1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0070p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

C HRISTOPHER B RIAN E ATON , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 13-6125

Appeal from the United St ates District Court for the Western District of Kentucky at Bowling Green. No. 1:12-cr-00011-1—Joseph H. McKinl ey, Jr., Chief District Judge. Argued: June 19, 2014 Decided and Filed: April 20, 2015
Before: SILER, CLAY, and GIBBONS, Circuit Judges.

_________________ COUNSEL

ARGUED: J. Guthrie True, TRUE GUARNIER I AYER, LLP, Frankfort, Kentucky, for Appellant. Erin H. Flynn, UNITED STATES DEPARTMENT OF JUSTIC E, Washington, D.C., for Appellee. ON BRIEF: J. Guthrie True, TRUE GUAR NIERI AYER, LLP, Frankfort, Kentucky, for Appellant. Erin H. Flynn, Mark L. Gross, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________ OPINION

_________________ CLAY, Circuit Judge. Defendant and form er Barren County Sheriff Christopher Eaton (“Defendant”) was convicted of two counts of witness tamperi ng in violation of 18 U.S.C. § 1512(b)(3) by a federal jury in th e Western District of Kentucky for instructing two officers in 

### >No. 13-6125 United States v. Eaton Page 2

his command to give false statements in an inve stigation regarding the alleged excessive use of force against Billy Randall Stinnett on Februa ry 24, 2010. Defendant a ppeals his conviction. For the reasons stated below, we AFFIRM

.
BACKGROUND Procedural History
The second superseding indictment in this case, issued on November 14, 2012, charged Defendant with eight counts rela ted to excessive force, witne ss tampering, and obstruction of justice based on his conduct during the arrest of B illy Randall Stinnett and the subsequent federal investigation. Deputies Aaron Bennett, Adam Mi nor, and Eric Guffey were also charged in the same indictment. Defendant, Bennett, and Guffey were tried in a combined trial. After nine days of trial and due deliberation, the jury return ed a verdict of acquittal of all charges as to Bennett and Guffey. Defendant was acquitted on all counts except tw o counts of witness tampering in violation of 18 U.S.C. § 1512(b)(3). The district court subsequently denied Defendant’s motion for a judgment of acqu ittal, and this timely appeal followed.
Factual History
On February 24, 2010, Defendant and several of his deputies were involved in the arrest of Billy Randall Stinnett following an hour-long car chase that involved three different law enforcement agencies. Stinnett crashed his van into a church in Glasgow, Kentucky and fled on foot into a blind alley next to the church. Defendant chased af ter Stinnett and was the first to reach him in the alley. Stinnett testified at trial th at once he realized that his way out of the alley was blocked, he raised his hands behind his head and tried to get on his knees in an effort to
surrender. Defendant struck S tinnett over the head w ith his baton, drawing blood. Stinnett fell to the ground, but Defendant continued to strike him.
Defendant was shortly fo llowed by Deputy Eric Guffey, Deputy Aaron Bennett and Deputy Adam Minor. Stinnett was placed in handc uffs while on the ground. He testified that Defendant and the other deputies continued to strike him, punchi ng him in the head and “all over.” (R. 249, Transcri pt, PGID 2404.) Stinnett acknowle dged kicking Defendant with his steel-toed boots in an effort to stop the blows; in return, Defendant struck him on the back of hisNo. 13-6125 United States v. Eaton Page 3

