United States of America v. Balraj Naidu

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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 and he now appeals. 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.* Finding no error, we affirm.
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 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
* We have considered the issues raised in Naidu’s pro se
briefs and conclude that they lack merit.

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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
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

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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
Rule 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.” United States v. Smith, 451
F.3d 209, 216 (4th Cir. 2006) (internal quotation marks and
citation omitted). “Reversal for insufficient 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).

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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 in terrorist activity, or engaged in
terrorism. 18 U.S.C. § 2339B(a). Proof of a 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.” 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 have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Naidu, in

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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 in the decisional process.
AFFIRMED

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