                            ON REHEARING

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4014


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

BALRAJ NAIDU,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:08-cr-00091-CCB-2)


Submitted:   January 24, 2012               Decided:   May 4, 2012


Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


Andrew H. Baida, ROSENBERG MARTIN GREENBERG, LLP, Baltimore,
Maryland, for Appellant.   James G. Warwick, Rachel Miller
Yasser, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            A federal jury convicted Balraj Naidu of conspiracy to

provide material support to a foreign terrorist organization, in

violation of 18 U.S.C.A. § 2339B(a)(1) (West Supp. 2011).                     The

district    court    sentenced     Naidu     to   fifty-seven       months     of

imprisonment.       On   appeal,   counsel    filed    a   brief   pursuant    to

Anders v. California, 386 U.S. 738 (1967), questioning whether

the   verdict   form     constructively      amended    the   indictment      and

whether there was sufficient evidence to support the conviction.

Naidu also filed a pro se supplemental brief raising additional

issues. *   We affirmed the judgment of the district court.             We now

grant Naidu’s petition for panel rehearing.                Although we affirm

the conviction and sentence, we remand to the district court to

correct a clerical error in the judgment.

            On appeal, counsel first questions whether the verdict

form constructively amended the indictment.                As Naidu failed to

raise this issue in the district court, we review this issue for

plain error.        See Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 731-32 (1993).               To meet this standard,

Naidu must demonstrate that there was error, that was plain, and

that affected his substantial rights.             Id.      Moreover, even if


      *
       We have considered the issues raised in Naidu’s pro se
briefs and conclude that they lack merit.



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Naidu demonstrates plain error occurred, we will not exercise

discretion       to     correct   the    error    “unless     the      error     seriously

affect[s]        the    fairness,       integrity     or    public        reputation    of

judicial     proceedings.”              Id.    (internal      quotation         marks   and

citation omitted).

            “A constructive amendment to an indictment occurs when

either     the     government       (usually      during      its      presentation     of

evidence and/or its argument), the court (usually through its

instructions to the jury), or both, broadens the possible bases

for   conviction         beyond   those       presented     by      the    grand    jury.”

United States v. Hackley, 662 F.3d 671, 682 n.6 (4th Cir. 2011)

(internal quotation marks and citation omitted).                            Constructive

amendments        are    “fatal     variances       because      the      indictment    is

altered to change the elements of the offense charged, such that

the defendant is actually convicted of a crime other than that

charged in the indictment.”                   United States v. Perry, 560 F.3d

246, 256 (4th Cir. 2009) (internal quotation marks and citations

omitted).

            Here,        while    the     indictment       charged        the    knowledge

element of the offense in the conjunctive, the verdict form and

the statute list the knowledge element in the disjunctive.                              As

counsel correctly concedes, however, “[i]t is well established

that when the [g]overnment charges in the conjunctive, and the

statute is worded in the disjunctive, the district court can

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instruct the jury in the disjunctive.”                   Perry, 560 F.3d at 256

(internal quotation marks and citations omitted).                      We therefore

conclude that the district court did not commit plain error in

crafting the verdict form and instructing the jury regarding the

form.

            Counsel     next      questions        whether       the     Government

presented    sufficient        evidence       to   support       the    conviction,

contending that Naidu was excluded from the conspiracy by his

coconspirators.       We review a district court’s decision to deny a

Fed. R. Crim. P. 29 motion for a judgment of acquittal de novo.

United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).                          A

defendant challenging the sufficiency of the evidence faces a

heavy burden.      United States v. Beidler, 110 F.3d 1064, 1067

(4th Cir. 1997).       “In reviewing the sufficiency of the evidence

supporting    a   criminal      conviction,        our    role    is    limited   to

considering whether there is substantial evidence, taking the

view most favorable to the Government, to support it.”                            Id.

(internal quotation marks and citation omitted).                        Substantial

evidence is “evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.”                    Smith, 451 F.3d

at   216    (internal     quotation       marks     and     citation      omitted).

“Reversal for insufficient evidence is reserved for the rare



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case where the prosecution’s failure is clear.”                             Beidler, 110

F.3d at 1067 (internal quotation marks and citation omitted).

             In order to obtain a conviction under § 2339B(a), the

Government was required to prove that Naidu knowingly conspired

to provide material support to a foreign terrorist organization,

with knowledge that the organization is a designated terrorist

organization,       engaged    in    terrorist      activity,          or    engaged   in

terrorism.         18   U.S.C.      § 2339B(a).         “Once      a    conspiracy     is

established, . . . it is presumed to continue unless or until

the defendant shows that it was terminated or he withdrew from

it.”    United States v. Green, 599 F.3d 360, 369 (4th Cir. 2010).

We have thoroughly reviewed the record and conclude that the

Government provided overwhelming evidence of Naidu’s guilt of

the    offense     of    conviction     and     that    the       evidence      did    not

demonstrate Naidu’s affirmative withdrawal from the conspiracy.

See    id.   at     369-70    (internal        conflict      between        conspirators

resulting     in    defendant’s       hiatus     from       conspiracy        failed    to

demonstrate affirmative withdrawal).

             We therefore affirm Naidu’s conviction and sentence.

However, the judgment of the district court contains an internal

inconsistency that must be corrected.                   While correctly listing

the    offense     of   conviction    as   “Count      2”    in   one       section,   the

judgment later incorrectly refers to the offense of conviction

as “Count 1,” and refers to the statute charged in Count 1 of

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the    indictment,    a   count   on    which   Naidu    was     not    tried.    We

therefore remand to the district court to correct this clerical

error in accordance with Fed. R. Crim. P. 36.

            We have examined the entire record in accordance with

the requirements of Anders and have found no other meritorious

issues for appeal.         Accordingly, we affirm the conviction and

sentence, and remand to the district court to correct the error

in the judgment.       We also deny Naidu’s motion for appointment of

substitute counsel.         This court requires that counsel inform

Naidu, in writing, of the right to petition the Supreme Court of

the United States for further review.                 If Naidu requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                  Counsel’s motion must

state that a copy thereof was served on Naidu.                   We dispense with

oral    argument     because     the    facts   and    legal     contentions     are

adequately    presented     in    the    materials      before    the    court   and

argument would not aid the decisional process.



                                                         AFFIRMED AND REMANDED




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