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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-4362
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JENNIFER RAE MCDONALD,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Elizabeth K. Dillon, Chief District Judge. (5:21-cr-00012-EKD-JCH-1)
Argued: December 12, 2025 Decided: February 5, 2026
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Gregory wrote the opinion, in which Judge Niemeyer and Judge Agee joined.
ARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. S. Cagle Juhan, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Mary E. Maguire, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. C. Todd Gilbert, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. USCA4 Appeal: 24-4362 Doc: 110 Filed: 02/05/2026 Pg: 2 of 20
GREGORY, Circuit Judge:
Jennifer McDonald appeals her thirty fraud-related convictions, including her
conviction on one count of aggravated identity theft. She contends that the identity theft
alleged by the Government did not occur “during and in relation to” the predicate offense
as interpreted by the Supreme Court in Dubin v. United States, 599 U.S. 110 (2023). We
agree that the district court should have entered a judgment of acquittal on the charge for
aggravated identity theft. On all other claims, we affirm the judgment of the district court.
I.
In August 2021, Jennifer McDonald was indicted on thirty-four counts arising out
of various alleged frauds she perpetrated during her stint as Executive Director of the
Economic Development Authority of the Town of Front Royal and the County of Warren,
Virginia (“EDA”). The charges included 7 counts of wire fraud, 10 counts of bank fraud,
16 counts of money laundering, and 1 count of aggravated identity theft. At trial, the
Government offered substantial evidence of McDonald’s various complex schemes to use
forged deeds, contracts, and letters to divert money from EDA to her personal accounts.
As McDonald’s convictions cover a wide range of behavior, we will limit our discussion
to the facts that are relevant on appeal.
A.
Jury selection began on August 21, 2023, and the trial commenced on August 24,
but it soon experienced delays. On August 31, the district court was informed that one of
McDonald’s attorneys had tested positive for COVID-19, so the court declared a recess
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until September 5. In the interim, McDonald tested positive for COVID-19, and the district
court further delayed the trial until September 11. By September 18, despite delays,
defense counsel represented that they expected the trial to finish even sooner than originally
anticipated.
However, additional health issues delayed the trial even further. On September 19,
McDonald was admitted to the hospital for issues related to low blood pressure, and jurors
were told not to report to court because of “unexpected circumstances.” J.A. 3035–36.
McDonald was released a few days later, but she was readmitted to the hospital to have a
pacemaker installed. On September 26, after consulting with counsel and the jurors, the
court rejected McDonald’s motion for a mistrial and scheduled trial to resume on October
23. The court instructed jurors “not to speculate as to these unexpected circumstances” and
to “think about the case during this break to keep it fresh” in their minds. J.A. 3083, 3090.
On October 23, McDonald fell and hit her head, prompting another delay. The court
issued another continuance until October 26, again instructing jurors to keep the case fresh
in their minds. On October 26, the day trial resumed, McDonald fainted during the lunch
break and was transported to the hospital. The jurors heard the ambulance sirens, but they
were moved into the courtroom so that they would not see McDonald being loaded into the
vehicle.
The court held a hearing to determine whether McDonald had deliberately caused
her ailments, and it concluded that she had not. McDonald again sought a mistrial, which
the court denied. Trial concluded on October 31 after delays totaling fifty-one days, with
the longest delay reaching thirty-seven consecutive days. At McDonald’s request, the court
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included an instruction to the jury informing them that the delays were caused by
McDonald and her counsel catching COVID-19, as well as McDonald’s unanticipated need
to have a pacemaker implanted.
B.
McDonald’s primary defense at trial was that she had entered into a secret settlement
agreement with EDA following sexual assault and harassment she experienced, and EDA
authorized her various frauds as a way to pay McDonald the agreed-upon sum without
disclosing the existence of the settlement. Defense counsel provided the Government with
the only known copy of the settlement agreement. The Government presented evidence
that FBI investigations had turned up no other copies of the settlement agreement, and an
expert witness testified that the only known copy of the settlement agreement contained
signatures that had been copied from other documents. On cross-examination, defense
counsel elicited testimony that the copy of the settlement agreement had originally been in
the possession of a man named James Woods, an associate of McDonald’s.
