United States v. Tzeuto , 370 F. App'x 415 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4429
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICK G. TZEUTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:08-cr-00094-PJM-1)
Argued: January 29, 2010 Decided: March 16, 2010
Before WILKINSON and AGEE, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Brian W. Stolarz, Christopher Tate, K&L GATES, LLP,
Washington, D.C., for Appellant. Steven M. Dunne, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick G. Tzeuton (“Tzeuton”) appeals his convictions upon
one count of conspiracy to commit immigration fraud pursuant to
18 U.S.C. § 371, seven counts of immigration fraud pursuant to
18 U.S.C. § 1546(a), and one count of obstruction of an official
proceeding pursuant to 18 U.S.C. § 1512(c)(2), as well as his
sentences. For the following reasons, we affirm the convictions
and sentences imposed by the district court.
I.
Tzeuton, an attorney, practiced law through a law firm
known as the Law Offices of Patrick Tzeuton & Associates
(hereinafter “the Tzeuton law firm”). Henri Marcel Nzone
(“Nzone”), originally Tzeuton’s co-defendant, worked closely
with Tzeuton as his legal assistant, but Nzone was not an
attorney. The Tzeuton law firm primarily represented clients in
immigration matters before the Immigration and Naturalization
Service (“INS”).
Tzeuton and Nzone were indicted upon allegations that they
conspired to “prepare[] false and fraudulent Applications for
Asylum and for Withholding of Removal,” make “false and
fraudulent supporting affidavits and documents, and present[]
these false and fraudulent applications, affidavits, and
supporting documents to the INS” and other agencies. (J.A. 23).
2
The indictment also alleged that Tzeuton and Nzone sold false
documents to aliens applying for asylum, notarized and
translated false documents, and “met with aliens before their
asylum interviews and coached the aliens on the details of the
false and fraudulent statements in their asylum applications.”
(J.A. 24). Nzone pled guilty to one count of conspiracy and one
count of obstruction of an official proceeding and received a
sentence of 9 months’ imprisonment. Tzeuton pled not guilty and
proceeded to trial.
During trial, seven former clients of the Tzeuton law firm,
Nzone, and ICE Special Agent Chris Melia (“Melia”) testified for
the prosecution. Nzone and the former clients testified that
Tzeuton conspired with them to “make false statements under
oath,” “present false and fraudulent applications for asylum,”
“to corruptly obstruct, influence, and impede immigration
proceedings before the U.S. Department of Homeland Security and
the U.S. Department of Justice,” and to sell “false and
fictitious documents.” (J.A. 876). Testimony at trial also
established that Tzeuton “directed these former clients to Nzone
and others in his office to prepare the clients for interviews
with asylum officers and immigration court proceedings by
coaching the clients on the details of the false and fraudulent
stories that the defendant created for them.” (J.A. 876).
3
The jury convicted Tzeuton on all counts. Alleging
prosecutorial misconduct, Tzeuton filed a post-trial motion to
dismiss the indictment or, alternatively, for a new trial, for a
post-trial evidentiary hearing, and for appropriate discovery.
The district court held a hearing and subsequently denied the
motion. Tzeuton was sentenced to sixty months’ imprisonment on
the conspiracy count and sixty-four months’ imprisonment on all
remaining counts, to run concurrently. Tzeuton timely filed an
appeal and this Court has jurisdiction pursuant to 28 U.S.C. §
1291.
II.
A.
1.
Tzeuton first argues that the prosecution engaged in
misconduct by improperly threatening Kamba Kabangu (“Kabangu”),
a proposed defense witness, and that the district court
consequently erred by denying his post-trial motion to dismiss
on that basis. Kabangu had referred numerous Congolese asylum
cases to Tzeuton.
Tzeuton contended in his motion that “when the government’s
case was almost complete,” the prosecution “alleged that
Immigrations and Customs Enforcement (“ICE”) had evidence that
Mr. Kabangu was in the United States illegally, and that he had
4
been banned from certain immigration courtrooms for false
testimony,” (J.A. 557), and “that ICE agents planned to arrest
Mr. Kabangu if he arrived in the Court.” (J.A. 558). Tzeuton
objected to the timing of the disclosure, alleging that
“government counsel knew [this information] two weeks before
[Kabangu] was scheduled to testify.” (J.A. 552). Defense
counsel proffered to the district court that Kabangu would
testify in accord with a pre-trial meeting with defense counsel,
where Kabangu stated that “Nzone was widely regarded as a fraud
and a liar,” (J.A. 555), that “he did not believe that Mr.
