                                  UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-4718


UNITED STATES OF AMERICA,

                   Plaintiff – Appellee,

             v.

RUSLANS BONDARS, a/k/a Ruslan Bondar,

                   Defendant – Appellant.


Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:16-cr-00228-LO-1)


Argued: September 20, 2019                                 Decided: January 10, 2020


Before MOTZ, KING, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Motz and
Judge King joined.


ARGUED: Jessica Nicole Carmichael, AYOTTE CARMICHAEL ELLIS & BROCK
PLLC, Alexandria, Virginia, for Appellant. Kellen Sean Dwyer, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. ON BRIEF: Ryan
K. Dickey, Computer Crime and Intellectual Property Section, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States
Attorney, Laura Fong, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
DIAZ, Circuit Judge:

      A jury convicted Ruslans Bondars of conspiracy under 18 U.S.C. § 371, conspiracy

to commit wire fraud under 18 U.S.C. § 1349, and aiding and abetting computer intrusions

under 18 U.S.C. §§ 1030(a)(5)(A) and 2. Bondars appeals, arguing that the district court

erred in refusing to provide his requested jury instructions and limiting his cross-

examination of an FBI agent. Additionally, Bondars argues that insufficient evidence

supports his convictions for conspiracy and aiding and abetting.

      We conclude that the district court committed no reversible error and that sufficient

evidence supports the jury’s verdict. Accordingly, we affirm.



                                            I.

      On appeal from a criminal conviction, we view the facts in the light most favorable

to the government. United States v. Washington, 743 F.3d 938, 940 (4th Cir. 2014).

                                           A.

      Bondars was convicted for his role in creating and operating an online service used

to develop malware. The service, called “Scan4You,” allowed users to scan a file or web

address to determine whether it was detectable by antivirus programs. The key feature of

Scan4You was anonymity: unlike other scanning services, Scan4You didn’t report results

to antivirus companies. This enabled hackers to use the tool anonymously to develop

undetectable malware.

      Scan4You earned a reputation as a premier counter-antivirus service. The service

operated on the Dark Web, advertised on hacking forums, and advertised other malware

                                            3
products on its website. The website’s banner read: “Scan4You.net – Online Anonymous

Virus and Malware Scan.” J.A. 1184.

       Bondars created and oversaw Scan4You along with his childhood friend, Jurijs

Martisevs.   According to online messages between the pair, Bondars and Martisevs

collaborated on a number of hacking schemes, and used Scan4You to develop their own

malware. At times, they discussed the criminal nature of their activities and the need to

conceal their operations. In 2013, for instance, Martisevs told Bondars that Scan4You was

being investigated by United States authorities, and Bondars replied that the pair needed to

be discreet. Later on, Martisevs sent Bondars an article about a Scan4You partner’s arrest

in the United Kingdom and the pair discussed the potential need to scale back operations

and “clean[] up the news.” J.A. 591–95. Martisevs also sent Bondars an article titled

“Criminal Services – Counter Antivirus Services” that named Scan4You as “[p]erhaps the

best known” counter-antivirus service, and told him that “[t]hey exposed us big time right

here” and “[t]his is all about us.” J.A. 593–94. Again, the pair discussed the potential need

to scale back operations and clean up the news. Nonetheless, they continued to operate

Scan4You as usual.

                                             B.

       By superseding indictment, Bondars was charged with conspiracy to commit and to

aid and abet computer intrusions, and conspiracy to commit and to aid and abet wire fraud.

The government named both Martisevs and Scan4You users as coconspirators.

Additionally, Bondars was charged with the conspiracy’s underlying offenses: the



                                             4
commission and aiding and abetting of computer intrusions and wire fraud. Bondars

proceeded to trial.

