PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4817

MICHAEL RAY WOODS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Senior District Judge.

(5:10-cr-00037-F-1)

Argued: January 31, 2013

Decided: March 18, 2013

Before TRAXLER, Chief Judge, and KEENAN and

THACKER, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Chief Judge Traxler and Judge Thacker joined.

COUNSEL

ARGUED: Douglas Everette Kingsbery, THARRINGTON

SMITH LLP, Raleigh, North Carolina, for Appellant. Yvonne

Victoria Watford-McKinney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas G. Walker, United States Attorney,

Jennifer P. May-Parker, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,

North Carolina, for Appellee. 

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

Defendant Michael R. Woods (Woods) was convicted of

numerous charges arising from a tax fraud scheme operated

through his business of preparing income tax returns for private individuals. In this appeal, Woods argues that his trial

was prejudiced by three errors, namely, that the district court

improperly restricted Woods’ constitutional right to testify in

his own defense; that the prosecutor committed reversible

error by making an improper statement during closing argument; and that the district court’s instructions to the jury were

improper. Although we hold that two errors occurred during

the trial, we conclude that neither constituted reversible error

in the absence of any prejudice affecting the outcome of the

trial. Accordingly, we affirm Woods’ convictions and sentence.

I.

Woods was charged in a thirty-four count superseding

indictment with willfully assisting the preparation and presentation of false and fraudulent tax returns to the Internal Revenue Service (IRS), in violation of 26 U.S.C. § 7206(2)

(Counts 1-12); wire fraud, in violation of 18 U.S.C. § 1343

(Counts 13-22); identity theft, in violation of 18 U.S.C.

§ 1028(a)(7) (Counts 23-32); and aggravated identity theft, in

violation of 18 U.S.C. § 1028A (Counts 33-34). During the

course of the fraudulent scheme, Woods, a veteran of the

United States Army, was employed on a full-time basis as a

2 UNITED STATES v. WOODS
data warehouse manager with the United States Department

of Veterans Affairs (VA) in Fayetteville, North Carolina. To

supplement the income he received from his work at the VA,

Woods operated a tax preparation service, M&R Computer

Consulting and Tax (M&R), out of his home. Woods personally prepared clients’ income tax returns for a fee, which was

deducted directly from the clients’ tax refunds. 

According to the government’s theory of the case, Woods

added fraudulent information to clients’ tax returns in order to

qualify the clients for substantial tax refunds. For example,

the evidence showed that Woods listed on the returns various

educational, business, and travel expenses never incurred by

his clients. Also, Woods falsely listed as dependents on several clients’ tax returns the names of individuals who were

patients of the VA, including their birth dates and social

security numbers. The government’s witnesses testified that

Woods charged clients a $500 premium for each false dependent included on a tax return. The government maintained that

Woods stole the names of the false dependents from the VA

computer system, to which he had access through his employment as data warehouse manager. 

Woods represented himself at trial, with the assistance of

stand-by counsel, and testified in his own defense. Woods

denied that he had stolen any identities from the VA and

stated that the incorrect information he entered on his clients’

tax returns was provided by the clients themselves. 

After a four-day trial, the jury returned a verdict of guilty

on all counts.1 The district court sentenced Woods to a total

of 132 months’ imprisonment and a three-year period of

supervised release, and ordered Woods to pay restitution to

the IRS in the amount of $464,599. Woods filed a timely

notice of appeal. 

1The district court subsequently vacated one of the identity theft and

one of the aggravated identity theft convictions, leaving 32 counts of conviction remaining. 

UNITED STATES v. WOODS 3
Woods argues on appeal: (1) that the district court improperly restricted Woods’ constitutional right to testify in his own

defense by sustaining the government’s repeated objections to

portions of his testimony; (2) that his substantial rights were

affected by the prosecutor’s improper statement during closing argument that Woods had lied under oath when testifying;

(3) that the district court erred in refusing to instruct the jury

regarding evidence of Woods’ good character; and (4) that the

district court gave an erroneous instruction on the elements of

the identity theft offenses. We address each argument in turn.