Tzeuton had committed any fraudulent activities, and felt Mr.
Tzeuton was being ‘framed’ by other employees.” (J.A. 554).
Based on the information disclosed by the prosecution, the
district court appointed Kabangu a lawyer, and he ultimately
decided not to testify. Tzeuton argues that the prosecution’s
conduct “violated the Defendant’s fundamental due process rights
to present a defense by interfering with the free and unhampered
choice of the witness to testify.” (J.A. 551). However, no
affidavits were filed in support of the motion to dismiss by
Tzeuton, Kabangu, their counsel, or anyone else.
In denying the motion, the district court first found that
“any purported evidence that Kabangu would give about Mr. Nzone
would be quite marginal to [the prosecution’s evidence] so . . .
it’s hard to even conclude . . . that there was deprivation of
5
the right of a fair trial.” (J.A. 772). Moreover, with no
evidentiary foundation for any of Tzeuton’s claims about
Kabangu, the district court stated that “I have what really is
clearly third-hand testimony” from Tzeuton’s counsel. (J.A.
773). Finally, the district court found that Kabangu likely
“wouldn’t have testified anyway, given his vulnerability to
cross-examination for other criminal activity,” (J.A. 776), and
that there was no prosecutorial misconduct, because “I think
it’s an awkward situation for everybody because they could have
been damned if they did and damned if they didn’t. But [the
prosecution], I think largely are being held to answer for good
intentions.” (J.A. 777).
We review the denial of a motion to dismiss based on
prosecutorial misconduct for clear error. United States v.
McDonald, 61 F.3d 248, 253 (4th Cir. 1995), overruled on other
grounds by United States v. Wilson, 205 F.3d 720 (4th Cir.
2000).
In order to prove reversible prosecutorial misconduct, a
defendant must first show that the prosecution acted improperly.
“Improper intimidation of a witness may violate a defendant’s
due process right to present his defense witnesses freely if the
intimidation amounts to ‘substantial government interference
with a defense witness’ free and unhampered choice to testify.”
United States v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991)
6
(quoting United States v. Hammond, 598 F.2d 1008, 1012 (5th Cir.
1979)). Next, if “a defendant is able to establish a
substantial government interference, the inquiry moves to the
question of whether it was prejudicial or harmless error.”
Saunders, 943 F.2d at 392.
The district court did not err in finding that the
prosecution did not act improperly. There is no evidence of any
direct conversations or contact between government agents and
Kabangu. 1 Instead, the prosecution communicated its concerns
about Kabangu in open court, in front of defense counsel.
Furthermore, the dual responsibility of prosecutors puts them in
a position of, as the district court put it, being “damned if
they did and damned if they didn’t.” (J.A. 777). In United
States v. Rivera, this Court considered the similar issue of
witnesses made unavailable by deportation and noted that “[t]he
United States Attorney had a dual responsibility in this case.
It was his duty to consider the rights of the witnesses, as well
as the rights of the appellant, and to also comply with his duty
of deporting the illegal aliens without undue delay.” 859 F.2d
1204, 1207 (4th Cir. 1988).
1
Tzeuton’s allegation that an anonymous ICE agent called
and threatened Kabangu is wholly without evidentiary support.
No affidavit or testimony from Kabangu or his attorney supports
the claim; thus, the district court did not clearly err in
concluding that the claim had no factual merit.
7
Moreover, the district court did not clearly err when it
found that, even if the prosecution had acted improperly,
Tzeuton was not unduly prejudiced by Kabangu’s failure to
testify. Defense counsel proffered that Kabangu would have
testified to Nzone’s bad character and his belief that Tzeuton
was not guilty. However, this evidence would have been marginal
compared to the overwhelming evidence presented against Tzeuton
at trial; Nzone and seven former clients testified that Tzeuton
conspired to create, sell, and submit fraudulent asylum
applications. Furthermore, testimony that Nzone was a bad actor
and a criminal would have been cumulative; the government itself
stated during closing that
I agree with almost everything [the defense] said
about Mr. Nzone’s character. I agree that in the past
Mr. Nzone, he lied and he lied, and he lied again. I
agree, I think the phrase he used is that he’s a
master fraudster. I agree with that. I agree that
some of the things he did in the past to try to get
papers in this country were despicable.
