PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4173

MOHAMMAD SARIHIFARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-96-332)

Argued: April 9, 1998

Decided: August 19, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,
and CHAMBERS, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Chambers wrote the opinion,
in which Chief Judge Wilkinson and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Marvin David Miller, Alexandria, Virginia, for Appel-
lant. Gordon Dean Kromberg, Assistant United States Attorney, Alex-
andria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
OPINION

CHAMBERS, District Judge:

I.

FACTS

Mohammad Sarihifard ("Petitioner") was convicted after a jury
trial in the Eastern District of Virginia of perjury before a grand jury
in violation of 18 U.S.C. § 1623(a) and making false statements to a
government agency in violation of 18 U.S.C. § 1001. The trial judge
sentenced Petitioner to twenty-one months in prison pursuant to the
federal sentencing guidelines.

The charges against Petitioner initially stem from a conversation
with federal agents where Petitioner provided the agents with inaccu-
rate information. The federal agents were conducting an investigation
into alleged money laundering and drug trafficking at Eagle Motors.
Eagle Motors was a small used car dealership in Arlington, Virginia,
owned by Ali Galadari ("Galadari"). Galadari was a target of the gov-
ernment's investigation. From 1994 to 1995, Petitioner, a close friend
of Galadari, worked as a used car salesman for Eagle Motors. Peti-
tioner apparently was not the primary target of the government's
investigation. However, the agents were seeking information concern-
ing Petitioner's purchase and resale of a new 1995 Nissan Pathfinder.
According to the government, the 1995 Pathfinder was purchased in
Petitioner's name and sold two weeks later. The government agents
theorized that the Pathfinder represented the profits of a drug transac-
tion and that Petitioner was simply a "straw" owner of the vehicle. In
January 1996, Petitioner told the government agents that he purchased
the Pathfinder for his own use and that he sold it to another buyer
named Deborah Mills two weeks later for a profit of $1000.00. After
Petitioner relayed his version of events, the agents called Petitioner
a "liar." However, Petitioner adhered to his story. Petitioner told the
same story to a grand jury later that month. Prior to his testimony
before the grand jury, the United States Attorney apprized Petitioner
of his rights under the Fifth Amendment to the United States Consti-
tution. After Petitioner testified before the grand jury, the United
States Attorney informed the grand jury that Petitioner had not pro-

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vided truthful testimony. The United States Attorney instructed the
grand jury to disregard Petitioner's testimony for the purposes of
examining the possible illegal activity at Eagle Motors.

During the following months, the government intensified its inves-
tigation of Eagle Motors. In February 1996, Jockery Jones ("Jones"),
a suspect in the money laundering scheme, testified under a grant of
immunity that he was the actual purchaser of the Nissan Pathfinder.
Later that month, Galadari entered into a plea agreement with the
government where he agreed to cooperate with government agents. In
July 1996, Galadari testified before the grand jury. Galadari told the
grand jury that Petitioner was merely a straw owner of the vehicle. On
July 17, 1996, Mahmoud Moshrefi ("Moshrefi"), Petitioner's room-
mate and a salesperson at Eagle Motors, also entered into a plea
agreement with the government. Moshrefi testified before the grand
jury that the sale of the Pathfinder was consummated in furtherance
of a money laundering scheme and that Petitioner fulfilled a pivotal
role in the scheme by acting as the straw owner of the vehicle. After
Jones and the Eagle Motors' employees testified, the grand jury
indicted Petitioner. He was charged with perjury before a grand jury
and making false statements to government agents.

Petitioner's trial on the grand jury perjury and false statements
charges commenced in October 1996. At trial, Moshrefi and Jones
testified for the United States ("Respondent"). The two witnesses told
the jury that Jones was the actual purchaser of the Nissan Pathfinder.
They described a scheme where Eagle Motors' employees needed to
account for $31,500 in cash so they asked Petitioner if he would agree
to have his name listed as the purchaser of the Nissan. Petitioner
agreed and received $1000.00 in cash as payment for his minor role
in the scheme. In addition, Deborah Mills testified that Petitioner
never sold her a Nissan Pathfinder, that she never purchased a Nissan
Pathfinder and that she never even visited Eagle Motors. Moshrefi
and Galadari also testified that Petitioner never purchased, borrowed,
possessed or drove the Pathfinder that was actually sold to Jones. The
transcript of Petitioner's January 1996 testimony before the grand
jury was introduced into evidence. On October 29, 1996, Petitioner
was convicted of the charges as contained in the indictment.

On January 17, 1997, Petitioner asked the trial judge to unseal
information that had not been provided to the defense during the trial.