II.

Woods first argues that he effectively was denied his constitutional right to testify in his own defense because, during

his testimony, the district court repeatedly sustained the government’s objections and otherwise limited his presentation of

evidence. A defendant’s right to testify in his own defense is

rooted in the Constitution’s Due Process Clause, Compulsory

Process Clause, and Fifth Amendment right against selfincrimination. Rock v. Arkansas, 483 U.S. 44, 49-53 (1987).

Nevertheless, this right is "not unlimited," United States v.

Midgett, 342 F.3d 321, 325 (4th Cir. 2003) (citation omitted),

and a defendant choosing to appear pro se still must comply

with substantive and procedural courtroom rules, Faretta v.

California, 422 U.S. 806, 834 n.46 (1975). See also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (explaining that,

in presenting witnesses in his defense, a defendant "must

comply with established rules of procedure and evidence

designed to assure both fairness and reliability in the ascertainment of guilt and innocence"). 

A district court thus may impose "reasonable restrictions"

on a defendant’s ability to present relevant evidence. United

States v. Scheffer, 523 U.S. 303, 308 (1998). However, "restrictions of a defendant’s right to testify may not be arbitrary

or disproportionate to the purposes they are designed to serve."2

Rock, 483 U.S. at 55-56. 

2We reject the government’s contention that, because the defendant did

not object to the court’s restrictions on his testimony at trial, we are lim4 UNITED STATES v. WOODS
District courts generally enjoy broad discretion in ruling on

the admissibility of evidence, see United States v. Medford,

661 F.3d 746, 751 (4th Cir. 2011), as well as in the realm of

trial management, which is "quintessentially the province of

the district courts," United States v. Smith, 452 F.3d 323, 332

(4th Cir. 2006). See also Saudi v. Northrop Grumman Corp.,

427 F.3d 271, 278 (4th Cir. 2005). In the exercise of these

responsibilities, district courts are charged with the duty of

maintaining "reasonable control over the mode and order of

examining witnesses and presenting evidence" in order to promote the truth-seeking function of the trial, to avoid wasting

time, and to protect witnesses from harassment. Fed. R. Evid.

611(a); see also United States v. Gravely, 840 F.2d 1156,

1163 (4th Cir. 1988) (explaining that district courts have

broad discretion to control the method of questioning witnesses and the presentation of evidence to ensure that witnesses are treated fairly, and that "the search for truth is not

impaired by presentation of extraneous, prejudicial or confusing material"). 

Employing these principles, we consider whether the district court acted in an arbitrary fashion, or restricted Woods’

testimony to a degree not warranted by the demands of evidentiary and trial management. During the course of Woods’

direct testimony, the government lodged 15 objections, some

of which were overruled by the court. The majority of the

government’s objections rested on the ground that Woods was

arguing to the jury rather than testifying about factual matters,

was summarizing other witnesses’ testimony, or was testifyited to plain error review. To preserve a claim of error under Federal Rule

of Criminal Procedure 51(b), a party must only "inform[ ] the court . . .

of the action the party wishes the court to take." In this case, Woods

informed the court of his desired rulings by attempting to testify regarding

specific issues, thereby prompting the government’s objections. By his

attempted testimony, therefore, Woods preserved his claim of error for our

review. 

UNITED STATES v. WOODS 5
ing concerning facts about which he had no personal knowledge. 

In response to these repeated objections, the district court

advised Woods to "just relate the facts," and to "confine [his

testimony] to the facts . . . about what happened." The court

further explained to Woods that "we don’t want to argue

about . . . whether [a previous witness] said something or

didn’t say something." The court additionally informed

Woods that he would have an opportunity to make arguments

to the jury at a later time. At various other points during

Woods’ testimony, the court responded to the prosecutor that

Woods should be allowed some leeway in presenting his testimony. 

