United States of America v. Calvin Cantrell Estrich

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 of a cooperating co-
conspirator during closing argument. We affirm.
“Vouching occurs when the 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 but on whether those words, in context,
constitute “an attempt to replace the evidence with the
prosecutor’s personal judgments.” 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, or public reputation of judicial
proceedings.” 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 Government’s argument, the district court sua sponte
determined that the Government’s statement that the co-
conspirator was truthful was vouching, and issued a curative
instruction.
We conclude that the court’s curative instruction was
sufficient to remedy any error in the Government’s argument. 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. 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 assess the credibility of
witnesses based on the evidence. See United States v. Chong
Lam, 677 F.3d 190, 204 (4th Cir. 2012) (“[J]uries are presumed
to follow their instructions.” (internal quotation marks
omitted)). Because the record shows that any error 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 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

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