United States v. Rose-Marie Nsahlai ( 2024 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-4675
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROSE-MARIE NSAHLAI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Rossie David Alston, Jr., District Judge. (1:21-cr-00234-RDA-1)
Argued: September 27, 2024 Decided: November 22, 2024
Before AGEE and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Harris and
Senior Judge Keenan joined.
ARGUED: Marvin David Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria,
Virginia, for Appellant. Jordan Michael Harvey, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.
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AGEE, Circuit Judge:
Rose-Marie Nsahlai appeals her convictions arising from a scheme in which she and
her husband successfully applied for two Paycheck Protection Program (PPP) loans based
on false representations and then used the loan proceeds for unauthorized purposes. On
appeal, Nsahlai challenges one of the district court’s evidentiary decisions and one of the
jury instructions. For the reasons set out below, we find no reversible error and affirm
Nsahlai’s convictions.
I.
A.
In response to the COVID-19 pandemic, Congress enacted the Coronavirus Aid,
Relief, and Economic Security (CARES) Act. Among other things, the CARES Act created
the PPP, which would be administered by the U.S. Small Business Administration (SBA).
As part of that program, the SBA authorized private financial institutions to issue
forgivable loans to small businesses to help them maintain payrolls and rehire laid-off
employees. To obtain a PPP loan, applicants submitted SBA applications directly to their
local banks, which would then review the information and lend money to approved
businesses.
Under the PPP, the amount of an approved loan was typically linked directly to the
business’s 2019 average monthly payroll. 1 Consequently, as a part of the application
Provisions existed for businesses that could not provide the prior year’s payroll
1
documentation, but those provisions are not implicated in this case.
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process, businesses were required to submit supporting documentation of their tax or
payroll records to verify their average monthly payrolls. Further, applicants were required
to certify that their entire application—including supporting documentation—was
accurate; that they understood that making knowing, false statements as part of the PPP
loan application was punishable under federal law; and that all PPP loan proceeds would
be used only for specified, authorized business-related purposes.
B.
The trial record established that Nsahlai and Didier Kindambu had a whirlwind
courtship before they married in December 2019. 2 At that time, Nsahlai was employed
full-time in the internet cybersecurity field for the U.S. Department of Health and Human
Services. Kindambu was an international businessman who had expanded his business into
the aviation sector by creating two corporations, Papillon Air, Inc., and Papillon Holdings,
Inc. (collectively “the Papillon companies”).
Founded in 2019, the Papillon companies had registered offices at Kindambu’s
northern Virginia residence. In addition, Kindambu acquired hangar and office space for
them at the Leesburg Executive Airport. But during the relevant time period, the Papillon
companies had no employees or independent contractors working for them. Consistent with
that fact, they did not have any payroll obligations, did not report any payroll to the Internal
Revenue Service, and did not pay any payroll taxes.
2
Because the Government prevailed at trial, we recount the evidence in the light
most favorable to it. See United States v. Smoot, 690 F.3d 215, 217 n.1 (4th Cir. 2012).
3
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As PPP loans began being issued, a Bank of America employee identified at trial as
“Kobe” reached out to Kindambu and explained how the loans worked. Thereafter, Nsahlai
joined the men’s ongoing conversations to determine what would be required for the
Papillon companies to obtain PPP loans. To that end, Nsahlai and Kindambu met with a
payroll processing firm under the auspices of the Papillon companies potentially becoming
a client. An employee with the firm testified that Kindambu introduced himself and Nsahlai
as both being “decision makers for the [Papillon companies,] so [he] could work with either
of them.” J.A. 381. Nsahlai and Kindambu told him they were unfamiliar with what sort of
payroll reports the Papillon companies would need to maintain, and were curious about the
services the firm could provide. As part of their discussions, the employee gave Nsahlai
examples of payroll reports the firm generated for a client so that she could understand how
to track necessary information about employees and payroll details and understand the
services the firm provided in creating year-end reports and other forms needed for state or
federal tax filings. The employee testified that despite those conversations, the Papillon
companies never became clients of his firm.