Woods argues that, as a result of these rulings, the district

court prevented him from developing certain "themes" of his

defense during his testimony. These themes included: (1) that

Woods entered on the tax returns only information provided

by his clients concerning their dependents; (2) that Woods’

employees prepared certain fraudulent tax returns without his

knowledge; (3) that Woods holds the Army and veterans in

high regard and, therefore, would not have stolen the identities of disabled veterans; (4) that Woods "values his personal

integrity and respects the law," and has "cultivated a reputation for honesty and abiding the law"; and (5) that certain

$500 checks Woods received from clients did not represent

payment for false dependent data, but were given in repayment of loans Woods had made in anticipation of the clients’

tax refunds. 

Despite the government’s objections, Woods was permitted

to testify regarding a range of issues assisting his defense,

including several of the subjects he claims on appeal he was

not allowed to develop. For example, in his testimony, Woods

flatly denied that he had stolen personal data of VA patients

and had used that information on his clients’ tax returns. He

6 UNITED STATES v. WOODS
further stated that the $500 checks he received from clients

were for loan repayments. 

Additionally, Woods explained that his assistant, who was

one of the government’s witnesses, "had access to everything

in [his] tax business." Woods related that his assistant prepared certain tax returns without Woods’ supervision, thereby

implying that she was involved in the scheme. Woods further

testified that he had received from his clients all the information he entered on the tax returns, that the clients verified that

they were the source of this information by signing the IRS

forms, and that he always personally reviewed the tax returns

with his clients. Finally, Woods attested to his own good character and integrity. 

After reviewing the entire record, we conclude that the district court did not abuse its discretion in its evidentiary rulings, did not act arbitrarily, and did not impose limitations on

Woods’ testimony that were disproportionate to legitimate

concerns of evidentiary reliability or trial management. As an

appellate body, we appreciate that the dynamic nature of jury

trials requires special vigilance on the part of district courts to

manage effectively the participation of parties, witnesses,

jurors, and spectators. We also recognize the difficult role of

the district court when a defendant chooses to represent himself, especially when such a defendant elects to testify in his

own defense. 

In light of these challenges, we decline to find reversible

error in the absence of plainly arbitrary conduct by the district

court. Here, there is no such conduct, and the present record

affirmatively demonstrates that the district court expressly

granted Woods considerable leeway in presenting evidence

and allowed him to offer substantial exculpatory testimony.

Accordingly, we hold that the district court did not deprive

Woods of his constitutional right to testify in his own defense.

UNITED STATES v. WOODS 7
III.

Woods argues, nevertheless, that he is entitled to a new trial

because he was prejudiced by an improper statement that the

prosecutor made during closing argument. However, Woods

did not object to the prosecutor’s statement at trial and, therefore, we are confined to plain error review. See United States

v. Olano, 507 U.S. 725, 731 (1993). Under this standard,

Woods must show not only that the district court committed

an "error" that was "plain," but also that the error affected

Woods’ substantial rights thereby impacting the outcome of

his trial. United States v. Gonzales-Flores, 701 F.3d 112, 115

(4th Cir. 2012) (citing Olano, 507 U.S. at 732). Further, even

when a defendant establishes the above elements of plain

error, "we may nevertheless decline to notice the error unless

it seriously affects the fairness, integrity or public reputation

of judicial proceedings." Id. (quotation marks and alteration

omitted). 

As discussed above, the government maintained that

Woods profited from his fraudulent scheme by charging clients a $500 premium for the inclusion of false dependent

information on those clients’ tax returns. Woods, however,

testified that the $500 sums represented repayments of loans

he had made to clients before they received their tax refunds.

The part of the government’s closing argument at issue here

occurred when the prosecutor stated: 

So, Mr. Woods was right in the middle of getting

these $500 payments for the fake dependents and he

lied about it under oath when he testified this morning (emphasis added). 

According to Woods, this statement was improper and constituted reversible error. In response, the government argues

that the statement was neither improper nor prejudicial. 

