United States v. Arthur

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANCIS ARTHUR, Defendant-Appellant.

No. 22-4268

United States Court of Appeals, Fourth Circuit

December 1, 2023

UNPUBLISHED

Submitted: November 20, 2023

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)

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.

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM

Francis Arthur was convicted after a jury trial of conspiracy to commit concealment money laundering, in violation of 18 U.S.C. § 1956(h), four counts of concealment money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (counts 3 through 6), and one count of promotion and concealment money laundering, in violation of 18 U.S.C § 1956(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, 25 F.4th 239, 246 (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 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. 458 U.S. 858, 863-65, 872-73 (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. Id. at 872-73. 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, 854 F.3d 247, 254, 256 (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 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, 854 F.3d at 256 (quoting Valenzuela-Bernal, 458 U.S. at 873). "Evidence is material 'only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact.'" Id. (quoting Valenzuela-Bernal, 458 U.S. at 874). "Materiality 'must be evaluated in the context of the entire record.'" Id. (quoting Valenzuela-Bernal, 458 U.S. at 868).

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 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, 373 U.S. 83 (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, 7 F.4th 191, 207 (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. Id. at 208. "[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 meet the material and favorable requirements for compulsory disclosure." Id. (cleaned up). However, "mere speculation that the information may be helpful is insufficient to justify an in camera review." Id. (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...