US v. Calvin Cantrell Estrich

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00160-MOC-DSC-1 Copies to all parties and the district court/agency. [999715074].. [15-4012]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4012

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CALVIN CANTRELL ESTRICH,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00160-MOC-DSC-1)

Submitted:

November 30, 2015

Decided:

December 9, 2015

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew G. Pruden, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte,
North Carolina, for Appellant.
Jill Westmoreland Rose, Acting
United States Attorney, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Calvin Cantrell Estrich was convicted by a jury of multiple
counts of health care fraud and related offenses.

The district

court sentenced Estrich to a total of 63 months’ imprisonment.
On appeal, Estrich argues that the Government committed plain
error

by

vouching

for

the

credibility

conspirator during closing argument.
“Vouching

occurs

when

the

of

a

cooperating

co-

We affirm.

prosecutor’s

actions

are

such

that a jury could reasonably believe that the prosecutor was
indicating a personal belief in the credibility of the witness.”
United States v. Lighty, 616 F.3d 321, 359 (4th Cir. 2010).
This determination does not hinge on the exact words employed by
the

prosecutor

constitute

“an

but

on

attempt

whether
to

those

replace

prosecutor’s personal judgments.”

words,

the

in

evidence

context,
with

the

United States v. Johnson, 587

F.3d 625, 632 (4th Cir. 2009) (internal quotation marks omitted)
(holding that prosecutor’s use of phrases “I’m convinced” and “I
think” in “innocuous, conversational sense” were not vouching).
Estrich

concedes

that

because

he

did

not

object

to

the

prosecutor’s remarks, his claim is reviewed for plain error.
Under this standard, Estrich must show:

(1) there was an error,

(2) that is plain, and (3) that affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732, 735-36 (1993).

An

error affects a defendant’s substantial rights where there is “a
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reasonable probability that the error affected the outcome of
the trial.”

United States v. Marcus, 560 U.S. 258, 262 (2010).

We will exercise our discretion and reverse a conviction based
on a plain error only where the error “seriously affects the
fairness,

integrity,

proceedings.”

or

public

reputation

of

judicial

Id. at 265 (brackets and internal quotation marks

omitted).
The

Government

made

the

following

remarks

during

its

rebuttal argument:
Now, the question was also raised, without [the
cooperating co-conspirator] what does the government
have?
And I mentioned that when I spoke to you
before.
And what do we have without [her]?
Well,
[she]
came
forward
and
she
provided
truthful
information.
And you know that it’s truthful
information because without [her], we have Calvin
Estrich.
The Government then discussed the evidence against Estrich other
than this witness’s testimony.

Although Estrich did not object

to

the

the

Government’s

determined

that

argument,

the

Government’s

district

court

statement

that

sua

sponte

the

co-

conspirator was truthful was vouching, and issued a curative
instruction.
We

conclude

that

the

court’s

curative

instruction

sufficient to remedy any error in the Government’s argument.

was
In

context, the prosecutor’s statement that the co-conspirator was
truthful unambiguously relied on the evidence rather than on the

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prosecutor’s personal belief.

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The district court’s instruction

clearly informed the jury that any inference that the prosecutor
personally believed the co-conspirator to be truthful would be
improper

and

that

they

should

witnesses based on the evidence.

assess

the

credibility

of

See United States v. Chong

Lam, 677 F.3d 190, 204 (4th Cir. 2012) (“[J]uries are presumed
to

follow

omitted)).

their

instructions.”

Because

the

record

(internal
shows

that

quotation
any

error

marks
in

the

Government’s argument did not affect the outcome of the trial,
we find that Estrich has failed to show that the asserted error
affected his substantial rights.
Accordingly, we affirm the judgment of the district court.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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