Instead, Nsahlai used the sample spreadsheets she had procured from the payroll
processing firm to create false supporting payroll documentation for the Papillon
companies that were uploaded as part of the PPP applications. 3 Contemporaneous
messages exchanged between Nsahlai and Kindambu reflect that Nsahlai spent hours
3
The Government introduced testimony delving into the metadata from the
supporting documentation that could be traced to the original spreadsheets the payroll firm
had provided to her.
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manufacturing extensive payroll documentation for the Papillon companies listing
fabricated employee and independent contractor names, payroll periods, and related pay
and tax information for 2019. There is no evidence in the record that any of the
documentation was legitimate. To the contrary, the record shows that the Papillon
companies did not operate in any form until mid-December 2019 and paid no employees
or independent contractors until well after the relevant PPP time period.
Kindambu electronically signed online applications for two PPP loans—one for
each of the Papillon companies—through Bank of America. In support of that application,
he uploaded the supporting payroll documentation that Nsahlai had crafted, which reflected
a substantial average monthly payroll for over forty employees and independent contractors
throughout 2019.
Bank of America approved both loan applications, lending one of the Papillon
companies $375,000 and the other $2,126,753. Both loans were deposited into the same
existing Bank of America account on May 6, 2020. Before the PPP loans were deposited,
that account had just over $100,000 in it.
Two days later, Nsahlai and Kindambu met with a Wells Fargo employee to jointly
set up a bank account for a third business they had established, Papillon Air Maintenance
Services. Several days later, approximately $1,000,000 was transferred from the existing
Bank of America account with the PPP loan proceeds into the Papillon Air Maintenance
Services’ Wells Fargo business account. The following month, over $800,000 was
transferred from that Wells Fargo business account into one of Kindambu’s personal
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checking accounts. Shortly after that, he withdrew over half the funds to pay the couple’s
closing costs to purchase a new residence.
Bank records also reflect that a few weeks after the PPP loans were deposited into
the Bank of America account, approximately $31,500 was transferred into Nsahlai’s
personal Bank of America account. She then made withdrawals for a host of personal
expenditures and transferred approximately one-third of the deposited money into other
personal accounts.
C.
In October 2021, Nsahlai was indicted on charges relating to the Papillon
companies’ PPP loans and her use of the loan money for unauthorized purposes. She
pleaded not guilty and exercised her right to a jury trial on the following charges:
conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count 1); two counts
of bank fraud, in violation of 18 U.S.C. §§ 1344(2) and 2 (Counts 2 and 3); and two counts
of unlawful monetary transactions, in violation of 18 U.S.C. §§ 1957 and 2 (Counts 4 and
5). 4 5
Before trial, the parties moved in limine to resolve some evidentiary disputes. Of
relevance to this appeal, the district court granted the Government’s motion to exclude
portions of an audio recording that Kindambu’s daughter surreptitiously made during a
conversation she had with Nsahlai in September 2020. In the excerpts at issue, Nsahlai
4
The Government voluntarily dismissed additional charges before trial.
Kindambu was also indicted on related charges, but he pleaded guilty and his
5
convictions are not at issue in this appeal.
6
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claimed that Kindambu had been violent toward her and threatened her at unspecified
times. In arguing in favor of the excerpt’s admissibility, Nsahlai represented that she
wished to introduce this part of the audio recording to present the “bigger picture” about
why “she didn’t look into some matters that the government claims she knew but she didn’t
know” concerning the PPP loan events. J.A. 99. Specifically, she argued that although she
did not intend to present the formal defense of duress, she intended to argue that “the
overall circumstances of [her abusive] relationship” with Kindambu explained why she
engaged in the charged conduct. J.A. 99.
The district court determined that the evidence was not relevant and was “inherently
prejudicial” given that the contested part of the recording indicating that Kindambu was
abusive went to “ancillary circumstances that have nothing to do with” Nsahlai’s
culpability for the charged offenses. J.A. 101. Beyond the ruling on the admissibility of the
recording excerpts, Nsahlai also sought clarification on what evidence, short of a duress
defense, she could introduce to explain her reasons for acting as she had. The district court
observed that should Nsahlai testify in her defense, it would permit counsel to ask, “Why
did you do this?” and then would “give [Nsahlai] some latitude to say that [she] felt [she]
needed to do that,” but that it would not allow the “term ‘abused’ or ‘beaten’ or something
like that” to come into evidence. J.A. 102. It reiterated Nsahlai would be allowed to testify
that “[s]he felt compelled to do it because of her relationship with her husband,” but that it
would prohibit testimony that he was physically abusive toward her. J.A. 102.
