UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4020
MUJAHID NASIRUDDIN, a/k/a John
Crooks,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Richard L. Williams, Senior District Judge.
(CR-97-223-A)
Submitted: August 4, 1998
Decided: August 25, 1998
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Mark D. Kielsgard, Tamara Crouch, KIELSGARD & CROUCH,
P.C., Fairfax, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, Thomas G. Connolly, Assistant United States Attorney,
Robert A. Spencer, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Mujahid Nasiruddin appeals his conviction after a jury trial and
sentence for aggravated sexual abuse, in violation of 18 U.S.C.A.
§ 2241 (West Supp. 1998), for his rape of a fifty-four-year-old men-
tally retarded woman on the grounds of Fort Belvoir, Virginia. On
appeal, Nasiruddin alleges that the district court erred when it: refused
to instruct the jury on the offense of sexual abuse as a lesser included
offense of aggravated sexual abuse, gave him a sentencing enhance-
ment based upon his perjury at trial, denied his request for materials
concerning the victim's medical and psychological history, and alleg-
edly limited his cross-examination of the victim. Finding no error, we
affirm.
At his trial, Nasiruddin asked the court to instruct the jury on sex-
ual abuse, 18 U.S.C.A. § 2242 (West Supp. 1998), as a lesser
included offense of aggravated sexual abuse by force. The district
court declined to give the requested instruction. On appeal, Nasirud-
din contends that the district court abused its discretion in failing to
grant the lesser included offense instruction because sexual abuse
involves the same operative offense, a non-consensual sexual act.
Nasiruddin argues that because sexual abuse is a less egregious form
of the operative criminal behavior, it should be a lesser included
offense.
While this court has not specifically addressed the issue, an analy-
sis of the statutes supports the district court's decision to decline to
give the sexual abuse instruction.1 Aggravated sexual abuse,
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1 This court has addressed the differences between 18 U.S.C.A. § 2241
and 18 U.S.C.A. § 2242 in a different context. In United States v.
Williams, 89 F.3d 165 (4th Cir. 1996), the defendant was charged with
one count of aggravated sexual abuse and one count of sexual abuse. The
2
§ 2241(a), requires use of force or fear of kidnaping, serious bodily
injury, or death. See 18 U.S.C.A. § 2241.2 Sexual abuse does not
require the same type of fear required for aggravated sexual abuse.
Sexual abuse is committed when a person causes another to engage
in a sexual act by threatening or placing that other person in fear,
other than the type of fear specified in § 2241. See 18 U.S.C.A. § 2242.3
These statutes define different types of fear. The fear involved in the
sexual abuse statute is not the same as that required by the aggravated
sexual abuse statute. Therefore, we find that sexual abuse is not a
lesser included offense of aggravated sexual abuse. See, e.g., United
States v. Hourihan, 66 F.3d 458, 465 (2d Cir. 1995), cert. denied, 516
U.S. 1135 (1996); United States v. Boyles, 57 F.3d 535, 544 (7th Cir.
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defendant argued that the Government should have been directed by the
district court to elect between the two counts because they were contra-
dictory. The court rejected the election argument and found that although
the charges were not completely contradictory as a matter of law, under
the facts presented at trial, there was insufficient evidence to submit the
sexual abuse charge to the jury. The court recognized, however, that
§ 2241 and § 2242 were two separate and distinct crimes with separate
elements. See Williams, 89 F.3d at 167-68. Because the court found that
there was sufficient evidence to convict for the aggravated sexual abuse
charge and insufficient evidence to support the sexual abuse charge, the
court impliedly found that the elements of sexual abuse are not a subset
of aggravated sexual abuse.
2 Section 2241(a) defines aggravated sexual abuse by force or threat as:
(a) By force or threat. Whoever . . . knowingly causes another
person to engage in a sexual act--
(1) by using force against that other person; or
(2) by threatening or placing that other person in fear that any
person will be subjected to death, serious bodily injury, or kid-
naping . . . .
3 Section 2242(1) defines sexual abuse as:
Whoever . . . knowingly (1) causes another person to engage in
a sexual act by threatening or placing that other person in fear
(other than by threatening or placing that other person in fear
that any person will be subjected to death, serious bodily injury,
or kidnaping) . . . .
3
1995); United States v. Sneezer, 983 F.2d 920, 923-24 (9th Cir. 1992);
United States v. Amos, 952 F.2d 992, 994 (8th Cir. 1991).
Nasiruddin next argues that the district court erred in giving him
a sentencing enhancement for perjury at trial. Nasiruddin argues that
the district court's finding of perjury was based upon the fact that he
testified on his own behalf, put forth a consent defense, and still was
convicted. During the investigation, Nasiruddin told an FBI agent that
he did not have sexual intercourse with the victim. At trial, Nasirud-
din admitted that he did have sexual intercourse with the victim, but
contended that it was consensual.
A two-level increase may be applied under Sentencing Guideline
§ 3C1.1, which applies "[i]f the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or sentencing of the
instant offense . . . ." U.S. Sentencing Guidelines Manual § 3C1.1
(1997). Perjury is conduct that warrants the enhancement. See U.S.
