UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4640

IHEDINACHI I. UZODINMA,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-96-61-A)

Submitted: March 11, 1997

Decided: April 22, 1997

Before WILKINS and LUTTIG, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William B. Moffitt, ASBILL, JUNKIN & MOFFITT, Washington,

D.C., for Appellant. Helen F. Fahey, United States Attorney, Jack

Hanly, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Ihedinachi Uzodinma (Uzodinma) participated in a million dollar scam that involved foreign businessmen and supposed millions of dollars in escrow with the Central Bank of Nigeria. A jury

convicted Uzodinma on one count of conspiracy,1 two counts of interstate transportation of stolen money,2 and one count of engaging in an

unlawful monetary transaction.3 The court sentenced Uzodinma to

fifty-one months incarceration. Uzodinma requests a retrial claiming

that the prosecutor improperly commented on his failure to testify,

and that the court incorrectly instructed the jury on the conspiracy

charge. Finding no reversible error, we affirm Uzodinma's convictions and sentence.

First, Uzodinma asserts that the prosecutor indirectly commented

on his decision not to testify when he asked a witness about a statement Uzodinma made under oath in a prior proceeding. While the

prosecutor is forbidden from commenting upon Uzodinma's silence

at trial,4 Uzodinma's claim is without merit. "The test for determining

whether an indirect remark constitutes improper comment on a defendant's failure to testify is: `Was the language used manifestly

intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the

accused to testify.'"5 From the record it is clear that the prosecutor's

question was not intended as a comment on Uzodinma's failure to tes-

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1 18 U.S.C. § 371 (1994).

2 18 U.S.C. § 2314 (1994).

3 18 U.S.C. § 1957 (1994).

4 See Griffin v. California, 380 U.S. 609, 613-14 (1965).

5 United States v. Whitehead, 618 F.2d 523, 527 (4th Cir. 1980)

(emphasis omitted) (quoting United States v. Anderson, 481 F.2d 685,

701 (4th Cir. 1973), aff'd, 417 U.S. 211 (1974)).

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tify, but was intended to elicit testimony about a prior statement by

Uzodinma that directly contradicted testimony by a defense witness.

Because the question neither intended to focus nor actually focused

the jury's attention on Uzodinma's failure to testify at trial, Uzodinma's claim is without merit.

Additionally, Uzodinma contends that the prosecutor indirectly

commented, in his closing rebuttal statement, on Uzodinma's decision

not to testify. Uzodinma did not object to this statement during the

trial, so it may only be the basis for relief if it amounted to plain error.6

Our review of the record reveals that even if the prosecutor's statement could be considered to implicate Uzodinma's decision not to

testify, any error did not affect Uzodinma's substantial rights.7 The

evidence at trial was more than sufficient to support Uzodinma's conviction, and the prosecutor's statement was so tangentially related to

Uzodinma's silence at trial that the jury would not have reached a different conclusion in the absence of the prosecutor's comment. Plus,

the trial court issued a curative instruction. Therefore, this claim lacks

merit.

Finally, Uzodinma objects to the district court's jury instructions

on the conspiracy charge. Because Uzodinma failed to object at trial,

we review the jury instruction against the background of the entire

record for plain error prejudicing substantial constitutional rights.8

The United States Supreme Court explained that "[i]t is the rare case

in which an improper instruction will justify reversal of a criminal

conviction when no objection has been made in the trial court."9 Our

review of the record reveals that the district judge's instruction adequately and correctly explained how the jury should determine

whether a defendant was a culpable participant in a conspiracy.

Accordingly, Uzodinma fails to demonstrate that the district judge

committed plain error.

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6 See FED. R. CRIM. P. 52(b); United States v. Olano, 507 U.S. 725, 732-

35 (1993).

7 Id.

8 See FED. R. CRIM. P. 52(b); Olano, 507 U.S. at 732-35; United States

v. Young, 470 U.S. 1, 14-16 (1985).

9 Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

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Therefore, we affirm Uzodinma's convictions and sentence. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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