(J.A. 415). Finally, the value of Kabangu’s testimony to the
defense would be questionable because, if he did testify, the
prosecution would have undoubtedly impeached Kabangu with his
past acts of dishonesty and his possible status as an illegal
alien. Consequently, the district court did not clearly err by
denying Tzeuton’s post-trial motion to dismiss on the basis of
prosecutorial misconduct.
8
2.
Tzeuton argues for the first time on appeal that the
prosecution also committed prosecutorial misconduct during
closing argument. First, Tzeuton objects to comments which he
contends “constitut[ed] personal attacks on defense counsel and
impl[ied] that the defense attempted to trick or deceive the
jury.” (Appellant’s Br. 20). Specifically, Tzeuton points to
the prosecution’s remarks that defense counsel “want to try to
distract you;” “want to try to change the subject;” are
“throw[ing] mud;” are trying to “divert your attention;” (J.A.
397); and “really sort of tried to mislead you.” (J.A. 411).
Second, Tzeuton contends that the prosecution’s statement that
“[w]hen either Mr. Tzeuton or Mr. Nzone sold fake documents,
they had a deal. They’d split it 50/50. And it’s up to you to
decide whether Mr. Nzone is a credible witness, but I find that
pretty credible that they would split things 50/50,” constituted
improper vouching and/or bolstering. (J.A. 418).
Because defense counsel did not object during closing, we
review this claim for plain error. United States v. Adam, 70
F.3d 776, 780 (4th Cir. 1995). Under plain error review, the
defendant has the burden of establishing that (1) an error
occurred; (2) the error was “clear or obvious;” and (3) the
error affected the defendant’s substantial rights. Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009).
9
As set forth in the previous section, “[t]he test for
reversible prosecutorial misconduct generally has two
components: that ‘(1) the prosecutor’s remarks or conduct must
in fact have been improper, and (2) such remarks or conduct must
have prejudicially affected the defendant’s substantial rights
so as to deprive the defendant of a fair trial.’” United States
v. Brockington, 849 F.2d 872, 875 (4th Cir. 1988), abrogated on
other grounds by Bailey v. United States, 516 U.S. 137 (1995)
(quoting United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.
1985)). In determining whether a defendant was prejudiced, this
Court considers the following factors:
(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; and (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters.
United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983).
Ultimately, “[t]he relevant question is whether the prosecutors’
comments so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (internal quotations
omitted).
Although it is important that “prosecutors refrain from
impugning, directly or through implication, the integrity or
10
institutional role of their brothers and sisters at the bar who
serve as defense lawyers,” United States v. Ollivierre, 378 F.3d
412, 420 (4th Cir. 2004), vacated on other grounds by 543 U.S.
1112 (2005) (internal citations omitted), there is no evidence
that any of the statements to which Tzeuton objects as “personal
attacks on defense counsel” meet this definition of improper
behavior. Although a prosecutor may not strike “foul” blows, he
“may strike hard blows” and “may prosecute with earnestness and
vigor—indeed, he should do so.” Berger v. United States, 295
U.S. 78, 88 (1935). The prosecutor did that in this case.
Furthermore, even if we assume that the remarks were
improper, we conclude that they did not “so infect[] the trial
with unfairness as to make the resulting conviction a denial of
due process.” Darden, 477 U.S. at 181. The remarks to which
Tzeuton objects were isolated, the proof of Tzeuton’s guilt at
trial was strong, and there is no evidence that the remarks were
made in bad faith to “divert attention to extraneous matters.”
