US v. Balraj Naidu

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00091-CCB-2. Copies to all parties and the district court. [998788117]. [11-4014]

Appeal: 11-4014

Document: 73

Date Filed: 02/14/2012

Page: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4014

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BALRAJ NAIDU,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:08-cr-00091-CCB-2)

Submitted:

January 24, 2012

Decided:

February 14, 2012

Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew H. Baida, ROSENBERG MARTIN GREENBERG, LLP, Baltimore,
Maryland, for Appellant. James G. Warwick, Rachel Miller Yasser,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-4014

Document: 73

Date Filed: 02/14/2012

Page: 2 of 6

PER CURIAM:
A federal jury convicted Balraj Naidu of conspiracy to
provide material support to a foreign terrorist organization, in
violation of 18 U.S.C.A. § 2339B(a)(1) (West Supp. 2011).
district

court

sentenced

Naidu

imprisonment and he now appeals.

to

fifty-seven

The

months

of

Appellate counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the verdict form constructively amended the
indictment and whether there was sufficient evidence to support
the conviction.

Naidu has also filed a pro se supplemental

brief raising additional issues. *
Counsel

first

Finding no error, we affirm.

questions

whether

constructively amended the indictment.

the

verdict

form

As Naidu failed to raise

this issue in the district court, we review this issue for plain
error.

See Fed. R. Crim. P. 52(b); United States v. Olano, 507

U.S. 725, 731-32 (1993).
demonstrate

that

there

To meet this standard, Naidu must

was

error,

affected his substantial rights.
demonstrates
discretion

to

affect[s]

the

plain

error

correct

the

fairness,

that

Id.

was

and

that

Moreover, even if Naidu

occurred,

we

will

error

“unless

integrity

or

*

plain,

the

public

not

exercise

error

seriously

reputation

of

We have considered the issues raised in Naidu’s pro se
briefs and conclude that they lack merit.

2

Appeal: 11-4014

Document: 73

judicial

Date Filed: 02/14/2012

proceedings.”

Id.

Page: 3 of 6

(internal

quotation

marks

and

citation omitted).
“A constructive amendment to an indictment occurs when
either

the

government

(usually

during

its

presentation

of

evidence and/or its argument), the court (usually through its
instructions to the jury), or both, broadens the possible bases
for

conviction

beyond

those

presented

by

the

grand

jury.”

United States v. Hackley, 662 F.3d 671, 682 n.6 (4th Cir. 2011)
(internal quotation marks and citation omitted).
amendments

are

“fatal

variances

because

the

Constructive
indictment

is

altered to change the elements of the offense charged, such that
the defendant is actually convicted of a crime other than that
charged in the indictment.”

United States v. Perry, 560 F.3d

246, 256 (4th Cir. 2009) (internal quotation marks and citations
omitted).
Here,

while

the

indictment

charged

the

knowledge

element of the offense in the conjunctive, the verdict form and
the statute list the knowledge element in the disjunctive.

As

counsel correctly concedes, however, “[i]t is well established
that when the [g]overnment charges in the conjunctive, and the
statute is worded in the disjunctive, the district court can
instruct the jury in the disjunctive.”

Perry, 560 F.3d at 256

(internal quotation marks and citations omitted).

We therefore

conclude that the district court did not commit plain error in
3

Appeal: 11-4014

Document: 73

Date Filed: 02/14/2012

Page: 4 of 6

crafting the verdict form and instructing the jury regarding the
form.
Counsel
presented

next

sufficient

questions
evidence

whether

Government

support

to

the
the

conviction,

contending that Naidu was excluded from the conspiracy by his
coconspirators.

We review a district court’s decision to deny a

Rule 29 motion for a judgment of acquittal de novo.
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).
challenging

the

sufficiency

of

the

evidence

United

A defendant

faces

a

heavy

burden.

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997).

“In reviewing the sufficiency of the evidence supporting

a

criminal

whether

conviction,

there

favorable

to

our

role

is

is

substantial

evidence,

the

Government,

to

that

a

reasonable

finder

of

to

taking

support

quotation marks and citation omitted).
“evidence

limited

it.”

considering

the
Id.

view

most

(internal

Substantial evidence is
fact

could

accept

as

adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.”
F.3d

209,

citation

216

(4th

omitted).

Cir.

2006)

“Reversal

United States v. Smith, 451

(internal
for

quotation

insufficient

marks

and

evidence

is

reserved for the rare case where the prosecution’s failure is
clear.”

Beidler, 110 F.3d at 1067 (internal quotation marks and

citation omitted).

4

Appeal: 11-4014

Document: 73

Date Filed: 02/14/2012

Page: 5 of 6

In order to obtain a conviction under § 2339B(a), the
Government

had

to

prove

that

Naidu

knowingly

conspired

to

provide material support to a foreign terrorist organization,
with knowledge that the organization is a designated terrorist
organization,

engaged

terrorism.

18

in

U.S.C.

terrorist

activity,

§ 2339B(a).

Proof

or
of

engaged
a

in

conspiracy

requires (1) an agreement between two or more persons to commit
a crime, and (2) an overt act in furtherance of the conspiracy.
See United States v. Ellis, 121 F.3d 908, 921 (4th Cir. 1997).
Moreover,

“[o]nce

a

conspiracy

is

established,

.

.

.

it

is

presumed to continue unless or until the defendant shows that it
was terminated or he withdrew from it.”
599 F.3d 360, 369 (4th Cir. 2010).
the

record

and

overwhelming

conclude

evidence

of

United States v. Green,

We have thoroughly reviewed

that

the

Naidu’s

Government

guilt

of

the

provided

offense

of

conviction and that the evidence did not demonstrate Naidu’s
affirmative withdrawal from the conspiracy.

See id. at 369-70

(internal conflict between conspirators resulting in defendant’s
hiatus

from

conspiracy

failed

to

demonstrate

affirmative

withdrawal).
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal.
court.

Accordingly, we affirm the judgment of the district

This

court

requires

that
5

counsel

inform

Naidu,

in

Appeal: 11-4014

Document: 73

writing,

of

the

Date Filed: 02/14/2012

right

to

petition

United States for further review.

Page: 6 of 6

the

Supreme

Court

of

the

If Naidu requests that a

petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation.

Counsel’s motion must

state that a copy thereof was served on Naidu.

We dispense with

oral

contentions

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

the

court

are
and

argument would not aid in the decisional process.

AFFIRMED

6