ON REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4014

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

BALRAJ NAIDU,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:08-cr-00091-CCB-2)

Submitted: January 24, 2012 Decided: May 4, 2012

Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.

Affirmed and remanded by unpublished per curiam opinion.

Andrew H. Baida, ROSENBERG MARTIN GREENBERG, LLP, Baltimore, 

Maryland, for Appellant. James G. Warwick, Rachel Miller 

Yasser, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, 

Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A federal jury convicted Balraj Naidu of conspiracy to 

provide material support to a foreign terrorist organization, in 

violation of 18 U.S.C.A. § 2339B(a)(1) (West Supp. 2011). The 

district court sentenced Naidu to fifty-seven months of 

imprisonment. On appeal, counsel filed a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), questioning whether 

the verdict form constructively amended the indictment and 

whether there was sufficient evidence to support the conviction. 

Naidu also filed a pro se supplemental brief raising additional 

issues.* We affirmed the judgment of the district court. We now 

grant Naidu’s petition for panel rehearing. Although we affirm 

the conviction and sentence, we remand to the district court to 

correct a clerical error in the judgment. 

On appeal, counsel first questions whether the verdict 

form constructively amended the indictment. As Naidu failed to 

raise this issue in the district court, we review this issue for 

plain error. See Fed. R. Crim. P. 52(b); United States v. 

Olano, 507 U.S. 725, 731-32 (1993). To meet this standard, 

Naidu must demonstrate that there was error, that was plain, and 

that affected his substantial rights. Id. Moreover, even if 

 * We have considered the issues raised in Naidu’s pro se 

briefs and conclude that they lack merit. 
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Naidu demonstrates plain error occurred, we will not exercise 

discretion to correct the error “unless the error seriously 

affect[s] the fairness, integrity or public reputation of 

judicial proceedings.” Id. (internal quotation marks and 

citation omitted).

“A constructive amendment to an indictment occurs when 

either the government (usually during its presentation of 

evidence and/or its argument), the court (usually through its 

instructions to the jury), or both, broadens the possible bases 

for conviction beyond those presented by the grand jury.” 

United States v. Hackley, 662 F.3d 671, 682 n.6 (4th Cir. 2011) 

(internal quotation marks and citation omitted). Constructive 

amendments are “fatal variances because the indictment is 

altered to change the elements of the offense charged, such that 

the defendant is actually convicted of a crime other than that 

charged in the indictment.” United States v. Perry, 560 F.3d 

246, 256 (4th Cir. 2009) (internal quotation marks and citations 

omitted). 

Here, while the indictment charged the knowledge 

element of the offense in the conjunctive, the verdict form and 

the statute list the knowledge element in the disjunctive. As 

counsel correctly concedes, however, “[i]t is well established 

that when the [g]overnment charges in the conjunctive, and the 

statute is worded in the disjunctive, the district court can 
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instruct the jury in the disjunctive.” Perry, 560 F.3d at 256 

(internal quotation marks and citations omitted). We therefore 

conclude that the district court did not commit plain error in 

crafting the verdict form and instructing the jury regarding the 

form. 

Counsel next questions whether the Government 

presented sufficient evidence to support the conviction, 

contending that Naidu was excluded from the conspiracy by his 

coconspirators. We review a district court’s decision to deny a 

Fed. R. Crim. P. 29 motion for a judgment of acquittal de novo. 

United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). A 

defendant challenging the sufficiency of the evidence faces a 

heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 

(4th Cir. 1997). “In reviewing the sufficiency of the evidence 

supporting a criminal conviction, our role is limited to 

considering whether there is substantial evidence, taking the 

view most favorable to the Government, to support it.” Id.

(internal quotation marks and citation omitted). Substantial 

evidence is “evidence that a reasonable finder of fact could 

accept as adequate and sufficient to support a conclusion of a 

defendant’s guilt beyond a reasonable doubt.” Smith, 451 F.3d 

at 216 (internal quotation marks and citation omitted). 

“Reversal for insufficient evidence is reserved for the rare 
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case where the prosecution’s failure is clear.” Beidler, 110 

F.3d at 1067 (internal quotation marks and citation omitted).

In order to obtain a conviction under § 2339B(a), the 

Government was required to prove that Naidu knowingly conspired 

to provide material support to a foreign terrorist organization, 

with knowledge that the organization is a designated terrorist 

organization, engaged in terrorist activity, or engaged in 

terrorism. 18 U.S.C. § 2339B(a). “Once a conspiracy is 

established, . . . it is presumed to continue unless or until 

the defendant shows that it was terminated or he withdrew from 

it.” United States v. Green, 599 F.3d 360, 369 (4th Cir. 2010). 

We have thoroughly reviewed the record and conclude that the 

Government provided overwhelming evidence of Naidu’s guilt of 

the offense of conviction and that the evidence did not 

demonstrate Naidu’s affirmative withdrawal from the conspiracy. 

See id. at 369-70 (internal conflict between conspirators 

resulting in defendant’s hiatus from conspiracy failed to

demonstrate affirmative withdrawal). 

We therefore affirm Naidu’s conviction and sentence. 

However, the judgment of the district court contains an internal 

inconsistency that must be corrected. While correctly listing 

the offense of conviction as “Count 2” in one section, the 

judgment later incorrectly refers to the offense of conviction 

as “Count 1,” and refers to the statute charged in Count 1 of 
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the indictment, a count on which Naidu was not tried. We 

therefore remand to the district court to correct this clerical 

error in accordance with Fed. R. Crim. P. 36. 

We have examined the entire record in accordance with 

the requirements of Anders and have found no other meritorious 

issues for appeal. Accordingly, we affirm the conviction and 

sentence, and remand to the district court to correct the error 

in the judgment. We also deny Naidu’s motion for appointment of 

substitute counsel. This court requires that counsel inform 

Naidu, in writing, of the right to petition the Supreme Court of 

the United States for further review. If Naidu requests that a 

petition be filed, but counsel believes that such a petition 

would be frivolous, then counsel may move in this court for 

leave to withdraw from representation. Counsel’s motion must 

state that a copy thereof was served on Naidu. 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 AND REMANDED