USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 1 of 31

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4125

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KEVIN NEAL SMITH,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, Senior District Judge. (1:20-cr-00074-AJT-1)

Submitted: October 18, 2023 Decided: December 13, 2023

Before NIEMEYER, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished opinion. Judge Quattlebaum wrote the opinion, in which Judge Niemeyer and Judge Thacker joined.

ON BRIEF: Jonathan Jeffress, Tony W. Miles, Amelia Schmidt, William Zapf, KAISERDILLON PLLC, Washington, D.C., for Appellant. Jessica D. Aber, United States Attorney, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 2 of 31

QUATTLEBAUM, Circuit Judge:

This appeal arises from Kevin Smith’s convictions for wire fraud and conspiracy to

commit wire fraud based on his representations that his former employer, SDB Engineers

and Constructors, Inc. (“SDB”), was eligible to receive certain government contracts as a

women-owned small business when it was, in fact, not a women-owned small business.

Smith argues that the district court erred by denying his post-trial motion for judgment of

acquittal based on insufficient evidence demonstrating his criminal intent and his post-trial

motion for a new trial based on the district court’s improper admission of hearsay

statements from a witness’s plea agreement. But substantial evidence supported Smith’s

convictions. And even assuming the district court erred by admitting hearsay evidence, any

such error was harmless. As a result, we affirm.

I. BACKGROUND

A. The Small Business Act

We begin with some background on the Small Business Act, 15 U.S.C. §§ 631–47.

Under that Act, the Small Business Administration is responsible for implementing the

federal government’s Women-Owned Small Business (“WOSB”) Program. See id.

§ 637(m). With a current goal of awarding 5% of all federal contracting dollars to women-

owned small businesses, Congress created the WOSB Program to help level the playing

field in federal government contracting for women business owners. 1 In industries in which

See U.S. Small Bus. Admin., Women-Owned Small Business Federal Contract 1

Program, (last updated July 26, 2023), https://www.sba.gov/federal-contracting/

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the Small Business Administration has determined that women-owned small businesses

are underrepresented, the federal government reserves certain contracts—called “set-

asides”—for women-owned small businesses participating in the WOSB Program. 2

The WOSB Program is implemented through subpart 19.15 of the Federal

Acquisition Regulation. Subpart 19.15 provides that a business concern is eligible to

participate in the WOSB Program as a women-owned small business if it meets the

eligibility requirements set forth in

. There, a “women-owned small

business” is defined, in relevant part, as a small business concern that “is at least 51 percent

owned and controlled by one or more women.”

. In other words, one

or more women must not only be the majority owners of the small business, they must also

control its “management and daily business operations.”

§ 127.202. At all times relevant

to this case, a small business could participate in the WOSB Program by obtaining formal

certification as a women-owned small business from the Small Business Administration or

an approved third-party certifier or by self-certifying that it met the two-part definition of

a women-owned small business. 3

contracting-assistance-programs/women-owned-small-business-federal-contract-program [https://perma.cc/6JCY-8LXQ]. 2 See U.S. Small Bus. Admin., Eligible NAICS for the Women-Owned Small Business Federal Contracting Program, (last updated June 13, 2023) https://www.sba.gov/ document/support-eligible-naics-women-owned-small-business-federal-contracting- program [https://perma.cc/EH86-BD4E]. 3 As of October 2020, however, self-certification is no longer sufficient for purposes of WOSB Program participation. See

(c). Only formally certified women-owned small businesses are presently eligible to participate in the WOSB Program. See

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B. Factual and Procedural Background

In March 2020, a federal grand jury returned a seven-count indictment charging

Smith, the former General Manager of SDB, with one count of conspiracy to commit wire

fraud, in violation of

, and six counts of wire fraud, in violation of

. With respect to the conspiracy count, the indictment alleged that Smith

participated in a scheme with SDB Chief Executive Officer Mike Myers and others to

falsely represent SDB as a women-owned small business to National Aeronautics and

Space Administration (“NASA”) prime contractors—QinetiQ North America (“QNA”)

and Jacobs Technology—in order to receive set-aside contracts under the WOSB Program.

Through fraudulently obtained subcontracts from these prime contractors, Smith

purportedly helped SDB achieve more than $6.4 million in payments and $1 million in

profits.

As a basis for five of the six counts of wire fraud, the indictment identified five

instances in which Smith used interstate wire communications to request, and later receive,

payments from QNA or Jacobs Technology under those subcontracts. The remaining wire

fraud count stemmed from Jacobs Technology’s use of interstate wire communications to

access Smith’s false certification in the federal government’s System for Award

Management (“SAM”) that SDB was a women-owned small business.

Smith was not the only individual from SDB indicted based on this alleged scheme.

Myers, Chief Operating Officer Henry Eldredge and one-time majority owner Anne Robins

were also charged with various offenses. Myers, Eldredge and Robins each entered into

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plea agreements with the government. Smith did not. So, we review the evidence from his

six-day jury trial.

i. History of SDB

Formed in 1994 by Robins and Lawrence Myers (Mike Myers’ father), SDB was a

Florida corporation that performed contracting and subcontracting work for NASA at the

Kennedy Space Center in Florida. At the time of SDB’s formation, Robins owned 51% of

the company’s shares and Lawrence Myers, her romantic partner, owned the remaining

49%. Though SDB was based in Florida, Robins and Lawrence Myers lived in

Pennsylvania, where they both worked for Lawrence Myers’ other construction-related

company, Universal Services Associates, Inc. (“Universal”). The two companies were

financially linked, as SDB paid Universal a substantial management fee.

