United States v. Aboshady ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1232
UNITED STATES OF AMERICA,
Appellee,
v.
MOUSFAFA MOATAZ ABOSHADY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Joshua N. Ruby, with whom Peter E. Gelhaar, George W. Vien,
and Donnelly, Conroy & Gelhaar, LLP were on brief, for appellant.
Ross B. Goldman, Attorney, United States Department of
Justice, Criminal Division, with whom Andrew E. Lelling, United
States Attorney, David G. Lazarus, Assistant United States
Attorney, Abraham R. George, Assistant United States Attorney,
Brian A. Benczkowski, Assistant Attorney General, and Matthew S.
Miner, Deputy Assistant Attorney General, were on brief, for
appellee.
February 20, 2020
BARRON, Circuit Judge. Moustafa Aboshady ("Aboshady")
challenges his 2018 federal convictions arising from a healthcare
fraud conspiracy. We affirm.
I.
In March 2014, Fathalla Mashali, Aboshady's uncle, was
indicted and, in 2017, he pleaded guilty in the United States
District Court for the District of Massachusetts to a multi-
million-dollar healthcare fraud that he perpetrated through New
England Pain Associates ("NEPA"), which Mashali owned. Mashali
committed this fraud against both government and private insurers
by coordinating the fraudulent documentation of non-existent
medical services in patients' medical records to justify
reimbursement for services not rendered.
From 2010 to 2013, Aboshady worked for Mashali in the
billing department of NEPA, which had four clinical pain-
management offices in New England, though its billing office was
located in Cairo, Egypt. When billers would send audit requests,
employees in the billing department, including allegedly Aboshady,
would "get the information together" and send it to the billers
for them to then submit to the insurer.
In connection with the fraud for which Mashali had been
convicted, Aboshady was indicted on various federal charges in the
United States District Court for the District of Massachusetts on
September 27, 2016. The indictment was for one count of conspiracy
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to make false statements and to conceal in connection with
healthcare benefit programs, in violation of 18 U.S.C. § 371, and
two counts of false statements in connection with healthcare
benefit programs, in violation of 18 U.S.C. § 1035.
Aboshady pleaded not guilty to the charges against him,
and a trial ensued. The jury found Aboshady guilty on all three
counts, and the District Court sentenced Aboshady to 75 months in
prison. He then timely filed this appeal.
II.
Aboshady's first set of challenges to his convictions
concerns the District Court's denial of his December 2017 motion
to suppress data that the government had acquired pursuant to a
2014 warrant. That warrant authorized the search and seizure of
certain electronic data contained in six Gmail accounts, including
Aboshady's. The warrant provided that it was to be executed on
Google, Inc.1
We review a district court's findings of fact in denying
a motion to suppress for clear error and its conclusions of law de
1Below, in addition to filing his motion to suppress with
the District Court, Aboshady also moved to compel discovery before
the federal magistrate judge who had issued the search warrant to
obtain information relating to the government's seizure of
material obtained from Google via the warrant. The Magistrate
Judge held a hearing on that motion but then denied it in a written
decision. Aboshady sought review of that ruling from the District
Court. Based in part on the Magistrate Judge's findings, the
District Court denied the motion in a written opinion. Aboshady
does not appeal that ruling to us.
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novo. See United States v. Almeida, 748 F.3d 41, 47 (1st Cir.
2014). Because "[s]uppression of evidence . . . has always been
our last resort, not our first impulse," Utah v. Strieff, 136
S. Ct. 2056, 2061 (2016), it is permitted only when the
government's conduct in searching or seizing the evidence in
question reflects a "deliberate, reckless, or grossly negligent
disregard for Fourth Amendment rights," Davis v. United States,
564 U.S. 229, 238 (2011) (internal quotation marks omitted)
(quoting Herring v. United States, 555 U.S. 135, 144 (2009)).
Aboshady argues that the District Court erred in denying
his suppression motion because the government executed the warrant
in a manner that reflects a flagrant disregard of the warrant's
terms. He contends that this flagrant error in execution occurred
because the government required Google, Inc. to hand over a drive
that held all of the data in Aboshady's account, including certain
electronic documents that contained very personal information of
his, and then, in preparation for trial, retained all of that data
and possibly searched it (including in those searches the
electronic documents within that data that contained that personal
information). Aboshady appears to premise this contention on an
assertion that the warrant did not permit the government to retain
for as long as it did either his personal emails or any of the
other electronic documents contained within the data that the
government had acquired from Google, Inc. He also appears to
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contend that the warrant did not permit the government to then
search the personal information contained in the emails and the
electronic documents to which he refers.
