UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4455

EDWARD WILLIE JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Herbert N. Maletz, Senior Judge, sitting by designation.

(CR-97-480-PJM)

Submitted: June 22, 1999

Decided: August 26, 1999

Before MURNAGHAN, WILKINS, and MICHAEL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James Wyda, Federal Public Defender, Denise C. Barrett, Assistant

Federal Public Defender, Baltimore, Maryland, for Appellant. Lynne

A. Battaglia, United States Attorney, Rod J. Rosenstein, Assistant

United States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Edward Willie Johnson appeals his convictions for falsification of

a material fact in violation of 18 U.S.C.A. § 1001 (West Supp. 1999),

18 U.S.C. § 2 (1994), theft of government property (Freon), in violation of 18 U.S.C.A. § 641 (West Supp. 1999), 18 U.S.C. § 2, and false

statement in violation of 18 U.S.C. § 1001. On appeal, Johnson contends that the trial court erred in allowing the case agent to testify

about a statement made by a witness during the investigation, that the

prosecutor improperly commented on his failure to provide an explanation for the incriminating document and that this amounted to plain

error as referencing Johnson's failure to testify, and that the district

court's instructions on aiding and abetting were incorrect and

amounted to plain error. We affirm.

Johnson contends that the district court erred in allowing Detective

Luke to testify to the substance of his conversation with Alonzo

Mason. Specifically, Luke testified that, in response to his inquiry as

to whether Mason saw Johnson distribute Freon to Mike Thompson,

Mason replied that "he had not seen anyone there." (J.A. at 58). Over

Johnson's objection, the district court ruled that this was not hearsay,

because it was not offered for the truth of the matter asserted.

This court reviews a district court's evidentiary rulings for abuse

of discretion, but such rulings are subject to a harmless error analysis

under Federal Rule of Criminal Procedure 52(a). See United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997). An evidentiary error is

deemed harmless if a reviewing court can say "with fair assurance,

after pondering all that happened without stripping the erroneous

action from the whole, that the judgment was not substantially

swayed by the error." Kotteakos v. United States, 328 U.S. 750, 765

(1946).

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The challenged statement was relevant to count three of the indictment, which charged Johnson with making a false statement to an

National Institute of Health detective "by providing a signed affidavit

. . . stating that [Johnson] had issued freon to Mike Thompson and

another man at approximately 4:20 p.m. on July 31, 1997, when in

truth, as the defendant well knew, he did not issue freon to anyone at

that time." (J.A. at 10). The government asserts that the challenged

statement was offered for reasons other than to prove the truth of the

matter asserted, such as, to show that the false statement by Johnson

was material, to show Luke's state of mind in requesting Johnson to

walk through the power plant to identify Thompson, or to rebut the

defense's contention that Detective Luke focused on Johnson without

fully investigating the case.

However, assuming that the statement was admitted for the truth of

the matter asserted in violation of the rule against admission of hearsay evidence, we find that admission of the statement did not

adversely affect Johnson's substantial rights. See Fed. R. Crim. P.

52(a); United States v. Nyman, 649 F.2d 208, 212 (4th Cir. 1980)

(quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir.

1969)). Therefore, we find any error to be harmless. See Kotteakos,

328 U.S. at 765.

Because Johnson failed to object to the closing argument, Johnson's contention on appeal that the prosecutor improperly commented

on his failure to testify is reviewed for plain error. See Fed. R. Crim.

P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). During

closing argument, the prosecutor repeatedly remarked that Johnson

provided no explanation for the document containing his initials noting that he distributed the Freon to Mike Thompson. However,

remarking on the failure of the defense, as opposed to the defendant,

to counter or explain the evidence is not impermissible comment on

the defendant's failure to testify as prohibited by Griffin v. California,

380 U.S. 609, 615 (1965). See United States v. Knowles, 66 F.3d

1146, 1163 (11th Cir. 1995) (finding no error in"Did you ever hear

an explanation for that?"). We find that the prosecutor's comments in

this case are directed at the failure of the defense to present an explanation, rather than directed at Johnson's failure to take the witness

stand and testify. To the extent they had the effect of drawing attention to Johnson's failure to testify, we find that the comments did not

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prejudice Johnson's substantial rights so as to amount to reversible

error, much less plain error. See United States v. Harrison, 716 F.2d

1050, 1052 (4th Cir. 1983); Olano, 507 U.S. at 732.

Lastly, Johnson contends that the district court erred in instructing

the jury on the law of aiding and abetting. Because he failed to object

to the instructions, this court's review is for plain error. See Fed. R.

Crim. P. 52(b); Olano, 507 U.S. at 736.

Because the instructions as a whole, see Cupp v. Naughten, 414

U.S. 141, 146-47 (1973), adequately define the crime of aiding and

abetting, we find that the district court did not err in instructing the

jury. Further, even if the instructions amounted to error, in light of the

substantial evidence of Johnson's guilt, he failed to show that the

instructions as given affected the outcome of the proceedings and

seriously affected the fairness, integrity, or public reputation of the

proceedings, as required to reverse for plain error. See Olano, 507

U.S. at 732; see also Johnson v. United States , 520 U.S. 461, 469-70

(1997) (affirming conviction even though court failed to instruct jury

on element of crime).

In conclusion, we affirm Johnson's convictions. 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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