UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4080
LEONARD ROY WOOD, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Terrence W. Boyle, Chief District Judge.
(CR-95-126-BO)
Argued: December 4, 1998
Decided: March 30, 1999
Before MICHAEL and MOTZ, Circuit Judges, and GOODWIN,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Victoria D. Little, Decatur, Georgia, for Appellant. Harry
Thomas Church, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Mark T. Calloway, United States Attorney,
Brian Lee Whisler, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Leonard Roy Wood appeals his conviction for conspiracy to dis-
tribute marijuana. Wood asserts that the district court erred in several
respects: by allowing the Government to use certain summary charts
in its rebuttal argument, by limiting his attorney's opening statement,
by excluding drug treatment records pertaining to Government wit-
nesses, and by excluding evidence that the Government had dropped
a charge of unlawful importation of marijuana that had originally
appeared in the indictment. Wood also contends that the district judge
excessively criticized his attorney and improperly interfered with the
examination of witnesses, thereby denying him the effective assis-
tance of counsel and a fair trial. Finally, Wood maintains in a separate
motion to this court that the transcript of the proceedings below omits
some of the district court's alleged abuse of his attorney, that it is
inaccurate in other respects, and that it therefore constitutes an inde-
pendent basis for reversing his conviction. Although the record in this
case does present a picture of growing frustration on the part of the
district court, neither the district court's comments nor any of Wood's
other contentions amounts to reversible error. We therefore affirm
Wood's conviction and deny his motion.
I.
On September 6, 1995, a grand jury indicted Wood on counts of
conspiracy to import and distribute marijuana for activities occurring
between 1993 and 1995. The Government dropped the importation
charge on March 11, 1996, and trial on the distribution charge began
on March 18, 1996.
Before jury selection, Wood's attorney moved the court to order
the release of drug treatment records pertaining to various Govern-
ment witnesses. The court denied the motion pending a showing of
2
"proffered relevance." When the question of a witness's drug treat-
ment history arose during testimony, the court orally ordered the
facility in question to supply the relevant records. A written order to
the same effect was issued the next day. Wood states that "it is not
known to whom the order was communicated, but the evidence closed
without production of the records."
In her opening statement at trial, Wood's attorney attempted to
describe events dating back to the early 1980's in order to suggest that
the Government witnesses had a motive to fabricate testimony against
Wood. The district court ruled these comments irrelevant. Wood's
attorney also attempted to introduce evidence of the fact that the Gov-
ernment had indicted Wood for importation of marijuana and then
dropped the charge, but the district court sustained the Government's
objection to this inquiry as also irrelevant.
Prior to the parties' closing arguments, the Government revealed
that it intended to use two summary charts representing records of
telephone calls made to and from phone numbers registered to various
members of the alleged conspiracy, including Wood. Wood's attorney
briefly inspected the charts and objected to them on the ground that
they appeared to be inaccurate. The court denied the objection. When
the Government failed to use the charts in its initial closing, Wood's
attorney objected in anticipation of the possibility that the Govern-
ment might try to use the charts in rebuttal, leaving her no chance to
respond. The court denied this objection as well. In her closing argu-
ment, Wood's attorney noted what she believed to be the inaccuracies
in the charts. When the Government used the charts in its rebuttal
argument, Wood's counsel objected again, and the court again denied
the objection. A member of the jury asked if the jury could review the
charts in the jury room, and the court refused this request because "the
charts were neither offered nor received in evidence, and so you may
not consider those as proof."
On March 22, 1996, the jury convicted Wood of conspiracy to dis-
tribute marijuana; on January 23, 1997, the court sentenced him to 84
months imprisonment. A week later, on January 30, 1997, Wood filed
this appeal.
In August 1997, Wood's counsel discovered that the trial transcript
had never been filed with the district court, and that the original tran-
3
script was in the possession of the prosecutors. At the request of the
district court, the prosecutor filed the transcript with the district court.
In preparing for this appeal, Wood's attorney learned that the tran-
script was inaccurate and incomplete. She contacted the court
reporter, who allegedly denied at first that the transcript was faulty.
