THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JEFFREY NDUNGI SILA §

§

VS. § No. 3:22-cv-01340-B-BH

 § (No. 3:16-cr-0448-B-1)

UNITED STATES OF AMERICA §

JEFFREY NDUNGI SILA’S REPLY TO GOVERNMENT’S RESPONSE TO HIS 

SUPPLEMENTAL BRIEF 

Brent E. Newton

Lead Counsel 

Texas Bar No. 00788115

19 Treworthy Road

Gaithersburg, Maryland 20878 

Telephone: 202-975-9105

Email: brentevannewton@gmail.com

Christopher M. Knox

The Knox Firm

Local Counsel

Texas Bar No. 24065567

900 Jackson Street

Suite Number 650

Dallas Texas 75202

Telephone: 214-741-7474

Email: knoxcriminaldefense@gmail.com

Attorneys for Movant Jeffrey Ndungi Sila

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TABLE OF CONTENTS

Table of Authorities........................,..............................................................ii 

Arguments in Reply .......................................................................................1

I. The Government’s Evidence at Trial Failed to Prove 

the Venue Element (and, Thus, Movant’s Trial and 

Appellate Counsel Provided Ineffective Assistance of Counsel)......................1

II. The Fifth Circuit’s Opinion Did Not Address the Venue 

Issue Raised by Movant.....................................................................4

Conclusion..................................................................................................10

Certificate of Service......................................................................................10

TABLE OF AUTHORITIES

In re Felt,

255 F.3d 220 (5th Cir. 2001) ....................................................................................................... 6

Lindquist v. City of Pasadena, Tex.,

656 F. Supp.2d 662 (S.D. Tex. 2009).......................................................................................... 8

McDaniel v. Brown,

558 U.S. 120 (2010) (per curiam................................................................................................. 2

Segura-Resendiz v. United States,

2021 WL 4142393 (N.D. Tex. Aug. 24, 2021) ......................................................................... 10

Spencer v. Kemna,

523 U.S. 1 (1998) ...................................................................................................................... 10

Torzall v. United States,

545 F.3d 517 (7th Cir. 2008) ..................................................................................................... 10

United States v. Anderson,

328 U.S. 699 (1946) .................................................................................................................... 7

United States v. Ayesh,

702 F.3d 162 (4th Cir. 2012) ....................................................................................................... 9

United States v. Busacca,

936 F.2d 232 (6th Cir. 1991) ................................................................................................... 7, 8

United States v. Cabrales,

524 U.S. 1 (1998) ........................................................................................................................ 7

United States v. Green,

897 F.3d 443 (2d Cir. 2018) .................................................................................................... 5, 7

United States v. Lopez,

484 F.3d 1186 (9th Cir. 2007) ..................................................................................................... 6

United States v. Lopez-Ramirez,

68 F.3d 438 (11th Cir. 1995) ....................................................................................................... 3

United States v. Mischlich,

310 F. Supp. 669 (D.N.J. 1970)................................................................................................... 4

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United States v. Ntekume,

2019 WL 4860939 (D. Nev., October 2, 2019)........................................................................... 7

United States v. Reagan,

596 F.3d 251 (5th Cir. 2010) ................................................................................................... 7, 8

United States v. Rodriguez-Moreno,

526 U.S. 275 (1999) .................................................................................................................... 7

United States v. Samson,

433 F. Supp.3d 1046 (S.D. Tex. 2020)........................................................................................ 5

United States v. Sila,

978 F.3d 264 (5th Cir. 2020) ....................................................................................................... 6

United States v. Trie,

21 F. Supp.2d 7 (D. D.C. 1998)................................................................................................... 4

United States v. White,

611 F.2d 531 (5th Cir. 1980) ....................................................................................................... 3

United States v. Yashar,

166 F.3d 873 (7th Cir. 1999) ....................................................................................................... 7

Young v. Guste,

849 F.2d 970 (5th Cir. 1988) ....................................................................................................... 3

