                                 UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                 No. 08-4911


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

PATRICIA     OMONDI,     a/k/a   Patricia   Sanfo,   a/k/a    Patricia
O’Mundy,

                 Defendant - Appellant.




                                 No. 08-4912


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

BOUREIMA SANFO, a/k/a Abraham Sanfo, a/k/a Ibraham Sanfo,

                 Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:07-cr-00197-DKC-1; 8:07-cr-00197-DKC-2)


Submitted:    February 11, 2010                Decided:      March 12, 2010


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Timothy J. Sullivan, William A. Mitchell, Jr., BRENNAN, SULLIVAN
& MCKENNA, LLP, Greenbelt, Maryland; Stephanie Gallagher, LEVIN
& GALLAGHER, LLC, Baltimore, Maryland, for Appellants.     Rod J.
Rosenstein, United States Attorney, Mara B. Zusman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

                Patricia      Omondi    and       Boureima      Sanfo   (“Defendants”),

wife    and      husband,      appeal       their       convictions     for    interstate

transportation of property obtained by fraud, money laundering,

and obstruction of justice, alleging violations of the Fifth and

Sixth Amendments of the United States Constitution arising out

of   the    pretrial       seizure     of    funds,       and   also    challenging    the

sufficiency of the evidence to support their convictions for

obstruction of justice.             For the reasons that follow, we affirm.



                                              I.

                Defendants operated a scheme to defraud victims out of

deposits        for     lot     purchases          and     construction        of    homes.

Defendants       held    themselves         out    as    executives     of    Construction

Consulting and Management, a purported residential home builder

that promised, in addition to constructing the homes, to secure

the relevant permits and financing.                        After their victims paid

deposits, Defendants pocketed the money without ever working on

the homes.

                In July of 2006, almost two years prior to the trial

in this case, Special Agent Philip Soto of the Secret Service

swore      an    affidavit     of    probable           cause   supporting     a    seizure

warrant     of    up    to    $202,435.           Based    on   this    testimony,    stop

payment orders were issued on three $95,000 cashier’s checks

                                              3
withdrawn    by    Omondi      from     her    accounts       at     Branch    Banking        and

Trust Co. (“BB&T”).            Additionally, a magistrate judge issued two

seizure    warrants      pursuant       to    18     U.S.C.A.       § 981    (West       2006   &

Supp.    2009)    for    all    currency        in    Omondi’s       BB&T     accounts        and

proceeds    from     the      stop    payment        orders    on    the    three     $95,000

checks.      The     warrants         did    not     limit     Defendants’         forfeiture

liability to $202,435.               However, upon execution of the warrants,

the     Government      seized        only     $10,078        from     Defendants’          BB&T

accounts.         The   Government          also     failed     to    locate       the     three

cashier’s checks.

            A few months later, Sanfo and Omondi deposited the

three $95,000 checks into a newly opened savings account at Burk

and Herbert Savings Bank.                In compliance with the stop payment

orders, Burke and Herbert Savings Bank returned the checks to

BB&T, which deposited the checks into an official BB&T account.

On November 7, 2006, a magistrate judge issued another seizure

warrant    for    all    proceeds       of    the     three    $95,000       checks      up     to

$202,435 at BB&T.             The Government executed the third seizure

warrant, seizing $202,435, for an aggregate seizure of $212,513,

which    exceeded       the    authorized          amount     by     $10,078.         On      the

execution date, the Government served a copy to “Gigi Frio, BB&T

Corporate     Security,”         and        claims     to     have    sent     a     copy       to

Defendants’       then-attorney.              BB&T     held     Defendants’          unseized



                                               4
balance of $82,565 until prompted by defense counsel’s telephone

calls to release the funds to Defendants.

               On April 25, 2007, a federal grand jury returned a

thirteen count indictment charging Defendants with nine counts

of interstate transportation of property obtained by fraud in

violation      of    18   U.S.C.       § 2314         (2006),    three    counts    of   money

laundering      in     violation       of    18       U.S.C.    § 1957    (2006),    and    one

count of obstruction of justice in violation of 18 U.S.C. § 1503

(2006).     The indictment also contained a forfeiture allegation

for $202,435, representing the fruits of the crimes involved in

the criminal investigation.

               On March 25, 2008 -- after the indictment, and before

the trial -- in an attempt to recover the $10,078 in excessively

seized    funds,       Omondi     filed      a    pre-trial       motion    for    return    of

property pursuant to Fed. R. Crim. P. 41(g) on March 20, 2008.

Conceding that it had seized $10,078 in error, the Government

agreed    to    return       that      sum   to        Defendants.         Defendants       also

requested       that      the     court      hold       an      evidentiary       hearing    to

determine what had happened to the remaining $82,565, which BB&T

had set aside while complying with the Government’s warrants,

but   the      Government        had    never         seized.       The    district      court

determined that this request went beyond the scope of a motion

to return property, and declined to hold an evidentiary hearing

because     the      funds      were   not       in    the     Government’s       possession.

                                                  5
However, the court admonished the Government to cooperate with

Defendants to secure the return of any additional funds held by

BB&T.

