2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-4-2012

USA v. Mohammad Vaghari

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2648

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-2648

_____________

UNITED STATES OF AMERICA

v.

MOHAMMAD REZA VAGHARI,

 Appellant

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. No. 08-cr-00693-001)

District Judge: Honorable Jan E. Dubois

____________

Submitted Under Third Circuit LAR 34.1(a)

September 13, 2012

____________

Before: SCIRICA, ROTH and BARRY, Circuit Judges

(Opinion Filed: October 4, 2012)

____________

OPINION

____________

BARRY, Circuit Judge

Mohammad Vaghari (“Vaghari”), an Iranian citizen who resided in Pennsylvania

prior to his arrest, appeals from his conviction for conspiracy to violate the International 

Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701, et seq., and three 
2

related counts arising from his scheme to illegally export various goods and technology 

to Iran. We will affirm. 

I. Background

IEEPA grants the President of the United States the authority, upon the declaration 

of a national emergency caused by a foreign threat, to “prevent or prohibit any . . . 

importation or exportation of . . . any property in which any foreign country or a national 

thereof has any interest.” 50 U.S.C. § 1702(a)(1)(B). Pursuant to this statute, successive 

Presidents have long imposed a comprehensive trade embargo on Iran. In addition to 

banning the export of goods and technology directly to Iran from the United States, the 

embargo prohibits so-called “transshipping,” whereby goods are exported to a friendly 

country and then re-routed to Iran. It is unlawful for any person to “violate . . . any 

license, order, regulation, or prohibition issued under [IEEPA],” and violators are subject 

to up to twenty years in prison. 50 U.S.C. § 1705. 

Vaghari first came to the attention of law enforcement officials in July 2005 after 

the FBI received a tip from a salesman at a U.S.-based company called Beckman Coulter, 

which specializes in the manufacture of centrifuges. That salesman, Thomas Frantz 

(“Frantz”), had been contacted by Vaghari about the purchase of a $100,000 centrifuge. 

During several subsequent phone conversations, Vaghari said that he would make the 

purchase in cash, and asked that the centrifuge, which weighed 1,100 pounds, be 

delivered to his basement apartment. He also said that he was “a middleman” who was 

purchasing the centrifuge for someone else, but refused to identify the end-user. When 
3

Frantz informed him that Beckman Coulter would not make the sale without knowing the 

identity of the end-user, Vaghari ceased all contact. Based on these conversations, Frantz 

became suspicious and contacted the FBI. 

Acting on this tip, two FBI agents visited Vaghari at his apartment on October 28, 

2005. The agents spoke with Vaghari about the company he founded, Saamen Company

LLC, which he described as an import/export business specializing in shipping goods to 

Dubai. In response to the agents’ questions, Vaghari stated that he did not export 

anything to Iran and knew that doing so was illegal. As the agents were leaving, they 

asked Vaghari if they could take with them certain documents from his home office so 

that they could better understand his business, and a consent search ensued. Upon being 

translated and reviewed, these documents revealed a scheme in which Vaghari received

orders for American-based goods from contacts in Iran, purchased the goods himself, and 

then transshipped them to customers in Iran via Dubai. On the basis of this information, 

a search warrant for Vaghari’s apartment was obtained. On December 13, 2005, federal 

agents executed the warrant and removed ten boxes of documents, files, and other items.1

On September 16, 2010, a grand jury returned a superseding indictment against 

Vaghari and a co-conspirator, Mir Hossein Ghaemi. Count One charged Vaghari with 

conspiracy to violate IEEPA, and Counts Two through Four charged substantive 

violations of IEEPA. Vaghari also was charged with naturalization fraud, in violation of 

 1 During this search, the FBI was unable to locate any documents related to Saamen 

Company on Vaghari’s computer, as the hard drive had been replaced five days after the 

agents’ initial visit. One week later, the FBI obtained a search warrant for Vaghari’s email account, only to discover that all e-mails had been deleted from the account.
4

18 U.S.C. § 1425 (Count Five), and possessing a green card procured by fraud, in 

violation of 18 U.S.C. § 1546 (Count Six). Vaghari moved to suppress the documents

recovered in the initial search on the ground that his consent had not been voluntarily 

given. He further argued that because the warrant for the second search was obtained 

based on information obtained from the documents, that search, too, was tainted. The 

District Court held a day-long hearing and subsequently denied the motion in a detailed 

written opinion.

