UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4868

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MOHAMMED MUNIR ANWARI, a/k/a Mohammed Munir, a/k/a Khalifa,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Claude M. Hilton, Senior 

District Judge. (1:07-cr-00425-CMH-7)

Submitted: July 26, 2010 Decided: August 19, 2010

Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Gregory Todd Hunter, Arlington, Virginia; Maria N. Lerner, 

Kimberly S. Walker, Fatema K. Merchant, FULBRIGHT & JAWORSKI, 

L.L.P., Washington, D.C., for Appellant. Dana J. Boente, United

States Attorney, Lawrence J. Leiser, Assistant United States 

Attorney, Robert Draba, Special Assistant United States 

Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Mohammed Munir Anwari appeals his conviction and 151-

month sentence for one count of conspiracy to import and 

distribute for the purpose of importation one kilogram or more 

of heroin in violation of 21 U.S.C. §§ 952(a), 959, 963, and 

960(b)(1)(A) (2006) and one count of conspiracy to possess with 

intent to distribute and to distribute one kilogram or more of 

heroin in violation of 21 U.S.C. § 846 (2006). On appeal, 

Anwari alleges district court error in: (1) allowing a fatal 

variance from the indictment; (2) admitting evidence that was 

substantially more prejudicial than probative; (3) refusing to 

direct a verdict of acquittal, and (4) miscalculating the drug 

weights attributable to him. For the reasons that follow, we 

affirm.

I. Indictment Variance

The indictment against Anwari and his co-conspirators 

alleged that Anwari was involved in heroin transactions in May 

and August, 2002. At trial, the Government introduced evidence 

of Anwari’s participation in a third transaction, in December 

2002. Anwari asserts that allowing evidence of this third 

transaction was erroneous and should result in vacating of his 

conviction. 
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As Anwari did not object below, we review this claim 

for plain error. To demonstrate plain error, a defendant must 

show that: (1) there was an error; (2) the error was plain; and 

(3) the error affected his “substantial rights,” meaning that it 

“affected the outcome of the district court proceedings.” 

United States v. Olano, 507 U.S. 725, 732 (1993). This court is 

not required to correct a plain error unless “a miscarriage of 

justice would otherwise result,” meaning that “the error 

seriously affect[s] the fairness, integrity, or public 

reputation of judicial proceedings.” Id. at 736 (alteration in 

original) (internal quotation marks omitted).

A variance occurs when the evidence presented at trial 

differs materially from the facts alleged in the indictment. 

United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). 

However, a variance “does not violate a defendant’s 

constitutional rights unless it prejudices [him] either by 

surprising him at trial and hindering the preparation of his 

defense or by exposing him to the danger of a second prosecution 

for the same offense.” United States v. Randall, 171 F.3d 195, 

203 (4th Cir. 1999) (when evidence does not alter crime alleged 

in the indictment, the variance is not fatal).

We need not, however, reach the issue of whether an 

indictment variance took place in this case. The evidence 

against Anwari with regard to the first two transactions was 
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significantly compelling such that Anwari can demonstrate no 

prejudice as a result of the introduction of evidence of the 

third transaction, particularly under plain error review.

II. Allegedly Unduly Prejudicial Evidence

(a) Religious Questioning

At the start of the Government’s cross-examination of 

Anwari, the following exchange took place:

The Government: Mr. Munir, you swore on the Bible. 

Are you a Christian?

Anwari: I’m Islam, but I speak a lot of the Bible 

too.

The Government did not make any further mention of Anwari’s 

religion. On appeal, Anwari argues that this question was so 

prejudicial as to necessitate a new trial. We disagree. 

