challenging his conviction on that charge. 1

B.

Adams also challenges the sufficiency of the evidence to

convict him on Count V. In assessing the sufficiency of the

evidence, the Court determines whether the jury’s verdict is

sustained by “substantial evidence, taking the view most

favorable to the Government, to support it.” United States v.

Pierce, 409 F.3d 228, 231 (4th Cir. 2005) (quoting Glasser v.

United States, 315 U.S. 60, 80 (1942)) (internal quotation marks

omitted). “[S]ubstantial evidence is evidence that a reasonable

finder of fact could accept as adequate and sufficient to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc).

Count V charged Adams with making a false material

statement to agents of the Federal Bureau of Investigation

(“FBI”), in violation of 18 U.S.C. § 1001(a)(2). This statute

1
In addition to raising several arguments directly
challenging his conviction on Count IV, Adams contends that his
convictions for Counts IV and V violated the Double Jeopardy
Clause. Because we are vacating his conviction as to Count IV,
this argument is also moot. See United States v. Bass, 310 F.3d
321, 323 (5th Cir. 2002) (holding Double Jeopardy argument is
moot where the court had held that one of the convictions at
issue must be vacated for other reasons); United States v. Otis,
127 F.3d 829, 835 (9th Cir. 1997) (same).

5
prohibits an individual from “knowingly and willfully” making

“any materially false, fictitious, or fraudulent statement or

representation” “in any matter within the jurisdiction of the

executive . . . branch of the Government.” 18 U.S.C.A. §

1001(a)(2) (West 2000 & Supp. 2008). Adams asserts the

Government failed to meet its burden of proving Adams “knowingly

and willfully made a false statement” to the FBI Agents.

(Appellant’s Br. 44.)

The evidence adduced at trial showed that James Vaught, a

former HCSD officer, eventually cooperated with investigators

and agreed to wear a wire to record conversations with other

members of the HCSD. The Government recorded a January 2006

conversation between Vaught and Adams, during which Vaught told

Adams he was looking for known drug dealer Wilbert Brown in

order to sell him a half-kilogram of cocaine.

On March 24, 2006, FBI Agents Stan Slater and Mark Austin

(collectively “the Agents”) interviewed Adams as part of their

investigation. During that recorded interview, Adams twice told

the Agents he had no idea why Vaught had been looking for Brown

in January 2006. In light of these recordings, which were

played for the jury, we conclude that sufficient evidence exists

to support the guilty verdict as to Count V.

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 C.

Adams contends the district court erred in denying several

pre-trial motions: a motion to suppress the March 24, 2006

statements to the FBI Agents, a motion to dismiss the

indictment, a motion to order a bill of particulars, and a

motion to order separate trials of each count. We address each

claim in turn.

Adams argues the district court should have suppressed all

of the statements he made during the March 24, 2006 interview

with the Agents because they promised him that any statements

made during that interview would be kept confidential. As a

consequence, Adams contends that using his statements to the

Agents as the basis for Count V violated what effectively was a

promise of immunity. 2 In reviewing the denial of a motion to

suppress, this Court “reviews the district court’s factual

findings for clear error, and its legal conclusions de novo.”

United States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007).

Adams’ argument fails because the transcript of the March 24,

2006 interview shows that the Agents did not promise Adams

immunity from prosecution. The context of their statements

2
The Government also relied on statements Adams made in the
March 2006 interview as part of its proof regarding Count VI.
However, because Adams was acquitted of that charge, his
argument related to Count VI is moot because acquittal afforded
him a complete remedy. See United States v. Burns, 990 F.2d
1426, 1439 (4th Cir. 1993).

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shows that they would not report anything Adams told the Agents

to Adams’ supervisors in the HCSD. The Agents clearly and

repeatedly told Adams that anything he told them could be used

to prosecute him. Furthermore, the transcript of the March 24,

2006 interview shows that Adams first told the Agents that he

did not know why Vaught wanted to find Brown prior to the

Agents’ purported promise of confidentiality. Although Adams

subsequently reiterated his statement, Adams’ initial statement

alone was sufficient to convict Adams of making a material false

statement to the Agents, as charged in Count V. Accordingly,

the district court did not err in denying Adams’ motion to

suppress.