The case proceeded to trial. During its case-in-chief, the government called 42 

witnesses and introduced some 220 documents into evidence. The defense also presented 

a case, during which Vaghari testified. Following lengthy closing arguments, discussed 

in greater detail below, the jury deliberated for eight days, eventually returning a verdict 

finding Vaghari guilty on Counts One, Two, Three, and Five. At sentencing, the District 

Court applied a two-level enhancement for obstruction of justice based on its finding that 

Vaghari perjured himself during his trial testimony. Vaghari was sentenced to 33 

months’ imprisonment, and appealed. We will address each of the numerous issues 

Vaghari has raised to us on appeal. 

II. Discussion2

A. Prosecutorial Misconduct

Vaghari argues, first, that he was denied his right to a fair trial because of three 

types of prosecutorial misconduct: (1) excessive and inflammatory references to his 

 2 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction 

pursuant to 28 U.S.C. § 1291.
5

statements and acts as “lies”; (2) vouching for government witnesses; and (3) arguing 

during closing facts not supported by the evidence. Because Vaghari did not raise a 

contemporaneous objection to the first two types of purported misconduct, our review is 

for plain error. Fed. R. Crim. P. 52(b); United States v. Bethancourt, 65 F.3d 1074, 1079-

80 (3d Cir. 1995). He did object to the prosecution’s closing argument on the ground that 

it relied on facts not in evidence, an objection which was overruled. We review that

ruling for abuse of discretion. United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001). 

If prosecutorial misconduct did occur, we apply the harmless error standard in the context 

of the record as a whole. United States v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000).

1. Excessive and Inflammatory Argument

Vaghari argues that the government’s opening and closing arguments were 

improper insofar as they repeatedly referred to various of his statements and actions as 

“lies.” He concedes that “[u]se of the words ‘liar’ and ‘lie’ to characterize disputed 

testimony when the witness’s credibility is clearly in issue is ordinarily not improper,” 

(Appellant’s Br. 19), but argues that the government’s comments on his credibility were 

so excessive and inflammatory that he was denied a fair trial. Specifically, he points out 

that the government used the word “lie”—or some derivation thereof—approximately 

twenty times during its opening statement and sixty or more times during its opening and 

rebuttal summations. 

Although “the adversary system permits the prosecutor to prosecute with 

earnestness and vigor,” attorneys also have a “duty to refrain from overzealous conduct.” 
6

United States v. Young, 470 U.S. 1, 7 (1985) (citation and internal quotations omitted). 

“In other words, while [a prosecutor] may strike hard blows, he is not at liberty to strike 

foul ones.” Id. Where, as here, a prosecutor describes a defendant’s statements as “lies” 

during argument to the jury, courts must determine whether such statements exceed the 

bounds of acceptable advocacy. In considering this question, we have held that it is not 

improper for a prosecutor to refer to a defendant’s testimony as “lies” so long as this 

characterization is “a fair comment on the evidence adduced at trial” and not an 

“inflammatory expression of a prosecutor’s personal belief.” United States v. Reilly, 33 

F.3d 1396, 1421 (3d Cir. 1994) (citation and internal quotations omitted). Applying this 

standard, we conclude that although the “blows” inflicted by the government were both 

frequent and hard, they were not foul.

As an initial matter, the government’s focus on Vaghari’s misrepresentations was 

warranted, as this case turned on his credibility. The very essence of Counts Five and Six 

was that Vaghari lied on his naturalization form and green card application, respectively. 

As to the IEEPA violations charged in Counts One through Four, the keys to avoiding 

detection and a successful scheme were Vaghari’s misrepresentations, on shipping forms 

and in statements to federal agents, that the goods were intended for delivery to Dubai 

and not Iran. Indeed, this was Vaghari’s primary defense at trial, and he testified—in the 

face of extensive circumstantial evidence to the contrary—that the goods he shipped 

overseas were “supposed to go to Dubai and stay in Dubai.” (J.A. 3433.) The jury 

therefore was faced with a stark choice: either accept Vaghari’s story and acquit him of 
7

the charges, or reject this explanation as not credible and find him guilty. Because so 

much hinged on the jury’s view of Vaghari’s credibility, the prosecution was justified in 

emphasizing credibility issues in its arguments to the jury. 