Later, however, the court reporter filed nine additional pages of tran-
script with the district court. Wood maintains that these pages are
inaccurate as well, and that other omissions and inaccuracies in the
transcript remain uncorrected. After an unsuccessful attempt to recon-
struct the record in order to present the Government with a stipulation
regarding its contents, Wood filed a motion with this court requesting
reversal of his conviction because of the allegedly defective tran-
script.
II.
Wood's motion concerning the transcript and his closely related
complaints about the district court's asserted abuse of his counsel
present his most substantial assertions of error, and we therefore
address them first.
A.
Rule 10(e) of the Federal Rules of Civil Procedure provides as fol-
lows:
If any difference arises as to whether the record truly dis-
closes what occurred in the district court, the difference
shall be submitted to and settled by that court and the
record made to conform to the truth. If anything material to
either party is omitted from the record by error or accident
or is misstated therein, the parties by stipulation, or the dis-
trict court either before or after the record is transmitted to
the court of appeals, or the court of appeals, on proper sug-
gestion or of its own initiative, may direct that the omission
or misstatement be corrected, and if necessary that a supple-
mental record be certified and transmitted. All other ques-
tions as to the form and content of the record shall be
presented to the court of appeals.
4
Fed.R.App.P. 10(e) (emphasis added).
Wood's failure to submit the alleged problems with the record to
the district court permits us to refuse to consider the issues raised by
those allegations. See Lothscheutz v. Carpenter , 898 F.2d 1200, 1208
(6th Cir. 1990) ("defendants must pursue their challenges to the
record's accuracy in the district court"); Bilmar Drilling, Inc. v. IFG
Leasing Co., 795 F.2d 1194, 1200 (5th Cir. 1986) (failure to comply
with Rule 10 gives circuit court choice, pursuant to Rule 10(e), "of
either remanding for the purpose of supplementing the record . . . or
declining to consider" the underlying issue). But because the serious
conflict with the district judge that Wood has described might make
such an exercise futile, we believe the better course in this case is to
exercise our own authority under Rule 10(e) to address the questions
concerning the adequacy of the record.
Wood maintains that the defects in the trial transcript require the
reversal of his conviction. The Court Reporter Act provides that
[e]ach session of the court and every other proceeding des-
ignated by rule or order of the court or by one of the judges
shall be recorded verbatim by shorthand, mechanical means,
electronic sound recording, or any other method . . . . Pro-
ceedings to be recorded under this section include (1) all
proceedings in criminal cases had in open court . . . .
28 U.S.C.A. § 753(b) (1993). We have recognized that the require-
ment of a verbatim record of criminal proceedings is designed "to
safeguard a defendant's right to appellate review," United States v.
Gillis, 773 F.2d 549, 554 (4th Cir. 1985), and that "noncompliance
[with § 753] seems fraught with potential for mistake and possible
prejudice," United States v. Snead, 527 F.2d 590, 591 (4th Cir. 1975).
We have also stated that "[t]he direction[of § 753] is simple and
clear; the statute should be obeyed." United States v. Hanno, 21 F.3d
42, 48 (4th Cir. 1994) (quoting Snead, 527 F.2d at 591 (4th Cir.
1975)).
The requirements of the § 753(b) are thus properly regarded as
mandatory. See, e.g., United States v. Winstead, 74 F.3d 1313, 1321
(D.C. Cir. 1996); United States v. Gallo, 763 F.2d 1504, 1530 (6th
5
Cir. 1985); Casalman v. Upchurch, 386 F.2d 813, 814 (5th Cir. 1967).
In criminal cases, those requirements apply not only to the presenta-
tion of evidence at trial, but also to such activities as the entry of a
guilty plea, Herron v. United States, 512 F.2d 439, 441 (4th Cir.
1975); proceedings concerning jury selection, Hanno, 21 F.3d at 48;
Parrott v. United States, 314 F.2d 46, 47 (10th Cir. 1963); sidebar
conferences, see Winstead, 74 F.3d at 1321; United States v. Sierra,
981 F.2d 123, 127 (3d Cir. 1992); and arguments of counsel, United
States v. Bebik, 333 F.2d 736, 738 (4th Cir. 1964). Responsibility to
ensure compliance with the statute lies with the court, not the reporter
or the parties, see Gallo, 763 F.2d at 1530; United States v. Garner,
581 F.2d 481, 488 (5th Cir. 1978); Casalman, 386 F.2d at 814; and
accordingly violations of the statute ordinarily constitute judicial
error.