When Woods had been called as a federal grand jury witness in 2021, he testified
that he had been involved in negotiations with an EDA board member about a potential
property purchase in years prior. According to Woods’ grand jury testimony, the board
member disclosed during negotiations that McDonald would soon come into a sum of
money. The board member then allegedly sent Woods a package of materials related to
the proposed transaction, which included a copy of the secret settlement agreement
between McDonald and EDA. It was this copy, which Woods told the grand jury he
received from the EDA board member, that made its way into the hands of defense counsel.
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In March 2023, the Government removed Woods from its witness list and served him with
a grand jury target letter indicating that he was under investigation for violations of law,
including false declarations before a grand jury.
McDonald sought to call Woods as a defense witness, but Woods invoked his Fifth
Amendment right and refused to testify. McDonald then attempted to introduce Woods’
grand jury testimony under Rule 804(b)(1), but the district court excluded the evidence on
the grounds that the Government did not have the same motive to elicit testimony before
the grand jury as it would at trial. The district court further ruled that the Government did
not open the door to admitting Woods’ grand jury testimony by introducing evidence about
the settlement agreement, because it was defense counsel who first elicited testimony that
the settlement agreement document came from Woods.
C.
During closing argument, defense counsel argued that there were “red flags” in the
Government’s decision not to call certain witnesses who appeared to have relevant
knowledge. J.A. 3526; J.A. 3537 (“And this is another one of those moments where you
should wonder why Josie Rickard isn’t here . . . . They didn’t call her, and that is their
job.”); J.A. 3543 (“You should wonder what William Sealock would say and whether he
is the one Board member who was unwilling to be part of the coverup. The absence of
William Sealock is a red flag.”); J.A. 3565 (“You should wonder why the government
didn’t want you to hear from James Woods. And the government didn’t call Lenny
Campbell.”); J.A. 3565 (“[T]his absence of key people when the government bears the
burden in this case . . . is a red flag. Red flags are, in a nutshell, reasonable doubt.”). After
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closing arguments concluded, the district court issued an additional jury instruction over
McDonald’s objection, which the court explained was “a correct statement of law when an
argument has been made otherwise.” J.A. 3590. The instruction read:
Although the government is required to prove the defendant guilty beyond a reasonable doubt, the government is not required to present all possible evidence related to the case or to produce all possible witnesses who might have some knowledge about the facts of the case. In addition, as I have explained, the defendant is not required to present any evidence or produce any witnesses. The burden remains with the government.
J.A. 3671. McDonald submitted a motion for a new trial, arguing that the new instruction
violated Federal Rule of Criminal Procedure 30 and prejudiced McDonald by indicating to
the jury that they should disregard McDonald’s closing arguments. The district court
denied the motion.
The jury convicted McDonald on all 34 counts. The district court entered a
judgment of acquittal on 4 counts of bank fraud.
D.
In all, the Government presented 56 witnesses over the course of several days.
McDonald challenges the sufficiency of the evidence for only one of her convictions—
aggravated identity theft.
A conviction for aggravated identity theft requires that the identity theft take place
“during and in relation to” an underlying felony. 18 U.S.C. § 1028A(a)(1). The jury was
instructed that the felony underlying McDonald’s charged aggravated identity fraud was
the wire fraud charged in Count 1.
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Count 1 charged McDonald with felony wire fraud related to a September 2016 wire
transfer of $2 million from EDA to TLC Settlements, LLC (“TLC”). In August 2016, TLC
gave McDonald instructions for how to wire money to TLC’s bank account. Evidence
presented by the Government demonstrated that after McDonald had these instructions, she
was able to complete the wire transfer without further approval from TLC.
On September 8, McDonald provided TLC with contracts for sale of three parcels
of land. The contracts listed Curt Tran as the buyer of the properties, and they appeared to
be signed and initialed by Tran. McDonald informed TLC that Tran had formed an LLC
to take possession of the property, and she emailed TLC a contract addendum that changed
the buyer’s name to Daboyz, LLC. McDonald also told TLC that Tran had placed the
purchase money into an EDA account, but that money had to be transferred to TLC to
facilitate the purchase.