Tzeuton’s allegation that the prosecution prejudicially
vouched for or bolstered Nzone’s testimony is also without
merit. Although “[i]t is impermissible for a prosecutor to
vouch for or bolster the testimony of government witnesses in
arguments to the jury,” United States v. Sanchez, 118 F.3d 192,
198 (4th Cir. 1997), the prosecution’s remark about the
“credibility” of a portion of Nzone’s testimony was not
11
reversible error. While the prosecution apparently did “suggest
. . . personal belief about the credibility of [a] witness,”
id., at least as to Nzone’s testimony that he and Tzeuton split
the proceeds of the conspiracy, there is no evidence that the
remark was prejudicial. The method of splitting proceeds and
whether they were split “50/50,” is not particularly relevant to
the case or to Tzeuton’s guilt. The prosecution’s comment about
Nzone’s credibility was confined only to that statement.
Ultimately, “proof of [Tzeuton’s] guilt was quite strong and the
comment . . . was, at best, peripheral to the credibility of one
single source of incriminating evidence.” Id. at 199.
B.
Tzeuton next argues that the district court erred when it
denied his motion for an evidentiary hearing as to whether an
ICE agent called and threatened Kabangu. On appeal, this Court
reviews a district court’s denial of an evidentiary hearing in
support of a motion for a new trial for an abuse of discretion.
United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).
“Just as the district court has broad discretion in
resolving a new trial motion, so too does it enjoy discretion
whether to hold an evidentiary hearing on the motion.” Id.
(internal citations omitted); see also United States v.
Connolly, 504 F.3d 206, 220 (1st Cir. 2007) (holding that
12
“evidentiary hearings on new trial motions in criminal cases are
the exception rather than the rule”). This is because “the
acumen gained by a trial judge over the course of the
proceedings” makes the court “well qualified” to rule on a
motion for a new trial without an evidentiary hearing. United
States v. Hamilton, 559 F.2d 1370, 1373-74 (5th Cir. 1977).
The district court did not abuse this broad discretion by
denying Tzeuton’s motion for an evidentiary hearing. The
district court found that, in part because there was no
affidavit from Kabangu or his lawyer and only “third-hand
testimony” as to the alleged ICE agent call,
[t]his is simply not the kind of case where the Court
opens up a post-trial investigation into the way the
government and its agents acted. If there was a
serious credible threat that Kabangu himself could set
forth with some specifics about who called him when
and did whatever, that might be a different story as
to the alleged call by the ICE agent, but we don’t
have anything from him or from his attorney.
(J.A. 773). This conclusion was within the district court’s
discretion, particularly considering the fact that there was no
affidavit from Kabangu or his attorney. See United States v.
Slocum, 708 F.2d 587, 600 (11th Cir. 1983); United States v.
Hill, 78 Fed. Appx. 223, 225 (4th Cir. 2003) (unpublished)
(holding that it was not an abuse of discretion for a district
court to deny a motion for an evidentiary hearing when the
motion makes only a “bald assertion of error”).
13
C.
Tzeuton next contends that the district court abused its
discretion by giving the jury a “willful blindness” or “Jewell”
instruction, 2 and that the district court abused its discretion
by “refusing to propound a modified willful blindness
instruction based on the attorney client privilege” (Appellant’s
Br. 1), which Tzeuton proposed. This Court reviews a trial
court’s jury instructions for an abuse of discretion. United
States v. Jeffers, 570 F.3d 557, 566 (4th Cir. 2009).
Although “[c]ourts often are wary of giving a willful
blindness instruction,” United States v. Mancuso, 42 F.3d 836,
846 (4th Cir. 1994), it is “proper when the defendant asserts a
lack of guilty knowledge but the evidence supports an inference
of deliberate ignorance.” United States v. Ruhe, 191 F.3d 376,
384 (4th Cir. 1999) (internal quotations omitted). “Courts
therefore restrict the use to cases not only where there is
asserted lack of knowledge but also where there is evidence of
deliberate ignorance.” Mancuso, 42 F.3d at 846. The instruction
“allows the jury to impute the element of knowledge to the
2
The district court instructed the jury that “the
government can also meet its burden of showing that the
defendant had knowledge of the falsity of the statements if it .
. . establishes beyond a reasonable doubt that the defendant
acted with deliberate disregard of whether the statements were
true or false, or with a conscious purpose to avoid learning the
truth.” (J.A. 277-78).