                    3
Petitioner asserted that the sealed information contained potentially
exculpatory information that Respondent failed to make available to
the defense in violation of the principles announced in Brady v.
Maryland, 373 U.S. 83 (1963). The trial judge agreed to conduct an
in camera inspection of the sealed information. After her inspection,
the trial judge granted Petitioner's motion in regard to some of the
sealed evidence and denied the motion as to the remainder of the pro-
tected material. The newly unsealed evidence revealed that, after Peti-
tioner testified before the grand jury, the United States Attorney told
the grand jury to disregard Petitioner's testimony because it was false.
Petitioner maintains that the revelation of the prosecutor's statements
to the grand jury raises questions regarding materiality and perjury
entrapment. Petitioner also asserts that he was prejudiced by not hav-
ing this information during the trial. The absence of the uncovered
information, Petitioner argues, prevented him from presenting a
defense of materiality or perjury entrapment to the jury.

II.

DISCUSSION

On appeal, Petitioner presents four issues. First, Petitioner argues
that his false statements before the grand jury were not material
because the grand jury was told to disregard them and, therefore, they
did not influence the substance of the grand jury's decision. Second,
Petitioner argues that the government knew that he was going to pro-
vide false testimony before the grand jury; yet, the government
"coaxed" him into testifying. Petitioner insists that such an act consti-
tutes perjury entrapment. Third, Petitioner asserts that the trial judge
erred when she instructed the jury that it had to agree unanimously
on only one instance of perjury and one instance of false statements
in order to find Petitioner guilty of the crimes charged in the indict-
ment. Finally, Petitioner accuses the government of failing to release
exculpatory evidence, which he claims he could have utilized at his
trial. In regard to the exculpatory evidence, Petitioner contends that
the remaining information should be unsealed because it involves the
criminal activity of two of the testifying witnesses. Petitioner argues
that there is no reason to keep this information under seal because the
government has concluded its investigation.

                     4
A. MATERIALITY

Perjury involves the false testimony under oath regarding a mate-
rial matter where the witness has a willful intent to deceive the fact
finder. See United States v. Stotts, 113 F.3d 493, 497 (4th Cir. 1997).
A defendant is not guilty of perjury if the false testimony resulted
from confusion or mistake. See United States v. Dunnigan, 507 U.S.
87, 94 (1993); United States v. Smith, 62 F.3d 641, 646 (4th Cir.
1995).

A defendant is guilty of grand jury perjury when the government
proves: (1) that the defendant gave false testimony to the grand jury
under oath; (2) that the testimony was false; (3) that the false testi-
mony was given knowingly; and (4) that the subject matter of the tes-
timony was material to the grand jury's investigation. United States
v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988) (en banc); see also
18 U.S.C. § 1623(a).

A person is guilty of making false statements to a government
agency when the government proves: (1) that the defendant made a
false statement to a governmental agency or concealed a fact from it
or used a false document knowing it to be false; (2) the defendant
acted knowingly or willfully; and (3) the false statement or concealed
fact or false document was material to a matter within the jurisdiction
of the agency. United States v. Arch Trading Co. , 987 F.2d 1087,
1095 (4th Cir. 1993). See also 18 U.S.C.§ 1001.

An essential element in both grand jury perjury and the crime of
making false statements is materiality. See United States v. Gaudin,
515 U.S. 506 (1995). "A statement is material if it has a natural ten-
dency to influence, or is capable of influencing, the decision-making
body to which it was addressed." United States v. Littleton, 76 F.3d
614, 618 (4th Cir. 1996). It is irrelevant whether the false statement
actually influenced or affected the decision-making process of the
agency or fact finding body. Arch Trading Co. , 987 F.2d at 1095;
Friedhaber, 856 F.2d at 642. As materiality is an essential element of
both perjury and making false statements, a defendant is entitled to
have a jury decide the question of whether a false statement was capa-
ble of influencing the decision-making body. Littleton, 76 F.3d at 617.
In fact, a defendant cannot be convicted of perjury or making a false

                    5
statement unless the government proves beyond a reasonable doubt
that the false statement was capable of influencing the decision-
making body to which it was addressed. Id. Again, the jury is the ulti-
mate arbiter of whether the government has met its burden of proof.
Id. Petitioner contends that his false statement to the grand jury was
not material because it did not actually influence the decision of the
grand jury. Petitioner notes that after he testified before the grand
jury, the government told the grand jury to disregard Petitioner's testi-
mony because it was false. Respondent concedes that Petitioner's tes-
timony did not influence the grand jury's decision. However,
Respondent argues that Petitioner's false testimony did impede the
grand jury's investigation. Petitioner replies that, at trial, the jury was
instructed as to whether the false testimony influenced the grand
jury's decision, not its investigation. This is an irrelevant and inaccu-
rate distinction.