       At trial, an FBI case agent testified for the government. On direct examination, the

agent testified that he discovered Bondars’s connection to Scan4You (which was concealed

from the Scan4You website) “[b]y receiving court orders” and “results from contents of e-

mail accounts.” J.A. 496. On cross-examination, Bondars sought to show that, in fact, the

agent relied on information provided to the FBI by an antivirus company called Trend

Micro. 1 Bondars argued that the agent’s initial testimony was inaccurate and sought to

impeach the agent by proving he relied on Trend Micro’s information.             Over the

government’s objection, the court allowed Bondars to pursue this line of questioning for

the limited purpose of impeachment. However, the court prohibited Bondars from asking

questions implying that the agent’s reliance on the information was unlawful.

       As further evidence of the conspiracy, the government introduced instant messages

that showed Bondars and Martisevs discussing various hacking schemes. Many of these

messages predated the beginning of the charged conspiracy. Bondars moved to exclude

the messages, claiming that they were irrelevant and constituted impermissible propensity

evidence in violation of Federal Rule of Evidence 404(b). The court, however, found that

the messages were highly relevant to Bondars’s motive, intent, and knowledge. It therefore

admitted the messages but provided a corresponding limiting instruction.



       1
        In response to counsel’s questions, the agent conceded that he “may have” relied
on information provided by Trend Micro. J.A. 695.

                                            5
       At the charge conference, Bondars requested a “buyer-seller” instruction, which

would inform the jury that a mere buy-sell relationship is insufficient to support a

conspiracy conviction. The court denied the request, finding it inapplicable to the facts of

the case. The court reasoned that buyer-seller instructions are an extension of Wharton’s

Rule, which presumes that criminal agreements between two people to commit a crime that

requires two people for its commission are not conspiracies. Additionally, the court noted

that the conspiracy was based not only on Bondars’s relationship with Scan4You users, but

also on Bondars’s relationship with Martisevs, to which the buyer-seller instruction was

irrelevant.

       Bondars also objected to the government’s proposed instructions on the conspiracy

offenses, contending that they didn’t include the necessary elements of aiding and abetting.

A conspiracy to aid and abet is distinct from other conspiracies, Bondars argued, because

it requires the government to prove knowledge of the underlying crime and intent to further

it. The court ruled that the government’s proffered instruction adequately conveyed those

elements.

       Bondars raised a similar objection to the verdict form, requesting that the court

instruct the jury that to convict on conspiracy to aid and abet, the government must show

Bondars joined the conspiracy “knowing that the [crime] was occurring or about to occur

and with the intent to further that [crime].” J.A. 1011. The government included Bondars’s

requested language, except that the form directed the jury to find that Bondars needed to

know that “a” crime—rather than “the” crime—was occurring or about to occur. The court

agreed that this formulation correctly stated the law.

                                             6
       During its deliberations, the jury asked the court whether it could consider pre-2009

evidence given that the charged conspiracy began “at least on or about 2009.” J.A. 1242.

Believing that this question referred to the Rule 404(b) evidence, Bondars requested that

the court direct the jury to the corresponding limiting instruction. The court instead told

the jury that it should consider all admitted evidence, and that it “must be guided by the

Jury Instructions” in that consideration. J.A. 1248.

       The jury returned a special verdict, finding Bondars guilty of conspiring to commit

and to aid and abet every object charged on the conspiracy counts. Additionally, the jury

found Bondars guilty of aiding and abetting computer intrusions, but not guilty of aiding

and abetting wire fraud. Bondars was sentenced to 168 months in prison.

       This appeal followed.



                                            II.

       The issues before us are whether: (1) the district court erred by refusing to provide

Bondars’s requested jury instructions, (2) the district court erred by limiting Bondars’s

cross-examination of an FBI agent, and (3) sufficient evidence supports Bondars’s

convictions for conspiracy and aiding and abetting. We consider each issue in turn.



                                            III.

       Bondars contends that the district court erred in its jury instructions. This Court

reviews “the decision to give (or not to give) a jury instruction and the content of an

instruction” for abuse of discretion. United States v. Savage, 885 F.3d 212, 222 (4th Cir.