            The matter proceeded to trial with Defendants being

represented      by    appointed      counsel         and    the      Assistant     Federal

Public Defender without objection or request for substitution of

counsel.    On April 25, 2008, a jury convicted Defendants on all

but one fraud count.

            On    April     28,     Defendants        filed      a    post-trial     motion

challenging      the   sufficiency        of    the    evidence        supporting     their

convictions      and   voicing       an    intention        to     file    more    detailed

motions    later.      On    July    10,    Defendants           filed     those   motions,

arguing for      the   first      time     that   the       Government’s         failure   to

serve the November seizure warrant on Defendants left them with

the false impression that the Government had seized the entire

balance of their bank accounts.                 As a result, Defendants argued,

they had failed to realize that they had funds on hand to pay a

private attorney.           Defendants thus claimed that the Government

denied their Sixth Amendment right to counsel of their choosing.

The   district    court      held    that      because      it       had   not   authorized

Defendants to file a supplemental, tardy motion, the July 10

motion was untimely.              In the alternative, the court rejected

Defendants’ Sixth Amendment claim on the merits.                             It found the

evidence otherwise sufficient to sustain the jury’s verdicts.

                                            6
               The district court sentenced Omondi and Sanfo each to

concurrent terms of thirty-seven months’ imprisonment followed

by three years’ supervised release.                      Additionally, the district

court    entered     forfeiture           orders,     and    imposed     assessments        of

$1200,     fines        of        $10,000,      and    restitution         of    $185,135.

Defendants timely noted this appeal.



                                               II.

               Defendants argue first that the Government’s failure

to provide adequate notice of the seizures, the Government’s

seizure of $10,078 in excess funds, and the district court’s

denial    of    a    Rule         41(g)   hearing      deprived     them    of     a    Fifth

Amendment       right        to    due    process      and    violated      their       Sixth

Amendment right to retain counsel of their choice.

               Defendants         clarify      that   they    do   not     challenge        the

district court’s order holding this claim time-barred; and we

therefore consider their claim as though raised for the first

time on appeal, and thus review under the exacting plain error

standard, which requires the appellant to show that:                             (1) there

was error; (2) the error was “plain”; and (3) the error affected

Defendants’ substantial rights.                       United States v. Olano, 507

U.S. 725, 732 (1993); United States v. Lynn, 592 F.3d 572, 577

(4th Cir. 2010).             Even if the appellant makes this showing, we

exercise       our   discretion           to   correct       the   error    only       if   it

                                                7
“seriously affects the fairness, integrity, or public reputation

of    judicial    proceedings.”          Lynn,    592   F.3d    at    577    (internal

quotation marks omitted).

               Defendants do not claim that they did not receive any

notice    of     the    seizures,   as     they     received    the    July    seizure

warrants.       Rather, they contend that the notice was inadequate

because it did not state the exact amount of the seizure, which

caused them to mistakenly believe that the Government had seized

all of their funds, leaving nothing that they could use to pay

their attorney.           Defendants also argue that the Government’s

seizure warrants precipitated BB&T’s decision to hold $82,565 of

their money in an account over which they had no control, and

that the Government therefore deprived them of those funds.

               Defendants’      argument    fails     because   they     cannot     show

that    any     error    affected    their      substantial     rights.           First,

Defendants       had    ample   notice     of   the   seizure    of    their      funds,

including seizure warrants issued in July of 2006.                          The actual

seizure took place, and Defendants knew that it took place, in

late 2006.       From that point, they had the ability to request a

hearing to show probable cause to seize the funds.                            The fact

that Defendants thought that the Government had seized all of

their money, as opposed to only $202,435, gave them more, and

not less, reason to inquire about the basis for the seizure.

The    grand     jury    returned   the     indictment     on    April      25,    2007,

                                           8
putting Defendants on notice that they would need a criminal

defense attorney.            Surely, Defendants had sufficient notice and

time to ascertain the whereabouts of their funds.                             Furthermore,

after Defendants filed their Rule 41(g) motion for return of

property    in   March       of   2008,     they   received       a    pretrial     hearing

regarding    their     motion,        in   which    they       recovered      all   of   the

improperly seized funds, and became aware that BB&T was holding

more than $85,000 of their funds, further indicating that any

defect in Defendants’ notice had no effect on their substantial

rights.     See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.

306,   314-15    (1950)       (notice      must    be    reasonably      calculated       to

apprise interested parties of pendency of action and afford them

an opportunity to object).

            We also find that the district court did not err in

declining to grant a Rule 41(g) hearing to allow Defendants the

opportunity      to        question    the       federal       agent    as     to     BB&T’s

disposition of funds the Government never seized or possessed.

See United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007);

United    States      v.    Solis,    108    F.3d       722,   722     (7th    Cir.   1997)

(denying Rule 41(g) motion when Government never had possession

of property).         The Government offered to assist Defendants in

securing the prompt return of these funds from BB&T, and the

Constitution certainly requires no more than that.



