United States v. Wilson

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 06-4180
LORENZO ANTHONY WILSON, a/k/a
Baby Ann,
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 09-4573
LORENZO ANTHONY WILSON, a/k/a
Baby Ann,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge.
(8:03-cr-00457-PJM-2)

Argued: May 13, 2010

Decided: August 11, 2010

Before MOTZ and AGEE, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
2 UNITED STATES v. WILSON
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Motz and Senior Judge Hamilton joined.

COUNSEL

ARGUED: Robert Kelsey Kry, MOLOLAMKEN, LLP,
Washington, D.C., for Appellant. Sandra Wilkinson, OFFICE
OF THE UNITED STATES ATTORNEY, Greenbelt, Mary-
land, for Appellee. ON BRIEF: Mary Elizabeth Davis,
DAVIS & DAVIS, Washington, D.C.; Paul F. Enzinna,
BAKER BOTTS LLP, Washington, D.C., for Appellant. Rod
J. Rosenstein, United States Attorney, Baltimore, Maryland,
Deborah Johnston, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Greenbelt, Mary-
land, for Appellee.

OPINION

AGEE, Circuit Judge:

Lorenzo A. Wilson appeals from his conviction for conspir-
acy to kidnap, in violation of 18 U.S.C. § 1201(c) and § 2, his
sentence of life imprisonment for that offense, and the district
court’s order denying his post-sentencing motions for a new
trial. For the reasons set forth below, we affirm.

I.

Wilson, Kenneth Jamal Lighty, and James Everett Flood,
III, were charged in a five-count bill of indictment with kid-
napping resulting in the death of Eric Hayes, and aiding and
abetting the same, in violation of 18 U.S.C. § 1201(a) and § 2
("Count I"), conspiracy to kidnap, and aiding and abetting the
same, in violation of 18 U.S.C. § 1201(c) and § 2 ("Count
II"), and three counts of using a firearm in furtherance of a
 UNITED STATES v. WILSON 3
crime of violence, and aiding and abetting the same, in viola-
tion of 18 U.S.C. § 924(c) and § 2 ("Counts III, IV, and V,"
respectively).

Wilson’s case was severed from the joint trial of Lighty and
Flood because of statements Wilson made implicating them.
Following a jury trial, Wilson was convicted of Count II, con-
spiracy to kidnap, but acquitted of the other charges. Wilson
was sentenced to life imprisonment. In their separate trial,
Lighty and Flood were found guilty on all counts. Flood was
sentenced to life imprisonment on the kidnapping conviction
and a sixty-five year consecutive sentence on the remaining
counts, while Lighty received the death penalty for the kid-
napping conviction and a consecutive fifty-five year sentence
on the remaining counts.1 The parties noted separate, timely
appeals, which were subsequently placed in abeyance pending
the district court’s resolution of motions by Wilson and
Lighty for a new trial. After a joint evidentiary hearing, the
district court denied those motions, and both Wilson and
Lighty noted timely appeals from those orders as well.2

Because the cases of Wilson, Lighty, and Flood overlap in
significant respects, not only in the underlying facts and evi-
dence presented at the respective trials, but also in two of the
legal issues raised, this opinion refers to or quotes without
citation from our decision in Lighty and Flood’s appeal,
United States v. Lighty, No. 06-6 and 09-0006. A more
detailed factual summary is contained in Lighty. Briefly,
though, the evidence adduced at Wilson’s trial showed the
following.

On the evening of January 3, 2002, Eric Hayes (also known
1
The Government sought the death penalty against Lighty only.
2
We heard argument in all three cases seriatim on May 13, 2010. Lighty
and Flood’s cases were consolidated for decision, and the opinions in the
three appeals are being released on the same date.
4 UNITED STATES v. WILSON
as "Eazy"3) and his friend, Antoine Forrest, were on Eighth
Street, S.E., Washington D.C., when two men in a dark Lin-
coln Continental exited the vehicle and asked if they could
purchase drugs. Hayes walked with the men toward an alley
in order to complete the transaction. After several minutes,
Forrest approached the alley and observed that one of the men
from the Lincoln was holding Hayes at gunpoint over the
front hood of the vehicle. The second man from the vehicle
approached Forrest, brandishing a firearm. Forrest fled the
scene, and when he returned a short time later, Hayes, the
other two men, and the Lincoln were gone.

Earlier in the evening, Eugene Scott (also known as
"Yogi") went to his girlfriend’s apartment about a block from
where Hayes was later kidnapped. Scott’s vehicle was stolen
in front of his girlfriend’s apartment building. After reporting
his car stolen to the police, Scott went to the 2500 block of
Keating Street, in the Hillcrest Heights area of Temple Hills,
Maryland. He observed an older model vehicle speeding
down the street, which came to a "screech[ing]" halt, and its
doors opened. Scott started walking in the opposite direction
when he heard a voice or voices from the vehicle saying,
"Yogi is this him?," "shut up," and "[w]hat the F." Scott testi-
fied that he did not respond and left the scene.

At approximately 8:30 p.m. the same evening, Michael
Davis and Robert Smith, Jr., who both lived in the 12800
block of Hillcrest Parkway in Temple Hills, Maryland,
observed a dark Lincoln Continental parked at the end of that
street adjacent to vacant land. Davis saw the front passenger
and rear passenger exit the vehicle and forcibly pull a man,
later identified as Hayes, out of the back passenger area of the
vehicle. Hayes was protesting "no" or "don’t" while on his
3
Throughout the record in this case, Hayes’ nickname is spelled as
"Eazy," which we use in this opinion. We note, however, that the nick-
name is spelled "Easy" in Lighty, consistent with how it is spelled in that
record.
 UNITED STATES v. WILSON 5
knees, and then fell over after Davis heard what sounded like
two gunshots. Davis testified that after the shots were fired,
the passengers of the vehicle reentered the vehicle on the pas-
senger side and the vehicle departed. Smith also testified that
he saw Hayes being shot that evening. Smith was located fur-
ther away from the vehicle than Davis’ location. Smith saw
two individuals exit from the passenger side of the vehicle,
and heard gunshots, after which one person reentered the
vehicle on the passenger side. Smith and Davis separately
approached the area where Hayes’ body lay, and placed 911
calls to report the incident. Telephone records introduced into
evidence showed a 911 call placed at 8:50 p.m. reporting
Hayes’ body. Police subsequently retrieved two .380 caliber
shell casings from the scene.

Between 8:43 p.m. and 9:03 p.m., Wilson — who did not
own a cell phone — used Flood’s cell phone at least seven
times to communicate with his girlfriend, Krystal Phauls. Wil-
son instructed Phauls to meet him on Iverson Street in Hill-
crest Heights, a location less than two miles from where
Hayes was shot. Phauls and her friend Melissa Coles drove to
Iverson Street in Phauls’ vehicle, and picked up Wilson,
Lighty, and Flood4 as the final telephone call between Flood
and Phauls’ cell phones ended (approximately 9:03 p.m.).

The three men sat in the back seat of Phauls’ vehicle.
Lighty, seated in the middle, held a pair of Nike shoes and
had blood on his T-shirt. The men talked about having "done
something bad or killed someone." At their direction, Phauls
drove to the 2500 block of Keating Street, the same location
where Scott had earlier seen an older model vehicle and heard
voices asking him "is this him." The men got out of the vehi-
cle, looked at the ground, and one of them said "something
about blood." Phauls then dropped Lighty off at an apartment
4
Neither Phauls nor Coles knew Flood, who was introduced to them by
his nickname "Junebug."
6 UNITED STATES v. WILSON
complex in Hillcrest Heights and returned to her home.5 Coles
departed, and Phauls and Wilson went to dinner.

On returning to Phauls’ home after dinner, Wilson told
Phauls that he had driven Flood’s vehicle when he, Lighty,
and Flood "grabbed" "the boy" "Eazy" on 8th Street. Wilson
assured Phauls he had not killed "the boy," and said Lighty
had shot him. As Phauls and Wilson spoke, a two-way black
pager went off. Wilson looked at it, said, "the guy wasn’t
lying, his name is Eazy," and Phauls saw that the screen said
"Eazy" on it.6 (J.A. 189-96.)

