United States v. Nanya El , 275 F. App'x 205 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5197
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NANYA SHAABU EL, a/k/a Sean Wesley Henry,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00171-WLO)
Argued: March 21, 2008 Decided: April 25, 2008
Before NIEMEYER and MICHAEL, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Lynn McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT,
L.L.P., Greensboro, North Carolina, for Appellant. Graham Tod
Green, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United
States Attorney, Greensboro, North Carolina, Paul A. Weinman,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Nanya Shaabu El* on two charges under 18
U.S.C. § 915 for falsely claiming diplomatic immunity and
attempting to obtain something of value by doing so. He appeals
the district court's denial of his Rule 29 motion for judgment of
acquittal made at the close of the government's evidence and
renewed at the close of his defense case.
I.
On May 22, 2006, Nanya El and two others falsely represented
to authorities that they were diplomats. Nanya El first made this
representation at the main office of the United States Department
of State in Washington, D.C. Nanya El told the security guard on
duty that he was a diplomat, showed the guard what purported to be
a United Nations identification card, and informed that guard that
he wished to authenticate documents. Later that same day, the car
in which Nanya El was riding as a passenger was pulled over on
Interstate 85, and officers found a small amount of marijuana and
a loaded handgun in the car. Nanya El again represented himself to
be a diplomat during conversations with the police officers
conducting the traffic stop, and referred to authenticated
documents in a folder he was carrying as support for this claim.
*
Nanya Shaabu El refers to himself as Mr. Nanya El in his
brief, and we will likewise refer to him as Nanya El throughout the
remainder of this opinion.
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Nanya El was not ultimately charged with any state criminal
offenses. The driver of the car was charged in state court with
simple possession of marijuana. Nanya El was indicted on two
charges under 18 U.S.C. § 915 for falsely claiming diplomatic
immunity and attempting to obtain something of value by doing so.
The jury convicted him on both counts, and Nanya El was sentenced
to concurrent terms of six months on both counts, with credit for
time already served. On appeal, Nanya El argues that he had no
intent to defraud authorities, either because he had a "good faith"
belief that his representations were true or that the story given
to the police was so far-fetched that the police could not have
reasonably believed he was from a nation having diplomatic
relations with the United States. Nanya El further argues that
since he purported to be from a "nation" which did not have
diplomatic relations with the United States, he cannot be guilty
under the statute. Nanya El's final argument is that since he was
not charged with any offense in state court, there was no evidence
that he sought anything of value by asserting diplomatic immunity.
II.
We review the trial court's denial of a motion for a judgment
of acquittal de novo. United States v. Gray, 405 F.3d 227, 237
(4th Cir. 2005). The jury's verdict must be upheld if, after
reviewing the evidence in the light most favorable to the
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government, a rational trier of fact could have found the elements
of the offense beyond a reasonable doubt. United States v.
Osborne, 514 F.3d 377, 385 (4th Cir. 2008).
18 U.S.C. § 915 provides:
Whoever, with intent to defraud within the United States,
falsely assumes or pretends to be a diplomatic, consular
or other official of a foreign government duly accredited
as such to the United States and acts as such, or in such
pretended character, demands or obtains or attempts to
obtain any money, paper, document, or other thing of
value, shall be fined under this title or imprisoned not
more than ten years, or both.
In order to prove its case under this statute, the government must
demonstrate that a defendant intended to falsely represent himself
as a diplomat, and that he intended to gain a thing of value by
doing so. Cortez v. United States, 328 F.2d 51, 52 (5th Cir.
1964). Attempting to secure immunity from possible prosecution is
a "thing of value" within the meaning of this statute. See United
States v. Callaway, 446 F.2d 753, 754-55 (3d Cir. 1971).
The district court did not err in denying Nanya El's Rule 29
motion for acquittal. Nanya El's somewhat contradictory arguments
notwithstanding, in reviewing the evidence in the light most
favorable to the verdict, we find that the government adequately
proved the intent-to-defraud element. In addition to his verbal
assertions, Nanya El had scores of official-looking documents and
identification cards purportedly backing his diplomatic status.
Under these circumstances, the police were at least obliged to
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check into the legitimacy of the paperwork, and apparently spent
considerable time doing so.
Nanya El also argues that because the nation he pretended to
represent ("Atlan") did not really exist, and definitely was not a
nation "duly accredited as such to the United States," he cannot be
guilty of violating the statute. In Callaway, the defendant took
a similar approach, arguing that the government did not prove he
was trying to impersonate a foreign diplomat "duly accredited as
such to the United States," because he merely pretended to be a
Canadian diplomat, but not one who was attached to a particular
American mission. The Third Circuit rejected this argument, noting
that most importantly, the defendant had "intended to use
diplomatic privilege as a shield against the law," which was "the
primary evil that the statute sought to correct." Id. at 754. We
agree with the Third Circuit's approach and find that Nanya El's
conduct on May 22, 2006, was the primary evil that Section 915
sought to correct, regardless of the likely validity of his
diplomatic claims.
Finally, we reject Nanya El's argument that because he was not
ultimately prosecuted in state court for any offense, he did not
seek a thing of value by asserting diplomatic status. As
previously noted, immunity from prosecution is a thing of value.
Cf. United States v. Rippee, 961 F.2d 677, 679 (7th Cir. 1992)
(holding that forbearance from prosecution was a thing of value as
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proscribed in 18 U.S.C. § 912 which criminalizes impersonating a
federal officer).
AFFIRMED
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