Robins testified that, while she was the majority shareholder, Lawrence Myers

controlled the management and day-to-day operations of SDB. Though SDB did not

qualify as a women-owned small business under the WOSB Program due to Robins’ lack

of control over the company, Robins testified that, throughout its existence, SDB pursued

set-aside contracts under the WOSB Program anyway, with employees signing

representations and certifications that it was a women-owned small business. For instance,

by falsely representing itself as a woman-owned small business, SDB obtained a lucrative

subcontract from NASA prime contractor QNA in 2011.

In or around 2011, Lawrence Myers became ill, and his son Mike assumed control

of SDB and Universal. At some point between 2011 and his father’s death in 2013, Myers

inherited his father’s shares in SDB. In 2012, Myers hired Eldredge as SDB’s COO.

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Eldredge joined Myers and Robins in Universal’s Pennsylvania office. Eldredge testified

that around the time he began working for SDB, Mike Myers told him that SDB was “self-

certified” as a women-owned small business based on Robins’ 51% ownership of the

company. J.A. 436. Eldredge testified that he was not familiar with the concept of self-

certification. Nevertheless, Eldredge explained that he trusted Myers and joined him in

representing SDB as a women-owned small business.

In April 2013, Robins retired from SDB and Universal. Robins testified that she did

not perform any work for either company after her retirement. Though Myers and his

brother Mark Myers planned to purchase Robins’ shares in SDB, Robins remained the

company’s majority owner for the time being.

ii. Smith Joins SDB

In December 2013, about seven months after Robins’ retirement, Myers and

Eldredge interviewed Smith for the position of SDB’s General Manager. Smith held a

Master of Business Administration (“M.B.A.”) degree and had experience in government

contracting. Eldredge testified that, during the interview, Smith asked if SDB was a

women-owned small business. Myers purportedly told Smith that SDB would remain a

women-owned small business until Robins sold her shares. According to Smith, no one

informed him that Robins had already retired. Smith later accepted an offer for the General

Manager position and began working from SDB’s Florida office with site manager John

Albert in March 2014.

At the start of his employment, Smith was tasked with creating a business plan for

SDB and exploring other set-asides that SDB could pursue after Robins sold her shares. In

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a draft business plan emailed to Eldredge in April 2014, Smith recognized that the majority

of the SDB’s business came from its subcontracting work for QNA. Smith therefore

emphasized the importance of SDB acquiring new government contracts. Smith also

identified one of SDB’s strengths as being a “woman owned enterprise,” as that was how

SDB obtained its subcontracting work from QNA. J.A. 1910.

At trial, Smith explained that the representations of Myers and others at SDB led

him to believe that the company could legitimately self-certify—as opposed to being

formally certified—as a women-owned small business based on Robins’ majority

ownership interest alone. For instance, prior to circulating the draft business plan, Smith

received an email from Albert about SDB’s history, in which Albert stated, “We became

SDB, a self-certified Woman owned company . . . . Anne has owned 51% of the company

from the beginning . . . .” J.A. 1882. Smith testified that this was consistent with what he

was told in his job interview with Myers and Eldredge.

iii. May 2014 Email Chain

In May 2014, Myers emailed Smith, Eldredge and Mark Myers in reference to

Smith’s ongoing assignment of exploring SDB’s eligibility for other set-asides. Myers

stated, “Researching the WOSB certification process it seems as though we could remain

self certified if my wife was made 51% share holder. However, she would have to leave

her current job and work full time for the company.” J.A. 1916. Myers explained that “[a]s

this is not an option, I will need to discuss plans to transition Anne Robins from president

of [SDB].” J.A. 1916. Myers further shared that “the ownership transfer . . . will take

another three years.” J.A. 1916. But as Eldredge testified, Robins was not the president of

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SDB at that time. Moreover, the transfer of Robins’ shares would not take three years, as

Myers and his brother would ultimately purchase the shares only a few months later.

Attached to Myers’ email was an eight-page article from the American Bar

Association (“ABA”), which metadata confirmed Smith opened. The article was titled

“Diversity. How to qualify for the women-owned small business federal contracting

program.” J.A. 1917. In addition to identifying the two-part definition of a women-owned

small business, the ABA article noted that “[t]he requirements for control of the WOSB

are somewhat stringent, reflecting the legitimate need to guard against firms attempting to

qualify for WOSB status when the woman is merely a figurehead for the company.” J.A.

1919–20. The ABA article explained that a woman must hold the highest officer position

in the company and must manage the company on a full-time basis in order to satisfy the

definition’s control prong.

According to Eldredge, Smith—not Robins—was the highest-ranking full-time

employee at SDB during the relevant time period. Neither Eldredge nor Myers worked full-

time at SDB, and Myers only made the company’s long-term decisions. Consistent with

Robins’ testimony, Eldredge testified that Robins did nothing for the company after her

retirement. While Smith testified that he was still unaware of Robins’ retirement as of May

2014, he admitted that he was the one responsible for controlling SDB’s daily operations

during the entire time he worked at the company.

Less than an hour after Myers sent the ABA article, Smith responded with an email

to Myers and Eldredge. Therein, Smith explained that Florida’s Small Business

Development Council could help SDB pursue “formal certification” as a women-owned

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small business. J.A. 1932. However, Smith acknowledged that “[o]ne of the questions we

would have to overcome is how can someone in [Pennsylvania]”—that is, Robins—“run a

business in [Florida]. Traditionally, you cannot be certified under this type of scenario

without detailed records of involvement.” J.A. 1932. Smith therefore stated that “self-

certification is our best option at this point.” J.A. 1932.