legs with the baton. Deputy Mi nor testified that he and Deput y Bennett arrived on the scene as Stinnett was being handcuffed. Minor acknowledged kicking Stinne tt twice, although Stinnett was handcuffed and was not resisting, and testif ied that Bennett punched Stinnett five to ten times hard in the head. With the last punch, Bennett broke his hand. Bennett then switched to using a baton, and Defendant approached and began striking Stinne tt with his baton.
Minor eventually pulled Sti nnett up and took him back towards the road. Stinnett received more abuse during this walk, including a punch to the head from a special deputy by the
name of Shannon White. Minor asked Stinnett if he had any weapons on him, and Stinnett answered that he had a pocket-kn ife in his pocket. Minor testified that he had Stinnett sit down so that he could be searched, and that Defendant pulled a closed pocket knife from a visible clip in Stinnett’s pocket. The group continued wa lking. In a moment allegedly captured by photo, Defendant struck Stinnett in the groin with his fist , causing Stinnett to l ean over in pain. (The photo, according to some witnesses, was later de leted at Defendant’s request.) Minor placed
Stinnett into his vehicle and took him to th e hospital to be treated for his injuries.
Three teenagers in the church witnessed the scene in the alley from a second story
window. Two of the teens would la ter report what they witnessed to their father, who in turn reported it to the Glasgow Police Department. The Glasgow Police Department informed the FBI of the allegations, and the FBI launched an investigation. FBI Agent Mike Brown interviewed Stinnett at the Berren County Jail on March 4, 2010 to learn his version of the arrest and document Stinnett’s injuries.

On March 4, 2010, Brown also visited Defendant at the Sheriff’s Office to inform him of the investigation and request ev idence related to the arrest. To Brown’s surprise, Defendant responded that no use-of-force repo rts had been prepared. Minor w ould later testify at trial that Defendant as a practice did not re quire his deputies to complete use-of-force reports because of
Defendant’s belief that “the mo re reports you write, the more you could get hemmed up.” (R. 210, Transcript, PGID 34.) Brown asked Defendant to have the deputies involved in the incident draft reports to be turn ed over to the FBI.
Two deputies testified at trial that Defendant asked them to write false reports regarding the incident—Adam Minor, and another deputy named Steve Runyon, who had arrived on theNo. 13-6125 United States v. Eaton Page 4

scene when Stinnett, already in handcu ffs, was being walked to Minor’s car. 1 Runyon and Defendant were long-time friends and colleag ues; Defendant was gr ooming Runyon to replace him as Sheriff. Runyon testif ied that Defendant approached him at the gym on March 4, 2010. Defendant told Runyon about the FBI investigation into Stinnett’s arrest . Runyon testified that Defendant told him that he needed Runyon to write a report stating that he saw a knife belonging to Stinnett at the arrest scene, although Defe ndant knew Runyon was not pr esent in the alley and could not have seen any such kni fe. Runyon testified that when he resisted Defendant’s request, protesting that he was not even familiar with th e scene, Defendant drove him over to the alley where Stinnett was taken into custody to inst ruct Runyon on where he should say the knife was
located.
Runyon testified that he felt nauseated by Defe ndant’s efforts to persuade him to provide a false report. He was afraid to ask why Defendant needed him to write a report about the knife, and he was afraid that he would lose his job if he did not comply with the request. Runyon complied, writing falsely that he returned to th e alley with Defendant and “[t]here was a gray metal type knife found lying on the ground which Stinnett claimed.” (R. 211, Transcript, PGID 1756-57.) Runyon testified that Defendant told him wh at to write in the report, read it over when it was completed, and took it from Runyon to transmit to the FBI. Runyon also told the jury that in the following months Defenda nt conducted “a few closed-door meetings” with Runyon where
Defendant would make comments about how R unyon had a good job, and it would be difficult for him if he lost it. ( Id. at 1766.) Runyon said the meetings would generally end with his telling Defendant how much he appreciated his job “and a few times just begging him” to let Runyon stay until he reached retirement. ( Id. at 1766-67.) Runyon was subpoenaed to testify before the grand jury in February 2011. At tria l, Runyon testified that he gave false testimony before the grand jury when he told them that De fendant did not tell him what to include in his report; he did disclose to the grand jury, howev er, that he was not present when the knife was found. Runyon testified that after the indictments came out he wa s isolated in the department, excluded from operations and denied opportunities to work. He told the jury that no one spoke