It is well established law in this Circuit that a finding of materiality
is not dependant upon whether the fact finder was actually influenced
by a defendant's false statements. See Friedhaber, 856 F.2d at 642.
Rather, a false statement is material if it is capable of influencing the
fact finder's determinations. Id. A false statement's capacity to influ-
ence the fact finder must be measured at the point in time that the
statement was uttered. See United States v. Holly, 942 F.2d 916, 923
(5th Cir. 1991). In the instant case, Petitioner told the grand jury that
he purchased the Nissan Pathfinder and sold it to Deborah Mills for
a $1000.00 profit. The Petitioner did not reveal that he was a straw
owner and that he never actually purchased the automobile. If Peti-
tioner's false statements were believed by the grand jury, they might
have led the grand jury not to indict certain members of Eagle Motors
for money laundering. The fact that the government told the grand
jury not to rely on Petitioner's testimony after he testified is irrele-
vant. It matters only that at the time Petitioner testified, he provided
the grand jury with information that might have influenced their deci-
sion. As Petitioner's information was capable of influencing the out-
come of the grand jury's investigation at the time that he testified, the
materiality element of perjury is satisfied.

Petitioner argues that his statements were not material because the
United States Attorney recognized instantly that Petitioner's testi-
mony was false. Accordingly, Petitioner asserts that his statements

                     6
never had the capacity to influence the grand jury's decision. Petition-
er's assertion creates a perverse incentive.

Adopting Petitioner's rationale might allow witnesses who lie
under oath to escape prosecution if their statements before a grand
jury are obviously false. This rationale protects witnesses who fabri-
cate testimony that a grand jury will recognize instantly as false. An
argument for the creation of such an incentive not only misconstrues
the scope of materiality, it strains logic.

Materiality is not dependent upon the believability of a false state-
ment. Rather, a statement is material if it is capable of influencing a
function within the grand jury's jurisdiction. See Brown v. United
States, 245 F.2d 549, 554 (8th Cir. 1957). A grand jury's decision to
disregard a witness's testimony does not necessarily indicate that the
testimony did not have the capacity to influence the grand jury. On
the contrary, even if a grand jury disregards a witness's false testi-
mony, the false testimony may impede the grand jury's capacity to
attain an accurate and prompt resolution of the matter under consider-
ation. See United States v. Dickerson, 114 F.3d 464, 466-67 (4th Cir.
1997).

The instant case is a paradigmatic example of how a discarded
false statement still may alter the outcome of a grand jury proceeding.
When Petitioner testified, the grand jury was investigating an alleged
money laundering and drug trafficking conspiracy involving Eagle
Motors' employees. Petitioner had direct knowledge concerning a
facet of the conspiracy. Petitioner's false testimony jeopardized the
accuracy of the grand jury's determinations and delayed the indict-
ment of the Eagle Motors' conspirators. Despite the grand jury's deci-
sion not to rely on Petitioner's testimony, the false statements did
affect the outcome of the proceedings.*

Of course, Petitioner could have exercised his Fifth Amendment
right against self-incrimination. The Court acknowledges that Peti-
tioner's decision not to answer the grand jury's questions also might
_________________________________________________________________
*The capacity of Petitioner's statements to impede an essential func-
tion of the grand jury was argued by Respondent at trial and included
within the trial judge's final charge to the jury.

                    7
have delayed the proceedings and deprived the grand jury of valuable
information. However, in such a case, Petitioner would have been act-
ing pursuant to a constitutionally vested right. Petitioner had no right
to provide false testimony under oath. It is a stalwart principle of
American jurisprudence that testifying witnesses have two permissi-
ble choices. They can provide truthful testimony or they can invoke
the protections of the Fifth Amendment. See Bryson v. United States,
396 U.S. 64, 72 (1969) (footnote omitted). False testimony is not a
permissible option. Id.

B. PERJURY ENTRAPMENT

Entrapment occurs when (1) the government induces a person to
commit a crime and (2) the person induced had no predisposition to
engage in the criminal act. Mathews v. United States, 485 U.S. 58, 63
(1988). In order to establish inducement, a defendant must show that
the government acted in an excessive manner that would prompt a
reasonably firm person to commit a crime. See United States v.
DeVore, 423 F.2d 1069, 1072 (4th Cir. 1970). If the defendant estab-
lishes a prima facie case of inducement, the government then must
show that the defendant's decision to commit the crime was the prod-
uct of his own disposition that did not originate from government per-
suasion. See United States v. Osborne, 935 F.2d 32, 38 (4th Cir.
1991). A defendant is entitled to an entrapment defense whenever
there is sufficient evidence from which a reasonable jury could find
entrapment. Mathews, 485 U.S. at 62.

