UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4174
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN D. VILLANUEVA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cr-00244-LO-2)
Submitted: December 30, 2010 Decided: February 11, 2011
Before NIEMEYER, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Philip Urofsky, Bryan Dayton, SHEARMAN & STERLING, LLP,
Washington, D.C., for Appellant. Neil H. MacBride, United States
Attorney, David B. Goodhand, Jack Hanly, Assistant United States
Attorneys, Justin W. Williams, UNITED STATES ATTORNEY’S OFFICE,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted John D. Villanueva of
conspiracy to participate as a government employee in a
transaction in which he knew he had a financial interest, in
violation of 18 U.S.C. § 208 (2006), and aiding and abetting
participation as a government employee in a transaction in which
he knew he had a financial interest, in violation of 18 U.S.C.
§§ 2, 208 (2006). The district court sentenced Villanueva to
six months of imprisonment on each count to run concurrently and
he now appeals. For the reasons that follow, we affirm.
Villanueva first argues that there was insufficient
evidence to support the convictions. We review a district
court’s decision to deny a Rule 29 motion for a judgment of
acquittal de novo. United States v. Smith, 451 F.3d 209, 216
(4th Cir. 2006). A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). The verdict of a jury must be
sustained “if, viewing the evidence in the light most favorable
to the prosecution, the verdict is supported by ‘substantial
evidence.’” Smith, 451 F.3d at 216 (citations omitted).
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.”
Id. (internal quotation marks and citation omitted).
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Furthermore, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” Beidler, 110 F.3d at 1067 (internal
quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted).
Section 208(a) provides that
[W]hoever, being an officer or employee of the
executive branch of the United States Government,
. . . participates personally and substantially as a
Government officer or employee, through decision,
approval, disapproval, recommendation, the rendering
of advice, investigation, or otherwise, in a . . .
contract . . . which, to his knowledge, he [or] his
spouse . . . has a financial interest—
Shall be subject to the penalties set forth in
section 216 of this title.
18 U.S.C. § 208(a). “[L]iability for conflict of interest may
be founded on a variety of acts leading up to the formation of a
contract even if those acts are not specifically mentioned in
the text of section 208(a).” United States v. Selby, 557 F.3d
968, 972-73 (9th Cir. 2009) (citation omitted). We have
thoroughly reviewed the record and conclude that the Government
introduced sufficient evidence from which the jury could
conclude that Villanueva was guilty of the charged offenses.
Villanueva next argues that statements the Government
made during opening and closing arguments amounted to
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prosecutorial misconduct. As Villanueva failed to object to the
prosecutor’s comments before the district court, we review this
issue for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). Therefore,
Villanueva must demonstrate that there was error, that was
plain, and that affected his substantial rights. Olano, 507
U.S. at 732. Moreover, even if Villanueva demonstrates plain
error occurred, this court will not exercise discretion to
correct the error “unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation
omitted).
To succeed on a claim of prosecutorial misconduct,
Villanueva must show that the prosecutor’s remarks were improper
and that they “prejudicially affected his substantial rights so
as to deprive him of a fair trial.” United States v. Scheetz,
293 F.3d 175, 185 (4th Cir. 2002). “In reviewing a claim of
prosecutorial misconduct, we review the claim to determine
whether the conduct so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Id.
(internal quotation marks and citation omitted). In making this
determination, we will consider
(1) the degree to which the prosecutor’s remarks had a
tendency to mislead the jury and to prejudice the
defendant; (2) whether the remarks were isolated or
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extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the defendant; (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.
Id. at 186 (citation omitted). With these principles in mind,
we have reviewed the record and conclude that Villanueva has
failed to demonstrate that the prosecutor’s comments resulted in
prejudice.
Finally, Villanueva argues that the district court
erred in refusing his proposed jury instruction on Fed. R. Evid.
404(b). “‘The decision to give or not to give a jury
instruction is reviewed for an abuse of discretion.’” United
States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006) (quoting
United States v. Moye, 454 F.3d 390, 398 (4th Cir. 2006) (en
banc)). “‘We review a jury instruction to determine whether,
taken as a whole, the instruction fairly states the controlling
law.’” Id. (quoting Moye, 454 F.3d at 398). If we determine
that the district court erred in refusing an instruction, such
error “warrant[s] reversal of the conviction only if the error
is prejudicial based on a review of the record as a whole.”
Moye, 454 F.3d at 399 (internal quotation marks and citation
omitted).
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Rule 404(b) prohibits the admission of “[e]vidence of
other crimes, wrongs, or acts . . . to prove the character of a
person in order to show action in conformity therewith.” Fed.
R. Evid. 404(b). However, the rule does not apply to evidence
of acts intrinsic to the crime charged. United States v. Chin,
83 F.3d 83, 87 (4th Cir. 1996). “Other criminal acts are
intrinsic when they are inextricably intertwined or both acts
are part of a single criminal episode or the other acts were
necessary preliminaries to the crime charged.” Id. at 88
(internal quotation marks and citation omitted). This court has
also recently recognized that “[e]vidence is inextricably
intertwined with the evidence regarding the charged offense if
it forms an integral and natural part of the witness’s accounts
of the circumstances surrounding the offenses for which the
defendant was indicted.” United States v. Wilson, 624 F.3d 640,
652 (4th Cir. 2010) (internal quotation marks and citation
omitted).
Here, the district court refused Villanueva’s proposed
instruction, finding that the evidence at issue was intrinsic to
the crimes charged. Having reviewed the controlling legal
standards, we conclude that the district court did not err in
determining that the evidence was inextricably intertwined with
the charged offenses. Therefore, the district court did not
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abuse its discretion in denying Villanueva’s request for a jury
instruction.
Accordingly, we affirm the judgment of the district
court. 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
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