PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 15-4642


UNITED STATES OF AMERICA,

                     Plaintiff – Appellee,

              v.

STEVE HALE,

                     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-00280-MOC-DSC-1)


Argued: January 26, 2017                                          Decided: May 15, 2017


Before WILKINSON, NIEMEYER, and KEENAN Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Wilkinson and Judge Keenan joined.


ARGUED: Marvin David Miller, LAW OFFICE OF MARVIN D. MILLER, Alexandria,
Virginia, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Jill Westmoreland
Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:

       Following a seven-day trial, a jury convicted Steven M. Hale of transporting stolen

property in interstate commerce, knowing the goods to have been stolen; of conspiring to

do the same; of making false statements in his tax returns; of failing to collect and pay

employee taxes; and of obstructing justice. The district court sentenced him to 97 months’

imprisonment.

       Challenging his conviction on appeal, Hale contends primarily that the evidence

was insufficient to justify the district court’s decision to give the jury a willful blindness

instruction and otherwise to support the jury’s finding that he knew the property at issue

was stolen. He also challenges the admission of certain evidence; the content of several

jury instructions; the sufficiency of the evidence as to whether an individual who worked

for him qualified as an employee, as opposed to an independent contractor; and certain

statements that the government made to the jury during closing argument. Finding no

reversible error, we affirm.


                                              I

       A federal grand jury returned a 31-count indictment in 2013 charging Hale with one

count of conspiracy from at least 2006 through March 2011 to transport stolen property in

interstate commerce, in violation of 18 U.S.C. § 371; twelve counts of transporting stolen

property in interstate commerce, and aiding and abetting the same, in violation of 18 U.S.C.

§§ 2314 and 2; three counts of making a false statement in his income tax returns, in

violation of 26 U.S.C. § 7206(1); fourteen counts of failing to collect, account for, and pay


                                              2
over federal taxes on an employee’s wages, in violation of 26 U.S.C. § 7202; and one count

of obstruction of justice, in violation of 18 U.S.C. § 1503. At the heart of the charged

conduct was the government’s allegation that, as part of an organized retail theft scheme,

Hale served as “a Second-Level Fence engaged in the purchase and resale of stolen

consumer products, goods and merchandise.” Specifically, the government alleged that

professional shoplifters — or “boosters,” as they were called — had stolen millions of

dollars worth of over-the-counter medications and health-and-beauty products from the

shelves of retail stores and then sold the goods to first-level fences, who in turn sold the

goods to Hale, the sole owner and operator of a warehouse in Denver, North Carolina,

doing business as Double D Distributing, LLC.            Hale profited, according to the

government, by selling the stolen goods to at least one third-level fence.

       The government’s investigation began in the fall of 2010, when detectives with the

Gastonia, North Carolina Police Department learned that heroin addicts in the area were

routinely shoplifting large quantities of goods — particularly over-the-counter medications

and health-and-beauty aids — from local stores and selling them to get money to buy heroin

on a day-to-day basis. These boosters often operated in teams of two to four individuals

and routinely stole $1,000 to $3,000 worth of merchandise in a matter of minutes. After

some of the boosters identified a woman named Bonnie Bridges as their fence, officers set

up surveillance that confirmed that numerous boosters were taking their shoplifted

merchandise to Bridges’ house on a daily basis. Officers then saw Bridges taking the

merchandise to Hale’s warehouse, which was a plain white metal building with no



                                             3
identifying signs. Officers conducted further surveillance at the warehouse and eventually

set up a pole camera across the street.

       Between October 2010 and March 2011, their surveillance revealed that Bridges,

often accompanied by her sister, regularly delivered stolen merchandise to the Double D

warehouse. Bridges’ two daughters and their husbands also made routine deliveries to the

warehouse, as would a man named Darryl Brock. They all delivered their merchandise in

plastic garbage bags, plastic storage bins, and boxes, and one officer who participated in

the surveillance testified that he never saw anyone else, including any commercial trucks,

make deliveries to the warehouse. On numerous occasions between October 2010 and

March 2011, Hale was present at the warehouse when these individuals were paid cash for

the stolen merchandise they delivered.

       On October 20, 2010, investigating agents intercepted a FedEx shipment from the

Double D warehouse to Jeff Telsey at JCA Enterprises in Boca Raton, Florida. In that

shipment were items that the officers had marked with an ultraviolet-light pen prior to

having a cooperating booster sell the items to Bridges. The shipment also contained

merchandise marked with active security sensors and stickers identifying the retail store

where the item was intended to be sold and a telephone number for people to call if the

item was found elsewhere. This telephone number allowed people to find out if the product

was stolen or if it was legitimately in the secondary market.

