USCA4 Appeal: 22-4268 Doc: 36 Filed: 12/01/2023 Pg: 1 of 15

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4268

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANCIS ARTHUR,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, Senior District Judge. (8:17-cr-00253-PWG-4)

Submitted: November 20, 2023 Decided: December 1, 2023

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Peter L. Goldman, SABOURA, GOLDMAN & COLOMBO, P.C., Alexandria, Virginia; Alex P. Treiger, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Appellant. Erek L. Barron, United States Attorney, Baltimore, Maryland, Christian J. Nauvel, Special Assistant United States Attorney, Thomas M. Sullivan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4268 Doc: 36 Filed: 12/01/2023 Pg: 2 of 15

PER CURIAM:

Francis Arthur was convicted after a jury trial of conspiracy to commit concealment

money laundering, in violation of

(h), four counts of concealment money

laundering, in violation of

(a)(1)(B)(i) (counts 3 through 6), and one count

of promotion and concealment money laundering, in violation of

(a)(1)(A)(i), (B)(i). The district court sentenced Arthur to 12 months and 1 day in

prison and 3 years of supervised release. On appeal, Arthur raises several challenges to his

convictions. We affirm.

Arthur first challenges the district court’s denial of his motion to dismiss the

superseding indictment, arguing that the pretrial removal from the United States of his

codefendant Kelvin Asare violated his rights under the Fifth and Sixth Amendments to

present favorable testimony at trial. The parties debate the standard of review that governs

this claim. Ordinarily, in an appeal of the district court’s ruling on a motion to dismiss an

indictment, we review the district court’s factual findings for clear error and its legal

conclusions de novo. United States v. Barringer,

(4th Cir. 2022). Arthur

contends he adequately preserved this claim in the district court because his motion to

dismiss the superseding indictment was based in part on the due process violation he

experienced because of Asare’s unavailability. Thus, while he did not argue in the district

court that Asare’s unavailability affected his ability to present favorable testimony, he

argues that because the due process claim is preserved that this argument is allowed on

appeal as a new argument supporting a preserved claim. The Government contends Arthur

is raising this claim for the first time on appeal and that plain-error review applies. We

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conclude that, regardless of the standard of review that applies, Arthur cannot prevail on

this claim because he cannot demonstrate that an error occurred.

In United States v. Valenzuela-Bernal, the Supreme Court recognized that the

Executive Branch’s responsibility to faithfully execute the immigration policy adopted by

Congress justifies the prompt removal of individuals without lawful status in the United

States.

(1982). That the Government removes a potential

witness is not by itself sufficient to establish a violation of the Due Process Clause of the

Fifth Amendment or the Compulsory Process Clause of the Sixth Amendment.

. Rather, violation of these rights is established by the defendant making “a

plausible showing that the testimony of the [removed] witness[] would have been material

and favorable to his defense, in ways not merely cumulative to the testimony of available

witnesses.” United States v. Kaixiang Zhu,

(4th Cir. 2017)

(per curiam) (internal quotation marks omitted). We conclude that Arthur has not made

this showing here.

Arthur’s argument that Asare would have furnished material, favorable, and

exculpatory testimony rests on a thin reed. His argument presumes that we accept his

contention that Asare contacted Arthur’s defense counsel before Arthur’s trial—but after

Asare had pleaded guilty to conspiracy to commit bank fraud, served his sentence, and was

removed from the United States—and told counsel that Arthur was unaware of the

conspiracy and that he (Asare) had informed prosecuting attorneys about Arthur’s “lack of

involvement in the conspiracy” during his (Asare’s) plea and sentencing. But the

Government disputed that contention below and disputes it on appeal. The district court

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never resolved the issue, and the record discloses only that the person who spoke with

defense counsel claimed to be Asare. Though this person initially agreed to appear for a

deposition to provide testimony under oath confirming his identity and that defense counsel

had accurately recounted his statements, he ultimately failed to appear for the deposition.

These circumstances, we conclude, counsel against the conclusion that Arthur has

established prejudice from the lack of Asare’s testimony at trial.

