PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4173

MOHAMMAD SARIHIFARD,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-96-332)

Argued: April 9, 1998

Decided: August 19, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,

and CHAMBERS, United States District Judge for the

Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Chambers wrote the opinion,

in which Chief Judge Wilkinson and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Marvin David Miller, Alexandria, Virginia, for Appellant. Gordon Dean Kromberg, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United

States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
OPINION

CHAMBERS, District Judge:

I.

FACTS

Mohammad Sarihifard ("Petitioner") was convicted after a jury

trial in the Eastern District of Virginia of perjury before a grand jury

in violation of 18 U.S.C. § 1623(a) and making false statements to a

government agency in violation of 18 U.S.C. § 1001. The trial judge

sentenced Petitioner to twenty-one months in prison pursuant to the

federal sentencing guidelines.

The charges against Petitioner initially stem from a conversation

with federal agents where Petitioner provided the agents with inaccurate information. The federal agents were conducting an investigation

into alleged money laundering and drug trafficking at Eagle Motors.

Eagle Motors was a small used car dealership in Arlington, Virginia,

owned by Ali Galadari ("Galadari"). Galadari was a target of the government's investigation. From 1994 to 1995, Petitioner, a close friend

of Galadari, worked as a used car salesman for Eagle Motors. Petitioner apparently was not the primary target of the government's

investigation. However, the agents were seeking information concerning Petitioner's purchase and resale of a new 1995 Nissan Pathfinder.

According to the government, the 1995 Pathfinder was purchased in

Petitioner's name and sold two weeks later. The government agents

theorized that the Pathfinder represented the profits of a drug transaction and that Petitioner was simply a "straw" owner of the vehicle. In

January 1996, Petitioner told the government agents that he purchased

the Pathfinder for his own use and that he sold it to another buyer

named Deborah Mills two weeks later for a profit of $1000.00. After

Petitioner relayed his version of events, the agents called Petitioner

a "liar." However, Petitioner adhered to his story. Petitioner told the

same story to a grand jury later that month. Prior to his testimony

before the grand jury, the United States Attorney apprized Petitioner

of his rights under the Fifth Amendment to the United States Constitution. After Petitioner testified before the grand jury, the United

States Attorney informed the grand jury that Petitioner had not pro-

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vided truthful testimony. The United States Attorney instructed the

grand jury to disregard Petitioner's testimony for the purposes of

examining the possible illegal activity at Eagle Motors.

During the following months, the government intensified its investigation of Eagle Motors. In February 1996, Jockery Jones ("Jones"),

a suspect in the money laundering scheme, testified under a grant of

immunity that he was the actual purchaser of the Nissan Pathfinder.

Later that month, Galadari entered into a plea agreement with the

government where he agreed to cooperate with government agents. In

July 1996, Galadari testified before the grand jury. Galadari told the

grand jury that Petitioner was merely a straw owner of the vehicle. On

July 17, 1996, Mahmoud Moshrefi ("Moshrefi"), Petitioner's roommate and a salesperson at Eagle Motors, also entered into a plea

agreement with the government. Moshrefi testified before the grand

jury that the sale of the Pathfinder was consummated in furtherance

of a money laundering scheme and that Petitioner fulfilled a pivotal

role in the scheme by acting as the straw owner of the vehicle. After

Jones and the Eagle Motors' employees testified, the grand jury

indicted Petitioner. He was charged with perjury before a grand jury

and making false statements to government agents.

Petitioner's trial on the grand jury perjury and false statements

charges commenced in October 1996. At trial, Moshrefi and Jones

testified for the United States ("Respondent"). The two witnesses told

the jury that Jones was the actual purchaser of the Nissan Pathfinder.

They described a scheme where Eagle Motors' employees needed to

account for $31,500 in cash so they asked Petitioner if he would agree

to have his name listed as the purchaser of the Nissan. Petitioner

agreed and received $1000.00 in cash as payment for his minor role

in the scheme. In addition, Deborah Mills testified that Petitioner

never sold her a Nissan Pathfinder, that she never purchased a Nissan

Pathfinder and that she never even visited Eagle Motors. Moshrefi

and Galadari also testified that Petitioner never purchased, borrowed,

possessed or drove the Pathfinder that was actually sold to Jones. The

transcript of Petitioner's January 1996 testimony before the grand

jury was introduced into evidence. On October 29, 1996, Petitioner

was convicted of the charges as contained in the indictment.

On January 17, 1997, Petitioner asked the trial judge to unseal

information that had not been provided to the defense during the trial.