8 UNITED STATES v. WOODS
First, we disagree with the government’s contention that

this statement was proper. We long have rebuked government

counsel for making inflammatory statements of this nature.

Twenty years ago, in United States v. Moore, 11 F.3d 475

(4th Cir. 1993), we strongly criticized a prosecutor’s statement during closing argument that the crime was "compounded when the defendant . . . comes into a federal court,

takes the oath on the Bible, and lies." 11 F.3d at 480. We

explained unequivocally that "it is highly improper for the

government to refer to a defense witness as a liar," and further

noted that we had "continually admonished the government

not to engage in such conduct." Id. at 481 (emphasis added).

Applying plain error review in Moore, we held that the prosecutor’s statement was error that was plain, and we "strongly

admonished [the government] to ‘clean up its act,’" issuing

the warning "hopefully for the last time."3Id. at 482 n.9; see

also United States v. Weatherless, 734 F.2d 179, 181 (4th Cir.

1984) (noting that government counsel’s multiple statements

that the defendant was a liar and a "loser" fell "well beneath

the standard which a prosecutor should observe"); cf. United

States v. Loayza, 107 F.3d 257, 262 (4th Cir. 1997) ("It is

improper for a prosecutor to directly express his opinion as to

the veracity of a witness.") (quoting Moore, 11 F.3d at 481).

Our reasoning in Moore applies with equal force in the

present case, because "any statement of personal belief jeopardizes the integrity of the trial process." Loayza, 107 F.3d at

262 (quoting United States v. Harrison, 716 F.2d 1050, 1052

(4th Cir. 1983)). When a prosecutor comments on the veracity

of a witness, the prosecutor’s statement presents two discrete

risks: (1) of improperly suggesting to the jury that the prose3Despite the error in Moore, we nevertheless affirmed the district

court’s judgment because the error, although plain, had not affected the

defendant’s substantial rights. 11 F.3d at 482. In a more recent case in

which the government called the defendant a liar, we found that plain error

had not been established, and we declined to vacate the defendant’s conviction. United States v. Powell, 680 F.3d 350 (4th Cir. 2012). 

UNITED STATES v. WOODS 9
cutor’s personal opinion has evidentiary weight; and (2) of

improperly inviting the jury to infer that the prosecutor "had

access to extra-judicial information, not available to the jury."

United States v. Moore, 710 F.2d 157, 159 (4th Cir. 1983). 

The gravity of these risks is amplified in the case of a criminal defendant exercising his constitutional right to testify in

his own defense. Here, by stating that Woods lied under oath,

the prosecutor suggested to the jury that Woods abused this

constitutional right and attempted to manipulate the outcome

of the trial to avoid being held responsible for his true actions.

Based on these grave concerns, we reiterate our holding in

Moore that error that is plain results when a prosecutor states

that a defendant has lied under oath during trial, and we conclude that such an error occurred here.4

In addition to establishing error, and that the error was

plain, Woods also must show that his "substantial rights" were

affected by the error in order to obtain a new trial. Olano, 507

U.S. at 735. When the evidence of guilt "is overwhelming and

a perfect trial would reach the same result, a substantial right

is not affected" by a particular error. United States v. Godwin,

272 F.3d 659, 680 (4th Cir. 2001). 

In conducting this prejudice inquiry, we apply a wellestablished test. We consider:

(1) the degree to which the prosecutor’s remarks

have a tendency to mislead the jury and to prejudice

the accused; (2) whether the remarks were isolated

or extensive; (3) absent the remarks, the strength of

competent proof introduced to establish the guilt of

the accused; and (4) whether the comments were

4We are not persuaded by the government’s attempt on appeal to distinguish between a situation in which the prosecutor referred to the defendant

as a "liar," and, as in this case, a situation in which the prosecutor stated

that the defendant "lied." 

10 UNITED STATES v. WOODS
deliberately placed before the jury to divert attention

to extraneous matters. 