We begin by considering what the record shows about the
government's execution of the warrant on Google, Inc. Section II
of the warrant, which is entitled "Accounts and Files to be Copied
by Google, Inc. Personnel[,]" clearly states that Google, Inc. was
to copy "[a]ll data files associated with . . .
tifaaboshady@gmail.com" and that "Google, Inc. will provide th[at]
account duplicate to law enforcement personnel. Law enforcement
personnel will then search the account duplicate for the records
and data to be seized." In accord with the plain terms of that
section of the warrant, the government executed the warrant on
Google, Inc., and, in response, the company produced a duplicate
data file of Aboshady's Gmail account, including the personal
emails that he singles out. Subsequently, in accord with the plain
terms of that section of the warrant, personnel from the Federal
Bureau of Investigation ("FBI") who were not part of the
prosecution team then uploaded to a searchable database the
estimated 430,081 documents contained in the data file that Google,
Inc. had turned over, applied search terms to filter out
potentially privileged communications, and then turned the
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database over to the investigative team.2 Thus, we see no violation
of the warrant, let alone a flagrant one, in either the
government's execution of the warrant on Google, Inc. or its
subsequent creation of the database.
We turn, then, to the government's execution of the
warrant once that database had been created. As this aspect of
the government's execution does not implicate Section II of the
warrant, we focus, as Aboshady does, on Section III, which is
entitled "Records and Data to be Searched and Seized by Law
Enforcement Personnel." That section of the warrant states that
the government is authorized to search within, and to seize from,
the data that it has acquired from Google, Inc. pursuant to Section
II the following: "[a]ll communications between or among" the six
accounts; "[a]ll communications pertaining to patient records,
billing, and/or claims for payment relating to NEPA patients";
records relating to "[t]he identity of the person or persons who
have owned or operated the e-mail accounts"; the "existence and
identity of any co-conspirators"; and "[t]he travel or whereabouts
of" the owners of the six accounts.
2
We note that Federal Rule of Criminal Procedure 41(e)(2)(B)
provides that a warrant "may authorize the seizure of electronic
storage media or the seizure or copying of electronically stored
information. Unless otherwise specified, the warrant authorizes
a later review of the media or information consistent with the
warrant." Fed. R. Crim. P. 41(e)(2)(B).
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Aboshady argues that the government impermissibly
interpreted the provision in Section III that gives the government
"authorization to seize records relating to the identity of the
operators of the relevant email accounts" to mean "that every email
in Dr. Aboshady’s account falls within the terms of the warrant."
(First emphasis added). Aboshady asserts that such an
interpretation is implausible, because it would allow the
government to search and seize every email (including any
attachments to it) that was sent or received from the email
address, "tifaaboshady@gmail.com," just by virtue of the fact that
the email had been sent to or received by that email address.
Aboshady asserts that such a broad interpretation of the
warrant would conflict with both the "Fourth Amendment's
particularity and reasonableness requirements" and "[t]he
structure of the warrant." As to that latter contention, he points
to the fact that the warrant contains distinct sections -- namely,
Section II and Section III -- and argues that, when this feature
of the warrant is "combined with the different categories listed
in the separate sections of the warrant," the warrant clearly
"implies that the set of data described in Section III of the
warrant is more restricted than the universe of [S]ection II."
Aboshady then proceeds to describe, albeit briefly, "[t]he non-
seizable documents retained by the government" pursuant to what he
contends was its impermissible interpretation of Section III to
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"include email communications between Dr. Aboshady and his wife,
sensitive financial and medical information, and numerous personal
and sensitive photographs. Examples include emails Dr. Aboshady
wrote to his family members updating them on the progress of his
wife's labor, accompanied by photographs of his wife in the
delivery room."
As far as we are aware, the government continues to hold
all of the data contained in the database and thus the electronic
documents that contain the personal information that Aboshady
specifically contends that the government impermissibly retained
pursuant to what he asserts is its flagrantly overbroad
construction of the word "identity" in Section III. It also
appears that the government intends to keep the entirety of that
data until the end of Aboshady's criminal appeals.