McDonald then procured a wire transfer of $2 million from an EDA account to a
TLC account. In her conversations with EDA, McDonald presented a different story that
did not mention Curt Tran or Daboyz, LLC. Instead, she informed EDA that the Virginia
Department of Transportation required $2 million to be transferred to an escrow account
to facilitate one of their projects. Relying on McDonald’s word, on September 14, EDA’s
bank wired $2 million to TLC’s bank.
TLC received the $2 million and helped Daboyz purchase the three properties for
$1.9 million. Shortly after the sale was finalized, McDonald revealed that issues with
Tran’s nationality would prevent the property purchase after all. Daboyz resold the
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properties to the original owner for $1.3 million, and Daboyz kept the $1.3 million in its
own account.
At trial, the Government proved (and McDonald does not dispute for the purpose of
this appeal) that McDonald was lying to every party at each stage of the process. First,
Virginia Department of Transportation had no need for a $2 million escrow account and
never requested one. Daboyz, LLC was actually owned and operated by McDonald, and
local businessman Truc Vu Tran—known colloquially as “Curt”—had no knowledge about
the actions McDonald was taking in his name. McDonald’s falsehoods were designed to
funnel $2 million out of EDA’s account to TLC, and then to procure a portion of that money
for herself without drawing suspicion.
II.
On appeal, McDonald argues that the district court erred in denying her motion for
a judgment of acquittal on her conviction for aggravated identity theft. McDonald also
claims that the district court erroneously denied her motions for a mistrial and a new trial
on the basis of 1) prejudicial delays, 2) improperly excluded evidence, and 3) improper
jury instructions. We take each issue in turn.
We begin with McDonald’s conviction for aggravated identity theft. McDonald’s
conviction on one count of aggravated identity theft required the Government to prove that
McDonald, “during and in relation to” a particular felony, knowingly transferred,
possessed, or used, without lawful authority, a means of identification of another person.
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18 U.S.C. § 1028A. The jury instructions specified that the predicate felony was the charge
of wire fraud listed in Count 1, which referred to a September 14, 2016 wire transfer of $2
million from an account controlled by EDA to an account controlled by TLC. On appeal,
there is no debate that McDonald knowingly used, without authorization, the identity of
Truc “Curt” Tran in furtherance of her broader efforts to defraud her employer. The only
question is whether the identity theft took place “during and in relation to” the wire fraud
charged in Count 1. Under Dubin v. United States, 599 U.S. 110 (2023), we hold that it
did not.
The Supreme Court explained in Dubin that a defendant uses another person’s
identification “in relation to” a predicate offense only “when this use is at the crux of what
makes the conduct criminal.” Id. at 131. These definitions “refer to offenses built around
what the defendant does with the means of identification in particular.” Id. at 122. To be
at the “crux” of criminality “requires more than a causal relationship, such as the
facilitation of the offense or being a but-for cause of its success.” Id. at 131 (internal
quotation marks omitted). In Dubin itself, the defendant submitted a claim for Medicaid
reimbursement under a patient’s name, but he inflated the credentials of the employee who
performed the medical services and thereby received a larger reimbursement. Id. at 114.
The use of the patient’s name, which was the basis of the aggravated identity theft charge,
“was not at the crux of what made the underlying overbilling fraudulent.” Id. at 132. The
crux of the fraud was “a misrepresentation about the qualifications of petitioner’s
employee.” Id. We have applied Dubin only once, when we upheld a defendant’s
aggravated identity theft conviction for submitting Medicaid audit paperwork which falsely
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appeared to contain declarations signed by her patients. United States v. Jackson, 126 F.4th
847, 868 (4th Cir. 2025). Because the “crux” of the fraud was “submitting falsified
paperwork,” the defendant’s conduct fell “cleanly within the aggravated identity theft
statute’s scope.” Id. at 868–69.