The next day Wilson telephoned Phauls and told her to turn
on the television. She did so, and the news was reporting
Hayes’ murder. Phauls asked Wilson if he had done it, and
Wilson again told her he had only driven the vehicle, and that
Lighty had shot Hayes.

Wilson also told his friend CW7 that he had participated in
the Hayes kidnapping. CW testified Wilson said he "was rid-
ing with [Lighty] and [Flood] and someone else [and that the
men] road up 8th Street and [Lighty] got out [of] the car,
[and] asked a guy for some drugs or something." "When the
guy went and got the drugs or whatever, when he was coming
back towards [Lighty], [Lighty] snatched him, pulled out his
gun, made the dude get in the car, and they pulled off . . . ."
(J.A. 415-20.)

On January 30, 2002, less than one month after the Hayes
kidnapping and murder, Lighty and Wilson were involved in
5
Neither Phauls nor Coles could recall whether Flood got back into the
vehicle after stopping at Keating Street. However, they both agreed that
Flood was not in the vehicle when they arrived back at Phauls’ home.
6
Phauls testified that Wilson did not own a pager at that time, and For-
rest testified that Hayes owned a pager with a description consistent with
the pager Phauls saw Wilson with that evening.
7
CW is referred to herein pseudonymously.
 UNITED STATES v. WILSON 7
a drive-by shooting on Afton Street in Temple Hills, Mary-
land ("the Afton Street Shooting"), which resulted in the death
of Antoine Newbill. Over Wilson’s objection, the Govern-
ment introduced evidence of the Afton Street shooting,
including Wilson’s confession to CW to having participated
in the event, eyewitness testimony regarding the shooting, and
ballistics evidence regarding the firearms used in the shoot-
ing. That evidence is described in greater detail below and in
the Lighty opinion.

Lighty was arrested on the evening of January 31, 2002. At
the time of his arrest, he was carrying a .380 caliber handgun.
Phauls testified that Wilson told her of Lighty’s arrest and that
he said Lighty had been arrested with "the gun that he used
to kill the two boys with." (J.A. 198.) CW also testified that
after Lighty was arrested, Wilson told him the handgun
Lighty had been arrested with had "a body or two on it" from
"Afton [Street]" and "Eighth Street." (J.A. 415-16.)

Brett Mills, an FBI firearms examiner, analyzed the two
.380 caliber shell casings recovered from the Hayes murder
scene, a .380 caliber shell casing recovered from the Afton
Street Shooting scene, and the handgun seized from Lighty at
the time of his arrest. Based on his analysis, Mills was able
to conclude that the shell casing recovered from the Afton
Street Shooting was fired by Lighty’s .380 caliber handgun
(to the exclusion of all other firearms). Mills also concluded
that the two .380 caliber shell casings recovered from the
Hayes murder scene shared numerous rifling characteristics in
common with shell casings from Lighty’s .380 caliber hand-
gun. However, he could not conclude to the exclusion of all
other firearms that Lighty’s handgun had fired the shell cas-
ings recovered from the Hayes murder scene. Similarly, while
bullets retrieved from Hayes’ body were consistent with and
possessed similar rifling characteristics to bullets fired from
8 UNITED STATES v. WILSON
Lighty’s gun, Mills could not make a definitive conclusion
that Lighty’s handgun had fired those bullets.8

Dr. Laron Locke, a medical examiner, examined Lighty’s
.380 caliber handgun and concluded that one of the abrasions
found on Hayes matched the barrel portion of Lighty’s hand-
gun and that another patterned abrasion matched the clip
release of the handgun. Dr. Locke concluded these abrasions
were consistent with Hayes being struck by Lighty’s .380 cal-
iber handgun.

II.

On appeal, Wilson raises four issues relating to the conduct
of his trial and sentencing hearing, three of which warrant dis-
cussion.9 First, he asserts the district court erred in allowing
the Government to introduce evidence of an unrelated crime
— the Afton Street Shooting — during the trial. Second, he
contends the Government violated his due process rights by
making certain prejudicial statements during closing argu-
ment. Third, Wilson claims he is entitled to a new sentencing
hearing because the district court improperly relied on a writ-
ten statement he made to investigators. We address each issue
in turn.
8
On cross-examination, Mills conceded that it was possible that as many
as twenty-four handgun manufacturers made handguns that produce simi-
lar rifling characteristics as the one Lighty possessed at the time of his
arrest.
9
Wilson also contends the district court erred in considering acquitted
conduct as part of its sentencing decision. He acknowledges, however, that
his argument is foreclosed by precedent of the Supreme Court and this
Circuit, and states that he is raising the issue only for preservation pur-
poses. (Appellant’s Br. 43-44.) Because the Supreme Court rejected a sim-
ilar claim in United States v. Watts, 519 U.S. 148 (1997) (per curiam), and
Watts remains binding precedent on this Court, United States v. Grubbs,
585 F.3d 793, 798-99 (4th Cir. 2009), the district court did not err in rely-
ing on acquitted conduct when sentencing Wilson.
 UNITED STATES v. WILSON 9
A.

Wilson first argues the district court erred in allowing the
Government to introduce evidence of the Afton Street Shoot-
ing, which he maintains should have been excluded under
Federal Rule of Evidence 404(b) as evidence of "other wrongs
or acts solely to prove [Wilson’s] bad character." We review
the district court’s admission of evidence for an abuse of dis-
cretion. United States v. Basham, 561 F.3d 302, 325 (4th Cir.
2009). "A district court abuses its discretion when it acts arbi-
trarily or irrationally, fails to consider recognized factors con-
straining its exercise of discretion, relies on erroneous factual
or legal premises, or commits an error of law." United States
v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007).

1.

Prior to trial, Wilson moved in limine to exclude evidence
of the Afton Street Shooting. The district court denied the
motion without prejudice, concluding that Wilson’s state-
ments that Lighty had been arrested with the firearm used in
both the Hayes and Afton Street Shootings was "enough to
get the [Afton Street Shooting evidence] in. And it’s not even
a 404(b) issue at that point. It’s strictly a matter of an impor-
tant part of the first crime being identified two, three weeks
later in another context." (J.A. 126.)

As noted earlier, both Phauls and CW testified at trial that
Wilson told them the .380 caliber handgun in Lighty’s posses-
sion when he was arrested had been used to kill two males,
one of whom was Hayes. During the course of CW’s testi-
mony, the Government elicited additional information regard-
ing the Afton Street Shooting. CW testified that Wilson told
him that he "and a couple of guys went [to Afton Street] and
started shooting" "at a crowd of guys down there" in order to
confront a man known as "Boo-Boo." According to what Wil-
son told CW, "they pulled up, [Wilson’s] window was rolled
down and . . . he started firing at Boo-Boo." Wilson claimed
10 UNITED STATES v. WILSON
to have "two guns in his hand," and CW recalled that Wilson
thought "one of them was probably a .25 or a .380, and the
other one was probably a 9-millimeter." (J.A. 411-13.)

Thomas Hart, one of the Afton Street Shooting victims,
then testified that he, Newbill, and a man known as "Boo-
Boo" were standing on the street when a Ford Taurus drove
by and shots were fired at them from the front passenger side
and the rear of the car. Boo-Boo was not injured. Hart was
shot in the foot, the arm, and the chest, and Newbill died as
a result of gunshot wounds he received.

After CW and Hart’s testimony, but before the introduction
of other evidence regarding the Afton Street Shooting, Wilson
renewed his objection to the admission of any evidence of the
Afton Street Shooting. The district court again overruled the
objection, but gave the following limiting instruction:

You have heard testimony about the shooting of
Anthony Newbill on Afton Street. You are instructed
that Mr. Wilson, the defendant in this case, is not
charged with that offense and you may not consider
that evidence to indicate that Mr. Wilson has a pro-
pensity to commit crimes or is otherwise a bad char-
acter.

The evidence of the Newbill murder may be con-
sidered by you in this case only insofar as it may
indicate Mr. Wilson’s knowledge of the weapon
used in the Hayes kidnapping and Mr. Wilson’s
presence and involvement in the Hayes kidnapping.