Nothing in Section III or anything else in the warrant,
however, sets forth a time limit on the retention of the data that
Section II plainly authorized the government to acquire from
Google, Inc. And, given the absence of any such time limit, we do
not see why it would be unreasonable to interpret the warrant to
permit the government to retain that data until the appeals are
completed, see United States v. Ramirez, 523 U.S. 65, 71 (1998)
(describing how the "touchstone of reasonableness . . . governs
the method of execution of the warrant"), let alone why it would
be so unreasonable to so construe it that suppression would be
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required here. See United States v. Ganias, 824 F.3d 199, 213-15
(2d Cir. 2016) (en banc) ("[I]n assessing the reasonableness, for
Fourth Amendment purposes, . . . [p]reservation of the original
medium or a complete mirror may therefore be necessary in order to
safeguard the integrity of evidence that has been lawfully obtained
or to authenticate it at trial."); id. at 215 ("Retention of the
original storage medium or its mirror may also be necessary to
afford criminal defendants access to that medium . . . so that
. . . they may challenge the authenticity or reliability of
evidence allegedly retrieved."); United States v. Ulbricht, 858
F.3d 71, 99–100 (2d Cir. 2017) (noting that due to the "nature of
digital storage, it is not always feasible to extract and segregate
responsive data from non-responsive data" (internal quotation
marks and citation omitted)). The pre-digital age precedents that
Aboshady points to in arguing otherwise, moreover, are not to the
contrary. See Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976)
(discussing the return of non-responsive documents in the pre-
digital era); United States v. Tamura, 694 F.2d 591, 595-97 (9th
Cir. 1982) (same); United States v. Abrams, 615 F.2d 541, 543 (1st
Cir. 1980) (describing how the warrant at issue failed to meet the
requirement of particularly when it did not provide a limitation
as to what records could be seized).
To the extent that Aboshady means to argue that the
government's execution of the warrant flagrantly violated its
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terms because the government not only retained the data that it
had acquired from Google, Inc. pursuant to Section II of the
warrant but also may have run searches on that data for years
afterwards "as it developed new theories" of his possible criminal
liability, we also are not persuaded. An "unreasonable delay" in
conducting a search that had been authorized by a warrant could
"result[] in the lapse of probable cause," United States v.
Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (quoting United States
v. Marin-Buitrago, 734 F.2d 889, 894 (2d Cir. 1984)),3 but there
is no evidence in the record here that suffices to show that
probable cause had lapsed at the time that any particular search
of the data may have been conducted, see United States v. Arnott,
758 F.3d 40, 45 n.6 (1st Cir. 2014) (noting that when an argument
3 The Syphers court pointed to two district court decisions
where the government continued to do searches on seized electronic
data for many months after first executing the warrant but where
the courts found that such a period of time was not unreasonable.
First, in United States v. Gorrell, 360 F. Supp. 2d 48, 55 n.5
(D.D.C. 2004), there was a ten-month delay in processing the seized
computer and camera, but the court found that "[t]he warrant did
not limit the amount of time in which the government was required
to complete its off-site forensic analysis of the seized items and
the courts have not imposed such a prophylactic constraint on law
enforcement." And, in United States v. Triumph Capital Group,
Inc., 211 F.R.D. 31, 66 (D. Conn. 2002), the court found that
"computer searches are not, and cannot be subject to any rigid
time limit because they may involve much more information than an
ordinary document search, more preparation and a greater degree of
care in their execution."
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"lack[s] . . . specificity, any claim of error relating to the
statements may well be waived").4
That leaves Aboshady's apparent contention that the
flagrant violation in the execution of the warrant inheres in the
government's impermissible search and seizure of the particular
electronic documents that contained the very personal information
that he describes the government as having acquired from Google,
Inc. pursuant to Section II of the warrant but that he contends
that Section III of the warrant, properly read, did not then permit
the government to search or seize. Aboshady premises this argument
on the contention that the reference in Section III to "identity"
does not provide the government with authorization to search or
seize emails that Google, Inc. had handed over just based on the
fact that those emails were associated with Aboshady's email
account.