Moreover, even if Asare was the person who spoke with defense counsel, and even

if he had appeared and testified at trial that Arthur was unaware of the conspiracy and

lacked involvement in it, Arthur still fails to show prejudice because such testimony

“simply would not have been ‘material and favorable to his defense, in ways not merely

cumulative to the testimony of available witnesses.’” Kaixiang Zhu,

(quoting Valenzuela-Bernal,

). “Evidence is material ‘only if there is a

reasonable likelihood that the testimony could have affected the judgment of the trier of

fact.’”

(quoting Valenzuela-Bernal,

). “Materiality ‘must be evaluated

in the context of the entire record.’”

(quoting Valenzuela-Bernal,

).

Arthur, we conclude, cannot show Asare’s testimony would have been both material

and favorable to his defense in ways not merely cumulative to the testimony of available

witnesses when that testimony is evaluated in the context of the entire record. Asare had

repeatedly inculpated Arthur in his statements to government investigators and admitted

under oath to the district court when pleading guilty that he had conspired with Arthur to

execute a scheme to defraud financial institutions and that Arthur participated in aspects of

that scheme. Of course, at trial, Asare could have disclaimed or renounced these

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admissions and testified that Arthur knew nothing about the conspiracy and lacked

involvement in it. But if Asare had done so, the Government could have impeached that

testimony. And, critically, Arthur’s knowledge or lack thereof of the conspiracy and the

scope of his participation in it were matters that could have been addressed by other

witnesses and, indeed, were addressed by the testimony Arthur and named coconspirator

Samuel Attakora gave at trial. Asare’s testimony, we therefore conclude, was not both

material and favorable to Arthur’s defense in ways not merely cumulative to the testimony

of the available witnesses. Because Arthur fails to show a constitutional error, he cannot

prevail on this claim, under review for plain error or otherwise.

Next, Arthur contends that the district court reversibly erred in refusing to conduct

an in camera review of the Government’s files on Asare. In denying Arthur’s motion to

dismiss the superseding indictment, the district court declined to review the Government’s

files for material subject to disclosure under Brady v. Maryland,

(1963).

“Brady requires the disclosure by the [G]overnment of evidence that is both

favorable to the accused and material to guilt or punishment.” United States v. Caldwell,

(4th Cir. 2021) (cleaned up). In evaluating the district court’s ruling

declining to review the Government’s files for such material, we review the district court’s

legal conclusions de novo and its factual findings for clear error.

. “[W]here a

defendant at least makes some plausible showing that the particular information sought

exists and that it would be both material and favorable to his defense,” he is “entitled to

have the information he has sufficiently identified submitted to the trial court for in camera

inspection and a properly reviewable judicial determination made whether any portions

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meet the material and favorable requirements for compulsory disclosure.”

(cleaned up).

However, “mere speculation that the information may be helpful is insufficient to justify

an in camera review.”

(cleaned up).

We conclude that Arthur fails to show reversible error in this regard. The

Government produced to the defense all memoranda of interviews with Asare and DVDs

containing video recordings of interviews of him conducted by law enforcement it had in

its possession; in those produced materials, Asare made statements that both appeared to

confirm and deny the existence of a conspiracy and that described his relationship with

Arthur in conflicting ways. Although Arthur agrees on appeal that the Government

disclosed these materials, he still maintains that the district court’s review refusal was

erroneous because the Government never produced “the rest of its file on Asare.” This

“file,” Arthur continues, could contain evidence in the form of Asare’s statements that

Arthur was unaware of the fraud. Thus, in Arthur’s view, because he had identified specific

evidence—this “file”—that could contain materially favorable evidence in the form of

Asare’s statements that he was unaware of the fraud, he made a plausible showing requiring

the district court’s in camera review.

We reject this argument. It is premised on the existence of some “file” or portion

containing notes by law enforcement and prosecutors about Asare in the Government’s

possession that it did not disclose. But Arthur has identified nothing in the record tending

to suggest or show that such file or portion indeed exists or, if it exists, contains any such

undisclosed notes about Asare. Arthur’s mere speculation that such file or portion exists

is not enough to meet the plausibility requirement needed for in camera review. Cf. United

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States v. King,

(4th Cir. 2011) (stating that, in making requisite plausible

showing, defendant must identify material with some degree of specificity and concluding

that King made required plausible showing triggering his right to an in camera inspection

by identifying existing transcript of grand jury testimony given by one witness that