       Investigating agents executed a search warrant at the Double D warehouse on March

24, 2011, where they found numerous shelves containing labeled boxes of merchandise

and a “cleaning station” with different products used to remove stickers, sensors, and glue.

                                             4
Sharon Cooke, who worked at the warehouse, was present at the beginning of the search

and agreed to make two recorded telephone calls to Hale, who was in Florida at the time.

She told Hale that the IRS “was around asking questions.” During one of the calls, Hale

responded, “Well, you don’t know who we’re doing business with,” and then repeated,

“You don’t know who the business is with, do you?,” even though Cooke did in fact know

the identities of both the business’ suppliers and customers.

       On the same day that agents searched the Double D warehouse, they also searched

Bridges’ residence and arrested Bridges. After she was released from jail, she called Hale

to accuse him of “throw[ing] us under the bus.” Hale responded that he “hadn’t done

anything”; that Bridges and her family “shouldn’t have done him the way that [they] did”;

and that “he hoped [they] didn’t turn on him.” Moreover, the same day that officers

searched Hale’s warehouse, Hale called Brock, warning him that Bridges had gotten

“arrested for a bunch of stolen merchandise”; “that the FBI was at his warehouse”; and that

they would “probably be coming after [Brock] next.” The next day, Hale advised Brock

to “get rid of [his] product” and to take money out of his bank accounts before they were

frozen by the police. Consistent with the latter piece of advice, Hale withdrew more than

$236,000 from a joint bank account that he shared with his wife, redepositing the money

in a new account in her name only.

       One week after the search, on April 1, 2011, Hale listed his 26-foot boat for sale

with a broker in Florida, asking more than $39,000. At some later point, however, Hale

took the boat’s title to a close family friend who was an auctioneer and signed the title over

to his friend’s company. The friend had the boat on his car lot for a few weeks but, at

                                              5
Hale’s request, moved it inside a building. Sometime after June 8, 2011, when a court

issued a seizure warrant for the boat, Hale told his friend about the warrant and stated, “If

anybody asks you any questions, it’s your boat.”         Sometime later, Hale prepared a

fraudulent promissory note reflecting that his friend had agreed to pay $18,000 for the boat,

which they backdated to May 9, 2011.

       Trial on the charges commenced in April 2014 and continued before a jury for seven

days. In support of its case, the government introduced surveillance videos of activity

outside of Hale’s warehouse, the testimony from the investigating officers, and the

testimony from several of Hale’s alleged co-conspirators, including Bridges, Brock,

Cooke, and Telsey.

       Bridges testified that she met Hale in 2000 when she was selling over-the-counter

medicines and health-and-beauty aids at a flea market after buying them directly from drug-

addicted shoplifters. At that time, Hale approached her table and indicated that he might

be interested in buying her products, particularly “Tylenol, Advil, [and] stuff like that.”

Thereafter, Hale gave Bridges a price list for the merchandise he wanted to buy and said

he would pay cash for as much of that merchandise as she could deliver. For example,

Hale would pay $4 for a 100-count bottle of Aleve, less than one-half the manufacturer’s

wholesale price of $8.61, and $6 for a 14-count package of Prilosec, substantially less than

the wholesale price of $10.01. Hale told Bridges that he would not accept goods that were

damaged or within one year of their expiration date. Based on Hale’s price list, Bridges

told the boosters what goods she wanted and how much she would pay for those goods,

usually setting her price so that she made at least one dollar on each item. As to the

                                             6
merchandise that Hale would not accept, Bridges sold it at flea markets, where she also

continued to sell other miscellaneous items.

       For the first five or six years that Bridges and Hale did business together, Hale would

send someone to pick up the merchandise at Bridges’ house. Eventually, however, Hale

gave Bridges the address of his warehouse, and Bridges started delivering the stolen

merchandise to the warehouse on an almost daily basis. Starting around 2004 or 2005, her

daughters and their husbands found their own boosters to buy from in order to make money

by reselling stolen merchandise to Hale.

       At times, the drug-addicted shoplifters Bridges bought from would get arrested, and,

when Hale or Cooke would ask her why she was not bringing in as much product, she

would respond that her “people [were] on vacation.” Bridges testified that Hale would not

“ask any more questions about that.” At no point during the decade that Bridges sold Hale

stolen merchandise did Hale ever ask her for proof that the products she was selling to him

were not stolen; nor did he ever ask about the retailer stickers, which were on at least 20%

of the items that she sold to him.