A violation of the statute only constitutes reversible error, however,
if the defendant can show "that the missing portion of the transcript
specifically prejudices his appeal." Gillis , 773 F.2d at 554. "The lack
of a record does not warrant reversal as long as the reviewing court
is satisfied that no error occurred at trial." Id.
Wood does not claim, and nothing suggests, that the record here is
so woefully inadequate that it makes his other, more substantive
assignments of error unreviewable. Cf. United States v. Wilson, 16
F.3d 1027 (9th Cir. 1994). Moreover, although he alleges numerous
inaccuracies in the transcript, he fails to specify any prejudicial errors
that were obscured by them.
With these facts and principles in mind, we examine Wood's spe-
cific claims.
B.
Wood first contends that numerous instances in which the district
court abused his attorney were not recorded.
Wood's most particular and emphatic contention in this regard is
that the transcript omits the district court's reaction to an attempt by
Wood's attorney, after the jury had been sent out for deliberations, to
6
put objections to the jury charge on the record. Wood's attorney
maintains that "when counsel attempted to have[certain] exceptions
[to the jury charge] placed on the record, the court left the bench
while she was speaking and ordered the court reporter not to put any-
thing on the record." The record of this incident, she contends, fails
to show that the district judge "screamed at counsel, interrupting her;
ran from the court room and then returned, instructing the court
reporter not to put anything that was said on the record." As we have
it, the record only indicates that the judge invited Wood's attorney to
file a written motion on that matter, and then declared a recess.
Wood's attorney maintains that this portion of the record was fabri-
cated.
Wood has submitted affidavits signed by his daughter, his son-in-
law, his attorney, and his attorney's husband supporting this account.
The court reporter also gave an affidavit, in which she stated that the
judge did instruct her not to put anything further on the record on this
occasion, but that he did so when the court was in recess. Finally, the
Government concedes that an unrecorded confrontation between the
district judge and Wood's counsel occurred after the jury retired, but
contends that the judge did not do or say anything improper at that
time.
Even accepting Wood's account of this event in full, we cannot
conclude that his conviction should be reversed. Wood does not con-
tend that any erroneous rulings of law affecting his rights were made
during the unrecorded interchange, and he does not assert any defects
in the jury charge on this appeal. Indeed, he does not specify anything
that occurred on this occasion to interfere with the fair determination
of his guilt or innocence. The jury had withdrawn to deliberate, and
therefore it is difficult to see how the particulars of what happened in
court at the time of the alleged events could have affected the integ-
rity of his conviction in any way.
Wood alleges another, more serious, violation of the Court
Reporter Act by contending that the record omits incidents in which
the judge berated his attorney before the jury at the opening of pro-
ceedings on two occasions. All comments of the judge before the jury
must be recorded. See Gallo, 763 F.2d at 1529 n.37 (comments of
judge to jury, even about jury's physical comfort, should be
7
recorded). But Wood fails to specify the nature of the judge's alleged
abuse on these occasions. The government prosecutor, who has dem-
onstrated his credibility by acknowledging the previously discussed
unrecorded confrontation (in the absence of the jury), flatly denies
that any such "abuse" before the jury was unrecorded. Wood's general
allegations, expressly denied by the representative of the United
States, do not provide a sufficient basis for us to conclude that revers-
ible error may have occurred at trial, or that the alleged omissions in
the record prejudice this appeal.
Furthermore, our review of the incidents of the court's alleged mis-
treatment of counsel that do appear in the record causes us to doubt
that the supposedly omitted incidents would actually qualify as
"abuse" of a kind that, even in the aggregate, could constitute prejudi-
cial error. Most of the recorded instances in which the district court
allegedly "demeaned" defense counsel occurred outside the presence
of the jurors, and therefore could not have influenced their perception
of the defense. The few instances of alleged abuse that did occur
before the jury, while doubtless unpleasant, do not provide grounds
for reversal. The harshest of these incidents reflect sternness and a
degree of impatience with defense counsel on the part of the court,1
_________________________________________________________________
1 Perhaps the most acrimonious interchange before the jury occurred
when defense counsel attempted to suggest that a witness had made an
inconsistent statement in prior testimony regarding the location of a
trailer:
Q. It's not near this place?
A. That's not near that place.
Q. Then you were confused when you said it was.
THE COURT: Well, I believe she's saying that she didn't say
that this morning. Isn't that what you're saying?
