United States v. Gurr, Bernard

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2006 Decided December 8, 2006

No. 05-3122

UNITED STATES OF AMERICA,
APPELLEE

v.

BERNARD GURR,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 99cr00394-01)

Joseph R. Conte, appointed by the court, argued the cause
and filed the briefs for appellant.

John P. Gidez, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese III and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: SENTELLE, ROGERS and GARLAND, Circuit Judges.
 2

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Appellant Bernard Gurr appeals
his conviction by a jury of defrauding the United States when he
was the manager of a federal credit union in American Samoa.
He contends that the district court erred in (1) denying his
motion to suppress documents discovered during a border
search upon his arrival at the Honolulu International Airport; (2)
admitting, over his hearsay objection, a report by an examiner
from the National Credit Union Administration (“NCUA”); and
(3) denying his motion for judgment of acquittal of
embezzlement (Count 18) and witness tampering (Count 20).
Gurr pro se also contends that the district court lacked subject
matter jurisdiction and that venue was improper. We affirm.

I.

From June 1986 until October 1993, Bernard Gurr was the
manager of the American Samoa Government Employees
Federal Credit Union, located in American Samoa and
supervised and insured by the NCUA. In late 1992, Pete
Steiger, a Problem Case Officer at the NCUA, was assigned to
review problems that had been identified at the credit union,
including inadequate liquidity, poor loan underwriting, and a
high loan-deficiency rating. Steiger’s investigation and audit of
the credit union, which was summarized in a report consisting
of an Order of Conservatorship and Confidential Statement of
Grounds for Conservatorship, led the NCUA to place the credit
union in conservatorship in October 1993. In December 1999,
Gurr was indicted with three other credit union employees for
conspiring to defraud the United States. The indictment alleged
that the goals of the conspiracy were to keep the NCUA from
discovering the true financial status of the credit union and to
maintain control of the credit union’s assets for the personal
benefit of the conspirators.
 3

Flying from American Samoa on December 11, 1999, Gurr
was arrested for credit union fraud upon landing in Hawaii at
the Honolulu International Airport. Shortly after his arrival,
two United States Customs officials seized and searched his
luggage and discovered financial documents taken from the
credit union. On May 30, 2000, Gurr was charged in a
superseding indictment with conspiracy, in violation of 18
U.S.C. § 371 (Count 1); two counts of knowingly making and
causing to be made false federal credit institution entries, and
aiding and abetting, in violation of 18 U.S.C. §§ 1006, 2
(Counts 2 and 3); fourteen counts of willfully and knowingly
defrauding lending, credit, and insurance institutions, and aiding
and abetting, in violation of 18 U.S.C. §§ 657, 2 (Counts 4, 6-
18); knowingly making and causing to be made false statements
in a loan and credit application, and aiding and abetting, in
violation of 18 U.S.C. §§ 1014, 2 (Count 5); obstruction of an
examination of a financial institution, and aiding and abetting,
in violation of 18 U.S.C. §§ 1517, 2 (Count 19); and tampering
with a witness, and aiding and abetting, in violation of 18
U.S.C. §§ 1512, 2 (Count 20).

The district court denied Gurr’s motion to suppress the
financial documents seized during Customs officials’ search of
his luggage and his motion to reconsider. The district court also
overruled Gurr’s objections to the admission of the NCUA
report prepared by Problem Case Officer Steiger as hearsay,
ruling that the report was admissible as a business record under
FED. R. EVID. 803(6). The district court granted the
government’s mid-trial motion to dismiss one count of fraud
(Count 7). A jury found Gurr guilty of the remaining counts.
On November 14, 2003, the district court sentenced Gurr to 70
months’ imprisonment to be followed by three years’ supervised
release.
 4

II.