1 By the time of trial, Runyon had retired from the Sheriff’s Department. We refer to him as a deputy in reference to his role at the time of the incident.No. 13-6125 United States v. Eaton Page 5

to him for months, and that De fendant once sent another deputy home as punishment for talking to Runyon.
Deputy Minor also testified that he wrote a false report about the incident at Defendant’s
direction. Minor received a call from a detectiv e with the sheriff’s office informing him of the FBI investigation and reque sting that Minor complete a written report. Minor testified at trial that he wrote his report in De fendant’s presence with Deputy Be nnett. He described Defendant “walking around the office before we started writi ng the reports” and goi ng over “this story line for us to write.” (R. 209, Tr. at 1512.) Specifica lly, Defendant told them to state that Stinnett had “pulled a knife on [Defenda nt],” resisted arrest, and did not obey verbal commands. ( Id. ) Minor said as he was writing the story, Defe ndant continued walki ng around the office “going over that story again and again.” ( Id. ) Minor testified that Defe ndant reviewed his completed report and instructed him to in clude additional information, incl uding that once Stinnett was handcuffed the incident was over, and that Defenda nt showed Stinnett a knife and asked if it was his. Minor complied with Defendant’s direc tions. Minor testified that the information
Defendant told him to include in his report was false, and that he included it because he was afraid of losing his job if he re fused the orders. Minor testified at trial that De fendant asked him to prepare a false report in orde r to “cover up what we had don e” from “[t]he FBI.” (R. 210, Transcript, PGID 1536-37.) Minor further testified at trial that he repeated the false information in a subsequent interview with FBI Agent Brown and in three different state court proceedings. Minor testified that he gave these false statements because Defendant told him to and because he
was afraid he would be fired and unable to fi nd another job in Barren County if he resisted.

DISCUSSION
Defendant challenges his conviction on five grounds. First, Defenda nt asserts that the evidence was insufficient to support his conviction for witness tampering. He argues that this Court should read a materiality requirement into 18 U.S.C. § 1512(b)(3) a nd that we should on that basis conclude that the statements he proc ured regarding the knife did not “relat[e] to the commission or possible commissi on of a Federal offense” under the statute. Second, Defendant argues that the district court erred by failing to instruct the jury on the affirmative defense under § 1512(e). Third, Defendant asserts that the district court erred in failing to give a specialNo. 13-6125 United States v. Eaton Page 6

unanimity instruction. Because De fendant did not request either in struction at trial, we review the district court’s failure to provide the instru ctions for plain error. Fourth, Defendant argues that the prosecutor made improper remarks in cl osing argument regarding Defendant’s failure to testify. In the a lternative, Defendant argues that hi s conviction should be reversed under a
cumulative error standard. None of his arguments is availing.
A. Sufficiency of the Evidence

1. Standard of Review A Rule 29 motion for judgment of acquittal “i s a challenge to the sufficiency of the
evidence.” United States v. Jones , 102 F.3d 804, 807 (6th Cir. 1996). This Court reviews challenges to the sufficiency of the evidence de novo to determine “whether, after viewing the evidence in the light most favor able to the prosecution, any rationa l trier of fact could have found
the essential elements of the crime.” Id . On review, this Court “may not reweigh the evidence, reevaluate the credibility of witnesses, or substitute [its] judgment for that of the jury.” United
States v. Mathis , 738 F.3d 719, 735 (6th Cir. 2013).
2. Analysis

Defendant was convicted of two counts of vi olating 18 U.S.C. § 1512(b)(3). That statute provides, in pertinent part, that “[w]hoever knowingly uses intimid ation, threatens, or corruptly persuades another person, or attempts to do so, . . . with intent to . . . hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Fede ral offense,” shall be fined or imprisoned, or both. § 1512(b)(3). In order to obtain a conviction under this subsection, the government must prove that the defendant (1) knowingly and willfully used intimidation, threatened, or corruptly persuaded another person, (2) with the intent to hinder, delay, or prevent the communication to a federal official, (3) of information “relati ng to the commission or possible commission of a
Federal offense.” Id. ; United States v. Carson , 560 F.3d 566, 580 (6th Cir. 2009).

