UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4911

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WESLEY E. PHILLIPS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Liam O’Grady, District 

Judge. (1:09-cr-00188-LO-1)

Submitted: July 14, 2010 Decided: August 6, 2010

Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Anthony L. Ricco, Steven Z. Legon, New York, New York, for 

Appellant. Neil H. MacBride, United States Attorney, Benjamin 

L. Hatch, Assistant United States Attorney, Richmond, Virginia, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A jury convicted Wesley E. Phillips, Jr., of two 

counts of making false statements to the Department of Housing 

and Urban Development (“HUD”) during the course of an 

investigation, in violation of 18 U.S.C. § 1001 (2006). The 

district court sentenced him to two years of probation. 

Phillips appeals his convictions, challenging the exclusion of 

two defense witnesses, the adequacy of the jury instructions, 

and the sufficiency of the evidence. Finding no reversible 

error, we affirm.

Phillips first contends that the district court erred 

by excluding two defense witnesses. He asserts that the 

witnesses’ testimony would have demonstrated the bias of a key 

government witness. Although a criminal defendant has a 

constitutional right to present evidence in his favor, see, 

e.g., United States v. Moussaoui, 382 F.3d 453, 471 (4th Cir. 

2004), “a defendant’s right to present a defense is not 

absolute; criminal defendants do not have a right to present 

evidence that the district court, in its discretion, deems 

irrelevant or immaterial.” United States v. Malloy, 568 F.3d 

166, 177 (4th Cir. 2009) (internal quotation marks and citations 

omitted), cert. denied, 130 S. Ct. 1736 (2010). We review a 

district court’s evidentiary rulings for an abuse of discretion. 
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United States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010) (stating 

standard of review).

With these standards in mind, our review of the 

portions of the trial transcript included in the record on 

appeal leads us to conclude that the district court did not 

abuse its discretion by excluding the witnesses’ testimony. 

Moreover, even assuming that the district court abused its 

discretion, we hold that any error was harmless in light of 

defense counsel’s extensive cross-examination of the government 

witness sought to be impeached. See United States v. Kelly, 510 

F.3d 433, 439 (4th Cir. 2007) (finding exclusion of impeachment 

evidence harmless where witness subjected to vigorous crossexamination attacking credibility). Thus, Phillips is not 

entitled to relief on this claim.

Next, Phillips contends that the district court’s 

definition of materiality was an inaccurate statement of the law 

in light of United States v. Gaudin, 515 U.S. 506 (1995). “We 

review the district court’s decision to give or refuse to give a 

jury instruction for abuse of discretion.” United States v. 

Green, 599 F.3d 360, 377 (4th Cir. 2010). In determining 

whether the district court abused its discretion, “we consider 

whether[,] taken as a whole and in the context of the entire 

charge, the instructions accurately and fairly state the 

controlling law.” Id. at 378 (internal quotation marks and 
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citation omitted). Because the district court correctly 

instructed the jury on the materiality element of the offenses, 

we conclude that Phillips’ claim fails.

Phillips also asserts that the evidence was 

insufficient to establish that his statements to the 

investigating agent were material. This court reviews de novo 

the district court’s decision to deny a motion pursuant to Fed. 

R. Crim. P. 29. Green, 599 F.3d at 367. Where, as here, the 

motion was based on a claim of insufficient evidence, “[t]he 

verdict of a jury must be sustained if there is substantial 

evidence, taking the view most favorable to the Government, to 

support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). 

This court confines “reversal [of a conviction] on grounds of 

insufficient evidence . . . to cases where the prosecution’s 

failure is clear.” Green, 599 F.3d at 367 (internal quotation 

marks and citation omitted).

We have reviewed the record on appeal and conclude 

that Phillips’ false statements to the investigating agent were 

material. See United States v. Garcia-Ochoa, 607 F.3d 371, 375

(4th Cir. 2010) (“The test of materiality is whether the false 

statement has a natural tendency to influence agency action or 

is capable of influencing agency action.”) (internal quotation 

marks and citation omitted)). Although Phillips argues that the 

agent was not competent to testify regarding HUD’s decision 
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making authority, his argument is belied by the record. Thus, 

we conclude that the district court did not err in denying 

Phillips’ Rule 29 motion.∗

Finally, Phillips challenges his convictions on the 

ground that the prosecutor made an improper comment during 

closing argument. We review a claim of prosecutorial misconduct 

to determine “whether the [misconduct] so infected the trial 

with unfairness as to make the resulting conviction a denial of 

due process.” United States v. Caro, 597 F.3d 608, 624 (4th 

Cir. 2010) (internal quotation marks and citation omitted). In 

order to reverse a conviction based upon prosecutorial 

misconduct, “the defendant must show (1) ‘that the prosecutor’s 

remarks or conduct were improper’ and (2) ‘that such remarks or 

conduct prejudicially affected his substantial rights so as to 

deprive him of a fair trial.’” Id. at 624-25 (quoting United 

States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)).

 ∗ To the extent Phillips raises for the first time on appeal 

a claim that HUD did not have jurisdiction over Phillips’ use of 

his personal firearm, we have reviewed his claim for plain error 

and find none. See United States v. Jackson, __ F.3d __, __, 

2010 WL 2528730, at *3 (4th Cir. June 24, 2010) (No. 09-4753) 

(discussing meaning of “jurisdiction” for purposes of making 

false statements in violation of § 1001); United States v. 

Wallace, 515 F.3d 327, 331-32 (4th Cir. 2008) (reviewing 

sufficiency of evidence for plain error where defendant did not 

file Rule 29 motion in district court).
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Phillips failed to object to the Government’s closing 

argument. Thus, our review is only for plain error, and there 

is none. See United States v. Sanchez, 118 F.3d 192, 197 (4th 

Cir. 1997) (stating standard of review). The prosecutor’s 

closing argument was based on facts before the jury. In any 

event, the district court ameliorated any prejudice that may 

have resulted from the prosecutor’s comment by instructing the 

jury that arguments of counsel were not evidence. See Caro, 597 

F.3d at 626 (discussing factors courts should consider when 

assessing prejudice, including whether court gave jury curative 

instructions). Thus, Phillips is not entitled to relief.

Accordingly, we affirm the district court’s judgment. 

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