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Petitioner asserted that the sealed information contained potentially

exculpatory information that Respondent failed to make available to

the defense in violation of the principles announced in Brady v.

Maryland, 373 U.S. 83 (1963). The trial judge agreed to conduct an

in camera inspection of the sealed information. After her inspection,

the trial judge granted Petitioner's motion in regard to some of the

sealed evidence and denied the motion as to the remainder of the protected material. The newly unsealed evidence revealed that, after Petitioner testified before the grand jury, the United States Attorney told

the grand jury to disregard Petitioner's testimony because it was false.

Petitioner maintains that the revelation of the prosecutor's statements

to the grand jury raises questions regarding materiality and perjury

entrapment. Petitioner also asserts that he was prejudiced by not having this information during the trial. The absence of the uncovered

information, Petitioner argues, prevented him from presenting a

defense of materiality or perjury entrapment to the jury.

II.

DISCUSSION

On appeal, Petitioner presents four issues. First, Petitioner argues

that his false statements before the grand jury were not material

because the grand jury was told to disregard them and, therefore, they

did not influence the substance of the grand jury's decision. Second,

Petitioner argues that the government knew that he was going to provide false testimony before the grand jury; yet, the government

"coaxed" him into testifying. Petitioner insists that such an act constitutes perjury entrapment. Third, Petitioner asserts that the trial judge

erred when she instructed the jury that it had to agree unanimously

on only one instance of perjury and one instance of false statements

in order to find Petitioner guilty of the crimes charged in the indictment. Finally, Petitioner accuses the government of failing to release

exculpatory evidence, which he claims he could have utilized at his

trial. In regard to the exculpatory evidence, Petitioner contends that

the remaining information should be unsealed because it involves the

criminal activity of two of the testifying witnesses. Petitioner argues

that there is no reason to keep this information under seal because the

government has concluded its investigation.

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A. MATERIALITY

Perjury involves the false testimony under oath regarding a material matter where the witness has a willful intent to deceive the fact

finder. See United States v. Stotts, 113 F.3d 493, 497 (4th Cir. 1997).

A defendant is not guilty of perjury if the false testimony resulted

from confusion or mistake. See United States v. Dunnigan, 507 U.S.

87, 94 (1993); United States v. Smith, 62 F.3d 641, 646 (4th Cir.

1995).

A defendant is guilty of grand jury perjury when the government

proves: (1) that the defendant gave false testimony to the grand jury

under oath; (2) that the testimony was false; (3) that the false testimony was given knowingly; and (4) that the subject matter of the testimony was material to the grand jury's investigation. United States

v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988) (en banc); see also

18 U.S.C. § 1623(a).

A person is guilty of making false statements to a government

agency when the government proves: (1) that the defendant made a

false statement to a governmental agency or concealed a fact from it

or used a false document knowing it to be false; (2) the defendant

acted knowingly or willfully; and (3) the false statement or concealed

fact or false document was material to a matter within the jurisdiction

of the agency. United States v. Arch Trading Co. , 987 F.2d 1087,

1095 (4th Cir. 1993). See also 18 U.S.C.§ 1001.

An essential element in both grand jury perjury and the crime of

making false statements is materiality. See United States v. Gaudin,

515 U.S. 506 (1995). "A statement is material if it has a natural tendency to influence, or is capable of influencing, the decision-making

body to which it was addressed." United States v. Littleton, 76 F.3d

614, 618 (4th Cir. 1996). It is irrelevant whether the false statement

actually influenced or affected the decision-making process of the

agency or fact finding body. Arch Trading Co. , 987 F.2d at 1095;

Friedhaber, 856 F.2d at 642. As materiality is an essential element of

both perjury and making false statements, a defendant is entitled to

have a jury decide the question of whether a false statement was capable of influencing the decision-making body. Littleton, 76 F.3d at 617.

In fact, a defendant cannot be convicted of perjury or making a false

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statement unless the government proves beyond a reasonable doubt

that the false statement was capable of influencing the decisionmaking body to which it was addressed. Id. Again, the jury is the ultimate arbiter of whether the government has met its burden of proof.

Id. Petitioner contends that his false statement to the grand jury was

not material because it did not actually influence the decision of the

grand jury. Petitioner notes that after he testified before the grand

jury, the government told the grand jury to disregard Petitioner's testimony because it was false. Respondent concedes that Petitioner's testimony did not influence the grand jury's decision. However,

Respondent argues that Petitioner's false testimony did impede the

grand jury's investigation. Petitioner replies that, at trial, the jury was

instructed as to whether the false testimony influenced the grand

jury's decision, not its investigation. This is an irrelevant and inaccurate distinction.

