United States of America v. Balraj Naidu

ON REHEARING
UNPUBLISHED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: May 4, 2012
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

-- 1 of 6 --

2
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). The
district court sentenced Naidu to fifty-seven months of
imprisonment. On appeal, counsel 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 also filed a pro se supplemental brief raising additional
issues.* We affirmed the judgment of the district court. We now
grant Naidu’s petition for panel rehearing. Although we affirm
the conviction and sentence, we remand to the district court to
correct a clerical error in the judgment.
On appeal, counsel first questions whether the verdict
form constructively amended the indictment. 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). To meet this standard,
Naidu must demonstrate that there was error, that was plain, and
that affected his substantial rights. Id. Moreover, even if
* We have considered the issues raised in Naidu’s pro se
briefs and conclude that they lack merit.

-- 2 of 6 --

3
Naidu demonstrates plain error occurred, we will not exercise
discretion to correct the error “unless the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (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). Constructive
amendments are “fatal variances because the 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

-- 3 of 6 --

4
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
crafting the verdict form and instructing the jury regarding the
form.
Counsel next questions whether the Government
presented sufficient evidence to support the conviction,
contending that Naidu was excluded from the conspiracy by his
coconspirators. We review a district court’s decision to deny a
Fed. R. Crim. P. 29 motion for a judgment of acquittal de novo.
United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). A
defendant challenging the sufficiency of the evidence 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 conviction, our role is limited to
considering whether there is substantial evidence, taking the
view most favorable to the Government, to support it.” Id.
(internal quotation marks and citation omitted). Substantial
evidence is “evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Smith, 451 F.3d
at 216 (internal quotation marks and citation omitted).
“Reversal for insufficient evidence is reserved for the rare

-- 4 of 6 --

5
case where the prosecution’s failure is clear.” Beidler, 110
F.3d at 1067 (internal quotation marks and citation omitted).
In order to obtain a conviction under § 2339B(a), the
Government was required 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 in terrorist activity, or engaged in
terrorism. 18 U.S.C. § 2339B(a). “Once a conspiracy is
established, . . . it is presumed to continue unless or until
the defendant shows that it was terminated or he withdrew from
it.” United States v. Green, 599 F.3d 360, 369 (4th Cir. 2010).
We have thoroughly reviewed the record and conclude that the
Government provided overwhelming evidence of Naidu’s guilt of
the 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 therefore affirm Naidu’s conviction and sentence.
However, the judgment of the district court contains an internal
inconsistency that must be corrected. While correctly listing
the offense of conviction as “Count 2” in one section, the
judgment later incorrectly refers to the offense of conviction
as “Count 1,” and refers to the statute charged in Count 1 of

-- 5 of 6 --

6
the indictment, a count on which Naidu was not tried. We
therefore remand to the district court to correct this clerical
error in accordance with Fed. R. Crim. P. 36.
We have examined the entire record in accordance with
the requirements of Anders and have found no other meritorious
issues for appeal. Accordingly, we affirm the conviction and
sentence, and remand to the district court to correct the error
in the judgment. We also deny Naidu’s motion for appointment of
substitute counsel. This court requires that counsel inform
Naidu, in writing, of the right to petition the Supreme Court of
the United States for further review. 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 argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED AND REMANDED

-- 6 of 6 --