PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4189

LEROY ELLIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Senior District Judge.

(CR-94-36-D)

Argued: May 9, 1997

Decided: August 6, 1997

Before HAMILTON and MOTZ, Circuit Judges, and

CURRIE, United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed by published opinion. Judge Currie wrote the opinion, in

which Judge Hamilton and Judge Motz joined.

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COUNSEL

ARGUED: Paul Graham Beers, GLENN, FELDMAN, DARBY &

GOODLATTE, Roanoke, Virginia, for Appellant. Thomas Ernest

Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Robert P. Crouch, Jr., United

States Attorney, Anthony P. Giorno, Assistant United States Attorney,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee.

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OPINION

CURRIE, District Judge:

Leroy Ellis appeals his convictions for conspiracy, see 18 U.S.C.

§ 371, and for the lesser included offense of unarmed bank robbery,

see 18 U.S.C. § 2113(a) & (d). We affirm.

I.

On the morning of September 25, 1993, two masked men robbed

the First National Bank of Ferrum in Oak Level, Virginia. Robber #1

(alleged to be appellant) entered the bank, jumped over the counter,

and stuffed money from three teller drawers into a black duffle bag.

Thereafter, he forced bank employee Lola Green to open the bank

vault from which additional money was taken. Robber #2, Anthony

Wagner, entered the bank lobby shortly after Robber #1 and pointed

a gun at the tellers. Detectives arriving at the crime scene later that

morning took statements from the employees. According to one of the

tellers, Patricia Grindstaff, Robber #1 was about six feet tall and considerably taller than Robber #2. According to Lola Green, Robber #1

was about five feet six inches tall.

On April 22, 1994, a grand jury indicted appellant on three counts

of a five count indictment. Count I charged appellant with conspiracy

to commit bank robbery under 18 U.S.C. § 371. Count II charged

appellant and others "as principles or aiders and abettors" with bank

robbery under 18 U.S.C. § 2113(a) & (d). Count III charged appellant

with use of a firearm in the commission of a crime of violence under

18 U.S.C. § 924(c).

Appellant's first trial on these charges (hereinafter Trial #1) began

on December 28, 1994. In addition to the testimony of bank employees present at the time of the robbery, the government presented testimony of three other women, Sharon Wagner, Rita Ellis and Dorla

 2
Enriquez, who had assisted in the crime and who each testified to

appellant's participation in planning and carrying out the robbery. On

January 4, 1994, a jury found appellant guilty on Count I of the

indictment, but deadlocked as to Counts II and III. 1

On May 30, 1995, the government retried appellant on Counts II

and III (hereinafter Trial #2). This time, in addition to the testimony

of Sharon Wagner, Rita Ellis and Dorla Enriquez, the government called appellant's co-defendant from Trial #1, Rodney Van Wright, who

identified appellant as one of the two robbers pictured in the bank's

surveillance photograph. On June 1, 1995, the jury returned a verdict

of guilty under Count II for the lesser included offense of unarmed

bank robbery, but acquitted appellant of the firearm charge under

Count III.

II.

Appellant cites four errors he contends require reversal of his conspiracy conviction in Trial #1: (1) the failure of the government to

state a criminal offense under 18 U.S.C. § 371; (2) the suppression of

Sharon Wagner's October 1993 FBI 302 in violation of Brady v.

Maryland, 373 U.S. 83 (1963); (3) the admission into evidence of

Sharon Wagner's February 1994 FBI 302, and; (4) a lack of sufficient

evidence supporting appellant's conspiracy conviction. We examine

each of these arguments in turn.

A.

Initially, we turn to appellant's claim that the district court lacked

jurisdiction to convict him of conspiracy to commit armed bank robbery under 18 U.S.C. § 371.2 For support, appellant relies on the

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1 At Trial #1, the jury also returned a guilty verdict against appellant's

co-defendant, Rodney Van Wright, who had been charged under Count

IV of the indictment with being an accessory after the fact to the bank

robbery.

2 In pertinent part, 18 U.S.C.§ 371 reads:

If two or more persons conspire either to commit any offense

against the United States, or to defraud the United States, or any

agency thereof in any manner or for any purpose, and one or

more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned

not more than five years or both.

 3
Supreme Court's decision in Tanner v. United States, 483 U.S. 107

(1987), which held that establishing a conspiracy to"defraud the

United States" under the second clause of § 371 required the government to prove that the United States or one of its agencies was the target of the fraud. Id. at 128-32. Appellant asks us to extend this same

victim-specific restriction on the scope of the statute to the case at bar

and to conclude that conspiring to rob a private bank does not constitute an offense under the statute. Like other issues of statutory construction, we review this claim de novo. United States v. Childress,

104 F.3d 47, 49 (4th Cir. 1996).

18 U.S.C. § 371 criminalizes two types of conspiracies: conspiracies to commit an offense against the Unites States and conspiracies

to defraud the United States. United States v. Arch Trading Company,

987 F.2d 1087, 1090 (4th Cir. 1993).

We reject appellant's invitation and conclude, consistent with other

circuits, that a conspiracy to commit "any offense against the United

States" under the first clause of § 371 extends generally to cover any

offense made illegal by federal law. See United States v. Brandon, 17

F.3d 409, 422 (1st Cir. 1994); United States v. Harmas, 974 F.2d

1262, 1266 (11th Cir. 1992); United States v. Loney, 959 F.2d 1332,

1338-39 (5th Cir. 1992); United States v. Gibson , 881 F.2d 318, 321

(6th Cir. 1989). Indeed, our explicit recognition of this distinction

between the victim-specific "defraud the United States" prong and the

"offense against the United States" prong merely highlights a difference that we have implicitly acknowledged since Tanner. See, e.g.,

United States v. Roseboro, 87 F.3d 642 (4th Cir.), cert. denied, 117

S.Ct. 694 (1997); United States v. Williams, 10 F.3d 1070 (4th Cir.

1993) (affirming convictions in both cases for conspiracy to commit

bank robbery under § 371 and § 2113). Here, appellant does not dispute that the robbery of the First National Bank of Ferrum, whose

deposits were insured by the Federal Deposit Insurance Corporation,

is a federal offense under 18 U.S.C. § 2113(a) & (d). As a result, the

district court had jurisdiction over a charge of conspiracy to violate

that federal statute under 18 U.S.C. § 371.

B.

Prior to appellant's first trial, FBI investigators questioned Sharon

Wagner three times regarding the bank robbery and each time

 4
recorded the substance of her responses in a typewritten FBI 302

report. In her first interview on October 8, 1993, she identified Lester

Fuller and Rodney Van Wright as the individuals who were responsible for the bank robbery. Soon after making this statement, Sharon

Wagner was convicted on unrelated state charges and incarcerated in

a Botetourt County jail. While she was in jail, FBI investigators conducted two more interviews with her concerning the bank robbery --

one in January 1994 and the other in February 1994. However, in

these interviews, she implicated appellant and her brother, Anthony

Wagner, as the bank robbers.

On counsel's motion, the second and third FBI 302s were turned

over to appellant, but the October 1993 302 was apparently not

disclosed.3 At trial, Sharon Wagner testified for the government that

she had overheard appellant and her brother, Anthony Wagner, plan

the bank robbery at her house, that appellant had shown her the

money following the robbery, and that she had accompanied appellant

and Wagner to New York to spend the stolen money. J.A. at 119-50.

In addition, she admitted to having lied to FBI investigators in October 1993 when she had falsely implicated Fuller and Van Wright as

the bank robbers in an effort to protect her brother and appellant. J.A.

at 111, 165-166.

Appellant challenges his conspiracy conviction from his first trial

claiming that government suppression of the FBI 302 report summarizing Sharon Wagner's October 1993 statement to investigators violated his due process rights as established in Brady v. Maryland, 373

U.S. 83, 87 (1963).