Nor is the number of references to “lies” or “lying,” standing alone, proof of 

prosecutorial misconduct. This is especially true here, where the government gave a 

three and one-half hour opening summation and an hour-long rebuttal. In the context of 

this marathon argument, the government’s remarks about Vaghari’s credibility were 

neither pervasive nor overly repetitious, and the sheer number of times the word “lies” 

was mentioned cannot be viewed as indicative of improper argument. See United States 

v. Rude, 88 F.3d 1538, 1548 (9th Cir. 1996) (holding that prosecutor’s use of the words 

“lie,” “lies,” or “lied” more than ninety times was not improper when viewed “in the 

context of the month-long trial”). Moreover, these repeated references to “lies” or 

“lying” were justified by the record evidence, which indicated that Vaghari lied not only 

about his intention to export goods to Iran, but about myriad other topics reflecting on his 

character for truthfulness.

3

In sum, the prosecution’s arguments were vigorous, forceful, and at times colorful, 

but they were not unfair. As one of our sister circuits has stated:

 

“Lies” and “lying” are hard words. But this was closing argument, not a 

 3 Pursuant to Federal Rule of Evidence 608, the government adduced evidence indicating 

that, among other things, Vaghari had lied under penalty of perjury on an application for 

Social Security benefits, misrepresented his employment status when obtaining a 

traveler’s visa to Canada, submitted an application to the University of Pennsylvania 

Dental School that was rife with falsehoods, and obtained health insurance through his 

uncle’s business even though he was not an employee. 
8

polite social conversation. . . . [The prosecutor] could have told the jury that 

the evidence proved [the defendant] had been “untruthful,” or that she 

“fabricated her testimony,” or “prevaricated,” or that she “bore false 

witness,” “made up her story,” “is not to be believed,” “violated her oath.” 

These and many other words and phrases would have conveyed the same 

idea as “lie” and “lying,” perhaps not as forcefully, or, depending on the 

prosecutor’s rhetorical skill, perhaps more forcefully. Still, is there any 

reason in law why the words “lie” and “lying” should be banned from the 

vocabulary of summation, particularly in cases that turn on the defendant’s 

credibility? We conceive of none, so long as the prosecutor sticks to the 

evidence and refrains from giving his personal opinion.

United States v. Dean, 55 F.3d 640, 665 (D.C. Cir. 1995). We reject the contention that 

the government’s references to Vaghari’s “lies” denied him a fair trial.

2. Vouching

Vaghari also argues that it was improper witness vouching when during closing 

argument the prosecutor posed the following rhetorical questions related to the testimony 

of Frantz, the salesman at Beckman Coulter who testified for the government: “Why 

would Tom Frantz lie to you? What’s Tom Frantz getting out of lying to you?” (J.A. 

4056.) We need not dwell on this argument, as it is squarely foreclosed by United States 

v. Walker, 155 F.3d 180 (3d Cir. 1998). In Walker, the prosecutor stated during closing: 

“Now ask yourselves what motivation would officer Robert Scott and former Officer 

Raymond Dubois have to come in here and lie to you. What motivation.” Id. at 188. We 

flatly rejected the appellant’s assertion that this constituted vouching, stating:

The comment by the AUSA consists first of the rhetorical question, “What 

motivation [would these witnesses have to lie]?” This question is not 

vouching. It does not maintain the credibility of the two witnesses by 

referring to information outside the record, nor does it contain a personal 

assurance of veracity. 
9

Id. The prosecutor’s comments here were nearly identical to the AUSA’s comment in 

Walker, and Vaghari has made no attempt to distinguish Walker. Under our precedent, 

then, there was no impermissible vouching.

3. Arguing Facts Not in Evidence

Finally, Vaghari contends that the government “ma[de] up facts” during its 

summation when it accused him of orchestrating a sham photo opportunity in an effort to 

make it appear that items sent to Iran actually remained in Dubai. (Appellant’s Br. 21.) 