Adams next contends the district court erred by failing to

dismiss the indictment because the indictment lacked specificity

with regard to Counts I, II, and IV. Adams’ argument is

unavailing as to Counts I and II because he was acquitted of

those counts. That acquittal afforded him a complete remedy to

any perceived error. See Burns, 990 F.2d at 1439. Similarly,

no error is cognizable as to Count IV because we are vacating

Adams’ conviction as to that count, so this contention is now

moot. See Consolidation Coal Co. v. Local 1643, 48 F.3d 125,

130 n.6 (4th Cir. 1995).

Adams also asserts the district court abused its discretion

by failing to order a bill of particulars. See United States v.

8
MacDougall, 790 F.2d 1135, 1153 (4th Cir. 1986) (review is for

abuse of discretion). Adams maintains that the indictment’s

allegations were too vague for him to adequately prepare for

trial, and that a bill of particulars was necessary to pinpoint

the location of any information in the voluminous evidence that

the Government planned to use against him.

“[T]he purpose of a bill of particulars is to enable a

defendant to obtain sufficient information on the nature of the

charge against him so that he may prepare for trial, minimize

the danger of surprise at trial, and enable him to plead his

acquittal or conviction in bar of another prosecution for the

same offense.” United States v. Schembari, 484 F.2d 931, 934-35

(4th Cir. 1973). However, the purpose of a bill of particulars

is “fully satisfied” when the Government turns over its entire

file to the defendant. Id. at 935.

Here, the Government maintained an open file policy,

informed Adams that all the evidence against him would be found

in transcripts of Vaught’s recordings, and provided

electronically-searchable transcripts of those recordings.

Moreover, Adams’ arguments during the motion to dismiss the

indictment show that Adams knew specifically what the

Government’s evidence was well before trial. On this record, it

is clear that the purpose of a bill of particulars was

9
fulfilled, and the district court did not abuse its discretion

in refusing to grant Adams’ motion.

Adams contends the court should have ordered separate

trials on the various counts of the indictment. Specifically,

he asserts there should have been separate trials on Counts I

and II, Count V, and Count VI because although Counts I and II

related to each other, the other counts were not properly joined

and a single trial was prejudicial. “Whether offenses in an

indictment are improperly joined under [Fed. R. Crim. P. 8(a)]

is a question of law reviewed de novo.” United States v.

Cardwell, 433 F.3d 378, 384-85 (4th Cir. 2005). Whether the

district court erred in denying a Rule 14 motion to sever

properly-joined charges is reviewed for abuse of discretion.

Id. at 385. The principles governing joinder are clear:

Under Federal Rule of Criminal Procedure 8(a), a
single indictment may charge a defendant with multiple
counts if the offenses charged are of the same or
similar character, or are based on the same act or
transaction, or are connected with or constitute parts
of a common scheme or plan. Joinder of related
charges is broadly permitted to avoid needless
duplication of judicial proceedings, particularly
where evidence of one charge would be admissible to
prove another charge. Nonetheless, Rule 14(a)
provides that [i]f the joinder of offenses . . .
appears to prejudice a defendant or the government,
the court may order separate trials of counts. The
party seeking severance bears the burden of
demonstrating a strong showing of prejudice, and we
are mindful that the district court’s denial of a
motion to sever should be left undisturbed, absent a
showing of clear prejudice or abuse of discretion.

10
United States v. Branch, 537 F.3d 328, 341 (4th Cir. 2008)

(internal quotation marks and citations omitted) (alterations in

original).

We conclude the charges were properly joined in a single

indictment and the district court did not abuse its discretion

in permitting a single trial of all the charges against Adams.

The charges that went to trial all stemmed from Adams’ purported

knowledge of criminal conduct at HCSD, his efforts to conceal

that activity, and his subsequent failure to be forthcoming to

FBI Agents during their investigation into HCSD. Accordingly,

the charges were of a similar character and were sufficiently

connected to be joined in the same indictment.

