UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4020

MUJAHID NASIRUDDIN, a/k/a John

Crooks,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Richard L. Williams, Senior District Judge.

(CR-97-223-A)

Submitted: August 4, 1998

Decided: August 25, 1998

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mark D. Kielsgard, Tamara Crouch, KIELSGARD & CROUCH,

P.C., Fairfax, Virginia, for Appellant. Helen F. Fahey, United States

Attorney, Thomas G. Connolly, Assistant United States Attorney,

Robert A. Spencer, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Mujahid Nasiruddin appeals his conviction after a jury trial and

sentence for aggravated sexual abuse, in violation of 18 U.S.C.A.

§ 2241 (West Supp. 1998), for his rape of a fifty-four-year-old mentally retarded woman on the grounds of Fort Belvoir, Virginia. On

appeal, Nasiruddin alleges that the district court erred when it: refused

to instruct the jury on the offense of sexual abuse as a lesser included

offense of aggravated sexual abuse, gave him a sentencing enhancement based upon his perjury at trial, denied his request for materials

concerning the victim's medical and psychological history, and allegedly limited his cross-examination of the victim. Finding no error, we

affirm.

At his trial, Nasiruddin asked the court to instruct the jury on sexual abuse, 18 U.S.C.A. § 2242 (West Supp. 1998), as a lesser

included offense of aggravated sexual abuse by force. The district

court declined to give the requested instruction. On appeal, Nasiruddin contends that the district court abused its discretion in failing to

grant the lesser included offense instruction because sexual abuse

involves the same operative offense, a non-consensual sexual act.

Nasiruddin argues that because sexual abuse is a less egregious form

of the operative criminal behavior, it should be a lesser included

offense.

While this court has not specifically addressed the issue, an analysis of the statutes supports the district court's decision to decline to

give the sexual abuse instruction.1 Aggravated sexual abuse,

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1 This court has addressed the differences between 18 U.S.C.A. § 2241

and 18 U.S.C.A. § 2242 in a different context. In United States v.

Williams, 89 F.3d 165 (4th Cir. 1996), the defendant was charged with

one count of aggravated sexual abuse and one count of sexual abuse. The

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§ 2241(a), requires use of force or fear of kidnaping, serious bodily

injury, or death. See 18 U.S.C.A. § 2241.2 Sexual abuse does not

require the same type of fear required for aggravated sexual abuse.

Sexual abuse is committed when a person causes another to engage

in a sexual act by threatening or placing that other person in fear,

other than the type of fear specified in § 2241. See 18 U.S.C.A. § 2242.3

These statutes define different types of fear. The fear involved in the

sexual abuse statute is not the same as that required by the aggravated

sexual abuse statute. Therefore, we find that sexual abuse is not a

lesser included offense of aggravated sexual abuse. See, e.g., United

States v. Hourihan, 66 F.3d 458, 465 (2d Cir. 1995), cert. denied, 516

U.S. 1135 (1996); United States v. Boyles, 57 F.3d 535, 544 (7th Cir.

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defendant argued that the Government should have been directed by the

district court to elect between the two counts because they were contradictory. The court rejected the election argument and found that although

the charges were not completely contradictory as a matter of law, under

the facts presented at trial, there was insufficient evidence to submit the

sexual abuse charge to the jury. The court recognized, however, that

§ 2241 and § 2242 were two separate and distinct crimes with separate

elements. See Williams, 89 F.3d at 167-68. Because the court found that

there was sufficient evidence to convict for the aggravated sexual abuse

charge and insufficient evidence to support the sexual abuse charge, the

court impliedly found that the elements of sexual abuse are not a subset

of aggravated sexual abuse.

2 Section 2241(a) defines aggravated sexual abuse by force or threat as:

(a) By force or threat. Whoever . . . knowingly causes another

person to engage in a sexual act--

(1) by using force against that other person; or

(2) by threatening or placing that other person in fear that any

person will be subjected to death, serious bodily injury, or kidnaping . . . .

3 Section 2242(1) defines sexual abuse as:

Whoever . . . knowingly (1) causes another person to engage in

a sexual act by threatening or placing that other person in fear

(other than by threatening or placing that other person in fear

that any person will be subjected to death, serious bodily injury,

or kidnaping) . . . .

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1995); United States v. Sneezer, 983 F.2d 920, 923-24 (9th Cir. 1992);

United States v. Amos, 952 F.2d 992, 994 (8th Cir. 1991).

Nasiruddin next argues that the district court erred in giving him

a sentencing enhancement for perjury at trial. Nasiruddin argues that

the district court's finding of perjury was based upon the fact that he

testified on his own behalf, put forth a consent defense, and still was

convicted. During the investigation, Nasiruddin told an FBI agent that

he did not have sexual intercourse with the victim. At trial, Nasiruddin admitted that he did have sexual intercourse with the victim, but

contended that it was consensual.

A two-level increase may be applied under Sentencing Guideline

§ 3C1.1, which applies "[i]f the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of

justice during the investigation, prosecution, or sentencing of the

instant offense . . . ." U.S. Sentencing Guidelines Manual § 3C1.1

(1997). Perjury is conduct that warrants the enhancement. See U.S.