THE WITNESS: Yes, sir.
THE COURT: All right. Well, don't mischaracterize her testi-
mony.
And you're supposed to stay back at your seat unless you're
given permission to come up to a witness with an exhibit. I
understand the practice in this district is the same as the practice
in the Eastern District court counsel are seated when they exam-
8
and some constitute rather sharply-worded evidentiary rulings.2 As
this court has held, "a judge's ordinary efforts at courtroom
administration--even a stern and short-tempered judge's ordinary
efforts at courtroom administration--" cannot entitle a defendant to
a new trial. United States v. Castner, 50 F.3d 1267, 1274 (4th Cir.
1995) (quoting Liteky v. United States, 510 U.S. 540, 556 (1994)).
We therefore conclude that Wood has failed to adequately demon-
strate either that the allegedly omitted incidents of abuse involved any
_________________________________________________________________
ine witnesses as is the practice in the state courts in North Caro-
lina. Are you aware of that?
DEFENSE COUNSEL: No. I'm not aware of that, Your
Honor.
THE COURT: Then I so advise you.
DEFENSE COUNSEL: In my district you have to stand.
THE COURT: Well, this isn't my district either.
DEFENSE COUNSEL: Well, I understand. I didn't know that,
and I'll be glad to be seated if that's the rule in this court.
THE COURT: Well, whether or not you're glad. I mean, that's
the rule.
DEFENSE COUNSEL: That might be difficult for me.
***
THE COURT: Well, if you're having a problem with it, just
ask and I'll accept your problem.
The court's treatment of counsel here, although less than friendly, cer-
tainly cannot be considered an example of the court"demeaning" counsel
in a way that would substantially damage the jury's ability to make a fair
determination of Wood's culpability.
2 For example, in sustaining an objection to a question about another
witness's testimony, the judge instructed defense counsel as follows:
The jury is going to recall whatever she said, and that's their
duty. And you're not permitted to ask the witness did somebody
say such and such and you remember him saying so and so.
That's an improper question. Now, confine yourself to proper
questions, please.
9
specific, prejudicial error, or that the putative omission of these inci-
dents has "specifically prejudice[d] his appeal" in any other respect.
Gillis, 773 F.2d at 554.
It might be argued that even if none of these allegedly omitted inci-
dents of "abuse" prejudiced Wood's rights in themselves, their
appearance in the record would have lent credibility to Wood's con-
tention that the trial judge's hostility to the defense deprived him of
a fair trial. The lack of a full record could, on this rationale, be con-
strued as prejudicial to Wood's appeal. If Wood's other suggestions
regarding the judge's allegedly hostile behavior at trial were more
substantial, we might be persuaded by such an argument. As we have
noted, however, the incidents of alleged abuse that do appear in the
record do not constitute prejudicial error, and Wood has failed to
allege with specificity any omitted incidents of mistreatment that
could constitute such error. Wood has thus failed to make an adequate
showing that his appeal is prejudiced by the alleged omission from
the record of the various incidents in which the court allegedly mis-
treated his attorney.
C.
Wood maintains that his attorney was so intimidated by the court's
harsh treatment that she was unable to provide him with effective
assistance of counsel. Review of this claim on a record that assertedly
omits some of the treatment in question does present difficulties, but
we believe that the record as it stands provides a sufficient basis to
discount this assignment of error. Defense counsel's vigorous and
persistent assertion of her client's rights, as reflected in the record,
plainly demonstrates that she was in no way intimidated, and that she
effectively represented Wood throughout the trial.
D.
Wood also contends that numerous objections and rulings made
during the trial were omitted from the record. More particularly, he
asserts that
[i]n many instances, counsel advised the court that she
wished to make a motion outside the presence of the jury
10
(indicating a motion for mistrial). Instead of permitting
counsel to make said motions in a timely manner, the court
required counsel to wait until a recess. The court reporter
has omitted all of the motions and rulings made during any
such recess from the transcript. In each instance, the court
reporter was present and presumably taking down the pro-
ceedings. The court reporter has advised counsel that she
recorded everything that was said unless it was"off the
record". To counsel's knowledge, nothing that transpired
during the trial was "off the record".