Statutes

18 U.S.C. § 641......................................................................................................................Passim

18 U.S.C. § 664............................................................................................................................... 7

18 U.S.C. § 3237(a) ...............................................................................................................Passim

18 U.S.C. § 3238......................................................................................................................... 3, 4

18 U.S.C. § 3282............................................................................................................................. 9

28 U.S.C. § 2254........................................................................................................................... 10

28 U.S.C. § 2255........................................................................................................................... 10

Rules

Fed. R. Crim. P. 18 ......................................................................................................................... 8

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MOVANT’S REPLY BRIEF

Jeffrey Ndungi Sila (“movant”), through undersigned counsel, submits this reply to the 

government’s response to movant’s supplemental brief.

ARGUMENTS IN REPLY

I.

The Government’s Evidence at Trial Failed to Prove the Venue Element (And, Thus, 

Movant’s Prior Counsel Provided Ineffective Assistance).

The government contends that movant’s assertion in his supplemental brief – that the 

government’s evidence at trial proved that movant’s § 641 offense began in Kenya – “is not 

supported by the record.” Response to Supplemental Brief (ECF No. 20), at 3. That argument is 

contrary to the position taken by the government both at trial1 and in the government’s first brief 

filed on appeal (written by the government’s current counsel)2 that the evidence at trial proved that 

movant first obtained Cynthia Short’s tax-refund check in Kenya. 

Even more untenable – considering that the issue is whether the government met its burden 

to prove the venue element at trial – is that the government now relies on what movant’s former

attorney said in his opening statement at trial (despite the fact that no evidence was introduced at 

trial to support such an argument): that movant’s brother, Edwin, was the one who initially 

obtained the check in Kenya and sent the check to movant after he already had arrived in the United 

1 The trial prosecutor told the jury: “We were able to show that . . . that check was sent to Kenya. 

And where did Mr. Sila come from to come to the United States with that check? It was Kenya.” 

ECF [No. 3:16-cr-00448-B] Doc. 150, at 24. The prosecutor later told jurors that “the indictment 

alleges August the 9th. That’s the day that he was in possession of it [in Dallas]. He had brought 

it from Africa, he had the intent to sell it and convert it into cash. That’s stealing. That’s 

conversion.” Id. at 50. “The check came from Africa, I submit to you, with this defendant in May 

of 2016.” Id. at 51. 

2 Appellee’s Brief, United States v. Sila, 5th Cir. No. 17-11212, 2020 WL 882417, at *18 (filed 

Feb. 21, 2020) (“[A]lthough the record is not clear about exactly how, when, or where Sila acquired 

the refund check – the reasonable inference is that Sila obtained it in Kenya.”) (emphasis added).

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States. Response to Supplemental Brief, at 3. The obvious problem with that argument it that a

defense attorney’s remarks in an opening statement or closing argument (or at sentencing or on 

appeal) are not “evidence” that a jury can consider in rendering a verdict. See ECF No. 98, at 3

(district court’s jury charge’s instruction to the jury that the attorneys’ statements and arguments 

“are not evidence” that the jury could consider in deciding whether the government had met its 

burden of proof). The government’s further reliance on movant’s statement at sentencing, see 

Response to Supplemental Brief, at 3-4, likewise is entirely irrelevant concerning the issue of 

whether the government met its burden to offer sufficient evidence at trial to prove the venue 

element.3 

The government has failed to address what really matters – whether, in view of the 

government’s own evidence that (1) movant first took possession of the tax-refund check in Kenya 

and (2) he was first arrested in California, the government met its burden4 at trial to prove the 

venue element under 18 U.S.C. § 3238. As movant’s supplemental brief explained, because the 

government’s own evidence at trial proved that venue was proper only in the Central District of 

California under § 3238, movant’s trial counsel provided ineffective assistance by failing to move 

for a judgment of acquittal on venue grounds, and movant’s direct appeal counsel was ineffective 

for failing to raise that insufficient-evidence venue issue on appeal.