Under Brady and its progeny, the prosecution's failure to disclose

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3 The district court failed to resolve the dispute as to whether the October 1993 302 had, in fact, been furnished to the defense. In footnote 4

of Appellee's brief, the government adheres to its assertion that the disputed 302 report was given to appellant prior to trial. However, in light

of appellant's unchallenged argument that the October 1993 302 was not

Bates stamped, as were the January and February 1994 302s, as well as

corroboration from counsel for Ellis' co-defendant in the first trial, we

assume for the purposes of this appeal that the 302 was, in fact, not furnished prior to the first trial. See Joint Appendix at 74.

 5
"evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Kyles v.

Whitley, 115 S.Ct. 1555, 1565 (1995); Hoke v. Netherland, 92 F.3d

1350, 1356 (4th Cir.), cert. denied, 117 S.Ct. 630 (1996). Evidence

is "favorable" not only when it would tend to exculpate the accused,

but also where it can be used to impeach government witnesses.

United States v. Trevino, 89 F.3d 187, 189 (4th Cir. 1996); United

States v. Bagley, 473 U.S. 667, 682 (1985). However, where the prosecution fails to disclose evidence favorable to the accused, such evidence is material "only where there exists a`reasonable probability'

that had the evidence been disclosed the result of the trial would have

been different." Wood v. Bartholomew, 116 S.Ct. 7, 10 (1995); Kyles,

115 S.Ct. at 1566. A "reasonable probability" of a different result is

shown when the government's failure to disclose evidence "undermines confidence in the outcome of the trial." Kyles, 115 S.Ct. at

1566 (citing Bagley, 473 U.S. at 668).

In response to appellant's claim of reversible error, the government

first contends that its Brady obligations were discharged by defense

counsel's lack of due diligence in requesting the disputed 302 report

at trial. See United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994)

("when defense counsel could have discovered the evidence through

reasonable diligence, there is no Brady violation if the government

fails to produce it."); United States v. Wilson, 901 F.2d 378, 380 (4th

Cir. 1990) ("the Brady rule does not apply if the evidence in question

is available to the defendant from other sources." (quoting United

States v. Davis, 787 F.2d 1501, 1505 (11th Cir.), cert. denied, 479

U.S. 852 (1986))).

We reject this argument for the following reasons. First, such a

claim glosses over the substantial efforts made by defense counsel to

obtain the evidence in dispute. Over a month before trial defense

counsel filed a Motion for Exculpatory Information calling upon the

court to "enter an order pursuant to Brady v. Maryland, 373 U.S. 83

(1963), and Giglio v. United States, 405 U.S. 150 (1972), directing

the U.S. Attorney to provide him with the following: (a) All information of whatever form, source or nature which tends to exculpate the

defendant either through indication of his innocence or the potential

impeachment of any government witness . . . ." J.A. at 27. In

 6
response, the government provided the defense with copies of Sharon

Wagner's January and February 1994 FBI 302s. However, it apparently failed to turn over the October 1993 302 despite the government's later representation at trial that it had"in an attempt to be fair

minded and open in this matter provided all those 302s to defense

counsel." J.A. at 107.

The government argues that appellant was obligated to renew his

request despite these assurances. However, nothing in Sharon Wagner's testimony from Trial #1 indicates the existence of the October

1993 FBI 302. At best, her trial admission that she had falsely implicated Fuller and Van Wright when first questioned shows only that

defense counsel knew the substance of her initial statement, not the

existence of a transcribed summary that could be used to support

appellant's theory of the case and to impeach Sharon Wagner's credibility as a witness. Having recognized its Brady obligation to disclose

the type-written FBI summaries of Sharon Wagner's prior statements,

the government may not now deny its duty upon its failure to follow

through.4 Thus, we conclude that defense counsel's failure to renew

his request at trial does not discharge the prosecution's obligations

under Brady.

Despite his diligence, appellant must show that the undisclosed FBI

302 was both favorable to the defendant and material in order to demonstrate constitutional error. United States v. Hoyte, 51 F.3d 1239,

1241 (4th Cir. 1995). By any measure, the October FBI 302 is favorable to appellant. As exculpatory evidence, it implicates Fuller and

Van Wright in the bank robbery and comports with appellant's theory

of the case. As impeachment evidence, it reveals inconsistencies in

Sharon Wagner's accounts to investigators that could be used to

impugn her credibility as a witness.

The more difficult question focuses on the materiality of the suppressed report and whether "there exists a `reasonable probability'

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4 See Barnes v. Thompson, 58 F.3d 971, 984 (4th Cir.) (concurrence of

Murnaghan, J.) ("A reasonable defendant would not have looked into the

matter any further once the prosecuting attorney represented that the

Commonwealth did not possess exculpatory evidence."), cert. denied,

116 S.Ct. 435 (1995).

 7
that had the evidence been disclosed the result at trial would have

been different." Wood, 116 S.Ct. at 10. The Supreme Court first considered standards of materiality in United States v. Augurs, 427 U.S.

97 (1976), where it discussed three separate situations in which a

Brady claim might arise and adopted a separate materiality standard

for each.5 Subsequently, in Bagley, the Court rejected any difference

between impeachment and exculpatory evidence for Brady purposes

and consolidated the "no request/general request" and "specific

request" scenarios under the same "reasonable probability of a different result" standard. 473 U.S. at 682.6 More recently, in Kyles, the

Court reaffirmed its Bagley formulation and further explored four

aspects of materiality that guide application of the standard.7

First, Kyles explains what is not required in demonstrating materiality -- a defendant does not have to show by a preponderance of the

evidence that disclosure of the evidence would have resulted in

acquittal. Kyles, 115 S.Ct. at 1565-66; Hays v. State of Alabama, 85

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5 See Jean v. Collins, 107 F.3d 1111, 1119 (4th Cir. 1997) (concurrence

of Hamilton, J.); Kyles, 115 S.Ct. at 1565, n.7. The first situation, where

the prosecution introduced testimony at trial that it knew or should have

known was perjured, required reversal "if there is any reasonable likelihood that the false testimony could have affected the jury." Augurs, 427

U.S. at 103. In the second case, where the government failed to turn over

a specific kind of exculpatory evidence requested by the defense, such

non-disclosure was "seldom, if ever, excusable". Id. at 106. Finally, in

the third category, where the government failed to turn over exculpatory

evidence either not requested or requested in a general way, reversal was

necessary only when withholding the evidence would be "of sufficient

significance to result in the denial of the defendant's right to a fair trial."

Id. at 108.

6 As the Court explained, "(t)he evidence is material only if there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different." Bagley,

473 U.S. at 682 (opinion of Blackmun, J.); id. at 685 (White, J., concurring in part and concurring in judgment). "A`reasonable probability' is

a probability sufficient to undermine confidence in the outcome." Id. at

682.

7 The Kyles Court restricted its materiality analysis to Brady situations

caused by prosecutorial omissions and did not "address any claim under

the first Augurs category." Kyles , 115 S.Ct. at 1565 & n.7.

 8
F.3d 1492, 1498 (11th Cir.) (interpreting Kyles to mean that undisclosed evidence can require a new trial even if it is more likely than

not that a jury seeing the new evidence will still convict), cert. denied,

117 S.Ct. 1262 (1997). Second and related, it discussed what is

required -- a "showing that the favorable evidence could reasonably

be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 115 S.Ct. at 1566. Third, the

Court explained that once Brady error is found to be material, further

harmless error review is unnecessary as "`a reasonable probability

that, had the evidence been disclosed to the defense, the result of the

trial would have been different' necessarily entails the conclusion that

the suppression must have had `substantial and injurious effect or

influence in determining the jury's verdict.'" Id. (internal citations

omitted); see Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir.) (noting

that "the Bagley materiality standard necessarily requires a court to

find an impact on the jury verdict sufficiently substantial to satisfy the

Brecht harmless error test."), cert. denied, 116 S.Ct. 1269 (1996). And

finally, it noted that while courts of necessity examine undisclosed

evidence item-by-item, their materiality determinations must evaluate

the cumulative effect of all suppressed evidence to determine whether

a Brady violation has occurred. Id. at 1567, n.10.