This claim stems from the testimony of Joseph Gill, a private investigator and defense 

witness in this case, who testified that Vaghari had hired him to travel to Dubai with the 

object of photographing some of the items that Vaghari had shipped, so as to prove that 

those items were not intended for transshipment to Iran. Gill did so, and the photographs, 

which showed several pieces of laboratory equipment arranged on a table in a Dubai 

hospital, were introduced into evidence by the defense. Defense counsel argued to the 

jury that “Mr. Gill’s investigation prov[es] to an absolute certainty” that the goods 

shipped to Dubai by Vaghari were intended to remain there and did, in fact, remain there. 

In its closing argument, however, the government dismissed Gill’s photographs, 

arguing that the display of lab equipment at the hospital in Dubai was merely a set-up 

devised by Vaghari to make it appear that the equipment was never sent to Iran. The 

government pointed to a sales invoice for the equipment, recovered from Vaghari’s 

apartment, which identified the buyer as the Pasteur Institute of Iran in Tehran and 

specified that “[t]he delivery location will be the Pasteur Institute of Iran.” (Supp. App. 
10

3.) Additionally, although the equipment was photographed at a Dubai hospital, it was 

not properly assembled and there was no sign of test animals at the hospital, even though 

the equipment was designed exclusively for animal testing. The defense objected to the 

government’s suggestion that the display of the lab equipment was a set-up, accusing the 

government of “making up a story that has no basis in the evidentiary record in this 

case.” (J.A. 4049.) The District Court agreed that there was “no direct evidence” of a 

set-up, but overruled the objection because “[t]here is circumstantial evidence that the 

Government is arguing.” (J.A. 4050.) 

“Although counsel may state his views of what the evidence shows and the 

inferences and conclusions that the evidence supports, it is clearly improper to introduce 

information based on personal belief or knowledge.” United States v. Zehrbach, 47 F.3d 

1252, 1265 n.11 (3d Cir. 1995) (en banc). Nonetheless, prosecutors are “entitled to 

considerable latitude in summation to argue the evidence and any reasonable inferences 

that can be drawn from that evidence.” United States v. Werme, 939 F.2d 108, 117 (3d 

Cir. 1991). Even if a prosecutor goes too far, however, “[p]rosecutorial misconduct does 

not always warrant the granting of a mistrial.” Zehrbach, 47 F.3d at 1265. Rather, we 

must weigh the challenged remarks under a harmless error standard and should reverse 

only “if we conclude that the prosecutor’s remarks, taken in the context of the trial as a 

whole, prejudiced the defendants.” Id. 

The evidence shows that the lab equipment in question was destined for Tehran, 

and surfaced in Dubai just in time to be photographed by Vaghari’s investigator. It was 
11

not unreasonable for the government to make an argument as to the authenticity of the 

display, especially given that the equipment was completely disconnected and not in use

at the time it was photographed. The District Court did not abuse its discretion when it 

concluded that the government had not argued facts for which there was no record 

support. 

However, even if the government’s closing argument contained an overstatement 

of the record, it was not one that was likely to substantially prejudice Vaghari in the eyes 

of the jury. In response to defense counsel’s repeated objections, the District Court 

provided clarifying instructions to the jury on at least three occasions, including the 

following:

Defense counsel argues that the statements that were just made by 

Government counsel are not in evidence. It’s for you to recall whether 

there is evidence on the subject about which Government counsel just 

spoke, you and you alone. So if you feel—in your recollection, your 

collective recollection is that there is no such evidence, disregard the 

argument.

(J.A. 4038-39; see also J.A. 4044, 4050.) The Court reiterated this point in its final jury 

charge:

Although counsel may have called your attention to certain facts or factual 

conclusions that they thought were important, what counsel said is not 

evidence and is not binding on you. It [is] your recollection and 

interpretation of the evidence that controls your decision in this case.