       Brock testified that he first met Hale in 2000, when his father introduced them. At

the time, Brock and his father owned a fireworks store, but Brock was also buying over-

the-counter medicine and health-and-beauty aids from drug-addicted boosters and selling

the stolen merchandise at flea markets.            Brock’s father had previously sold stolen

merchandise, and he told Brock that Hale “was okay and . . . was buying . . . the health and

beauty aid stuff which [Brock] had.” Hale subsequently provided Brock with a price sheet

and started buying goods from him. In 2002, Brock was arrested after law enforcement

                                               7
officers executed a search warrant on a trailer located behind his fireworks store and

recovered counterfeit items and 20 boxes of stolen merchandise. While the charges were

pending, Brock asked Hale if “he could help [him] out,” and Hale gave Brock a fraudulent

“receipt for 20 banana boxes and a bunch of receipts from a Walmart,” leading police to

drop the stolen property charge.

       For several years after his arrest, Brock stopped dealing in stolen merchandise, but

he got back into the business after meeting Bridges at a flea market in the spring of 2010.

When he approached her booth, he could almost immediately tell, from “being in that

business before,” that her products were stolen goods. Brock started buying goods from

Bridges regularly and eventually started selling some of those goods to Hale.

       In late 2010, Hale and Brock had conversations about going into business together,

with the idea that Brock would operate a warehouse in South Carolina. During these

conversations, Hale told Brock that he made $18,000 in “a bad month” and that he was

getting about 90% of his merchandise from Bridges and the members of her family. Hale

advised Brock that he should always pay his suppliers in cash because he would “have to

report it if [he] put it on the books,” and he also told Brock to “make sure that [he] [got]

everybody on tape saying that they don’t deal in stolen merchandise,” even giving Brock a

voice recording pen device to be used for that purpose. He also gave Brock a device that

could be used to detect if someone was wearing a wire.

       Cooke testified that she first started working for Hale in 2001 when her sister-in-

law, who was already working for him, needed help. Cooke and her sister-in-law worked

together on a full-time basis until her sister-in-law left in 2006, and, from that point

                                             8
forward, Cooke essentially ran the warehouse’s daily operations, although Hale had an

office there and was present about one-half the time. Bridges and the other suppliers called

Cooke about an hour before they arrived at the warehouse with an estimate of how many

items they were bringing, so that Bridges could go to the bank and withdraw cash from

Hale’s business account. Cooke then received the merchandise as it was delivered and paid

the suppliers cash for it, often in the thousands of dollars. Cooke maintained a financial

ledger of the transactions — on which Hale also made entries — that identified the

suppliers, at first by codenames (such as “FW” for “fireworks,” the codename for Brock,

and “BG” for “Bonnie Gastonia,” the codename for Bridges, who lived in Gastonia, North

Carolina) and later by symbols (such as a star for one of Bridges’ daughters and an asterisk

for the other). After the suppliers left, Cooke — sometimes assisted by one of her family

members — unpacked the merchandise, checked it for damage and shelf life, “cleaned” it

of any retailer’s stickers or sensors, and sorted it. Once the merchandise was cleaned and

categorized, Cooke repackaged it and sent Hale a list of the inventory that was ready to

ship. After Hale negotiated a deal with one of his purchasers, Cooke put the boxes of

cleaned merchandise on pallets for shipping and prepared bills of lading.

       Initially, Hale paid Cooke $500 in cash every two weeks for her work, but he

eventually increased her pay to $20 in cash for every box of goods that she processed.

Cooke withdrew cash from Hale’s bank account to pay herself and also to buy all of the

warehouse’s supplies. While Cooke decided what hours to work, she nonetheless worked

full time and exclusively for Hale for approximately a decade. With respect to Cooke’s

work, Hale reported having paid around $50,000 to “Sharon’s Packaging” for each tax year

                                             9
from 2006 through 2008, but he never issued Cooke either a W-2 or a 1099 tax form, nor

did he withhold any of her income for taxes.