4Aboshady invokes United States v. Wey, 256 F. Supp. 3d 355
(S.D.N.Y. 2017), which held that a search of electronic data was
"impermissible" because the agents searched "materials already
sorted out as impertinent two years earlier" based on alternative
charging theories that were "never presented to a judge," id. at
405-09. But, Wey noted that the government appeared to be
"intentionally taking advantage of its sweeping electronic take to
look for evidence" that "essentially" supported an "independently
developed probable cause," id. at 407, and there is no basis in
this record for finding similarly here.
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There is no basis on this record, however, for concluding
that the government's search or seizure of the information that
Aboshady contends falls outside the warrant's scope depends on a
construction of the reference to "identity" in Section III that
would necessarily encompass any email in the data that the
government had acquired from Google, Inc. that had been sent to or
received from the email address appearing to bear Aboshady's
surname. The electronic documents that he identifies as having
been encompassed by the government's supposedly overbroad
interpretation of the word "identity" in Section III of the warrant
included statements and pictures uniquely relevant to Aboshady
because they were uniquely personal to Aboshady, and only Aboshady.
This feature of those documents thus demonstrated that it was
unlikely that anyone but Aboshady would have sent or received the
emails that contained the statements or pictures and, in that
respect, as the District Court concluded, helped to demonstrate
that the email account that was alleged to be Aboshady's was in
his control, despite his apparent contention to the contrary. The
same could not necessarily be said of every email sent or received
from that address.
Moreover, the word "identity" must be given some
meaning. Yet, Aboshady does not explain what meaning he would
ascribe to that word that would give it some content and yet also
clearly preclude the search and seizure of electronic files
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that -- in consequence of the especially personal information
contained in them -- provide evidence that at the time the files
were sent and received, Aboshady had control over the email address
to or from which the information had been sent.5 For this reason,
too, we reject this aspect of his challenge to the denial of his
motion to suppress.
In any event, even if we were persuaded by Aboshady's
argument that the government's execution of the warrant misapplied
Section III's reference to "identity," Aboshady is not entitled to
the remedy he seeks — the blanket suppression of all emails seized
and admitted at trial. Under our precedent, "[t]he remedy in the
5 We note that Aboshady supports his contention that "[t]he
government’s execution of the Gmail warrant was unreasonable -- and
unconstitutional -- because it made no attempt, at all, to
'segregate[e] electronic data that is seizable from that which is
not,'" by quoting from United States v. Comprehensive Drug Testing,
Inc., 621 F.3d 1162, 1177 (9th Cir. 2010) (en banc) (per curiam).
But, the full sentence from Comprehensive Drug Testing from which
Aboshady partially quotes in this passage states that: "The
process of segregating electronic data that is seizable from that
which is not must not become a vehicle for the government to gain
access to data which it has no probable cause to collect." Id.
Given what the record shows about the nature of the electronic
documents that contain the personal information that Aboshady
highlights and how the nature of that information bears on the
identity of the person in control of the email address to which
that information had been sent or from which that information had
been received, the mere fact that the government retained that
information and also may have searched it fails to demonstrate
that the government made no attempt to segregate the data acquired
from Google, Inc. that the warrant permitted to be searched and
seized from the data that the warrant did not.
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case of a seizure that casts its net too broadly is . . . not
blanket suppression but partial suppression." United States v.
Falon, 959 F.2d 1143, 1149 (1st Cir. 1992) (citing United States
v. Riggs, 690 F.2d 298, 300 (1st Cir. 1982)). If the scope of the
government's search was too broad, Aboshady would only be entitled
to suppression of those emails that were introduced at trial and
that reasonably fell outside the scope of the warrant unless the
"lawful and unlawful parts of the search are inextricably
intertwined or where the lawful part seems to have been a kind of
pretext for the unlawful part." United States v. Young, 877 F.2d
1099, 1105 (1st Cir. 1989). Aboshady cannot show either. What is
more, Aboshady has not clearly identified which emails that were
introduced at trial fell outside the scope of the warrant.
Consequently, even if the government's conduct violated the Fourth
Amendment, there is nothing in the record to show that any of the
evidence introduced at trial should have been suppressed.
III.
Aboshady's second set of challenges focus on the
District Court's instruction to the jury about the inferences that
it could draw from the fact that one of the staff members of the
NEPA Cairo office, Joseph Ashraf, was not called to testify.
