Case Information
‐ United States
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST T ERM ,
A RGUED : O CTOBER
D ECIDED : A UGUST
No. ‐ U NITED S TATES OF A MERICA ,
Appellee,
M AHMOUD T HIAM
Defendant ‐ Appellant.
________ Appeal from States District Court Southern District New York. cr ‐ (DLC) – Denise L. Cote, Judge ________
Before: District AULEY P Judge. Judges OHIER L ALKER W Circuit [*] ________
Defendant Mahmoud (“Thiam”) appeals judgment entered District Court Southern District New York following ‐ jury trial before Denise L. Cote, Judge , convicting him money laundering conducting transactions property criminally derived through bribery Republic Guinea. On appeal, challenges conviction, arguing (i) district court’s jury instructions were erroneous because they failed include relative bribery conviction, as set forth United States S. (2016); (ii) insufficient (a) finding quid pro quo necessary for conviction (b) committed defined ; several evidentiary rulings district were erroneous. reasons below, AFFIRM judgment district court.
________
E LISHA J. K OBRE (Christopher J. DiMase, Daniel B. Tehrani, brief ), Assistant United States Attorneys, Lorinda I. Laryea, Trial Attorney, Fraud Section, Criminal Division, States Department Justice, for Geoffrey Berman, Attorney for Southern District New York, New York, NY, Appellee J ONATHAN I. E DELSTEIN Edelstein & Grossman, New York, NY, Defendant Appellant.
________
J OHN M. W ALKER J R ., Circuit Judge :
Defendant Mahmoud (“Thiam”) appeals judgment entered District Court Southern District New York following jury before Denise L. Cote, Judge convicting him money laundering conducting transactions property criminally derived through Republic Guinea. On appeal, challenges conviction, arguing (i) court’s erroneous failed include of relative a bribery conviction, as set forth in (2016); (ii) was insufficient (a) a finding of a quid pro quo necessary conviction and (b) a he committed an as defined in ; and several evidentiary rulings by district erroneous. reasons below, AFFIRM judgment of court.
BACKGROUND appeals from a judgment, after a trial, convicting him of money
laundering in violation of U.S.C. §§ 1956(a)(1)(B) 1956(f) of conducting transactions in criminally derived property in violation of U.S.C. § Both prohibit certain transactions involving proceeds “specified unlawful activity.” relevant part, U.S.C. §§ 1956(c)(7)(B)(iv) 1957(f)(3) define “specified unlawful activity” “an offense against a foreign nation involving . . a public official,” violation laws nation.
Thiam, a citizen, Minister Mines Geology Republic Guinea which capacity received $8.5 million bribe Chinese entity return supporting a Chinese joint venture with Guinea. Specifically, spring Guinea entered into negotiations China International Fund (“CIF”), Chinese company, form joint venture would invest various projects Guinea, including mining concessions. As Minister Mines Geology, bore responsibility negotiating many terms joint venture, documented Memorandum Understanding, Framework Agreement, Shareholder’s Agreement.
Approximately two weeks before the Shareholder’s Agreement was executed, Sam Pa (“Pa”), the head of CIF, transferred $3 million into a bank account Thiam’s name at HSBC in Hong Kong. Five days later, a conglomerate associated with CIF reimbursed Pa. Between March and November the conglomerate transferred another $5.5 million Hong Kong account by funneling funds through Pa and other executives. Starting September Thiam transferred cash from his Hong Kong account accounts and transferees, including vendors of various luxury items. Thiam lied banks about employment, nationality, and income when opening accounts Hong Kong and States. defense, testified money received from Pa was undocumented personal loan with interest rate or repayment date. The jury rejected this defense and convicted both counts. This appeal followed.
At trial, government proved violations Articles Code as predicate “offense against a nation involving . . bribery a public official,” as required by §§ 1956(c)(7)(B)(iv) 1957(f)(3). Articles Code criminalize “passive corruption,” or receipt bribes public official, “active corruption,” payment bribes public official, respectively. The government presented sworn affidavit former Guinean Minister Justice law professor University Conakry Guinea explaining meaning elements violation With consent parties, jury instructed regarding accordance affidavit.
DISCUSSION
On appeal, attacks conviction, arguing (i) court’s erroneous failed include relative conviction, (2016); (ii) insufficient (a) 17 2765 a finding a quid pro quo exchange necessary for conviction and (b) a that he committed an “official act” defined McDonnell ; and several evidentiary rulings by were erroneous. reasons below, none arguments has merit.