                                             9
             Defendants’ Sixth Amendment argument fares no better.

Defendants     failed      to     produce   sufficient        factual     support    for

their claim that private counsel would have represented them had

they had earlier access to the $10,078 overage wrongfully seized

by the Government, the $82,565 from the bank, or the aggregate

of the two.        Furthermore, Defendants failed to produce credible

evidence   that      the    Government      was    responsible      for   Defendants’

delay in accessing the $82,565 non-seized balance from BB&T.

Consequently,        we    find    no    plain     error    affecting     Defendants’

substantial rights.



                                           III.

           Defendants           also    challenge     the     sufficiency     of     the

evidence      supporting        their     convictions        for    obstruction      of

justice.       A     defendant         challenging    the     sufficiency     of     the

evidence bears a heavy burden.                   We must sustain a jury verdict

“if   there     is    substantial         evidence,        taking   the    view     most

favorable to the Government, to support it.                         See Glasser v.

United States, 315 U.S. 60, 80 (1942); United States v. Burgos,

94 F.3d 849, 862 (4th Cir. 1996) (en banc).

           To support a conviction for obstruction of justice,

the Government must prove:                (1) a pending judicial proceeding;

(2) of which Defendants had knowledge or notice; and (3) that

Defendants     “acted       corruptly,       that     is     with   the    intent    to

                                            10
influence,         obstruct,    or    impede    that     proceeding      in    its    due

administration of justice.”                United States v. Grubb, 11 F.3d

426, 437 (4th Cir. 1993) (footnote omitted).                        Additionally, a

nexus must exist with the judicial or grand jury proceedings.

See    United       States     v.    Aguilar,    515     U.S.   593,     599        (1995)

(requiring “a relationship in time, causation, or logic with the

judicial      proceedings”).           Intent     to    influence      an     ancillary

proceeding independent of the court’s or grand jury’s authority

is insufficient to establish the requisite nexus.                      Id.

              The Government charged that Defendants had requested

Mohamad Al-Shalabi, a civil engineer, to backdate feasibility

studies relating to the construction of the homes.                            Al-Shalabi

had    actually       completed      the   studies      in   September       2006,    but

Defendants requested that he backdate them to the summer of 2005

in    order   to     create    the   appearance      that    they   were,      in    fact,

working on the studied properties at that time.

              On    appeal,    Defendants       argue    that   they    did     not   act

corruptly because Al-Shalabi actually had started work on the

feasibility studies in 2005, and therefore the backdating was

designed to more accurately portray reality.                        Defendants point

to testimony from Al-Shalabi stating that he did nothing wrong

or unprofessional by backdating the studies to 2005.

              We find the testimony of Secret Service Agent Philip

Soto and of Al-Shalabi provided sufficient evidence for a jury

                                           11
to find beyond a reasonable doubt that Defendants’ knowledge of

the   ongoing       grand    jury      investigation           prompted      them      to    act

corruptly.        In   2006,     when    faced      with       an   ongoing      grand      jury

investigation,         Defendants       requested          Al-Shalabi         to       backdate

invoices and feasibility reports to indicate that feasibility

studies    were     performed       approximately         one       year   earlier.           The

evidence   at     trial     showed     that    in       2005   Al-Shalabi        had    merely

performed a cursory evaluation of two properties listed in the

indictment      and    had      not    opened       a    file,       created       a   report,

generated a bill, or communicated with Defendants again until

approximately one year later when they requested the backdated

documents for presentation in the grand jury investigation.                                  Al-

Shalabi’s perception that he did nothing wrong or unprofessional

by backdating the documents is of no consequence.                                See United

States    v.    Erickson,       561     F.3d    1150,      1160       (10th      Cir.       2009)

(finding       obstruction        of     justice         conviction         supported         by

presentation of manufactured evidence (backdated documents) even

if the manufacturer thought the evidence supported reality).

            Furthermore, we find the nexus requirement of Aguilar

satisfied.          The     record      contains         sufficient         evidence        that

Defendants      should       have      reasonably         foreseen         obstruction        of

justice    as   a     natural    and    probable         consequence        of     presenting

backdated documents to the case agent involved with the grand

jury investigation.           See United States v. Neiswender, 590 F.2d

                                           12
1269, 1273 (4th Cir. 1979); see also United States v. Furkin,

119 F.3d 1276, 1283 (7th Cir. 1997) (finding evidence sufficient

to   support   guilty     verdict     for       obstruction    of    justice    for

requesting backdated leases which had the “natural and probable

effect” of interfering with the grand jury investigation).                       We

conclude that a reasonable trier of fact, viewing the evidence

in the light most favorable to the Government, could have found

sufficient evidence to support Defendants’ guilty verdicts for

obstruction of justice beyond a reasonable doubt.



                                         IV.

          Finding       no    plain           error     affecting     Defendants’

substantial rights regarding their alleged violations of their

rights to due process and counsel of their choice, and finding

sufficient     evidence      to   support         the     jury’s     verdicts    of

obstruction    of    justice,       we     affirm       Omondi’s     and    Sanfo’s

convictions    and   sentences.          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




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