US v. Calvin Estrich, No. 15-4012 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4012 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CALVIN CANTRELL ESTRICH, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:13-cr-00160-MOC-DSC-1) Submitted: November 30, 2015 Decided: December 9, 2015 Before MOTZ, KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew G. Pruden, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, Acting United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Calvin Cantrell Estrich was convicted by a jury of multiple counts of health care fraud and related offenses. The district court sentenced Estrich to a total of 63 months’ imprisonment. On appeal, Estrich argues that the Government committed plain error by vouching for the credibility conspirator during closing argument. “Vouching occurs when the of a cooperating co- We affirm. prosecutor’s actions are such that a jury could reasonably believe that the prosecutor was indicating a personal belief in the credibility of the witness.” United States v. Lighty, 616 F.3d 321, 359 (4th Cir. 2010). This determination does not hinge on the exact words employed by the prosecutor constitute “an but on attempt whether to those replace prosecutor’s personal judgments.” words, the in evidence context, with the United States v. Johnson, 587 F.3d 625, 632 (4th Cir. 2009) (internal quotation marks omitted) (holding that prosecutor’s use of phrases “I’m convinced” and “I think” in “innocuous, conversational sense” were not vouching). Estrich concedes that because he did not object to the prosecutor’s remarks, his claim is reviewed for plain error. Under this standard, Estrich must show: (1) there was an error, (2) that is plain, and (3) that affected his substantial rights. United States v. Olano, 507 U.S. 725, 732, 735-36 (1993). An error affects a defendant’s substantial rights where there is “a 2 reasonable probability that the error affected the outcome of the trial.” United States v. Marcus, 560 U.S. 258, 262 (2010). We will exercise our discretion and reverse a conviction based on a plain error only where the error “seriously affects the fairness, integrity, proceedings.” or public reputation of judicial Id. at 265 (brackets and internal quotation marks omitted). The Government made the following remarks during its rebuttal argument: Now, the question was also raised, without [the cooperating co-conspirator] what does the government have? And I mentioned that when I spoke to you before. And what do we have without [her]? Well, [she] came forward and she provided truthful information. And you know that it’s truthful information because without [her], we have Calvin Estrich. The Government then discussed the evidence against Estrich other than this witness’s testimony. Although Estrich did not object to the the Government’s determined that argument, the Government’s district court statement that sua sponte the co- conspirator was truthful was vouching, and issued a curative instruction. We conclude that the court’s curative instruction sufficient to remedy any error in the Government’s argument. was In context, the prosecutor’s statement that the co-conspirator was truthful unambiguously relied on the evidence rather than on the 3 prosecutor’s personal belief. The district court’s instruction clearly informed the jury that any inference that the prosecutor personally believed the co-conspirator to be truthful would be improper and that they should witnesses based on the evidence. assess the credibility of See United States v. Chong Lam, 677 F.3d 190, 204 (4th Cir. 2012) (“[J]uries are presumed to follow omitted)). their instructions.” Because the record (internal shows that quotation any error marks in the Government’s argument did not affect the outcome of the trial, we find that Estrich has failed to show that the asserted error affected his substantial rights. Accordingly, we affirm the judgment of the district court. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4
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