       Jeff Telsey, who had been the owner and operator of JCA Enterprises, testified that

he regularly bought stolen goods from Hale in order to resell them to retailers. When a

shipment arrived from Hale, his operation inspected each item for damage, expiration

dates, and stickers identifying the store where the item was supposed to be sold. He was

concerned about such stickers — which he sometimes found on items in Hale’s shipments

— because any retailer receiving such products “would know that this was obviously stolen

property.” Telsey never called the phone numbers printed on the stickers because he

already “knew [he] was dealing in stolen property.” Telsey testified that he liked doing

business with Hale because Hale sent him large quantities of the types of items that were

the easiest for him to resell and Hale’s prices were generally 10-15% lower than Telsey’s

other suppliers. When Telsey spoke with any of his suppliers, including Hale, they never

used the word “stolen,” but Telsey “took it for granted that everybody knew — had to know

it was stolen” and that anyone with “half a brain in their head . . . would know it was

stolen.” Hale stopped selling to Telsey at some point in 2010, telling Cooke that Telsey

was being investigated for dealing in counterfeit razor blades and indicating that, as a

result, they would “probably be investigated for [dealing in] stolen product[s].”

       Representatives from Bayer Health Care and Procter & Gamble — companies that

manufactured some of the products at issue — testified that there was no legitimate way to

buy their company’s products for prices as low as the ones Hale charged. Similarly, the

manager of CVS’s organized retail crime unit testified that there was no lawful way for

                                            10
“loose goods with different expiration dates from different stores with stickers on them” to

come into the market.

       After the government rested its case, Hale made a motion for a judgment of acquittal

on all counts, and the district court denied the motion. Hale then presented testimony from

several witnesses — some of whom testified about the existence of a legitimate secondary

market in over-the-counter medicines and health-and-beauty aids. He then took the stand

to testify in his own defense.

       Immediately prior to that point, Hale’s counsel requested that the court preclude the

government from asking Hale about a prosecution that was brought against Hale and more

than ten other defendants for conspiring during the period from 1992 to 1994 to transport

or receive stolen goods — namely, over-the-counter drugs and health-and-beauty aids. On

appeal of the convictions in that case, this court overturned most of the convictions,

including Hale’s, on the ground that the evidence did not support that the defendants had

been willfully blind to the fact that they were dealing in stolen property. See United States

v. Ebert, 

, 

, at *1 (4th Cir. May 3, 1999) (unpublished table

decision). The government agreed not to ask Hale about these previous charges and the

previous trial, but it argued that it should be able to cross-examine him about his business

dealings at that time with Don Thomas, the first-level fence at the heart of that case. The

court agreed, instructing the government to avoid referencing the fact that Hale was

previously charged but ruling that “if he gained knowledge at that time and then . . . used

that to be willfully blind in an effort to pull this off, then . . . that needs to come out.”

Hale’s counsel agreed that such a question was “fair game.”

                                             11
       Hale testified that he became involved in the secondary market business in 1992,

when he bought $20,000 worth of merchandise at flea markets and gradually started

identifying buyers. He stated that his business model involved dealing in “depressed

product,” meaning product that is “not in factory boxes” and does not “look factory new,”

and that he had “bought [product] from every known source that you can buy from.” He

testified that in his ten years of dealing with Bonnie Bridges, he had never heard “one word

. . . spoken about her being a fence,” adding that “nobody can run a booster operation ten

years and deal with crackheads” without getting caught; that Bridges was “probably the

[most] trusted buyer [he] had”; and that he “never ever thought she was selling stolen

goods.” He later added that he checked her criminal background and also verified that she

was at flea markets when she said she was going to be.

       On cross examination, Hale acknowledged that before he met Bridges, he had been

involved in the secondary market; that one of the people from whom he had bought over-

the-counter medicines and health-and-beauty aides was Don Thomas; and that he later

learned that Thomas had been getting his goods from boosters and fences.                 He

acknowledged that when he got back in the business in 2001, he knew that the presence of

stolen property in the market was “a great risk.” He also admitted that he had previously

done business “with independent fences,” but denied walking out of the room “whenever

boosters would show up at those fences’ places.”         In an attempt to refresh Hale’s

recollection, the government asked Hale to read silently from a document that was not

identified for the jury but that was a copy of this court’s unpublished opinion in Ebert.



                                            12
After reading the passage, Hale maintained that somebody had falsely said that he had

purposefully left the room when boosters were present.

       At the conclusion of all the evidence, Hale renewed his motion for a judgment of

acquittal, and the district court again denied the motion.

       In its closing argument, the government referred to evidence indicating that the

boosters who stole merchandise and sold it to Bridges were drug addicts, and it repeatedly

emphasized, without objection, that most of the money that Hale paid Bridges ultimately

went to the local drug dealers who were supplying the boosters with heroin and cocaine.