At trial, Nsahlai exercised her right not to testify in her defense and she did not
dispute that she worked with Kindambu to prepare and submit the two PPP loan
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applications. But through counsel’s opening statement, closing argument, and questioning
of witnesses (including Nsahlai’s sister), Nsahlai introduced as part of her defense that she
had a tumultuous relationship with Kindambu and that she was unaware of the fraudulent
nature of the PPP loan applications. For example, she argued that she had not known that
the supporting documentation for the payroll loans was pure fiction, instead placing all
unlawful acts squarely on Kindambu (and Kobe). E.g., J.A. 128–29 (“[Nsahlai] dutifully
and enthusiastically agreed when Mr. Kindambu tasked her to help him with the PPP loan
applications,” but “[s]he didn’t question the information that she was told to put into the
charts that she helped him with”); J.A. 911 (“[Nsahlai] tried her best to keep [Kindambu]
happy. She wasn’t aware of the true nature of his corporations. . . . She followed the
instructions and guidance from Kobe. She followed the directives from [Kindambu]. Ms.
Nsahlai didn’t intend to defraud anyone, and she didn’t intend to defraud the Bank of
America.”).
The jury convicted Nsahlai on all five counts. After a hearing, the district court
sentenced her to twenty-four months’ imprisonment and five years’ supervised release. It
also ordered $2,501,753.00 in restitution.
Nsahlai noted a timely appeal, and the Court has jurisdiction under 28 U.S.C. §
1291.
II.
On appeal, Nsahlai raises two issues challenging her convictions. First, she contends
the district court’s evidentiary rulings improperly limited her ability to present evidence
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that Kindambu abused her in support of her defense that she acted without the requisite
mens rea to make any false or fraudulent representations about the Papillon companies.
Second, she asserts the jury instructions materially altered the nature of the conspiracy that
had been charged in Count 1 of the indictment and improperly said that if the jury convicted
her of Count 1 (conspiracy), it could also convict her on Counts 4 and 5 (unlawful monetary
transactions). We will address each argument in turn.
A.
Nsahlai first challenges the district court’s rulings that prevented her from
introducing evidence related to her allegations of domestic abuse. Specifically, she
challenges the exclusion of the audio recording excerpt in which she accused Kindambu of
abusing her and other unspecified evidence that she was the victim of Kindambu’s violent
behavior. 6 Nsahlai asserts that the exclusion of this evidence prevented her from fully
developing the argument that she lacked the requisite mens rea to commit the charged
offenses. She submits that if her claimed evidence of domestic abuse had been admitted,
the jury could have decided “what weight to give it in determining whether there was a
reasonable doubt about [her] mens rea regarding knowledge of no employees at the time
the spreadsheets were provided for the [PPP] loan applications.” Opening Br. 30. In other
6
Apart from the recording excerpt, Nsahlai did not proffer any specific testimony
or identify other evidence that she would have introduced to support her accusation that
Kindambu physically and mentally abused her. The record does not reflect what she would
have testified to concerning the nature of their relationship at the time of the underlying
events. In short, the record is silent about what, if any, other evidence of this nature Nsahlai
would have introduced despite her broad references to the category of “domestic abuse
evidence” that she claims she was not permitted to develop at trial.