Government refused to disclose to defense); Love v. Johnson,

(4th Cir. 1995) (granting in camera examination in response to request for alleged victim’s

existing file with county social services department). We therefore affirm the district

court’s ruling declining to conduct an in camera review. 1

Arthur also contends that the district court reversibly erred in denying his motion

under Fed. R. Evid. 804(b)(3) to introduce into evidence testimony from Asare’s former

attorney Marc Hall about Asare’s statement to him. We review a district court’s ruling on

the admissibility of evidence for abuse of discretion, viewing the “evidence in the light

most favorable to the proponent[ and] maximizing its probative value and minimizing its

prejudicial effect.” Burgess v. Goldstein,

(4th Cir. 2021)

(internal quotation marks omitted). Thus, we “will overturn an evidentiary ruling only if

it is arbitrary and irrational.”

1 Relying on United States v. Abdallah,

(4th Cir. 2018), Arthur also argues that it was error for the district court to rely on the Government’s assurances that all material, exculpatory evidence had been produced. But in Abdallah, we cautioned that the district court “cannot solely ‘rely on the government’s good faith’ as a basis to avoid review” where a defendant has “identifie[d] specific evidence that could plausibly be favorable to his defense.” Abdallah,

(quoting King,

). Here, Abdallah is inapplicable because Arthur has failed to plausibly identify such evidence.

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Rule 804(b)(3) of the Federal Rules of Evidence provides, in relevant part, that a

hearsay statement made by a declarant who is unavailable as a witness may be admitted

into evidence if the statement was one that “a reasonable person in the declarant’s position

would have made only if the person believed it to be true because, when made, it . . . had

so great a tendency to . . . expose the declarant to civil or criminal liability” and if the

statement is “supported by corroborating circumstances that clearly indicate its

trustworthiness.” Fed. R. Evid. 804(b)(3). “Stated otherwise, ‘hearsay may be admitted

under this exception if (1) the declarant is unavailable, (2) the statement is genuinely

adverse to the declarant’s penal interest, and (3) corroborating circumstances clearly

indicate the trustworthiness of the statement.’” United States v. Alvarado,

(4th Cir. 2016) (quoting United States v. Bumpass,

(4th Cir. 1995)).

Arthur’s motion asserted that, after contacting defense counsel, Asare told attorney

Hall that Arthur did not have knowledge about “the conspiracies and unlawful activities

alleged in” the second superseding indictment. We conclude that Arthur cannot prevail on

this claim because Asare’s purported statement does not satisfy the second and third

admissibility requirements under Rule 804(b)(3).

On the second requirement, the Rule only allows the admission of the

self-inculpatory portions of a hearsay statement. Williamson v. United States,

(1994). It does not permit the admission of statements about the roles of

other individuals in the alleged crime.

. “[W]hether a statement is

self-inculpatory or not can only be determined by viewing it in context.”

. The

question under Rule 804(b)(3) “is always whether the statement was sufficiently against

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the declarant’s penal interest that a reasonable person in the declarant’s position would not

have made the statement unless believing it to be true, and this question can only be

answered in light of all the surrounding circumstances.”

(internal quotation

marks omitted).

Asare’s purported statement to attorney Hall was made after Asare had pleaded

guilty, been sentenced, served his sentence, and been removed from the United States. As

the district court determined, and as the parties do not dispute on appeal, at the time of this

statement, Asare was beyond the reach of the United States to bring him back for further

criminal charges. Given these circumstances, Arthur’s argument that Asare’s statement

was inculpatory for Asare lacks merit because the statement was not against his penal

interest. See, e.g., United States v. Grajales-Montoya,

(8th Cir. 1997)

(finding it illogical for defendant to argue that statement by wife regarding defendant’s

lack of criminal involvement was inculpatory to wife because wife’s statements about

defendant’s role would not have subjected wife to increased criminal liability).

Moreover, even if this statement was against Asare’s penal interest, Rule 804(b)(3)

also requires that such statement be supported by corroborating circumstances for it to be

admitted. In determining whether such circumstances are present, we consider:

(1) whether the declarant had at the time of making the statement pled guilty or was still exposed to prosecution for making the statement, (2) the declarant’s motive in making the statement and whether there was a reason for the declarant to lie, (3) whether the declarant repeated the statement and did so consistently, (4) the party or parties to whom the statement was made, (5) the relationship of the declarant with the accused, and (6) the nature and strength of independent evidence relevant to the conduct in question.