(J.A. 520-21.)

The Government then called Marlon Hines, who lived off
of Afton Street and was in his home the day of the shooting,
as a witness. Hines described Hart, Newbill, and Boo-Boo
entering his home after the gunshots were fired. Newbill told
 UNITED STATES v. WILSON 11
Hines he could not catch his breath and that he thought he was
shot. Hines testified that Newbill died in his (Hines’) home
shortly thereafter. Hines also described an incident a day or
two before the shooting. He and Newbill were driving
together on Afton Street when Hines observed Boo-Boo, Wil-
son, Lighty, and another man engaged in a heated argument.

Mills, the FBI ballistics expert, testified concerning similar-
ities between the .380 caliber shell casings retrieved from the
scene of the Afton Street Shooting and the Hayes murder bal-
listic evidence. In addition, he testified that the .380 caliber
handgun Lighty had on his person at the time of his arrest
conclusively matched shell casings retrieved from the scene
of the Afton Street Shooting.

During the final jury instructions, the district court reiter-
ated its limiting instruction with regard to the Afton Street
Shooting evidence:

Now you’ve heard testimony about the shooting of
Anthony Newbill on Afton Street. You are instructed
that the defendant, Lorenzo Anthony Wilson, is not
charged with that offense in this case. You may not
consider that evidence to indicate that Wilson has a
propensity to commit crimes or is otherwise a bad
character.

The evidence of the Newbill murder may be con-
sidered by you in this case only insofar as it may
indicate the defendant’s knowledge of the weapon
that was used in the Eric Hayes kidnapping and inso-
far as it may indicate the defendant’s presence at and
involvement in Eric Hayes’ kidnapping.

(J.A. 719-20.)
12 UNITED STATES v. WILSON
2.

Wilson challenges the admission of all of the Afton Street
Shooting evidence at his trial.10 He contends this evidence is
"classic propensity evidence" and should have been excluded
under Rule 404(b) and Rule 403. He asserts evidence of the
Afton Street Shooting was not necessary to provide context to
Wilson’s statements connecting Lighty’s .380 caliber hand-
gun to the Afton Street Shooting and Hayes’ shooting because
those statements are only relevant to the extent they showed
Wilson’s knowledge of the firearm’s use in Hayes’ murder.
Wilson further asserts that the Afton Street Shooting evidence
was not necessary to establish identity because the identity of
Hayes’ shooter (Lighty) was not in dispute during Wilson’s
trial. Lastly, he contends the Afton Street Shooting evidence
was unfairly prejudicial because it placed Wilson at the center
of a drive-by shooting wholly unrelated to the Hayes murder.
Accordingly, he contends the evidence impermissibly "invited
the jury to infer that Wilson was more likely" to have partici-
pated in the Hayes kidnapping based on his role in this other
crime.

3.

Federal Rule of Evidence 404(b) states, in relevant part:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may, how-
10
Wilson does not argue that the district court could not consider the
Afton Street Shooting evidence at sentencing, and indeed would be fore-
closed from arguing so under the precedent of the Supreme Court and this
Circuit. See Watts, 519 U.S. at 157 (holding that uncharged conduct may
be considered at sentencing when that conduct is proven by a preponder-
ance of the evidence); Grubbs, 585 F.3d at 799 ("[A] sentencing court
may consider uncharged . . . conduct in determining a sentence, as long
as that conduct is proven by a preponderance of the evidence."). Our
review is thus limited to its admission at trial.
 UNITED STATES v. WILSON 13
ever, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or acci-
dent . . . .

Importantly, Rule 404(b) is "an inclusive rule, admitting all
evidence of other crimes or acts except that which tends to
prove only criminal disposition." United States v. Young, 248
F.3d 260, 271-72 (4th Cir. 2001) (internal quotation marks
omitted). We have adopted a four-prong test for assessing the
admissibility of evidence under Rule 404(b): (1) it must be
relevant to an issue other than character; (2) it must be neces-
sary to prove an element of the crime charged; (3) it must be
reliable; and (4) it must be admissible under Rule 403, in that
the probative value of the evidence must not be substantially
outweighed by its prejudicial effect. United States v. Queen,
132 F.3d 991, 995 (4th Cir. 1997); see also United States v.
Hines, 717 F.2d 1481, 1489 (4th Cir. 1983) (test applies to
acts occurring after the charged conduct).

Rule 404(b) does not limit the admission of evidence of
acts intrinsic to the crime charged. United States v. Chin, 83
F.3d 83, 87 (4th Cir. 1996). "Other . . . acts are intrinsic when
they are inextricably intertwined or both acts are part of a sin-
gle criminal episode or the other acts were necessary pre-
liminaries to the crime charged." Id. at 88 (citation and
internal quotation marks omitted). "[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. Edouard,
485 F.3d 1324, 1344 (11th Cir. 2007) (citation and internal
quotation marks omitted).

The Afton Street Shooting evidence was not admissible as
an intrinsic act because it was not inextricably intertwined to
Hayes’ kidnapping and murder.11 That evidence was not an
11
The Government does not contend, nor could it, that the Hayes kid-
napping and shooting and the Afton Street Shooting were part of a single
14 UNITED STATES v. WILSON
"integral and natural part of" any "witness’s account[ ] of the
circumstances surrounding" Hayes’ kidnapping and murder.
The only connection between the two shootings occurred in
CW’s testimony relating Wilson’s statements that the .380
caliber handgun in Lighty’s possession at his arrest had been
used to kill two men, one of whom was Hayes.12 Although
some of the information regarding the Afton Street Shooting
may have been a "natural" part of CW’s explanation of what
Wilson’s statement meant, it was by no means an integral part
of CW’s testimony. The salient evidence at the trial was
CW’s testimony about Wilson’s knowledge of what firearm
had been used to shoot Hayes. CW’s protracted explanation
of the second shooting to which Wilson referred, which
included Wilson’s confession to participating in the Afton
Street Shooting, a description of that event, and CW’s identi-
fication of the individuals involved in the earlier confronta-
tion, was not integral to his testimony regarding Wilson’s
statements connecting Lighty’s gun to the two shootings. Any
"integral" part of CW’s testimony about the Afton Street
Shooting ended once he recited Wilson’s statement that the
same gun was used in both instances.

The testimony of Hart, Hines, and the law enforcement per-
sonnel was even more tangential than CW’s testimony. Their
testimony did not connect the Afton Street Shooting and the
Hayes kidnapping and murder because no connection existed.
The events occurred at different times, at different places, and
involved completely different motives. These witnesses pro-

criminal episode or that the former was a necessary preliminary to the lat-
ter. Instead, the Government’s argument that the Afton Street Shooting
evidence constitutes an "intrinsic act" is limited to the contention that the
incidents were inextricably intertwined.
12
Although Phauls also testified that Wilson told her Lighty’s .380 had
been used to shoot "the two boys," her testimony was limited to the Hayes
shooting and she did not provide any testimony about the Afton Street
Shooting.
 UNITED STATES v. WILSON 15
vided absolutely no testimony about the Hayes kidnapping
and murder.

The Afton Street Shooting evidence was not inextricably
intertwined with the Government’s case against Wilson for
the Hayes kidnapping and murder. See United States v. Ste-
phens, 571 F.3d 401, 409-10 (5th Cir. 2009) (holding that evi-
dence that co-defendants acted together to create and register
a website patterned after the official Red Cross website was
not intrinsic to the charged crimes of identity theft and wire
fraud stemming from the creation and use of a website pat-
terned after the official Salvation Army website); United
States v. Eckhardt, 466 F.3d 938, 946 n.4 (11th Cir. 2006)
(holding that evidence of uncharged threatening telephone
calls made during 2003 were not inextricably intertwined with
the charged offense of making threatening phone calls
between 1997 and 1999 because the defendant’s "crime could
be fully presented via the interstate phone calls he made" dur-
ing the charged time frame).