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words, she argues that evidence of her alleged abuse was relevant to explaining why she
did the things she did and why she did not question Kindambu about the Papillon
companies such that the jury may have concluded she lacked the requisite specific intent
to engage in the charged conduct. Nsahlai maintains that the district court’s evidentiary
errors stemmed from its mistaken impressions about when evidence of domestic abuse is
relevant and probative to negating a finding of mens rea. 7
“We review a district court’s evidentiary rulings for an abuse of discretion, and we
will only overturn a ruling that is arbitrary and irrational.” United States v. Farrell, 921
F.3d 116, 143 (4th Cir. 2019) (cleaned up). An abuse of discretion occurs when an
evidentiary decision “is guided by erroneous legal principles or rests upon a clearly
7
Nsahlai also intimates that the district court’s evidentiary rulings violated her
constitutional right to testify in her own defense and to present a complete defense. The
record belies that assertion and supports our conclusion that the crux of her complaint is
“better framed as” a straightforward evidentiary challenge. United States v. Malloy, 568
F.3d 166, 177 (4th Cir. 2009) (recognizing that a defendant’s invocation of constitutional
terms to challenge an inability to present particular evidence supporting a particular
defense is “better framed as an evidentiary argument” and thus subject to abuse of
discretion and regular harmlessness review). Contrary to Nsahlai’s argument that her
constitutional rights were compromised by this ruling, the district court methodically
explained the scope of its ruling, repeatedly explained that it would grant Nsahlai latitude
in testifying that she felt compelled to act, and reiterated that the decision of whether to
take the stand was entirely her own. Based on this record, we readily reject Nsahlai’s
assertion that the district court forbade her from testifying or that its rulings otherwise
infringed on her right to testify or ability to present a complete defense. See United States
v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003) (“[A] defendant’s right to present a
defense is not absolute: criminal defendants do not have a right to present evidence that the
district court, in its discretion, deems irrelevant or immaterial.”); see also Crane v.
Kentucky, 476 U.S. 683, 689–90 (1986) (observing that the “Constitution leaves to the
judges who must make these decisions wide latitude to exclude evidence that is . . . only
marginally relevant or poses an undue risk of harassment, prejudice, or confusion of the
issues” (cleaned up)). Instead, the district court limited Nsahlai’s right to present particular
evidence, and her challenge to that ruling presents an ordinary evidentiary challenge.
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erroneous factual finding.” Brown v. Nucor Corp., 576 F.3d 149, 161 (4th Cir. 2009)
(cleaned up). And even in the event of an error, we will not reverse if the error was
harmless. Fed. R. Crim. P. 52(a). “[T]o find a district court’s error harmless, we need only
be able to say with fair assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substantially swayed by the
error.” United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (cleaned up).
Here, we conclude that the district court did not abuse its discretion in excluding
Nsahlai’s allegations that Kindambu abused her. To be sure, the threshold for relevance is
a low bar, but it nonetheless requires that the evidence be “worth consideration by the jury”
or have a “plus value” on the question before that body. United States v. Hart, 91 F.4th
732, 742 (4th Cir. 2024) (internal quotations omitted); see Fed. R. Evid. 401 (stating that
evidence is relevant if it has “any tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence in determining the action”).
That bar is not met here. With regard to the audio recording between Nsahlai and
Kindambu’s daughter, that conversation took place in September 2020, approximately four
months after the events giving rise to the charges against her. The vague accusation itself
refers to events that occurred at an unknown point in time and without context. Even more
non-specific was Nsahlai’s broadly stated intention of testifying that Kindambu abused her.
On this limited record, we cannot say that the district court abused its discretion in ruling
that, if she chose to testify, Nsahlai could not use the words “abuse[]” or “beaten,” but
could explain that she felt compelled by Kindambu to act as she did. See J.A. 102. Under
the circumstances presented, generalized allegations that Kindambu abused Nsahlai would
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have negligible, if any, tendency to make any element of the charged offenses more or less
probable. 8
Even assuming Nsahlai’s allegations of abuse cleared the threshold to be legally
relevant, the district court did not abuse its discretion in concluding they should be
excluded under Federal Rule of Evidence 403. Under that rule, evidence that is relevant
may nonetheless be excluded for any of several reasons including that “its probative value
is substantially outweighed by a danger of” “unfair prejudice, confusing the issues, [or]
8
Nsahlai asserts that evidence of domestic abuse would have negated a finding that
she had the requisite mens rea to commit the charged offenses. We are hard pressed to see
how that is so. We do not agree with her assertion that the district court misunderstood how
she intended to use the evidence of abuse or that such evidence was relevant in the absence
of a duress defense.
It’s undisputed that Nsahlai was not pursuing a duress defense in this case.