United States v. Dargan,

(4th Cir. 2013).

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Considered together, the circumstances here show the corroboration requirement

was not met. Although Asare’s purported statement to attorney Hall was consistent with

what defense counsel claimed Asare had told him, it deviated from both Asare’s statements

to investigators that inculpated Arthur and his statements inculpating Arthur made to the

district court under oath in connection with his guilty plea. Additionally, this unsworn

statement to attorney Hall was made after Asare had served his sentence and was beyond

the reach of the Government to further prosecute him, and no evidence suggests he was or

is exposed to prosecution for making that statement. Further, we conclude after review

that the evidence adduced at trial does not provide strong support for Asare’s purported

statement. Given the absence here of corroborating circumstances, the district court did

not reversibly err in denying Arthur’s motion.

Arthur next challenges the district court’s decision to instruct the jury on willful

blindness over his objection. We review the district court’s decision to instruct the jury on

willful blindness for abuse of discretion. United States v. Vinson,

(4th Cir. 2017). “The willful blindness doctrine is premised on the idea that defendants

should not be permitted to ‘escape the reach’ of criminal statutes that require proof that a

defendant acted knowingly or willfully ‘by deliberately shielding themselves from clear

evidence of critical facts that are strongly suggested by the circumstances.’” United

States v. Oloyede,

(4th Cir. 2019) (quoting Global-Tech Appliances,

Inc. v. SEB S.A.,

(2011)). To ensure that the willful blindness doctrine

retains “an appropriately limited scope that surpasses recklessness and negligence,” its

application has “two basic requirements: (1) the defendant must subjectively believe that

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there is a high probability that a fact exists and (2) the defendant must take deliberate

actions to avoid learning of that fact.”

(quoting Global-Tech Appliances, 564 U.S. at

769).

In deciding to instruct the jury on willful blindness here, the district court found

both requirements had been satisfied. On appeal, Arthur challenges the district court’s

determination on only the second prong, arguing the instruction was unwarranted because

there was no evidence that he took deliberate action to avoid learning of a scheme to

defraud a credit union. We disagree. The evidence justified the instruction because it

amply allowed the inference that Arthur “t[oo]k[] deliberate actions to avoid learning of”

the fraud. Global-Tech Appliances,

. The Wells Fargo bank account

associated with corporation Anivac—which did not do any business—on which Arthur was

the sole signatory received a fraudulently made wire transfer of $327,000 from a Nymeo

Federal Credit Union account after Arthur was present during a meeting with Attakora and

Asare where an imposter was shown fake credentials needed to effect the transfer from the

Nymeo account to the Wells Fargo account.

On cross examination, Arthur admitted he was nervous about these funds and feared

his dealings with Attakora and Asare could result in the involvement of law enforcement.

Despite this nervousness, however, Arthur was careful not to confirm the details of the

operation. Although he traveled with Asare and Attakora from Maryland to meet with the

imposter in Atlanta, Georgia, he never asked questions about why the trio had traveled

there. Arthur never contacted the Nymeo account holder after the $327,000 transfer had

been made. Further, there was evidence suggesting that Arthur’s reason for distributing

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funds out of the account was to avoid having to deal with funds identified as fraudulently

transferred. Although Arthur argues that he took affirmative steps to discover the source

of the funds, the jury was not required to believe his testimony. See Oloyede,

. Thus, because the jury could have reasonably inferred from all of this that Arthur

took deliberate actions to discern the source of the funds, we discern no reversible error in

the district court’s decision to instruct the jury on willful blindness.

Finally, Arthur challenges the district court’s denial of his post-trial motion for a

judgment of acquittal or a new trial. He argues that the evidence is insufficient to support

his convictions because the Government failed to prove he knew the funds in the Anivac

Wells Fargo account that he distributed were proceeds of unlawful activity. He also

contends that he is independently entitled to acquittal on counts 3 through 6 because the

Government failed to prove he withdrew funds through cashiers checks and made a cash

withdrawal knowing such transactions were designed to conceal proceeds of unlawful

activity.