3 See Young v. Guste, 849 F.2d 970, 972 (5th Cir. 1988) (“This court’s consideration of the 

sufficiency of the evidence is limited to a review of the record evidence adduced at trial.”); United 

States v. Lopez-Ramirez, 68 F.3d 438, 441 n.3 (11th Cir. 1995) (defendant’s statements admitting 

guilt at sentencing hearing cannot be considered in a sufficiency-of-the-evidence analysis); see 

also McDaniel v. Brown, 558 U.S. 120, 131 (2010) (per curiam) (a “reviewing court must consider 

the evidence admitted at trial . . . .” in conducting sufficiency-of-the-evidence review) (emphasis 

added).

4 “[T]he burden of proving that the crime occurred in the district of trial is squarely on the 

prosecution” at trial. United States v. White, 611 F.2d 531, 534 (5th Cir. 1980). 

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Alternatively, even assuming arguendo that the government is correct that the evidence at 

trial did not prove that movant first obtained the check in Kenya, at the very least it proved that 

movant first obtained the check outside of the Northern District of Texas, as current counsel for 

the government previously has recognized.

5 At trial, Agent Qaqish testified that Lydia Breaux 

told him in 2016 that “there was a specific check that was in hand and that was ready to be 

negotiated.” ECF [No. 3:16-cr-00448-B] Doc. 148, at 145. Referring to movant’s possession of 

Cynthia Short’s refund check, Breaux further stated that movant had “traveled from Kenya to the 

United States and currently ha[d] a large check in hand . . . .” Id. at 146. Agent Qaqish testified 

that Breaux then told him that movant, who then possessed the check, was flying from Kansas to 

meet with Qaqish (who was undercover) and Breaux at a restaurant in Dallas. Breaux later picked 

up movant at the airport and drove him to the restaurant in Dallas for the meeting. Id. at 187-88. 

There was absolutely no proof – not even a scintilla – that movant acquired the tax-refund check 

for the first time inside the borders of the Northern District of Texas. The only reasonable 

inference from the government’s own evidence at trial is that he acquired the check for the first 

time outside of the Northern District of Texas (in Kenya or, alternatively, Kansas).

Therefore, even assuming arguendo that the government’s evidence at trial did not raise a 

venue issue under 18 U.S.C. § 3238, then it raised a venue issue under 18 U.S.C. § 3237(a) 

(“[U]nder any offense against the United States begun in one district and completed in another, or 

committed in more than one district, may be inquired of and prosecuted in any district in which 

such offense was begun, continued, or completed.”) (emphasis added). Section 3237(a) would 

5 Appellee’s Brief, United States v. Sila, 5th Cir. No. 17-11212, 2020 WL 882417, at *19 (filed 

Feb. 21, 2020) (“[T]he government did not focus its case [at trial] on how the refund check came 

into Sila’s possession – other than to recognize that it probably occurred outside of the Northern 

District of Texas.”) (emphasis added). 

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only provide venue in the North District of Texas if § 641 was an offense capable of being 

committed in multiple districts. Yet because 18 U.S.C. § 641 (first paragraph) is not a “continuing 

offense,” venue exclusively lay in the District of Kansas rather than the Northern District of Texas

(assuming movant did not first take possession of the check in Kenya). See United States v. Trie, 

21 F. Supp.2d 7, 18 (D. D.C. 1998) (a non-continuing offense cannot be prosecuted in a district 

other than one in which it ended under § 3237(a) even if the defendant’s subsequent actions 

concerning the offense affected another district); United States v. Mischlich, 310 F. Supp. 669, 

671-72 (D.N.J. 1970) (same).

For these reasons, movant’s trial counsel provided him ineffective assistance of counsel by 

failing to move for a judgment of acquittal on the venue element at trial, and movant’s counsel on 

appeal provided ineffective assistance of counsel by failing to raise that issue on appeal.