                                             7
2018) (quoting United States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992)). A district

court’s refusal to give a requested instruction is reversible error “only if the instruction: (1)

was correct; (2) was not substantially covered by the court’s charge to the jury; and (3)

dealt with some point in the trial so important, that failure to give the requested instruction

seriously impaired the defendant’s ability to conduct his defense.” United States v. Lewis,

53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks and citation omitted).

Additionally, the defendant must “show that the record as a whole demonstrates prejudice.”

United States v. Bartko, 728 F.3d 327, 343 (4th Cir. 2013).

                                            A.

       Bondars first argues that the district court erred by refusing to instruct the jury that

“[t]he existence of a simple buyer-seller relationship between a defendant and another

person, without more, is not sufficient to establish a conspiracy, even where the buyer

intends to resell the product.” J.A. 900. Without this instruction, Bondars contends, the

jury was allowed to convict Bondars based on mere buyer-seller relationships with

Scan4You consumers. The government responds that the instruction was categorically

inapplicable and that, in any event, the jury was instructed that it couldn’t convict based on

an innocent buyer-seller relationship.

       We conclude that the district court’s refusal to give the requested instruction was

not an abuse of discretion because it did not “seriously impair[] the defendant’s ability to

conduct his defense.” Lewis, 53 F.3d at 32 (internal quotation marks and citation omitted).




                                                 8
And, in our view, the court’s instructions also conveyed to the jury that a mere buyer-seller

relationship was insufficient to convict Bondars of conspiracy. 2

       Our decision in Lewis is instructive. There, we held that the district court’s failure

to provide a “government-agent” instruction (providing that one cannot be convicted of

conspiring with a government agent) was reversible error because a “strong possibility”

existed that the defendant was convicted for conspiring with government agents: the “bulk

of the evidence” consisted of the defendant’s interactions with the government agent, and

only “conflicting” evidence supported the defendant’s conspiracy with another individual.

Id. at 35. Thus, we were left with “no doubt” that the court’s failure to provide the

government-agent instruction seriously impaired the defense. Id.

       By contrast, there is little, if any, possibility that Bondars was convicted based on a

mere buyer-seller relationship with Scan4You consumers.                Substantial evidence

controverted Bondars’s narrative that his relationships to Scan4You customers were

merely innocent buy-sell agreements. The government’s evidence showed that Bondars

and Martisevs operated the tool for the purpose of developing malware, intentionally

marketed the tool to hackers, entered into customer agreements with prolific hackers, and


       2
         Before the district court, the parties spent much time addressing whether the buyer-
seller instruction derives from Wharton’s Rule, the presumption that an agreement between
two people to commit a crime that requires two people for its commission cannot be
prosecuted as a conspiracy. See Iannelli v. United States, 420 U.S. 770, 785–86 (1975).
The government argued (and the district court agreed) that because Wharton’s Rule is
inapplicable to Bondars’s case, its derivative buyer-seller instruction is also inapplicable.
Bondars responded that the buyer-seller instruction describes a complete defense to
conspiracy that is independent of Wharton’s Rule. Given our conclusion that the
instructions sufficiently conveyed the essence of Bondars’s defense, we decline to reach
this issue.
                                              9
took various measures to conceal their activity from authorities because they believed they

were doing something illegal. Moreover, Bondars’s conspiracy conviction also rested on

his dealings with Martisevs. Extensive evidence—including detailed testimony from

Martisevs and chat messages between the pair—supported a conspiracy conviction based

on that relationship. And finally, the instructions given sufficiently conveyed to the jury

that to convict Bondars for conspiracy the government must show that Bondars “knew the

purpose of the agreement,” had “knowledge of the purposes of the conspiracy,” and

“deliberately joined the conspiracy.” J.A. 1038, 1042–43. Thus, the jury was adequately

informed that mere buy-sell transactions do not constitute conspiracy.

                                            B.