Challenging the denial of his motion to suppress the
financial documents that U.S. Customs officials seized during
a search of his luggage upon his arrival in the United States,
Gurr contends that even if Customs officials generally have the
legal authority to perform routine border searches of
passengers’ luggage, in this case, the warrantless search was
unreasonable. The U.S. Customs Service is authorized, pursuant
to 19 U.S.C. § 1582,1 to subject every international traveler to
a routine warrantless inspection. See United States v. Galloway,
316 F.3d 624, 629 (6th Cir. 2003); Bradley v. United States, 299
F.3d 197, 202 (3rd Cir. 2002); United States v. Yang, 286 F.3d
940, 944 (7th Cir. 2002); United States v. Fortna, 796 F.2d 724,

1
Section 1582 authorizes the Secretary of the Treasury to
issue regulations “for the search of persons and baggage . . . coming
into the United States from foreign countries.” 19 U.S.C. § 1582.
Pursuant to that authority, the Secretary’s regulations provide, in
relevant part:

All persons, baggage, and merchandise arriving in the
Customs territory of the United States from places
outside thereof are liable to inspection and search by
a Customs officer . . . authorized to cause inspection,
examination, and search to be made under section
467, Tariff Act of 1930, as amended (19 U.S.C. §
1467), of persons, baggage, or merchandise, even
though such persons, baggage, or merchandise were
inspected, examined, [or] searched . . . at another . . .
place in the United States or the Virgin Islands, if
such action is deemed necessary or appropriate.

19 C.F.R. § 162.6. “Customs territory of the United States . . .
includes the States, the District of Columbia, and the Commonwealth
of Puerto Rico.” Id. § 134.1(f); see also id. § 7.2.
 5

738 (5th Cir. 1986); 19 C.F.R. § 162.6 (2006). Gurr does not
deny this, but instead maintains that the FBI’s involvement
transformed the inspection from a permissible border action into
“an FBI fishing expedition.” Appellant’s Br. at 11. As proof of
the FBI’s dominating influence, Gurr points to evidence that the
FBI agents were on site and that Customs officials asked the
FBI agents whether they should keep the financial documents
and, upon seizing them, immediately handed the documents
over to the FBI. As Gurr sees it, Customs had no suspicion that
his luggage contained contraband or dutiable merchandise,2 and
hence the search was capricious and illegal. Our review of the
denial of a motion to suppress is de novo. See United States v.
Ornelas, 517 U.S. 690, 691 (1996).

Congress enjoys a plenary “power to protect the Nation by
stopping and examining persons entering this country [and,
accordingly], the Fourth Amendment’s balance of
reasonableness is qualitatively different at the international
border than in the interior.” United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985). “[N]ot only is the
expectation of privacy less at the border than in the interior . . . ,
the Fourth Amendment balance between the interests of the
Government and the privacy right of the individual is also
struck much more favorably to the Government at the border.”
Id. at 539-40. “[S]earches made at the border, pursuant to the
long-standing right of the sovereign to protect itself by stopping

2
Under 19 U.S.C. § 482, a Customs officer is authorized

to search any trunk or envelope, wherever found, in
which [the officer] . . . may have a reasonable cause
to suspect there is merchandise which was imported
contrary to law; and if any such officer . . . shall find
any merchandise . . . he shall seize and secure the
same for trial.
 6

and examining persons and property crossing into this country,
are reasonable simply by virtue of the fact that they occur at the
border.” United States v. Ramsey, 431 U.S. 601, 616 (1977).
The search of a passenger’s luggage upon arriving in the United
States after a nonstop flight from outside the country is
considered “the functional equivalent of a border search.”
Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973).

Courts have routinely rejected the notion that cooperation
among federal agencies renders a border search unlawful. For
example, then-Judge Anthony Kennedy, writing in United
States v. Schoor, 597 F.2d 1303, 1306 (9th Cir. 1979),
confronted similar circumstances as here and rejected the
argument that a search violated the Fourth Amendment because
it was not limited to a search for contraband and was conducted
at the behest of Drug Enforcement Administration (“DEA”)
agents who lacked probable cause to search. In Schoor, DEA
agents alerted Customs officials that two passengers suspected
of smuggling heroin in transistor radio shipments were en route
to the United States on a flight from Thailand and requested that
Customs search them, as they might be carrying narcotics. A
subsequent search by Customs, in the presence of a DEA agent,
revealed bills for radios and other items transported earlier from
Thailand, as well as airway bills apparently relating to a
shipment of heroin-filled radios seized in Thailand. The two
men were arrested by DEA agents for conspiracy to smuggle
heroin into the United States, and the DEA agents seized the
documents incident to the arrest. Judge Kennedy explained the
court’s reasoning:

[T]here is no dispute that the search was conducted at
an international border by customs officers legally
entitled to search persons entering the United States.
That the search was made at the request of the DEA
officers does not detract from its legitimacy.
 7

Suspicion of customs officials is alone sufficient
justification for a border search. The source of that
suspicion is irrelevant in sustaining the search.

Moreover, the border search was legitimate in
scope. We recognize that the primary purpose of a
border search is to seize contraband property
unlawfully imported or brought into the United States.
However, where customs officers are authorized to
search for material subject to duty or otherwise
introduced illegally into the United States and they
discover the instrumentalities or evidence of crimes,
they may seize the same.

Id. (citations omitted). The decisions in the other circuits are to
the same effect. See United States v. Boumelhem, 339 F.3d 414,
423 (6th Cir. 2003); People v. Villacrusis, 992 F.2d 886, 887
(9th Cir. 1993); United States v. Carter, 592 F.2d 402, 406 (7th
Cir. 1979); United States v. Bates, 526 F.2d 966, 967 (5th Cir.
1976).

Gurr thus misstates the law in arguing that no case suggests
that Customs officials may seize something that they do not
know to be contraband. The distinction that Gurr would draw
between contraband and documentary evidence of a crime is
without legal basis. Cf. Warden, Md. Penitentiary v. Hayden,
387 U.S. 294, 301 (1967). Following Gurr’s reasoning, and
contrary to Schoor, 597 F.2d at 1306, Customs officials could
not lawfully seize records of a drug operation during a border
search even if Customs had been informed by the DEA that an
arrested co-conspirator had implicated the passenger. The
Supreme Court has suggested in analogous circumstances that
the important factor for a court to consider is whether the search
was conducted under proper authority, not the “underlying
intent or motivation of the officers involved.” Scott v. United
 8

States, 436 U.S. 128, 138 (1978); see United States v. Robinson,
414 U.S. 218, 236 (1973); see also Boumelhem, 339 F.3d at
423; Bates, 526 F.2d at 967; cf. United States v. Villamonte-
Marquez, 462 U.S. 579, 584 n.3 (1983); 1 WAYNE R. LAFAVE,
SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 1.8(b), at 261-62 (4th ed. 2004).

Additionally, Gurr misstates the trial record in asserting
that Customs officials “had no idea of the significance of the
documents they were looking at” because the documents
consisted only of “plain old account numbers with monetary
amounts next to them.” Appellant’s Br. at 13. Customs
officials testified that they knew that the charges pending
against Gurr involved a fraud allegedly committed against a
federal credit union in American Samoa. The two Customs
officials conducting the luggage search had been personally
involved in placing Gurr under arrest. U.S. Customs Special
Agent Douglas S. Palmer testified that, as a result, their
suspicions were heightened, giving them every reason to search
Gurr’s luggage and notice the financial documents, and that it
was a Customs agent who first realized the significance of the
financial documents. That agent, Ferdinand Jose, a senior
Customs inspector, testified that the FBI agents did not see any
of the documents as he took them out of the suitcase and that it
was only after he determined their relevance, reported his
findings, and turned over the documents to Palmer that it was
determined to retain them. Moreover, the documents seized
from Gurr’s luggage were clearly identifiable as relevant. For
example, one of the documents is labeled at the top, “ASG
EMPLOYEES FEDERAL CREDIT UNION WITHDRAWAL
VOUCHER,” and shows a transaction for $5000 cash; another
is labeled “JOURNAL VOUCHER: American Samoa
Government Employees Federal Credit Union” and shows a
transaction for $1000 cash.
 9

For these reasons, it is apparent that the Customs officials
conducted a permissible border search and lawfully seized the
documents. The district court’s finding that there was “some
evidence” of FBI involvement in the search, as a result of an
FBI request to Customs to retain the financial documents, does
not require a different conclusion and we need not address the
government’s argument based on inevitable discovery, see Nix
v. Williams, 467 U.S. 431 (1984), and its progeny, upon which
the district court relied. See United States v. Davis, 181 F.3d
147, 149 (D.C. Cir. 1999).