II.

The Fifth Circuit’s Opinion Did Not Address the Venue Issue Raised by Movant.

Without ever addressing (or even citing) the case law cited by movant that strongly 

supports his argument that § 641 (first paragraph) is not a “continuing offense,”6 the government

instead repeats its prior assertion that the Fifth Circuit’s decision on movant’s first direct appeal 

implicitly rejected his current lack-of-venue claim when the court rejected the “lack-of-unanimity” 

argument raised by movant’s direct appeal counsel. Response to Supplemental Brief, at 1-3. The 

government continues to err and misstates what the Fifth Circuit actually held. 

The Fifth Circuit rejected the lack-of-unanimity argument as follows:

Sila asserts that his right to a unanimous jury verdict was violated by the district 

court’s failure to give a “unanimity of theory” instruction to the jury on Count I 

6 United States v. Green, 897 F.3d 443, 448 (2d Cir. 2018); United States v. Samson, 433 F. 

Supp.3d 1046, 1052-53 (S.D. Tex. 2020) (specifically discussing the Fifth Circuit’s “continuing 

offense” precedent and concluding § 641 (first paragraph) is not a continuing offense).

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(the Short tax refund). The district court’s instruction did not address . . . unanimity 

with respect to the location of the crime . . . . 

. . . Sila first argues that “[m]isappropriating the check in Kenya would constitute 

one offense; converting the check to cash through a sale in Dallas would constitute 

another.” He says that, because the Government proved that the Short tax refund 

was filed in Kenya in April 2015 (the Government did not prove who filed it) and 

proved that the check was sold in Dallas in August 2016, the conduct in each 

location must be treated as separate offenses and the jury should have been 

instructed accordingly. Sila says that the Government advanced both theories at 

trial and notes several instances when the Government mentioned Sila’s conduct in 

Kenya. . . .

The Government does not dispute that Sila’s conduct in Dallas and his conduct in 

Kenya could have theoretically constituted two separate violations of § 641. 

Rather, the Government maintains that it sought to convict Sila on Count I based 

only on his conduct in Dallas. Therefore, the Government argues, the district court 

did not err in failing to give a unanimity of theory instruction as to the location of 

the crime.

Sila is correct that, if the Government had alleged he violated § 641 in Kenya and/or 

in Dallas, then a unanimity of theory instruction . . . would have been required. But 

the United States did not allege two offenses in two locations, or even that one 

offense occurred across two locations. The indictment is instead based solely on the 

August 9, 2016 Dallas transaction – made over a year after the fraudulent tax refund 

in Short’s name was filed in Kenya. The indictment alleged that the crime occurred 

on or about August 9, 2016 “in the Dallas Division of the Northern District of 

Texas,” not in Kenya. Plus, the facts alleged in Count I correspond to the August 

9, 2016 transaction, and cannot be reasonably construed to relate to any conduct 

performed at a much earlier date on a different continent. . . . Count I of Sila’s 

indictment does not allege “multiple” offenses or “embrace[ ] two or more separate 

offenses, though each be a violation of the same statute.” [citation omitted].

The record also fails to vindicate Sila’s portrayal of the trial and his argument that 

the jury could have been confused. . . . He cites the Government’s closing 

argument, where the prosecutor said: “When did the theft occur? Well, the 

indictment alleges August the 9th. That’s the day he was in possession of [the Short 

tax refund]. He had brought it from Kenya, he had the intent to sell it and convert 

it to cash. That’s stealing. That’s conversion.” Far from proving that the 

Government charged Sila for his conduct in Kenya, this quote bolsters the 

Government’s argument that “the theft occurred . . . on August the 9th” – when Sila 

was in Dallas, not Kenya. He notes another moment from the Government's closing 

argument: “And where did Mr. Sila come from to come to the United States with 

that check? It was Kenya.” Context is key. In this portion of its closing argument, 

the United States was not emphasizing the fact that Sila traveled to the United States 

from Kenya, but rather that Sila’s coming from Kenya was further evidence that he 

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was associated with the Kenyan IP address used to file the Short tax refund. None 

of the quotes to which Sila directed us show that the Count I offense was based on 

conduct in Kenya as opposed to conduct in Dallas.