We review de novo the denial of a Fed. R. Crim. P. 29(c) motion for a judgment of

acquittal after a guilty verdict. United States v. Young,

(4th Cir. 2019).

In assessing the sufficiency of the evidence, we determine whether there is substantial

evidence to support the verdict when viewed in the light most favorable to the Government.

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.”

(internal quotation marks omitted) (quoting United States v. Howard,

(4th Cir. 2014)). In assessing whether substantial evidence is present, we are

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“‘not entitled to assess witness credibility’ and must ‘assume that the jury resolved any

conflicting evidence in the prosecution’s favor.’” United States v. Robinson,

(4th Cir. 2022) (quoting United States v. Savage,

(4th Cir. 2018)).

Defendants “bear[] a heavy burden” under this standard, and “appellate reversal on grounds

of insufficient evidence is confined to cases where the prosecution’s failure is clear.”

Savage,

.

To obtain a conviction for money laundering conspiracy violating

(h), the Government had to prove: (1) the existence of an agreement between two or

more persons to commit one or more of the substantive money laundering offenses

proscribed under 18 U.S.C § 1956(a) or § 1957; (2) that the defendant knew that the money

laundering proceeds had been derived from an illegal activity; and (3) the defendant

knowingly and voluntarily became part of the conspiracy. United States v. Green,

(4th Cir. 2010). Concealment money laundering requires, inter alia, proof that

the defendant knew that the property involved represented the proceeds of some form of

unlawful activity, United States v. Farrell,

(4th Cir. 2019), and “proof

‘that the defendant knew that the transaction was designed in whole or part, to conceal or

disguise the nature, the location, the source, the ownership, or the control of the proceeds

of the unlawful activity,’” United States v. Millender,

(4th Cir. 2020)

(quoting Farrell,

).

We review the district court’s decision whether to grant a new trial for abuse of

discretion. Id. at 531. Under Fed. R. Crim. P. 33, the district court “may vacate any

judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a).

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“But a court should exercise its discretion to grant a new trial sparingly, [and a] new trial

is warranted only when the evidence weighs so heavily against the verdict that it would be

unjust to enter judgment.” Millender,

(cleaned up).

We conclude after review that the Government presented sufficient evidence to

show Arthur knew the funds in the Anivac Wells Fargo account that he distributed were

the proceeds of unlawful activity. Arthur established a corporation that did no business,

opened a bank account associated with it in which funds could be deposited, distributed

fraudulently transferred funds to coconspirators, expected to receive a portion of the funds,

and held suspicion about the nature of the funds and fear of the police as a result of the

funds being present in the account yet nonetheless processed the distribution of funds out

of the account. Attakora’s testimony directly implicated Arthur as a knowing and

voluntary participant in the fraud scheme and distributions and confirmed Arthur

understood that, after the imposter used fraudulent documentation to effect the wire transfer

of funds into the Anivac account, that his (Arthur’s) role was to distribute funds out of the

account. Attakora’s testimony addressing the timing of and motivation for moving funds

out of the Anivac account also allowed the jury to infer that the transactions distributing

the funds were performed in order to conceal from Wells Fargo their unlawful nature, see

(a)(1)(B)(i); see Millender,

(noting that transactions

supporting conviction need not conceal source of proceeds if they conceal the nature of

proceeds and upholding conviction where jury could reasonably find that false purposes

noted on checks were designed to make funds look like lawful reimbursements).

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While Arthur criticizes Attakora’s testimony as vague and inconsistent, it is the jury,

not this court, that weighs the credibility of the evidence and resolves any conflicts in the

evidence presented, Caldwell,

, and the jury’s credibility determinations are

not susceptible to judicial review, Robinson, 55 F.4th at 404. The jury heard from Attakora

(as a witness for both the prosecution and the defense) and Arthur himself. Both Attakora

and Arthur were cross-examined, and the jury could assess the credibility of the testimony

given by each. Because we decline to second-guess the jury’s determination, Robinson,

55 F.4th at 404, Arthur’s credibility challenge provides no basis for him to receive relief

on appeal. Arthur fails to show the evidence weighs so heavily against the jury’s verdict

or a lack of substantial evidence supporting the verdict. The district court thus did not

reversibly err in denying his post-trial motion for a judgment of acquittal or a new trial.

Accordingly, we affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED

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