       Next, we address Bondars’s argument that the conspiracy instructions failed to

adequately incorporate the elements of aiding and abetting. As we explain, we disagree

and find that the substance of Bondars’s proposed instruction was substantially conveyed

by other instructions given to the jury. In any event, any error was harmless. See United

States v. Ramos-Cruz, 667 F.3d 487, 496 (4th Cir. 2012) (noting that an erroneous jury

instruction is harmless when it is clear that a reasonable jury would have found the

defendant guilty absent the error).

                                             1.

       First, Bondars argues that his proposed instructions were necessary to reflect the

criminal intent required for aiding and abetting a conspiracy. But the instructions provided

sufficiently covered this point. Relevant here, Bondars’s proposed instruction would have

required the jury to find that he: (1) knew the crime charged was to be committed or was

                                            10
being committed; (2) knowingly joined the conspiracy for the purpose of aiding,

commanding, or encouraging the crime; and (3) acted with the intention of causing the

crime charged to be committed. The jury was instead instructed that “[t]o find the

defendant guilty of conspiracy to aid and abet an offense, you must find that the defendant

knew that another was committing or was about to commit the substantive offense and

intended by his agreement to aid the offense and cause it to occur.” J.A. 1043 (emphases

added). Thus, the intent element was “substantially covered” by the instructions given.

See Lewis, 53 F.3d at 32.

                                              2.

       Next, Bondars objects to the language of the verdict form, which instructed the jury

that conspiracy to aid and abet required that Bondars knew “a” computer intrusion or wire

fraud was occurring or about to occur. Bondars argues that the use of the indefinite article

“a,” rather than the definite article “the,” improperly permitted the jury to convict based on

any potential offense committed by any unknown Scan4You user. According to Bondars,

this error impermissibly expanded the elements of aiding and abetting.

       But Bondars’s argument overlooks the remainder of the verdict form, which

required not only that Bondars knew “a” computer intrusion or wire fraud was occurring

or about to occur, but also that he intended “to further that computer intrusion” or “that

wire fraud.” J.A. 1155–57 (emphases added). Such an instruction did not, as Bondars

argues, permit the jury to convict based on merely a possible criminal occurrence. Instead,

the government was required to prove that Bondars knew of a relevant crime and intended

to further the occurrence of that specific crime. Moreover, Bondars’s requested language

                                             11
may have erroneously suggested to the jury that the conspiracy required Bondars to know

the identity of each coconspirator. That is not the law. See United States v. Banks, 10 F.3d

1044, 1054 (4th Cir. 1993).

                                               3.

       Bondars next argues that the jury instructions and verdict form warrant reversal in

light of United States v. Superior Growers Supply, Inc., 982 F.2d 173 (6th Cir. 1992).

There, the government alleged that the owner of a garden supply store (and his employee)

conspired to aid and abet the manufacture of marijuana. Id. at 174–75. The indictment

alleged various legal acts associated with manufacturing marijuana, but neither (i) that the

underlying crime occurred nor (ii) that the defendants’ otherwise legal conduct advanced

an underlying crime. Id. at 175–77. As a result, the court held that the indictment failed

to allege essential elements of conspiracy to aid and abet: “knowledge of the underlying

crime and intent to further it.” Id. at 179–80.

       The government says, and we agree, that the necessary guidance as to knowledge

and intent that was missing in Superior Growers was conveyed to the jury here.

Immediately after providing the conspiracy instruction, the district court informed the jury

that “[t]o find the defendant guilty of conspiracy to aid and abet an offense, you must find

beyond a reasonable doubt that the defendant knew that another was committing or was

about to commit the substantive offense and intended by his agreement to aid the offense

and cause it to occur.” J.A. 1043 (emphases added). This language closely tracks that

called for by the court in Superior Growers.



                                             12
                                              4.