We now turn to whether the Afton Street Shooting evi-
dence was admissible into evidence under the four-part test
for Rule 404(b). Cf. Queen, 132 F.3d at 995. The Government
posits that the Afton Street Shooting evidence was relevant
and necessary because it explained and substantiated Wilson’s
"two bodies" statements to Phauls and CW, and thus showed
Wilson’s "knowledge, intent and identity as a participant" in
the Hayes kidnapping and murder. Assuming, without decid-
ing, that Wilson’s statements make the Afton Street Shooting
evidence relevant, we conclude that the admission of this evi-
dence was not necessary to prove an element of the crime
charged.13 The admission of the Afton Street Shooting evi-
dence was therefore error.
13
While portions of CW’s testimony about the Afton Street Shooting
were relevant to explaining Wilson’s "two bodies" comment, the relevance
of his remaining testimony, as well as the evidence provided by other wit-
nesses, is less clear and, in some cases, non-existent. However, we need
not analyze the relevance of each piece of evidence because of our conclu-
sion regarding the necessity prong for admission under Rule 404(b).
16 UNITED STATES v. WILSON
"Evidence is necessary where, considered in the light of
other evidence available to the government, it is an essential
part of the crimes on trial, or where it furnishes part of the
context of the crime." Id. at 998 (internal citations and quota-
tion marks omitted). The only information from the Afton
Street Shooting evidence probative to Wilson’s participation
in the charged offenses was his knowledge that Lighty’s .380
caliber handgun had been used to shoot Hayes. Wilson’s
knowledge that Lighty’s weapon had also been used in an
unrelated shooting does not add anything to that evidence.
Moreover, because the Government had Lighty’s .380 caliber
handgun, it could — and did — introduce ballistics evidence
supporting the conclusion that the firearm had indeed been
used in the Hayes kidnapping.14 And, as discussed below, the
Government had Wilson’s confessions to Phauls and CW
admitting his participation in the Hayes kidnapping and mur-
der, as well as a host of other circumstantial evidence show-
ing that he participated in that offense. It cannot be said, then,
that the Afton Street Shooting evidence was "necessary" to
the Government’s case against Wilson. There was simply
nothing about the Afton Street Shooting evidence that was "an
essential part of the crimes on trial," particularly in view of
the mountains of non-Rule 404(b) evidence introduced at
trial. Compare United States v. McCallum, 584 F.3d 471, 477
(2d Cir. 2009) (finding other acts evidence unnecessary where
14
This fact distinguishes the situation in the case at bar from United
States v. Higgs, 353 F.3d 281 (4th Cir. 2003). In the Higgs trial, the Gov-
ernment introduced evidence of a prior shooting involving a .38 caliber
handgun with similar rifling characteristics to the same caliber weapon
used in the kidnapping and murder of three women, but which was never
recovered. Id. at 290-91, 294. The Higgs court held that evidence of the
defendant’s participation in the prior shooting was properly introduced
under Rule 404(b) as a means to link the defendant to the same caliber
handgun that a co-defendant testified the defendant owned and retrieved
from his residence on the night of the charged murders. Id. at 312. In addi-
tion, because the gun used in the charged offense was never recovered, the
evidence regarding the prior shooting "served the necessary function of
proving [the defendant’s] identity as one of the murderers and his use of
the firearm in connection with the murders." Id.
 UNITED STATES v. WILSON 17
government presented "extensive" physical and testimonial
evidence on the same issue), with United States v. DiZenzo,
500 F.2d 263, 266 (4th Cir. 1974) (finding other acts evidence
necessary where that evidence "furnished more dependable
proof" than "sparse" intrinsic evidence). Because the Afton
Street Shooting evidence fails the "necessity" requirement for
admissibility under Rule 404(b), we need not analyze the
remaining requirements, as the district court abused its discre-
tion as a matter of law in admitting the evidence.

However, whether this error requires reversal of the judg-
ment depends upon whether admission of the Afton Street
Shooting evidence was harmless error. "Where error is
founded on a violation of Rule 404(b), the test for harmless-
ness is ‘whether we can say with fair assurance, after ponder-
ing all that happened without stripping the erroneous action
from the whole, that the judgment was not substantially
swayed by the error.’" United States v. Madden, 38 F.3d 747,
753 (4th Cir. 1994) (quoting United States v. Nyman, 639
F.2d 208, 211-12 (4th Cir. 1980)). "This inquiry is not
whether, absent the improperly admitted evidence, sufficient
evidence existed to convict." Id. Rather, the inquiry is
"whether we can say that we believe it highly probable that
the error did not affect the judgment." Id. (citation and inter-
nal quotation marks omitted).

Having reviewed the record of Wilson’s trial, we conclude
with fair assurance that the admission of the Afton Street
Shooting evidence did not affect the judgment against him.
The evidence of Wilson’s participation in the conspiracy to
kidnap Hayes was overwhelming. Wilson confessed to his
role in the kidnapping to two individuals, Phauls and CW.
Their testimony about Wilson’s confession was substantially
the same, and was consistent with other evidence in the
record. Wilson admitted to Phauls and CW that he drove
Flood’s vehicle during the course of the kidnapping, which
began when Lighty grabbed someone named "Eazy" on
Eighth Street. During Wilson’s confession to Phauls, a text
18 UNITED STATES v. WILSON
pager started to ring, and Wilson — who did not own a pager
— looked at it, said, "[T]he guy wasn’t lying, his name is
Eazy," and Phauls observed that the name "Eazy" was scroll-
ing across the screen. Forrest corroborated that Hayes had
been kidnapped off of Eighth Street, that Hayes’ nickname
was "Eazy," and that Hayes owned a two-way pager. Wilson
said that Lighty shot Hayes, and that Lighty had been arrested
with the firearm he used to shoot Hayes. Ballistics evidence
indicated the .380 caliber handgun Lighty possessed at the
time he was arrested shared numerous rifling characteristics
with the firearm used to shoot Hayes.

In addition to testifying about Wilson’s confession, Phauls
also provided a first-hand account of Wilson’s actions later on
the evening of Hayes’ death. Phauls and her friend Coles tes-
tified that Wilson called Phauls in the time frame of the kid-
napping and asked her to pick him up off of Iverson Street.
Wilson did not own a cell phone, and Phauls did not know
Flood or recognize the calling number. Telephone records
confirmed that numerous telephone calls were placed between
Phauls’ and Flood’s cell phones at 8:43, 8:44, 8:51, 8:54,
8:59, 9:02, and 9:03 p.m. on the night of the Hayes kidnap-
ping and murder.15

Upon arriving at Iverson Street as the 9:03 p.m. call was
ending, Phauls and Coles observed Lighty, Flood, and Wilson
walking away from a house on Iverson Street.16 Neither
woman knew Flood, but he was introduced by his nickname
"Junebug." The women observed that Lighty carried a pair of
Nike shoes that matched the description of the shoes Hayes
was wearing the evening of his murder; in addition, Lighty
had blood on his T-shirt. While in the car, Lighty, Flood, and
15
Davis placed the 911 call reporting Hayes’ shooting at 8:50 p.m.
16
Flood’s girlfriend at the time, Marshall, later accompanied Flood to
that same house, where Flood retrieved his Lincoln Continental and drove
it to his parent’s home in North Carolina. Forensic evidence proved that
Hayes had been in the trunk and back seat of Flood’s Lincoln.
 UNITED STATES v. WILSON 19
Wilson discussed having "done something bad or killed some-
one." At Wilson’s direction, Phauls drove to the same block
of Keating Street where Scott had earlier seen an older model
car pull up and voices inquire, "[I]s this him?" When Phauls
stopped her vehicle, the three men exited the car and checked
the ground for blood.

Against this evidence, we are confident Wilson’s convic-
tion "was not substantially swayed by" the errant admission
of the Afton Street Shooting evidence. Two additional factors
lend further support to this conclusion, the jury instructions
and limited use of the evidence. The district court issued two
cautionary instructions limiting how the jury was to use the
Afton Street Shooting evidence. Those instructions expressly
informed the jury that it could not infer from the Afton Street
Shooting evidence that Wilson had "a propensity to commit
crimes or is otherwise a bad character." In addition, the
instructions informed the jury that the evidence was relevant
only to establish Wilson’s "presence and involvement in"
Hayes’ kidnapping and murder. During her closing argument,
the Assistant United States Attorney ("AUSA") referred to the
Afton Street Shooting on three separate, but brief, occasions
during a closing argument that spans almost sixty pages of
trial transcript. And on two of those occasions, she reminded
the jury of the limited context in which the jury should con-
sider the Afton Street Shooting, connecting the evidence to
Wilson’s "two bodies" statement and the forensics evidence
which tended to support the veracity of that statement. The
Government’s use of the Afton Street Shooting evidence was
thus brief, and directed the jury’s attention to a very narrow
conclusion to be drawn from it.