The trial record in this case contained a bundant evidence that supported a finding that Defendant was guilty beyond a reas onable doubt of witness tamper ing based on his efforts to procure false reports from De puty Runyon and Deputy Minor. Bo th Runyon and Minor testifiedNo. 13-6125 United States v. Eaton Page 7

that Defendant pressured them to write false report s about the incident to be delivered to the FBI, using his position of authority to obtain compliance. Both men testified that they were not presented with a choice; rather, that Defendant instructed them on the precise false information they had to include in the report, that he read and approved their reports , and that they feared they would be fired if they did not make the statements he requested. Runyon described to the jury “closed-door” one-on-one meetings where Defendant threatened his job and Runyon begged to be allowed to stay until he reached retirement. This evid ence was more than enough to support the verdict.
The principal thrust of Defendant’s challeng e to the sufficiency of the evidence on appeal is that both Runyon and Minor gave inconsiste nt testimony over time and that there was countervailing evidence in th e record that could have allowed a ju ry to doubt the ve racity of their statements. He asserts that the testimony of two “admitted perjurers” cannot support his conviction for witness tampering. This argument is without merit. The jury was entitled to believe the trial testimony of the two officers. It is not this Court’s role to reweigh the evidence
or to reevaluate the cred ibility of witnesses. Mathis , 738 F.3d at 735; see also United States v. Beverly , 369 F.3d 516, 532 (6th Cir. 2004) (“[D]etermini ng the credibility of witnesses is a task for the jury, not this [C]ourt.”). And the fact that Runyon and Minor acknowledged perjuring themselves at Defendant’s request can hardly be said to weigh objectively in Defendant’s favor.
Defendant also argues that whether Stinne tt had a knife in his hand when Defendant approached him is not “material to the federal offense” that was being i nvestigated. Defendant contends that the witness tampering statute inco rporates a materiality requirement by specifying that the crime involves hindering the communication of “information relating to the commission or possible commission of a Fe deral offense.” § 1512(b)(3) (emphasis added). Defendant’s theory is that the federal offense in question was alleged excessive force used against Stinnett after he was in handcuffs, and that the statemen ts made by Minor and Runyon related to the knife could only be relevant to Defendant’s use of for ce against Stinnett before he was handcuffed. Finding no precedent to support his interpretation of the statute, Defendant terms this a “novel”
issue.No. 13-6125 United States v. Eaton Page 8

Defendant mistakes both the facts and the law. First, as the district court found, the federal investigation was not limited to allegations of excessive force after Stinnett was taken into custody. Agent Brown sought information from Defendant abou t the level of force that was used in effectuating the arrest, the reasons for the use of force, and the injuries Stinnett suffered—without any restriction to events occurri ng after Stinnett was handcuffed. Even at trial, the government presented evidence of excessi ve force prior to arrest , including Stinnett’s testimony that Defendant attacked Stinnett as he was attempting to surrender by placing his hands behind his head and dropping to his knees.
The government’s precise th eory of excessive force during the investigation or prosecution, however, is beside the point. We decline Defendant’s invitation to read a materiality requirement into § 1512(b)(3). The plai n language of the statute applies to efforts to
hinder the communication of information “relati ng to” the commission or possible commission
of a federal crime. 2 Abstractly speaking, it is possible th at some information may be so very attenuated from an alleged or suspected crime that efforts to prevent its communication would not support a conviction under § 1512(b)(3). For our purposes, it is plain that information “relates to” the commission or possible commission of a federal crime if it concerns the incident
or occurrence in connection with wh ich the crime may have occurred. 3 This interpretation is consistent with the purpose of § 1512(b)(3 ) to protect “the in tegrity” of even “ potential federal investigations by ensuring that tr ansfers of information to federal law enforcement officers and judges relating to the possible co mmission of federal offenses be truthful and unimpeded.”
Carson , 560 F.3d at 581 (quoting United States v. Ronda , 455 F.3d 1273, 1286 (11th Cir. 2006)). We would undercut that purpose if we required an inquiry into the legal significance of the information at issue in relation to the theory of criminal liability eventually developed in the course of an investigation.