       Finally, we are satisfied that any error in the court’s description of conspiracy to aid

and abet—whether in the jury instructions or the verdict form—was harmless. 3 Aiding and

abetting the underlying offense was one among several objects found by the jury in support

of its verdict on the conspiracy counts. In fact, the government charged Bondars with

conspiring to commit six objects in count one and two objects in count two. The jury

returned a guilty verdict on every object charged. So, even if the court erred in the manner

alleged by Bondars, there would nonetheless be a “valid and independent legal basis” to

affirm. See United States v. Cone, 714 F.3d 197, 211 (4th Cir. 2013) (quoting United States

v. Lawson, 677 F.3d 629, 655 (4th Cir. 2012)).

                                              C.

       We turn now to the question of whether the district court erred in responding to the

jury’s question regarding the pre-2009 evidence. At trial, the government introduced

conversations between Bondars and Martisevs that occurred before the charged conspiracy,

which began in 2009. Bondars objected, arguing that the evidence was inadmissible under

Rule 404(b). The district court admitted the evidence to prove intent and provided a

corresponding limiting instruction.




       3
         Bondars also argues—relying again on Superior Growers—that conspiracy to aid
and abet requires the government to prove the commission of the underlying offense. See
982 F.2d at 178 (“Without the underlying crime, there can be no knowledge or intent to
further it.”). The government disputes this. Because any such error would have been
harmless, we decline to reach this argument.
                                              13
       During its deliberations, the jury asked the district court whether it was “allowed to

consider evidence” predating 2009. J.A. 1242. Bondars requested that the court direct the

jury to the limiting instruction regarding Rule 404(b) evidence. The district court declined

to specifically mention that instruction, answering instead that the jury was “allowed to

consider all evidence admitted” and “must be guided by the Jury Instructions” in that

consideration. J.A. 1248.

       In support of his claim, Bondars relies on United States v. Cox, where we upheld

the admission of Rule 404(b) evidence “in view of the limiting instruction provided by the

district court.” 591 F. App’x 181, 185 (4th Cir. 2014). There, we noted that the limited

purpose of Rule 404(b) evidence was “properly explained” to the jury, and in “very clear

terms.” Id. But here, too, the district court provided a clear instruction regarding the

limited use of the Rule 404(b) evidence. Bondars doesn’t argue that the instruction was

improper, but only that the court should have referenced it in its supplemental instruction.

       We rejected a similar argument in United States v. Camara, 908 F.3d 41 (4th Cir.

2018). There, the defendant appealed his conspiracy conviction based, in part, on a

supplemental instruction informing the jury that it could convict the defendant for

conspiring with individuals “known or unknown.” Id. at 45. The defendant argued that

this instruction created the possibility that the jury convicted him for a conspiracy outside

of the trial court’s district, rendering venue improper. Id. at 48. According to the

defendant, this possibility existed despite a separate instruction regarding the jury’s burden

to find venue. See id. at 48–49. We disagreed because the court had already properly

instructed the jury on the matter, the defendant didn’t argue those instructions were

                                             14
erroneous, and “[i]t is the almost invariable assumption of the law that jurors follow their

instructions.” Id. at 49 (quoting United States v. Olano, 507 U.S. 725, 740 (1993)). So too

here.



                                            IV.

        We next consider Bondars’s argument that the district court erred by limiting his

cross-examination of a witness. We review a district court’s limitation on the scope of

cross-examination for abuse of discretion. United States v. Zayyad, 741 F.3d 452, 458 (4th

Cir. 2014). The district court enjoys “wide latitude” to impose reasonable limits on cross-

examination “based on concerns including harassment, prejudice, confusion of the issues,

repetition, or marginal relevance.” Id. at 459 (quoting United States v. Turner, 198 F.3d

425, 429 (4th Cir. 1999)).

        Bondars argues that the district court prevented him from advancing his theory of

the defense by restricting his cross-examination of the lead FBI case agent. During the

investigation, the agent received information about Scan4You from an antivirus company

called Trend Micro.     According to Bondars, Trend Micro had improperly accessed

Scan4You’s administrative page and provided the information found there to the FBI.