As we recognized and cautioned with regard to Lighty, the
admission of evidence of an uncharged murder is undoubtedly
prejudicial. See, e.g., Chin, 83 F.3d at 88. Even assuming
some information about the Afton Street Shooting was rele-
vant or provided context to CW’s testimony, the testimony of
Hart and Hines, which detailed the Afton Street Shooting and
20 UNITED STATES v. WILSON
its aftermath, was not. Moreover, none of the Afton Street
Shooting evidence was necessary to prove an element of the
charged crime. However, given the strength of the Govern-
ment’s case and the extensive evidence of Wilson’s guilt, the
AUSA’s limited use of the evidence during the trial, and the
court’s cautionary instructions to the jury, we are satisfied that
the erroneous introduction of the Afton Street Shooting did
not affect the jury’s verdict.17

B.

Wilson next contends the district court erred in allowing
the Government to make improper statements during closing
argument, and thereby denied him a fair trial. He points to
three statements made by the AUSA that he asserts misstated
the law of conspiracy: In describing what Wilson did "to help
make this crime succeed," the AUSA recounted Phauls’ testi-
mony from Wilson "in the minutes, seconds of" Hayes’ death
"to get him with his co-conspirators out of there." (J.A. 749.)
The AUSA also noted that "[c]o-conspirators are agents of
one another," and explained that was "why [the jury] hear[d]
all the testimony about the acts of the other people in this
case. You heard about Mr. Flood’s acts. What did he do after-
ward? He drove by the crime scene, according to Tynika Mar-
shall, right?" (J.A. 748.) And in rebuttal, the AUSA described
Phauls’ and Coles’ testimony that they picked up Lighty,
Flood, and Wilson and that one of the men directed them to
Keating Street. Acknowledging that Coles’ testimony as to
which man directed Phauls to drive to Keating Street differed
during the trial and at the Grand Jury, the AUSA argued "[i]t
doesn’t matter. They [Lighty, Flood, and Wilson] are co-
17
As in Lighty, the AUSAs exercised poor judgment in putting the Afton
Street Shooting evidence before the jury in the guilt phase of Wilson’s
trial. We explained above that such evidence was not necessary and its use
pointlessly introduced error into the case. In different circumstances, such
a misjudgment by the prosecutors could lead to the reversal of an other-
wise valid conviction. We caution the U.S. Attorney’s office to exercise
more prudent judgment in the future.
 UNITED STATES v. WILSON 21
conspirators." (J.A. 825.) Wilson argues these statements
wrongly suggested that he could be convicted of conspiracy
to kidnap based on actions that occurred after Hayes had been
killed and thus misstated the law of conspiracy, thereby
depriving him of substantive due process and his right to a
fair trial.18

Consistent with Supreme Court precedent, we have recog-
nized that a prosecutor’s improper argument may "so infect[ ]
the trial with unfairness as to make the resulting conviction a
denial of due process." United States v. Wilson, 135 F.3d 291,
297 (4th Cir. 1998) (internal quotation marks omitted). In
determining whether remarks by the prosecutor during closing
argument violate a defendant’s due process rights, the court
must consider whether the remarks were, in fact, improper,
and, if so, whether the improper remarks so prejudiced the
defendant’s substantial rights that the defendant was denied a
fair trial. Id. An assessment of prejudice requires the court to
consider: (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 intro-
duced 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. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002).
18
In Grunewald v. United States, 353 U.S. 391 (1957), the Supreme
Court noted, "a vital distinction must be made between acts of conceal-
ment done in furtherance of the main criminal objectives of the conspir-
acy, and acts of concealment done after these central objectives have been
attained, for the purpose only of covering up the crime." Id. at 405. The
latter demonstrates "nothing more than that the conspirators do not wish
to be apprehended," and are not actions done in furtherance of the conspir-
acy. Id. at 406. Wilson thus maintains that acts occurring after Hayes’
death were committed after the "main objective of the conspiracy" to kid-
nap ended and therefore could not be used as proof that Wilson partici-
pated in the conspiracy.
22 UNITED STATES v. WILSON
Read in context, the AUSA’s statements do not satisfy this
high burden and did not deny Wilson a fair trial. Wilson’s
argument takes these statements out of context, isolating them
not only from the AUSA’s surrounding remarks, but also
from the other crimes for which Wilson was being tried.
Although Wilson was only convicted of conspiracy to kidnap,
he was tried on four additional charges, all of which were sub-
stantive criminal offenses. Indeed, the first two of the forego-
ing statements Wilson challenges occurred while the AUSA
was reviewing theories of liability (the Pinkerton doctrine19
and "aiding and abetting") relevant to the substantive, i.e.,
non-conspiracy charges. The AUSA’s statements were not
misstatements as to the law of conspiracy because they did
not address how Wilson could be held liable for participating
in the conspiracy. In describing the Pinkerton theory, the
Prosecutor noted that the doctrine made sense because "[c]o-
conspirators are agents of one another" and that was why the
jury heard evidence about what the other members of the con-
spiracy did. (J.A. 747-48.) Next, the AUSA addressed liability
as "an aider and abettor," and described that under that theory
Wilson could be convicted of a substantive offense committed
by a principal if he had "willfully and knowingly [sought] by
some act to make the crime succeed." The crime the AUSA
referred to was not conspiracy, but rather the substantive
offenses delineated in Counts I, III, IV, and V. In fact, the
AUSA specifically excluded the conspiracy charge from her
description, noting her reference was "not the conspiracy
[charge], because that’s kind of a different legal concept
. . . ." (J.A. 749.) Contrary to Wilson’s argument, the AUSA
did not assert that post-conspiracy events were sufficient to
convict Wilson of the conspiracy to kidnap.20
19
The theory of Pinkerton liability permits fellow conspirators to be
held liable for substantive offenses committed by a co-conspirator in fur-
therance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 646-
47 (1946).
20
We further note that these statements regarding theories of liability for
the substantive offenses were not prejudicial to Wilson because the jury
did not convict him of any substantive criminal offense; he was acquitted
of all those charges.
 UNITED STATES v. WILSON 23
The third statement Wilson challenges is the AUSA’s
explanation for a purported inconsistency in the testimony
about which passenger told Phauls to drive to Keating Street.
The AUSA stated that it did not matter which man told Phauls
where to drive because the men were "co-conspirators." (J.A.
824-25.) The comment does not, as Wilson contends, improp-
erly argue that he could be guilty of conspiracy based on
events after Hayes’ death. Rather, the AUSA’s statement
responded to Wilson’s closing argument drawing attention to
the inconsistency and suggested a reason short of fabricated
testimony to explain it. The AUSA’s fleeting mention of the
men being "co-conspirators" was not the focus of her discus-
sion at that time, as she immediately turned to an explanation
of how individuals often recollect details of the same events
differently.

The AUSA’s closing arguments did not misstate the law of
conspiracy or otherwise mislead the jury, nor did it prejudice
Wilson’s trial so as to deny him due process. Accordingly,
there was no error by the district court.

C.

Wilson next contends that his sentence should be vacated
and the case remanded for resentencing because his sentence
was based, in part, on what he contends was an involuntary,
and therefore inadmissible, statement he made to civilian
investigators. Approximately eighteen months after the Hayes
kidnapping, FBI Agent G. Joseph Bradley and Prince
George’s County Police Department detectives Sean Chaney
and Michael Straughan, questioned Wilson at Schofield Bar-
racks, Honolulu, Hawaii, where Wilson was then stationed
with the United States Army. Prior to interrogating him, the
investigators read aloud to Wilson an Advice of Rights form
that informed Wilson, inter alia, of his right to remain silent.
They then had Wilson read aloud the paragraph describing
"waiver of rights" in order to ascertain that Wilson read and
understood English. Wilson signed the form indicating that he
24 UNITED STATES v. WILSON
understood his rights; he then proceeded to answer the inves-
tigators’ questions and set forth his account of the Hayes kid-
napping and murder in a hand-written statement ("written
statement" or "statement").