Appellant argues that the undisclosed 302 report is material in two

respects. First, Sharon Wagner's initial statement could have strengthened his claim that he was being tried for a crime committed by Lester Fuller. In support of his claim for reversal, appellant relies on our

decisions in McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1995), and

Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976).8 However, unlike

those cases where defense counsel was unaware of the exculpatory

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8 In Norris, a police report describing a rape victim's hesitation during

her initial identification of the defendant was not disclosed to the

defense. Subsequently at trial, the victim testified that when she first confronted Norris, she was certain that he had attacked her. Norris, 540 F.2d

at 1244. In McDowell, the victim's initial statements to police were that

her attacker was white. Defense counsel was told only of the victim's

subsequent description of her assailant -- that he was black, with a

medium afro and a medium build. At trial, the victim testified that she

had always described her attacker as a black man with flat hair, big eyes,

and a flat nose. McDowell, 858 F.2d at 947.

 9
evidence until after trial, here Sharon Wagner admitted both on direct

and on cross-examination at Trial #1 that she had told FBI investigators in October 1993 that Lester Fuller and Rodney Van Wright had

robbed the bank. J.A. at 111, 165-66. Thus, unlike McDowell and

Norris where the contrast between the exculpatory evidence and the

witnesses' in-court testimony brought into question their credibility,

here Sharon Wagner's prior statement supports her trial testimony

that she had initially lied to FBI investigators in order to protect her

brother and appellant.

The government contends that the disclosure of the exculpatory

information at Trial #1 aligns this case closely with the facts in United

States v. Curtis, 931 F.2d 1011 (4th Cir. 1991). In that case appellant

Curtis challenged his possession and conspiracy convictions arguing

that the prosecution's failure to disclose an exculpatory memorandum

summarizing a witness's initial statement to police violated his right

to a fair trial. The Curtis court rejected appellant's claim and distinguished Norris based on two factors: (1) that the appellant knew

about the witness's exculpatory statement prior to trial, and; (2) that

the witness testified about his prior statement at Trial #1 and was

cross-examined by appellant concerning it. Id. at 1014. Admittedly,

the facts of the instant case differ in that only the second factor is

present here. However, because Sharon Wagner testified at trial to her

initial false identification and was cross-examined regarding it, we

believe that disclosure of the actual 302 report would not, within reasonable probability, have caused a different result. See United States

v. Manning, 56 F.3d 1188, 1198 (9th Cir. 1995) (noting that failure

to disclose an investigative report identifying an alternative suspect

does not require reversal where defendant was able to discuss alternative suspect with interviewing officer on cross-examination and again

on recross-examination).9

As a second line of attack, appellant argues that the October 302

report reveals a number of inconsistencies (in addition to naming Fuller and Van Wright as the bank robbers) which appellant would have

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9 Appellant's subsequent conviction on the substantive crime (unarmed

bank robbery) in his second trial, after having received the October 1993

report, only further supports our belief that the result would not have

been different.

 10
used to impeach Sharon Wagner's trial testimony. This court has

often stressed that "when the reliability of a given witness may well

be determinative of guilt or innocence, nondisclosure of evidence

affecting credibility falls within this general rule." Jean, 107 F.3d at

1115 (citing Giglio, 405 U.S. at 153-54).

At trial, Sharon Wagner claimed on cross-examination that she lied

only twice in her initial interview with FBI investigators: she lied

about her name and she lied in identifying Fuller and Van Wright as

the bank robbers. J.A. at 166. Appellant claims that the government's

failure to disclose the October 302 report prevented him from

impeaching Sharon Wagner on this point. As a result, the jury was not

informed that she had originally told investigators that Anthony Wagner was not her brother, that she had slept until 2:00 p.m. on the day

of the robbery, and that she claimed to have overheard Fuller and Van

Wright conspiring to rob the bank. Assuming these statements to be

inconsistent, we find that these details would have provided only

cumulative impeachment of Sharon Wagner's trial testimony and do

not rise to a level that undermines our confidence in the verdict.

Our decision in Hoyte provides analogous circumstances. 51 F.3d

1239 (4th Cir. 1995). In Hoyte, appellant was not provided with a

statement made by government witness Densie Beckford in which

Beckford failed to single out which of the defendants had lured the

victim into the car. Appellant argued that were the statement to be

false, it could be used to impeach Beckford's trial testimony and

would "tend to show that he kept changing his story until he invented

a version that the government liked." Id. at 1243. In rejecting Hoyte's

appeal, we agreed with the findings of the trial court that use of the

undisclosed statement to attack credibility "would not have changed

the outcome because Beckford was impeached in so many other

ways." Id.10

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10 See also Hays, 85 F.3d at 1498-99 (11th Cir. 1996); United States v.

Graham, 83 F.3d 1466, 1474 (D.C. Cir. 1996) (concluding that use of

polygraph results would not have significantly aided impeachment where

the witness had already admitted the deceptions in other contexts); cf.

United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir. 1996) (arguing evidence of perjury was material and that impeachment evidence is cumulative "only if the witness was already impeached at trial by the same kind

 11
Similarly here, further impeachment of Sharon Wagner by highlighting additional inconsistencies between her trial testimony and her

October 1993 statement would not, within reasonable probability,

have led to a different result. From the partial trial record before us,

it is evident that Sharon Wagner admitted to having lied a number of

times: lying to get into the country (J.A. at 152, 162), lying to get a

Virginia drivers license and a Social Security card (J.A. at 109, 151),

lying to get a job (J.A. at 153), being convicted of four misdemeanors

involving dishonesty (J.A. at 110, 151), and lying initially about who

was responsible for the bank robbery (J.A. 110-11, 165-66, 178). In

addition, the jury learned that she had allowed other individuals to sell

crack out of her residence (J.A. at 155, 191), and that she had agreed

to testify as part of her own plea agreement (J.A. 115-117, 159-61),

which further tarnished her credibility as a witness. As a result of this

testimony, her additional lies to the FBI are either insignificant or

mere permutations of her "big" lie as to who robbed the bank. In any

estimation, their cumulative effect is not material.

Thus, considering the cumulative effect of the suppressed evidence,

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of evidence."). Hays is a particularly apt case for comparison, for there

the appellant argued that the state had violated its Brady obligation by

failing to disclose some 20 statements made by Knowles, the state's main

witness, which could have aided impeachment. Hays, 85 F.3d at 1497.

While appellant noted at least 4 inconsistencies that could have been

highlighted only by reference to the suppressed statements, the court

rejected this argument explaining:

Taken together, these assertions do not undermine confidence in

the verdict. The main reason for this is that most of the asserted

uses of the suppressed statements would have been redundant,

because Hays's counsel in fact elicited testimony from Knowles

on the witness stand acknowledging that he had been inconsistent on many of the listed points. And on others (particularly the

relatedness of the murder and the cross-burning), no obvious reason suggests that the jury would have regarded the inconsistency

as particularly significant. Therefore, we conclude that Petitioner's argument on the materiality of the alleged Brady statements

fails.

Id. at 1499.

 12
we find that the disputed 302 report fails "to put the whole case in

such a different light as to undermine our confidence in the verdict."

Kyles, 115 S.Ct. at 1566. As Kyles explains, whether evidence withheld is material is not a sufficiency of evidence test. Id. But by the

same token, post-Kyles we do not ignore other evidence presented at

trial in determining our confidence in the outcome. 11 Instead, we evaluate the whole case, taking into account the effect that the suppressed

evidence, had it been disclosed, would have had on the evidence considered at trial.

Even from the partial record provided to this court, it is clear that

Sharon Wagner's testimony was not the only evidence linking appellant to the conspiracy. Appellant's cousin Rita Ellis claimed to have

overheard conspiratorial conversations between Anthony Wagner and

Appellant (J.A. at 215); and testified that she was asked to drive the

getaway car, that she was to get $5000 for driving the getaway car

(J.A. at 218), and that on the day of the robbery she saw Anthony

Wagner and Leroy Ellis come out of the woods and climb into the

trunk. (J.A. at 231).

