UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4921
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRFAN M. JAMEEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:13-cr-00098-HCM-LRL-1)
Submitted: August 28, 2015 Decided: October 7, 2015
Before KING, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Brian Donnelly, J. BRIAN DONNELLY, P.C., Virginia Beach,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Robert J. Krask, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Irfan M. Jameel of wire fraud affecting a
financial institution, 18 U.S.C. §§ 2, 1343, 3293 (2012) (Count
1); financial institution fraud, 18 U.S.C. §§ 2, 1344 (2012)
(Counts 2 and 3); and using a false social security number, 18
U.S.C. § 2, 48 U.S.C. § 408(a)(7)(B) (2012) (Count 4). Jameel
received a 108-month sentence. Pursuant to the indictment, the
district court also entered a forfeiture money judgment in the
amount of $3,927,591.66. On appeal, Jameel alleges that (1) the
offenses in the indictment were impermissibly joined and, if
not, the district court abused its discretion in denying his
motion to sever Count 4; (2) the district court erred in denying
his proposed jury instructions regarding state of mind; and (3)
the district court erred in permitting the Government to obtain
a money judgment in lieu of forfeiture of specific property and,
if not, he was entitled to submit the monetary determination to
a jury. Jameel has also filed a pro se supplemental brief.
Finding no reversible error, we affirm.
Jameel first claims that the district court erred in ruling
that Fed. R. Crim. P. 8(a) permitted joinder of Count 4 of the
indictment, fraudulent use of a social security number, with the
other three counts of the indictment. He further claims that,
even if proper, under Fed. R. Crim. P. 14, the joinder was
prejudicial because the evidence associated with the wire fraud
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and bank fraud charges would not have been admissible at a
separate trial on the unrelated charge of fraudulent use of a
social security number.
Rule 8(a) provides that two or more offenses may be charged
in the same indictment when the offenses “are of the same or
similar character, or are based on the same act or transaction,
or are connected with or constitute parts of a common scheme or
plan.” Fed. R. Crim. P. 8(a). We interpret the second and
third alternative prongs “flexibly, requiring that the joined
offenses have a logical relationship to one another.” United
States v. McLaurin, 764 F.3d 372, 385 (4th Cir. 2014) (citation
and internal quotation marks omitted), cert. denied, 135 S. Ct.
1842 (2015). “Joined offenses have a logical relationship to
one another for Rule 8(a) purposes, when consideration of
discrete counts against the defendant paints an incomplete
picture of the defendant’s criminal enterprise.” Id. (citation
and internal quotation marks omitted). Because of the prospect
of duplicating witness testimony, impaneling additional jurors,
and wasting limited judicial resources, joinder is the rule
rather than the exception. United States v. Hawkins, 589 F.3d
694, 700 (4th Cir. 2009).
"The question of '[w]hether offenses in an indictment are
improperly joined under Rule 8(a) is a question of law reviewed
de novo.'" United States v. Blair, 661 F.3d 755, 768 (4th Cir.
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2011) (quoting United States v. Cardwell, 433 F.3d 378, 384–85
(4th Cir. 2005)), cert. denied, 132 S. Ct. 2740 (2012). If
joinder was improper, we “review this nonconstitutional error
for harmlessness, and reverse unless the misjoinder resulted in
no ‘actual prejudice’ to the defendants ‘because it had [no]
substantial and injurious effect or influence in determining the
jury’s verdict.’” United States v. Mackins, 315 F.3d 399, 412
(4th Cir. 2003) (emphasis in original) (quoting United States v.
Lane, 474 U.S. 438, 449 (1986)). If joinder was proper, the
defendant can still challenge the joinder under Rule 14, which
provides that “[i]f the joinder of offenses . . . appears to
prejudice a defendant or the government, the court may order
separate trials of counts. . . .” Fed. R. Crim. P. 14(). Under
Rule 14, a properly joined claim can be severed only if there is
a "serious risk" that joining the claims would "prevent the jury
from making a reliable judgment about guilt or innocence."
Blair, 661 F.3d at 768. We have reviewed the district court’s
order denying Jameel’s misjoinder motion and motion to sever and
conclude that joinder was proper and that the district court did
not abuse its discretion in denying Jameel’s motion to sever.
Jameel next claims that the district court erred by
refusing to allow a jury instruction that distinguished a mens
rea of carelessness from knowledge. He also sought an
instruction requiring the jury to find, in order to convict,
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that Jameel had knowledge that his conduct was unlawful.
Jameel’s theory of the case below was that he had a subjective
belief that he was accurately representing his income to the
lenders named in Counts 1, 2, and 3, and that he was authorized
to use his father’s social security number in the manner that he
did for purposes of Count 4. His defense was that he did not
knowingly execute a scheme to defraud, but acted because of
ignorance, mistake, or carelessness.
With respect to Counts 1-4, the court instructed the jury
that Jameel must have acted “knowingly”:
The term “knowingly” as used in these instructions in
describing the alleged state of mind of the defendant,
means that he was conscious and aware of his actions,
realized what he was doing or what was happening
around him, and did not act because of ignorance,
mistake, or accident.