       Before the district court instructed the jury, Hale objected to the court’s decision to

provide the jury with a willful blindness instruction. Hale’s counsel allowed, however, that

if the court was going to give such an instruction, “we don’t have any problem with the

proposed instruction of the court.”

       The jury found Hale guilty on all counts on April 22, 2014, and the district court

sentenced Hale to 97 months’ imprisonment. From the judgment entered against him dated

October 13, 2015, as amended February 16, 2016, Hale filed this appeal.


                                              II

       For his main argument on appeal, Hale contends that the evidence was insufficient

to support the district court’s decision to provide the jury with a willful blindness

instruction and otherwise to support the jury’s finding that he knew the property was stolen.

Hale also challenges the form of the willful blindness instruction that the court gave.




                                             13
                                               A

       We begin with Hale’s contention that the district court abused its discretion by

instructing the jury on willful blindness in light of the evidence presented.

       For a jury to convict Hale of transporting stolen goods in interstate commerce and

conspiring to do so, the government was required to prove that Hale knew that the goods

he was transporting were stolen. See 18 U.S.C. § 2314. While the government could, of

course, meet its burden by proving that Hale actually knew the goods were stolen, it could

also satisfy the knowledge element by presenting sufficient evidence that Hale had made

himself deliberately ignorant of the fact that the goods were stolen, which evidence would

justify the court’s instructing the jury on “willful blindness.” The first question before us,

therefore, is whether the government presented sufficient evidence of Hale’s deliberate

ignorance to justify the district court’s willful blindness instruction.

       The principle that willful blindness will satisfy a knowledge element in criminal law

is premised on the idea that defendants should not be permitted to “escape the reach” of

criminal statutes that require proof that a defendant acted knowingly or willfully “by

deliberately shielding themselves from clear evidence of critical facts that are strongly

suggested by the circumstances.” Global-Tech Appliances, Inc. v. SEB S.A., 

,

766 (2011); see also United States v. Jinwright, 

, 478 (4th Cir. 2012) (“To

allow the most clever, inventive, and sophisticated wrongdoers to hide behind a constant

and conscious purpose of avoiding knowledge of criminal misconduct would be an

injustice in its own right”). But, to ensure that the willful blindness doctrine retains “an

appropriately limited scope that surpasses recklessness and negligence,” its application has

                                              14
“two basic requirements: (1) the defendant must subjectively believe that there is a high

probability that a fact exists and (2) the defendant must take deliberate actions to avoid

learning of that fact.” Global-Tech 

.

       To be sure, “requests for willful blindness instructions should be handled with

caution,” 

, because of the risk that the instruction could mislead

a jury into believing that it could convict the defendant for his mere negligence or

recklessness with respect to a key fact making his conduct illegal, see United States v.

Lighty, 

, 378 (4th Cir. 2010). Nonetheless, it is appropriate to instruct the jury

on willful blindness “when the defendant claims lack of guilty knowledge in the face of

evidence supporting an inference of deliberate ignorance.” 

see also United

States v. Ali, 

, 187–88 (4th Cir. 2013).

       In the record before us, there was ample evidence (both direct and circumstantial)

from which to find first that Hale “subjectively believe[d] that there [was] a high

probability” that the goods he was buying and selling were stolen.              Global-Tech

. In his testimony at trial, he acknowledged that he knew from

prior experience that there was a “very big risk” that people selling over-the-counter

medicine and health-and-beauty aides at flea markets could be first-level fences who had

bought the goods at deep discounts from professional shoplifters. The jury could also have

found that Hale must have thought that it was highly likely that the only way that Bridges

could be supplying him with trash bags and plastic storage bins full of assorted loose goods

at prices well below wholesale on an almost daily basis was for her to be running a large-

scale booster operation. Hale’s subjective awareness was also indicated by the evidence

                                             15
of his conduct in the aftermath of the search of his warehouse, when he attempted to coach

Cooke into denying that she knew with whom he was doing business; told Bridges not to

“turn on him”; and warned Brock to “get rid of [his] product” because the police would

likely come after him next.

       The record also contains ample evidence from which to find that Hale took

deliberate actions to avoid confirming that the goods were in fact stolen. For example, the

government showed that Hale was careful never to ask Bridges about who “her people”

were or why so many of her goods were marked with stickers indicating that they belonged

on the shelves of local stores. Instead, he had such stickers removed. Despite knowing

from his earlier dealings of the “very big risk” that individuals selling these types of goods

could be fences, he elected not to require his suppliers to ever provide receipts or other

documentation showing that they were obtaining their goods through legitimate channels,

and he structured his operation in a manner that minimized his direct contact with them.