14
defendant if the evidence indicates that he purposely closed his
eyes to avoid knowing what was taking place around him.” United
States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). “If the
evidence supports both actual knowledge on the part of the
defendant and deliberate ignorance, a willful blindness
instruction is proper.” Ruhe, 191 F.3d at 384.
Although the prosecution emphasized that Tzeuton had actual
knowledge, the evidence could also have supported a finding of
deliberate ignorance. In fact, the thrust of the defense was
that Tzeuton was not aware of the criminal activity that was
occurring around him. For example, during closing argument
defense counsel blamed other employees for the fraud, admitting
that Tzeuton may have been “negligent,” “[s]loppy,” or guilty of
malpractice. (J.A. 364). In fact, Tzeuton himself stated that
“he had grown suspicious of the documents and their validity,
but the clients convinced or misled him.” (J.A. 179). Tzeuton
also “stated that he had heard of other employees in his law
office who may have committed fraud and prepared fraudulent
documents.” (J.A. 183); see United States v. Mir, 525 F.3d 351,
359 (4th Cir. 2008) (“The record contains myriad examples of
[the defendant] attempting to shift the blame for the . . .
fraud onto his employees, claiming he was unaware of any
criminal activity. This is the type of situation for which a
willful blindness instruction was intended . . . .”).
15
Therefore, the district court did not abuse its discretion
in instructing the jury. A jury could have found that Tzeuton
“suspected the fact [of criminal activity]; . . . realised its
probability; but . . . refrained from obtaining the final
confirmation because he wanted in the event [he was apprehended]
to deny knowledge.” United States v. Jewell, 532 F.2d 697, 700
n.7 (9th Cir. 1976). 3
D.
Finally, Tzeuton contends that the district court erred
during sentencing by (1) failing to consider all of the
sentencing factors of 18 U.S.C. § 3553(a), and (2) by enhancing
Tzeuton’s sentence by four levels based on his role as organizer
or leader of the criminal activity pursuant to U.S.S.G. §
3B1.1(a).
“Pursuant to Gall v. United States, 128 S. Ct. 586, 590
(2007), we review the sentences imposed by the district court
under a deferential abuse of discretion standard.” United States
v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008). “In assessing
3
Nor did the district court abuse its discretion in
refusing to give the modified version of the willful blindness
jury instruction proposed by Tzeuton. Tzeuton cites no case law
supporting his proposed instruction, and the instruction given
in this case, (J.A. 277-78; 493), is fundamentally similar to
the example found in Federal Jury Practice and Instructions.
16
whether a sentencing court properly applied the Guidelines, ‘we
review the court’s factual findings for clear error and its
legal conclusions de novo.’” United States v. Osborne, 514 F.3d
377, 387 (4th Cir. 2008) (quoting United States v. Allen, 446
F.3d 522, 527 (4th Cir. 2006)). “Clear error occurs when,
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Harvey, 532 F.3d
at 336-37 (internal quotations omitted).
1.
When determining an appropriate sentence, a district court
“need not robotically tick through § 3553(a)’s every
subsection,” but should “provide [this court] an assurance that
the sentencing court considered the § 3553(a) factors with
regard to the particular defendant.” United States v. Moulden,
478 F.3d 652, 657 (4th Cir. 2007) (internal quotations and
citation omitted). “A court must . . . provide a sufficient
explanation so that we may effectively review the reasonableness
of the sentence.” Id.
The district court in this case did exactly that. The
court discussed in detail several § 3553(a) factors and imposed
a presumptively reasonable sentence within the guidelines range.
See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
17
2006) (“As we have held repeatedly, a sentence within a properly
calculated advisory Guidelines range is presumptively
reasonable.”). In fact, during sentencing, the court explicitly
stated that it “really need[ed] to consider the factors under 18
U.S.C. Section 3553. I mean, is this aberrant behavior, was he
under diminished capacity, is he rehabilitated in some way.”
(J.A. 852). See United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006) (“While the district court’s specific reference
to § 3553 was certainly not required, it may well have been
sufficient.”).
The district court then went on to consider particular §
3553(a) factors as they applied to Tzeuton, including the
“nature and circumstances of the offense and the history and
characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The
district court noted “the nature and circumstances of the
offense,” finding that “this is a serious offense,” a fraud that
“went on over an extended period of time,” and a conspiracy “to
defeat the purposes of the government to regulate immigration.”