Courts that have considered 18 U.S.C. § 1028A(a)(1) after Dubin distinguish
identity theft that constitutes the means of effecting the predicate offense from identity
theft that is ancillary to, or merely assists, the predicate offense. See United States v. Croft,
87 F.4th 644, 648 (5th Cir. 2023); United States v. Omotayo, 132 F.4th 181, 197–98 (2d
Cir. 2025) (“[T]he means of identification itself . . . must play some integral role in the
success of the scheme.”). That dichotomy is on display in United States v. Gladden, 78
F.4th 1232 (11th Cir. 2023). In Gladden, the Eleventh Circuit considered aggravated
identity fraud convictions of two defendants. The first defendant billed prescriptions using
the names of clients who neither needed nor received the prescriptions. Gladden, 78 F.4th
at 1245. The Eleventh Circuit determined that the deception “centered on the identity of
the individual receiving the product,” and thus upheld the first defendant’s conviction for
aggravated identity theft. By contrast, the second defendant truthfully indicated the
recipient of a prescription but falsely represented that the prescription was medically
necessary. Id. at 1248–49. This conduct, while still unlawful, did not qualify as aggravated
identity theft because the use of the patient’s identifying information was ancillary to the
deception. Id.
The Second Circuit’s opinion in United States v. Omotayo, 132 F.4th 181 (2d Cir.
2025) further emphasizes that a defendant cannot be convicted of aggravated identity theft
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when the identity theft merely supports, but does not encompass, the underlying felony.
The defendant in Omotayo participated in a series of scams designed to convince victims to
transfer their own funds to the defendant’s co-conspirators. Id. at 186. As a “contingency
plan,” the defendant created a false invoice with another person’s name on it for his co-
conspirators to show any bank employees who questioned the validity of any transfers. Id.
at 198. On appeal, the Government argued that the defendant’s actions qualified as
aggravated identity theft because he had transferred to his co-conspirators this false invoice
purporting to bear another person’s signature. Id. at 197. The Second Circuit determined
that the basis of this defendant’s convictions was his role ensuring “the fraudulent funds
were successfully transferred into and distributed from bank accounts controlled by the
conspiracy,” not “impersonat[ing] real employees in order to defraud businesses.” Id. at
199. The defendant could not be convicted of aggravated identity theft because his transfer
of the invoice was not at the “crux” of his own criminal behavior. Id. at 201.
McDonald’s misuse of Tran’s identity was an element of her broader scheme to
profit from fraudulent behaviors, but it was ancillary to the particular wire fraud charged
in Count 1. McDonald’s behaviors with respect to this particular scheme can be broken
down into two discrete segments: first, EDA’s transfer of $2 million to TLC, and second,
McDonald’s various interactions with TLC that allowed her to pocket $1.3 million. The
wire fraud conviction of Count 1 is based on EDA’s transfer of $2 million to TLC—not
TLC’s later transfer to DaBoyz, McDonald’s fraudulent LLC.
McDonald’s use of Tran’s identity was not at the “crux” of EDA’s wire transfer to
TLC. To induce that transfer, McDonald informed EDA that the Virginia Department of
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Transportation required $2 million in an escrow account. This was the deception at the
heart of McDonald’s wire fraud conviction, not her misuse of Tran’s identity; in fact, there
is no evidence that McDonald raised Tran’s name to EDA in the course of encouraging the
wire transfer. Omotayo is instructive here. Even though, as in Omotayo, the misuse of
another’s identity played a role in the broader scheme, the particular criminal conduct at
issue occurred without the identity theft. Even if McDonald had decided not to engage in
the second phase of her scheme with TLC, she could still have been convicted on Count 1
for fraudulently inducing the initial transfer.
Tran’s identity was not a necessary element of EDA’s transfer of the $2 million, nor
was it necessary to effect TLC’s receipt of the $2 million. Email exchanges between
McDonald and TLC’s representative demonstrate that TLC communicated wire transfer
instructions to McDonald without any request for information regarding the parties
involved. J.A. 6623. Indeed, when discussing a wire transfer that occurred in August 2014,
the TLC representative indicated to McDonald that TLC had received a wire transfer but
had no knowledge of what the transferred money was to be used for. J.A. 6625. In other
words, McDonald did not rely upon Tran’s identity to ensure processing of the wire transfer
that formed the basis of Count 1. She used Tran’s identity for a related, but distinct second
stage of her plan which was not charged in Count 1.