       In light of this and other evidence, we conclude that the district court did not abuse

its discretion by providing the jury with a willful blindness instruction. See United States

v. Ruhe, 

, 384–85 (4th Cir. 1999) (holding that the district court did not abuse

its discretion by giving a willful blindness instruction where the record included evidence

that the defendant, charged with transporting stolen airplane parts, accepted the parts

“without the normal documentation” and ignored that many of the parts were marked with

red tags from the manufacturer indicating that they were “to be scrapped”).

       In addition to the evidence showing willful blindness to satisfy the knowledge

element of the offense, the government also presented evidence that Hale actually knew

                                             16
the goods in question were stolen. For example, the government presented (1) testimony

from Telsey that it was obvious that the merchandise he was purchasing from Hale was

stolen; (2) evidence that Hale tried to disguise his suppliers’ identities by instructing Cooke

to use codenames and symbols in the company’s financial ledger; and (3) testimony from

Brock that when he and Hale were contemplating forming a partnership, Hale gave him a

device to detect if someone was wearing a wire, as well as a voice recording pen devise

that he could use to “get everybody on tape saying that they don’t deal in stolen

merchandise.”

       Whether by evidence of willful blindness or by evidence of actual knowledge, the

government offered sufficient evidence from which the jury could find beyond a reasonable

doubt that Hale knew that the goods in which he was dealing were stolen.


                                               B

       Hale also challenges the content of the willful blindness instruction that the district

court gave, focusing in particular on a single sentence of the instruction in which the district

court stated, “Willful blindness would only satisfy the knowledge element of these offenses

if you, the jury, find the evidence supports an inference that the defendant was subjectively

aware of the high probability that the goods he was buying were stolen goods, but

purposefully avoided learning the facts pointing to the fact he was buying stolen goods.”

(Emphasis added for the challenged portions). Hale contends that by “fail[ing] to define

‘subjectively,’” the instruction allowed “the jury to conclude that ‘subjective belief’ could

be proved based on facts that the defendant or a reasonable person should have known,


                                              17
without consideration of facts actually known by the defendant.” He also asserts that the

instruction’s “facts pointing to the fact” language impermissibly allowed the jury to find

the knowledge element based upon “a circumstantial chain of events.”

       As a threshold matter, the government asserts that Hale waived any challenge to the

content of the district court’s willful blindness instruction, noting that after the district court

provided the parties with a copy of the instruction, Hale’s counsel approved of its form. In

response, Hale asserts:

       Hale did not waive [an] objection to the content of the willful blindness
       instruction provided by the district court. He specifically objected to any
       willful blindness instruction at all. At most, when pressed by the court,
       Hale’s counsel indicated that although he objected to the instruction
       proffered, if one has to be given then it was “not a bad one.” He did not
       request or consent to any particular language in a willful blindness
       instruction.

The record, however, does not support Hale’s position. After the court gave counsel a copy

of the instruction that it intended to give to the jury, the following dialogue took place:

       Counsel for Hale: Your Honor, I can tell the Court, aside – obviously, our
       position is that we will object to the willful blindness instruction as we stated;
       but if the court is going to give one, we don’t have any problem with the
       proposed instruction of the court.

       The Court: Okay.

       AUSA: The government has no objection, Your Honor. It accurately states
       the law.

       The Court: Then that’s the one – then I will give that instruction.

(Emphasis added). Again, a day later during the trial, Hale’s counsel reaffirmed his

position:



                                                18
       The Court: The [instructions] to look at are the willful blindness one which
       I am going to give and I think we’ve already covered that one yesterday. The
       defense objects to any willful blindness; but if we had to give one, they don’t
       think this one is a bad one. Is that right, Mr. Tin?

       Counsel for Hale: That’s our position Your Honor.

When counsel states affirmatively to the court that he has no problem with the form of the

proposed instruction, he waives any objection he has to the form. Had Hale objected to

the instruction’s language when the district court specifically asked for his views, the court

could have amended the instruction. But with the express reassurance that Hale had no

problem as to the form, the court gave the instruction to the jury, reserving only Hale’s

objection to the fact that it was given at all. It is therefore clear that Hale waived any

objection to the form of the willful blindness instruction.

       Nonetheless, were we to consider Hale’s newly asserted objection, we would readily

conclude that the district court did not err in giving the form of willful blindness instruction

that it gave to the jury. Indeed, much of the comprehensive instruction consisted of direct

quotes from the Supreme Court’s synthesis of the willful blindness doctrine in Global-Tech

Appliances and our subsequent decision in Jinwright, where we upheld a willful blindness

instruction as consistent with Global-Tech Appliances. See 

–80.