Having determined the charges were properly joined, we next

consider whether the district court abused its discretion by

failing to sever the charges. It is readily apparent from the

record that “[t]rying the [charges] separately would have led to

significant inconvenience for the government and its witnesses,

and required needless duplication of judicial resources in light

of the legal, factual, and logistical relationship between the

charges.” See United States v. Mir, 525 F.3d 351, 357 (4th Cir.

2008). As just two examples, Agent Slater testified as to key

evidence related to all of the charges against Adams, and

Vaught’s testimony related to Counts I, II, IV, and V. In light

of the district court’s broad authority to permit a single trial

11
of properly-joined charges, we find no error in the exercise of

its discretion doing so.

D.

Adams claims the admission of two pieces of evidence

constituted prejudicial error. First, he asserts the admission

of his testimony on cross-examination that he had an

extramarital affair was irrelevant and highly prejudicial.

Second, he asserts the testimony of Wynona Dudley as to

statements made by her deceased boyfriend, Calvin Rayfield

Moore, were inadmissible under the Federal Rules of Evidence

governing admission of hearsay.

Adams filed a motion in limine to exclude any evidence that

he had an extramarital affair. The district court deferred a

decision on that motion to “see how the evidence develop[ed]” at

trial. (J.A. 210.) Although the Government asked Adams during

cross-examination whether he had engaged in extramarital

affairs, Adams did not object. Accordingly, this Court reviews

the admission of that evidence for plain error. United States

v. Ellis, 121 F.3d 908, 918 (4th Cir. 1997) (holding review is

limited to plain error when a district court defers ruling on a

motion in limine regarding certain evidence and the defendant

fails to object when that evidence is subsequently introduced

during trial).

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 Under the plain error standard of review, to establish
our authority to notice an error not preserved by a
timely objection, a defendant must demonstrate (1)
that an error occurred, (2) that the error was plain,
and (3) that it affected his substantial rights. If
the defendant satisfied these threshold requirements,
correction of the error is within our discretion,
which is “appropriately exercised only when failure to
do so would result in a miscarriage of justice, such
as when the defendant is actually innocent or the
error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.”

United States v. Farrior, 535 F.3d 210, 222 (4th Cir. 2008)

(quoting United States v. Promise, 255 F.3d 150, 161 (4th Cir.

2001) (en banc)). We conclude the admission of this evidence

cannot be said to have affected Adams’ substantial rights or the

fairness of the trial in light of the overwhelming evidence of

Adams’ guilt as to Count V.

More troubling was the admission, over Adams’ objection, of

Dudley’s hearsay testimony as to statements her deceased

boyfriend, Moore, purportedly made to her. Dudley testified

Moore told her that Adams accepted payoffs from him in order for

Moore to continue dealing drugs. Adams asserts the admission of

this hearsay testimony constituted prejudicial error because it

was not admissible under any of the exceptions regarding the

admissibility of hearsay evidence. Adams further contends that

even though the testimony directly related to Counts IV and VI,

its admission deprived Adams of a fair trial on the remaining

charges against him, including Count V.

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 When the issue has been properly preserved, decisions

regarding the admission of evidence are reviewed for abuse of

discretion. United States v. Lancaster, 96 F.3d 734, 744 (4th

Cir. 1996) (en banc). Evidentiary rulings are also subject to

review for harmless error under Fed. R. Crim. P. 52(a) and will

be found harmless if the reviewing court can conclude, “without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.” United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (internal quotations

omitted.)