I. Jury Instructions
“Generally, propriety jury instructions is a matter law is reviewed de novo,” under harmless error standard if defendant objected not. did if standard On error instructions jury plain appeal, jury instructions were erroneous failed apply McDonnell ’s definition “official act” Code, violations were “specified unlawful activity” underlying convictions. reject assertion hold McDonnell does apply Code. Therefore, regardless whether our review is governed by harmless error plain error standard, erroneous for failing include McDonnell ’s language.
The defendant McDonnell former Governor Virginia, indicted on bribery charges stemming from acceptance gifts, loans, benefits Virginia businessman exchange arranging universities Virginia conduct tests on nutritional supplement produced businessman. To obtain conviction charges—honest services fraud Hobbs Act extortion charges—the government required “to show Governor committed (or agreed commit) ‘official act’ loans gifts,” parties agreed use found *6 6 17 2765 in federal statute, 18 § 201(a)(3). [6] On appeal, Supreme Court focused on definition act,” concluded this term should be interpreted narrowly, such “[s]etting up meeting, talking to another official, organizing event (or agreeing to do so)—without more—does not fit [the] definition ‘official act.’” [7]
Principles international comity, however, counsel against applying to 192 194 Code would require us interpret Guinean law and, doing so, limit conduct Guinea has chosen criminalize. The doctrine international comity “is best understood guide where issues be resolved are entangled international relations.” “Under principles international comity, courts ordinarily refuse review acts foreign governments defer proceedings taking place countries, allowing those acts proceedings have extraterritorial effect States.” Although prosecuted Guinea actions, presumably could have been, our interpretation Guinean at issue here should vary depending event. therefore decline undertake such interpretation.
Moreover, arguments contrary notwithstanding, Second Circuit precedent provides applying Code. claims v. Silver case defendant charged honest services fraud Hobbs *7 7 17 2765 Act extortion and to which we applied McDonnell ’s limitations. [10] Although the parties Silver did define “official act” reference to 18 U.S.C. § 201(a)(3), [11] defendants both Silver and McDonnell were charged honest services fraud and Hobbs Act extortion, and definition of “official at issue McDonnell related to those charges. [12] Silver therefore provides applying McDonnell beyond honest services fraud and Hobbs Act extortion charges. Likewise, Boyland applied McDonnell standard to honest services fraud Hobbs Act extortion, but to violations under “more Skelos us points also [13] 666. § U.S.C. 18 expansive” . [14] But Skelos presents straightforward application Silver convictions including honest services fraud conspiracy Hobbs Act extortion. [15] Therefore, none cases provides applying McDonnell Articles 192 194 Code. remaining arguments applying reasoning McDonnell Articles 192 194 Code are unavailing. texts Articles 192 194 are sufficiently similar text 18 U.S.C. § 201 so “favor[]” incorporation McDonnell limitations. Appellant’s Br. at 35. Although texts 192 194 bear some similarity text 18 U.S.C. § 201(a)(3), is unremarkable, given all three relate bribery. Nothing language 192 194, plainly cover more than official acts, compels us to apply McDonnell official act standard those provisions. that two reasons motivating Supreme Court’s
narrow reading McDonnell – concern that broad would chill legitimate activities government officials nod toward federalism – apply this case well. We disagree. McDonnell Supreme Court focused on nature relationship between government officials their constituents, pointing out that “conscientious public officials arrange meetings constituents, contact other officials on their behalf, include them events all time” explaining broad interpretation could lead officials “wonder whether could respond even most commonplace requests assistance” cause “citizens legitimate concerns [to] shrink participating democratic discourse.” Putting aside fact did not hold elected office, nature relationship Guinea Chinese company – constituent or not – does not concern court. Also, is obviously no concern federalism here where conduct issue is one another country has chosen criminalize has bearing state law. reasons, hold McDonnell does apply Code. As result, argument improper necessarily fails.