It is well established law in this Circuit that a finding of materiality

is not dependant upon whether the fact finder was actually influenced

by a defendant's false statements. See Friedhaber, 856 F.2d at 642.

Rather, a false statement is material if it is capable of influencing the

fact finder's determinations. Id. A false statement's capacity to influence the fact finder must be measured at the point in time that the

statement was uttered. See United States v. Holly, 942 F.2d 916, 923

(5th Cir. 1991). In the instant case, Petitioner told the grand jury that

he purchased the Nissan Pathfinder and sold it to Deborah Mills for

a $1000.00 profit. The Petitioner did not reveal that he was a straw

owner and that he never actually purchased the automobile. If Petitioner's false statements were believed by the grand jury, they might

have led the grand jury not to indict certain members of Eagle Motors

for money laundering. The fact that the government told the grand

jury not to rely on Petitioner's testimony after he testified is irrelevant. It matters only that at the time Petitioner testified, he provided

the grand jury with information that might have influenced their decision. As Petitioner's information was capable of influencing the outcome of the grand jury's investigation at the time that he testified, the

materiality element of perjury is satisfied.

Petitioner argues that his statements were not material because the

United States Attorney recognized instantly that Petitioner's testimony was false. Accordingly, Petitioner asserts that his statements

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never had the capacity to influence the grand jury's decision. Petitioner's assertion creates a perverse incentive.

Adopting Petitioner's rationale might allow witnesses who lie

under oath to escape prosecution if their statements before a grand

jury are obviously false. This rationale protects witnesses who fabricate testimony that a grand jury will recognize instantly as false. An

argument for the creation of such an incentive not only misconstrues

the scope of materiality, it strains logic.

Materiality is not dependent upon the believability of a false statement. Rather, a statement is material if it is capable of influencing a

function within the grand jury's jurisdiction. See Brown v. United

States, 245 F.2d 549, 554 (8th Cir. 1957). A grand jury's decision to

disregard a witness's testimony does not necessarily indicate that the

testimony did not have the capacity to influence the grand jury. On

the contrary, even if a grand jury disregards a witness's false testimony, the false testimony may impede the grand jury's capacity to

attain an accurate and prompt resolution of the matter under consideration. See United States v. Dickerson, 114 F.3d 464, 466-67 (4th Cir.

1997).

The instant case is a paradigmatic example of how a discarded

false statement still may alter the outcome of a grand jury proceeding.

When Petitioner testified, the grand jury was investigating an alleged

money laundering and drug trafficking conspiracy involving Eagle

Motors' employees. Petitioner had direct knowledge concerning a

facet of the conspiracy. Petitioner's false testimony jeopardized the

accuracy of the grand jury's determinations and delayed the indictment of the Eagle Motors' conspirators. Despite the grand jury's decision not to rely on Petitioner's testimony, the false statements did

affect the outcome of the proceedings.*

Of course, Petitioner could have exercised his Fifth Amendment

right against self-incrimination. The Court acknowledges that Petitioner's decision not to answer the grand jury's questions also might

_________________________________________________________________

*The capacity of Petitioner's statements to impede an essential function of the grand jury was argued by Respondent at trial and included

within the trial judge's final charge to the jury.

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have delayed the proceedings and deprived the grand jury of valuable

information. However, in such a case, Petitioner would have been acting pursuant to a constitutionally vested right. Petitioner had no right

to provide false testimony under oath. It is a stalwart principle of

American jurisprudence that testifying witnesses have two permissible choices. They can provide truthful testimony or they can invoke

the protections of the Fifth Amendment. See Bryson v. United States,

396 U.S. 64, 72 (1969) (footnote omitted). False testimony is not a

permissible option. Id.

B. PERJURY ENTRAPMENT

Entrapment occurs when (1) the government induces a person to

commit a crime and (2) the person induced had no predisposition to

engage in the criminal act. Mathews v. United States, 485 U.S. 58, 63

(1988). In order to establish inducement, a defendant must show that

the government acted in an excessive manner that would prompt a

reasonably firm person to commit a crime. See United States v.

DeVore, 423 F.2d 1069, 1072 (4th Cir. 1970). If the defendant establishes a prima facie case of inducement, the government then must

show that the defendant's decision to commit the crime was the product of his own disposition that did not originate from government persuasion. See United States v. Osborne, 935 F.2d 32, 38 (4th Cir.