In light of this additional testimonial evidence and our conclusion

that the disputed 302 contains neither unknown exculpatory information nor material impeachment evidence, our confidence in the jury's

verdict remains strong. Accordingly, we will not disturb the conspiracy conviction obtained at Trial #1.

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11 See Wood, 116 S.Ct. at 11 ("In short, it is not `reasonably likely' that

disclosure of the polygraph results . . . would have resulted in a different

outcome at trial. Even without Rodney's testimony, the case against

respondent was overwhelming . . . . In the face of this physical evidence,

as well as Rodney and Tracy's testimony -- to say nothing of the testimony by Bell that the state likely could introduce on retrial -- it should

take more than supposition on weak premises offered by the respondent

to undermine a court's confidence in the outcome.") (emphasis added);

Hoke, 92 F.3d at 1357 ("Nevertheless, we are convinced beyond any

doubt that, in light of the overwhelming evidence that Still was raped by

Hoke, no reasonable juror would conclude that this single act of anal

intercourse almost a year earlier was material to the question of whether

Still consented to having sex with Hoke.") (first emphasis added).

 13
C.

Third, Appellant argues that the district court erred in admitting

Sharon Wagner's February 1994 FBI 302 into evidence and that his

Motion in Limine filed prior to trial objecting to the admission of certain statements preserves this issue on appeal.

As this court recently explained in United States v. Williams, 81

F.3d 1321 (4th Cir. 1996), "motions in limine may serve to preserve

issues that they raise without any need for renewed objections at trial,

just so long as the movant has clearly identified the ruling sought and

the trial court has ruled upon it." Id. at 1325 (emphasis added). Here,

the district court deferred its decision on appellant's motion prior to

trial, noting its inability to rule on the admission of the statements in

a vacuum.12 Thus, appellant's subsequent failure to object, both when

the prosecutor offered the 302 into evidence (J.A. at 203) and when

the court accepted it into evidence for limited purposes (J.A. at 255-

56), requires that we review admission of the 302 for plain error.

United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996); United

States v. Brewer, 1 F.3d 1430, 1434 (4th Cir. 1993) (citing F.R.E.

103(a)(1), 103(d) and F.R.C.P. 52(b)).

To warrant reversal under this high standard, a reviewing court

must "(1) identify an error, (2) which is plain, (3) which affects substantial rights, and (4) which seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings." Brewer, 1 F.3d at 1434;

see also United States v. Olano, 507 U.S. 725, 731-32 (1993) (clarifying the standard for "plain error" review by the courts of appeals

under F.R.C.P. 52(b)).

Here, our task is made easy by the lack of error, much less plain

error, in the district court's admission of the February 302. Appellant

is simply wrong in assuming that "the only possible avenue for admitting this evidence was Rule 801(d)(1)(B) of the Federal Rules of Evidence." Brief of Appellant at 38. Even before the adoption of the

federal rules, this court recognized that "where a cross-examiner has

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12 On the partial record before us, which does not include Appellant's

written Motion in Limine filed prior to the first trial, we are unable to

determine whether or not appellant clearly identified the ruling sought.

 14
endeavored to discredit a witness by prior inconsistent statements, it

is sometimes permissible to offset the damage by showing prior consistent utterances." Schoppel v. United States, 270 F.2d 413, 417 (4th

Cir. 1959).

The adoption of the Federal Rules of Evidence, specifically

801(d)(1)(B), did not replace the admissibility of prior consistent

statements to rehabilitate a witness, but merely allowed a certain subset of these statements to be used as substantive evidence of the truth

of the matter asserted.13 This expanded use under the rule does not

extend to all prior consistent statements, but only to those offered to

rebut a charge of recent fabrication or improper influence or motive.

Tome v. United States, 115 S.Ct. 696, 701 (1995); United States v.

Acker, 52 F.3d 509, 517 (4th Cir. 1995); United States v. Rubin, 609

F.2d 51, 67 (2d Cir. 1979) (Friendly, J., concurring), aff'd on other

grounds, 449 U.S. 424 (1981). Moreover, it is this restriction on the

types of prior consistent statements admissible under the rule that

gives rise to the "pre-motive rule" -- a requirement that such consistent statements be made before the alleged fabrication, improper

influence or motive came into being. Tome, 115 S.Ct. at 701.14

_________________________________________________________________

13 The Note of the Advisory Committee referring to 801(d)(1)(B)

explains the change:

Prior consistent statements traditionally have been admissible to

rebut charges of recent fabrication or improper influence or

motive but not as substantive evidence. Under the rule they are

substantive evidence. The prior statement is consistent with the

testimony given on the stand, and, if the opposite party wishes

to open the door for its admission in evidence, no sound reason

is apparent why it should not be received generally.

14 In Tome, the Supreme Court explains that:

[T]he forms of impeachment within the Rule's coverage are the

ones in which the temporal requirement makes the most sense.

Impeachment by charging that the testimony is a recent fabrication or results from an improper influence or motive is, as a general matter, capable of direct and forceful refutation through

introduction of out-of-court consistent statements that predate

the alleged fabrication, influence or motive. A consistent statement that predates the motive is a square rebuttal of the charge

that the testimony was contrived as a consequence of that

 15
In contrast, where prior consistent statements are not offered for

their truth but for the limited purpose of rehabilitation, a number of

courts, including ours, have concluded that Rule 801(d)(1)(B) and its

concomitant restrictions do not apply. Engebretsen v. Fairchild Aircraft Corporation, 21 F.3d 721, 730 (6th Cir. 1994); United States v.

Bolick, 917 F.2d 135, 138 (4th Cir. 1990); United States v. Castillo,

14 F.3d 802, 806 (2d Cir. 1994); United States v. Casoni, 950 F.2d

893, 905-06 (3d Cir. 1991); United States v. Andrade, 788 F.2d 521,

532-33 (8th Cir. 1986); United States v. Harris , 761 F.2d 394, 399

(7th Cir. 1985) (citing United States v. Parodi , 703 F.2d 768, 785 (4th

Cir. 1983)).15 Instead, courts employ a more relaxed standard to deter-

_________________________________________________________________

motive. By contrast, prior consistent statements carry little rebuttal force when most other types of impeachment are involved.

Id. at 701. While the Court's opinion, handed down on January 10, 1995,

pre-dates Appellant's first trial in December 1994, its holding was consistent with the rule followed by the Fourth Circuit prior to Tome. See

United States v. Henderson, 717 F.2d 135, 138 (4th Cir. 1983) ("[W]e

have accepted the gloss on Federal Rule of Evidence 801(d)(1)(B) that

a prior consistent statement is admissible under the rule only if the statement was made prior to the time the supposed motive to falsify arose.").

15 In Bolick we "assume [d] without deciding, that the prior consistent

statements were admitted as rehabilitation and that they are not subject

to the requirements of Rule 801(d)(1)(B)." Id. at 138. At the same time,

we characterized the state of the law in this circuit, explaining that:

There is considerable authority for the proposition that the

requirements of Rule 801(d)(1)(B) must be met only when a

prior consistent statement is offered for its truth and that general

principles of trial court discretion apply when a prior consistent

statement is admitted for some other purpose such as rehabilitation or background. . . . Although we have not had occasion to

address it squarely, we may have endorsed the proposition in

United States v. Parodi, 703 F.2d 768, 785-86 (4th Cir. 1983).

Id. at 138 (internal citations omitted); but cf. Henderson, 717 F.2d at 138

n.1 (noting that the decision in Parodi is fully consistent with the court's

decision to require the absence of a motive to fabricate when the prior

consistent statement was made for admission under Rule 801(d)(1)(B)).