Harrison, 716 F.2d at 1052; see also Moore, 11 F.3d at 482.

At the outset, we recognize that the prosecutor’s statement

risked prejudicing the outcome of the trial due to the importance of Woods’ credibility regarding the issues in the case.

The government’s proof relied heavily on the testimony of

Woods’ former clients and employees who either were complicit in, or at least benefitted from, the fraudulent scheme.

Indeed, Woods’ defense theory, that he merely transcribed the

information provided by his clients, made Woods’ credibility

an important issue particularly because Woods did not offer

any other witnesses in his defense.5

Despite the government’s concession that the prosecutor’s

remark was deliberate, we conclude that the three other elements of our prejudice inquiry demonstrate that the outcome

of the trial was not affected by the improper statement. The

comment was relatively isolated in nature.6 And, most importantly, the statement did not prejudice Woods given the

"strength of competent proof introduced" against him that

both overwhelmingly supported a finding of guilt and undermined his credibility. See Harrison, 716 F.2d at 1051. 

Woods’ credibility was damaged significantly by documentary evidence presented by the government that was in outright conflict with his testimony. That documentary evidence

included copies of numerous checks and money orders written

5The record reflects that the defendant admitted three exhibits into evidence, though the exhibits themselves are not included in the record on

appeal. 

6Later during the government’s closing argument, the prosecutor stated,

"[Woods] has no regret for what he did. Instead, he took the stand this

morning and gave blatantly false testimony in an attempt to avoid responsibility." Woods does not challenge this statement on appeal. 

UNITED STATES v. WOODS 11
by clients in the amount of $500 and $1000, which undermined Woods’ contention that he charged only between $150

and $247 to prepare each return. The evidence of those checks

and money orders also undermined Woods’ flat denials that

he had received any payments of $500 for tax services.7

Some of these checks included the word "taxes" on their

"memo" line. When confronted with the evidence of the payments on cross-examination, Woods testified that he was

unable to recall specific transactions. Upon being shown

actual notations on some of the checks, bearing the word

"taxes" on the "memo" lines, Woods still denied that the payments related to preparation of the clients’ taxes. 

Woods also stated that he "always" reviewed completed

returns with clients, whereas multiple clients testified that

Woods did not show them the returns once they had been

completed. The jury obviously recognized that this body of

evidence was irreconcilable, and that Woods’ testimony was

contrary to that of all the other evidence in the case. See

Moore, 11 F.3d at 482. 

Additionally, the testimony of various government witnesses, including that of several clients and victims, strongly

supported the jury’s finding of guilt. For example, one of

Woods’ clients, April Holder, testified that she understood,

before using M&R’s services for the first time, that she could

"purchase dependents" from Woods for $500. After Woods

entered on Holder’s tax return the name of a false dependent

whom Holder did not know, Woods reviewed the return with

Holder line by line, including the false dependent information.

After Holder received her refund, she personally delivered

7As previously discussed, in his direct testimony, Woods stated that he

periodically loaned money in $500 amounts to clients, which he referred

to as "instant loans," and that clients would repay him during tax season,

presumably after receiving their tax refunds. One of the checks admitted

at trial included the word "loan" on the "memo" line. 

12 UNITED STATES v. WOODS
$500 in cash to Woods "for the dependent fee." The government also presented the testimony of twelve clients whose

returns were falsified by Woods, and of eight victims whose

identity information was fraudulently included to show them

as dependents on Woods’ clients’ returns.

Two of Woods’ employees who participated in the fraudulent scheme also testified at the trial as government witnesses.

One employee, Larry Williams, testified that Woods directed

him to collect $500 payments from clients who had obtained

additional dependents on their tax returns, which sums were

charged in addition to the basic tax preparation fee deducted

from the refunds. Williams explained that when clients asked

him during the "intake" process at Woods’ home about purchasing dependents, Williams referred such inquiries directly

to Woods. Williams also testified that he had observed on

Woods’ desk a list of various names, dates of birth, and social

security numbers, some of which had been "crossed out," further implicating Woods as a knowing participant in the

scheme.