Sentencing Guidelines Manual § 3C1.1 n.3. An enhancement for per-
jury is sufficient if the court's finding "`encompasses all of the factual
predicates for a finding of perjury.'" United States v. Castner, 50 F.3d
1267, 1279 (4th Cir. 1995) (quoting United States v. Dunnigan, 507
U.S. 87, 94-95 (1993)). The court must find that a defendant "`gave
false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake,
or faulty memory.'" Id. The court found that "there was no doubt that
the defendant provided false testimony." J.A. 344. It further found
that Nasiruddin "testified that the victim consented to his sexual
assault. Given his original story that he did not even have sexual rela-
tions with the victim, it was obvious that he was trying to perpetrate
a fraud on the Court when he now takes a backup position that the
sex between the two was consensual." Id. Therefore, the district court
found that Nasiruddin's testimony was willfully false and involved
material matters. These findings were sufficient as a matter of law,
and were not clearly erroneous. See Castner, 50 F.3d at 1279.
Next, Nasiruddin argues that the district court violated denied his
Fourteenth and Fifth Amendment due process rights and his Sixth
Amendment right to confront witnesses against him when it refused
his discovery request for the victim's medical and psychological
4
records and by limiting his cross-examination of the victim. The dis-
trict court's refusal to order the Government to provide all requested
pre-trial discovery materials is reviewed for abuse of discretion. See
United States v. Fowler, 932 F.2d 306, 311 (4th Cir. 1991). The dis-
trict court's decision, after in camera inspection, denying the defen-
dant access to Giglio material4 is reviewed for clear error. See United
States v. Trevino, 89 F.3d 187, 193 (4th Cir. 1996). Limitations on the
defendant's cross-examination of government witnesses are reviewed
on appeal for an abuse of discretion. See United States v. McMillon,
14 F.3d 948, 955-56 (4th Cir. 1994).
On appeal, Nasiruddin specifically assigns error to the denial of
any discovery materials relating to the victim's competency and cred-
ibility, including medical and psychological records documenting the
degree of the victim's mental disability. Nasiruddin argues that with
this information, he could have addressed issues relating to the dem-
onstration of any relevant perceptual, psychological, or mental health
issues, such as past fabrications of similar claims. Nasiruddin also
claims that he should have received the medical records concerning
an alleged sterilization procedure undergone by the victim. He views
the sterilization records as relevant to the extent that they would have
served to impeach a physician's report from the night of the incident
indicating that there was recent damage to the victim's hymenal ring.
At the hearing on the Defendant's motion for expanded discovery,
the Government stated that it was not in possession of the victim's
medical and psychological records and that it had no information that
the victim had ever made any allegations of past sexual assaults. The
Government volunteered to obtain the victim's medical records from
her father and review them to determine if they constituted Brady5 or
Giglio material. After reviewing the medical records, the Government
submitted two documents to the district court for in camera review to
determine whether they constituted Brady or Giglio material,
although in the Government's opinion, they did not. The defense
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4 In Giglio v. United States , 405 U.S. 150 (1972), the Supreme Court
held that when reliability of a witness may be determinative of guilt or
innocence, non-disclosure of evidence that affects credibility is a denial
of due process.
5 Brady v. Maryland, 373 U.S. 83 (1963).
5
agreed to the in camera review procedure. After reviewing the mate-
rial, the court determined that the records were not appropriate for
discovery.
In its motion requesting in camera review of the materials, the
Government described the records and discussed why they did not
constitute Brady or Giglio materials.6 One of the documents was
related to the alleged sterilization procedure. It appears that the dis-
puted documents were neither material to constructing a defense nor
favorable to Nasiruddin. In fact, the information appears to have been
favorable to the Government and consistent with the facts proved at
trial. We therefore find that the district court did not clearly err in
refusing to allow Nasiruddin access to the materials.
Finally, Nasiruddin alleges that the trial court erroneously inter-
vened and limited his attempt at a meaningful cross-examination of
the victim. Nasiruddin identifies four times that the trial judge, sua
sponte, interrupted the cross-examination. Nasiruddin states that
because the victim was mentally disabled and her answers were unre-
sponsive, disjointed, confused, and ambiguous, the district court
should have provided him with great latitude and flexibility in con-
ducting his cross-examination. Nasiruddin alleges that the district
court's limitation of his cross-examination was a violation of his Sixth
Amendment right to confront witnesses against him.
The trial court exercises control over the interrogation of witnesses
so that truth is efficiently ascertained while protecting witnesses from
harassment or undue embarrassment. See Fed. R. Evid. 611(a). After
reviewing the trial transcript, we find that the district court did not err
in its limitation of cross-examination of the victim. The court pro-
vided the defense a full opportunity to cross-examine and impeach the
victim. A review of the interruptions by the trial court reveals that the
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6 In its brief on appeal, the Government states that the two documents
submitted to the district court for in camera review are included in the
record. These documents were not included in the joint appendix, how-
ever. Because the Defendant was provided with a copy of the motion,
and does not dispute the Government's characterization of the two docu-
ments, we rely upon the information provided in the Government's
motion.
6
defense was instructed to ask a question one last time after asking the
question several times and receiving confusing answers from the vic-
tim, to refrain from giving the witness a pep talk, to move along the
cross-examination after a lengthy pause, and not to repeat the victim's
responses. These admonitions did not limit or violate Nasiruddin's
Sixth Amendment right to confront witnesses.
We therefore affirm the conviction and sentence. We grant
Nasiruddin's motion to file a pro se supplemental brief and note that
the lesser included offense issue raised in the pro se supplemental
brief has been addressed above. 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
7