Eldredge testified that he initially shared Smith’s purported belief—that, for

purposes of obtaining set-asides, SDB could self-certify as a women-owned small business

based on Robins’ majority ownership. But after reading the ABA article, Eldredge realized

that he was mistaken. In an email that Smith indisputably received, Eldredge told Myers

and Smith, “If the article is accurate and the explanations of certification are correct (no

reason to believe otherwise), then I think we’re on very thin ice as ‘self-certified’ since

SDB does not meet the standards for daily business operations controlled by a woman.”

J.A. 1932 (emphasis in original). Eldredge expressed that he could not “imagine [Robins]

agreeing to become involved in daily operations at this point,” as she had not been involved

with the company’s operations in over a year. J.A. 1932. In the same email, Eldredge also

responded to Myers’ assertion that the transfer of Robins’ ownership would take three

years, stating that he did not “see any advantage to having [Robins] continue for the next

three years, since her involvement in the business isn’t sufficient to earn the benefit” of

being a women-owned small business. J.A. 1932. Eldredge then questioned whether SDB

was, instead, eligible for set-asides as an economically disadvantaged small business.

Smith replied to Eldredge with an email stating that he did not think SDB would qualify

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for those set-asides based on his research. Smith did not offer any response to Eldredge’s

concerns about representing SDB as a women-owned small business.

In fact, Eldredge testified that Smith never expressed any confusion about the

concerns Eldredge raised. Eldredge explained that Smith, instead, continued to represent

SDB as a women-owned small business. Eldredge testified that Myers told him and Smith

in subsequent conference calls that SDB would remain a women-owned small business

until Robins sold her shares in the company. Though Eldredge testified that he knew SDB

did not qualify as a women-owned small business at that point, he stated that he agreed to

go along with Myers and Smith’s false representations by concealing their scheme.

Shortly after the group’s email exchange, Smith emailed Myers and Eldredge his

final draft of SDB’s business plan. In the business plan, Smith noted that “Mike Myers has

taken control of [Universal] and SDB and has become more directly involved in SDB

business operations.” J.A. 1945. He also stated that Myers planned to “acquire the 51%

share from Anne Robins essentially making SDB a Small Business versus a Small Woman-

Owned Business.” J.A. 1945. Smith proposed continuing to identify SDB as a “woman

owned enterprise,” suggesting that the company “leverage” that status “until no longer

applicable.” J.A. 1949. He further recognized the existence of “[m]any woman-owned

small businesses in area” as an “obstacle[]” for SDB. J.A. 1964–65. Smith also referenced

Jacobs Technology in the business plan, as SDB hoped to soon expand its business by

obtaining a subcontract from that NASA prime contractor.

In June 2014, after circulating his final draft of SDB’s business plan, Smith met with

government contracting specialist Patricia Overway of Florida’s Small Business

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Development Council. Overway testified that Smith told her that Robins owned SDB but

was not actively involved in the company. According to Overway, she and Smith discussed

the WOSB Program’s rules, including the eligibility requirement that a woman control the

day-to-day operations of the company. Overway also stated that she later emailed Smith

some additional guidance, including documents in which the WOSB Program’s eligibility

requirements were highlighted. She asserted that she highlighted the eligibility

requirements for Smith because “there was a red flag that [Robins] did not meet all the

eligibility criteria.” J.A. 716.

However, Overway admitted on cross-examination that the eligibility requirements

were pre-highlighted in the documents, as she sent them to all clients that way. She likewise

acknowledged her initial inability to remember the details of her meeting with Smith when

first interviewed by agents and prosecutors in 2020. Overway explained that her general

practice in client meetings and her review of her email correspondence with Smith later

jogged her memory. But based on that email correspondence, Overway conceded that

Smith’s main reason for meeting with her was to discuss creating a capabilities statement 4

for SDB, not to discuss SDB’s status as a women-owned small business. And though Smith

subsequently requested Overway’s feedback on his draft capabilities statement that

referred to SDB as a small woman-owned business, Overway admitted that the feedback

she provided Smith did not raise any concerns about that reference.

4 Businesses contracting with the federal government are required to have a capabilities statement, which serves as a sort of company resume.

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Following his meeting with Overway, Smith sent his capabilities statement to Mike

Myers, Eldredge and a consultant working with SDB. In response, the consultant asked,

“Is SDB still women-owned?” J.A. 2012. Smith stated, “At the moment, yes, but could

change in the very near future.” J.A. 2012.

iv. The Sale of Robins’ Shares

In early July 2014, Smith met Robins for the first and only time when Smith visited

Universal’s Pennsylvania office. Robins testified that Myers asked her to come to the office

to meet Smith. Though Myers brought a copy of the sales agreement for his upcoming

purchase of Robins’ shares to the office, Robins testified that the sale was not openly

discussed in front of Smith. Smith testified that he was still unaware that Robins was retired

when he met her. The next day, Smith certified SDB as a women-owned small business in

a 22-page form in SAM. The form’s first page stated, “I, Kevin Smith, am attesting to the

accuracy of the representations and certifications contained herein . . . . I understand that I

may be subject to penalties if I misrepresent [SDB] in any of the below representations or

certifications to the Government.” J.A. 2013.

The following month, Robins sold her shares to Mike and Mark Myers for $115,000.