Nonetheless, many of her arguments amount to such an affirmative defense, i.e., seeking
to excuse her conduct based on fear or compelled behavior. In this way, Nsahlai seeks to
gain the benefit of a duress defense without the burden of satisfying its exacting elements.
See e.g., United States v. Bailey, 444 U.S. 394, 410 (1980) (recognizing that, whatever its
precise formula in a particular jurisdiction, “one principle [of duress] remains constant: if
there was a reasonable, legal alternative to violating the law, a chance both to refuse to do
the criminal act and also to avoid the threatened harm, the defense[] will fail” (internal
quotations omitted)).
Although evidence that a defendant is the victim of domestic abuse may be
admissible in some cases apart from a duress defense, the district court did not abuse its
discretion in ruling it to be inadmissible here. Nsahlai does not argue that evidence of abuse
would have contradicted the overwhelming evidence of her involvement in the conspiracy,
bank fraud, or unlawful monetary transactions. Nor does she contend that evidence of abuse
negated her intent to commit those acts. Instead, she argues that evidence of domestic abuse
may have led the jury to excuse her “unquestioning compliance with Kindambu’s requests”
and “why she did not ask” him for more information about the Papillon companies’
operations. Opening Br. 33. But those were not questions before the jury, do not relate to
the elements of the charged offense, and do not fall within a recognized defense that would
allow the jury to acquit despite finding the elements of the offense satisfied. As such, the
district court did not abuse its discretion in excluding them. In short, a defendant cannot
put on a duress defense under the guise of something else.
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misleading the jury.” Fed. R. Evid. 403. Although the district court relied on prejudice in
discussing Rule 403, we conclude that an equally apparent concern would be the risk of
confusing the issues and misleading the jury, which was charged with ascertaining
Nsahlai’s culpability for the charged offenses, which occurred in April and May 2020. Any
probative value in her recorded accusation—several months later—that Kindambu had
acted violently toward her at some unknown point in time would be substantially
outweighed by the risk that the jury would believe it needed to determine matters tangential
to assessing her guilt. In particular, evidence of domestic abuse would have led the jury to
believe it was somehow relevant to deciding Nsahlai’s guilt whether, (1) she was in fact
the victim of abuse, and (2) her circumstances were such that she was coerced into doing
what she did. Neither of those issues was before the jury in this case and neither was
relevant to assessing whether the record established the elements of the charged offenses.
Consequently, admitting such evidence could run the very real risk of confusing the issues
or misleading the jury.
But even if this evidence cleared both the threshold relevance inquiry and Rule
403’s balancing test for admissibility, we would still not find reversible error because any
error in excluding this evidence was harmless. The descriptor “overwhelming” certainly
fits the evidence of Nsahlai’s guilt that exists in this record. The Government introduced
numerous witnesses as well as documentary evidence confirming Nsahlai’s voluntary,
substantial, and knowing role in the charged offenses. She is an educated woman with
expertise in computers who actively participated from the planning phases through the
execution of the charged offenses. We recount just some of the evidence of Nsahlai’s own
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communications documenting her role and knowledge—WhatsApp messages, emails, and
excerpts from the recorded conversation between Nsahlai and Kindambu’s daughter.
First, the Government introduced a series of WhatsApp messages between Nsahlai
and Kindambu in which she explains to Kindambu that “we’ll create the payroll reports for
periods [organized] by employee. SBA [is] not IRS so if you’re ready to take a leap of faith
and a chance, we’ll figure it out.” J.A. 929. After Kindambu responds, “Ok u can do,”
Nsahlai replied, “I’ll generate the reports from free templates . . . figure how payments can
be justified. . . . We know the risks, lay low on SBA initiatives, do taxes etc.” J.A. 930–31.
At various points in the enterprise, both parties encouraged each other that they both needed
to feel comfortable with the plan before proceeding, with Kindambu telling Nsahlai that
she “can judge . . . [i]f you don’t feel it leave it,” and Nsahlai responding, “[i]f you are ok,
we proceed.” J.A. 935. Nsahlai later confirmed she would create the “[r]eports and will
simply use [the spreadsheets they had received from the payroll processing firm] to ensure
it has all relevant information.” J.A. 937. She then summarized the process she was using
to create the supporting documentation for the Papillon companies’ PPP loan applications.
