United States v. Vicente Mbenga ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4972
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICENTE BILORA MBENGA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:09-cr-00548-RDB-6)
Submitted: February 22, 2013 Decided: March 1, 2013
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy J. Sullivan, BRENNAN, SULLIVAN & McKENNA, LLP,
Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Tamera L. Fine, Justin S. Herring, Assistant
United States Attorneys, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vicente Bilora Mbenga appeals his convictions for
conspiracy to commit bank fraud, in violation of 18 U.S.C.
§ 1349 (2006), bank fraud, in violation of 18 U.S.C. § 1344(2006), and aggravated identity theft, in violation of 18 U.S.C.
§ 1028A (2006). Mbenga raises three issues on appeal, claiming
(1) that the district court erred in denying his motion to
suppress certain statements made shortly before his arrest and
items recovered from him shortly after it; (2) that the court
erred in failing to instruct the jury that a conviction for
conspiracy to commit bank fraud under 18 U.S.C. § 1349 requires
proof of an “overt act”; and (3) that the court erred in failing
to instruct the jury on the definition of reasonable doubt.
Each of Mbenga’s appellate assertions is without
merit. We have rejected elsewhere attacks identical to those
that Mbenga levels against the jury instructions in his case,
and we see no reason not to hew to those determinations
here. See United States v. Oriakhi, 57 F.3d 1290, 1300 (4th
Cir. 1995) (“It is well settled in this circuit that a district
court should not attempt to define the term ‘reasonable doubt’
in a jury instruction absent a specific request for such a
definition from the jury.”); United States v. Chinasa, No. 11-
4549, 2012 WL 3009967, at *3 (4th Cir. July 24, 2012)
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(unpublished) (per curiam)) (“[18 U.S.C.] § 1349 does not
contain any overt act requirement.”).
As for Mbenga’s arguments touching the denial of his
motion to suppress, they, too, must fail. The district court’s
legal conclusions underlying a suppression determination are
reviewed de novo, while its factual findings are reviewed for
clear error. United States v. Guijon-Ortiz, 660 F.3d 757, 762
(4th Cir. 2011). Because the district court denied the motion
to suppress, the evidence is construed on appeal in the light
most favorable to the government. United States v. Perkins, 363
F.3d 317, 320 (4th Cir. 2004).
Our review of the record convinces us that, to the
extent that the officers’ interaction with Mbenga needed to be
supported by reasonable suspicion, it was. See United States v.
Jones, 678 F.3d 293, 299 (4th Cir. 2012); United States v.
Ortiz, 669 F.3d 439, 444 (4th Cir. 2012) (noting standard); see
also United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002)
(refusing to adopt a brightline rule that an individual is
seized when an officer retains his driver’s license in order to
perform a check for outstanding warrants). We also conclude
that Mbenga’s arrest was supported by probable cause,
particularly given that his coconspirator informed the arresting
officers that Mbenga was the source of the fraudulent check that
the coconspirator had been caught trying to
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cash. See Illinois v. Gates, 462 U.S. 213, 238 (1983) (defining
probable cause as “a fair probability” of criminal
conduct); United States v. Abramski, F.3d , 2013 WL
238922, at *8 (4th Cir. Jan. 23, 2013) (No. 11-4992) (same).
Finally, even if we accepted Mbenga’s argument that
his statement should have been excluded from evidence because he
made it while “in custody” for purposes of Miranda v. Arizona,
384 U.S. 436 (1966), our review of the record convinces us that
any erroneous failure to suppress the statement would amount to
no more than harmless error. United States v. Hargrove, 625
F.3d 170, 178 (4th Cir. 2010) (internal quotation marks
omitted); see also United States v. Watson, F.3d , 2013
WL 14548, at *11 (4th Cir. Jan. 2, 2013) (No. 11-4371)
(describing harmless constitutional error). *
Accordingly, we affirm the judgment of the district
court. We deny Mbenga’s pending motion requesting leave to file
a pro se supplemental brief. See United States v. Gillis, 773
F.2d 549, 560 (4th Cir. 1985) (explaining that there is no
constitutional right to proceed pro se on appeal). We dispense
with oral argument because the facts and legal contentions are
*
Given our view of the merits of Mbenga’s suppression
motion, we see no need to take up the Government’s assertions
regarding Mbenga’s failure to file a pretrial motion to
suppress.
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adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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