Woods’ assistant, Montina Ladson, who prepared false tax

returns under Woods’ direction and testified pursuant to a

grant of immunity, described a conversation with Woods in

which she told him that certain clients had asked her about

purchasing dependents. Woods responded that he had "helped

a couple of people out." Following this conversation, when

clients asked to obtain a false dependent, Ladson referred the

question to Woods. In response, Woods sometimes provided

Ladson the names, dates of birth, and social security numbers

of purported dependents for her to include on the clients’

returns and, at other times, Woods completed the falsified

returns himself. Ladson specified that she knew that the identities of these dependents supplied by Woods were false. 

Ladson further testified that in March 2006, when Woods

was travelling in connection with his work for the VA, Ladson processed M&R’s pending tax returns. She explained that,

UNITED STATES v. WOODS 13
during that time, Woods instructed her to insert the names of

false dependents on returns he had started, and sent Ladson

via email a list of the identifying information that should be

included.8

In light of this volume of evidence of Woods’ guilt, we

conclude that, even in the absence of the prosecutor’s

improper statement, Woods’ credibility would have been significantly weakened by the direct conflict between his testimony and that of the several government witnesses and the

documentary evidence. Moreover, a considerable portion of

the government’s evidence directly contradicted Woods’ theories of defense. Accordingly, although we strongly criticize

the prosecutor’s argument that Woods had lied under oath, we

conclude that Woods’ substantial rights were not violated and

that this trial error does not warrant reversal of Woods’ convictions. 

IV.

A.

Woods next contends that the district court erred when it

declined to include in its jury charge the pattern jury instruction regarding the character of the accused. We review a district court’s decision whether to give a particular jury

instruction for abuse of discretion. United States v. Lighty,

616 F.3d 321, 366 (4th Cir. 2010). "A district court commits

reversible error in refusing to provide a proffered jury instruction only when the instruction (1) was correct; (2) was not

8

In his direct testimony, Woods attempted to argue that the email had

originated within the VA while he was travelling, so he could not have

sent it. Woods stated, however, that he did not know the origin of the

email, and the district court thus properly excluded this line of testimony.

See Fed. R. Evid. 701 (providing for admission of lay opinion testimony

that is "rationally based on the witness’s perception" and is "not based on

scientific, technical, or other specialized knowledge" for which an expert

would be required). 

14 UNITED STATES v. WOODS
substantially covered by the court’s charge to the jury; and (3)

dealt with some point in the trial so important, that failure to

give the requested instruction seriously impaired the defendant’s ability to conduct his defense." Id. (citation omitted).

However, "an error in jury instructions will mandate reversal

of a judgment only if the error is determined to have been

prejudicial, based on a review of the record as a whole." Wellington v. Daniels, 717 F.2d 932, 938 (4th Cir. 1983).

During the charging conference, Woods requested that the

jury be given the following instruction regarding his good

character:

The defendant has offered evidence of his good general reputation for honesty and integrity. The jury

should consider this evidence along with all the other

evidence in the case in reaching a verdict.

Evidence of a defendant’s reputation, inconsistent

with those traits of character ordinarily involved in

the commission of the crimes charged, may give rise

to a reasonable doubt since the jury may think it

improbable or unlikely that a person of good character for honesty or integrity and for being a lawabiding citizen would commit such crimes. 

A defendant "may introduce affirmative testimony that the

general estimate of his character is so favorable that the jury

may infer that he would not be likely to commit the offense

charged." Michelson v. United States, 335 U.S. 469, 476

(1948); see also Fed. R. Evid. 404(a)(2)(A) ("[A] defendant

may offer evidence of the defendant’s pertinent" character

trait); Mannix v. United States, 140 F.2d 250, 253-54 (4th Cir.