Wood does not expressly contend that the practice of requiring his
attorney to wait until a recess to record motions for mistrial consti-
tuted reversible error. It clearly does not. Allowing objections to be
made at the time of the conduct in question may sometimes better
ensure that motions and rulings on such conduct respond faithfully to
the actual events. Cf. Snead, 527 F.2d at 591 (stating practice of
requiring defense counsel to summarize bench conferences at recesses
in trial may impose an excessive burden on defense counsel to "accu-
rately summariz[e] those conferences which may be important to the
presentation of an appeal"). In other circumstances, however, a court
may properly conclude that the disruption caused by motions requir-
ing the absence of the jury outweighs the value of having motions
recorded immediately.
Thus the error, if any, lay in the failure to record such motions and
the rulings upon them. Such motions and rulings plainly must be
recorded; even if the court requires them to be made during what it
or the court reporter denominates as a "recess," they still constitute
matters occurring in "open court" for the purposes of the Court
Reporter Act. 28 U.S.C.A. § 753(b).
The omission of such motions and rulings could only warrant
reversal, however, if Wood were able to specify how the omission of
this material constituted prejudicial error. His general allegation, cited
above, that motions and rulings were omitted fails to do so.
Wood does, however, specify several occasions upon which objec-
tions, motions for mistrial, and rulings were omitted from the record.
He first asserts that the record fails to reflect his attorney's objection
11
and motion for mistrial, as well as the court's ruling denying the
motion, in response to a colloquy in which the district court allegedly
"restored credibility to Government witness who had been thorough
impeached." Similarly, Wood contends that the record omits his attor-
ney's motion for mistrial when the court interrupted her attempt to
impeach another witness and instructed the jury that the testimony
being elicited was "for the purposes of impeachment" but was "not
relevant to the trial of the issue on trial in this case, which is the
charge of conspiracy . . . against the defendant."
Neither the colloquy with the witness nor the court's interruption
and instruction, however, are alleged to have been incompletely or
inaccurately recorded. Moreover, the Government does not maintain
that the absence of Wood's objections and mistrial motions indicate
a waiver of his right to object to the court's conduct, and Wood does
not contend that the actual language of any of the allegedly omitted
rulings is significant. These putative omissions thus do not in them-
selves have any significance for any assignment of error at issue on
this appeal. The only real question with regard to this argument is
whether the court's conduct toward the witnesses and the jury, which
is fully reflected in the record, constituted error. We address this
question within section V.
Wood also contends that his attorney objected when the court
attempted to have a witness specify the kind of automobile Wood
drove, and that the record omits the objection and the court's state-
ment instructing her to make her objection at the next recess. Wood
alleges as well that an objection and a motion for mistrial that his
attorney made with regard to the Government's use of charts in rebut-
tal were omitted from the record. As stated above with regard to
motions for mistrial, objections and motions must be recorded, but no
error necessarily inheres in the court's requirement that they be made
at breaks in the trial. We consider below whether the district court
erred by inappropriately questioning witnesses or by allowing the
government to use the charts in rebuttal. All that remains of these
contentions, then, are the failure to record Wood's objections to this
conduct, and Wood's motion for mistrial regarding the use of the
charts. Again, however, the Government does not contend the absence
of the objections or the motion in the record indicates any kind of
waiver on Wood's part, and Wood does not otherwise indicate how
12
their omission could prejudice him. For these reasons, we must con-
clude that they do not.3
E.
In sum, we find Wood's arguments concerning the record and the
asserted mistreatment of his attorney to be unpersuasive. We therefore
decline to reverse his conviction on either of these grounds.
III.
Wood contends on several grounds that the prosecution's use of
charts summarizing telephone records that had been admitted into evi-
dence deprived him of a fair trial.