Even assuming the district court erred in admitting

Dudley’s hearsay testimony, we conclude its admission was

harmless. “In order for an error to have a substantial and

injurious effect or influence, it must have affected the verdict

. . . . [A]n error is harmless when the error did not

substantially sway or substantially influence” the jury’s

decision. United States v. Iskander, 407 F.3d 232, 240 (4th

Cir. 2005) (quoting Cooper v. Taylor, 103 F.3d 366, 370 (4th

Cir. 1996)). Any error in the admission of Dudley’s testimony

was harmless because the jury acquitted Adams on all but two

counts, we are vacating Adams’ conviction as to Count IV on

other grounds, and – as detailed above in section III.B. – the

evidence as to Adams’ guilt on Count V is completely independent

of Dudley’s testimony and plainly sufficient to support his

14
conviction. Accordingly, the admission of Dudley’s testimony

cannot be said to have “substantially influence[d]” the jury’s

decision, and any error in the admission of that testimony was

harmless.

E.

Adams asserts he was denied his constitutional right to a

fair trial because the Government improperly argued during its

opening and closing, as well as through witness questioning,

that Adams should be convicted because he associated with

individuals in the HCSD who had been convicted for their

criminal conduct.

We have reviewed the record, including the portions of the

Government’s opening and closing arguments and its questioning

of witnesses that Adams challenges as improper. We conclude the

Government did not cross the line into impermissible assertions

of guilt by association when it elicited brief, background

information from Agent Slater as to his investigation of the

HCSD and its witnesses regarding their participation in corrupt

acts with which Adams was not charged.

Unlike the cases relied upon by Adams, his charged conduct

– assisting in covering up criminal activity, obstruction of

justice, and providing false statements during a government

investigation – were linked to a broader scheme of criminal

activity in the police unit and the federal investigation into

15
that conduct. Consequently, evidence of Vaught’s criminal

conduct and Adams’ knowledge of and assistance thereto were

necessary aspects of proving the charges against Adams. In

addition, the Agents’ investigation of HCSD provided important

information into Adams’ conduct, including the recorded

conversation between Vaught and Adams and the context of the

March 24, 2006 interview between the Agents and Adams.

Similarly, the Government’s opening and closing arguments did

not suggest the jury should convict Adams based on others’

criminal conduct, but rather based on Adams’ own conduct in the

midst of corruption occurring throughout the HCSD. Because the

Government’s arguments targeted Adams’ own behavior in assisting

or covering up others’ criminal conduct, and his false

statements to the FBI Agents during their investigation of the

HCSD, Adams was not denied a fair trial.

F.

Adams contends the jury instructions related to Count V

“confused the jury as to whether it was required to unanimously

agree on the specific false statements made by Adams” and

therefore had the potential to deny Adams a fair trial by

allowing for conviction without the requisite unanimous

agreement. (Appellant’s Br. 44-45.) When a party challenges

jury instructions as creating jury confusion, the Court must

determine “whether there is a reasonable likelihood that the

16
jury has applied the challenged instructions in a way that

violates the Constitution.” Jones v. United States, 527 U.S.

373, 390 (1999) (internal quotation marks omitted). Here, the

district court instructed the jury:

Counts Five and Six of the indictment, which
charge the defendant with the knowing and willful
submission of false, fictitious, or fraudulent
statements alleges a number of false or fraudulent
statements. The government is not required to prove
that all of these statements that are alleged in
Counts Five and Six of the indictment as false are in
fact false.
Each juror must agree, however, with each of the
other jurors that the same statement or representation
alleged in Count Five and Count Six respectively to be
false, fictitious, or fraudulent is in fact false,
fictitious, or fraudulent.
The jury need not unanimously agree on each such
statement alleged, but, in order to convict, must
unanimously agree upon at least one such statement as
false, fictitious, or fraudulent when knowingly made
or used by the defendant.
Unless the government has proven the same false
or fraudulent statement to each of you beyond a
reasonable doubt, you must acquit the defendant of the
charge in either Count Five or Six of the indictment.

(J.A. 896-97.) We do not find that these instructions created a

reasonable likelihood that the jury applied them in a way that

violates the Constitution. Jurors are presumed to follow proper

jury instructions. See United States v. Williams, 461 F.3d 441,

451 (4th Cir. 2006). The instructions clearly state that the

jury must “unanimous agree upon at least one” statement the

Government alleged was “false, fictitious, or fraudulent when

17
made or used by” Adams. Thus, Adams’ jury instruction argument

is without merit.