1944) (explaining proper character evidence instruction). In

the present case, Woods offered two sources of evidence

regarding his good character: (1) his own testimony; and (2)

the testimony of his supervisor at the VA, Milton Harrison,

UNITED STATES v. WOODS 15
whom the government called in its case-in-chief and Woods

questioned on cross-examination. 

Woods testified that his "integrity has never been in question about my service and my dedication to my work . . . I’ve

worked hard." Harrison agreed on cross-examination that

Woods’ integrity was never called into question regarding his

work at the VA. Harrison also acknowledged in his testimony

his previous statement that he would be surprised to learn that

Woods had been abusing his position at the VA. 

On redirect examination, Harrison responded to the government’s questions as follows:

Q: Mr. Harrison, Mr. Woods asked you if his

integrity had been called into question at work.

Do you remember that?

A: Yes.

Q: Isn’t it fair to say that the information that

you’ve been presented with here calls into question the defendant’s integrity?

A: Yes.

The district court ultimately declined to give Woods’ proffered instruction on character evidence, finding that Harrison

"equivocated" in his opinion of Woods’ good character. 

The government contends on appeal that, by his testimony

on redirect examination, Harrison retracted his opinion of the

defendant’s character and, thus, that Harrison’s testimony did

not support Woods’ request that a character instruction be

given to the jury. We disagree with the government’s argument.

The prosecutor’s question, referenced above, effectively

required that Harrison assume Woods’ guilt for purposes of

16 UNITED STATES v. WOODS
influencing the content of the character testimony, a practice

clearly prohibited under our precedent. We repeatedly have

held that "questions put to defense character witnesses that

assume[ ] a defendant’s guilt of the crime for which he was

charged [are] improper." United States v. Mason, 993 F.2d

406, 408 (4th Cir. 1993) (citing United States v. Siers, 873

F.2d 747 (4th Cir. 1989)). Harrison’s response to the improper

question therefore did not provide a valid basis on which to

refuse the proffered character instruction. 

Even assuming that Harrison’s overall testimony was

"equivocal" in its endorsement of Woods’ character, it nevertheless remained the province of the jury to determine the

credibility of his testimony and the proper weight to afford

that particular evidence, including consideration of any inconsistencies in Harrison’s testimony. See United States v.

Dinkins, 691 F.3d 358, 387 (4th Cir. 2012) (noting that "it is

the jury’s province to weigh the credibility of the witnesses,

and to resolve any conflicts in the evidence"). Therefore, we

hold that the district court abused its discretion in refusing to

give the requested character evidence instruction.

We are unable to conclude, however, that Woods was prejudiced by the district court’s refusal to give that instruction.

As previously discussed, Woods’ uncorroborated testimony

was in direct conflict with substantial documentary and testimonial evidence. Comparing the defense evidence with the

strength of the government’s case, we firmly are convinced

that the jury would have returned guilty verdicts with or without the requested character instruction. Therefore, the record

before us, considered as a whole, fails to establish the

required manifestation of prejudice. See Wellington, 717 F.2d

at 938. 

B.

Finally, Woods appeals portions of the district court’s

instructions regarding the identity theft offenses. We review

UNITED STATES v. WOODS 17
de novo the question whether the district court properly

instructed the jury on the statutory elements of an offense.

United States v. Allen, 491 F.3d 178, 187 (4th Cir. 2007); see

also United States v. Jefferson, 674 F.3d 332, 351 (4th Cir.

2012) ("We review de novo the claim that a jury instruction

failed to correctly state the applicable law."). In our review,

we do not "view a single instruction in isolation," but instead

"consider whether taken as a whole and in the context of the

entire charge, the instructions accurately and fairly state the

controlling law." Allen, 491 F.3d at 187 (citation omitted).

Woods was charged with multiple counts of identity theft

and aggravated identity theft, in violation of 18 U.S.C.

