UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4955

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

JOSE JOAQUIN MORALES,

 Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Roger W. Titus, Senior District Judge. 

(1:12-cr-00480-RWT-1)

Submitted: October 31, 2014 Decided: November 12, 2014

Before NIEMEYER, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jonathan S. Zucker, LAW OFFICE OF JONATHAN ZUCKER, Washington, 

D.C., for Appellant. Rod J. Rosenstein, United States Attorney, 

Sandra Wilkinson, Martin J. Clarke, Assistant United States 

Attorneys, Katherine Mcfee, Student Law Clerk, Baltimore, 

Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

A federal jury convicted Jose Joaquin Morales of using

a facility of interstate commerce to facilitate a murder for 

hire, in violation of 18 U.S.C. § 1958(a) (2012). The district 

court sentenced Morales to life imprisonment. Morales now 

appeals. Finding no error, we affirm. 

Morales first argues on appeal that the Government 

violated a proffer agreement by introducing at trial statements 

he made to a Bureau of Prisons (“BOP”) employee. We review 

evidentiary rulings for abuse of discretion and review de novo

the question of whether a proffer agreement remains in effect. 

United States v. Gillion, 704 F.3d 284, 292 (4th Cir. 2012). We 

interpret proffer agreements based on their language, 

“examin[ing the] express terms to determine whether the 

defendant is in breach.” Id. We have thoroughly reviewed the 

record and conclude that district court did not err in admitting 

Morales’ statements at trial.

Morales next argues that the district court erred in 

refusing to strike the testimony of the BOP employee because he 

had destroyed his rough notes of his interview with Morales that 

were later incorporated into another government agent’s report. 

“The Jencks Act requires the [g]overnment to turn over any 

statement of a witness in its possession once the witness has 

testified on direct examination, provided the statement relates 
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to the testimony of the witness.” United States v. Bros. Const. 

Co., 219 F.3d 300, 316 (4th Cir. 2000) (citing 18 U.S.C. 

§ 3500(b) (2012)). “The term ‘statement’ in § 3500(b) is 

defined by statute to include, among other things, ‘a written 

statement made by said witness and signed or otherwise adopted 

or approved by him.’” United States v. Smith, 31 F.3d 1294, 

1301 (4th Cir. 1994) (quoting 18 U.S.C. § 3500(e)(1) (2012)). 

“Jencks Act violations constitute harmless error when 

they result in no prejudice to the defense.” United States v. 

Schell, 775 F.2d 559, 567 (4th Cir. 1985). We review a district 

court’s ruling on a Jencks Act motion to determine whether it 

was clearly erroneous, United States v. Roseboro, 87 F.3d 642, 

645 (4th Cir. 1996), and we conclude that the district court did 

not clearly err in denying Morales’ motion to strike the 

testimony.

Morales also argues that several comments made by the 

prosecutor during closing arguments were improper and rendered 

the trial unfair. Morales preserved his challenge to one such 

comment by raising it in the district court, and we review this 

claim de novo. See United States v. Collins, 415 F.3d 304, 307 

(4th Cir. 2005). We review the comments that Morales did not 

raise below for plain error. See United States v. Mitchell, 1 

F.3d 235, 239 (4th Cir. 1993). To demonstrate plain error, 

Morales must show that (1) the district court erred, (2) the 
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error was plain, and (3) the error affected his substantial 

rights. Henderson v. United States, 133 S. Ct. 1121, 1126 

(2013). 

A prosecutor’s improper remarks during closing 

argument will mandate retrial only if they “so infected the 

trial with unfairness as to make the resulting conviction a 

denial of due process.” Id. at 240 (internal quotation marks 

omitted). We consider six factors in determining whether a 

prosecutor’s arguments were so prejudicial as to have deprived 

the defendant of a fair trial, including:

(1) whether the government’s remarks misl[ed] the 

jury, (2) whether they were extensive, (3) the 

strength of the evidence supporting conviction absent 

the comments, (4) whether the government deliberately 

made the comments to mislead the jury, (5) whether the 

defendant invited the comments, and (6) the presence 

of a curative instruction.

United States v. Chong Lam, 677 F.3d 190, 197 (4th Cir. 2012). 

We have thoroughly reviewed the record and the relevant legal 

authorities and conclude that Morales has failed to demonstrate 

that any improper remarks rendered the trial unfair.*

 

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

 * Morales also argues that the cumulative errors require 

reversal of his conviction. As we conclude he has failed to 

demonstrate that the district court erred, we reject this 

argument. 
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legal contentions are adequately presented in the materials 

before this court and argument would not aid in the decisional 

process. 

AFFIRMED