1991). A defendant is entitled to an entrapment defense whenever

there is sufficient evidence from which a reasonable jury could find

entrapment. Mathews, 485 U.S. at 62.

Perjury entrapment occurs when a government agent coaxes a

defendant to testify under oath for the sole purpose of eliciting perjury. See United States v. Shuck, 895 F.2d 962, 966 (4th Cir. 1990);

Brown, 245 F.2d at 555. In the instant case, Petitioner argues that he

is a victim of perjury entrapment because the government was aware

of his prior false statements to the agents. Petitioner asserts that the

government coaxed him into testifying before the grand jury for the

sole purpose of eliciting perjury. This argument is unpersuasive.

Entrapment is an affirmative defense. United States v. Blevins, 960

F.2d 1252, 1257 (4th Cir. 1992). Hence, the Petitioner must demonstrate that the government induced him to commit a crime. See

Osborne, 935 F.3d at 38. Based upon the information presented by the

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Petitioner, the Court concludes that there is no evidence suggesting

that the government's purpose in questioning the defendant was the

solicitation of perjured testimony. See Shuck , 895 F.2d at 966. At the

time that Petitioner testified before the grand jury, the government

was conducting an investigation into possible money laundering at

Eagle Motors. Petitioner's testimony was a source of possible evidence into several individuals' involvement in criminal activity. The

government did suspect that Petitioner provided false statements to

the government agents in a prior interview. However, this does not

mean that the government did not have a valid purpose in eliciting

Petitioner's testimony before the grand jury. It also does not show that

the government knew Petitioner would testify falsely before the grand

jury. Prior to his grand jury testimony, Petitioner knew that the government agents did not believe his statements. Moreover, Petitioner

was provided with Fifth Amendment warnings before he testified. He

was explicitly told that he could refuse to answer any question on the

ground that it might incriminate him. Arguably, Petitioner's prior

false statements provided the government with notice that he might

testify falsely before the grand jury. However, this falls far short of

proving that the government asked him to testify for the purpose of

eliciting perjury. When the government has a legitimate reason for

asking a witness to testify before the grand jury and the witness is

provided with adequate warnings, the mere fact that the government

knows that the witness possibly may provide false testimony does not

establish the requisite showing of inducement. See United States v.

Vesich, 724 F.2d 451, 460-61 (5th Cir. 1984). Absent sufficient evidence that the government asked defendant to testify for the purpose

of eliciting perjury, the defense of perjury entrapment must fail. See

Shuck, 895 F.2d at 966.

C. ALLEGED BRADY VIOLATIONS:

WITHHOLDING EXCULPATORY EVIDENCE

Prosecutorial withholding of exculpatory evidence violates due

process irrespective of whether the government did or did not act in

good faith. Brady v. Maryland, 373 U.S. 83, 87 (1963). In order to

prove a Brady violation, a defendant must show that the undisclosed

evidence was (1) favorable to the defendant; (2) material; and (3) that

the prosecution had the materials and failed to disclose them. Moore

v. Illinois, 408 U.S. 786, 794-95 (1972); Maynard v. Dixon, 943 F.2d

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407, 417 (4th Cir. 1991). Evidence is material if there is a reasonable

probability that its disclosure would have produced a different outcome. United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994).

Petitioner in the instant action argues that the government failed to

disclose the United States Attorney's statements regarding Petitioner's false testimony. Specifically, shortly after Petitioner testified in

the grand jury proceeding, the United States Attorney told the members of the grand jury to disregard Petitioner's testimony because it

was false. Petitioner argues that withholding this information prevented him from presenting his materiality and perjury entrapment

defenses to a jury. The threshold question for this Court on appeal is

not whether Petitioner was prevented from presenting his materiality

and perjury entrapment defenses to the jury; rather, the proper question is whether the government withheld evidence that probably

would have affected the outcome of Petitioner's trial. The Court,

however, already has found that Petitioner's materiality and perjury

entrapment arguments are meritless. Accordingly, evidence supporting those theories cannot be material. Failure to meet the materiality

prong of the Moore test precludes this Court from finding a Brady

violation.

Petitioner also claims that the government withheld exculpatory

evidence by failing to unseal an affidavit containing the names of

confidential informants who accused certain Eagle Motors' employees of engaging in criminal activity. Because many of the Eagle

Motors' employees named in the affidavit also testified against Petitioner at trial, Petitioner alleges that the affidavit was essential for

proper impeachment of the witnesses' credibility. The decision to seal

and unseal evidence is committed to the sound discretion of the trial

judge. See Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir.