2 Defendant cites to a passage in Arthur Andersen LLP v. United States , 544 U.S. 696 (2005) that he believes supports his reading of the statute by its use, in passing, of the term “material.” In context, it is clear that the Court was addressing the mens rea requirement, applicable to a different statutory provis ion at issue there, that the defendant have knowledge of the relevance of the docume nt to a foreseeable official proceeding; the case did not purport to impose a materiality requirement on the document itself. See id. at 708. Defendant’s citation is even less persuasive in light of this Court’s previous holding that the provision at issue in this case, § 1512(b)(3), does not require proof of a nexus with a pa rticular federal investigation. United States v. Carson , 560 F.3d 566, 581-82 (6th Cir. 2009). 3 We do not mean to limit application of the phrase “r elating to” to these factua l circumstances. Whatever the extent of the reach of § 1512(b)(3 ), it is clear that the information at issue in this case falls within it.No. 13-6125 United States v. Eaton Page 9

Here, Defendant sought to present to the FBI a false “story line” about the physical
confrontation with Stin nett by requiring Minor to report unt ruthfully that Stinnett threatened Defendant with a knife, resisted arrest, and refused to obey verbal orders, and by requiring Runyon to corroborate that story by reporting that they found a kni fe on the ground at the scene of the arrest. Defendant’s efforts prevented the officers from communicating to the FBI the manner in which the incident actually occurred, including the fact that the knife was found, closed, in Stinnett’s pocket well after he was handcuffed. Plainly, this was information “relating to” the commission or possible commission of a federa l crime in that it pertained to the incident involving the alleged excessive use of force in violation of Stinnett’s civil rights.
In sum, the evidence presented at trial was sufficient to support Defendant’s conviction.
This Court will neither reevaluate the witnesses’ credibility nor graft a heightened materiality requirement onto § 1512(b)(3).
B. Failure to Instruct the Jury on the Affirmative Defense in § 1512(e) Defendant next argues that, although he did not request such an instruction, the district court committed reversible error in failing to inst ruct the jury on the affirmative defense provided in § 1512(e) that precludes crimin al liability where the alleged conduct is otherwise lawful and the defendant’s “sole intention was to encourage, induce, or cause the other person to testify truthfully.” We disagree.

1. Standard of Review
In a typical challenge to a district court’s jury instructions, this Court applies an abuse-ofdiscretion standard. United States v. Williams , 612 F.3d 500, 506 (6th Cir. 2010). Under this standard, we “review the instructions as a whole, in order to determine whether they adequately informed the jury of the relevant considerations and provided a basis in law for aiding the jury in reaching its decision.” United States v. Kuehne , 547 F.3d 667, 679 (6th Cir. 2008) (quoting
United States v. Frederick , 406 F.3d 754, 761 (6th Cir. 2005)). When a defendant fails to request a particular jury instruction, “we review th e district court’s jury in structions, as a whole, for plain error.” United States v. Stewart , 729 F.3d 517, 530 (6th Cir. 2013). This standard poses the inquiry of “whether th e instructions, when taken as a whole, were so clearly wrong asNo. 13-6125 United States v. Eaton Page 10