Next, the Government introduced an email from Nsahlai to Kindambu in which she
described how she created the numbers necessary to obtain the PPP loans: “To get our
numbers, we grossly exaggerated monthly. The first, Papillon we did the monthly was
approx. $700,000 to get a loan of $1.7 million.” J.A. 955. She then said that Kobe had
suggested they seek a $5 million loan, “[w]hich meant the numbers were super high.” J.A.
955.
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In addition, the Government introduced correspondence from April to August 2020
between Nsahlai and a mortgage lender who was requesting more information about the
Papillon companies’ operations during the relevant time periods. They demonstrate her
familiarity with the Papillon companies’ operations and her ability to speak on behalf of
Kindambu on such matters. What’s more, in one of these documents, dated April 27, 2020,
Nsahlai represented that the companies “conducted no business activities, [had] no income,
and were essentially shells for the applicable tax year. Hence, we also believed we did not
have to file taxes for the applicable year,” i.e., 2019. J.A. 959. Given that the loan
applications were submitted on April 3rd of the same year, correspondence provided to
other entities that same month directly contradicting the representations in the loan
applications are particularly indicative of Nsahlai’s knowledge and intent. Put bluntly,
these documents show that Nsahlai knew about the Papillon companies’ actual (non-
existent) operations and payroll obligations for 2019 despite what she represented in the
PPP loan application process and in the supporting documentation that she created around
the same time.
Last, the Government introduced excerpts from the September 2020 recorded
conversation between Nsahlai and Kindambu’s daughter. When discussing the couple’s
finances, Nsahlai asserts, “I financed this house,” connecting the money used to purchase
it to the “2.5 million from the government for loans” that she had arranged for him. J.A.
922 (emphasis added). When Kindambu’s daughter attributed Nsahlai’s role in the home
purchase to Nsahlai’s citizenship, Nsahlai responded, “You don’t understand where the
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money came from. . . . [W]ho made it happen? . . . I have done all these things . . . . [T]he
loan . . . money is going to be scot-free because of how I did it.” J.A. 923–24.
To be clear, the above-recounted evidence is just a fraction of the Government’s
evidence against Nsahlai at trial. But it’s the most relevant evidence to our finding that any
error in excluding the evidence of domestic abuse was harmless because it most directly
points to Nsahlai’s knowing participation in the charged offenses. In short, we conclude
that the excluded evidence would not have tipped the needle in the jury’s deliberations and
its exclusion thus did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” United States v. Ferguson, 752 F.3d 613, 618 (4th Cir.
2014) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
B.
Nsahlai next argues that part of the jury instructions were erroneous, raising two
related arguments centered on the instructions for Count 1 of the indictment (the conspiracy
charge). First, she argues that the instructions impermissibly allowed her to be convicted
on Count 1 based on conduct relating to Counts 4 and 5 (fraudulent monetary transactions)
when the indictment did not set out Counts 4 and 5 as relevant conduct to support the
conspiracy offense. As a result of this purported discrepancy, Nsahlai contends that she
lacked the requisite notice from the indictment as to the nature of the conspiracy charge
she had to defend against at trial. Second, Nsahlai argues that the instructions
impermissibly allowed the jury to convict her of Counts 4 and 5 so long as it found her
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guilty of the conspiracy charged in Count 1 when the three charges in the indictment
referred to different conduct. 9
Because Nsahlai did not raise these objections at trial, we review them for plain
error. Puckett v. United States, 556 U.S. 129, 135 (2009). Under the standard set out in
United States v. Olano, 507 U.S. 725 (1993), plain-error review has four steps. “First, there
must be an error or defect—some sort of deviation from a legal rule—that has not been
intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant.”
