UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4593

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EVANS APPIAH,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. 

George J. Hazel, District Judge. (8:15-cr-00508-GJH-1)

Submitted: April 27, 2017 Decided: May 17, 2017

Before MOTZ, KING, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore, Maryland, 

for Appellant. Rod J. Rosenstein, United States Attorney, Jennifer L. Wine, Special 

Assistant United States Attorney, Thomas P. Windom, Assistant United States Attorney, 

Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Evans Appiah appeals his convictions for conspiracy to commit wire fraud, in 

violation of 18 U.S.C. § 1349 (2012); mail fraud, in violation of 18 U.S.C. § 1341 (2012); 

two counts of wire fraud, in violation of 18 U.S.C. § 1343 (2012); and aggravated 

identity theft, in violation of 18 U.S.C. § 1028A (2012). For the reasons that follow, we 

affirm the district court’s judgment.

First, Appiah challenges the district court’s failure to sua sponte voir dire the jury 

as to its observation of Appiah’s mother crying outside the courtroom in what was 

perceived as a calculated attempt to garner sympathy from the jury. “In a criminal case, 

any private communication, contact, or tampering directly or indirectly, with a juror 

during a trial about the matter pending before the jury is . . . deemed presumptively 

prejudicial.” Remmer v. United States, 347 U.S. 227, 229 (1954). We ordinarily review 

a district court’s decision not to hold voir dire following a jury intimidation allegation 

under an abuse of discretion standard. United States v. Basham, 561 F.3d 302, 320 (4th 

Cir. 2009). However, where, as here, the defendant failed to raise the issue at trial, our 

review is for plain error only. United States v. Baptiste, 596 F.3d 214, 221 (4th Cir. 

2010).

To demonstrate plain error, Appiah must establish that a clear or obvious error by 

the district court affected his substantial rights. United States v. Olano, 507 U.S. 725, 

732, 734 (1993). An error affects a defendant’s substantial rights “if the error affected 

the outcome of the district court proceedings.” United States v. Knight, 606 F.3d 171, 

178 (4th Cir. 2010) (internal quotation marks omitted). Even if these requirements are 
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met, we will not exercise our discretion to correct the error unless the error “seriously 

affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 

U.S. at 732 (alterations and internal quotation marks omitted).

We have held that the Remmer presumption is “not one to be casually invoked.” 

Baptiste, 596 F.3d at 221 (internal quotation marks omitted). “[T]he defendant bears the 

initial burden of establishing both that an unauthorized contact was made and that it was 

of such a character as to reasonably draw into question the integrity of the verdict.” Id.

(alterations and internal quotation marks omitted). We conclude that Appiah has failed to 

carry his initial burden and has failed to establish that the district court plainly erred by 

not holding a special voir dire.

Second, Appiah challenges the district court’s resolution of three defense 

witnesses’ invocation of their Fifth Amendment privilege to remain silent.∗

 We generally 

review the district court’s evidentiary ruling on such an issue for abuse of discretion. 

United States v. Branch, 537 F.3d 328, 342 (4th Cir. 2008). Further, any error by the 

district court “is harmless if it is clear beyond a reasonable doubt that a rational jury 

would have found the defendant guilty absent the error.” United States v. Sayles, 296 

F.3d 219, 223 (4th Cir. 2002) (internal quotation marks omitted). The government argues 

that, because Appiah failed to object to the witnesses’ invocation of their Fifth 

Amendment privilege at trial, the matter is reviewable only for plain error. (Appellee’s 

 ∗ To protect the identity of the witnesses, we refer to them as necessary only by 

their initials.
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Br. (ECF No. 53) at 26). We conclude that Appiah’s Fifth Amendment claims fail under 

either standard.

“The Fifth Amendment declares in part that ‘No person shall be compelled in any 

Criminal Case to be a witness against himself.’” Hoffman v. United States, 341 U.S. 479, 

485-86 (1951) (alteration omitted). This privilege “not only extends to answers that 

would in themselves support a conviction under a federal criminal statute but likewise 

embraces those which would furnish a link in the chain of evidence needed to prosecute 

the claimant for a federal crime.” Id. at 486. “To sustain the privilege, it need only be 

evident from the implications of the question, in the setting in which it is asked, that a 

responsive answer to the question or an explanation of why it cannot be answered might 

be dangerous because injurious disclosure could result.” Id. at 486-87. A witness’

invocation of the privilege is proper unless it is “perfectly clear, from a careful 

consideration of all the circumstances in the case, that the witness is mistaken” and his 

answers could not “possibly have” a “tendency to incriminate.” Id. at 488 (internal 

quotation marks omitted). A witness retains his Fifth Amendment privilege even after 

pleading guilty, and a sentencing court may not draw adverse inferences from his 

invocation of the privilege. Mitchell v. United States, 526 U.S. 314, 326, 328-30 (1999).