to produce a grave miscarriage of justice.” United States v. Miller , 734 F.3d 530, 538 (6th Cir. 2013) (internal quotation marks omitted).
2. Analysis
Defendant raised the issue of a § 1512(e) defens e for the first time in his post-trial brief. Under that subsection, in a pr osecution for witness tampering,
[I]t is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that th e conduct consisted solely of lawful conduct and that the defendant’s sole inten tion was to encourage, induce, or cause the other person to testify truthfully. § 1512(e). Defendant argues that the jury’s acqu ittal on the excessive fo rce charges “strongly suggests, in retrospect , that the jury believe d that if Eaton made any comment to the deputies about information to be included in their reports then he must be guilty of witness tampering.”
Def.’s Br. at 40. Yet the district court’s instructions on the elements of witness tampering already served to prevent any confusion on that sc ore by explaining that to return a guilty verdict on the charge the jury must find that he “hinde red, delayed, or prevented” the communication of
information to a relevant law enforcement officer. Nor are the verdicts necessarily inconsistent. The jury may have entertained doubts about whether the force used was excessive and nonetheless credited the testimony of Minor and Runyon as establishing beyond a reasonable doubt that Defendant require d them to write false reports in or der to bolster his case that force

was necessary.
Moreover, as the district court found, Defendant presented no evidence at trial that would support the affirmative defense, nor did he direct the district court to evidence that would
substantiate the claim. See Smith v. United States , 133 S. Ct. 714, 720 (2013) (a criminal defendant may support an affirmative defens e by submitting evidence or testimony of the underlying facts or by “direct[ing] the court to other evidence substantiating his claim.”). On appeal, Defendant identifies tw o sources of evidence he cont ends support a finding that he merely sought to encourage Minor and Runyon to give truthful statements: the fact that none of
the other officers testified that Eaton tried to im properly influence their re ports; and the fact that Minor and Runyon were “admitted perjurers.” At best, this evidence only weakly supports a conclusion that Defendant was merely encouragi ng the two officers to tell the truth about theNo. 13-6125 United States v. Eaton Page 11

knife. Such weak evidence cannot compel a conclusion that by failing to sua sponte instruct the jurors on an affirmative defense that Defendant had not previously raise d, the district court’s
instructions constituted an abuse of discre tion, much less a “miscarriage of justice.” Miller , 734 F.3d at 538.
C. Failure to Provide a Special Un animity Instruction as to Count 5

Defendant also faults the district court for not providing a “special unanimity instruction” with regard to Count 5; that is, he argues that th e court should have instructed the jury that its
decision must be unanimous as to what inform ation Defendant directed Minor to suppress. Under Count 5, the jury could ha ve convicted Defendant on finding either (1) that he sought to require Minor to conceal the unr easonable force used against St innett; or (2) that Defendant sought to require Minor to provide false informa tion about the knife. Because Defendant did not raise this objection at trial, we review the district court’s instructions in th is regard for plain error
under the standard described above. See also United States v. Kakos , 483 F.3d 441, 445 (6th Cir. 2007) (plain error re view applies to failure to provide special unanim ity instruction where the defendant did not object at tr ial) (collecting cases).
A special unanimity instruction is a means of clarifying a so-calle d “duplicitous” charge, or one that “‘sets forth separate and distinct crimes in one count.’” Kakos , 483 F.3d at 443 (quoting United States v. Davis , 306 F.3d 398, 415 (6th Cir. 2002)). A duplicitous charge carries the risk that a criminal defendant “may be depriv ed of his right to a unan imous jury verdict” if individual jurors find him guilty of different crimes. 4 Id. However, a charge that permits more
than one factual basis for convic tion “‘does not automatically require a unanimity instruction.’” United States v. Algee , 599 F.3d 506, 514 (6th Cir. 2010) (quoting United States v. Krimsky , 230 F.3d 855, 860 (6th Cir. 2000)).
The Supreme Court has explained that while “a jury in a federal criminal case cannot convict unless it unanimously finds that the G overnment has proved each element,” nonetheless the jury “need not always decide unanimously which of several po ssible sets of underlying brute facts make up a particular element.” Richardson v. United States , 526 U.S. 813, 817 (1999).