(J.A. 852, 854). The district court considered the fact that
Tzeuton was a lawyer and had been “taking advantage . . . of
people with limited knowledge of either the language or the
legal system . . . .” (J.A. 852-53). The court then pointed
out that “[t]he defendant . . . continues to maintain that he
did nothing wrong, which is somewhat problematic here. . . .
18
[O]ne wonders whether the defendant, were he able to go back and
practice law again, might do the same thing if he doesn’t think
what he did here was wrong.” (J.A. 853). The court also
considered the need to “provide just punishment for the
offense,” see § 3553(a)(2)(A), noting the “punishment component”
at issue in this case. (J.A. 854). The district court also
considered the need “to afford adequate deterrence,” see §
3553(a)(2)(B), pointing out that the court “needs to promote
respect for law and to deter others who would do what he did,
other lawyers who would be involved in the same kind of
activity.” (J.A. 854). The record thus shows that district
court sufficiently considered the § 3553(a) factors with regard
to Tzeuton.
2.
Tzeuton next challenges the district court’s factual
finding that the offense involved five or more participants, and
consequently its imposition of the § 3B1.1(a) sentencing
enhancement. “Under § 3B1.1(a), a court may increase a
defendant’s offense level by four if the defendant ‘was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.’” Harvey, 532 F.3d
at 337. “A ‘participant’ is a person who is criminally
responsible for the commission of the offense, but need not have
19
been convicted.” § 3B1.1 cmt. n. 1. Tzeuton does not challenge
the determination that he was an “organizer or leader,” but
instead asserts that the district court clearly erred in finding
that the conspiracy “involved five or more participants.”
During sentencing, the district court questioned the
prosecution, asking “[w]ho are the five” participants in the
criminal activity necessary to support the enhancement. (J.A.
802). The prosecution named Tzeuton, Nzone, “Mr. Bah,” Kevin
Patcha (“Patcha”) and Peter Nyoh (“Nyoh”), lawyers who worked at
the office, Goodwill Tachi (“Tachi”), and seven former clients
who lied to the INS, among others, insisting that “they are all
absolutely criminal participants in this conspiracy.” (J.A.
802). The district court found that Nzone and the other
employees were “criminally responsible” on “the basis of the
testimony of one person that somebody told them to fabricate
evidence.” (J.A. 809). The court found that the clients were
“involved in criminal activity” within the meaning of the
enhancement because “[t]hey knew they were fabricating
evidence.” (J.A. 807). Thus, the district court concluded that
“there are at least five” participants in the conspiracy. (J.A.
808).
The district court did not clearly err in finding that
there were at least five participants in the conspiracy. First,
Tzeuton himself, “as principal, should be included as a
20
participant.” United States v. Fells, 920 F.2d 1179, 1182 (4th
Cir. 1990). Furthermore, the record supported the district
court’s conclusion that several employees knowingly coached
clients to lie. Koumba Tchiam (“Tchiam”), a former client,
testified that Nyoh “asked her to get a letter from her sister
pretending to be her mother to support her false application
that he typed up.” (J.A. 804). Tchiam also testified that
Patcha coached her to lie. Bintou Cisse, another former client,
testified that Tachi coached her to lie.
Finally, seven former clients testified during trial as to
their participation in the conspiracy. Even though not
ultimately charged with an offense, the former clients were also
“criminally responsible for the commission of the offense,” as
the “illegal scheme would not have succeeded without the[ir]
participation.” United States v. Turner, 102 F.3d 1350, 1360
(4th Cir. 1996). Thus the record supports the district court’s
conclusion, and the court did not clearly err.
III.
For the foregoing reasons, we hold that the district court
did not err in denying Tzeuton’s motion to dismiss and no
prosecutorial misconduct occurred during closing argument. The
district court did not abuse its discretion in denying Tzeuton’s
motion for an evidentiary hearing or in giving the jury a
21
“willful blindness instruction,” and did not impose an
unreasonable sentence. Accordingly, Tzeuton’s convictions and
sentences are
AFFIRMED.
22