OPINION
Defendanb-Appellant, Billy Talley a former lieutenant in the Shelby County, Tennessee Sheriffs Department appeals following a jury trial finding him guilty of three of the four counts charged against him in a four-count indictment. Now serving a 42-month term for knowingly disposing of a firearm to a convicted felon, among other crimes, Talley challenges his conviction and sentence on eight separate grounds. The primary of those grounds is that the district court erred when it denied Talley’s motion for a mistrial premised on the government’s prosecutorial misconduct. Although we agree with Talley that the prosecutorial misconduct is this case is indeed troubling, we find a mistrial unwarranted. For the reasons that follow, we also find Talley’s seven other suggested errors without merit, and therefore affirm his conviction and sеntence.
I.
The underlying facts of this matter read like a film script. Talley was employed for eighteen years in the Shelby County Sheriffs Department. While there, he rose from deputy jailer to become a lieutenant in the detective division. As a detective, Talley used one Kelvin Marr as an infer- *761 mant in many of his cases. Marr, a career criminal and prior convicted felon, stole cаrs and other items, and dealt drugs. Periodically, Marr would be arrested and Talley, to keep Marr as an informant, would come to his aid by having Marr’s bond lowered, or by attempting to intervene with prosecutors on Marr’s behalf. 1
At some unspecified time, Talley “crossed the line” between legal and illegal conduct, and became a participant in Marr’s criminal activity. Thereafter, Marr сontinued to be periodically arrested, but Talley’s criminal life went undetected.
Marr ultimately tired of the routine of being the only one prosecuted for the crimes he committed along with Talley. When arrested in Memphis in 1995, Marr therefore decided to “rat out” Talley to Memphis police officials, who promptly called in the FBI. Marr ultimately agreed to wear a wire against Talley, and to record their conversations on audiotape. Because Marr was less than precise in his recording technique, however, certain relevant conversations with Talley were not recorded; some audiotapes were lost; and others were recorded over (i.e., erased and destroyed). One destroyed conversation at issue here allegedly involved Tаlley asking Marr if, in exchange for $3,000, he would be willing to kill the wife of an individual named Fred White. (Talley was never indicted for this crime.)
The conversations which were recorded, and which were played for the jury at Talley’s criminal trial suggested, inter alia, that:
—Talley and Marr stole cars together, including a 1993 Saturn automobile;
■ — To conceal their car thefts, Talley and Marr replaced valid vehicle identification number (“VIN”) tags with VIN tags they had previously stolen. Additionally, they stole a car dealer’s license plate, which Talley installed on the Saturn (so as to disguise its stolen status);
—Talley provided Marr with a .25 caliber automatic pistol, which Talley had previously stolen from the Sheriffs Office; and
—Talley sold 75 placebo Dilaudid pills on behalf of Marr, then split the profits with Marr.
When Talley discovered that Marr had “worn a wire” against him, Talley sought to have both Marr and his FBI contact, Ed Young, killed. The assassination plot did not work out as Talley planned, however, because the contract killer that Talley dealt with, Ron Tyler, elected — like Marr — to record his conversations with Talley, and to assist the authorities. As a result, Talley was convicted in the Western District of Tennessee on two counts of solicitation-of-murder in violation of 18 U.S.C. §§ 1114 and 1512. His 170-month incarceration term was upheld by a different panel on appeal.
See United States v. Talley,
At issue in this appeal are the crimes that Talley committed with Marr. On February 20, 1996, a federal grand jury, sitting in the Western District of Tennessee, charged Talley in a four-count indictment with: (1) knowingly disposing of a firearm to a convicted felon, in violation of 18 U.S.C. § 922(d) (Count I); (2) unlawfully removing or tampering with the VIN tag to the 1993 Saturn, in violation of 18 U.S.C. § 511 (Count II); (3) possession with the intent to distribute morphine, in violation of 21 U.S.C. § 841(a)(1) (Count III); and' (4) attempted possession with the intent to distribute Dilaudid, in violation of 21 U.S.C. §§ 841(a) and 846 (Count IV). Following a five-day jury trial held in July 1997, during which he was represented by counsel, Talley was found guilty of Counts I, II and IV, and not guilty of Count III. Thereafter, Talley was sentenced to a 42-month term, to be followed by three years of supervised release. Tal *762 ley is now serving the 42-month and 170-month terms concurrently.
II.
On appeal, Talley argues that the district court made eight distinct errors. Talley argues that the court erred at trial when it: (1) denied his motion for a mistrial; (2) denied his motion for judgment of acquittal; (3) denied his motion to sever the indictment counts; (4) denied in part his motion in limine; and (5) used a courtroom sound system in which each juror was given his or her own set of headphones. Talley further argues that the district court erred in sentencing by: (6) applying a two-level enhancement under United States Sentencing Guideline (“USSG”) § 3B1.3, for abuse of the public trust; (7) calculating the value of the Count II motor vehicle (the 1993 Saturn) at $13,500; and (8) assigning to him a criminal history category of “II” instead of
A. Mistrial
Talley’s primary contention is that the prosecutorial misconduct by Assistant United States Attorney Lawrence Lauren-zi merited a mistrial, and that his motion for a mistrial was therefore wrongly denied.