We find no merit to Hale’s complaint that the district court failed to define the word

“subjectively,” as the word is one of ordinary English and the context of its use clearly

signaled to the jury that it was required to focus on whether Hale himself believed that the

goods were likely stolen property. Moreover, the single “facts pointing to the fact” phrase,

while not the most artful, did not render the instruction erroneous, especially when taken


                                              19
as a whole. The district court repeatedly “emphasize[d] that the government must prove

more than the defendant was reckless or negligent,” taking care to correctly explain those

terms.     And it concluded its instruction by using key language from Global-Tech

Appliances to explain that “[t]o find beyond a reasonable doubt the defendant was willfully

blind, you first have to find the defendant subjectively believed there was a high probability

that he was buying stolen goods and, two, that the defendant took deliberate actions to

avoid learning the goods he was buying were stolen.” Thus, even had Hale not waived his

objection to the form of the instruction, we would conclude that the district court’s willful

blindness instruction, considered as a whole, “accurately and fairly state[d] the controlling

law.” United States v. Rahman, 

, 92 (4th Cir. 1996).


                                              III

         Hale raises several other challenges, each of which merits only a brief discussion.


                                              A

         Hale challenges the district court’s admission of three categories of evidence, none

of which he objected to at trial. Because he failed to object, our review is limited to plain

error. See Fed. R. Crim. P. 52(b).

         First, Hale contends that “evidence that Bridges’ boosters were drug addicted was

not relevant” and, in any event, was more prejudicial than probative. He maintains that

evidence regarding the boosters’ “drug problems was an appeal to the emotions of the

jurors,” meant to “generate anger and bad feelings in the jurors against” him.



                                              20
       We conclude, however, that the district court did not err in admitting this evidence.

That the boosters were desperate to feed very expensive drug habits was critical to

explaining why there was a network of people willing to shoplift thousands of dollars’

worth of merchandise and sell it quickly for very cheap prices. The boosters’ drug addition

was thus at the heart of how this retail theft scheme was able to function, and the district

court did not abuse its discretion — let alone commit plain error — by admitting this type

of evidence.

       Second, Hale argues that the evidence relating to his prior acquittal for conspiracy

to deal in stolen goods “was not relevant, was more prejudicial than probative[,] and was

prohibited bad character evidence.” He argues, “Whether Thomas or others previously

sold stolen goods to Hale did not make any more or less probable the question of whether

he knew Bridges, who had no connection whatsoever to them, also sold stolen goods to

him.” In addition, he complains that “the government used a bound Federal Court of

Appeals reporter volume,” thus showing the jury that there was “a case book with a case

of the defendant in it.” At bottom, according to Hale, “The entire line of questioning served

only to inform the jury, impermissibly, that Hale had a prior case involving fences” and

was therefore “propensity evidence” that should have been excluded under Federal Rule of

Evidence 404(b).

       Hale not only failed to object to this evidence when it was presented at trial, he

expressly agreed that “we don’t have a problem with” the government asking Hale on

cross-examination whether, before he met Bridges, he had learned that one of his previous

suppliers had been buying stolen goods from heroin addicts. Accordingly, we conclude

                                             21
that he waived his objection. Moreover, contrary to his claims, there was no “bound

Federal Court of Appeals reporter volume,” as the Ebert decision was unpublished and not

even reported in the Federal Appendix. Nothing in the government’s questions or in its act

of handing Hale a printed copy of the opinion to refresh his recollection informed the jury

that there had previously been a case against Hale involving fences.

       Third and finally, Hale challenges the admission of Brock’s testimony that he

understood from his father that Hale dealt in stolen goods, arguing that this evidence

constituted hearsay and prohibited bad character evidence. But the only out-of-court

statement admitted was Brock’s testimony that he first learned of Hale when his father told

him that Hale “was okay and . . . was buying HBA, which is the health and beauty aid stuff

which I had.” Brock added that he understood his father’s statement to mean “[t]hat you

could deal with him as far as on that level” — i.e., the stolen-merchandise level — and that

he generally trusted Hale because his father “was the intro.” The out-of-court statement

by Brock’s father that Hale was “okay” was thus properly admitted not for the truth of the

matter asserted but to show why Brock thought he could sell stolen goods to Hale.

Accordingly, there is simply no basis for Hale to argue that the district court was required,

sua sponte, to exclude this brief explanation by Brock as to his own state of mind.