Moreover, even if we had doubt about the lawfulness of
Customs’ seizure of Gurr’s luggage and assumed, as Gurr
maintains, that the superseding indictment sprang from the
seizure of the documents found therein, Gurr fails to explain
how the financial documents seized at the Honolulu airport
affected his convictions on any of the counts in the indictment.
On appeal, the government explains that most of the
documentary evidence critical to its case was obtained during
the course of the NCUA investigation, either from the credit
union or the NCUA Texas storage facility, independent of the
Honolulu documents. Further, witnesses testified regarding the
same information as appeared in the Honolulu documents. For
example, as to the Honolulu documents relevant to Counts 6
through 12 involving Gurr’s defrauding of Faataumalama Felti,
Felti testified that Gurr had told him to sign a receipt for money
from his credit union account that he never received. This
testimony was bolstered by the introduction of credit union
records regarding the suspect transactions. Additional counts
that Gurr identifies in his reply brief as having been proved by
the Honolulu documents are similarly supported by other record
evidence. Hence, any error in admitting the seized financial
documents was harmless beyond a reasonable doubt and a new
trial is not required. See Chapman v. California, 386 U.S. 18,
24 (1967).
 10

III.

Gurr also contends that the district court erred in overruling
his hearsay objection to the admission of Exhibit PS 41, the
NCUA Order of Conservatorship and Confidential Statement of
Grounds for Conservatorship (“the report”). Because the report,
which was hearsay, was based, in part, on the NCUA Problem
Case Officer’s interviews of credit union employees, Gurr
maintains that it contained compound hearsay statements by his
accusers. From this he concludes that the report was testimonial
and its admission violated his rights under the Confrontation
Clause, citing Crawford v. Washington, 541 U.S. 36 (2004), and
Davis v. Washington, 126 S. Ct. 2266 (2006). Specifically,
Gurr maintains that the report was “testimonial” because in
Davis, the Supreme Court concluded that a domestic battery
victim’s written statements in an affidavit given to the police at
a crime scene were “testimonial” and therefore subject to the
Confrontation Clause.

In addressing Gurr’s hearsay objection, the district court
noted that the report appeared to meet the requirements of a
business record under FED. R. EVID. 803(6) and that because the
preparer of the report was testifying and would be subject to
cross-examination, the only remaining question was whether the
report contained references to statements by witnesses who
would not be testifying at trial. In this regard, the district court
observed that page 5 of the Confidential Statement of Grounds
for Conservatorship included statements that “information was
received from an employee” regarding one of the credit union
family accounts and that two former employees had “made
allegations . . . about improprieties on the part of current
management” that had not been confirmed. The district court
initially ruled that the report was inadmissible because of the
prejudicial statements by witnesses who were unavailable for
the defense to cross-examine. The prosecutor subsequently
 11

advised the district court that the sources of the double hearsay
would be testifying at trial. The district court then ruled that the
report was admissible, noting that the statement concerning the
allegations by two former employees was in the nature of
minutes, and that upon applying FED. R. EVID. 403, the
probative value of the report outweighed any prejudice to Gurr.
The district court further indicated that it would redact the
compound hearsay statements that appear on page 5 of the
report. Our review of the district court’s admission of the report
is for abuse of discretion. See United States v. Kim, 595 F.2d
755, 763 n.38 (D.C. Cir. 1979).

To the extent that the report was a statement “other than
one made by the declarant while testifying at the trial . . .
offered in evidence to prove the truth of the matter asserted,”
FED. R. EVID. 801(c), it was hearsay, and to be admissible it
must fall within one of the exceptions to the hearsay rule, see
FED. R. EVID. 802. The business records exception to the
hearsay rule provides for the admission of:

A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge,
if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that
business activity to make the memorandum, report,
record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness,
unless the information or method or circumstances of
preparation indicate lack of trustworthiness.