For a thorough discussion of the law in other circuits on this issue, see

Frank W. Bullock, Jr. & Steven Gardner, Prior Consistent Statements

 16
mine "whether the particular consistent statement sought to be used

has some rebutting force beyond the mere fact that the witness has

repeated on a prior occasion a statement consistent with his trial testimony." Castillo, 14 F.3d at 806 (quoting United States v. Pierre, 781

F.2d 329, 331 (2d Cir. 1986)). Such countering effect has been recognized where the prior consistent statements serve to clarify "whether

the impeaching statements really were inconsistent within the context

of the interview, and if so, to what extent." Harris, 761 F.2d at 400;

see also Pierre, 781 F.2d at 331 (noting that statements "offered to

clarify or amplify the meaning of the impeaching inconsistent statement" have significant rebutting force); Rubin, 609 F.2d at 70

(Friendly, J., concurring) (arguing that use of prior consistent statements for rehabilitation should be generously allowed "since they

bear on whether, looking at the whole picture, there was any real

inconsistency"). Moreover, such use is in accord with the "Doctrine

of Completeness" which provides that ". . . the opponent, against

whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal

a complete understanding of the total tenor and effect of the utterance." Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171 (1988)

(quoting 7 J. WIGMORE, EVIDENCE IN TRIALS AT COMMONLAW § 2113,

p.653 (J. Chadbourn rev. 1978)).

In light of this distinction, we find Appellant's objections inapposite. Because the statements contained in the February 302 were not

offered for the truth of the matter asserted, the restrictions of Rule

801(d)(1)(B) and the "pre-motive rule" of Tome have no effect.16

_________________________________________________________________

and the Premotive Rule, 24 F.S.U. L. Rev. 509, 521-22 nn. 86-96 (1997)

(noting that the Second, Third, Fourth, Sixth, Seventh, and Eighth Circuits have found prior consistent statements for rehabilitative purposes

not to be governed by Rule 801(d)(1)(B) and the Ninth alone concludes

that such statements are either admissible under Rule 801(d)(1)(B) or not

at all).

16 The court in Tome explicitly limited the breadth of its rule noting that

"[o]ur holding is confined to the requirements for admission under Rule

801(d)(1)(B)". 115 S.Ct. at 705. However, we note without deciding that

even were the "pre-motive rule" to apply, a witness's statement made

after arrest but before the signing of a plea agreement might qualify as

"not hearsay" under the rule in this circuit. Henderson, 717 F.2d at 138.

 17
Here, the district court properly told the jury to use the prior consistent statements only to assist in determining the credibility of the

witness.17 Appellant did not object to this limitation, and we follow

the general rule that assumes a jury to have followed the court's

instructions. United States v. Shannon, 512 U.S. 573, 584 (1994).

On cross-examination, appellant strove to demonstrate that Sharon

Wagner's February 1994 statement to FBI investigators was at odds

with her trial testimony. He pointed to specific discrepancies concerning her trial testimony (1) that she could identify the driver of the getaway car; (2) that she had been offered $5,000 to drive the getaway

car, and; (3) that she had seen appellant on the day of the robbery

walking towards her house with a knitted wool mask in hand. J.A. at

175-77, 198-99 & 200-02. In so doing, appellant made a conscious

decision to highlight these inconsistencies in order to undermine

Sharon Wagner's credibility in the eyes of the jury. The rules allow

such tactics, but they do not allow appellant to have his cake and eat

it too. See Parodi, 703 F.2d at 786 (citing the reasoning of the district

court affirmed by the Seventh Circuit in United States v. Baron, 602

F.2d 1248 (7th Cir. 1979)).18

_________________________________________________________________

17 The entirety of the court's instruction is as follows:

THE COURT: Ladies and gentlemen, I have decided to admit

Government Exhibit No 1. If you recall it was a portion of a

statement that was used in cross-examination of Ms. Wagner and

I'll need to give you a special limiting instruction about this.

This is a statement that she gave to the FBI. You cannot use it

for proof of the charges here. Her testimony is the only thing that

you can consider with regard to whether the government has

proved its charges or not. The only reason I'm letting this come

into evidence is so you can compare it, if you want to -- you

don't have to, this is up to you -- in making your credibility

determination to see whether she has made any -- if her testimony is any different from what she gave the FBI agent, so

that's the sole purpose that it's coming in for is in judging her

credibility. As I say, we will need a cleaned up copy, but it will

be admitted.

J. A. at 255-56.

18 In arriving at this conclusion, we are guided by the Sixth Circuit's

decision in Engebretsen, which upheld a lower court's admission of

 18
Instead, the "Doctrine of Completeness" operates to ensure that

"when one party has made use of a portion of a document, such that

misunderstanding or distortion can be averted only through presentation of another portion, the material required for completion is ipso

facto relevant and therefore admissible . . . ." Beech Aircraft Corp.,

488 U.S. at 172; see also Parodi, 703 F.2d at 786 (approving of Judge

Friendly's observation in Rubin that "failure to admit the rehabilitating testimony because of possible motive to fabricate, would be

counter to the `great principle of completeness, now enacted in Rule

106'").19 Accordingly, we hold that the district court did not err in

_________________________________________________________________

experts' accident reports as prior consistent statements offered to rehabilitate the credibility of two witnesses. In Engebretsen, the defendant called two experts to testify to their post-accident investigations. While

neither expert referred to their accident report on direct or re-direct,

plaintiff's counsel referenced the reports on cross-examination in an

attempt to impeach the witnesses by raising inconsistencies between their

reports and their trial testimony. At the close of defendant's case, defendant moved for admission of these reports. The district court initially

reserved its ruling, and later decided to admit the reports into evidence.

In holding that admission of the reports was in the trial court's discretion, the Sixth Circuit explained that the strictures of 801(d)(1)(B) did

not apply:

[P]rior consistent statements offered for the limited purpose of

rehabilitating a witness's credibility [are] not subject to the strictures of Rule 801(d)(1)(B) . . . . This use of prior consistent statements for rehabilitation is particularly appropriate where, as

here, those statements are part of a report or interview containing

inconsistent statements which have been used to impeach the

credibility of the witness. Prior consistent statements which are

used in this matter [sic] are relevant to whether the impeaching

statements really were inconsistent within the context of the

interview, and if so, to what extent. This rehabilitative use of

prior consistent statements is also in accord with the principle of

completeness promoted by Rule 106.

Id. at 730 (quoting Harris, 761 F.2d at 399-400).

19 We note that our analysis does not require the introduction of the

document into evidence. In like circumstances, the Doctrine of Completeness renders prior consistent statements relevant and admissible

 19
admitting the 302 into evidence for the sole purpose of assisting the

jury's determination of Sharon Wagner's credibility as a witness.

D.

Finally, appellant challenges the sufficiency of the evidence supporting his conspiracy conviction. On direct review of this issue, we

honor the rule that a jury verdict "must be sustained if there is substantial evidence, taking the view most favorable to the Government,

to support it." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc) (emphasis in original) (quoting Glasser v. United

States, 315 U.S. 60, 80 (1942)), cert. denied, 117 S.Ct. 1087 (1997).

Sustaining a conspiracy conviction under 18 U.S.C.§ 371 requires

that the government prove: (1) an agreement between two or more

people to commit a crime, and (2) an overt act in furtherance of the

conspiracy. United States v. Chorman, 910 F.2d 102, 109 (4th Cir.

1990). The existence of a "tacit or mutual understanding" between

conspirators is sufficient evidence of a conspiratorial agreement. Id.

Such proof need not be direct, but may be inferred from circumstantial evidence. Burgos, 94 F.3d at 858. Moreover, once a conspiracy

is established, "even a slight connection between a defendant and the

conspiracy is sufficient to include him in the plan." United States v.

Laughman, 618 F.2d 1067 (4th Cir. 1980).

At trial, both Sharon Wagner and Rita Ellis testified that they heard

appellant and Anthony Wagner discussing plans to rob a bank.