                                              B

       Hale also challenges the form of two other instructions given to the jury, although

he did not object to them at trial. Our review of these challenges, therefore, is again limited

to plain error.


                                              22
       Hale contends first that the district court committed reversible error by instructing

the jury to give special scrutiny to Hale’s testimony, arguing that he was “prejudiced by

the court’s directive to scrutinize his testimony beyond other interested witnesses because

the court implied [his] testimony was false.” But, as the government notes, the district

court’s instruction below did no more than equate Hale with any other interested witness.

Specifically, the court instructed the jury first that “[i]f you find a witness is interested in

your verdict, it is your duty to scrutinize his or her testimony closely. But after you have

done so, and if you find he or she is telling the truth in whole or in part, you will give that

testimony the same weight you would of a disinterested witness.” It then explained further:

       The defendant Steve Hale took the witness stand and testified on his own
       behalf. Defendants are interested witnesses. You will scrutinize his evidence
       in the light of his interest that he has in the case. If after scrutinizing the
       testimony, you find he has told the truth, you should give his testimony the
       same weight as the other witnesses in the case.

Contrary to Hale’s argument, the district court did not “impl[y] [that] Hale’s testimony was

inherently unbelievable” but simply noted that defendants who testify on their own behalf,

like Hale, are interested witnesses whose testimony should be scrutinized like any other

interested witness. This instruction did not constitute plain error.

       Hale also contends that the district court erred in instructing the jury on conspiracy

law. We conclude, however, that the court accurately instructed the jury that, “once a

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

conspiracy could be sufficient to include him in the plan.” See United States v. Strickland,

, 385 (4th Cir. 2001) (“Once a conspiracy has been proved, the evidence need

only establish a slight connection between any given defendant and the conspiracy to

                                              23
support conviction”). Hale nonetheless contends that because the district court “did not

also tell the jury that the ‘slight connection’ had to be proved beyond a reasonable doubt,”

the “jury could have easily believed that the connection element for the conspiracy charged

could be proved through just slight evidence of a connection.” This argument, however,

overlooks the fact that the district court repeatedly made clear throughout its instructions

that the government had to prove each element beyond a reasonable doubt.

       We find no error in the district court’s giving these instructions.


                                              C

       Hale next contends that the government failed to present sufficient evidence to allow

the jury to find beyond a reasonable doubt that Cooke was his employee, as opposed to an

independent contractor, as necessary for his convictions on 14 counts of failing to collect

and pay over employee taxes, in violation of 26 U.S.C. § 7202. Hale focuses in particular

on evidence (1) that Cooke testified that she was ‘self-employed’; (2) that she had “sole

discretion over when and how long she worked”; (3) that Hale paid Cooke by the box; and

(4) that Cooke exercised considerable discretion, including whether to hire additional

assistants. While the jury might have been able to find from this evidence that Cooke was

an independent contractor, Hale overlooks the ample evidence supporting the jury’s finding

that she was an employee for purposes of the tax reporting requirements. This additional

evidence showed that Cooke worked exclusively and full time at Hale’s warehouse for

approximately a decade using equipment that Hale supplied and following Hale’s

directions to complete tasks that were essential to the operation of his business. With such


                                             24
evidence, we have no difficulty concluding that the jury’s finding that Cooke qualified as

an employee of Hale’s business was supported by substantial evidence.


                                               D

       Finally, Hale contends that the prosecutor engaged in misconduct during his closing

argument, denying Hale his right to a fair trial.         Specifically, he contends that the

government’s closing argument “focused on how Hale denigrated the community by

feeding individuals’ addiction,” indirectly lining the pockets of area drug dealers “while

living an opulent lifestyle elsewhere.” Hale argues that this “blatant appeal to passions and

prejudices was improper” and “deprive[d] him of a fair trial.”

       Again, because Hale did not object to the argument at trial, our review is limited by

the plain error standard, and we readily conclude that the district court did not plainly err

by failing, sua sponte, to issue a curative instruction or to declare a mistrial upon hearing

the government’s closing argument. The prosecutor’s statements that Hale reaped profits

by engaging in conduct that had the effect of fueling illicit drug trafficking was an accurate

summary of the evidence, not prosecutorial misconduct. And, in any event, in light of the

strength of the government’s case, the remarks certainly did not so prejudice Hale’s

substantial rights that he was denied a fair trial.

                                        *      *      *

       Accordingly, we affirm the judgment of the district court.

                                                                                AFFIRMED




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