II. Sufficiency Evidence
‐ argues that there was insufficient evidence (i) to support a finding a quid pro quo exchange (ii) to support a finding that he committed an as defined review challenges the sufficiency evidence de novo “but must uphold the conviction if rational trier fact could have found the essential elements the crime beyond a reasonable doubt.” “Moreover, the jury’s verdict may be based circumstantial evidence, the Government is required preclude every reasonable hypothesis is consistent with innocence.” that there was insufficient evidence support a finding a quid pro quo there was no “advance agreement trade things value governmental action” “making a gratuitous payment as an after ‐ ‐ fact reward job well done” is crime. Appellant’s Br. at But given (i) timing payments, with first coming just two weeks before Shareholder’s Agreement executed others following soon thereafter, (ii) Thiam’s efforts conceal true employment source payments, Thiam’s implausible explanation at trial payments constituted an undocumented interest ‐ free personal loan, there is sufficient evidence finding by quid pro quo exchange. And is merit argument evidence insufficient committed defined light our holding is inapplicable Guinean at issue. III. Evidentiary Challenges
Finally, challenges evidentiary rulings made (i) precluded him playing certain excerpts post arrest interview FBI; (ii) admitted into summary chart showing luxury *10 10 No. 17 ‐ 2765 purchases text between Thiam third party regarding Pa’s incarceration; permitted government cross ‐ examination based noncompliance with reporting requirements, knowledge of Pa’s other bribes, knowledge of corruption Africa. find error with respect these rulings, all of are reviewable under an abuse of discretion standard. [20] argues the district court should have admitted certain excerpts post ‐ arrest interview under the “rule of completeness.” The “rule of
completeness” doctrine under Rule 106 the Federal Rules Evidence provides “omitted portion statement must be placed if necessary explain admitted portion, place admitted portion context, avoid misleading jury, or ensure fair impartial understanding admitted portion.” [21] But it does “require introduction portions statement are neither explanatory nor relevant admitted passages.” [22] district erred when it precluded statements he made interview about role other members Guinean government played negotiations CIF about personal loans received third parties. Because rule completeness “is violated only where admission statement redacted form distorts its meaning excludes information substantially exculpatory declarant,” [23] it within court’s discretion exclude statements. event, testified about matters, so jury had before it information claims was improperly excluded. Therefore, potential error harmless. next challenges admission into evidence summary chart
showing luxury purchases text regarding Pa’s incarceration, arguing district court erred this evidence be more probative than prejudicial. “[O]n review district court decision admit evidence, we generally maximize its probative value minimize its prejudicial effect.” Because this useful understanding Thiam’s motivation accepting bribes consciousness guilt respectively, district court did abuse its discretion admitting it.
Finally, district court erred permitting cross ‐ examination pertained noncompliance reporting requirements, knowledge Pa’s other bribes, general knowledge corruption Africa. Because each these lines questioning related Thiam’s state mind, district did abuse its discretion permitting cross ‐ examination.
CONCLUSION have considered arguments conclude are without
merit. reasons, AFFIRM judgment court.
[*] Judge William H. Pauley III, District Judge Southern District New York, sitting designation.
[2] §§ 1956(a) 1957(a).
[3] Botti 307–08 2013).
[4]
[5] Id.
[6] Id. 2365.
[7] Id.
[8] Jota Texaco, Inc. F.3d 153, (2d Cir. 1998) (quoting re Maxwell Commc’n Corp. F.3d (2d Cir. 1996)).
[9] Fed. Treasury Enter. Sojuzplodoimport Spirits Int ʹ l B.V. 742–43 (internal quotation marks omitted)
[10] F.3d 102, 117–19 (2d Cir. 2017), cert. denied S. Ct. 738 (2018).
[11] Id. at 111.
[12] at 2365.
[13] 290–92 (2d Cir. 2017).
[14] F. App’x (summary order).
[15] Id. 736–37. While Skelos did apply McDonnell’s federal program under § it only government’s theory case based acts.” Id
[16] McDonnell
[17] Our holding case is limited Code. do address ’s application prosecutions under or reach conclusions regarding whether applies all § honest services fraud, Hobbs Act extortion prosecutions.
[18] Silver F.3d (quoting Vernace F.3d (2d Cir. 2016)).
[19] Ogando (internal quotation marks citations omitted).
[20] United States v. Dupre , 462 F.3d 131, 136 (2d Cir. 2006).
[21] States v. Castro F.2d 571, 575–76 (2d Cir. 1987), cert. denied , U.S. (1987).
[22] U.S. Marin F.2d 73, (2d Cir. 1982); see v. Williams ‐ cr, WL *8–10 (2d Cir. July 9, 2019).
[23] Benitez 1086–87 (internal quotation marks omitted).
[24] See Fed. R. Evid.
[25] Coppola (internal quotation marks omitted).