Perjury entrapment occurs when a government agent coaxes a
defendant to testify under oath for the sole purpose of eliciting per-
jury. See United States v. Shuck, 895 F.2d 962, 966 (4th Cir. 1990);
Brown, 245 F.2d at 555. In the instant case, Petitioner argues that he
is a victim of perjury entrapment because the government was aware
of his prior false statements to the agents. Petitioner asserts that the
government coaxed him into testifying before the grand jury for the
sole purpose of eliciting perjury. This argument is unpersuasive.

Entrapment is an affirmative defense. United States v. Blevins, 960
F.2d 1252, 1257 (4th Cir. 1992). Hence, the Petitioner must demon-
strate that the government induced him to commit a crime. See
Osborne, 935 F.3d at 38. Based upon the information presented by the

                     8
Petitioner, the Court concludes that there is no evidence suggesting
that the government's purpose in questioning the defendant was the
solicitation of perjured testimony. See Shuck , 895 F.2d at 966. At the
time that Petitioner testified before the grand jury, the government
was conducting an investigation into possible money laundering at
Eagle Motors. Petitioner's testimony was a source of possible evi-
dence into several individuals' involvement in criminal activity. The
government did suspect that Petitioner provided false statements to
the government agents in a prior interview. However, this does not
mean that the government did not have a valid purpose in eliciting
Petitioner's testimony before the grand jury. It also does not show that
the government knew Petitioner would testify falsely before the grand
jury. Prior to his grand jury testimony, Petitioner knew that the gov-
ernment agents did not believe his statements. Moreover, Petitioner
was provided with Fifth Amendment warnings before he testified. He
was explicitly told that he could refuse to answer any question on the
ground that it might incriminate him. Arguably, Petitioner's prior
false statements provided the government with notice that he might
testify falsely before the grand jury. However, this falls far short of
proving that the government asked him to testify for the purpose of
eliciting perjury. When the government has a legitimate reason for
asking a witness to testify before the grand jury and the witness is
provided with adequate warnings, the mere fact that the government
knows that the witness possibly may provide false testimony does not
establish the requisite showing of inducement. See United States v.
Vesich, 724 F.2d 451, 460-61 (5th Cir. 1984). Absent sufficient evi-
dence that the government asked defendant to testify for the purpose
of eliciting perjury, the defense of perjury entrapment must fail. See
Shuck, 895 F.2d at 966.

C. ALLEGED BRADY VIOLATIONS:
WITHHOLDING EXCULPATORY EVIDENCE

Prosecutorial withholding of exculpatory evidence violates due
process irrespective of whether the government did or did not act in
good faith. Brady v. Maryland, 373 U.S. 83, 87 (1963). In order to
prove a Brady violation, a defendant must show that the undisclosed
evidence was (1) favorable to the defendant; (2) material; and (3) that
the prosecution had the materials and failed to disclose them. Moore
v. Illinois, 408 U.S. 786, 794-95 (1972); Maynard v. Dixon, 943 F.2d

                    9
407, 417 (4th Cir. 1991). Evidence is material if there is a reasonable
probability that its disclosure would have produced a different out-
come. United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994).

Petitioner in the instant action argues that the government failed to
disclose the United States Attorney's statements regarding Petition-
er's false testimony. Specifically, shortly after Petitioner testified in
the grand jury proceeding, the United States Attorney told the mem-
bers of the grand jury to disregard Petitioner's testimony because it
was false. Petitioner argues that withholding this information pre-
vented him from presenting his materiality and perjury entrapment
defenses to a jury. The threshold question for this Court on appeal is
not whether Petitioner was prevented from presenting his materiality
and perjury entrapment defenses to the jury; rather, the proper ques-
tion is whether the government withheld evidence that probably
would have affected the outcome of Petitioner's trial. The Court,
however, already has found that Petitioner's materiality and perjury
entrapment arguments are meritless. Accordingly, evidence support-
ing those theories cannot be material. Failure to meet the materiality
prong of the Moore test precludes this Court from finding a Brady
violation.