Ashraf appeared on the government's initial witness list and was
referenced by multiple witnesses during the course of trial. On
the eve of trial, Aboshady asked the District Court to give a so-
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called "missing witness" instruction to inform the jury that it
was permitted to infer that Ashraf's testimony would have been
unfavorable to the government. See First Cir. Pattern Crim. Jury
Instruction 2.12. The District Court denied this request, and
Aboshady has not renewed his request on appeal.
Instead, Aboshady focuses on the instruction that the
District Court ultimately gave — which instructed the jury
concerning the inferences that could be drawn from the fact that
a witness had not been called to testify. Here, too, we find that
his challenges lack merit.
Aboshady's trial counsel, in his closing argument to the
jury, asserted that there was a lack of direct evidence that a co-
conspirator possessed the requisite criminal intent to be guilty
of a crime and that Aboshady could not "aid and abet a non-crime."
His trial counsel then added that the government had been in
contact with Ashraf and "[t]he Government has this [Immigration
and Customs Enforcement] parole procedure to bring people into the
country, but he's not here." And, further, Aboshady's trial
counsel stated in his closing argument that there are "[s]ome
questions that are unanswered because there is this hole in the
case" and that one of these questions was whether Ashraf and the
other Cairo-based employees had the requisite intent to conspire
with Aboshady.
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Following these statements by trial counsel, the
District Court, sua sponte, instructed the jury:
You must also not make any inferences based upon
any witness who was not called to testify. There is no
requirement that all participants in a crime be charged
and prosecuted or tried in one proceeding or that all
witnesses testify. Also, other individuals who were
mentioned frequently during the trial and may have had
relevant information for your consideration were not
called as witnesses to testify because they were beyond
the subpoena power of either party and unavailable as
witnesses for either the Government or the Defendant.
Therefore, you should draw no conclusions either for or
against the Defendant or the Government from the failure
of such witnesses to appear and testify at this trial.
Your verdict must be based solely on the evidence
presented in this Courtroom and in accordance with my
instructions.
Aboshady then moved to strike the instruction, which he described
as "about when a witness is beyond the subpoena power of both
sides;" "because there was no evidence about subpoena power of
either side" counsel argued, "it's inappropriate because there was
no evidence." The District Court denied the motion to strike the
instruction.6
Aboshady argues on appeal that the District Court erred
in denying the motion to strike because the instruction wrongly
stated that the jury could "not make any inferences based upon any
6 We treat as waived for lack of development any challenge to
the instruction insofar as it relates to any witness other than
Ashraf. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").
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witness who were not called to testify." The parties dispute
whether Aboshady preserved this challenge below and thus whether
we review this challenge de novo or only for plain error. But, we
may bypass this dispute, because the challenge fails even under
the de novo standard that Aboshady contends applies. See United
States v. Wright, 937 F.3d 8, 22 (1st Cir. 2019) (explaining that
for "preserved challenges to jury instructions, we 'consider de
novo whether an instruction embodied an error of law'" (quoting
United States v. Ackell, 907 F.3d 67, 78 (1st Cir. 2018))).
We have explained before that a party may "highlight" a
"missing witness[] to argue evidentiary insufficiency." United
States v. Jiménez-Torres, 435 F.3d 3, 12 (1st Cir. 2006). We have
further explained that "[w]here the court finds that an uncalled
witness is clearly favorably disposed toward one of the parties,
an instruction, if requested, may properly be given that the jury
may draw an inference favorable to the other party." United States
v. Johnson, 467 F.2d 804, 809 (1st Cir. 1972); see also id. at 808
("The basis for either argumentative comments or request for
instructions with regard to an opponent's failure to call a
knowledgeable witness is . . . that if a party has evidence which
will illuminate questions in issue and fails to present it, it may
be inferred that such evidence would be harmful to his case.").
We have also explained, however, that an "[a]ttorney[]
may not argue that the jury should draw an inference against an
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opponent where the opponent does not present witnesses that are
available to both parties." Jiménez-Torres, 435 F.3d at 12 (citing
Johnson, 467 F.2d at 808 ("No inference is permissible, however,
where . . . the evidence is equally available to either party.")).
And, in Johnson, we observed that, even if a party cannot subpoena
a witness or require a witness to testify, the witness could still
be "available" to that party if favorably disposed to the party,
such that the witness would testify of the witness's own volition
were the party to so request. 467 F.2d at 808-09 ("A witness's
availability is not to be decided on the basis of his physical
presence in the court room or his accessibility . . . by subpoena.