United States v. Sila, 978 F.3d 264, 268-69 (5th Cir. 2020).

The Fifth Circuit’s discussion here cannot reasonably be interpreted to imply that 18 U.S.C. 

§ 641 is a “continuing” offense for purposes of 18 U.S.C. §§ 3237(a) or 3238 (and, thus, that venue 

existed in the North District of Texas concerning movant’s actions in Dallas in August 2016). 

Only “those matters that were fully briefed to the appellate court and were necessary predicates to 

the ability to address the issue or issues specifically discussed [by the court] are deemed to have 

been decided tacitly or implicitly [such that] their disposition is law of the case.” In re Felt, 255 

F.3d 220, 225 (5th Cir. 2001). The current venue issue raised by movant was not “fully briefed”

on direct appeal – in the same manner that movant has raised it in this § 2255 proceeding – and

thus it was not a “necessary predicate” to the Fifth Circuit’s discussion of the unanimity issue. 

As an initial matter, the terms “continuing offense” and “venue” – and citations to 18 

U.S.C. §§ 3237(a) or 3238 – obviously do not appear anywhere in the Fifth Circuit’s opinion. As 

discussed below, that is because movant’s direct appeal counsel’s brief did not frame the issue in 

such a manner. 

Direct appeal counsel’s opening brief contended that:

Under § 641, the allowable unit of prosecution “is each individual transaction in 

which government money is received, even if the transaction is a part of an 

overarching scheme.” United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010); 

United States v. Busacca, 936 F.2d 232, 234, 239, 254 (6th Cir. 1991) (each taking 

of funds from an employee benefit plan constituted a separate violation of 18 U.S.C. 

§ 664, relying on Reagan). A crime under § 641 is not a continuing offense. See, 

e.g., United States v. Lopez, 484 F.3d 1186, 1192 (9th Cir. 2007) (“A crime is 

complete when each element of the crime has occurred.”); United States v. Green, 

897 F.3d 443, 449 (2d Cir. 2018) (violation of § 641 is not a continuing offense); 

accord United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999); United States v. 

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Ntekume, 2019 WL 4860939 at *3 (D. Nev., October 2, 2019) (conversion under § 

641 is not a continuing offense).

At the same time, “the locus delicti [of an offense] must be determined from the 

nature of the crime alleged and the location of the act or acts constituting it.” United 

States v. Cabrales, 524 U.S. 1, 7 (1998) (quoting United States v. Anderson, 328 

U.S. 699, 703 (1946); see also United States v. Rodriguez-Moreno, 526 U.S. 275, 

279 (1999) (a court must identify the conduct constituting the offense because 

venue is limited “to the place of the essential conduct elements of the offense.”).

Jeffrey Ndungi Sila’s Opening Brief, 5th Cir. No. 17-11212, 2019 WL 5867524, at *22-*23 (filed 

Nov. 6, 2019). 

A careful reading of the arguments made by movant’s direct appeal counsel demonstrates 

that she was clearly mistaken about the significance of the “non-continuous” nature of the § 641

(first paragraph) offense and its relevance to the venue issue. In her reply brief, she contended:

This Court explains that the “allowable unit of prosecution” under § 641 is each 

individual transaction, even if the transaction is part of an overarching scheme. 

United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010), citing United States v. 

Busacca, 936 F.2d 232, 239 (6th Cir. 1991) (each “taking” constitutes a separate 

violation of § 641). A violation of § 641 is a discrete, not a continuing, offense. 

