           Case: 12-13630   Date Filed: 07/10/2014   Page: 1 of 8


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________


                       Nos. 12-13630 ; 13-10751
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:11-cr-00069-MTT-CHW-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus



JOHN F. WILLIAMS,

                                                         Defendant-Appellant.

                      ________________________

               Appeals from the United States District Court
                   for the Middle District of Georgia
                      ________________________

                              (July 10, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      John Williams appeals his convictions for one count of extortion under color

of official right, in violation of 18 U.S.C. § 1951(a), one count of false statement to

a federal agency, in violation of 18 U.S.C. § 1001, and one count of tampering

with a witness, in violation of 18 U.S.C. § 1512(b)(3). On appeal, he first argues

that the district court erred in refusing to give an entrapment defense instruction.

Second, he argues that the district court erred in refusing to compel the government

to disclose certain confidential information about a confidential informant, Naim

Jaber. Third, he argues that there was insufficient evidence to support his

conviction of making a false statement to a federal agency because his statements

were not material. Finally, he argues that there was insufficient evidence to

support his conviction for witness tampering.

A. Entrapment Defense

       We review a district court’s refusal to give a particular jury instruction for

abuse of discretion. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).

“The failure of the district court to give a particular jury instruction is reversible

error where the requested instruction (1) was correct, (2) was not substantially

covered by the charge actually given, 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. Id. at 947-48.




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      The elements of an entrapment claim are: (1) government inducement of the

crime and (2) the defendant’s lack of predisposition to commit the crime before the

inducement. United States v. Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002). The

right to present the defense is conditional. Id. at 1343. We review the

determination of whether a sufficient evidentiary foundation exists in the record

that could support a jury’s acceptance of an entrapment defense for abuse of

discretion. Id. The defendant bears the initial burden of production with respect to

government inducement, which he meets by “producing any evidence sufficient to

raise a jury issue that the government’s conduct created a substantial risk that the

offense would be committed by a person other than one ready to commit it.” Id. at

1343-44. Although the defendant’s burden is light, he must show that the

government did more than offer him an opportunity or initiate contact with him.

Id. at 1344. Government inducement requires an element of “persuasion or mild

coercion.” Id. If the defendant meets his initial burden, then the question of

entrapment becomes a factual one for the jury, and the defendant is entitled to have

his defensive theory put before the jury with appropriate instructions from the trial

judge. Id.

      Williams fails to present evidence that the government induced him, through

persuasion or coercion, to commit the offenses of extortion under the color of

official right, false statement to a federal agency, and witness tampering.


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Moreover, the record indicates that Williams was predisposed to commit the

crimes. Therefore, he did not meet his burden of production, and the district court

did not err in refusing to give an entrapment defense instruction. Accordingly, we

affirm with respect to this issue.

B. Refusal to Compel Disclosure of Certain Information Regarding Naim
   Jaber

      An alleged Brady1 violation is reviewed de novo. United States v. Schlei,

122 F.3d 944, 989 (11th Cir. 1997). The government must produce all evidence,

upon request, that is favorable to the accused. Brady v. Maryland, 373 U.S. 83, 87,

83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). The defendant must demonstrate

that the item in question is material to the preparation of his defense. United States

v. Jordan, 316 F.3d 1215, 1250 (11th Cir. 2003). Thus, the Supreme Court has

indicated that “[t]he mere possibility that an item of undisclosed information might

have helped the defense, or might have affected the outcome of the trial, does not

establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427

U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). Evidence is material

if there is a reasonable probability that a different result would have occurred had

the evidence been disclosed. Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555,

1565, 131 L.Ed.2d 490 (1995). The government must disclose impeachment

evidence that might be helpful in conducting cross-examination because “[t]he

1
      Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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jury’s estimate of the truthfulness and reliability of a given witness may well be

determinative of guilt or innocence, and it is upon such subtle factors as possible

interest of the witness in testifying falsely that a defendant’s life or liberty may

depend.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d

1217 (1959).

