UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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