§§ 1028(a)(7) and 1028A, respectively. Section 1028(a)(7)

provides criminal penalties for "whoever . . . knowingly transfers, possesses, or uses, without lawful authority, a means of

identification of another person with the intent to commit, or

to aid or abet, or in connection with, any unlawful activity

that constitutes a violation of Federal law, or that constitutes

a felony under any applicable State or local law." Section

1028A prohibits the same conduct committed "during and in

relation to" an enumerated felony, in this case, wire fraud. 18

U.S.C. § 1028A(a)(1), (c)(5). The basis for these counts was

Woods’ inclusion of third parties’ names, with accompanying

personal identity information, as dependents on his clients’

tax returns without the authorization of those named third parties. 

The challenged portions of the district court’s jury instructions read: 

The term "knowingly" means that the defendant

knew that he was using a means of identification

which was not his own, that the defendant knew that

the means of identification belonged to or was

assigned to another person, and that the defendant

acted without lawful authority.

18 UNITED STATES v. WOODS
To "act without lawful authority" means to have

transferred or used the means of identification of

another person without the person’s consent or

knowledge (internal quotations added).9

Woods objected to these instructions on the ground that they

permitted certain lawful conduct, including listing true children as dependents on their parents’ returns without the children’s consent, to fall within the definition of unlawful

activity. Further, according to Woods, the district court was

required to instruct the jury that he could be found guilty only

if he knew that the dependents listed on the tax returns were

not the true dependents of his clients. We disagree with

Woods’ arguments. 

The district court instructed the jury that the government

must prove beyond a reasonable doubt that Woods "knew"

that his conduct was "without lawful authority." In contrast,

one of Woods’ theories at trial was that he did not know that

he was acting without lawful authority, but instead believed

that he effectively had obtained the dependents’ consent

through their parents’ or caretakers’ submission of this information to him. Therefore, considering the jury charge as a

whole, we conclude that the instructions accurately stated the

statutory elements of identity theft and aggravated identity

theft, and that the district court did not err in its instructions

regarding these counts. See United States v. Smoot, 690 F.3d

215, 223 (4th Cir. 2012) ("[A] jury instruction is not flawed

if it is a fair and accurate statement of law."). 

V.

Finally, Woods argues that we should vacate his conviction

because the cumulative effect of the claimed errors prejudiced

9The district court gave these instructions twice, once for each identity

theft statute. Although the language was not identical both times, it was

substantively the same. 

UNITED STATES v. WOODS 19
the outcome of his trial. Under our cumulative error doctrine,

"the cumulative effect of two or more individually harmless

errors has the potential to prejudice a defendant to the same

extent as a single reversible error." Lighty, 616 F.3d at 371

(quoting United States v. Basham, 561 F.3d 302, 330 (4th Cir.

2009)). However, we will reverse a conviction on the basis of

cumulative error only when the errors "so fatally infect the

trial that they violated the trial’s fundamental fairness." Id.

(citation omitted).

As recounted above, we have identified two errors that

occurred during Woods’ trial, namely, the prosecutor’s

improper statement that Woods had lied under oath, and the

district court’s decision not to instruct the jury on Woods’

character based on a flawed line of questioning by the prosecutor. Although these errors are not insignificant, and we

strongly caution the government against engaging in such

conduct in the future, we cannot conclude that the errors prejudiced Woods’ case so as to justify the unusual remedy of

reversal based on cumulative error. Neither of these errors on

its own "work[ed] any cognizable harm," Basham, 561 F.3d

at 330 (citation omitted), and the strength of the government’s

evidence leaves little doubt that the jury would have returned

guilty verdicts irrespective of the identified errors. 

VI.

In sum, we hold that, although Woods’ trial was affected by

two errors, those errors, when considered both individually

and cumulatively, do not warrant reversal of Woods’ convictions. We further hold that the district court did not improperly restrict Woods’ right to testify in his defense and

correctly instructed the jury regarding the identity theft

offenses. For these reasons, we affirm the district court’s

judgment.

AFFIRMED

20 UNITED STATES v. WOODS