Prior to trial, Wilson moved to suppress the written state-
ment, arguing it was involuntarily made. After an evidentiary
hearing, the district court held that the statement was volun-
tarily made and admissible at trial. Despite the court’s ruling,
the Government elected not to introduce the written statement
into evidence against Wilson at trial based on its belief that
portions of the statement were untruthful.21

During the sentencing hearing, the parties disputed what
offense level the conspiracy conviction constituted under the
Sentencing Guidelines. If Wilson was held responsible for a
conspiracy to kidnap resulting in Hayes’ death the offense
level would be higher than if he was simply held responsible
for a conspiracy to kidnap. The parties disagreed as to the
extent of Wilson’s role in the conspiracy to kidnap and what
evidence the district court could consider in resolving this dis-
pute. Both the Government and Wilson referred to the written
statement in order to bolster their respective positions, with
the Government contending it showed Wilson’s involvement
throughout the conspiracy, and Wilson contending it showed
he only played a limited role late in the course of the conspir-
acy.

The district court referred to the written statement as part
of its explanation for concluding Wilson could be held
responsible for Hayes’ death and that the offense level should
be set at the higher level. The court observed that it did not
"accept everything the defendant says [in the written state-
ment] as gospel on this. The things that are clearly incriminat-
21
Part of the written statement was consistent with the evidence ulti-
mately presented against Wilson at trial, and portions of the statement are
inconsistent. (J.A. 48-49, 110-11.)
 UNITED STATES v. WILSON 25
ing to him, I’m inclined to accept. The other items in which
I find him incriminated are really supplied by other people."
(J.A. 881-82.) Expounding on this view, the Court stated:

I think [Wilson] clearly was trying to position him-
self to be out of the murder when he gave the state-
ment, but he was — as the Government says, he
stepped directly into the conspiracy when he did that
. . . but the reality is that all these people are telling
different stories. . . . I mean they’re all trying to pass
the buck here in terms of where they are.

(J.A. 882.)

Wilson asserts the district court erred in relying on the writ-
ten statement during sentencing because it was involuntarily
made as a matter of law. He contends he could not waive his
right to remain silent, as he was under a direct military order
to answer the investigators’ questions. Relying on two United
States Court of Military Appeals cases — United States v.
Dohle, 1 M.J. 223 (1975), and United States v. Duga, 10 M.J.
206 (1981) — he asserts that when a superior commands a
subordinate to answer a question, the subordinate "may
rightly be regarded as [having been] deprived of his freedom
to answer or to remain silent." He further contends the civilian
investigators’ separate warning of Wilson’s constitutional
rights had no effect on that military order requiring him to
make a statement because a civilian cannot countermand a
military order.

We review the district court’s factual findings underlying
a motion to suppress for clear error and its legal determina-
tions de novo. United States v. Perkins, 363 F.3d 317, 320
(4th Cir. 2004).

Wilson’s argument lacks merit. The two cases he relies on,
Dohle and Duga, are inapposite, addressing a military
accused’s rights under Article 31 of the Code of Military Jus-
26 UNITED STATES v. WILSON
tice rather than his constitutional right to remain silent. More-
over, they involve the rights of a military accused when he is
questioned by other members of the military rather than when
he is questioned by non-military investigators, as occurred
here. Dohle, 1 M.J. at 226 ("[W]e hold that where a person
subject to the Code interrogates — questions — or requests
a statement from an accused or suspect over whom the ques-
tioner has some position of authority of which the accused or
suspect is aware, the accused or suspect must be advised in
accordance with Article 31."); Duga, 10 M.J. at 208-12. Nei-
ther case supports the broad proposition Wilson advances
regarding the legal capacity of a member of the military to
waive his constitutional right to silence in questioning by
civilian authority. Wilson does not cite to — nor did we find
— any other authority that would support the broad proposi-
tion he advances.

The record supports the district court’s conclusion that Wil-
son’s statement was voluntarily made after the civilian author-
ities informed Wilson of his constitutional right to remain
silent. At the hearing on the motion to suppress, Wilson testi-
fied that he "believe[d] [he was] being ordered to speak to the
men that were in that room that day." However, the district
court concluded that Wilson’s testimony was not credible, and
its determination was not clearly erroneous. No other evi-
dence in the record supports Wilson’s self-serving testimony
or the conclusion that Wilson’s commanding officer ordered
him not just to "show up" at the interview, but also specifi-
cally to provide a statement to the investigators.

Moreover, the circumstances surrounding the interview
show that the civilian authorities informed Wilson of his right
to remain silent, and he voluntarily waived that right. Agent
Bradley and Officer Chaney testified that Wilson was not
handcuffed prior to or during the interview; no military per-
sonnel were present during the interview. Both described Wil-
son as being "eager" to tell his side of the story, and that
Agent Bradley had to stop Wilson from speaking in order to
 UNITED STATES v. WILSON 27
Mirandize him prior to speaking with him. Agent Bradley
read Wilson "the FBI’s version of the Advice of Rights"
"word for word." (J.A. 52.) In addition, at Agent Bradley’s
request, Wilson read the Waiver of Rights paragraph aloud.
Wilson then signed the Advice of Rights form, spoke with the
investigators, and provided the written statement. On this
record, the district court did not err in determining Wilson
knowingly and voluntarily waived his right to remain silent.
Accordingly, the written statement was admissible, and the
district court did not err in using it in determining Wilson’s
sentence.

III.

Wilson contends the district court erred in denying his
motion for a new trial based on newly-discovered evidence
and a separate alleged Brady22 violation. Federal Rule of
Criminal Procedure 33 authorizes motions for a new trial
based on such evidence, permitting district courts to "vacate
any judgment and grant a new trial if the interest of justice so
requires." Such motions should be awarded, "sparingly," as "a
jury verdict is not to be overturned except in the rare circum-
stance when the evidence ‘weighs heavily’ against it." United
States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006) (quoting
United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003)).

We review the district court’s denial of a motion for a new
trial under an abuse of discretion standard. Perry, 335 F.3d at
320. In so doing, we "may not substitute [our] judgment for
that of the district court; rather, we must determine whether
the court’s exercise of discretion, considering the law and the
facts, was arbitrary or capricious." United States v. Fulcher,
250 F.3d 244, 249 (4th Cir. 2000) (quoting United States v.
Mason, 52 F.3d 1286, 1289 (4th Cir. 1995)).
22
Brady v. Maryland, 373 U.S. 83 (1963).
28 UNITED STATES v. WILSON
A.

Wilson moved for a new trial based on an alleged Brady
violation. He asserts the Government unlawfully withheld a
copy of police notes summarizing Lighty’s statements to the
police following his January 31, 2002 arrest.23 At the time of
his arrest, Lighty was in possession of a .380 firearm; the
police notes indicate that Lighty stated he "shot the [.380] one
time in the air" during the Newbill shooting. Wilson posits
that he was entitled to the police notes as Brady material
because Lighty’s statement contradicted CW’s testimony that
Wilson told him he had shot the .380 during the Newbill
Shooting. Wilson asserts that in addition to using the state-
ment to impeach CW’s testimony, he could have used
Lighty’s statement to argue against the admission of ballistics
evidence connecting the .380 to the Newbill and Hayes shoot-
ings. He contends that Lighty’s statement takes the .380 out
of Wilson’s hands and without being able to make that con-
nection, the Government would not have been able to intro-
duce evidence that the .380 was used during the Newbill
shooting and was consistent with the weapon used during the
Hayes kidnapping.

The district court denied Wilson’s motion for a new trial,
explaining that Lighty’s statement did "not exculpate Wilson
in any way" and was "not favorable to him in the Brady sense.
It doesn’t tend to show that he’s not guilty" of conspiracy to
kidnap. (Supp. J.A. 157-58.) In addition, the court noted there
were "no corroborating circumstances of the trustworthiness
of [Lighty’s statement" and the "result would not have been
different" "had this statement been made available to Wilson
at his trial." (Supp. J.A. 158-59.)

