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United States v. Thiam

United States Court of Appeals, Second Circuit

August 5, 2019

United States of America, Appellee,
v.
Mahmoud Thiam, Defendant-Appellant.

          Argued: October 9, 2018

          Appeal from the United States District Court for the Southern District of New York. No. 17-cr-00047 (DLC) - Denise L. Cote, Judge.

         Defendant Mahmoud Thiam ("Thiam") appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before Denise L. Cote, Judge, convicting him of money laundering and conducting transactions in property criminally derived through bribery in the Republic of Guinea. On appeal, Thiam challenges his conviction, arguing (i) that the district court's jury instructions were erroneous because they failed to include the definition of "official act" relative to a bribery conviction, as set forth in McDonnell v. United States, 136 S.Ct. 2355 (2016); (ii) that there was insufficient evidence (a) to support a finding of a quid pro quo exchange necessary for his conviction and (b) to support a finding that he committed an "official act" as defined in McDonnell; and (iii) that several evidentiary rulings by the district court were erroneous. For the reasons set forth below, we AFFIRM the judgment of the district court.

          Elisha J. Kobre (Christopher J. DiMase, Daniel B. Tehrani, on the brief), Assistant United States Attorneys, Lorinda I. Laryea, Trial Attorney, Fraud Section, Criminal Division, United States Department of Justice, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

          Jonathan I. Edelstein, Edelstein & Grossman, New York, NY, for Defendant-Appellant.

          Before: Walker and Lohier, Circuit Judges, and Pauley, District Judge. [1]

          JOHN M. WALKER, JR., CIRCUIT JUDGE.

         Defendant Mahmoud Thiam ("Thiam") appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before Denise L. Cote, Judge, convicting him of money laundering and conducting transactions in property criminally derived through bribery in the Republic of Guinea. On appeal, Thiam challenges his conviction, arguing (i) that the district court's jury instructions were erroneous because they failed to include the definition of "official act" relative to a bribery conviction, as set forth in McDonnell v. United States, 136 S.Ct. 2355 (2016); (ii) that there was insufficient evidence (a) to support a finding of a quid pro quo exchange necessary for his conviction and (b) to support a finding that he committed an "official act" as defined in McDonnell; and (iii) that several evidentiary rulings by the district court were erroneous. For the reasons set forth below, we AFFIRM the judgment of the district court.

         BACKGROUND

         Thiam appeals from a judgment, after a jury trial, convicting him of money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B) and 1956(f) and of conducting transactions in criminally derived property in violation of 18 U.S.C. § 1957. Both statutes prohibit certain transactions involving proceeds of "specified unlawful activity."[2] In relevant part, both 18 U.S.C. §§ 1956(c)(7)(B)(iv) and 1957(f)(3) define "specified unlawful activity" as "an offense against a foreign nation involving . . . bribery of a public official," in violation also of the laws of that foreign nation.

         Thiam, a United States citizen, was Minister of Mines and Geology of the Republic of Guinea in 2009 and 2010, in which capacity he received an $8.5 million bribe from a Chinese entity in return for supporting a Chinese joint venture with Guinea. Specifically, in the spring of 2009, Guinea entered into negotiations with the China International Fund ("CIF"), a Chinese company, to form a joint venture that would invest in various projects in Guinea, including mining concessions. As Guinea's Minister of Mines and Geology, Thiam bore responsibility for negotiating many of the terms of the joint venture, which was documented by a Memorandum of Understanding, a Framework Agreement, and a 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 in Thiam's name at HSBC in Hong Kong. Five days later, a conglomerate associated with CIF reimbursed Pa. Between March and November 2010, the conglomerate transferred another $5.5 million to Thiam's Hong Kong account by funneling the funds through Pa and other executives. Starting in September 2009, Thiam transferred cash from his Hong Kong account to accounts in the United States and to other transferees, including vendors of various luxury items. Thiam also lied to banks about his employment, nationality, and income when opening accounts in Hong Kong and the United States. In his defense, Thiam testified at trial that the money he received from Pa was an undocumented personal loan with no interest rate or repayment date. The jury rejected this defense and convicted Thiam on both counts. This appeal followed.

         At trial, the government proved violations of Articles 192 and 194 of Guinea's Penal Code as the predicate "offense against a foreign nation involving . . . bribery of a public official," as required by 18 U.S.C. §§ 1956(c)(7)(B)(iv) and 1957(f)(3). Articles 192 and 194 of Guinea's Penal Code criminalize "passive corruption," or the receipt of bribes by a public official, and "active corruption," or the payment of bribes to a public official, respectively. The government presented a sworn affidavit from a former Guinean Minister of Justice and law professor at the University of Conakry in Guinea explaining the meaning and elements of a violation of Articles 192 and 194. With the consent of both parties, the jury was instructed regarding Articles 192 and 194 in accordance with this affidavit.

         DISCUSSION

         On appeal, Thiam attacks his conviction, arguing (i) that the district court's jury instructions were erroneous because they failed to include the definition of "official act" relative to a bribery conviction, as set forth in McDonnell v. United States, 136 S.Ct. 2355 (2016); (ii) that there was insufficient evidence (a) to support a finding of a quid pro quo exchange necessary for his conviction and (b) to support a finding that he committed an "official act" as defined in McDonnell; and (iii) that several evidentiary rulings by the district court were erroneous. For the reasons set forth below, none of these arguments has merit.

         I. Jury Instructions

         "Generally, the propriety of jury instructions is a matter of law that is reviewed de novo," under a harmless error standard if the defendant objected to the jury instructions at trial and a plain error standard if he did not.[3] On appeal, Thiam argues that the jury instructions were erroneous because they failed to apply McDonnell's definition of "official act" to Articles 192 and 194 of Guinea's Penal Code, violations of which were the "specified unlawful activity" underlying Thiam's convictions. We reject this assertion and hold that McDonnell does not apply to Articles 192 and 194 of Guinea's Penal Code. Therefore, regardless of whether our review is governed by the harmless error or plain error standard, the jury instructions were not erroneous for failing to include McDonnell's "official act" language.

         The defendant in McDonnell, a former Governor of Virginia, was indicted on bribery charges stemming from his acceptance of gifts, loans, and other benefits from a Virginia businessman in exchange for arranging for universities in Virginia to conduct tests on a nutritional supplement produced by the businessman.[4] To obtain a conviction on the bribery charges-honest services fraud and Hobbs Act extortion charges-the government was required "to show that Governor McDonnell committed (or agreed to commit) an 'official act' in exchange for the loans and gifts, "[5] and the parties agreed to use the definition of "official act" found in the federal bribery statute, 18 U.S.C. § 201(a)(3).[6] On appeal, the Supreme Court focused on the definition of "official act," and concluded that this term should be interpreted ...


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