1989). An appeals court may disturb a trial judge's decision to seal

or unseal a warrant only if the trial judge abused her discretion. Id.

In this case, the trial judge conducted a post trial in camera inspection

of the evidence. She determined that the evidence did not contain

exculpatory evidence, that petitioner was not prejudiced by the

unavailability of this evidence, and that the release of the sealed information might have jeopardized the identity of certain confidential

informants and the government's investigation. Respondent points out

that Petitioner did cross-examine the government's witnesses and

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impeached them specifically on the fact that they were testifying pursuant to a plea agreement. The trial judge found that the information

contained in the affidavit would not produce a different outcome for

Petitioner; however, it might have prejudiced the government's

efforts. This Court finds no evidence that in any way disputes her

findings or supports a conclusion that the trial judge abused her discretion. Hence, Petitioner's Brady argument regarding the affidavit

also must fail.

D. PROPRIETY OF THE JURY INSTRUCTIONS

Conviction of an offense requires a finding of guilt beyond a reasonable doubt as to each and every element of the offense charged in

the indictment. See Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).

In cases where a defendant is tried before a jury, the Sixth Amendment guarantees that the jury's findings of guilt be unanimous. Id.

Petitioner in this action alleges that the jury charge violated his

Sixth Amendment rights by not requiring a unanimous finding of guilt

as to each instance of conduct alleged in the indictment. The indictment charged Petitioner with one count of perjury and one count of

making false statements to a government agency. Contained within

the one count of perjury were multiple instances where the defendant

supposedly committed perjury before the grand jury. Contained

within the one count of false statements were multiple instances

where the defendant supposedly supplied materially false statements

to agents of the federal government. In her charge to the jury, the trial

judge listed the elements of perjury and false statements. She

instructed the members of the jury that in order to convict the defendant of perjury, they must unanimously find that the government

proved each and every element of the crime of perjury beyond a reasonable doubt. She followed an identical procedure for the charge of

making false statements. However, the trial judge also instructed the

jury that it did not have to agree unanimously as to each and every

instance of false conduct contained in the indictment. Rather, she

charged that the jury needed only to find unanimously that the government proved one instance of conduct to adjudge Petitioner guilty

of perjury. She presented identical language regarding the false statements charge. Petitioner contends that this instruction derogated his

 11
Sixth Amendment right to have the jury unanimously find him guilty

of each and every element of the offense beyond a reasonable doubt.

Petitioner's assertion confuses elements of an offense with

instances of conduct. A jury is required to find that the government

proved every element of each separate offense beyond a reasonable

doubt before adjudging a person guilty of an offense. Id. A jury is not

necessarily required to agree unanimously on every instance of conduct charged in an indictment. United States v. Tipton, 90 F.3d 861,

885 (4th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 117 S. Ct. 2414

(1997). Rather, when an indictment charges multiple instances of conduct listed in the conjunctive, a jury verdict of guilty will stand if the

jurors unanimously agree as to only one of the instances of conduct

alleged in the indictment. See Turner v. United States, 396 U.S. 398,

420 (1970); United States v. Burton, 871 F.2d 1566, 1573 (11th Cir.

1989). Often, a trial judge will have to provide a special unanimity

instruction in order to prevent confusion. For example, in United

States v. Holly, 942 F.2d 916, 929 (5th Cir. 1991), the Fifth Circuit

reversed a perjury conviction after the trial judge failed to instruct a

jury that each member must agree unanimously on at least one

instance of conduct in order to judge the defendant guilty. The Fifth

Circuit held that the failure to mention unanimity as to one instance

of conduct may lead the jury to conclude that each member simply

had to find individually that the defendant committed one of the acts

alleged in the indictment. Id. However, Holly is not applicable in this

case because the trial judge did instruct the jury that each member had

to agree unanimously on one of the instances of conduct before

adjudging Petitioner guilty of the offenses charged in the indictment.

Consistent with this Court's prior holding in Tipton, such an instruction removes confusion and allows the jury to make a finding of guilt

in accordance with the Sixth Amendment. Tipton , 90 F.3d at 885; see

also United States v. Hixon, 987 F.2d 1261, 1265 (6th Cir. 1993).

Therefore, the Court finds no error in the trial judge's jury charge.

III.

CONCLUSION

For the foregoing reasons, the judgment of conviction is affirmed.

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AFFIRMED

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