Jameel unsuccessfully moved to insert “carelessness” in addition
to “ignorance, mistake, or accident.”
We review for abuse of discretion a district court’s
decision whether to give a proffered jury instruction. United
States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009). The court
commits reversible error in declining to give a proffered jury
instruction if the instruction was correct, not substantially
covered by the remainder of the court’s jury charge, and
addressed “some point in the trial so important, that failure to
give the requested instruction seriously impaired the
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defendant’s ability to conduct his defense.” United States v.
Woods, 710 F.3d 195, 206 (4th Cir. 2013) (citation omitted). In
making this inquiry, we review jury instructions holistically,
considering whether, taken as a whole and in the context of the
entire charge, the instructions accurately and fairly state the
controlling law. United States v. Hickman, 626 F.3d 756, 771
(4th Cir. 2010). A district court errs in refusing to give a
jury instruction regarding a defense only if the instruction is
both an accurate statement of the law and has an evidentiary
foundation. United States v. Powell, 680 F.3d 350, 356 (4th
Cir. 2012). Applying this standard, we conclude that the
district court did not err in denying the proposed instruction.
To the extent Jameel sought an instruction requiring the
jury to find, in order to convict, that Jameel had knowledge
that his conduct was unlawful, this argument too is unavailing.
See United States v. Frazier-El, 204 F.3d 553, 561 (4th Cir.
2000) (“The conventional mens rea of criminal statutes . . .
requires not that a defendant know that his conduct was illegal,
but only that he know the facts that make his conduct illegal.”
(citation and internal quotation marks omitted)). We therefore
conclude that the district court did not err in refusing
Jameel’s proposed jury instructions.
Last, Jameel argues on appeal that because the proceeds of
his offenses could be traced to real property (the Richardson
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Road property), the district court erroneously entered a
forfeiture of money judgment against him in the amount of
$3,927,591.66. He further claims the entry of a money judgment
deprived him of his right to a jury determination on the
forfeiture of such property.
In an appeal from criminal forfeiture proceedings, we
review the district court’s findings of fact for clear error and
conclusions of law de novo. United States v. Herder, 594 F.3d
352, 363 (4th Cir. 2010). To obtain a forfeiture order, the
Government must establish a nexus between the property and the
crime by a preponderance of the evidence. Id. at 364; Fed. R.
Crim. P. 32.2(b)(1)(A). A court’s forfeiture determination may
be based on record evidence or any additional evidence submitted
by the parties and accepted by the court as relevant and
reliable. Fed. R. Crim. P. 32.2(b)(1)(B).
The indictment in this case contained a forfeiture
allegation notifying Jameel that upon conviction of the offenses
charged in Counts 1 through 3, he would forfeit “any property,
real or personal, from proceeds obtained directly or indirectly,
as a result of or traceable to, such violations.” The court
held a hearing on the Government’s motion for preliminary
forfeiture of property and, by written order, granted the
Government’s motion
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Jameel’s first argument that a money judgment was
inappropriate because the specific property that constitutes the
proceeds of the offense is still available is foreclosed by this
court’s decision in United States v. Blackman, 746 F.3d 137, 145
(4th Cir. 2014) (“It is well settled that nothing in the
applicable forfeiture statutes suggests that money judgments are
forbidden. . . . Such judgments would seem especially
appropriate where physical assets derived from the conspiracy
are no longer traceable or available.” (citation and internal
quotation marks omitted)). The proceeds from the Richardson
Road property were no longer available as Jameel pledged the
property as collateral for his loans. A trustee held the title
for the benefit of the secured credits. Furthermore, there was
negative equity in the home of at least $1,163,524.42. Under
these circumstances, we conclude that a money judgment was
appropriate in this case. See id. at 144 (“Forfeiture is
calculated on the basis of the total proceeds of a crime, not
the percentage of those proceeds remaining in the defendant’s
possession at the time of sentencing.”).
To the extent Jameel claims he was entitled to a jury trial
to determine the amount of the money judgment, his argument is
without merit. See Fed. R. Crim. P. 32.2(b)(1)(A) (“If the
government seeks a personal money judgment, the court must
determine the amount of money that the defendant will be ordered
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to pay”); see also United States v. Curbelo, 726 F.3d 1260, 1277
(11th Cir. 2013) (right to jury trial under Fed. R. Crim. P.
32.2(b)(5) applies only to specific property, not to the amount
of a monetary judgment).
Accordingly, we affirm Jameel’s convictions and sentence.
We have reviewed Jameel’s pro se supplemental brief and discern
from it no valid basis to overturn the criminal judgment. We
further deny Jameel’s pro se motions to compel, to strike
counsel’s opening brief, for de novo review of the entire case,
for leave to file a formal brief, to exceed limitations for such
brief, and for transcript at government expense, and all other
pending motions. We also deny as moot his pro se motion for
stay pending appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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