FED. R. EVID. 803(6). The hearsay in records of regularly
conducted activity is admissible “only if it was reported to the
maker [of the report] directly or through others, by one who is
 12

himself acting in the regular course of business, and who has
personal knowledge.” United States v. Smith, 521 F.2d 957, 964
(D.C. Cir. 1975).

“Double hearsay exists when a business record is prepared
by one employee from information supplied by another
employee.” United States v. Baker, 693 F.2d 183, 188 (D.C.
Cir. 1982); see FED. R. EVID. 805. It is excepted from the
hearsay rule provided “both the source and the recorder of the
information, as well as every other participant in the chain
producing the record, are acting in the regular course of
business,” Baker, 693 F.2d at 188. Because the regularity of
making the record is evidence of its accuracy, statements by
“outsiders” are not admissible for their truth under FED. R.
EVID. 803(6), see Baker, 693 F.2d at 188 (citing United States
v. Davis, 571 F.2d 1354 (5th Cir. 1978); 4 DAVID W. LOUISELL
& CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE, § 448
(1980); MCCORMICK ON EVIDENCE § 310, at 725-26 (2d ed.
1972); 4 JACK B. WEINSTEIN & MARGARET A. BERGER,
WEINSTEIN’S EVIDENCE ¶ 803(6)[04] (1981)), in the absence of
a showing that the outsider had a duty to report the information,
see United States v. Bortnovsky, 879 F.2d 30, 34 (2d Cir. 1989),
or that it was standard practice for the preparer to verify
information from outside sources, see United States v. Patrick,
959 F.2d 991, 1001 (D.C. Cir. 1992).

On appeal, Gurr does not challenge the district court’s
factual findings that, as Steiger, the preparer of the report,
testified, it was the regular practice of the NCUA to create these
reports in order to place credit unions into conservatorship, and
that it was a normal part of his job to prepare the Confidential
Statement of Grounds for Conservatorship, which he did in this
 13

case.3 Gurr offers nothing to suggest a lack of trustworthiness
as to Steiger’s recording of his opinions, diagnoses, and
observations. See United States v. Frazier, 53 F.3d 1105, 1109-
10 (10th Cir. 1995) (citing 4 CHRISTOPHER B. MUELLER &
LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 450, at 534-36
(2d ed. 1994)); cf. United States v. Garland, 991 F.2d 328, 334-
35 (6th Cir. 1993). Instead, Gurr contends that the district
court erred in admitting the report for three reasons.

First, Gurr maintains that the report was hearsay admitted
in violation of FED. R. EVID. 802. However, most of the report
appears to be admissible as Steiger’s course-of-business
observations under the exception of FED. R. EVID. 803(6). Gurr
has not pointed to anything in the record suggesting otherwise.

Second, Gurr maintains that specific statements within the
report were inadmissible double hearsay. Of the five potentially
problematic paragraphs on page 5 of the report, Gurr points to
only two of them in his brief. Those paragraphs state that “a

3
Gurr’s claim that the report was made in contemplation of
litigation and therefore was inadmissible under FED. R. EVID. 803(6),
see Palmer v. Hoffman, 318 U.S. 109, 113-14 (1943); Scheerer v.
Hardee’s Food Systems, Inc., 92 F.3d 702, 706-07 (8th Cir. 1996), is
raised for the first time on appeal and he cannot show plain error, see
United States v. Thomas, 896 F.2d 589, 591 (D.C. Cir. 1990). The
credit union was in fact placed in conservatorship and the preparer of
the substantive part of the report, i.e., the Confidential Statement of
Grounds for Conservatorship, testified at trial. Gurr’s further claim
that factual findings in public reports under FED. R. EVID. 803(8)(C)
are admissible only against the government in criminal cases appears
only in his reply brief and is therefore waived, see United States v.
Taylor, 339 F.3d 973, 977 (D.C. Cir. 2003); in any event, any error
was harmless because the preparer of the report and the persons upon
whom he relied testified and were subject to cross-examination at trial.
See United States v. Davis, 181 F.3d 147, 149-50 (D.C. Cir. 1999).
 14