As a result of the sale, Mike Myers became the majority owner of SDB. Smith testified that

he was not aware of the sale. Eldredge likewise testified that he was not aware of Myers

informing Smith of the transaction. Though Myers emailed Eldredge to inform him of the

transaction’s completion, he did not copy Smith on that email.

v. SDB’s Subcontracts

In August 2014, six days before Robins sold her shares, Smith submitted a

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subcontracting bid on SDB’s behalf to Jacobs Technology. Smith’s signature appeared in

the bid paperwork 23 times. Among the paperwork was a Company Profile Form, in which

Smith certified that SDB was a women-owned small business. The paperwork also

included the Jacobs Technology Representations and Certifications form, which Smith

signed under penalty of perjury. Within that three-page form, which included the two-part

definition of a women-owned small business, Smith again certified that SDB was a women-

owned small business. Smith also completed the Jacobs Technology Vendor Size Status

Certification form, in which he certified SDB as a women-owned small business for a third

time. On that form, the term’s two-part definition was listed inches above Smith’s

signature.

In September 2014, Jacobs Technology selected SDB’s bid. As a result, Smith had

to update SDB’s certifications in SAM. Smith acknowledged at trial that before he could

certify that SDB was a women-owned small business in SAM, the database provided the

two-part definition of the term on the screen, including the requirement a woman be in

control of the company’s daily operations. Smith testified, however, that he still thought

the two-part definition applied only to formally-certified companies, not self-certified

companies. Even so, Smith admitted that he believed it would be fraudulent to self-certify

as a women-owned small business if a woman merely served as a figurehead of a company.

When asked on cross-examination how Robins was not such a figurehead, Smith

backtracked and claimed that he did not know the level of Robins’ daily involvement at

SDB.

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Nevertheless, Smith testified that had he known that Robins sold her shares after he

submitted SDB’s bid to Jacobs Technology, he “could have gone to Jacobs and amended

[SDB’s] certifications.” J.A. 1030. However, Smith testified that Myers continued to

misrepresent Robins’ ownership interest in SDB, thereby preventing him from learning of

the sale of Robins’ shares until April 2015. But Smith admitted that even after he learned

of the sale, he did not immediately contact Jacobs Technology or update SDB’s

certifications in SAM. It was not until late June 2015, and only after he received a

notification that SDB’s SAM registration was about to expire, that Smith removed SDB’s

women-owned small business certification from the database. The following month, Smith

also submitted a new subcontract bid to QNA in which he no longer represented SDB to

be a women-owned small business. There was no evidence that Smith otherwise informed

QNA of his understanding of SDB’s new status at that point, despite having requested and

received multiple payments from QNA under SDB’s existing set-aside contract during the

preceding months.

Even after updating SDB’s certifications in SAM and submitting a new bid to QNA,

Smith waited until October 2015 to inform Jacobs Technology of his understanding of

SDB’s status change. And Smith only did so after a Jacobs Technology employee asked

him to confirm that SDB’s information in Jacobs Technology’s internal knowledge

management system was up to date. After updating SDB’s information, Smith emailed the

employee stating, “Anne Robbins [sic] who was the 51% owner has informed us she is

retiring. Mike and Mark Myers are in the process of buying her shares. I believe this

transaction will take place over the next three years. As a result, I removed the women-

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owned status.” J.A. 2131. Smith testified that he knew Robins had already retired and sold

her shares at that point, so he was not sure why he worded the email as if neither event had

yet occurred.

vi. Criminal Investigation

In May 2016, Smith left SDB after Myers and Eldredge decided to reorganize the

company. Two months later, Smith received a call from agents at NASA’s Office of

Inspector General (“NASA OIG”). Smith testified that the agents asked questions about

SDB’s ownership and its employees’ roles. According to NASA OIG Agent Philip

Mazzella, Smith shared that Robins was not involved in SDB’s daily operations.

A few months later, in November 2016, NASA OIG investigators interviewed Smith

for a second time at his home. During this interview, agents showed Smith the May 2014

email exchange in which Eldredge expressed his concerns that SDB was not a women-

owned small business because Robins did not exercise control over the company. Agent

Mazzella testified that, after being confronted with this email exchange, Smith changed his

story by asserting that he did not know Robins’ level of involvement at SDB. Agent

Mazzella testified that Smith told agents there was no “ill intent” in his representations of

SDB as a women-owned small business. J.A. 669.

vii. Eldredge’s Plea Agreement Statements

Particularly relevant to Smith’s appeal are statements from Eldredge’s plea

agreement that the government introduced during Eldredge’s redirect examination at

Smith’s trial. Prior to Smith’s indictment, Eldredge signed a plea agreement in which he

agreed to plead guilty to misprision of a felony. Testifying for the government, Eldredge

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stated during direct examination that he agreed with Myers and Smith to conceal their

scheme to falsely represent SDB as a women-owned small business. Later, on cross

examination, Smith’s counsel asked Eldredge if he had testified on direct that he had

“committed fraud with Mr. Smith.” J.A. 428. Eldredge replied that he did not remember

making such a statement. Smith’s counsel then asked if Eldredge’s “agreement [was] for

something called misprision of a felony.” J.A. 428. Eldredge affirmed that he pled guilty

to that offense. Eldredge thereafter agreed with Smith’s counsel that his plea agreement

did not require him to admit to having any “criminal agreement with Mr. Smith” or

“commit[ting] fraud with Mr. Smith.” J.A. 429.