Talley’s mistrial motion was premised upon his earlier-filed motion in limine. The in limine request was made by Talley’s counsel in order to prohibit the government from “informing the jurors of any type of evidence whatsoever of other crimes, wrongs, or acts of the [defendant, other than those set out in the indictment....” J.A. at 63. In granting in part and denying in part the motion, the district judge found:
[THE COURT]: With respect to the motion in limine ... the court believes that ... the defense’s motion ... ought to be granted because [the government’s evidence] is so highly prejudicial that ... the prejudicial value [of the evidence] would [substantially] outweigh any probative value [it might have].... So the court would exclude the [audiotapes that relate to those particular cat-egories_ [Also,] I believe Mr. Lau-renzi [the AUSA] mentioned something about a conversation about a [solicitation for] murder or something to that effect and [because it is likewise prejudicial, the government’s evidence of that crime] would certainly be excluded.
J.A. at 92-93 (emphasis added). Laurenzi acknowledged his assent to this ruling by responding, “Yes, Your Honor.” Id. at 93.
Thereafter, Laurenzi called Marr to testify as a government witness. Despite the court’s in limine ruling, and his assent to that ruling, Laurenzi proceeded to question Marr, on redirect, about the Fred White murder solicitation, even though that crime was not beforé the jury for consideration. The following colloquy between Laurenzi and Marr then took place:
[LAURENZI]: You mentioned that ... you destroyed two tapes?
[MARR]: Yes, I did.
sf: sj< sj: # #
[LAURENZI]: You say this occurred on two occasions?
[MARR]: Two occasions.
[LAURENZI]: And what were those two parts you cut off?
[MARR]: One [was] when [Talley] asked me to kill ...
[TALLEY’S COUNSEL]: Your Honor
[MARR]: Fred White ... 2 [TALLEY’S COUNSEL]: May we approach the bench?
[THE COURT]: Just a second, Mr. Marr. Mr. Laurenzi, come forward.
*763 J.A. at 207-08 (footnote added). A recess was then promptly called, during which the judge met with counsel in chambers. Talley’s counsel then orally moved for a mistrial on the grounds that Laurenzi’s questioning had (1) violated the judge’s in limine ruling; and (2) prejudiced the jury against Talley, by informing' them that Talley had supposedly solicited Marr’s help in killing someone. In denying the motion, the judge reasoned as follows:
THE COURT: Mr. Laurenzi, I dealt at length with this motion in limine that came up on yesterday and I specifically said there was certain testimony that I believed was so highly prejudicial that I wouldn’t allow it in[,] even though it might have something to do with something. But I’m not going to belabor this anymore.
First of all, with respect to this motion for mistrial, I am going to deny this motion for the mistrial because even though I heard part of the witnesses] answer, I think I started talking over him and cut that off[,] and I will give the jury [a limiting] instruction on that. However, Mr. Laurenzi, that does not excuse my dissatisfaction with your having ... elicited this information, and I believe that it is informаtion that is sanctionable. And I will tell you that if you try something like that again in the course of this trial, then I will deal with imposing sanctions on you individually....
But I’m not going to grant a mistrial. But I’m warning everybody, I’m not going to have these shenanigans through this trial.
J.A. at 214-15.
The judge acted correctly in admonishing Laurenzi, and would have been acting within her discretion were she to have sanctioned him. In serving as the AUSA prosecuting this case, Laurenzi had twо roles: representative of the United States; and officer of the court. By violating the district judge’s
in limine
ruling, Laurenzi breached his obligation to act fairly and impartially in both capacities.
3
An
in limine
ruling, made in a criminal case, serves to ensure that the jury will hear only that evidence which the district judge properly deems admissible. Actions designed to advise the jury of inadmissible evidence seriously undermine the right to a fair trial guaranteed to every criminal defendant by the Sixth Amendment.
See United States v. Davis,
*764
The denial of a motion for mistrial is reviewed for an abuse of discretion.
United States v. Chambers,
Generally, a criminal conviction is not to be lightly overturned on thе grounds of a prosecutor’s statements alone, as the comments or conduct must be viewed in context. See United States v. Cobleigh,75 F.3d 242 , 247 (6th Cir.1996). We adopted a two-part test for determining whether prosecutorial misconduct warrants a mistrial in United States v. Carroll,26 F.3d 1380 (6th Cir.1994). First, we determine whether the prosecutor’s conduct or comments were improper. Second, we determine whether the impropriety amounts to reversible error either as a “flagrant” impropriety under United States v. Leon,534 F.2d 667 (6th Cir.1976), or because a new trial is required under United States v. Bess,593 F.2d 749 (6th Cir.1979). See United States v. Wiedyk,71 F.3d 602 , 607-08 (6th Cir.1995).