       The district court did not err in refusing to compel discovery of certain

information about the FBI’s confidential informant, Jaber. The district court made

an in-camera review of the sealed material concerning the confidential informant’s

history of service to the FBI. “Requiring materials sought for discovery to be

submitted to the court for an [i]n-camera inspection is a practice that is both

reasonable and protective of the defendant’s rights.” United States v. Buckley, 586

F.2d 498, 506 (5th Cir. 1978). 2 In situations where the request involves materials

the disclosure of which is arguably not in the public interest, this Court has

sanctioned the use of in camera inspections to resolve the conflicting demands of

the defendant and the government. Id. at 506.

       It is important to note that the district court ordered the disclosure of a

significant amount of relevant information about Jaber, including: (1) Jaber's status

as a confidential informant; (2) Jaber’s ongoing relationship with the FBI; (3) the


2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this Court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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fact that Jaber applied each year for “significant public benefit parole” to remain in

the country because of his work as a confidential source; and (4) the government’s

payment of a fee to obtain this status for Jaber. Furthermore, the district court

compelled the government to produce the most recent documents submitted to

immigration on behalf of Jaber. Williams could use all of this information to call

into question Jaber’s credibility. 3 It is clear from the record that further details of

Jaber’s previous work as a confidential informant would not constitute material

evidence favorable to him. Furthermore, although Williams argues that

information regarding Jaber’s employment authorization was not disclosed, an FBI

agent testified that Jaber’s “significant public benefit parole” could include an

employment authorization card. Based on these considerations, the district court

did not err in its discovery rulings. Accordingly, we affirm with respect to this

issue.

C. Sufficiency of the Evidence for Offense of Making a False Statement to a
   Federal Agency

         We review the sufficiency of the evidence de novo. United States v.

Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). In determining whether there is

sufficient evidence to support a conviction, we view the evidence in the light most

favorable to the government and makes all reasonable inferences and credibility


3
     Williams’s motion to unseal the ex parte chambers conference in the district court is
DENIED.
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choices in favor of the government. United States v. Gamory, 635 F.3d 480, 497

(11th Cir. 2011). We then “determine whether a reasonable jury could have found

the defendant guilty beyond a reasonable doubt.” Id.

      To sustain a conviction against a defendant for a violation of 18 U.S.C.

§ 1001, the government must prove: “(1) that the defendant made a false statement;

(2) that the statement was material; (3) that the defendant acted with specific intent

to mislead; and (4) that the matter was within the purview of a federal government

agency.” United States v. McCarrick, 294 F.3d 1286, 1290 (11th Cir. 2002). A

false statement is material if it has “a natural tendency to influence, or be capable

of influencing, the decision of the decisionmaking body to which it was addressed.

United States v. House, 684 F.3d 1173, 1203 (11th Cir.), cert denied 133 S.Ct.

1633 (2013). Actual influence is not required. Id.

      The evidence demonstrates that the FBI was investigating a transaction.

Williams made statements to the FBI that Jaber was not involved in the transaction

at issue, and that Williams did not receive compensation for the transaction, and

these statements proved to be untrue. Based on this evidence, Williams’s

statement were material in that they were capable of influencing the FBI as it

conducted its investigation. Therefore, there was sufficient evidence to support

Williams’s conviction. Accordingly, we affirm with respect to this issue.

D. Witness Tampering


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      In relevant part, 18 U.S.C. §1512(b)(3) makes it a crime to “knowingly use[]

intimidation, threaten[], or corruptly persuade[] another person, or attempt[] to do

so, or engage[] in misleading conduct toward another person, with intent

to…hinder, delay or prevent the communication” of information to a federal

official. 18 U.S.C. §1512(b)(3); United States v. Ronda, 455 F.3d 1273, 1284

(11th Cir. 2006).

      The evidence showed that Williams was called into the FBI in the course of

their investigation and questioned about a transaction involving a truck. Shortly

after being questioned, Williams tried to persuade Jaber not to discuss his

involvement in the transaction with the FBI. Furthermore, he tried to mislead

Jaber into believing that they did not do anything wrong. In light of Williams’s

acknowledgement that receiving compensation for the transaction would get him in

trouble and his lies to the FBI, a reasonable jury could conclude that Williams was

trying to persuade Jaber with the intent to hinder the investigation, and that he was

guilty of witness tampering. Accordingly, we affirm with respect to this issue.

AFFIRMED.




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