He first argues that the use of the charts violated his due process
rights in various respects. He contends that the charts were not based
on the evidence because they represented Wood as the person who
made and received the calls despite the fact that no evidence has been
introduced as to who actually made and received those calls. In pre-
senting the charts to the jury, the Government expressly acknowl-
edged that there was no direct evidence as to who made and received
the calls, but it invited the jury to infer that the calls were made to and
from the individuals to whom the phone numbers belonged. The pros-
ecution is entitled to argue that the evidence gives rise to an inference
as long as the suggested inference can be reasonably drawn from the
facts in evidence. United States v. Wilson, 135 F.3d 291, 298 (4th Cir.
1998). We conclude that, based on the facts in evidence in this case,
one could reasonably infer that the calls were made and received in
the manner represented in the charts. We therefore hold that no error
resulted from the Government's use of the charts in the absence of
direct evidence as to who made and received the calls in question.
Wood also maintains that the charts inaccurately stated the number of
calls made to various telephone numbers. But neither the joint appen-
dix nor the record on appeal contains the telephone records, which
concededly were admitted into evidence, upon which the charts were
_________________________________________________________________
3 Wood makes several other allegations of defects in the transcript, but
none of them comes close enough to indicating reversible error to merit
comment.
13
allegedly based. It is the responsibility of the appellant to ensure that
the record on appeal is complete. Fed.R.App.P. 11(a) (1998); Muniz
Ramirez v. Puerto Rico Fire Svcs., 757 F.2d 1357, 1358 (1st Cir.
1985). Because Wood has not included the telephone records in the
record on appeal, we cannot find any error arising from alleged dis-
crepancies between the telephone records and the charts. Stearns v.
Genrad, Inc., 752 F.2d 942, 945 (4th Cir. 1984); see Lakedreams v.
Taylor, 932 F.2d 1103, 1109 (5th Cir. 1991). 4
Wood next argues that the Government's use of the charts violated
Rule 29.1 of the Federal Rules of Criminal Procedure, which provides
as follows:
After the closing of evidence the prosecution shall open the
argument. The defense shall be permitted to reply. The pros-
ecution shall then be permitted to reply in rebuttal.
Fed.R.Crim.P. 29.1 (1998). The Advisory Committee note to this rule
states that "[t]he rule is drafted in the view that fair and effective
administration of justice is best served if the defendant knows the
arguments actually made by the prosecution in behalf of conviction
before the defendant is faced with the decision whether to reply and
what to reply." Fed.R.Crim.P. 29.1 advisory committee's note. Wood
contends that, by allowing the prosecution to use the charts for the
first time in rebuttal, the district court erroneously disregarded the
principle articulated by the Advisory Committee and violated the
Rule.
We agree that the district court erred by permitting the Government
to argue the telephone evidence represented in the charts for the first
time on rebuttal. Proper rebuttal must respond with some degree of
_________________________________________________________________
4 Wood also asserts that he was not given an adequate opportunity to
inspect the charts for accuracy. This contention is belied by the record.
The district court suggested that the defense could have fifteen minutes
to review the charts, but when defense counsel contended that this would
not be enough time, the district court said, "Well, you can take a look at
them, and we'll check back in 15 minutes and see if you're ready to
begin your argument." After the recess, defense counsel did not contend
that she needed additional time to more fully review the charts.
14
specificity to the arguments made by the defense. See United States
v. McNatt, 931 F.2d 251, 256-57 (4th Cir. 1991); United States v.
Taylor, 728 F.2d 930, 936-38 (7th Cir. 1984); see also United States
v. Sarmiento, 744 F.2d 755, 765-66 (11th Cir. 1984). The telephone
record evidence here did not speak directly or specifically to Wood's
argument in any way; it was merely additional evidence tending to
suggest his guilt. Moreover, it is plain from the record that the prose-
cution regarded the telephone evidence and the charts as strongly per-
suasive, and that it was saving them for rebuttal so that it could
present these powerful elements of its argument to the jury as the last
word on the evidence. "Fair response" cannot be construed so broadly
as to allow the Government to simply end-run Rule 29.1, as it sought
to do in this case.5
The impropriety of the Government's rebuttal argument was not,
however, prejudicial. Wood's attorney anticipated the Government's
use of the charts in her summation by arguing that they misrepre-
sented the evidence, and she interposed an objection on this ground
during the Government's discussion of the charts in rebuttal. More-
over, the district court instructed the jury that the charts had no evi-
dentiary value, thereby further minimizing any danger that the jury
would overemphasize the charts. Cf. Bennett v. Angelone, 92 F.3d
1336, 1347 (4th Cir. 1996) (jury instruction that attorneys' comments
were not evidence reduced prejudicial effect of prosecutor's improper
closing argument).