Again, this issue is reviewed for plain error, as no 

objection was made below. Under that standard, we cannot find 

that the Government’s question requires reversal. It is wellsettled that evidence of a witness’s religion may not be 

introduced for the purposes of enhancing or attacking the 

witness’s credibility. See Fed. R. Evid. 610. The Government 

argues, however, that the question at issue was designed to 

ensure that Anwari took his oath seriously, not to impeach his 

credibility per se.
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Though this court has never squarely addressed the 

issue of whether a witness may be examined on the manner and 

veracity of his oath, at least one of our sister circuits has 

passed on a similar question. See United States v. Kalaydjian, 

784 F.2d 53 (2d Cir. 1986) (affirming district court’s order 

prohibiting appellants from questioning witness on his reasons 

for taking an affirmation rather than swearing on the Koran). 

Anwari’s claim of error is therefore not without some support. 

We find, however, that because the Government only 

mentioned Anwari’s religion once, and that because there is no 

Fourth Circuit case* on point, Anwari cannot demonstrate that 

allowing the question was plainly erroneous. Moreover, again, 

the evidence against Anwari was ample, and the Government’s 

isolated question, even if we assume it to have been erroneous,

did not rise to the level of being so prejudicial as to affect 

the integrity of the trial. 

(b) Evidence of Criminal Acts of Co-Conspirators

Anwari next suggests that his conviction should be 

vacated on the grounds that the Government improperly solicited 

 * Anwari cites to United States v. Ham, 998 F.2d 1247 

(4th Cir. 1993), for the proposition that we must vacate his 

sentence. Ham, however, dealt with the introduction of evidence 

that is significantly more inflammatory than that at issue here, 

and we find it does not apply. 
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evidence of criminal transactions that took place during a 

period where Anwari was no longer alleged to have been a part of 

the conspiracy. We have rejected this argument in the past, and 

continue to do so today. See United States v. Leavis, 853 F.2d 

215 (4th Cir. 1988) (the fact that defendant’s co-conspirators 

pled guilty does not deprive the government of its right to 

detail the full scope of the conspiracy, even those matters 

where the defendant was not directly involved). 

III. Sufficiency of the Evidence

Anwari next argues that the Government did not 

introduce evidence sufficient to sustain a conviction because 

there was insufficient proof that Anwari knew the heroin he is 

alleged to have distributed was destined for the United States. 

“A defendant challenging the sufficiency of the 

evidence faces a heavy burden.” United States v. Foster, 507 

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690 

(2008). This court reviews a sufficiency of the evidence 

challenge by determining whether, viewing the evidence in the 

light most favorable to the government, any rational trier of 

fact could find the essential elements of the crime beyond a 

reasonable doubt. United States v. Collins, 412 F.3d 515, 519 

(4th Cir. 2005).
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Several witnesses testified that they communicated 

with Anwari during negotiations, and it was evident that he was 

aware that the heroin was destined for the United States. In 

addition, the translator who facilitated the transactions among 

the co-conspirators testified that he told Anwari the drugs were 

to be sold in the United States. Finally, the Government 

introduced evidence of Western Union receipts reflecting that 

the proceeds of drug transactions in the United States were 

being transferred to Anwari in Pakistan and Afghanistan. We 

find from that record that the jury could properly conclude that 

Anwari knew the drugs were to be sold in the United States. 

IV. Reasonableness of Sentence

Finally, Anwari argues that his sentence is per se 

unreasonable because the district court clearly erred in 

calculating the relevant drug quantity. The Presentence Report 

determined that Anwari was responsible for three kilograms of 

heroin. Anwari argues that this was based on unreliable 

evidence. 

This court reviews the district court’s calculation of 

the quantity of drugs attributable to a defendant for sentencing 

purposes for clear error. United States v. Randall, 171 F.3d 

195, 210 (4th Cir. 1999). Clear error occurs when the court, 

upon reviewing the record as a whole, is “‘left with the 
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definite and firm conviction that a mistake has been 

committed.’” Easley v. Cromartie, 532 U.S. 234, 242 (2001) 

(quoting United States v. United States Gypsum Co., 333 U.S. 

364, 395 (1948)).

We have reviewed the record and find that witness 

testimony as to the drug weight that Anwari allegedly 

distributed was sufficient to allow the district court to 

attribute a drug weight of three kilograms to Anwari. 

Accordingly, we affirm the judgment of the district 

court. 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