A mistrial is not warranted in this case because Talley cannot show that the district judge abused her discretion in denying his motion, or that the Carroll two-part test is satisfied. As the judge correctly pointed out, it is questionable whether or not the jury even heard Marr’s testimony. Because the judge was then presiding, she was in a much better position at that time than we are now to evaluate what, the jury heard or did not hear. In her chambers conference held just minutes after Marr’s statement was spoken, the judge indicated her belief that the jury did not hear Marr. As a matter of law, if the jury did not hear Marr’s statement, it could not have been prejudiced thereby. We assume the judge was correct in finding that Marr was not heard, given that Talley has presented us with no facts upon which tо conclude that the judge’s finding constitutes an abuse of her discretion.
Assuming, arguendo, that the jury heard Marr’s testimony and was prejudiced as a result, that prejudice was ameliorated by the curative instruction the judge gave to the jury. The jury was instructed as follows:
Members of the jury, just before you took your earlier recess there was a question put to Mr. Marr and a partial response given[.] [T]he Court [interrupted] him in the middle of that statement. I’m going to instruct you to disregard both the question from Mr. Laurenzi to the witness and the question I believe what was on the missing tape, and disregard any partial response that Mr. Marr may have given[.] [T]hat is not information that you may consider in any way[.] [Disregard both the question and the partial response.
J.A. at 279. We are persuaded both by the language of this instruction, and by the fact that it was given to the jury immediately upon their return from recess (and prior to the completion of Marr’s testimony). In light of these circumstances we find, under Carroll, that Laurenzi’s improper conduct does not constitute reversible error.
B. Remaining Arguments
Talley’s seven remaining arguments are addressed in turn.
i. Motion for Judgment of Acquittal
Talley first argues that the district court wrongly denied his Fed. R.Crim.P. 29 motion for judgment of acquittal because the evidence was insufficient to sustain his conviction on indictment Counts I, II and IV. The denial of such a motion is reviewed
de novo. See United States v. Keeton,
Talley cannot satisfy the “sufficiency of evidence” test because of the overwhelming circumstantial evidence of his guilt. See id. (“Circumstantial evidence alone, if substantial and competent, may support a verdict and need not remove every reasonable hypothesis except that of guilt.”) (citation and quotation omitted). As to Count I — knowingly disposing of a firearm to a convicted felon — the circumstantial evidence, when viewed in the light most favorable to the government, reveals that Marr was a convicted felon and that Talley knowingly supplied him with a .25 caliber pistol. The evidence supporting the Count II and Count IV charges — the VIN tag and Dilaudid offenses, respectively — when viewed in the government’s favor, also demonstrates that Talley committed those crimes; Additionally, Talley confessed to the Count IV crime at the time of his arrest. '
ii.Severance
A motion to sever indictment counts must be renewed at the close of all the evidence.
United States v. Hudson,
iii.In Limine Ruling
Talley also argues that the district court erred by denying, in part, his motion
in limine
premised on Fed.R.Evid. 404(b). The district court’s ruling is reviewed for an abuse of discretion.
See United States v. Phibbs,
Rule 404(b) provides in part that, “[e]vi-dence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). The Rule also provides that otherwise ex-cludable evidenced “admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, [or] knowlеdge.... ” Id. The court thus did not abuse its discretion, because the au-diotaped evidence was admissible to prove Talley’s knowledge that the Saturn was stolen, and his intent to have appearance of the Saturn “legitimized” via installation of the dealer’s license plate and the switched VIN tags.
iv.. Headphones
The district court’s decision on evidentiary matters, such as the manner in which a jury will hear evidence, is also reviewed for an abuse of discretion.
United States v. Bonds,
v. USSG § 3B1.3
Regarding his sentencing, Talley first argues that he should not have been given the two-level enhancement provided for by USSG § 3B1.3 for “abuse of the public trust.” The district judge’s adoption of the enhancement is reviewed
de novo,
and the judge’s related factual findings are reviewed for clear error.
See United States v. Watkins,
vi. Saturn Value
Talley also challenges the district court’s calculation of the retail value of the Saturn automobile used in the Count II VIN tag crime.
See
USSG § 2B6.1(b)(l) (requiring the sentencing judge to calculate the retail value of the Saturn because that value exceeds $2,000.) Using the Probation Department’s Pre-Sentence Report (“PSR”) for guidance, the district court calculated the retail value of the 1993 Saturn at $13,500. Talley challenges the accuracy of the $13,500 figure, but suggests no competing figure. We are thus unable to determine that the judge was clearly erroneous in relying, as a factual matter, upon the PSR.
Accord United States v. Velez,
vii.Criminal History Category
Talley finally argues that the district court erred in assigning him, at sentencing, to a criminal history category of “II” instead of the lesser “I” category. As this is a legal conclusion, our review is
de novo. See Watkins,
III. Conclusion
Talley’s conviction and sentence, therefore, are both AFFIRMED.
Notes
. The legality of such conduct is not before us on review.
. Presumably, Marr was about to say "Fred White’s wifе” when he was interrupted by Talley’s counsel.
. As the Supreme Court has recognized:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vig- or — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States,