The district court did not abuse its discretion in denying
23
Although Wilson received a description of this document prior to trial,
he did not learn of Lighty’s actual statements until after his initial appeal
had been filed.
 UNITED STATES v. WILSON 29
Wilson’s motion.24 In Brady, the Supreme Court held "that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." 373 U.S. at 87. In
order to prove that the Government’s failure to tender certain
evidence constitutes a Brady violation, the burden rested on
Wilson to show that the undisclosed evidence was (1) favor-
able to him either because it is exculpatory, or because it is
impeaching; (2) material to the defense, i.e., "prejudice must
have ensued"; and (3) that the prosecution had materials and
failed to disclose them. United States v. Stokes, 261 F.3d 496,
502 (4th Cir. 2001).

Lighty’s statement is not Brady material because it is nei-
ther exculpatory nor material.25 Evidence is "exculpatory" and
"favorable" if it "may make the difference between conviction
and acquittal" had it been "disclosed and used effectively."
United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence
is "material" if it is "likely to have changed the verdict."
Moseley v. Branker, 550 F.3d 312, 318 (4th Cir. 2008).
24
In his reply brief, Wilson argues that because Brady violations are
reviewed de novo, the Court should review the district court’s denial of
his motion for a new trial based on an alleged Brady violation de novo
instead of for abuse of discretion. This argument is superfluous. Consistent
with United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001), motions
for a new trial based on an alleged Brady violation are reviewed for abuse
of discretion. It is an abuse of discretion for the district court to commit
a legal error — such as improperly determining whether there was a Brady
violation — and that underlying legal determination is reviewed de novo.
See United States v. Llamas, 599 F.3d 381, 391 (4th Cir. 2010) (quoting
United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007) ("A district
court abuses its discretion when it commits an error of law.")).
25
The Government contends that Wilson also failed to satisfy the third
requirement, because it did disclose the statement to Wilson. The district
court did not address this component or make any factual findings regard-
ing the sufficiency of what the Government did disclose to Wilson regard-
ing Lighty’s statements to the police. In light of our conclusion that the
other two requirements are not meant, we do not need to address this issue
and decline to do so.
30 UNITED STATES v. WILSON
Lighty’s statement fails on both fronts because it has no
bearing on Wilson’s participation in the Hayes kidnapping
and therefore provides no information relevant to the offense
Wilson was convicted of committing — conspiracy to kidnap
Hayes. The statement does not contradict any of the evidence
introduced to prove Wilson’s participation in the Hayes con-
spiracy. Moreover, Lighty’s statement does not diminish the
relevance of CW’s testimony that Wilson stated the .380 cali-
ber handgun had "two bodies" on it, thereby establishing Wil-
son’s knowledge that this firearm had been used in both the
Newbill and Hayes shootings. At most, Lighty’s statement
places the .380 in Lighty’s hands at some point during the
Newbill shooting.26 That evidence is not inconsistent with
Wilson’s participation in the conspiracy to kidnap Hayes. And
it is also consistent with CW’s testimony about Wilson’s con-
fession regarding the Newbill shooting because CW’s testi-
mony on who shot which firearm was equivocal, "From what
I recall, I think one of [the two guns CW fired during the
Newbill shooting] was probably a .25 or a .380, and the other
one was probably a 9-millimeter." (J.A. 412-13 (emphasis
added)). Even had Wilson possessed Lighty’s statement at
trial, it simply cannot be said that it would have effectively
made a difference in the verdict against Wilson.

Accordingly, Lighty’s statement was neither exculpatory
nor material, and it does not constitute Brady material. For
this reason, the district court did not abuse its discretion in
denying Wilson’s motion for a new trial based on the Govern-
ment’s failure to turn over the statement to Wilson prior to
trial.
26
Even if Lighty fired a shot in the air at the Afton Street Shooting, that
does not preclude Wilson from having fired shots as well.
 UNITED STATES v. WILSON 31
B.

1.

Wilson also moved for a new trial on the basis of newly-
discovered evidence in the form of testimony from JM27 as
well as CW’s recantation of parts of his trial testimony
regarding Lighty and Wilson. The district court held a joint
evidentiary hearing to determine the nature of this evidence
and consider both Lighty and Wilson’s motions for a new
trial. The evidence presented at that hearing is discussed in
greater detail in the Court’s opinion in Lighty at Section
II.M.1.

Briefly synopsizing that testimony, in July 2006, JM was
arrested on felony gun charges. JM was a frequent informant
for law enforcement officials, and at the time of his arrest he
made — for the first time — statements concerning the Hayes
kidnapping and murder alleging that Tony Mathis (rather than
Wilson, Lighty, and Flood) was the responsible party.28 JM
testified that on the evening of Hayes’ murder he and a friend
were walking down Iverson Street when they saw a few peo-
ple standing by a vehicle with its trunk open. He identified
Mathis and other individuals he recognized, but he did not see
Lighty or Wilson, both of whom he knew. As he approached
Mathis, JM saw there was a body in the trunk and decided to
leave the area. A few days later, JM saw Mathis and con-
fronted him about "acting stupid" and "wilding out" when he
saw him the evening of January 3. Mathis responded by stat-
ing, "You know, niggers think it’s sweet. They think they can
just holler at [a baby’s mother] and get away with it." JM took
this to mean Mathis was upset about Hayes "trying to holler
at [Mathis’ baby’s mother], so he set him up and killed him."
27
JM is referred to pseudonymously.
28
Mathis was not indicted in Hayes’ kidnapping and murder. Wilson,
Lighty, and Flood argued as part of their respective defenses that Mathis
and the other two co-indictees were culpable.
32 UNITED STATES v. WILSON
JM acknowledged, however, that Mathis never told him he
kidnapped or murdered Hayes. When questioned about Lighty
and Wilson’s participation, JM testified, "Your Honor, I’m
not saying that Mr. Lighty or . . . Mr. Wilson wasn’t a party
to what ultimately happened. I just know what I saw that
night. They weren’t there. And I know that Tony Mathis had
motive, all the motive in the world, to commit the crime."

In February 2009, CW was interviewed by Lighty’s coun-
sel and signed a declaration recanting parts of his trial testi-
mony against Lighty. He claimed that he had lied about
Lighty confessing to the shooting because he was facing seri-
ous charges. In the written statement CW signed at the time
of this interview, he stated, "The only other person who was
rumored to be involved in this case who spoke to me about
it directly was Tony Mathis." Because CW asserted his Fifth
Amendment rights, he did not testify at the evidentiary hear-
ing. George Steel, a private investigator for Lighty’s counsel,
was present during CW’s interview and testified regarding the
circumstances surrounding the statements. Steel testified that
CW said he was recanting because "it was the right thing to
do" and not because of any threats he had received as a result
of his trial testimony. When asked whether CW made any
comments recanting the testimony he gave against Wilson,
Steel stated, "I don’t remember making that conclusion or
asking any questions about that."

After considering this evidence and hearing the parties’
arguments, the district court denied Wilson’s motion. In
reaching its decision, the district court reiterated the proper
standard for a motion for a new trial and concluded that the
new evidence did not satisfy Wilson’s burden to meet that
standard. The court noted many reasons to doubt JM’s testi-
mony, including the length of time that had passed before he
came forward, the similarity between his testimony and previ-
ous testimony he had provided as an informant in unrelated
cases, and discrepancies between JM’s testimony and prior
statements he had made regarding what he claimed to have
 UNITED STATES v. WILSON 33
seen. Moreover, in light of the overwhelming evidence
against Wilson presented at trial, the district court concluded
that JM’s testimony would not have made a difference in the
outcome of the trial.

With regard to CW’s recantation, the district court deter-
mined that CW’s extensive prior statements had greater credi-
bility and corroborating evidence than his current recantation.
The court also noted threats CW had received as a result of
his testimony at the trials and the significant fact that Mathis
had died in the intervening period between CW’s trial testi-
mony and recantation.