We conclude that the prosecution's use of the charts in its closing
argument does not warrant reversal.
IV.
Wood next contends that the district court erred in making certain
_________________________________________________________________
5 We note that the "invited response" doctrine of cases such as United
States v. Young, 470 U.S. 1 (1985), and Boyd v. French, 147 F.3d 319,
329 (4th Cir. 1998), applies most properly to the question of whether
prejudice should be construed to attach to improper comments by the
prosecution that have been prompted by improper comments by the
defense, and does not pertain directly to what constitutes proper rebuttal.
15
evidentiary rulings. We review evidentiary rulings for abuse of discre-
tion. United States v. D'Anjou, 16 F.3d 604, 610 (4th Cir. 1994).
A.
The first challenged evidentiary ruling occurred when the district
court interrupted the opening statement of Wood's counsel in order
to prohibit her from further describing or presenting evidence of
events that, Wood maintains, would have shown that the Govern-
ment's witnesses were biased against him. Wood sought to show that
the Government's primary witness, Robert Arnett, believed that
Wood had helped defraud him of $30,000 in a fake drug deal during
the early 1980's. The Government's case was based primarily upon
the testimony of a "close-knit" group of drug dealers consisting of
Arnett, his best friend, his wife, his sister, and her boyfriend. Wood
sought to suggest to the jury that the bad blood arising from the fake
drug deal gave these witnesses a motive, in addition to the sentence
reductions that all but one of them had obtained in exchange for coop-
eration, to fabricate testimony implicating Wood in the conspiracy.
The district court ruled evidence concerning the fake drug deal irrele-
vant because it occurred well prior to the time of the conspiracy
charged in the indictment.
We note that the district court has broad discretion to control open-
ing statements in order to prevent the presentation of irrelevant, inad-
missible, misleading, or diversionary material. See United States v.
Howard, 115 F.3d 1151, 1156 (4th Cir. 1997); United States v.
Poindexter, 942 F.2d 354, 360 (6th Cir. 1991).
Moreover, although evidence of a witness's bias is"almost always
relevant," United States v. Abel, 469 U.S. 45, 52 (1984), a trial court
has discretion to limit inquiry regarding bias "based on concerns
about, among other things, harassment, prejudice, confusing of the
issues, the witness' safety, or interrogation that is repetitive or only
marginally relevant," United States v. Van Arsdall, 475 U.S. 673, 679
(1986). Accordingly, we have held that "once some inquiry into bias
has been permitted, a trial court has discretion to limit [inquiry] on the
grounds of, inter alia, confusion of the issues or marginal relevance."
United States v. United Medical and Surgical Supply Corp., 989 F.2d
16
1390, 1406 (4th Cir. 1993) (quoting United States v. Greenwood, 796
F.2d 49, 54 (4th Cir. 1986)).
The district court here allowed Wood to present evidence that the
Government's witnesses had entered into plea agreements. The court
could have concluded, within the sound exercise of its discretion, that
evidence of bias due to events occurring almost ten years prior to the
alleged conspiracy would not significantly supplement the sugges-
tions of bias connected with the plea agreements, and that whatever
value in showing bias that such evidence had would be outweighed
by its tendency to confuse and divert attention from the main issues
in the case. We therefore conclude that the district court did not err
in excluding discussion and evidence pertaining to the fake drug deal.
B.
Wood also argues that the district court erred by refusing his
request, prior to jury selection, for an order directing the release of
drug treatment records pertaining to various government witnesses.
The records would allegedly have shown that one of the witnesses
was at an in-patient drug treatment facility at a time when he claimed
to have been meeting Wood to make drug transactions. Wood con-
tends that the records would have also been valuable for impeachment
of the government witnesses generally.