Id. The focus in a § 641 case is particular wrongs with particular government 

property – i.e., one misappropriation, one § 641 charge. Misappropriating the 

check in Africa with criminal intent would constitute one offense; converting the 

check to cash through a sale in Dallas would constitute another. In Mr. Sila’s 

case, the Government argued both acts in urging Mr. Sila’s conviction.

Jeffrey Ndungi Sila’s Reply Brief, No. 17-11212, 2020 WL 1958336, at *5 (filed Apr. 7, 2020)

(emphasis added). Notably, she did not argue that venue did not exist in the Northern District of 

Texas because the offense began and ended in Kenya (or Kansas).

Direct appeal counsel mistakenly believed that, if properly charged, two distinct § 641 

violations could have been lawfully alleged against movant based on his conduct in connection 

with Cynthia Short’s tax-refund check – one charge for his conduct in Kenya and a second charge 

for his conduct in Dallas. Direct appeal counsel’s lack-of-unanimity claim merely contended that 

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the prosecution’s arguments at trial and the district court’s jury instructions concerning Count One

allowed for “a mishmash . . . which suggested that Mr. Sila stole the Treasury check in Africa, 

then converted it in Dallas after he brought it to the United States” – creating a lack-of-unanimity 

problem. Id. at *8. 

That argument was not a lack-of-venue insufficient-evidence claim. Rather, concerning 

the issue of venue, appellate counsel instead stated:

The Government contends that the indictment alleged that the offense occurred in 

the Dallas Division of the Northern District of Texas and, for venue purposes, it 

could only have prosecuted Mr. Sila in Dallas for an act he committed there. . . .[

7

]

For this reason, too, the Government argues that there was no risk that the jury 

convicted Mr. Sila based on any conduct other than his sale of the check. . . . But, 

we point out that at least one court of appeals has held that § 641 describes an 

offense over which the United States may assert extraterritorial jurisdiction. United 

States v. Ayesh, 702 F.3d 162, 165-167 (4th Cir. 2012). Under Ayesh, Mr. Sila 

could be charged in Dallas for conduct in Kenya if the charge was brought within 

the five-year statute of limitations. 18 U.S.C. § 3282.

Jeffrey Ndungi Sila’s Reply Brief, No. 17-11212, 2020 WL 1958336, at *2-*3 (filed Apr. 7, 

2020) (emphasis added).

Again, that argument is not the insufficient-evidence venue argument that movant now 

raises. Indeed, movant strongly disagrees with his former counsel that movant “could be charged 

in Dallas for conduct in Kenya if the charge was brought within the five-year statute of 

limitations.” Because the § 641 offense in his case did not “continue” after movant entered the 

7 The reply brief referred to this portion of the government’s brief:

Because only one act occurred in the Dallas Division of the Northern District of 

Texas, that act is the only basis on which the government could have charged Sila 

and the only basis on which the jury could have convicted Sila. (See Fed. R. Crim. 

P. 18 (“the government must prosecute an offense in a district where the offense 

was committed”) . . . . 

Appellee’s Brief, United States v. Sila, 5th Cir. No. 17-11212, 2020 WL 882417, at *18 (filed 

Feb. 21, 2020).

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Northern District of Texas, he was not properly chargeable in this district under 18 U.S.C. §§ 

3237(a) or 3238. He only could have been properly charged in the Central District of California 

(or in the District of Kansas assuming arguendo that the government’s evidence at trial did not 

prove that movant first took possession of the check in Kenya). Based on the evidence at trial, 

under no circumstances did venue exist in the Northern District of Texas. 