According to these two witnesses, appellant and Anthony Wagner

made plans to "make a withdrawal" from the bank, to get masks and

sweatshirts that could be worn during the robbery, to steal a getaway

car, to pay Rita Ellis $5,000 for her help in aiding their escape, to

_________________________________________________________________

under Rules 401 and 402. However, it remains for the parties to raise and

the trial courts to determine whether or not allowing the document to

enter the jury room would unduly prejudice the cross-examining party.

The court has a number of weapons to guard against such prejudicial

effect: e.g., admitting statements in the document through testimony,

having the document read to the jury, or instructing the jury as to the limited purpose of the exhibit. However, these options are best left to the

discretion of the trial court. Engebretsen, 21 F.3d at 730 n.2.

 20
burn their clothes following the robbery, and to travel after the robbery to New York and then overseas to Belize. Even on these limited

facts, such evidence clearly supports the inference that appellant was

part of the agreement to rob the bank.

In addition, other testimony reveals a number of overt acts performed in furtherance of the conspiracy. According to the government's witnesses, appellant and Wagner drove to the bank in a stolen

car. Following the robbery, they abandoned the stolen car and hid in

the trunk of another car driven by Rita Ellis. They ordered others to

burn the clothing they had worn during the robbery, and then left

town, going first to North Carolina and then to New York where they

spent some of the stolen money and paid other members of the conspiracy for their part in the crime. As a result, we conclude that the

jury had sufficient evidence to support each element of a conspiracy

conviction under 18 U.S.C. § 371.

III.

In challenging his conviction for unarmed bank robbery in Trial #2,

appellant cites a string of errors he contends justify reversal. Thematically, these challenges fall roughly into three categories of errors:

incorrect jury instructions, erroneous evidentiary rulings, and

improper prosecutorial actions. We again consider each of appellant's

arguments in turn.

A.

Within the first of these three categories, appellant alleges that

three errors made by the district court independently warrant reversal

of appellant's unarmed bank robbery conviction: issuing a jury

instruction on aiding and abetting liability, rejecting appellant's proposed instruction on reasonable doubt, and declining to answer the

jury's question as to the identity of individuals in a photograph. For

the reasons that follow, we reject appellant's claim of reversible error.

1.

At the close of the evidence in Trial #2, the district court judge

 21
gave an instruction to the jury allowing them to find appellant guilty

of bank robbery as either a principal or an aider and abettor. While

in deliberations, the jury asked the court whether"aiding and abetting" required proof that appellant was actually in the bank.20 Rather

than answer the jury's question directly, the court instead responded

by again reading the standard aiding and abetting instruction.

Against, this factual backdrop, appellant raises a number of objections. First, he argues that the prosecution's decision to argue that

appellant was inside the bank during the robbery constructively narrowed the indictment. As a result, appellant claims to have been

unfairly surprised in violation of his Fifth and Sixth Amendment

rights to notice and an adequate opportunity to confront the charges

against him by the jury charge on aiding and abetting. Second, appellant contends that the aiding and abetting instruction was unsupported

by sufficient evidence. Last, he argues that the court erred in responding to the jury's question by repeating the instruction for aiding and

abetting.

We consider de novo whether a district court has properly

instructed a jury on the statutory elements of an offense. United States

v. Rahman, 83 F.3d 89, 92 (4th Cir.), cert. denied, 117 S.Ct. 494

(1996). However, "the decision of whether to give a jury instruction

and the content of an instruction are reviewed for an abuse of discretion." United States v. Abbas, 74 F.3d 506, 513 (4th Cir.), cert.

denied, 116 S.Ct. 1868 (1996). Furthermore, even where use or denial

of a jury instruction is in error, reversal is warranted only when the

error is prejudicial based on a review of the record as a whole. Ross

v. St. Augustine's College, 103 F.3d 338, 344 (4th Cir. 1996).

We begin our analysis by considering appellant's constitutional and

sufficiency claims to the initial aiding and abetting instruction.

Because appellant initially failed to raise his challenge to this instruction before the district court in the manner prescribed by Rule 30 of

_________________________________________________________________

20 The jury's question was as follows: "Does the term aid and abet

mean that he would actually have to be in the bank during the robbery

or that he assisted in the planning of the robbery?" J.A. at 83 (underlined

in original).

 22
the Federal Rules of Criminal Procedure,21 our review is limited to a

determination of whether the district court committed plain error.

United States v. McCaskill, 676 F.2d 995, 1001-02 (4th Cir. 1982).

Appellant contends that the government made a tactical choice to

prosecute him as one of the two principals who had actually robbed

the bank. He further claims that in so doing, the government constructively narrowed the indictment, unfairly surprising and depriving him

of due process by allowing the jury to find him liable for aiding and

abetting. For support, appellant draws on United States v. San Juan,

545 F.2d 314 (2d Cir. 1976), in which the Second Circuit overturned

a defendant's conviction because the district court's jury instruction

had "left open the possibility that the defendant could be held liable

on a different theory than the one on which both parties had tried and

argued the case." United States v. James, 998 F.2d 74, 79 (2d Cir.

1993) (discussing the holding in San Juan).

When the government or the court broadens the possible bases for

conviction beyond those included in the indictment, a constructive

amendment occurs which is per se reversible error. United States v.

Williams, 106 F.3d 1173, 1176 (4th Cir. 1997). When evidence presented at trial differs from what is alleged in the indictment, a variance

occurs. United States v. Fletcher, 74 F.3d 49, 53 (4th Cir.), cert.

denied, 117 S.Ct. 157 (1996). However, such a variance does not violate a defendant's rights requiring reversal unless it prejudices him,

either by surprising him at trial and hindering the preparation of his

defense, or by exposing him to the danger of a second prosecution for

the same offense. Id. Upon our careful review of the record, we find

no constructive amendment, no fatal variance and no reason to

believe that San Juan is controlling.

Count two of the indictment clearly charged appellant and others

"as principles or aiders and abettors" with having violated 18 U.S.C.

§ 2113(a) & (d) (armed bank robbery) and 18 U.S.C. § 2 (aiding and

abetting) and was sufficient to put appellant on notice of his potential

_________________________________________________________________

21 In pertinent part Rule 30 requires: "No party may assign as error any

portion of the charge or omission therefrom unless that party objects

thereto before the jury retires to consider its verdict, stating distinctly the

matter to which that party objects and the grounds of the objection."

 23
liability for aiding and abetting. Thus, far from broadening appellant's

potential liability, this instruction merely conformed to the charges by

the grand jury. Though this fact does not dispose of the possibility

that appellant was prejudiced by the government's"constructive narrowing" of the indictment, it does preclude a finding of per se reversible error. See United States v. Morganstern, 933 F.2d 1108, 1115 (2d

Cir. 1991) ("[W]here charges are `constructively narrowed' or where

a generally framed indictment encompasses the specific legal theory

or evidence used at trial, no constructive amendment occurs.").

However, under the facts of this case, we find no merit in the argument that the prosecutor's references to appellant's presence in the

bank as "the only issue in the case" constructively narrowed the

indictment in any prejudicial way. As the trial judge concluded in his

post-trial Memorandum Opinion, this statement "did not limit the

prosecutor's case, but instead illustrated only the issue that the prosecutor thought was the sticking point in the case." J.A. at 100.

In this respect, the actions of the government stand in marked contrast to the representations made by the prosecutor in San Juan. In

that case, the government charged defendant with failing to report

currency upon entering the United States. In trying the case, the prosecutor not only repeatedly emphasized his theory that the crime had

taken place on the bus, but also affirmatively rejected the possibility,

later included in the court's jury charge, that the crime could have

taken place outside the bus. San Juan, 545 F.2d at 317. In United

States v. Hobby, 702 F.2d 466 (4th Cir. 1983), our own court

endorsed the Second Circuit's reasoning in San Juan commenting that

defendant had been deprived of due process "since the prosecution

had provided defense counsel with abundant reason to believe that he

could and should focus his defense on the events and occurrences on

the bus." Id. at 470.