“When a defendant’s right to compel testimony conflicts with a witness’ privilege 

against self-incrimination, . . . a court must make a proper and particularized inquiry into 

the legitimacy and scope of the witness’ assertion of the privilege.” Sayles, 296 F.3d at 

223 (internal quotation marks omitted). In this case, we find that the district court 

conducted a proper voir dire hearing outside the presence of the jury to ascertain the 
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questions defendant’s counsel sought to pose and the scope of the privilege sought by the 

witnesses. The district court permitted the witnesses’ counsel to stand nearby and to 

confer, allowing the witnesses to assert the privilege, and the district court to rule, on a 

question-by-question basis. We have reviewed the record and reject Appiah’s argument 

that the district court did not conduct a sufficient inquiry into the witnesses’ assertion of 

the privilege.

A district court does not abuse its discretion when it refuses to require a witness to 

testify before the jury solely to invoke her Fifth Amendment privilege. Branch, 537 F.3d 

at 342. Requiring the witness to take the stand solely to invoke the privilege can lead to 

“unfair prejudice in the form of both unwarranted speculation by the jury and the 

government’s inability to cross-examine” the witness. Id. Moreover, “any inferences 

that the jury might have drawn from [the witness]’s privilege assertion would have been 

only minimally probative – and likely improper – in any event.” Id. We conclude that 

the district court did not err in refusing to permit Appiah to call S.S., a witness who 

would take the stand solely to invoke her Fifth Amendment privilege.

“The defendant's right to present witnesses in his own defense . . . does not carry 

with it the right to immunize the witness from reasonable and appropriate crossexamination.” Lawson v. Murray, 837 F.2d 653, 655 (4th Cir. 1988). We have “always 

considered cross-examination to be an indispensable tool in the search for truth and the 

Fifth Amendment cannot be used selectively to provide a witness with immunity from 

cross-examination.” United States v. Heater, 63 F.3d 311, 321 (4th Cir. 1995) (internal 

citation and quotation marks omitted). “It is well established that a witness, in a single 
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proceeding, may not testify voluntarily about a subject and then invoke the privilege 

against self-incrimination when questioned about the details.” Mitchell, 526 U.S. at 321 

(1999). We conclude that the district court did not err in striking the testimony of A.B., a 

witness who invoked her privilege against self-incrimination on cross-examination. 

Finally, Appiah challenges the district court’s decision admitting testimony of 

Jerald Andal, the government’s rebuttal witness. Under Rule 403, “[t]he court may 

exclude relevant evidence if its probative value is substantially outweighed by a danger 

of . . . unfair prejudice, confusing the issues, [or] misleading the jury.” Fed. R. Evid. 403. 

This Court “defer[s] to a trial court’s Rule 403 balancing unless it is an arbitrary or 

irrational exercise of discretion.” Garraghty v. Johnson, 830 F.2d 1295, 1298 (4th Cir. 

1987).

Under Rule 404(b), “[e]vidence of a crime, wrong, or other act is not admissible to 

prove a person’s character in order to show that on a particular occasion the person acted 

in accordance with the character.” Fed. R. Evid. 404(b)(1). Such evidence, however, 

“may be admissible for another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id.

404(b)(2). “Rule 404(b) is a rule of inclusion” that “militates toward admitting all 

evidence of other crimes or acts except that which tends to prove only criminal 

disposition.” United States v. Briley, 770 F.3d 267, 275 (4th Cir. 2014). “District judges 

enjoy broad discretion to determine what evidence should be admitted under the Rule, 

which resides at the core of the trial judge's function of handling evidentiary challenges.” 

Id. at 275-76. Generally, we will not find that a district court “abused its discretion 
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unless its decision to admit evidence under Rule 404(b) was arbitrary and irrational.” 

United States v. Williams, 740 F.3d 308, 314 (4th Cir. 2014). Furthermore, such an 

evidentiary determination is reviewed for harmless error, requiring reversal only for 

“serious errors that affect substantial rights or that directly affect the outcome of a case.” 

Briley, 770 F.3d at 276 (internal quotation marks omitted).

We conclude that the district court did not abuse its discretion in admitting 

Andal’s testimony on rebuttal. Moreover, even were we to assume that the testimony 

was admitted in error, any such error was harmless because it did not affect Appiah’s 

substantial rights in light of the brevity of the testimony and the substantial evidence of 

Appiah’s guilt. We dispense with oral argument because the facts and legal contentions 

are adequately presented in the materials before this court and argument would not aid 

the decisional process.

AFFIRMED