At the start of its redirect examination of Eldredge, the government sought to

introduce the signed statement of facts from Eldredge’s plea agreement, in which Eldredge

admitted to knowing of Smith and Myers’ conspiracy to falsely represent SDB as a women-

owned small business. Smith’s counsel objected to the statements as hearsay. During a side

bar conference, the government argued that the statements were admissible under Federal

Rule of Evidence 801(d)(1)(B) as prior consistent statements “on precisely the point of

whether there was agreement” between Smith and Myers to falsely represent SDB as a

women-owned small business. J.A. 604. The district court ultimately allowed the

government to introduce the first two paragraphs of the plea agreement’s statement of facts

to “rebut[] the impression that [Eldredge] minimized his involvement on cross.” J.A. 604.

Reading from the plea agreement’s statement of facts, the government asked

Eldredge if he had affirmed having “knowledge of the actual commission of a felony,”

including “conspiracy to commit wire fraud [and] major government fraud,” which he took

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affirmative steps to conceal. J.A. 605. The government also asked Eldredge if he had

affirmed that he “knew Michael Myers and Kevin Smith conspired with each other” to

defraud Jacobs Technology and the federal government by fraudulently representing SDB

as a women-owned small business. J.A. 606. Eldredge agreed that these statements were

“all true” and “in fact what happened,” agreeing that no one “put those words in [his]

mouth.” J.A. 607. He further confirmed that he signed his plea agreement before he knew

that Smith would be indicted.

viii. Verdict and Post-Trial Motions

After deliberating for a little over four-and-a-half hours, the jury returned a verdict

finding Smith guilty of conspiracy and five counts of wire fraud. Smith subsequently

moved for judgment of acquittal under Rule 29 and for a new trial under Rule 33. In his

motion for judgment of acquittal, Smith asserted that there was insufficient evidence to

show that he knowingly misrepresented SDB as a women-owned small business. Smith

argued that the evidence, instead, showed that Smith did not know or understand the two-

part definition of a women-owned small business. The government disagreed, asserting

that there was sufficient evidence to show Smith’s criminal intent. And in his motion for a

new trial, Smith alleged that the district court improperly admitted hearsay statements from

Eldredge’s plea agreement. Contrary to its assertion at trial, the government responded that

“Rule 801(d)(1)(B) [was] likely not even implicated at all.” J.A. 1535. The government

argued that its use of the statements was for the non-hearsay purpose of rehabilitation under

the rule of completeness. To the extent Rule 801(d)(1)(B) was implicated, however, the

government maintained that the statements were still admissible.

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The district court denied both motions. With respect to the motion for judgment of

acquittal, the district court determined that the evidence, when “viewed most favorably to

the Government, clearly constitute[s] substantial evidence upon which a rational[] jury

could conclude [Smith]’s guilt beyond a reasonable doubt on all Counts of conviction, even

in the face of the other evidence from which it might have inferred innocence.” J.A. 1754.

The district court further concluded that the evidence and testimony concerning Eldredge’s

plea agreement were “properly admitted to rehabilitate Eldredge,” such that Smith was not

entitled to a new trial. J.A. 1760.

Later, Smith was sentenced to one year of probation with special conditions of three

months of home detention and 100 hours of community service. He was also ordered to

pay a $5,000 fine.

II. ANALYSIS

Smith raises two challenges on appeal. 5 First, Smith maintains that the district court

erred by denying his Rule 29 motion for judgment of acquittal, as there was insufficient

evidence to show that he knowingly agreed to misrepresent SDB as a woman-owned small

business and knowingly did the same. According to Smith, the government failed “to

establish that Mr. Smith knew and understood the requirement that a woman must not only

own, but also control, the company.” Op. Br. at 46. Smith asserts that the evidence at trial

actually demonstrated his misunderstanding of the definition’s application, which the

5 We have jurisdiction under

.

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government made no attempt to rebut. Smith therefore avers that he should be acquitted on

all counts.

Second, Smith argues that the district court erred by denying his Rule 33 motion for

a new trial based on its admission of hearsay statements from Eldredge’s plea agreement.

Smith contends that the statements are not admissible as prior consistent statements under

Rule 801(d)(1)(B)(i) because Eldredge had a motive to lie when signing his plea agreement

and because Eldredge was not subject to cross-examination in accordance with the Rule’s

requirement. Smith also argues that the statements are not admissible under the doctrine of

completeness, despite the government’s post-trial insistence. Smith alleges that the

erroneous admission of these statements was highly prejudicial, requiring a new trial.

We address these arguments in turn.

A. Sufficiency Challenge

We review the denial of a Rule 29 motion for judgment of acquittal de novo. United

States v. Savage,

(4th Cir. 2018). We “must consider all of the evidence

admitted by the trial court, regardless of whether that evidence was erroneously admitted.”

McDaniel v. Brown,

(2010) (per curiam) (internal quotations omitted).

If a jury’s verdict is supported by substantial evidence, it will be upheld. United States v.

Burfoot,

(4th Cir. 2018). Our “limited review” of the sufficiency of the

evidence “does not intrude on the jury’s role ‘to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’”

Musacchio v. United States,

(2016) (quoting Jackson v. Virginia,

(1979)). Rather, where the record supports competing inferences, we must

19 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 20 of 31

infer “that the trier of fact resolved any such conflicts in favor of the prosecution, and must

defer to that resolution.” Jackson,

.

