UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4905

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHENOMUSA N-JIE,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,

Senior District Judge. (5:05-cr-00064-FPS)

Argued: March 19, 2008 Decided: May 9, 2008

Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge, and

William L. OSTEEN, Jr., United States District Judge for the Middle

District of North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Edward Lee Gillison, Jr., GILLISON LAW OFFICES, Weirton,

West Virginia, for Appellant. Randolph John Bernard, OFFICE OF THE

UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. ON

BRIEF: Sharon L. Potter, United States Attorney, David J. Perri,

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Chenomusa N-Jie (“N–Jie”) appeals his conviction and sentence

for conspiracy to possess with intent to distribute in excess of

100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a),

846. N-Jie challenges his conviction by contending that the

district court failed to conduct an evidentiary hearing and award

a new trial on account of juror bias, and failed to award a new

trial on account of prosecutorial vouching. N-Jie challenges his

sentence by contending that the district court improperly applied

a two-level enhancement for obstruction of justice pursuant to U.S.

Sentencing Guidelines Manual (USSG) § 3C1.1 (2006). For the

following reasons, we affirm the district court’s judgment.

N-Jie was indicted by a grand jury on February 7, 2006, and

charged with conspiracy to possess with intent to distribute in

excess of 100 kilograms of marijuana, in violation of 21 U.S.C. §§

841(a), 846. The indictment also contained a forfeiture allegation

pursuant to 21 U.S.C. § 853. N-Jie entered a plea of not guilty

and a jury trial commenced on May 16, 2006. The district court

conducted an extensive voir dire at the outset of the trial. Among

other questions, the district court asked the jury panel the

following:

Have any of the attorneys in this case ever represented

you or any member of your immediate family on a regular,

retainer-fee basis?

Do any of you have any feelings or beliefs or attitudes

regarding attorneys in general and particularly defense
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lawyers who are charged with representing defendants in

a criminal case, that would prevent you from rendering a

fair and impartial trial in this case?

[C]an any of you think of any matters that you should

call to my attention at this time which may in some way

bear upon your qualifications to serve as a juror or

which for any reason might prevent you from rendering a

fair and impartial verdict based solely upon the evidence

and on this Court’s instructions as to the law which I

will give you at the end of the case?

J.A. 15, 52. A prospective juror, Ms. Rosohac, remained silent in

response to each of these questions, thereby indicating a response

of “No.” Ms. Rosohac was seated on the jury and ultimately became

its foreperson.

At trial, the Government presented evidence that N-Jie

distributed over 100 kilograms of marijuana during the course of a

three-year conspiracy, from August 2002 through August 2005.

Following the Government’s presentation of evidence, N-Jie took the

stand. N-Jie’s testimony directly contradicted the testimony of

the Government’s law enforcement witnesses. N-Jie specifically

denied ever selling marijuana. J.A. 602. 

Following the presentation of the evidence, the parties

proceeded with closing arguments. During the Government’s opening

argument, N-Jie’s counsel thought he heard the prosecutor

improperly vouch for the testimony of the Government’s law

enforcement witnesses. Specifically, N-Jie’s counsel believed he

heard the prosecutor say “something to the affect [sic] of ‘[y]ou

are not going to believe the testimony of the defendant over the
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testimony of these police officers.’” J.A. 706. This improper

prosecutorial vouching was especially damaging, N-Jie claimed,

because multiple law enforcement officers testified for the

Government. The district court overruled the objection after a

brief bench conference, finding that the prosecutor’s remark did

not constitute an improper vouching for the testimony of the law

enforcement witnesses.

The jury convicted N-Jie on May 18, 2006, after a three-day

trial. On May 25, 2006, N-Jie filed a motion requesting an

evidentiary hearing and seeking a new trial on the basis of juror

bias and on account of the alleged prosecutorial vouching. The

Government filed a response on June 5, 2006. N-Jie’s motion

alleged that Ms. Rosohac was unable to be an impartial juror

because she was prejudiced against defense counsel. J.A. 706. In

support of that argument, N-Jie’s motion further claimed that at

some unspecified time before his trial, (1) Ms. Rosohac’s mother

had contacted defense counsel for the purpose of retaining defense

counsel for an unrelated matter, (2) Ms. Rosohac had offered to pay

$1500 as a retainer fee for her mother, (3) defense counsel’s firm

had declined the retainer fee and the representation, and (4) Ms.