A predicate offense can have only one “crux.” See Dubin, 599 U.S. at 127. While
McDonald’s scheming was multifaceted, the wire transfer in Count 1 focuses on a
particular moment: the fraudulent inducement of a $2 million transfer from EDA’s account
into TLC’s account. The falsehood that formed the basis of this transfer, and thus formed
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the crux of the predicate offense, was McDonald’s representation to EDA that the Virginia
Department of Transportation requested the transfer. It would not be a stretch to say that
use of Tran’s identity facilitated the crime of wire fraud—by claiming to represent Tran,
McDonald ensured TLC’s cooperation in her scheme and was ultimately able to funnel
$1.3 million into her own accounts. But the Supreme Court has already rejected a broad
reading of the aggravated identity theft statute that would punish use of another’s identity
in a way that merely “facilitates or furthers the predicate offense.” Dubin, 599 U.S. at 117
(internal quotation marks omitted). Because no evidence suggests that use of Tran’s
identity was at the heart of the wire fraud charged in Count 1, the district court should have
directed a judgment of acquittal on that count.
McDonald’s next claim is that the district court should have granted a mistrial
because McDonald was prejudiced by the series of delays at trial. Since her case was
complex—a total of 56 witnesses were called, and thousands of pages of documents
introduced into evidence—she argues that mid-trial delays impacted the ability of jurors to
retain the information necessary to reach an informed verdict. Further, given the last-
minute notice to the jurors about delays, and McDonald’s absence from the courtroom on
the day of her collapse in the courthouse, the jury likely assumed McDonald was the source
of the delay even before any instruction was given. If the jury believed her to be the cause
of the delay, she argues, they might resent her for taking up more of their time or wonder
whether her absences were the result of a guilty conscience.
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A district court’s decision to deny a defendant’s motion for a mistrial “is within the
sound discretion of the district court and will be disturbed only under the most
extraordinary of circumstances.” United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.
1997). Because the district court hewed closely to the procedures we approved in United
States v. Smith, 44 F.3d 1259 (4th Cir. 1995), we cannot say that the delays in this case
represent the extraordinary circumstances required to demonstrate an abuse of discretion.
In Smith, this Court declined to require the district court to declare a mistrial after
defendant’s sudden illness caused a 32-day hiatus in the middle of trial. Smith, 44 F.3d at
1269. Though we noted that a long break in a jury trial “can be tolerated only as a rare
exception,” the district court in Smith “was fully aware of the difficulties the hiatus
presented and took repeated steps to mitigate the potential for prejudice.” Id. at 1268.
Those steps included: instructions to the jury to keep the case fresh in their minds; extended
time for closing argument; extensive jury instructions; and juror access to exhibits and their
own notes. Id.
The circumstances of this case map neatly onto Smith. The jury’s longest stretch
between hearing trial materials was 37 days, from September 19 to October 26. In
anticipation of any difficulties, the district court adopted the same tactics we found
sufficient in Smith to mitigate the potential for prejudice. It instructed the jury on
September 26, and again on October 23, to keep the case fresh in their minds. It gave
extended time for closing argument, allowed jurors access to exhibits and their own notes,
and gave extensive jury instructions, including instructions to disregard the delay. Further,
McDonald’s claims of prejudice are similar to those we rejected in Smith. Though it is
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possible that jurors resented her for delays, assumed her guilt because of her health issues,
or forgot crucial impeachment evidence, “it can just as easily be speculated that because
the government’s case was more remote in time, the strength of the prosecution’s evidence
faded in the jurors’ minds.” Id. at 1268. Under Smith, the district court did not abuse its
discretion when it rejected the “drastic remedy” of a mistrial. Id. at 1268.