Bondars claims that the agent concealed this fact by testifying that he had discovered

Bondars’s identity via subpoenas. Bondars reasons that his prohibited cross-examination

was necessary to (1) impeach the FBI case agent and (2) illustrate a legitimate need for

anonymous services like Scan4You.



                                            15
       The district court, however, permitted lengthy cross-examination of the FBI case

agent on this issue. In fact, the court allowed this line of questioning over the government’s

objection, stating that whether the agent “misrepresented how he arrived at the

information” was relevant to impeachment. J.A. 681. The court only limited counsel from

implying that the agent had somehow broken the law by receiving information from Trend

Micro. 4 We are satisfied that Bondars was permitted to develop his defense theory through

cross-examination.



                                             V.

       Finally, we consider Bondars’s argument that the evidence was insufficient to

convict him of the conspiracy and aiding and abetting counts. “A defendant challenging

the sufficiency of the evidence to support his conviction bears a heavy burden.” United

States v. Lefsih, 867 F.3d 459, 465 (4th Cir. 2017) (quoting United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997)). In reviewing the sufficiency of the evidence, the jury

verdict must be sustained “if, viewing the evidence in the light most favorable to the

prosecution, the verdict is supported by substantial evidence.” United States v. Burfoot,

899 F.3d 326, 334 (4th Cir. 2018). “Substantial evidence is that which a reasonable finder

of fact could accept as adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted).




       4
         The district court found that there was no allegation, nor could there have been,
that the government’s reliance on information provided by Trend Micro was illegal.
                                             16
                                               A.

       First, Bondars argues that insufficient evidence supports his convictions for

conspiracy to commit wire fraud under 18 U.S.C. § 1349 and computer intrusions under

18 U.S.C. § 371. Both conspiracy counts required the jury to find that Bondars knowingly

participated in an agreement with intent to pursue a criminal objective. See Burfoot, 899

F.3d at 335 (“Conspiracy to commit wire fraud under 18 U.S.C. § 1349 requires a jury to

find that . . . the defendant willfully joined the conspiracy with the intent to further its

unlawful purpose.”); United States v. Moussaoui, 591 F.3d 263, 296 (4th Cir. 2010) (“[t]he

elements of a conspiracy charge” include the defendant’s “knowing and willing

participation” in a criminal agreement). The “gravamen of the crime of conspiracy is an

agreement to effectuate a criminal act.” United States v. Laughman, 618 F.2d 1067, 1074

(4th Cir. 1980). At the same time, “one may be a member of a conspiracy without knowing

its full scope, or all its members, and without taking part in the full range of its activities.”

Banks, 10 F.3d at 1054.

       Bondars claims there is insufficient evidence that he entered into an agreement with

the intent to further a criminal objective. In making this argument, Bondars continues to

advance the theory that he built and operated Scan4You solely for legitimate purposes.

Additionally, Bondars maintains that he couldn’t have formed an agreement with

Scan4You users because he didn’t communicate directly with them.

       We disagree.      For starters, the jury clearly found that Bondars and his co-

conspirators knowingly formed a criminal agreement. The jury was instructed that both

conspiracy counts required it to find that Bondars entered into “conscious understanding

                                               17
and deliberate agreement,” “knowingly and deliberately entered into” a criminal

agreement, “knew the purpose or goal of the agreement or understanding and then

deliberately entered into the agreement,” and that he “intend[ed] in some way to

accomplish the goal or purpose” of that agreement.          J.A. 1044–45.    The jury then

determined that the government had met its burden on each charged object of the

conspiracy.

       Ample evidence supports the conclusion that Bondars conspired with both

Martisevs and Scan4You users to advance criminal hacking schemes. Bondars clearly

formed an agreement with Martisevs to operate Scan4You for criminal purposes.