Rosohac had become angry when defense counsel’s firm declined to

represent her mother. J.A. 704-05. Ms. Rosohac’s alleged enmity

toward defense counsel’s firm is the essence of N-Jie’s juror bias

claim.
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On August 2, 2006, the district court issued a memorandum

opinion and order denying N-Jie’s request for an evidentiary

hearing and denying the motions for a new trial. The district

court first found that Ms. Rosohac’s mother was not a “regular [or]

retainer-fee basis” client, thus Ms. Rosohac’s silence in response

to the first question was honest. J.A. 15, 722. The district

court also found, regarding the second and third questions, that

Ms. Rosohac honestly indicated that she could be impartial. J.A.

722. Accordingly, the district court concluded that N-Jie was not

entitled to relief under McDonough Power Equipment, Inc. v.

Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 850 (1984), because

Ms. Rosohac had answered all questions honestly.

The Probation Officer calculated a total offense level of 28

in the presentence report. That calculation included a two-level

adjustment for obstruction of justice, pursuant to § 3C1.1, based

on the fact that N-Jie gave false testimony at trial. N-Jie

objected to the inclusion of an adjustment for obstruction of

justice. The district court found that N-Jie committed perjury

during his trial testimony and that a two-level adjustment for

obstruction of justice properly applied. The application of the

obstruction of justice adjustment resulted in a total offense level

of 28 and an advisory guidelines range of 78-97 months’

imprisonment. The district court sentenced N-Jie to 78 months

imprisonment. N-Jie appeals the district court’s decisions.
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I. Juror Bias

Our analysis of N-Jie’s juror bias claims begins with the

Supreme Court’s holding in McDonough “that to obtain a new trial

[on a juror bias claim], a party must first demonstrate that a

juror failed to answer honestly a material question on voir dire,

and then further show that a correct response would have provided

a valid basis for a challenge for cause.” McDonough, 464 U.S. at

556, 104 S. Ct. at 850; Jones v. Cooper, 311 F.3d 306, 310 (4th

Cir. 2002) (recognizing the applicability of the McDonough standard

to federal criminal proceedings). We believe the district court

properly found that Ms. Rosohac answered each question honestly and

that N-Jie, therefore, was not entitled to relief under McDonough.

Specifically, N-Jie’s motion for a new trial alleged no facts to

support a finding that Ms. Rosohac’s mother was represented by

defense counsel’s firm “on a regular, retainer-fee basis.” J.A.

15. Additionally, N-Jie’s bare-boned allegation of Ms. Rosohac’s

enmity toward defense counsel’s firm at some indefinite time in the

past is insufficient, in this case, to show that Ms. Rosohac could

not be impartial and that she, therefore, answered the voir dire

questions dishonestly.

We have held, however, that a defendant’s “[f]ailure to

satisfy the requirements of McDonough does not end the court’s

inquiry . . . when the petitioner also asserts a general Sixth

Amendment claim challenging the partiality of a juror based upon
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additional circumstances occurring outside the voir dire.”

Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir. 1998). A

defendant is not automatically entitled to an evidentiary hearing.

Rather, “it remains within a trial court’s option, in determining

whether a jur[or] was biased, to order a post-trial hearing at

which the movant has the opportunity to demonstrate actual bias, or

in exceptional circumstances, that the facts are such that bias is

to be inferred.” Id. at 363 (quoting McDonough, 464 U.S. at

556-57, 104 S. Ct. at 850 (Blackmun, J., concurring)); see

Billings v. Polk, 441 F.3d 238, 245-46 (4th Cir. 2006) (The court

is not “obliged to hold an evidentiary hearing any time that a

defendant alleges juror bias.”). We review a district court’s

decision not to grant an evidentiary hearing to consider a juror

misconduct or juror bias claim for abuse of discretion. United

States v. Duncan, 598 F.2d 839, 866 (4th Cir. 1979) (Because “[t]he

circumstances in which juror misconduct can occur are probably as

varied as all of human experience[,] [w]e have followed the view

that the district court may deal with such claims as it feels the

particular circumstances require and have only reversed for abuse

of discretion.”). The district court denied N-Jie an evidentiary

hearing, holding that N-Jie “failed to establish actual bias” or

implied bias. J.A. 723. We agree with the district court.