Sentencing Guidelines Manual § 3C1.1 n.3. An enhancement for perjury is sufficient if the court's finding "`encompasses all of the factual

predicates for a finding of perjury.'" United States v. Castner, 50 F.3d

1267, 1279 (4th Cir. 1995) (quoting United States v. Dunnigan, 507

U.S. 87, 94-95 (1993)). The court must find that a defendant "`gave

false testimony concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion, mistake,

or faulty memory.'" Id. The court found that "there was no doubt that

the defendant provided false testimony." J.A. 344. It further found

that Nasiruddin "testified that the victim consented to his sexual

assault. Given his original story that he did not even have sexual relations with the victim, it was obvious that he was trying to perpetrate

a fraud on the Court when he now takes a backup position that the

sex between the two was consensual." Id. Therefore, the district court

found that Nasiruddin's testimony was willfully false and involved

material matters. These findings were sufficient as a matter of law,

and were not clearly erroneous. See Castner, 50 F.3d at 1279.

Next, Nasiruddin argues that the district court violated denied his

Fourteenth and Fifth Amendment due process rights and his Sixth

Amendment right to confront witnesses against him when it refused

his discovery request for the victim's medical and psychological

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records and by limiting his cross-examination of the victim. The district court's refusal to order the Government to provide all requested

pre-trial discovery materials is reviewed for abuse of discretion. See

United States v. Fowler, 932 F.2d 306, 311 (4th Cir. 1991). The district court's decision, after in camera inspection, denying the defendant access to Giglio material4 is reviewed for clear error. See United

States v. Trevino, 89 F.3d 187, 193 (4th Cir. 1996). Limitations on the

defendant's cross-examination of government witnesses are reviewed

on appeal for an abuse of discretion. See United States v. McMillon,

14 F.3d 948, 955-56 (4th Cir. 1994).

On appeal, Nasiruddin specifically assigns error to the denial of

any discovery materials relating to the victim's competency and credibility, including medical and psychological records documenting the

degree of the victim's mental disability. Nasiruddin argues that with

this information, he could have addressed issues relating to the demonstration of any relevant perceptual, psychological, or mental health

issues, such as past fabrications of similar claims. Nasiruddin also

claims that he should have received the medical records concerning

an alleged sterilization procedure undergone by the victim. He views

the sterilization records as relevant to the extent that they would have

served to impeach a physician's report from the night of the incident

indicating that there was recent damage to the victim's hymenal ring.

At the hearing on the Defendant's motion for expanded discovery,

the Government stated that it was not in possession of the victim's

medical and psychological records and that it had no information that

the victim had ever made any allegations of past sexual assaults. The

Government volunteered to obtain the victim's medical records from

her father and review them to determine if they constituted Brady5 or

Giglio material. After reviewing the medical records, the Government

submitted two documents to the district court for in camera review to

determine whether they constituted Brady or Giglio material,

although in the Government's opinion, they did not. The defense

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4 In Giglio v. United States , 405 U.S. 150 (1972), the Supreme Court

held that when reliability of a witness may be determinative of guilt or

innocence, non-disclosure of evidence that affects credibility is a denial

of due process.

5 Brady v. Maryland, 373 U.S. 83 (1963).

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agreed to the in camera review procedure. After reviewing the material, the court determined that the records were not appropriate for

discovery.

In its motion requesting in camera review of the materials, the

Government described the records and discussed why they did not

constitute Brady or Giglio materials.6 One of the documents was

related to the alleged sterilization procedure. It appears that the disputed documents were neither material to constructing a defense nor

favorable to Nasiruddin. In fact, the information appears to have been

favorable to the Government and consistent with the facts proved at

trial. We therefore find that the district court did not clearly err in

refusing to allow Nasiruddin access to the materials.

Finally, Nasiruddin alleges that the trial court erroneously intervened and limited his attempt at a meaningful cross-examination of

the victim. Nasiruddin identifies four times that the trial judge, sua

sponte, interrupted the cross-examination. Nasiruddin states that

because the victim was mentally disabled and her answers were unresponsive, disjointed, confused, and ambiguous, the district court

should have provided him with great latitude and flexibility in conducting his cross-examination. Nasiruddin alleges that the district

court's limitation of his cross-examination was a violation of his Sixth

Amendment right to confront witnesses against him.

The trial court exercises control over the interrogation of witnesses

so that truth is efficiently ascertained while protecting witnesses from

harassment or undue embarrassment. See Fed. R. Evid. 611(a). After

reviewing the trial transcript, we find that the district court did not err

in its limitation of cross-examination of the victim. The court provided the defense a full opportunity to cross-examine and impeach the

victim. A review of the interruptions by the trial court reveals that the

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6 In its brief on appeal, the Government states that the two documents

submitted to the district court for in camera review are included in the

record. These documents were not included in the joint appendix, however. Because the Defendant was provided with a copy of the motion,

and does not dispute the Government's characterization of the two documents, we rely upon the information provided in the Government's

motion.

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defense was instructed to ask a question one last time after asking the

question several times and receiving confusing answers from the victim, to refrain from giving the witness a pep talk, to move along the

cross-examination after a lengthy pause, and not to repeat the victim's

responses. These admonitions did not limit or violate Nasiruddin's

Sixth Amendment right to confront witnesses.

We therefore affirm the conviction and sentence. We grant

Nasiruddin's motion to file a pro se supplemental brief and note that

the lesser included offense issue raised in the pro se supplemental

brief has been addressed above. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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