(J.A. 4220.) Such “extensive cautioning by the court” may cure a prosecutor’s error, 

Zehrbach, 47 F.3d at 1267, and surely cured any error here. 
12

B. Evidentiary Challenge

Vaghari next argues that he was prejudiced by the admission of irrelevant and 

inadmissible evidence in violation of Federal Rules of Evidence 401 and 403. We review 

a district court’s decision to admit evidence for abuse of discretion. United States v. 

Kemp, 500 F.3d 257, 295 (3d Cir. 2007). 

Vaghari’s challenge is directed at the admission of printed copies of e-mails, 

recovered from his apartment, in which the senders request that he ship various types of 

goods to Iran. He first argues that these e-mails were not relevant to the charged offenses 

because some were sent by people who were not named in the indictment and because 

there was no proof that he acted on their requests. This argument is meritless. The

relevance of these e-mails to the charged conspiracy is not undermined by the fact that 

some were sent by individuals who were not named in the indictment, as the indictment 

charged a conspiracy involving Vaghari, Ghaemi, and “others known and unknown to the 

grand jury.” (J.A. 77.) Moreover, it is self-evident that any communication between 

Vaghari and his co-conspirators about items for customers in Iran is relevant to the 

charge that Vaghari and others conspired to ship items to customers in Iran. As we have 

stated, “Rule 401 does not raise a high standard,” United States v. Starnes, 583 F.3d 196, 

214 (3d Cir. 2009), and the District Court did not abuse its discretion in ruling that this 

evidence was relevant to the charged offenses.

Vaghari’s challenge under Rule 403 is similarly unpersuasive. Under Rule 403, 
13

evidence “may be excluded if its probative value is substantially outweighed by the 

danger of unfair prejudice.” Id. at 215. Vaghari argues that these e-mails were unfairly 

prejudicial because their effect “was to mislead the jury into believing that [he] had 

engaged in substantially more transactions than he actually had.” (Appellant’s Br. 28.) 

Contrary to Vaghari’s assertion, this would not lead to unfair prejudice because the 

number of transactions is beside the point. The real question is whether Vaghari and his 

contacts overseas were conspiring to illegally export items to Iran, and the e-mails in 

question are certainly evidence of such a scheme. While the admission of these e-mails 

may have been damaging to Vaghari’s case, “the fact that probative evidence helps one 

side prove its case obviously is not grounds for excluding it under Rule 403.” Old Chief 

v. United States, 519 U.S. 172, 180 (1997). The District Court did not abuse its broad 

discretion in ruling as it did.

C. Challenges to Conviction on Count Five

Vaghari argues that there was insufficient evidence of the mens rea required for a 

conviction on Count Five. Specifically, Vaghari was charged with falsely stating on his 

application for naturalization that he had never committed a crime for which he had not 

been arrested, when in fact he knew that his ongoing scheme to export goods to Iran via 

Dubai was a crime. The evidence, he argues, was insufficient to prove that he knew, at 

the time he filed for citizenship in July 2005, that transshipping items to Iran was a crime. 

Because Vaghari did not file a Rule 29 motion as to Count Five, we review his

sufficiency challenge under a plain error standard. United States v. Gordon, 290 F.3d 
14

539, 547 (3d Cir. 2002). In this inquiry, we view the evidence in the light most favorable 

to the prosecution, and must sustain the verdict so long as “any rational trier of fact could 

have found proof of guilt beyond a reasonable doubt based on the available evidence.” 

United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001). “This places a very heavy 

burden on the appellant.” United States v. Mornan, 413 F.3d 372, 382 (3d Cir. 2005) 

(citation and internal quotations omitted).

Vaghari’s sufficiency challenge ignores substantial evidence in the record 

indicating that he knew his exporting activities were illegal. Most significantly, he took 

the stand at trial and testified that he knew “it [was] illegal” to export items to Iran via 

Dubai as far back as November 2002. (J.A. 3448.) This unqualified admission leaves no 

doubt that he was well aware of the unlawfulness of transshipping goods to Iran. He 

asserts, however, that even if there was sufficient evidence to prove that he knew that 

transshipping goods to Iran was “unlawful” or “illegal,” there was no evidence that he 

knew that such transshipment was a “crime,” which is the question asked on the 

naturalization application. Vaghari points out that IEEPA provides for both civil and

criminal penalties, 50 U.S.C. § 1705, and argues that it cannot be presumed that he knew 

his IEEPA violations were “criminal” in the sense that they “would subject him to 

criminal penalties.” (Appellant’s Br. 48.) 