The district court did not, however, categorically refuse to order the
release of the records. Rather, it refused to do so only provisionally,
pending a showing of "proffered relevance." When the question of a
witness's drug treatment history arose during testimony, the court
without hesitation ordered the facility in question to supply the rele-
vant records. The district court's rulings concerning the drug treat-
ment records plainly were not erroneous. The fact that Wood failed
to follow up on the order that was issued does not convert the district
court's conduct into reversible error.
C.
Wood next maintains that the district court erred by refusing to let
him introduce evidence showing that he had originally been indicted
17
for importation of marijuana as well as conspiracy, and that the Gov-
ernment had dismissed the importation charge. Although Wood cites
no controlling precedent on the point, the Second Circuit has held evi-
dence that the prosecution has maintained inconsistent theories of a
case to be admissible in some circumstances. See United States v.
Salerno, 937 F.2d 797, 811 (2nd Cir. 1991), rev'd on other grounds,
505 U.S. 317 (1992); United States v. GAF Corp. , 928 F.2d 1253,
1260 (2nd Cir. 1991). Wood does not argue, however, and nothing
suggests, that the allegations of importation were in any way inconsis-
tent with the allegations of conspiracy.
Moreover, as the Second Circuit has also held, an indictment does
not constitute the formal adoption of a theory of the case by the Gov-
ernment, see GAF, 928 F.2d at 1261, and binding "the Government
forever to a preliminary investigative theory to which it never for-
mally committed would only discourage further investigation and
thereby impede the truth-finding process," United States v. Purdy,
144 F.3d 241, 246 (2nd Cir. 1998). Wood does not otherwise indicate
how the district court's exclusion of this evidence was improper.6 We
therefore conclude that the district court did not err in ruling evidence
of the dismissed importation charge irrelevant.
V.
Finally, Wood contends that the district court denied him a fair trial
by improperly questioning witnesses and by interrupting cross-
examination in order to give jury instructions that, Wood maintains,
represented his attempt to impeach a witness as immaterial and irrele-
vant.
With respect to the district court's participation in the examination
of witnesses, we note that a trial judge must take care to avoid the
appearance of bias when questioning witnesses and commenting on
_________________________________________________________________
6 Wood contends in his brief that the importation charge was dismissed
because the Government learned that statements regarding importation,
which were made by the same witnesses who testified at trial, were false.
Wood provides no support whatsoever for this contention, and we obvi-
ously cannot simply take his word for it. We therefore disregard this
aspect of Wood's argument.
18
evidence. See United States v. Wilson, 118 F.3d 228, 237 (4th Cir.
1997). We have scrutinized the record here, however, and find that
the district court's questioning, although frequent, provides no basis
for reversal. See United States v. King, 119 F.3d 290, 294 (4th Cir.
1997). We caution district courts to refrain from taking on the role of
an advocate when questioning witnesses, see United States v. Wilson,
135 F.3d 291, 307 (4th Cir.), cert. denied, 118 S. Ct. 1852 (1998); a
witness who on cross-examination contradicts himself can be rehabili-
tated by counsel for the opposing side on redirect examination. A
court has no obligation, or right, to rehabilitate a witness.
Wood also contends that the district court erred in interrupting the
cross-examination of Robert Blatta in order to issue lengthy jury
instructions that, according to Wood, vitiated his efforts to impeach
Blatta and suggested to the jury that "the jury was there for one pur-
pose, to convict Wood of the crime of conspiracy." It is clear in con-
text, however, that the judge merely sought to clarify that Wood's
extensive inquiry into Blatta's criminal history was directed at
impeachment, and to ensure that this inquiry did not cause the jury to
lose sight of the central question before them -- Wood's guilt or
innocence of the conspiracy charges. In doing so, the trial judge did
not, as Wood contends, usurp the role of the prosecutor, see United
States v. Parodi, 703 F.2d 768, 775-76 (4th Cir. 1983), or convert the
jury into his puppet. Rather, he merely sought to assist the jury, as he
plainly may, by "explaining, summarizing, and commenting on the
evidence." Seidman v. Fishburne-Hudgins Educ. Found., Inc., 724
F.2d 413, 417 (4th Cir. 1984).
VI.
In sum, Wood has failed to show prejudicial error sufficient to war-
rant reversal of his conviction or a new trial. We therefore affirm his
conviction and deny his motion for reversal.
AFFIRMED
19