former employee provided information demonstrating that the
manager’s list of his immediate family members’ accounts was
incomplete” and that “information was received from an
employee indicating another family account.” However, Gurr’s
counsel published them to the jury, explaining on appeal that he
did so in order to impeach the integrity of the report. Two other
paragraphs on page 5 include similar statements. One
paragraph states that “[f]our former employees and two former
directors have allegedly committed fraud.” Again, Gurr’s
counsel published this paragraph during his cross-examination
of Steiger. Gurr may not now object to evidence that he himself
submitted at trial. The other paragraph states that “two former
employees . . . made allegations . . . about improprieties on the
part of the current management” that could not be verified. The
district court ruled that this paragraph was admissible only as
minutes of Steiger’s investigation, and not to prove the truth of
the allegations against Gurr; hence, it poses no hearsay problem.
See FED. R. EVID. 801. The double hearsay in the remaining
paragraph was an employee’s statement that she had been told
by a credit union board member “to stand behind current
management or look for a new job.” Admission of this
statement, as well as the other double hearsay, was harmless
error because the witnesses testified at the trial and were subject
to cross-examination. See FED. R. CRIM. P. 52(a); Kotteakos v.
United States, 328 U.S. 750, 765 (1946).

Third, Gurr maintains that the admission of the double
hearsay violated his rights under the Confrontation Clause,
which provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. Because Gurr published
some of the double hearsay to the jury and because Steiger,
employees (including former employees), and account holders
testified at trial and were subject to cross-examination, Gurr’s
Confrontation Clause contention fails. See United States v.
 15

Powell, 334 F.3d 42, 45-46 (D.C. Cir. 2003). Even if we were
to assume that there had been such a violation, any error in
admitting the report was harmless. See Chapman, 386 U.S. at
22-23; Baker, 693 F.2d at 189; FED. R. CRIM. P. 52(a). The
NCUA examiners were available for cross-examination and
they testified regarding the reasons for their conclusions that
conservatorship was necessary. There was abundant evidence,
including documentary evidence, independent of the report
relating to the matters it discussed. Defrauded credit union
account holders as well as present and former credit union
employees testified and were available for cross-examination.
A comparison of the report and the trial record reveals that the
government’s witnesses testified regarding its key areas of
discussion: insolvency, unprofitability, increasing delinquency,
non-amortizing loans, liquidity/asset liability management,
weak management, and fraud/internal controls.

IV.

Gurr also challenges the sufficiency of the evidence of
embezzlement in Count 184 and corrupt persuasion of a witness

4
Section 657 provides that it is a criminal offense for any
person who

being an officer, agent or employee of or connected
in any capacity with [an insured credit
institution,] . . . embezzles, abstracts, purloins or
willfully misapplies . . . [funds of that
institution] . . . or [funds] pledged or otherwise
entrusted to its care.

18 U.S.C. § 657.
 16

in Count 20.5

Viewing the evidence most favorably to the government, as
we must, see United States v. Wahl, 290 F.3d 370, 375 (D.C.
Cir. 2002), there was sufficient evidence that Gurr embezzled
money from credit union member Francis Stowers.
Embezzlement is “the fraudulent appropriation of property by
a person to whom such property has been entrusted, or into
whose hands it has lawfully come.” United States v. Holmes,
611 F.2d 329, 331 (10th Cir. 1979) (quoting Moore v. United
States, 160 U.S. 268, 269 (1895)). The evidence showed that
Stowers, at Gurr’s direction, signed a blank voucher; that Gurr
told Stowers to return to the credit union the following day to
collect his money; that Gurr gave the voucher to the credit
union teller and told her to withdraw $5,000 from Stowers’
account, which she did, giving the money to Gurr; and that
Stowers returned the next day but never received his money.
The jury could have reasonably concluded that Gurr embezzled
or misapplied credit union funds when he (1) instructed a teller
to withdraw the cash meant as a home improvement loan for
Stowers; (2) took the money from the teller; and (3) never gave

5
Section 1512(b) provides that it is a criminal offense to

corruptly persuade[] another person, or attempt[] to
do so, or engage[] in misleading conduct toward
another person, with intent to . . . influence, delay, or
prevent the testimony of any person in an official
proceeding . . . [or] hinder, delay, or prevent the
communication to a law enforcement officer or judge
of the United States of information relating to the
commission or possible commission of a federal
offense.