N-Jie’s motion for a new trial attempts to depict Ms. Rosohac’s

sentiments toward defense counsel as bias against N-Jie. This
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depiction is purely conjectural, and N-Jie proffered nothing to

suggest otherwise. Given the speculative nature of N-Jie’s

allegations, we conclude that the district court did not abuse its

discretion in refusing to grant an evidentiary hearing.

We review a district court’s denial of a motion for a new

trial for abuse of discretion. United States v. Smith, 451 F.3d

209, 216 (4th Cir. 2006) (quoting United States v. Perry, 335 F.3d

316, 320 (4th Cir. 2003)). “Under the applicable legal principles,

a trial court ‘should exercise its discretion to award a new trial

sparingly,’ and a jury verdict is not to be overturned except in

the rare circumstance when the evidence ‘weighs heavily’ against

it.” Smith, 451 F.3d at 216-17. For the reasons we concluded an

evidentiary hearing was not warranted, we also find that the

district court did not abuse its discretion in denying the motion

for a new trial.

II. Prosecutorial Vouching

On May 25, 2006, N-Jie filed a post-trial motion seeking a new

trial on the basis of prosecutorial misconduct. N-Jie contended

that during closing arguments the prosecutor “stated something to

the affect [sic] of ‘[y]ou are not going to believe the testimony

of the defendant over the testimony of these police officers.’”

J.A. 706. The prosecutor denies having made this, or any, vouching

statement. The district court did not hear the prosecutor make a
1

The transcript is as follows:

Mr. Bernard: Well, you once again use your common sense

when you basically weigh the testimony of the law

enforcement agents that were monitoring the conversation

--

Mr. Gillison: Objection, Your Honor. May we approach?

The Court: You may.

Mr. Gillison: I believe that that would be improper

argument to tell the jury. The jury has to [sic] judge’s

instruction with regards to what weight to give

testimony. And this man is, by last statement, he was

inferring that a law –- the law affords the agents’

testimony is more credible than just an average citizen.

I object to that. I object to that statement. I ask

that it be stricken from the record.

The Court: All right. Mr. Bernard?

Mr. Bernard: I said that you’ll have to weigh the

statements of law enforcement. I don’t -– I didn’t say

they’ll have to believe more than any other witness, Your

Honor.

The Court: I’m going to overrule the objection

because it leaves it to the discretion of the jury to

what weight it ascribes, and so I’m going to overrule the

objection.

J.A. 677-78.

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vouching statement, nor is such a statement reflected in the

transcript.1

 The district court concluded that the prosecutor told

the jury only that “you once again use your common sense when you

basically weigh the testimony of the law enforcement agents that

were monitoring the conversation.” J.A. 677, 725-26. There is no

evidence to support N-Jie’s claim that the district court erred in

refusing to grant a new trial on this ground.
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Assuming arguendo that the prosecutor improperly vouched for

the testimony of the law enforcement agents, the district court

properly concluded that a new trial was not warranted. “It is

improper for a prosecutor to directly express his opinion as to the

veracity of a witness.” United States v. Loayza, 107 F.3d 257, 262

(4th Cir. 1997) (internal punctuation omitted). To warrant a new

trial, a prosecutor’s statement must improperly vouch for a

witness’s veracity and it must be “more likely than not that the

remarks materially affected the appellant’s substantial rights.”

Id. “[C]omments made by a prosecutor during closing arguments will

not warrant a new trial unless they ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.’” Id. (quoting United States v. Francisco, 35 F.3d 116,

120 (4th Cir. 1994), cert. denied, 513 U.S. 1133, 115 S. Ct. 950

(1995)).