G.

Lastly, Adams asserts numerous instances of prosecutorial

misconduct, which he contends prevented him from receiving a

fair trial. We have reviewed each claim and find those claims

either lack merit or fail to allege conduct that “so infected

the trial with unfairness as to make the resulting conviction a

denial of due process.” See United States v. Scheetz, 293 F.3d

175, 185 (4th Cir. 2002) (internal quotation marks omitted). 3

3
Adams’ final assertion of error is the district court’s
failure to grant his motion for judgment of acquittal or, in the
alternative, for a new trial. Adams does not raise any new
arguments related to this issue, but relies on the reasons set
forth in his individual assertions of error.
The Court reviews de novo the district court’s denial of a
Fed. R. Crim. P. 29 motion for judgment of acquittal. United
States v. Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129
S. Ct. 663 (2008). In conducting this review, “the verdict of
the jury must be sustained if there is substantial evidence,
taking the view most favorable to the government, to support
it.” Glasser v. United States, 315 U.S. 60, 80 (1942). As
noted above, “substantial evidence” is “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Burgos, 94 F.3d at 862. We review a
district court’s denial of a Rule 33 motion for a new trial for
abuse of discretion. United States v. Smith, 451 F.3d 209, 216-
17 (4th Cir. 2006).
For the reasons set forth above, substantial evidence
supported Adams’ conviction on Count V. Accordingly, the
district court did not err in denying Adams’ motion for judgment
of acquittal and it did not abuse its discretion in denying his
motion for a new trial.

18
 Only one of Adams’ assertions warrants any discussion.

Adams contends the Government’s closing argument improperly

attacked defense counsel’s integrity, and thereby prejudiced

Adams’ ability to receive a fair trial. In analyzing a “due

process claim premised on unfair prosecutorial conduct,” the

Court examines several factors, including “the nature of the

prosecutorial misconduct, the extent of the improper conduct,

the issuance of curative instructions from the court, any

defense conduct inviting the improper prosecutorial response,

and the weight of the evidence.” Humphries v. Ozmint, 397 F.3d

206, 218 (4th Cir. 2005) (en banc) (internal citations omitted).

Adams points to comments made by the Government during

rebuttal, and we conclude that they did not unfairly prejudice

the defendant in light of the “invited response” doctrine. As

the Supreme Court has stated:

The [prosecutor’s] remarks must be examined within the
context of the trial. . . . In this context, defense
counsel’s conduct, as well as the nature of the
prosecutor’s response is relevant. Indeed most Courts
of Appeals . . . have refused to reverse convictions
where prosecutors have responded reasonably in closing
argument to defense counsel’s attacks, thus rendering
it unlikely that the jury was led astray.
. . . . [T]he issue is not the prosecutor’s
license to make otherwise improper remarks, but
whether the prosecutor’s ‘invited response,’ taken in
context, unfairly prejudiced the defendant.
In order to make an appropriate assessment, the
reviewing court must not only weight the impact of the
prosecutor’s remarks, but must also take into account
defense counsel’s opening salvo. Thus the import of
the evaluation has been that if the prosecutor’s

19
 remarks were “invited,” and did no more than respond
substantially in order to “right the scale,” such
comments would not warrant reversing a conviction.

United States v. Young, 470 U.S. 1, 12-13 (1985).

Here, defense counsel’s closing argument called into

question the integrity of the FBI Agents, the Government’s

witnesses, and even the prosecutors themselves. (Supp. J.A.

1167-69, 1172, 1177.) Accordingly, the Government’s rebuttal

statements responded to defense counsel’s contentions and did

not unfairly prejudice Adams.

III.

For the aforementioned reasons, we affirm the judgment of

the district court as to Adams’ conviction on Count Five (making

a material false statement), and vacate the judgment as to Count

Four (obstruction of justice). We remand for resentencing on

Count Five.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED FOR RESENTENCING

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