“A sufficiency challenge presents a ‘heavy burden,’ which a defendant will only

overcome in ‘cases where the prosecution’s failure is clear.’” United States v. Zayyad,

(4th Cir. 2014) (quoting United States v. McLean,

(4th

Cir. 2013)). In other words, “a judgment of acquittal is appropriate when the evidence is

so deficient that acquittal is ‘the only proper verdict.’” United States v. Rafiekian,

(4th Cir. 2023) (quoting Tibbs v. Florida,

(1982)).

Here, Smith challenges the sufficiency of the evidence supporting his convictions

for wire fraud and conspiracy to commit wire fraud. To prove that a defendant committed

wire fraud in violation of

, the government must show “that the defendant

(1) devised or intended to devise a scheme to defraud and (2) used or caused the use of

wire communications in furtherance of that scheme.” Burfoot,

. Conspiracy

to commit wire fraud under

requires a showing “that (1) two or more

persons agreed to commit wire fraud and (2) the defendant willfully joined the conspiracy

with the intent to further its unlawful purpose.”

Smith contends that there was insufficient evidence at trial to show that he had the

requisite criminal intent to commit either offense. Specifically, Smith insists that the

government failed to show he knew and understood the two-part definition of a women-

owned small business and its application to SDB. Smith raises three primary arguments in

support of his position. First, Smith contends that the government never accounted for

evidence demonstrating that Myers made deceptive representations to Smith about SDB’s

20 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 21 of 31

status as a women-owned small business and that Smith believed those deceptive

representations. Smith also takes issue with the fact that the government did not call Myers

to testify. Second, Smith argues that the government failed to challenge his testimony that

he believed in good faith that SDB could self-certify as a women-owned small business.

Third, and finally, Smith avers that the government did not account for evidence showing

that he told third parties that Myers controlled SDB while simultaneously representing

SDB as a women-owned small business. Smith contends that these statements were not

consistent with his guilt, as they support his contention that he did not understand what was

required to be a women-owned small business. According to Smith, Myers’

misrepresentations, Smith’s testimony and Smith’s statements to third parties are

“precisely the kind of ‘contradictory facts’ that render the government’s evidence

insufficient as a matter of law.” Op. Br. at 46 (quoting United States v. Bonner,

(4th Cir. 2011)).

However, to the extent that Smith emphasizes Myers’ misrepresentations and

Smith’s own statements to third-parties about Myers’ control of SDB, Smith essentially

asks us to reweigh the evidence. By reweighing this evidence, we would be usurping the

jury’s role as fact finder. See Musacchio,

. The jury already weighed Myers’

misrepresentations and Smith’s statements to third parties against conflicting evidence,

presumably resolving the conflict in the government’s favor. See Jackson,

.

And though Smith takes issue with the fact that the government did not call Myers as a

witness, this does not go to the question of whether there was substantial evidence at trial

21 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 22 of 31

to support Smith’s convictions. In any event, there is no way to know whether Myers’

testimony would have helped or hurt Smith’s defense.

Additionally, in stressing that the government never challenged his testimony that

he did not understand the two-part definition of a women-owned small business, Smith

appears to suggest that we should reject the jury’s determination of his credibility. But like

reweighing the evidence, making our own credibility determinations would impermissibly

infringe on the jury’s fact-finding role. See Musacchio,

. Under the legal

standard governing sufficiency challenges, we are to assume that the jury resolved

credibility conflicts in the government’s favor.

Thus, while Smith contends that he

testified truthfully that he did not know or understand the definition of a women-owned

small business, we cannot take him at his word.

The only case law upon which Smith relies in support of his position is our opinion

in United States v. Bonner,

(4th Cir. 2011). Quoting the language of that

opinion, Smith contends that his statements to third parties, his testimony at trial and

Myers’ misrepresentations amount to “missing, flawed, or contradictory facts” that cannot

support the jury’s verdict. See Op. Br. at 46, 48 (quoting Bonner,

). A look

at the facts and holding of Bonner suggest that Smith’s reliance on that opinion is

misplaced.

In Bonner, we affirmed a district court’s acquittal of a defendant due to insufficient

evidence.

. There, the defendant was charged with Hobbs Act robbery and

a firearm offense for allegedly robbing a Subway restaurant with an accomplice.

.

There was no description of the robbers other than that they were African American males

22 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 23 of 31

who fled the robbery in a “pink” or “reddish” SUV.

One of the robbers was also

described as wearing a Yankees hat.

In the restaurant parking lot, responding officers

stopped a burgundy SUV driven by a man whom restaurant employees confirmed was not

one of the robbers.

. Inside the SUV, which was only occupied by the driver, the

officers located the defendant’s wallet and cell phones belonging to the defendant’s

girlfriend, the defendant’s cousin, and the driver.

Police also recovered a Yankees hat

near the restaurant’s dumpster, which contained multiple DNA profiles.

Forensic

analysts matched the “predominant” profile to the defendant but did not attempt to identify

any of the other DNA profiles.

During a search of the area, canine trackers tracked the

scent of the Yankees hat to a gas station.

Police later learned that, almost five hours

after their search, the defendant made a phone call to his girlfriend from that gas station.

They also learned that the defendant called his girlfriend and cousin from his cell phone

after the robbery.

With no other evidence presented by the government, the district court

granted the defendant’s motion for judgment of acquittal.

. We stated that “the

[district] court relied on several missing, flawed, or contradictory facts which were

presented by the government to conclude that the evidence against [the defendant] was

insufficient.”

Affirming the district court’s decision, we determined that “there [was] a

conspicuous absence of any contemporaneous ‘identity’ evidence linking the defendant to

the robbery.”