Vaghari does not identify any authority recognizing the distinction he draws 

between knowledge of “illegality” and knowledge of “criminality,” nor are we aware of 

any such authority. That aside, it strains credulity that Vaghari, an Iranian national who 
15

established, built, and operated a business devoted to exporting goods to the Middle East,

would not know that transshipping goods to Iran was a crime. Indeed, the prosecution

introduced evidence indicating that Vaghari had actively gathered information regarding 

the laws and regulations governing the export of goods to Iran in an effort to clarify the 

exact parameters of these rules. For example, recovered from his apartment were 

handwritten notes referencing specific provisions of the Export Administration 

Regulations, 15 C.F.R. §§ 730-774, as well as the phone number for the Foreign Trade 

Division of the Department of Commerce (“DOC”) and the URL address of the DOC 

website listing foreign trade schedules. Viewing all of this evidence in the light most 

favorable to the prosecution, we are convinced that a reasonable juror could conclude that 

Vaghari knew that transshipping goods to Iran was a crime and that he therefore 

possessed the mens rea required for a violation of § 1425(a). Not having carried the 

“very heavy burden” of showing that his conviction was a “fundamental miscarriage of 

justice,” Vaghari’s sufficiency challenge fails.

D. Motion to Suppress

Vaghari argues, next, that the District Court erred in denying his motion to 

suppress. The FBI searched Vaghari’s apartment on two occasions relevant here: first, on 

October 28, 2005, pursuant to his consent; and second, on December 13, 2005, pursuant 

to a search warrant. Vaghari challenges the first search on the ground that his consent 

was not freely given, and argues that the second search was likewise tainted because the 

warrant relied entirely on evidence seized during the initial search. We reject these 
16

challenges.

Whether consent to a search was voluntarily given is a question of fact that we 

review for clear error. United States v. Price, 558 F.3d 270, 278 n.7 (3d Cir. 2009). The 

government bears “the burden of proving that the consent was, in fact, freely and 

voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548 (1968). For consent to 

be voluntary, it cannot be “the product of duress or coercion, express or implied.” 

Schneckloth v. Bustamonte, 412 U.S 218, 227 (1973). But because there is “no 

talismanic definition of ‘voluntariness,’” we must look to the totality of the circumstances 

in determining whether consent was voluntary. Id. at 224. We recently described what 

such an inquiry entails:

Factors to consider include: the age, education, and intelligence of the 

subject; whether the subject was advised of his or her constitutional rights; 

the length of the encounter; the repetition or duration of the questioning; 

and the use of physical punishment. We have further identified as relevant 

the setting in which the consent was obtained [and] the parties’ verbal and 

non-verbal actions.

Price, 558 F.3d at 278 (citation and internal quotations omitted). 

Applying this framework, we conclude that the District Court’s voluntariness 

determination was not clearly erroneous. First, Vaghari is a college-educated adult 

intelligent enough to have founded and operated his own export company. Although he 

is an Iranian citizen, there is nothing to suggest that his consent resulted from any 

language barrier, as he speaks English proficiently and did not require an interpreter at 

trial. Second, the entire visit to the apartment lasted just thirty minutes, so Vaghari’s 
17

assertion that the agents “questioned him for a lengthy period of time” is simply not 

supported by the record. (Appellant’s Br. 51.) Third, the evidence at the suppression 

hearing indicated that the agents’ interaction with Vaghari was not coercive. To the 

contrary, one of the agents provided uncontroverted testimony, which the District Court 

deemed credible, that Vaghari was friendly and forthcoming throughout their meeting. 

Fourth, Vaghari was never arrested, handcuffed, or even touched, and the agents neither 

threatened nor promised anything to him. And fifth, the fact that the encounter took 

place during daylight hours on Vaghari’s own property is further suggestive of a low-key, 

non-coercive atmosphere. 