McDonald suggests that the district court should have permitted her to introduce
Woods’ grand jury testimony under Federal Rule of Evidence 804(b)(1), or alternatively
as rebuttal evidence after the Government opened the door to its introduction. We review
a district court’s interpretation of the Federal Rules of Evidence de novo, and we review
its application of such rules for abuse of discretion. Ward v. AutoZoners, LLC, 958 F.3d
254, 273 (4th Cir. 2020).
Rule 804(b)(1) provides that the rule against hearsay does not exclude, from an
unavailable defendant, testimony that was given as a witness at a hearing and “is now
offered against a party who had . . . an opportunity and similar motive to develop it by
direct, cross- or redirect examination.” Fed. R. Evid. 804(b)(1). Parties agree that Woods,
who invoked his Fifth Amendment right not to testify, qualified as an unavailable witness
for the purpose of this Rule. The only question is whether the district court erred in
determining that the Government did not have a similar motive to develop Woods’
testimony before a grand jury as it would at trial.
Our recent decision in United States v. Huskey requires affirming the district court’s
determination. 90 F.4th 651, 668–70 (4th Cir. 2024). In Huskey, this Court upheld the
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district court’s decision to exclude grand jury testimony of an unavailable witness. Id. at
669. We reasoned that “grand jury proceedings differ from trials in many ways,” since
prosecutors use grand juries for many reasons, and “even when a prosecutor is seeking an
indictment, the lower burden of proof at the grand jury stage . . . means the prosecutor does
not necessarily have a motive to challenge exculpatory grand jury testimony that is similar
to the motive at trial.” Id. (cleaned up). Whether a party had a similar motive requires a
fact-specific inquiry into “whether the party resisting the offered testimony at a pending
proceeding had at a prior proceeding an interest of substantially similar testimony to prove
(or disprove) the same side of a substantially similar issue.” Id. at 670 (internal citations
omitted). We declined to find an abuse of discretion in Huskey because the Government
barely resisted the witness’s testimony at the grand jury, “limiting any follow up questions
to mere clarification,” but detailed the ways in which it would have “vigorously cross-
examined” the witness at trial. Id.
The same reasoning applies here. The Government elicited grand jury testimony
from Woods but did not attempt to undermine his statements. Instead, as similarly
indicated in Huskey, the Government explained that it would have vigorously cross-
examined Woods at trial with the purpose of showing that Woods was lying about receiving
a copy of the settlement agreement from an EDA board member. Importantly, the
Government has pointed to specific lines of questioning they would have pursued at trial
to undermine Woods’ testimony. They detailed that they would have impeached his
testimony by raising his federal wire fraud conviction, his text conversations with
McDonald in which she asked him about backdating documents, and the expert testimony
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that the signatures on the purported settlement agreement had been lifted from other
documents. Under Huskey, the district court did not abuse its discretion in determining
that the Government did not have the same motive to develop Woods’ testimony before
the grand jury as it would have to undermine Woods’ testimony at trial.
Nor can we say that the district court abused its discretion by excluding Woods’
testimony when offered as rebuttal evidence. Whether a party “opened the door” to
otherwise inadmissible evidence is a matter within the district court’s discretion. United
States v. Blake, 571 F.3d 331, 348 (4th Cir. 2009). A district court abuses its discretion
when it “(1) acts arbitrarily, as if neither by rule nor discretion, (2) fails to adequately take
into account judicially recognized factors constraining its exercise of discretion, or (3) rests
its decision on erroneous factual or legal premises.” United States v. Alvarado, 840 F.3d
184, 189 (4th Cir. 2016) (cleaned up).
A party “open[s] the door” to admitting the other side’s otherwise inadmissible
evidence when the party creates a misleading impression of factual circumstances. See
United States v. McLaurin, 764 F.3d 372, 384 (4th Cir. 2014) (finding no abuse of
discretion where the district court admitted evidence to correct the erroneous impression
that defendant had never committed a robbery). The doctrine is primarily concerned with
“proportionality and fairness”—the district court may permit inadmissible evidence to
parry an attack when “allow[ing] such an attack to go unanswered would [be] unfair.”