While we continue to adhere to that principle, we find the facts in

the instant case to be far less compelling. Here, the prosecutor's representations were significantly more equivocal and the potential for

surprise to appellant substantially less likely. Indeed, far from a situation where appellant was led "to forego any defenses he might otherwise have asserted," the record here clearly reveals appellant's efforts

to counter testimony presented by witnesses at trial that supported an

 24
instruction on aiding and abetting. Because appellant does not explain

and we cannot fathom how the prosecutor's representations resulted

in unfair surprise and prejudiced the fairness of his trial, we conclude

that there was no fatal variance between the indictment and the evidence offered at trial. Finally, we note that even were appellant correct that the prosecutor tried the case solely based on appellant's

liability as a principal, such a conclusion "does not preclude the trial

judge from giving an instruction on that theory where it deems such

an instruction to be appropriate." United States v. Horton, 921 F.2d

540, 544 (4th Cir. 1990). Under the law, one is guilty of aiding and

abetting if he assists the principal in committing a crime. Horton, 921

F.2d at 543. Moreover, one's physical location at the time of the robbery does not preclude the propriety of an aiding and abetting charge.

See McCaskill, 676 F.2d at 1000-01 (driver of the getaway car liable

as aider and abettor); United States v. Tarkington, 194 F.2d 63, 68

(4th Cir. 1952) (organizer of the robbery liable as aider and abettor).

At the second trial, the government presented sufficient evidence to

support an aiding and abetting charge. As the record demonstrates,

four separate witnesses each testified to appellant's participation in

conversations where plans to rob the bank were discussed. J.A. 269-

76, 309-17, 347-49, & 371-72. Indeed, on a number of occasions,

counsel for appellant specifically attacked these accounts, further

undercutting any concern of unfair surprise. As a result, we encounter

little hesitation in concluding that the instruction at issue has not "resulted in a miscarriage of justice or in the denial to appellant of a fair

trial." McCaskill, 676 F.2d at 1002 (quoting United States v. Houston,

547 F.2d 104, 108 (9th Cir. 1976)).

2.

Additionally, we reject appellant's contention that the trial court

erred in not giving his proposed jury instruction. While a trial court

must instruct the jury on the defendant's theory of the case, it is not

required to use the precise language requested. United States v. Smith,

44 F.3d 1259, 1270-71 (4th Cir. 1995) ("The district court is not

required to give defendant's particular form of instruction, as long as

the instruction the court gives fairly covers a theory that the defense

offers."). Moreover, where the court correctly instructs the jury on

reasonable doubt, it may properly reject a defense requested instruction on reasonable doubt as redundant. United States v. Russell, 971

 25
F.2d 1098, 1109 (4th Cir. 1992). Here, appellant requested that jury

be charged to find appellant not guilty if ". . . you believe that a bank

robbery occurred but you have reasonable doubt that the defendant,

rather than Lester Fuller or someone else, robbed the bank . . . ." J.A.

at 81. The court rejected appellant's request but charged the jury in

general terms that the government bore the burden of establishing

guilt beyond a reasonable doubt. While appellant understandably

would have preferred his version, we fail to find any abuse of discretion in the trial court's rejection of appellant's redundant instruction.22

3.

Last, we consider the trial judge's unwillingness to answer the

jury's request to identify two men pictured in a Polaroid photograph.

The photograph, which showed appellant and Anthony Wagner standing side-by-side, was introduced into evidence during appellant's

cross-examination of government witness, Rodney Van Wright, and

supported appellant's argument that the two men were roughly the

same height. During deliberations the jury asked the court the following question: "Who are the two men standing next to each other in the

photograph that is marked Defendant's Exhibit #12?" J.A. at 93. The

court refused to answer and appellant objected arguing that such

information went to a critical issue in the case-- the relative height

of the two men.

At the outset, we acknowledge that "[w]hen a jury makes explicit

its difficulties a trial judge should clear them away with concrete

accuracy." Bollenbach v. United States, 326 U.S. 607 (1946); Horton,

921 F.2d at 546. Yet, by the same token, "the court must be careful

not to invade the jury's province as fact finder." United States v.

Blumberg, 961 F.2d 787, 790 (8th Cir. 1992); see also United States

v. Nunez, 889 F.2d 1564, 1569 (6th Cir. 1989). Such a distinction is

consistent with our fundamental belief that it is the court that provides

_________________________________________________________________

22 Additionally, we dismiss appellant's related claim that the district

court abused its discretion by instructing jurors on the lesser included

offense of unarmed bank robbery under 18 U.S.C.§ 2113(a). Appellant's

subsequent acquittal on Count III clearly demonstrates that use of a firearm to commit the bank robbery was factually in dispute. Thus, we find

that the court's instruction on unarmed bank robbery was not improper.

 26
the legal yardstick and the jury that measures the evidence.23 See

Bollenbach, 326 U.S. at 614.

In contrast to the cases relied on by appellant, the trial court here

was within its discretion in refusing to answer the jury's question. As

the court recognized, a direct response would have gone far past

recounting trial testimony and would have risked stamping the court's

imprimatur on the factual conclusions proffered by appellant at trial.

While we agree with appellant that the trial judge could have

responded by having the appropriate part of the transcript read to the

jury, such action was not requested by appellant and was, in any

event, appropriately within the discretion of the trial court.

B.

Additionally, appellant argues that the court made three erroneous

evidentiary rulings that require reversal of his bank robbery conviction: allowing Sharon Wagner to testify about her prior consistent

statements, allowing the government to present evidence of appellant's travel to Belize, and allowing Rodney Van Wright to identify

appellant as one of the two robbers pictured in the bank's surveillance

photograph. In considering these claims, we are guided by our wellsettled rule that "decisions regarding the admission and exclusion of

evidence are peculiarly within the province of the district court, not

_________________________________________________________________

23 The full quotation from Bollenbach clearly reveals that the scope of

court's obligation is not open-ended, but is limited to clarifying questions

of law:

The jury's questions, and particularly the last written inquiry in

reply to which the untenable "presumption" was given, clearly

indicated that the jurors were confused concerning the relation of

knowingly disposing of stolen securities after their interstate

journey had ended to the charge of conspiring to transport such

securities. Discharge of the jury's responsibility for drawing

appropriate conclusions from the testimony depended on discharge of the judge's responsibility to give the jury the required

guidance by a lucid statement of the relative legal criteria. When

a jury makes explicit its difficulties a trial judge should clear

them away with concrete accuracy.

Id. at 612.

 27
to be reversed on appeal absent an abuse of discretion." United States

v. Loayza, 107 F.3d 257, 263 (4th Cir. 1997).

1.

As he had in Trial #1, appellant cross-examined Sharon Wagner

extensively regarding her prior statements to FBI investigators, specifically emphasizing parts of her previous interviews that were at

odds with her trial testimony. However, in contrast to the first trial,

the government changed its tactics in Trial #2; instead of moving to

admit the 302s into evidence, the prosecutor used them on redirect to

elicit from Sharon Wagner other parts of the 302s that were consistent

with her testimony on direct examination.

Nevertheless, appellant argues that the court erred in allowing

Sharon Wagner to testify about her prior consistent statements to FBI

investigators in January and February 1994 because such statements

were inadmissible hearsay under Rule 801(d)(1)(B) of the Federal

Rules of Evidence. Again, we believe that appellant is wrong. As we

have already commented, the prior consistent statements at issue are

not affected by the strictures of Rule 801(d)(1)(B) because they were

used to rehabilitate an impeached witness and not offered for the truth

of the matter asserted. See supra II.C. Having "opened the door" by

cross-examining the witness on these statements, appellant may not

now prevent the government from putting such highlighted inconsistencies in their proper context. As a result, we find appellant's reliance on our decision in Acker, where prior consistent statements were

improperly admitted as substantive evidence under Rule 801(d)(1)(B),

to be misplaced and conclude that the district court did not abuse discretion.

2.