2.

In determining whether a new trial should be granted on the
basis of newly discovered evidence, the Court uses a five-part
test:

(a) the evidence must be, in fact, newly discovered,
i.e., discovered since the trial; (b) facts must be
alleged from which the court may infer diligence on
the part of the movant; (c) the evidence relied on
must not be merely cumulative or impeaching; (d) it
must be material to the issues involved; and (e) it
must be such, and of such nature, as that, on a new
trial, the newly discovered evidence would probably
produce an acquittal.

Fulcher, 250 F.3d at 249 (quoting United States v. Curtis, 988
F.2d 1355, 1359 (4th Cir. 1989)). "Without ruling out the pos-
sibility that a rare example might exist, [the Court has] never
allowed a new trial unless all five elements were established."
Id. (citing United States v. Singh, 54 F.3d 1182, 1190 (4th Cir.
1995)).

With regard to the fifth prong, the "district court is required
to make a credibility determination as part of its probability-
34 UNITED STATES v. WILSON
of-acquittal" determination. United States v. Kelly, 539 F.3d
172, 189 (3d Cir. 2008). In making this determination, a dis-
trict court should focus on whether a jury probably would
reach a different result upon hearing the new evidence. Id. at
189. Of course, if the district court does not find a witness
credible, it follows that the district court would not find the
witness sufficiently persuasive to enable the district court to
conclude that witness testimony would probably produce an
acquittal at a new trial. Id. at 189 n.14. "To make a determina-
tion under this standard, the district court cannot view the
proffered testimony in a vacuum; it must weigh the testimony
against all of the other evidence in the record, including the
evidence already weighed and considered by the jury in the
defendant’s first trial." Id. at 189.

If a motion for a new trial is based on a witness’ recantation
of trial testimony, the motion should be granted only if the
court is "reasonably well satisfied" (1) that the testimony
given by a material witness was false; (2) the jury might have
reached a different conclusion without the false evidence; and
(3) the party seeking the new trial was surprised by the false
testimony and was unable to meet it or did not know of its fal-
sity until after trial. United States v. Lofton, 233 F.3d 313, 318
(4th Cir. 2000) (citing United States v. Wallace, 528 F.2d 863,
866 (4th Cir. 1976)). The failure to meet any one of the three
prongs is fatal. United States v. Carmichael, 726 F.2d 158,
159 (4th Cir. 1984). Post-trial recantations are "looked upon
with the utmost suspicion." United States v. Johnson, 487
F.2d 1278, 1279 (4th Cir. 1973) (citation and internal quota-
tion marks omitted).

3.

Wilson asserts the district court erred in determining that
JM’s testimony and CW’s recantation lacked credibility and
therefore did not satisfy the fifth prong ("would probably pro-
duce an acquittal") of the standard for granting a new trial. He
contends the district court improperly limited the scope of its
 UNITED STATES v. WILSON 35
review and weighed the proffered testimony in a vacuum
instead of considering it in light of the weak evidence pre-
sented against him at trial. Wilson also claims that the court
erred in refusing to evaluate whether the new evidence would
have affected the jury’s determination regarding Phauls’ cred-
ibility. And he asserts the court improperly disregarded the
incentive both Phauls and CW had to lie when it compared
their testimony at trial to the new evidence.

We disagree. In reviewing JM’s testimony and CW’s pur-
ported recantation, the district court properly found that nei-
ther was credible. As we observed when examining the
court’s decision on this issue in Lighty, there were numerous
inconsistencies between JM’s testimony at the evidentiary
hearing and earlier statements he made to investigators
regarding the events in question. Specifically, in a 2006 inter-
view with the police, JM stated "Tony Mathis was the
shooter" in Hayes’ murder, and that "after the murder,
[Mathis] kept the victim in the trunk and drove around and
showed his body to drug dealers in the Iverson Street Area."
JM claimed Mathis shot Hayes "because the victim had
approached Tony’s baby’s mother and tried to get her tele-
phone number." (Supp. J.A. 47.) Later, in December 2007,
FBI Agent Bradley interviewed JM regarding what he pur-
ported to know about Hayes’ kidnapping and murder. During
that interview, JM was "adamant" that the incident he
described occurred in the summer of 2003 or 2004 because it
was warm outside. JM claimed Mathis told him he killed
Hayes because Hayes had been "messing with his girl." And
JM described seeing Hayes’ body in a tan-colored Buick.
JM’s statements at both of those prior interviews contradict
his testimony at the evidentiary hearing, and undermine the
credibility of the version of events he testified to at the hear-
ing.

The timing of JM’s initial statements to the police, and his
motives for making them, also undermine his credibility.
Although he had been a frequent confidential informant for
36 UNITED STATES v. WILSON
law enforcement for several years, JM did not mention any-
thing about Hayes’ kidnapping and murder until many years
after it occurred. JM’s initial statement to police implicating
Mathis in Hayes’ murder occurred after Mathis had been mur-
dered. He was facing serious charges at the time he provided
his initial statement. Moreover, no physical or other evidence
corroborates JM’s version of events. All of these factors sup-
port the district court’s basis for finding JM was not credible.

Contrary to Wilson’s contention, the district court did not
improperly limit the scope of its review or refuse to consider
JM’s testimony in the context of all the evidence adduced at
trial. The record shows that after finding JM not credible, the
court addressed whether JM’s testimony would probably pro-
duce an acquittal and concluded it would not. In so doing, the
court considered all of the trial evidence, including Phauls’
testimony that she picked up Wilson, Lighty, and Flood on the
evening of Hayes’ murder and drove them to Keating Street,
as well as Wilson’s confessions to having participated in the
kidnapping. Whereas JM’s testimony lacked corroborating
evidence, the evidence adduced at trial was based on the testi-
mony of multiple individuals, was supported by forensics evi-
dence showing that Hayes was in Flood’s vehicle and by
telephone records indicating that Wilson had used Flood’s cell
phone to call Phauls multiple times around the time of Hayes’
death, and included Wilson’s confession to two individuals.
For these reasons, the district court did not abuse its discretion
when it determined JM’s testimony was not credible and
would not have probably resulted in an acquittal.

With regard to CW’s recantation, we also conclude the dis-
trict court had an adequate basis on which to find the recanta-
tion lacked credibility and would not have probably resulted
in an acquittal.29 The district court had ample opportunity to
29
We note that the district court gave Wilson quite a bit of latitude to
develop the arguments regarding the relative strength of the trial evidence,
including questioning the veracity of Phauls’ testimony and her motive to
lie. That the district court did not agree with Wilson’s conclusion does not
mean that it failed in its duty to assess whether the new or recanted evi-
dence would have probably resulted in an acquittal.
 UNITED STATES v. WILSON 37
assess CW’s credibility at trial, and was in the best position
to determine whether that prior testimony was credible. As
discussed above, CW’s testimony was corroborated by the
trial testimony of numerous other witnesses, as well as physi-
cal evidence. Of particular importance to Wilson’s reliance on
the recantation, CW did not explicitly recant his testimony
against Wilson, save for the general statement that Mathis was
the "only other person who was rumored to be involved in this
case who spoke to me about it." Moreover, several reasons
supported CW’s incentive to lie by recanting his trial testi-
mony, including community pressure to do so, threats CW
had received as a result of his trial testimony, and the fact that
CW did not recant and point the blame at Mathis until after
Mathis was ever so conveniently dead. As we concluded with
regard to Lighty, in light of the evidence corroborating CW’s
trial testimony and undercutting his post-trial recantation, we
conclude the record supports the district court’s conclusion
that the material portions of CW’s trial testimony were not
false. Moreover, since the newly discovered evidence Wilson
relies upon lacked credibility, it was not of such a nature that
"would probably produce an acquittal" in a new trial. Cf.
Fulcher, 250 F.3d at 249. Accordingly, the court did not
abuse its discretion in denying Wilson’s motion for a new
trial.

IV.

For the aforementioned reasons, we affirm Wilson’s con-
viction for conspiracy to kidnap and his sentence of life
imprisonment. We also affirm the district court’s order deny-
ing Wilson’s post-trial motions for a new trial.

AFFIRMED