4 Duplicitous charges may also prejudice defendants in other ways not at issue on this appeal. See generally Kakos , 483 F.3d at 443-44.No. 13-6125 United States v. Eaton Page 12

The pivotal distinction made by the Court differe ntiated between elements, which the jury must unanimously agree to have been proven, and the “means” or “brute facts” constituting an element, as to which unanimity is typically not required. Id. at 817-19; see also United States v.
DeJohn , 368 F.3d 533, 540-41 (6th Cir. 2004) (discussing Richardson ). The Court cautioned, however, that the Constitution itself may limit in stances in which a crime could be defined “in ways that would permit juries to convict while disagreeing about means, at least where that
definition risks serious unfairness and lacks support in history or tradition.” 526 U.S. at 820.
Under Richardson , in determining whether unanimity is required, we look to “the language of the statute, tradition, and the bread th of the statute (which ‘aggra vates the dangers of unfairness’ . . . ), and to the desirability of avoiding havi ng to decide the constitutional questions surrounding a definition of a crime that allows signi ficant jury disagreement as to means.” DeJohn , 368 F.3d at 540 (citing Richardson , 526 U.S. at 819).
In this case, Defendant’s argument relates to the character of the information that was concealed by Minor. He asserts because there are two factual issues—the force used against Stinnett, and whether Stinnett pulled a knife on De fendant—the charge must be duplicitous. We think it clear that this distinction goes to the “brute facts” underlying the third element of witness tampering under § 1512(b)(3), i.e. , the “information relating to the commission or possible
commission of a Federal offense.” The statut e makes no distinction between discrete factual assertions or statements constituting the informati on at issue. Indeed, th e term “information” in its natural use often encompasse s multiple facts or items of knowledge. Similarly, in a case concerning the analogous crime of obstructing a fe deral investigation by fa lsifying records in violation of § 1519, this Court held that multiple alleged false statements in a report about use of force against a prisoner did not create a concern of unconstitutiona l duplicity because the charge
that the defendant “falsified a document” addresse d the document as a whole rather than portions
of the document. United States v. Schmeltz , 667 F.3d 685, 687-88 (6th Cir. 2011). The same analysis applies here—the charge of hinderi ng the communication of information about the
incident to a federal law enforcement officer encompassed both the issue of the knife and the details about the extent of force used against St innett. Jurors could vote to convict Defendant based on his efforts to prevent the communication of either piece of information, or both.No. 13-6125 United States v. Eaton Page 13

Defendant does not raise any concern of cons titutional magnitude about a risk of “serious unfairness” arising from th e nature of his charge. Richardson , 526 U.S. at 820. Although the term “information” in § 1512(b)(3) renders the provision somewhat br oad, both the conduct and information at issue in Defendant’s charge are su fficiently related and specific that we need not
be concerned that fundamental fairne ss was put at risk in this case. See id. (citing Schad v. Arizona, 501 U.S. 624, 632-33 (1991) (plurality opi nion) and 501 U.S. at 651 (Scalia, J., concurring) (“We would not permit . . . an in dictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday[.]”)).

D. Prosecutorial Misconduct
1. Standard of Review
Whether certain comments made by a prosec utor amount to prosecutorial misconduct and
whether those comments rendered the trial fundame ntally unfair are mixed questions of law and fact, which this Court considers de novo

. United States v. Gardiner , 463 F.3d 445, 459 (6th Cir. 2006)

. 2. Analysis
In the Sixth Circuit, we apply a two-step analysis to determine if alleged prosecutorial misconduct requires reversal. First, we determin e whether prosecutorial statements allegedly constituting misconduct were improper. Kuehne , 547 F.3d at 687. Next, if we find impropriety, we “then determine whether the improprieties were flagrant such that a re versal is warranted.”
Id. at 687-88. Under this second prong of the analys is, we consider four f actors: “‘1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; 2) whether the conduct or remark s were isolated or extensive; 3) whether the remarks were deliberately or accidentally made; and 4) wh ether the evidence against the defendant was strong.’” Id. (quoting United States v. Modena , 302 F.3d 626, 635 (6th Cir. 2002)). This analysis examines challenged statements by the prosecutor “within the context of the trial to
determine whether such comments am ounted to prejudicial error.” United States v. Carter , 236 F.3d 777, 783 (6th Cir. 2001) (citing United States v. Young , 470 U.S. 1, 11-12 (1985)).No. 13-6125 United States v. Eaton Page 14