Puckett, 556 U.S. at 135 (cleaned up). “Second, the legal error must be clear or obvious,
rather than subject to reasonable dispute.” Id. “Third, the error must have affected the
appellant’s substantial rights, which in the ordinary case means he must demonstrate that
it affected the outcome of the district court proceedings.” Id. (cleaned up). “Fourth and
9
The challenged instruction states:
If you find that the government has proven the defendant guilty of conspiracy
beyond a reasonable doubt as charged in Count 1 of the indictment, you may
also find the defendant guilty of the crime alleged in the other count in the
indictment in which she is charged, provided you find that the essential
elements of that count, as defined in these instructions, have been established
beyond a reasonable doubt and, provided further, that you also find beyond
a reasonable doubt that:
One, at least one of the substantive offenses, as charged in Counts 2 through
5 of the indictments, were committed by a member of the conspiracy as
detailed in Count 1 of the indictment.
And two, at least one of the substantive offenses, as charged in Counts 2
through 5, was committed during the existence or life of and in furtherance
of the goals and objectives of and in furtherance of the goals or objectives of
the corresponding conspiracy, as detailed in Count 1 of the indictment.
And three, at the time that this offense was committed the defendant was a
member of the conspiracy detailed in Count 1 of the indictment.
J.A. 869.
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finally, if the above three prongs are satisfied, the court of appeals has the discretion to
remedy the error—discretion which ought to be exercised only if the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Id. (cleaned up).
“Meeting all four prongs is difficult, ‘as it should be.’” Id. (quoting United States v.
Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)).
Even assuming that Nsahlai could satisfy the first two steps—something we do not
need to decide—her argument fails because she cannot show that any error affected her
substantial rights. See United States v. Vonn, 535 U.S. 55, 62–63 (2002) (“When an
appellate court considers error that qualifies as plain, . . . the defendant who sat silent at
trial has the burden to show that his ‘substantial rights’ were affected.”).
When considering jury instruction challenges, “we do not view a single instruction
in isolation,” but must assess the “allegedly erroneous instruction in its full context.”
United States v. Tillery, 702 F.3d 170, 176 (4th Cir. 2012) (cleaned up). That “full context”
includes not just the other instructions, but also the trial as a whole. See United States v.
Park, 421 U.S. 658, 674 (1975); see also United States v. Moore, 810 F.3d 932, 937 (4th
Cir. 2016) (affirming conviction where “the totality of the circumstances . . . , including
the jury instructions, the verdict form provided to the jury, the arguments of the parties,
and the evidence” did not support the conclusion that a constructive amendment occurred).
Here, we are confident that the challenged jury instruction did not affect Nsahlai’s
conviction for a conspiracy to commit bank fraud, as charged in Count 1 of the indictment.
Our conclusion rests on the jury instructions as a whole, the verdict form, and the trial
record.
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Irrespective of the challenged instruction, the remaining jury instructions about
Count 1 go on to detail the specific elements the jury had to find before it could find Nsahlai
guilty of that offense. And those instructions indisputably required the jury to find that
Nsahlai and Kindambu conspired “to devise and intend to devise a scheme and artifice to
obtain the monies, funds, credits, assets, and other property owned by and under the control
of a financial institution, namely, Bank of America, N.A., by means of materially false and
fraudulent pretenses, representations, and promises.” J.A. 870. The instructions described
the purpose of the conspiracy using this same language and repeatedly informed the jury
about what was necessary to prove “the essential elements of the crime of conspiracy to
commit bank fraud.” J.A. 870 (emphasis added); see also J.A. 871 (“The offense alleged
in Count 1 as an object of the conspiracy is bank fraud. . . . In order to fulfill its burden of
proof for the crimes of conspiracy to commit offenses against the United States of America,
namely, bank fraud . . . . [T]he conspiracy agreement or understanding to commit bank
fraud . . . .” (emphases added)). Thus, while the prefatory instructions concerning Count 1
could be read to suggest that the conspiracy count could be based, in part, on finding any
of the violations set out in Counts 2 through 5, the more detailed instructions concerning
the elements of Count 1 consistently referred the jurors to bank fraud—something
unquestionably within the indictment’s scope—rather than to the unlawful monetary
transactions charged in Counts 4 and 5. This is not a case where a potentially erroneous
instruction existed on its own. To the contrary, the narrower instructions that immediately
followed it centered the jury’s focus to the necessary findings which, without question,
required the jury to make those findings within the scope of the charged conspiracy before
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it could convict Nsahlai. The juxtaposition of these instructions, read as a whole, fosters
confidence in the nature of the jury’s verdict.