. We explained that “[t]he government’s entire case consist[ed] of

four pieces of circumstantial evidence”:

23 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 24 of 31

(1) A hat with multiple DNA matches worn by [the defendant] was also worn by one of the robbers; (2) [the defendant]’s wallet, discovered in the alleged getaway car; (3) phone records showing calls from [the defendant]’s cell phone to [his girlfriend] and [his cousin] the night after the robbery; and (4) a separate phone record showing a call from a nearby gas station to [his girlfriend].

We recognized that though “it is possible to convict a defendant solely on circumstantial

evidence, in cases where the identity of the perpetrator is in dispute, usually there is some

specific ‘identity’ evidence or uncontroverted physical evidence that links the defendant to

the scene of the crime.”

Instead, the government relied on the insufficient scientific

theory that, because the defendant’s DNA was the “predominant” profile on the hat, he

must have been the last one to wear it.

. We concluded that this “scientific theory

as to identity lack[ed] any evidentiary support in [the] record.”

Smith does not explain why Bonner applies to his case. Our concern in Bonner was

the government’s exclusive use of circumstantial evidence at the defendant’s trial where

no identity evidence linked him to the crime. But at Smith’s trial, there was no dispute

about the “the identity of the perpetrator.” See

. Smith does not dispute that he

represented SDB to be a women-owned small business, resulting in SDB’s receipt of wire

payments under lucrative set-aside contracts. He instead only challenges the sufficiency of

the evidence as it relates to his knowledge and understanding that SDB did not actually

qualify as a women-owned small business under the WOSB Program.

Smith seems to rely on Bonner only for the language we used in dicta to describe

what the district court considered when acquitting the defendant—“missing, flawed, or

contradictory facts.” See

. Smith applies this language to his own testimony, his

24 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 25 of 31

statements to third parties and Myers’ misrepresentations to suggest that the jury’s verdict

cannot stand. But that was simply evidence that arguably supported Smith’s defense. The

jury was not required to credit Smith’s evidence over the government’s contrary evidence.

And while Smith relatedly contends that there was no evidence that he understood the two-

part definition of a women-owned small business, he seems to take issue with the lack of

direct evidence of his understanding. But even Bonner recognizes that, generally, “a

conviction may rely entirely on circumstantial evidence.”

.

Contrary to Smith’s position, there was ample evidence that Smith knew and

understood that (1) Robins did not control the daily operations of SDB, and (2) SDB did

not qualify as a women-owned small business unless a woman controlled its daily

operations. Concerning the first point, Smith testified at trial that SDB’s daily operations

were not controlled by a woman. Rather, Smith testified that he controlled SDB’s daily

operations. This is consistent with Smith’s own email to third parties in April 2015, in

which he stated that he “manage[d] day to day operations of SDB on [Mike Myers’]

behalf.” J.A. 2096. And though Smith testified that he did not know of Robins’

involvement in SDB, this was inconsistent with Smith’s initial statements to Agent

Mazzella that Robins was not involved in the company’s daily operations, as well as

Robins’ and Eldredge’s testimony that Robins performed no work for the company while

Smith worked there. Overway relatedly testified that Smith told her that Robins was not

involved in SDB.

To the second point, the jury could have reasonably rejected Smith’s argument that,

despite having an M.B.A. and experience in government contracting, he failed to

25 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 26 of 31

understand the two-part definition of a women-owned small business when it was

repeatedly brought to his attention. Indeed, there was evidence from which the jury could

have inferred Smith understood the definition of a women-owned small business, such as:

(1) his May 2014 email exchange with Myers and Eldredge, both of whom addressed the

two-part definition; (2) the ABA article that Smith indisputably opened; (3) the women-

owned small business definition displayed on the screen in SAM before Smith confirmed

SDB’s certification as a women-owned small business; (4) the verbal and written guidance

Overway provided to Smith; (5) the Jacobs Technology Representation and Certifications

form that defined a women-owned small business, which Smith signed under penalty of

perjury; and (6) the Jacobs Technology Vendor Size Status Certification form that defined

a women-owned small business inches above Smith’s signature. Moreover, Smith himself

testified that he thought it would be fraudulent for a company to self-certify as a women-

owned small business if a company only had a female figurehead—which is what Robins

appeared to be, based on consistent testimony and evidence presented at trial.

Juries are permitted to draw factual inferences, such as a defendant’s criminal intent,

from circumstantial evidence. United States v. Hamilton,

(4th Cir. 2012).

And even in the case of conspiracy, knowledge is often proven by circumstantial evidence.

United States v. Millender,

(4th Cir. 2020); United States v. Tucker,

(4th Cir. 2004). The evidence identified by the government permitted the

jury to infer that Smith knew and understood the two-part definition of a women-owned

business and that SDB did not meet it. Smith was confronted with the two-part definition

on numerous occasions, from the May 2014 email exchange in which Eldredge made his

26 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 27 of 31

concerns clear to the forms he signed to secure the Jacobs Technology subcontract. Smith,

who holds an M.B.A. and possesses experience in government contracting, does not

dispute that the definition plainly requires a woman to control a company’s daily business

operations for the company to qualify as a women-owned small business. Yet, Smith

himself testified that he controlled the daily operations of SDB during his entire

employment at the company.

Considering all evidence in the light most favorable to the government, and

assuming the jury resolved all conflicts in the government’s favor, Smith has not carried

the “heavy burden” of showing no substantial evidence supports his convictions. See

Zayyad,

.