Based on direct appeal counsel’s misunderstanding of the significance of the legal 

proposition that § 641, as charged in the indictment, was not a “continuing offense” to the issue of 

venue, she did not present the same venue argument that movant does now. Therefore, the Fifth 

Circuit’s 2020 decision – which was premised on appellate counsel’s erroneous arguments and, 

thus, cannot reasonably be interpreted to have addressed the venue issue that movant now raises –

does not foreclose movant’s current (correctly framed) venue arguments based on the legal 

proposition that § 641 is not a “continuing offense.” 8 

Because the relevant facts in this case are not subject to reasonable dispute and the 

controlling legal principles dictate relief under § 2255 for movant, this Court should render 

judgment for movant on his ineffective assistance of counsel claim.9

8 Even assuming arguendo that the Fifth Circuit’s 2020 decision is “law of the case” on the venue 

issue, this Court should apply a well-established exception to the law-of-the-case doctrine: the 

“prior decision was clearly erroneous and it would work a manifest injustice” to apply the law-ofthe-case doctrine. Lindquist v. City of Pasadena, Tex., 656 F. Supp.2d 662, 678 (S.D. Tex. 2009), 

aff’d, 669 F.3d 225 (5th Cir. 2012) (citation and internal quotation marks omitted). For the 

reasons discussed in prior pleadings, § 641 (first paragraph), as charged in the instant case, is not 

a “continuing offense.” Any implicit holding by the Fifth Circuit that § 641 (first paragraph) is a 

continuing offense and that venue thus existed in the Northern District of Texas would have been 

clearly erroneous. Furthermore, because the government failed to prove venue at movant’s trial,

it would be a miscarriage of justice to allow movant’s conviction stand. Movant is entitled to an 

acquittal.

9 The government persists in its meritless argument that movant’s case will “no longer satisfy the 

custody requirement” after his term of supervised release ends on November 15, 2023. Response 

to Supplemental Brief, at 5 n.3 (citing Segura-Resendiz v. United States, No. 3:21-CV-1918-XCase 3:22-cv-01340-B-BH Document 21 Filed 02/18/23 Page 12 of 13 PageID 138
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CONCLUSION

This Court should grant the § 2255 motion and also enter a judgment of acquittal on Counts 

1 and 2 as the appropriate remedy in this case.

Respectfully submitted, 

Christopher M. Knox /s/ Brent E. Newton

The Knox Firm Brent E. Newton

Local Counsel Lead Counsel 

Texas Bar No. 24065567 Texas Bar No. 00788115

900 Jackson Street 19 Treworthy Road

Suite Number 650 Gaithersburg, Maryland 20878 

Dallas Texas 75202 Telephone: 202-975-9105

Telephone: 214-741-7474 Email: brentevannewton@gmail.com

Email: knoxcriminaldefense@gmail.com

Attorneys for Movant Jeffrey Ndungi Sila

CERTIFICATE OF SERVICE 

On February 18, 2023, I served opposing counsel with a copy of the foregoing by filing it 

via CM/ECM, which sent a copy to all counsel of record.

/s/ Brent E. Newton 

Brent E. Newton 

BH, 2021 WL 4142393, at *1-*2 (N.D. Tex. Aug. 24, 2021), adopted, 2021 WL 4133500 (N.D. 

Tex. Sept. 10, 2021)). That argument is squarely foreclosed by Spencer v. Kemna, 523 U.S. 1, 7 

(1998) (“Spencer was incarcerated by reason of the parole revocation at the time the petition was 

filed, which is all the ‘in custody’ provision of 28 U.S.C. § 2254 requires.”) (emphasis added); see 

also Torzall v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (“That Torzala is no longer in 

custody or on supervised release, and had neither status at the time the district court denied his 

motion, does not preclude our review. Torzala was in custody when he filed the motion, and that 

is all that is required to be ‘in custody’ under the statute. See Spencer v. Kemna, 523 U.S. 1, 7 

(1998).”). To the extent that the government meant to argue movant’s case will become “moot” 

on November 15, 2023, the government also would be incorrect. His federal convictions have 

collateral consequences concerning his ability to stay in the United States and become a greencard holder or U.S. citizen. Spencer, 523 U.S. at 8 (“In recent decades, we have been willing to 

presume that a wrongful criminal conviction has continuing collateral consequences . . . .”). 

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