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
...