18 U.S.C. § 1512(b).
 17

the money to Stowers. As the government maintains, a fair
inference can be drawn that Gurr fraudulently converted
property entrusted to him and used it for his own purposes.

Similarly, there was sufficient evidence of witness
tampering. The evidence showed that after Gurr was arrested,
he and another credit union employee (Fiapapalagi Eteuati)
attempted to corruptly persuade a witness (Grace Uigalelei) to
sign an affidavit falsely stating that she had authorized money
to be transferred from her account. Gurr contends that this is
insufficient to establish the allegation in the indictment because
there was no evidence of cooperation between Gurr and the
other credit union employee and no evidence that the witness
was intimidated or threatened. However, Gurr was not charged
with intimidating or threatening Uigalelei, and the jury could
reasonably find that Gurr, with the assistance of Eteuati,
attempted to “corruptly persuade[]” Uigalelei in order to
influence her testimony by having her sign a false affidavit.
See, e.g., United States v. Sanders, 421 F.3d 1044, 1051 (9th
Cir. 2005); United States v. LaShay, 417 F.3d 715, 718 (7th Cir.
2005); United States v. Cruzado-Laureano, 404 F.3d 479, 487
(1st Cir. 2005); United States v. LaFontaine, 210 F.3d 125, 132-
33 (2d Cir. 2000).

V.

Finally, Gurr contends that the district court lacked
jurisdiction and that venue was improper. He first raised these
defenses nearly two years after his conviction (but before
sentencing).

Gurr’s objection is that only the courts of American Samoa
had jurisdiction because that is where the crimes occurred. See
U.S. CONST. art. III, § 2, cl. 3; 28 U.S.C. §§ 81-144; FED. R.
CRIM. P. 18. Contrary to Gurr’s contentions, U.S. Code Title 18
 18

applies in American Samoa regardless of whether the Secretary
of the Department of the Interior has said so explicitly, see 18
U.S.C. § 5, and American Samoan courts do not have
jurisdiction of violations of Title 18, see id. § 3231. Rather, the
district courts of the United States have exclusive, original
jurisdiction of all offenses against the laws of the United States.
See id.

Gurr’s objection to venue is also meritless. Although Gurr
last resided in American Samoa and was arrested in Hawaii
after voluntarily entering the United States, because he was not
arrested or “first brought” into the United States until after he
had been indicted in the District of Columbia, venue was proper
in the District of Columbia. See 18 U.S.C. § 32386; United
States v. Catino, 735 F.2d 718, 724 (2d Cir. 1984); United
States v. Hsin-Yung, 97 F. Supp. 2d 24, 28 (D.D.C. 2000); 2
CHARLES ALAN WRIGHT, FEDERAL PRACTICE & PROCEDURE §
304 (3d ed. 2000) (citing United States v. Hilger, 867 F.2d 566,
568 (9th Cir. 1989); United States v. Layton, 855 F.2d 1388,

6
Section 3238 provides:

The trial of all offenses begun or committed upon the
high seas, or elsewhere out of the jurisdiction of any
particular State or district, shall be in the district in
which the offender, or any one of two or more joint
offenders, is arrested or is first brought; but if such
offender or offenders are not so arrested or brought
into any district, an indictment or information may be
filed in the district of the last known residence of the
offender or of any one or two or more joint offenders,
or if no such residence is known the indictment or
information may be filed in the District of Columbia.

18 U.S.C. § 3238.
 19

1410-11 (9th Cir. 1988), overruled by Guam v. Ignacio, 10 F.3d
608, 612 n.2 (9th Cir. 1993)).

Accordingly, we affirm the judgment of conviction.