Petitioner also claims that the government withheld exculpatory
evidence by failing to unseal an affidavit containing the names of
confidential informants who accused certain Eagle Motors' employ-
ees of engaging in criminal activity. Because many of the Eagle
Motors' employees named in the affidavit also testified against Peti-
tioner at trial, Petitioner alleges that the affidavit was essential for
proper impeachment of the witnesses' credibility. The decision to seal
and unseal evidence is committed to the sound discretion of the trial
judge. See Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir.
1989). An appeals court may disturb a trial judge's decision to seal
or unseal a warrant only if the trial judge abused her discretion. Id.
In this case, the trial judge conducted a post trial in camera inspection
of the evidence. She determined that the evidence did not contain
exculpatory evidence, that petitioner was not prejudiced by the
unavailability of this evidence, and that the release of the sealed infor-
mation might have jeopardized the identity of certain confidential
informants and the government's investigation. Respondent points out
that Petitioner did cross-examine the government's witnesses and

                     10
impeached them specifically on the fact that they were testifying pur-
suant to a plea agreement. The trial judge found that the information
contained in the affidavit would not produce a different outcome for
Petitioner; however, it might have prejudiced the government's
efforts. This Court finds no evidence that in any way disputes her
findings or supports a conclusion that the trial judge abused her dis-
cretion. Hence, Petitioner's Brady argument regarding the affidavit
also must fail.

D. PROPRIETY OF THE JURY INSTRUCTIONS

Conviction of an offense requires a finding of guilt beyond a rea-
sonable doubt as to each and every element of the offense charged in
the indictment. See Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).
In cases where a defendant is tried before a jury, the Sixth Amend-
ment guarantees that the jury's findings of guilt be unanimous. Id.

Petitioner in this action alleges that the jury charge violated his
Sixth Amendment rights by not requiring a unanimous finding of guilt
as to each instance of conduct alleged in the indictment. The indict-
ment charged Petitioner with one count of perjury and one count of
making false statements to a government agency. Contained within
the one count of perjury were multiple instances where the defendant
supposedly committed perjury before the grand jury. Contained
within the one count of false statements were multiple instances
where the defendant supposedly supplied materially false statements
to agents of the federal government. In her charge to the jury, the trial
judge listed the elements of perjury and false statements. She
instructed the members of the jury that in order to convict the defen-
dant of perjury, they must unanimously find that the government
proved each and every element of the crime of perjury beyond a rea-
sonable doubt. She followed an identical procedure for the charge of
making false statements. However, the trial judge also instructed the
jury that it did not have to agree unanimously as to each and every
instance of false conduct contained in the indictment. Rather, she
charged that the jury needed only to find unanimously that the gov-
ernment proved one instance of conduct to adjudge Petitioner guilty
of perjury. She presented identical language regarding the false state-
ments charge. Petitioner contends that this instruction derogated his

                    11
Sixth Amendment right to have the jury unanimously find him guilty
of each and every element of the offense beyond a reasonable doubt.

Petitioner's assertion confuses elements of an offense with
instances of conduct. A jury is required to find that the government
proved every element of each separate offense beyond a reasonable
doubt before adjudging a person guilty of an offense. Id. A jury is not
necessarily required to agree unanimously on every instance of con-
duct charged in an indictment. United States v. Tipton, 90 F.3d 861,
885 (4th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 117 S. Ct. 2414
(1997). Rather, when an indictment charges multiple instances of con-
duct listed in the conjunctive, a jury verdict of guilty will stand if the
jurors unanimously agree as to only one of the instances of conduct
alleged in the indictment. See Turner v. United States, 396 U.S. 398,
420 (1970); United States v. Burton, 871 F.2d 1566, 1573 (11th Cir.
1989). Often, a trial judge will have to provide a special unanimity
instruction in order to prevent confusion. For example, in United
States v. Holly, 942 F.2d 916, 929 (5th Cir. 1991), the Fifth Circuit
reversed a perjury conviction after the trial judge failed to instruct a
jury that each member must agree unanimously on at least one
instance of conduct in order to judge the defendant guilty. The Fifth
Circuit held that the failure to mention unanimity as to one instance
of conduct may lead the jury to conclude that each member simply
had to find individually that the defendant committed one of the acts
alleged in the indictment. Id. However, Holly is not applicable in this
case because the trial judge did instruct the jury that each member had
to agree unanimously on one of the instances of conduct before
adjudging Petitioner guilty of the offenses charged in the indictment.
Consistent with this Court's prior holding in Tipton, such an instruc-
tion removes confusion and allows the jury to make a finding of guilt
in accordance with the Sixth Amendment. Tipton , 90 F.3d at 885; see
also United States v. Hixon, 987 F.2d 1261, 1265 (6th Cir. 1993).
Therefore, the Court finds no error in the trial judge's jury charge.

III.

CONCLUSION

For the foregoing reasons, the judgment of conviction is affirmed.

                    12
AFFIRMED

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