Defendant argues that remarks by the prosec utor in closing constituted a comment on his decision not to testify. The remarks at issue we re made during the rebuttal in reference to the testimony of defense expert Alex Payne, who test ified to the kinds of force that might be appropriate if Stinnett was resisti ng arrest. The prosecutor argued,
But you got to ask yo urself why are the defendants asking him if the force defendants used was justified if none of the de fendants said they used any force on him? They asked him several questions about whether or not they could use knee strikes to knee him in the sides and in the legs, wh ether or not they can apply pressure to the back of his head to drive his head into the ground and whether or not those types of strikes, which would be justified, would cause injuries consistent with what the pictures s howed Stinnett suffered. But you got to ask yourself why are they asking him those questions if none of them came forward and said that's what they actually did ? There's been no evidence that they were delivering knee strikes to him to get him to comply so they could put handcuffs on him. There's been no evidence that they that were driving their hands or their fingers into the back of his head so that they could press his head to the ground so that they could get handcuffs on him, there's been no evidence of that so why are they asking their use of force expert these questions? (R. 254, Transcript, PGID 3163 (emphasis added) .) Defense counsel objected and a bench conference was held. The prosecutor clarifie d that he was referring to the defendants’
“statements that came in th rough their reports.” ( Id. at 3164.) The district court accepted this explanation and overruled the ob jection, though warning the prosecuto r that “it was really close.” ( Id. ) When the prosecutor returned to his argument he clarified for the jury that the statements he was referring to were “what they reported in their reports” because “all we know what the defendants have said about what happened to the victim comes through their written reports.” ( Id. at 3165.) Defense counsel again objected, and the district court overruled the objection on
the basis that the comment was a useful cl arification of the earlier statement. ( Id. at 3165-66.) Defendant raised the issue in post-trial briefing. The district court assumed arguendo that the comments were improper, but determined that th ey did not meet the standard for flagrancy.
In context, it appears that the prosecutor was commenting on defendants’ version of the incident as stated in their reports. Assuming arguendo that the jury would nonetheless have construed the remarks as reflecting on Defendant’s failure to testify, see United States v. Wells , 623 F.3d 332, 339 (6th Cir. 2010), we agree with the di strict court that reve rsal is not warranted
under the four factor test fo r flagrancy. The evidence agai nst Defendant on the witnessNo. 13-6125 United States v. Eaton Page 15

tampering charges was very strong. Any prejudice or misleading effect from the remarks was limited both by the prosecutor’s clarification that his comments pertained only to the statements made in the reports, which were part of the reco rd, and by the district c ourt’s instructions that Defendant had an absolute right to remain silent and that his silence could not be used against him. We decline to reverse on these grounds.

E. Cumulative Error
A cumulative error claim alleges a violation of a defendant’s due process righ t to a fair
trial. United States v. Blackwell , 459 F.3d 739, 770 (6th Cir. 2006). Defendant argues that even if reversal is not required by a ny single trial error, he is entit led to a new trial because the cumulative effect of the alleged errors consti tutes a due process violation. To succeed under such a theory, Defendant “‘must show that the combined effect of indi vidually harmless errors was so prejudicial as to render [t he] trial fundamentally unfair.” United States v. Adams , 722 F.3d 788, 832 (6th Cir. 2013) (quoting United States v. Trujillo , 376 F.3d 593, 614 (6th Cir. 2004)).
Because we find no error with respect to the jury instructions, the only potential error remaining is the possibility that the prosecutor’s remarks were improper. As discussed above,
we conclude that those comments do not warrant reversal. Because Defendant does not establish any additional error that could compound the pr ejudice, he cannot succeed on his cumulative
error claim.

CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.