B. Hearsay Challenge

We now turn to Smith’s argument that the district court erred in denying his motion

for a new trial based on its admission of hearsay from Eldredge’s plea agreement. We

review a district court’s denial of a Rule 33 motion for a new trial for abuse of discretion.

United States v. Smith,

(4th Cir. 2006). A district court “‘should exercise

its discretion to award a new trial sparingly,’ and a jury verdict is not to be overturned

except in the rare circumstance when the evidence ‘weighs heavily’ against it.”

at 217

(quoting United States v. Perry,

(4th Cir. 2003)). We also review a

district court’s evidentiary rulings for abuse of discretion. United States v. Cole,

(4th Cir. 2011). Evidentiary rulings are further subject to harmless error review.

See United States v. Brooks,

(4th Cir. 1997).

Smith contends that the district court abused its discretion by denying his motion

27 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 28 of 31

for a new trial based on its admission of the following two paragraphs from the statement

of facts within Eldredge’s plea agreement:

As set forth in greater detail below, beginning in at least or about May 2014 and continuing thereafter through in or about July 2016 . . . [Eldredge], having knowledge of the actual commission of a felony cognizable by a court of the United States, namely conspiracy to commit wire fraud, major government fraud, false statements, falsification of records, and to defraud the United States, did conceal the same by taking affirmative action to conceal that crime, and did not, as soon as possible, make known the same to some judge or other person in civil or military authority under the United States. ....

Mr. Eldredge knew Michael Myers and Kevin Smith conspired with each other and others to defraud [Jacobs Technology] . . . and, in turn, NASA and other components of the U.S. government, by, among other things, fraudulently representing to [Jacobs Technology], the U.S. government, including NASA, and others that [SDB] was a women-owned small business as defined by the Small Business Administration.

J.A. 605–07. As previously noted, the government offered the statements at trial as prior

consistent statements under Rule 801(d)(1)(B) 6 at trial. The district court permitted the

government to introduce them as statements “that rebut[] the impression that [Eldredge]

minimized his involvement on cross.” J.A. 604.

6 Federal Rule of Evidence 801(d)(1)(B) provides that “[a] statement that meets the following conditions is not hearsay”:

[t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . is consistent with the declarant’s testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground[.]

28 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 29 of 31

Notably, though the government offered the statements at trial under Rule

801(d)(1)(B), the government asserted post-trial that Rule 801(d)(1)(B) likely did not even

apply. While preserving its Rule 801(d)(1)(B) argument, the government primarily argued

that the statements were admissible for the non-hearsay purpose of rehabilitation under the

doctrine of completeness. But on appeal, the government largely relies on Rule

801(d)(1)(B) to demonstrate the statements’ admissibility. Still, the government maintains

that the statements are admissible under both Rule 801(d)(1)(B) and for the non-hearsay

purpose of rehabilitation under the doctrine of completeness. Smith argues that the

statements were impermissible hearsay and should not have been permitted under either

Rule 801(d)(1)(B) or the doctrine of completeness.

We need not determine whether the district court erred in admitting the statements

under either theory, as any error in the admission of Eldredge’s plea agreement statements

was harmless. “Erroneously admitted evidence is harmless if a reviewing court is able to

‘say, with fair assurance, after pondering all that happened without stripping the erroneous

action from the whole, that the judgment was not substantially swayed by the error.’”

United States v. Johnson,

(4th Cir. 2009) (quoting Kotteakos v. United

States,

(1946)). “This inquiry is not whether, absent the improperly

admitted evidence, sufficient evidence existed to convict. . . . Rather, the inquiry is whether

we can say that we believe it highly probable that the error did not affect the judgment.”

United States v. Lighty,

(4th Cir. 2010) (internal quotes and citations

omitted).

29 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 30 of 31

According to Smith, the admission of Eldredge’s plea agreement statements was not

harmless error. Smith contends that the error was extremely prejudicial, as the statements

were used for the truth of the matter asserted, were “couched in highly prejudicial legal-

ese that tracked the language of the indictment” and were never actually spoken by

Eldredge, given the statements were presumably drafted by the government. Reply Br. at

18–19. However, the government asserts that any error was harmless, as the statements and

surrounding testimony did not disturb the objective evidence at trial that Smith knew and

understood that SDB did not qualify as a women-owned small business yet represented it

as one to obtain set-asides.

We agree with the government. We find it “highly probable” that any such error did

not affect the jury’s judgment in this case. See Lighty,

. Setting aside

Eldredge’s plea agreement statements, the government presented ample admissible

evidence supporting the finding that Smith agreed to falsely represent SDB as a women-

owned small business to obtain set-asides. Smith—an M.B.A. holder with government

contracting experience—viewed the women-owned small business definition on numerous

occasions. Despite the undisputed fact that SDB did not meet that definition, Smith

repeatedly represented that it did. Moreover, though Eldredge’s plea agreement statements

were prejudicial, defense counsel’s cross-examination of Eldredge had already revealed to

the jury that Eldredge may have been motivated to enter that plea agreement to receive

leniency in his own criminal case. For these reasons, we conclude that any error in

admitting Eldredge’s plea agreement statements was harmless.

30 USCA4 Appeal: 22-4125 Doc: 46 Filed: 12/13/2023 Pg: 31 of 31

III. CONCLUSION

Because we find that sufficient evidence supports Smith’s convictions and that any

error in the admission of Eldredge’s plea agreement statements was harmless, we affirm

Smith’s convictions.

AFFIRMED

31