Martisevs testified at trial that he and Bondars used the tool to advance their own personal

malware and were aware they were engaging in criminal activity. This testimony was

corroborated by online messages between the pair.

       And Bondars and Martisevs advertised Scan4You on hacker forums, advertised

malware on the Scan4You website, entered into client agreements with prolific hackers,

and expressed fear of criminal prosecution and the need to be discreet. Bondars says that

he never communicated with Scan4You clients directly, so he couldn’t have formed a

criminal agreement with them. But it is well-settled that a conspiracy may be proven by

circumstantial evidence. See United States v. Yearwood, 518 F.3d 220, 226 (4th Cir. 2008)

(“Because a conspiracy is by nature ‘clandestine and covert,’ there rarely is direct evidence

of such an agreement.” (quoting United States v. Burgos, 94 F.3d 849, 857 (4th Cir.

1996))). And it’s equally well-settled that one may be convicted of conspiracy without

knowing each of the conspiracy’s members. Banks, 10 F.3d at 1054.

                                             18
       In sum, sufficient evidence supports Bondars’s convictions on the conspiracy

counts.

                                             B.

       Next, Bondars argues that insufficient evidence supports his conviction for aiding

and abetting computer intrusions. Aiding and abetting liability for a criminal offense

attaches when an individual “(1) takes an affirmative act in furtherance of [an] offense, (2)

with the intent of facilitating the offense’s commission.” Rosemond v. United States, 572

U.S. 65, 71 (2014). The second prong—the intent element—is satisfied when “a person

who actively participates in a criminal scheme knowing its extent and character intends

that scheme’s commission.” Id. at 77.

       The first prong of aiding and abetting liability—an affirmative act—is evident on

this record: Bondars created and sold a tool to individuals who used it to develop malware.

As for the second prong, Bondars maintains that he built Scan4You to provide a legitimate

service and was unaware of any individual user’s criminal plans. Thus, Bondars concludes,

he didn’t have the requisite intent to aid and abet the computer intrusions committed by

Scan4You users. We do not agree.

       The facts before us are similar to those considered by the Second Circuit in United

States v. Zambrano, 776 F.2d 1091 (2d Cir. 1985). There, the defendant was convicted of

aiding and abetting a credit card scheme based on his sale of plain plastic cards. Id. at

1092. The cards were sold to middlemen, turned into illegal counterfeit credit cards, and

then resold to individuals who used them to make fraudulent purchases. Id. at 1092–93.

The defendant contended that he lacked the requisite intent to aid and abet because the

                                             19
cards he sold were not illegal, he was far removed from the cards’ use, and he neither

embossed nor fraudulently used the cards himself. Id. at 1096.

       The Second Circuit sustained the conviction, finding that the defendant knew that

the cards were being used unlawfully but nonetheless continued to supply them. Id. at

1097. As the court said, “[i]f the cards were not to be used or sold unlawfully, no cards

would have been purchased,” thus, “one can infer that [the defendant] intended his cards

to be put to this specific use.” Id.

       Similarly, here, substantial evidence supports the same inference. Scan4You was

billed as a “malware scan,” advertised other malware products on its site, and was

advertised on hacker forums. J.A. 1184. Bondars and Martisevs operated discreetly,

employing various aliases and concealing their identities because they believed they were

“doing something illegal.” J.A. 845. And Bondars discussed with Martisevs the reputation

of Scan4You as a criminal counter-antivirus tool, the arrest of a Scan4You partner, and his

own potential criminal liability. Moreover, Bondars was crucial to the tool’s operation: he

oversaw Scan4You’s technical aspects and received half of the proceeds it generated.

       In short, the evidence established that Bondars “played an integral role in the

success of the criminal venture.” See Zambrano, 776 F.2d at 1098. Accordingly, we

sustain Bondars’s conviction for aiding and abetting computer intrusions.



                                           VI.

       For the foregoing reasons, we affirm the district court’s judgment.

                                                                              AFFIRMED

                                            20