Despite this abundant evidence supporting a finding of voluntariness, Vaghari 

asserts that his consent could not have been voluntary because the agents did not provide 

him with a written form indicating that he could refuse consent. This argument is 

squarely foreclosed by our decision in Price, in which we considered the defendant’s 

argument that “the lack of a consent form, without more, means that [the defendant] 

consented involuntarily.” 558 F.3d at 279. In rejecting such a bright-line approach, we 

reiterated that “‘[w]hile knowledge of the right to refuse consent is one factor to be taken 

into account, the Government need not establish such knowledge as the sine qua non of 

an effective consent.’” Id. (quoting Schenckloth, 412 U.S. at 227.) We concluded: 

[E]very factor, save one (that she was not advised of her right to refuse 

consent), favors a finding of voluntary consent. Under these circumstances, 

Fischer’s consent was voluntary, and this is true notwithstanding that 

Fischer was not advised of her right to refuse consent. 
18

Id. at 279-80. We reach the same conclusion here. 

E. Voir Dire Procedure

Finally, Vaghari argues that his Sixth Amendment right to a public trial was 

violated when the District Court held portions of the voir dire in the robing room rather 

than in open court. Prior to the start of trial, the District Court and counsel discussed the 

procedure for individually questioning prospective jurors. The Court recognized that 

while “general questions” should be heard in open court, many of the questions were 

likely to be “somewhat personal” and would call for responses of a “private nature.” The 

Court observed that “we’ll want to hear [these questions] at sidebar,” and proposed 

making use of the robing room for this purpose. Defense counsel readily assented, 

stating that he had “always liked” the practice of using an anteroom for questioning 

individual jurors about sensitive subjects rather than “whispering at sidebar.” (Supp. 

App. 125-26.) Vaghari now argues that this procedure violated his right to a public trial. 

We disagree.

A defendant’s right to a public trial is guaranteed by the Sixth Amendment, and 

this right “extends to the voir dire of prospective jurors.” Presley v. Georgia, 130 S. Ct. 

721, 724 (2010). However, the District Court did not close the courtroom or explicitly 

exclude any member of the public from observing voir dire. Although certain portions of 

the individual voir dire did take place behind “closed doors,” doing so was the functional 

equivalent of a sidebar discussion and no more improper than that commonly accepted 

practice. See United States v. Smith, 787 F.2d 111, 114 (3d Cir. 1986) (“[T]he public and 
19

press may be justifiably excluded from sidebar and chambers conferences even when 

substantive rulings are made.”).

This conclusion is supported by our recent decision in United States v. Bansal, 663 

F.3d 634 (3d Cir. 2011), in which we rejected a challenge to an identical voir dire 

procedure, explaining:

Bansal contends that the closed-room questioning violated the Sixth 

Amendment’s public trial guarantee. We disagree for several reasons. 

First, this is classic sandbagging of the trial judge, as Bansal complains for 

the first time on appeal about a decision by the trial court to which he did 

not object at the time. Second, at no time did anyone—Bansal, the press, or 

the public—request access to the closed jury-room. At most, the judge 

prevented the members of the voir dire panel from hearing other members’ 

responses, and we are aware of no case holding that such procedures offend 

the Sixth Amendment. . . . Finally, the entire jury selection process was 

transcribed and recorded; nothing was sealed or concealed from public 

view. Given these facts, we will not order Bansal a new trial on these 

grounds.

Id. at 661. The voir dire in this case played out exactly as it did in Bansal: defense 

counsel enthusiastically agreed to the voir dire procedure; no member of the public 

was denied access to the robing room; and all of the voir dire proceedings, 

including those portions that took place in the robing room, were recorded and 

transcribed. The transcript was not sealed and was available for public viewing. 

Because this case is on all fours with Bansal, we reject Vaghari’s argument that 

his right to a public trial was violated.

4

 4 Vaghari argues at length that a different result is compelled by the Supreme Court’s per 

curiam opinion in Presley v. Georgia, 130 S. Ct. 721 (2010), in which the Court ordered 

a new trial on Sixth Amendment grounds. Presley is clearly distinguishable, however, as 

 
20

III. Conclusion

For the foregoing reasons, we will affirm the judgment of sentence.

 

the trial court in that case actually closed the courtroom during voir dire and ordered that 

the defendant’s family members be removed.