We hold rather that a witness's . . . availability is to be
determined on the basis of his disposition and relationship toward
the parties.").
Here, in denying Aboshady's request for a missing
witness instruction before trial, the District Court specifically
found that it was "satisfied with the government[']s explanation
of Mr. Ashraf[']s unwillingness to come to the United States to
testify at trial," such that "a missing witness instruction will
not be given." Moreover, Aboshady develops no argument that the
explanation provided to the District Court reveals that either
Ashraf's reason for being unwilling to come to testify or that the
government's reason for not calling him had to do with any
hostility to or disagreement on his part with the government's
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case against Aboshady. Nor does Aboshady dispute that neither he
nor the government had the power to compel Ashraf to testify at
trial, as he does not dispute that neither party had the authority
to subpoena a foreign national located in a foreign country. See
Fed. R. Crim. P. 17(e)(2); 28 U.S.C. § 1783; United States v.
Theresius Filippi, 918 F.2d 244, 246 n.2 (1st Cir. 1990) ("The
United States has no subpoena power over a foreign national in a
foreign country."). Thus, because Aboshady fails to develop any
argument as to how, notwithstanding these aspects of the record,
he can meet the Johnson standard with respect to whether Ashraf
was "available" to the government, see Jiménez-Torres, 435 F.3d at
12; Johnson, 467 F.2d at 808-809, we see no basis for finding error
in the District Court's "no inference" instruction.
Insofar as Aboshady means to challenge the District
Court's instruction on the separate ground that it impermissibly
shifted the prosecution's burden by "improperly nullif[ing]"
defense counsel's argument that the government had failed to meet
its burden of proof, this argument also fails. The instruction
merely told the jury not to make any inference as to why the
government did not call the witness. It did not instruct the jury
not to consider the lack of testimony from Ashraf and other Cairo
employees in deciding whether the government had met its burden to
prove Aboshady's guilt beyond a reasonable doubt on any of the
charges. Moreover, "[j]ury instructions must be read as a whole,
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not in some sort of splendid isolation," and the District Court
separately instructed the jury that the prosecution retained the
burden of proof. United States v. Goris, 876 F.3d 40, 48 (1st
Cir. 2017); see Richardson v. Marsh, 481 U.S. 200, 206 (1987)
(noting "the almost invariable assumption of the law that jurors
follow their instructions"); United States v. Diaz-Diaz, 433 F.3d
128, 135 (1st Cir. 2005) (finding that although the prosecutors'
statement to the jury impermissibly shifted the burden of proof to
the defense, the remark was effectively addressed by the judge's
prompt instruction "to the jury that the burden of proof remained
with the government").
Finally, Aboshady challenges the instruction because he
contends that it added a fact not in evidence by stating that
certain witnesses did not testify "because" they were beyond the
parties' subpoena power. A federal district court judge can
"comment on the facts and evidence," but if, in doing so, a judge
adds a fact not in evidence, then the judge has "exceed[ed] the
limitations on his power to comment." United States v. Paiva, 892
F.2d 148, 159 (1st Cir. 1989). The question then becomes whether
any such error was nonetheless harmless beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 24 (1967); see also Paiva,
892 F.2d at 159.
Aboshady contends that, by instructing the jury that the
witnesses had not testified "because they were beyond the subpoena
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power of either party and unavailable as witnesses," (emphasis
added), the District Court necessarily implied that Ashraf would
not appear as a witness at the trial of his own volition even
though no evidence had been introduced to support that
determination. But, even assuming that construction of the
instruction is a tenable one, any error was harmless beyond a
reasonable doubt on this record.
Aboshady's assertion that the instruction was not
harmless depends on his contention that the wording of the
instruction effectively precluded the jury from drawing the
inference from Ashraf's nonappearance that he would have testified
in Aboshady's favor. But, as we have explained, Aboshady has
failed to make the case that the District Court, on this record,
erred in instructing the jury not to draw that precise inference.
Accordingly, we do not see how the instruction may be understood
to have caused Aboshady any harm. See Paiva, 892 F.2d at 159.
IV.
For the reasons stated, we affirm Aboshady's conviction.
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