In Loayza, we instructed district courts to consider (1)

“whether the comments misled the jury and prejudiced the

appellant”; (2) “were [the comments] isolated or extensive”; (3)

“absent the remarks, what was the weight of the evidence against

the accused”; and (4) “were the prosecutor’s remarks deliberate.”

Loayza, 107 F.3d at 262 (citing United States v. Moore, 11 F.3d

475, 482 (4th Cir. 1993)). In United States v. Wilson, 135 F.3d

291, 299 (4th Cir. 1998), we instructed district courts to further

“consider (5) whether the prosecutor’s remarks were invited by
2

The district court instructed the jury that:

In considering the testimony of witnesses who are police

officers or agents of the government, you may not give

more weight to the testimony of police officers or agents

of the government than you give to the testimony of other

witnesses for the mere reason that the witness is a

police officer or an agent of the government.

J.A. 648.

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improper conduct of defense counsel, and (6) whether curative

instructions were given to the jury.” Id. (internal citation

omitted). “These factors are examined in the context of the entire

trial, and no one factor is dispositive.” Id.

Assuming that the prosecutor made an improper vouching

statement, the district court’s instructions prevented the

statement from misleading the jury or prejudicing N-Jie.2 See

Francisco, 35 F.3d at 120 (“[W]e follow the presumption that the

jury obeyed the district court’s limiting instructions.”). N-Jie

conceded that the prosecutor’s statement “was not deliberately

placed before the jury to divert attention to extraneous matters,”

that the statement was isolated, and that the government adduced

“strong competent proof” of N-Jie’s guilt; prongs 2, 3, and 4,

respectively. App. Br. at 24. There is no evidence that any

statement “was invited by improper conduct of defense counsel.”

Wilson, 135 F.3d at 299. Though no immediate curative instruction

was given, the district court’s final jury instructions prevented

the statement from misleading the jury or prejudicing N-Jie. Thus
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even if the prosecutor made an improper vouching statement, we

would affirm the district court’s conclusion that the statement did

not materially affect N-Jie’s substantial rights or “‘so infect[]

the trial with unfairness as to make the resulting conviction a

denial of due process.’” Loayza, 107 F.3d at 262 (quoting

Francisco, 35 F.3d at 120).

III. Obstruction of Justice Enhancement

At the sentencing hearing, the district court found that N-Jie

committed perjury during his testimony. The district court

accordingly applied a two-level enhancement for obstruction of

justice, as set forth in USSG § 3C1.1. To apply an obstruction of

justice enhancement, the district court must find by the

preponderance of the evidence that the defendant gave “(1) false

testimony (2) concerning a material matter (3) given with the

willful intent to deceive (rather than as a result of, say,

confusion, mistake, or faulty memory).” United States v. Smith, 62

F.3d 641, 646 (4th Cir. 1995) (citing United States v. Dunnigan,

507 U.S. 87, 92-93, 113 S. Ct. 1111 (1993)). When reviewing the

district court’s application of the Sentencing Guidelines, we

accept the district court’s findings of fact unless they are

clearly erroneous and give due deference to the district court’s

application of the Guidelines to the facts. United States v.
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Cutler, 36 F.3d 406, 407 (4th Cir. 1994). The district court made

a specific finding as to each element, stating that:

I think it is clear to me as the presiding judge that the

defendant perjured himself when he testified as to his

involvement in the conspiracy of possession with intent

to distribute marijuana. That was false testimony. It

was involving material fact, and it was given in my

opinion with the willful intent to deceive. It wasn’t

confused testimony. It wasn’t mistaken testimony. And

it wasn’t faulty testimony in the sense that it was

somehow accidental. So I think independent of his

testimony . . . there is sufficient evidence to show

obstruction of justice.

J.A. 747. We conclude that the district court did not clearly err

in finding that N-Jie gave false testimony about a material matter

with the willful intent to deceive. Therefore, the two-level

adjustment for obstruction of justice was warranted.

IV. Conclusion

For the foregoing reasons, the district court’s judgment is

AFFIRMED.