Bolstering that conclusion, the verdict form completed by the jury reflects its
decision finding Nsahlai “Guilty” of “Count 1, Conspiracy to Commit Bank Fraud.”
District Court Docket No. 124 (emphasis added). In short, the verdict form with respect to
Count 1 supports our conclusion that the jury’s verdict unquestionably aligned with the
scope of the conspiracy charged in the indictment. This language from the verdict form
undermines Nsahlai’s contention of juror confusion and reinforces our conclusion that the
jury’s verdict would have been the same even without the challenged jury instruction. 10
As a final observation, our conclusion that no plain error has occurred with respect
to the jury instructions is solidified by the overwhelming evidence to support Nsahlai’s
guilt of the charged conspiracy. When considered in light of the instructions as a whole
and the verdict form, the trial record demonstrates that Nsahlai cannot show that any error
affected her substantial rights, that is that it would have affected the jury’s verdict. Given
our prior recitation of much of that evidence, we need only briefly recount it here.
10
The fact that the jury also convicted Nsahlai of both substantive bank fraud
charges serves as additional confirmation as well. While this observation is not dispositive
given that the jury also convicted Nsahlai of the unauthorized monetary transfers, the guilty
verdicts on Counts 2 and 3 (bank fraud) were necessarily based on the same underlying
conduct as would have been necessary to convict for Count 1, the “conspiracy to commit
bank fraud.” The only differences would be for minor variations accounting for the
necessary variations for the specific elements of each offense, an agreement to commit
versus the commission of the substantive offense. The requisite findings necessary to
support Counts 2 and 3 overlap sufficiently with what the verdict form says about Count 1
to support our overarching conclusion that Nsahlai has not demonstrated that the jury’s
verdict was based on conduct other than that charged in the indictment.
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As earlier set out in section II.A., which discusses her evidentiary challenge, the
Government introduced multiple witnesses alongside documentary evidence proving
Nsahlai’s role in the conspiracy to defraud Bank of America by applying for PPP loans for
which the Papillon companies did not qualify. Some of that evidence consisted of Nsahlai’s
own words demonstrating that she planned the fraud with Kindambu and created false
supporting documentation to submit as part of the applications, knowing that the supporting
documentation did not reflect actual employee and payroll records. She then participated
in using the PPP loan money for purposes entirely unrelated to their authorized purposes.
Thus, the overwhelming evidence at trial specifically tied Nsahlai to a conspiracy to
commit bank fraud, the offense charged in Count 1 of the indictment and of which the jury
found her guilty on the verdict form. 11
11
The validity of Nsahlai’s other convictions is also beyond dispute. Nsahlai’s jury-
instruction challenge does not implicate the validity of her convictions for Counts 2 and 3
(bank fraud).
As for Counts 4 and 5, Nsahlai’s argument implicates them only insofar as she
claims they could not be the basis for the supporting a conviction on Count 1. She does not
directly challenge the sufficiency of the evidence to support her convictions for Counts 4
and 5. To the extent she asserts it was reversible error to say that a conviction for Count 1
permitted the jury to convict on Counts 4 and 5, we disagree. First, that argument ignores
the full sentence in which that language appears. The instruction states that the jury “may
also find the defendant guilty of the crime alleged in the other count in the indictment in
which she is charged, provided you find that the essential elements of that count, as defined
in these instructions, have been established beyond a reasonable doubt.” J.A. 869
(emphasis added). This instruction does not reasonably allow for the conclusion that the
jury might have convicted Nsahlai of Counts 4 and 5 without specifically finding that the
Government’s evidence satisfied each element of those offenses. And since Nsahlai does
not contend that the later instructions setting out the elements of Counts 4 and 5 were
erroneous, this language does not warrant reversal.
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Under the totality of the circumstances in this case, we conclude that Nsahlai has
not shown that the challenged jury instruction affected her substantial rights, i.e., led to her
convictions. As such, we conclude she has not shown reversible error on plain-error review.
III.
Because Nsahlai has not shown that the district court committed reversible error in
either its challenged evidentiary rulings or the challenged jury instruction, we affirm her
convictions.
AFFIRMED
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