As a second evidentiary objection, appellant attacks the district

court's failure to exclude evidence of his travel to Belize two weeks

after the bank robbery. Specifically, he argues that it was not relevant

to the charges against him and that the court improperly allowed the

jury to consider it as evidence of flight and infer consciousness of

guilt. See United States v. Beahm, 664 F.2d 414, 420 (4th Cir. 1994)

(concluding that a flight instruction was improper instruction where

 28
the flight did not occur until three weeks after commission of the

crime). Again we believe that the district court's admission of this

evidence was on firm ground.

At Trial #2, Sharon Wagner testified to having heard appellant and

Anthony Wagner make plans to leave Virginia after the bank robbery,

traveling first to New York in order to spend some of the stolen

money and then out of the country to Belize. J.A. at 316. Because

such travel was part of the overall plan to rob the bank, we consider

it highly probative in tending to show that appellant was one of the

robbers. Likewise, we believe that the evidence of appellant's circuitous travel immediately following the robbery to Eden, North Carolina, then to New York, and then to Belize could properly be

considered by the jury as evidence of flight. Appellant's characterization of a two-week gap between the bank robbery and his trip to

Belize is not persuasive in light of the testimony presented at trial that

described this trip as part of appellant's ongoing plan to escape detection by the police. Thus, we find no abuse of discretion.

3.

Finally, appellant claims that the district court improperly allowed

Rodney Van Wright, a co-defendant in Trial #1, to identify appellant

in a bank surveillance photograph by "the shape of his body". J.A. at

394. Again, we find appellant's argument to be without merit.

"A lay witness may give an opinion concerning the identity of a

person depicted in a surveillance photograph if there is some basis for

concluding that the witness is more likely to correctly identify the

defendant from the photograph than the jury." United States v.

Robinson, 804 F.2d 280, 282 (4th Cir. 1986) (quoting United States

v. Farnsworth, 729 F.2d 1159, 1160 (8th Cir. 1984)). At Trial #2, Van

Wright testified that he had known appellant for approximately five

years, that he saw appellant on the day before and the day of the robbery, that he met appellant in New York a few days after the robbery,

and that he traveled to Belize with appellant thereafter. In contrast,

the jury saw appellant only during the trial. Thus, allowing Van

Wright to assist the jury in identifying individuals in the bank photograph was proper, for ". . . testimony by those who knew defendants

over a period of time and in a variety of circumstances offers to the

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jury a perspective it could not acquire in its limited exposure to defendants." United States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986). Particularly in this case, where the two men photographed were wearing

masks and hooded sweatshirts, Van Wright's ability to recognize the

defendant by the shape of his body was helpful to the jury and thus

was properly admitted. See id. at 936 ("This fuller perspective is especially helpful where, as here, the photographs used for identification

are less than clear.").

IV.

Finally, appellant insists that his conviction at Trial #2 for unarmed

bank robbery must be overturned, first, because of the prosecution's

reliance on the alleged perjury of Sharon Wagner and second, because

of improper remarks made by the prosecutor in his closing statement.

When faced with a claim of prosecutorial misconduct, we review a

district court's factual findings for clear error; if, as here, no factual

findings exist, our review is plenary. United States v. McDonald, 61

F.3d 248, 253 (4th Cir. 1995).

Initially, we consider appellant's contention that his conviction,

based in part upon the perjured testimony of Sharon Wagner, violated

his constitutional right to due process. The government violates its

duty to deal fairly with a defendant where it either solicits testimony

it knew or should have known to be false or allows such testimony

to pass uncorrected. Kelly, 35 F.3d at 933. Such a violation is material

and requires reversal where "there is any reasonable likelihood that

the false testimony could have affected the judgment of the jury."

Augurs, 427 U.S. at 103.

At Trial #2, Sharon Wagner testified that her brother was approximately five feet nine inches tall. Appellant claims that this was perjury. For support, he relies on Sharon Wagner's testimony five

months earlier at Trial #1 in which she claimed to be unsure of her

brother's height, but then agreed with the prosecutor that he was probably about five foot four inches tall. In addition, other evidence supports appellant's contention that Anthony Wagner was much shorter

than five feet nine: an FBI "rap sheet" listed Antony Wagner as five

feet two inches tall, government witness Dorla Enriquez testified that

Sharon Wagner was several inches taller than Anthony Wagner, and

a Polaroid photograph of appellant and Anthony Wagner introduced

into evidence showed the two men to be roughly the same height

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(appellant was measured during the trial to be five feet five and a half

inches tall).

Appellant insists that the government's failure to correct Sharon

Wagner's trial testimony requires reversal of his conviction for

unarmed bank robbery. He argues that exposing this lie could have

eliminated possible confusion as to the relative heights of Anthony

Wagner and appellant caused by the conflict between Sharon Wagner's testimony and the Polaroid photograph of the two men. In addition, he claims that revealing this perjury could have led the jury to

completely discount the credibility of the government's star witness

and thus resulted in a different verdict.

Because we do not believe that Sharon Wagner's trial testimony

was perjury, we do not reach the materiality of her statements. Estimations of height are matters of perception, not fact. As a result, in

the absence of conclusive proof that Sharon Wagner actually knew

how tall her brother was, the conflict between her testimony and other

evidence presented at trial proves only that she was mistaken, not that

she lied. Contrary to appellant's contention, we believe her testimony

from Trial #1 serves more to establish her indecisiveness than her

knowledge of her brother's height.24 In addition, appellant fails to

establish that the government knew or should have known that Sharon

Wagner's estimation was wrong. Anthony Wagner was a fugitive; at

no time during the trial was he available to be measured by the government. The fact that his "rap sheet" listed him as five feet two is not

conclusive evidence of his height, and thus serves, as did Sharon

Wagner's testimony, only as an estimate.

Finally, we agree with the district court that the prosecutor's references in his closing argument to his own nearsightedness and his personal view as to the weight of certain evidence does not require that

_________________________________________________________________

24 Sharon Wagner's testimony at Trial #1 on cross-examination reads

as follows:

Q: How tall is your brother, Anthony?

A: I'm not sure.

Q: Is he about five four?

A: I'm not sure; probably.

J.A. at 204.

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the conviction be vacated. To require reversal, remarks made by a

prosecutor in his closing argument must not only have been improper,

but must have also "so infected the trial with unfairness as to make

the resulting conviction a denial of due process." Loayza, 107 F.3d at

262 (quoting United States v. Francisco, 35 F.3d 116, 120 (4th Cir.

1994)). In considering whether such remarks prejudiced the defendant, we consider the following: (1) whether the prosecutor's remarks

had a tendency to mislead the jury and prejudice the defendant; (2)

whether the remarks were isolated or extensive; (3) absent the

remarks, the weight of the evidence against the accused; and (4)

whether the prosecutor's remarks were deliberate. Id. at 262.

Even if appellant is correct that the prosecutor's reference to his

own nearsightedness improperly intimated his personal opinion as to

the reliability of a witness's identification, we fail to find any resulting prejudice. Far from the "discourse" claimed by appellant, this isolated remark merely reveals an imprudent attempt to counter

appellant's efforts to discredit the witness's identification by reference to her myopia. Likewise, we find no prejudice in the prosecutor's comments regarding how he would evaluate the inability of

certain witnesses to remember the color of the clothing worn by the

robbers. Again, we doubt that such comments were deliberately

placed before the jury in an attempt to mislead, especially in light of

the prosecutor's subsequent explanation, "And again, ladies and gentlemen, that's your decision. You are the judges of credibility. You

heard the testimony." J.A. at 436. Such sentiment was echoed by the

court's subsequent instruction that comments made by the lawyers

were not evidence in the case and not binding on the jury. Finally,

even without these remarks, we believe that the weight of the evidence presented at trial supports appellant's conviction for unarmed

bank robbery. As a result, we conclude that the prosecutor's remarks

did not materially affect the verdict, and thus reject appellant's claim.

V.

For the aforementioned reasons, appellant's convictions for conspiracy in Trial #1 and for unarmed bank robbery in Trial #2 are

affirmed.

AFFIRMED

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