                            UNPUBLISHED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:   February 14, 2012


Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 and he now appeals.               Appellate counsel has 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 has also filed a pro se supplemental

brief raising additional issues. *             Finding no error, we affirm.

            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 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


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



                                          2
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

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

                                            3
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

Rule 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.”                         United States v. Smith, 451

F.3d    209,    216    (4th      Cir.    2006)       (internal     quotation       marks    and

citation       omitted).         “Reversal         for     insufficient         evidence    is

reserved for the rare case where the prosecution’s failure is

clear.”     Beidler, 110 F.3d at 1067 (internal quotation marks and

citation omitted).



                                                 4
            In order to obtain a conviction under § 2339B(a), the

Government     had      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).               Proof      of     a       conspiracy

requires (1) an agreement between two or more persons to commit

a crime, and (2) an overt act in furtherance of the conspiracy.

See United States v. Ellis, 121 F.3d 908, 921 (4th Cir. 1997).

Moreover,    “[o]nce         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 have examined the entire record in accordance with

the requirements of Anders and have found no meritorious issues

for appeal.     Accordingly, we affirm the judgment of the district

court.      This     court        requires      that          counsel      inform         Naidu,    in

                                                5
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 in the decisional process.



                                                                            AFFIRMED




                                          6