United States v. Jett, 908 F.3d 252, 271 (7th Cir. 2018); Blake, 571 F.3d at 348. Because
the “open door” doctrine is geared towards correcting misleading impressions of fact, the
opponent’s response must be proportional and directly responsive. When the response
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“does not directly contradict the evidence previously received, or goes beyond the necessity
of removing prejudice in the interest of fairness, it is within the district court’s discretion
to deny its admittance.” United States v. Villegas, 655 F.3d 662, 672 (7th Cir. 2011).
The district court’s decision here to reject the applicability of the open-door doctrine
was properly within its discretion. The district court noted that defense counsel’s cross-
examination first prompted mention that James Woods had provided the only known copy
of the settlement agreement to McDonald’s attorney. The witness, an FBI agent, had
testified only that (1) he had received the copy of the agreement from McDonald’s attorney
and (2) a search of EDA records had turned up no additional copy. Woods’ grand jury
testimony is not responsive to either point. Further, the Government’s evidence did not
unduly prejudice McDonald by leaving the jury with a false impression. Instead, the
Government attempted to prove a disputed fact: that the settlement agreement was another
of McDonald’s fabrications. As with most disputed facts, a party must present admissible
evidence to prove its point, and the presentation of admissible evidence does not always
open the door to inadmissible evidence. Therefore, the district court did not abuse its
discretion here by excluding Woods’ grand jury testimony.
After McDonald’s closing argument urged the jury to find “red flags” in the
Government’s decisions not to call certain witnesses, the district court added a jury
instruction sua sponte to clarify that the Government is not obligated by law to call every
witness who might hold relevant information. McDonald claims this instruction violated
Federal Rule of Criminal Procedure 30 and that the improper jury instruction was
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prejudicially responsive to the closing argument she had just given. We review de novo a
district court’s interpretation of the Federal Rules of Criminal Procedure, but a district
court’s decision to give a jury instruction consistent with the rules is reviewed for abuse of
discretion. In re C.R. Bard, Inc., 810 F.3d 913, 923 (4th Cir. 2016).
Rule 30 requires the district court to “inform the parties before closing arguments
how it intends to rule on the requested [jury] instructions.” Fed. R. Crim. Pro. 30(b). We
have thus far declined to determine the “potentially extremely serious and far reaching
question” concerning whether a district court need inform counsel of supplementary
instructions prior to closing arguments. United States v. Burgess, 691 F.2d 1146, 1156 (4th
Cir. 1982). We have limited ourselves to noting that Rule 30 is designed to allow counsel
to make informed, intelligent arguments to the jury, see United States v. Horton, 921 F.2d
540, 547 (4th Cir. 1990), and this principle instructs that post-argument instructions should
be used sparingly, particularly when responsive to a closing argument. Though refraining
from providing this instruction, or granting an additional few minutes for supplemental
argument, may have been a “better exercise of discretion,” we do not find a Rule 30
violation here because McDonald has failed to show that she was prejudiced by the
supplemental instruction. Id.; see id. (“[A] violation of Rule 30 requires reversal only when
the defendant can show actual prejudice.”).
McDonald does not claim that the substance of the supplementary instruction was
legally erroneous, and therefore the prejudice must lie only in the timing of the
supplementary instruction. However, McDonald has not described how she would have
adapted her closing argument with the benefit of prior knowledge. We insist that each
19 USCA4 Appeal: 24-4362 Doc: 110 Filed: 02/05/2026 Pg: 20 of 20
defendant “must have adequate opportunity to argue [her] innocence under the district
court’s instructions,” Horton, 921 F.2d at 546, and that opportunity will often be lacking
when the district court issues sua sponte instructions that respond directly to a defendant’s
proper argument. But without McDonald’s explanation of how knowledge of the
instruction would have “altered the tenor or substance” of her closing argument, we can
find no prejudice here. Id. at 547.
III.
For the foregoing reasons, we vacate McDonald’s sentence and the district court’s
order denying McDonald’s motion for judgment of acquittal on Count 18, and we remand
for resentencing. On all other claims, we affirm the judgment of the district court.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED