12-2605-cr
United States v. Mesbahuddin

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 21st day of August, two thousand thirteen.

PRESENT:

           JOSÉ A. CABRANES,
           CHESTER J. STRAUB,
           SUSAN L. CARNEY,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee,

                               -v.-                                                              No. 12-2605-cr

GHULAM MESBAHUDDIN, also known as RUMI,

                      Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                                  John L. Russo, Michael D. Horn, Law Offices
                                                                          of John L. Russo, Astoria, NY.

FOR APPELLEE:                                                             Peter A. Norling, Michael P. Canty, Assistant
                                                                          United States Attorneys, for Loretta E. Lynch,
                                                                          United States Attorney, United States
                                                                          Attorney’s Office for the Eastern District of
                                                                          New York, Brooklyn, NY.




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        Appeal from the June 25, 2012 judgment of conviction of the United States District Court
for the Eastern District of New York (Nicholas G. Garaufis, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the June 25, 2012 judgment of the District Court be AFFIRMED.

        Defendant Ghulam Mesbahuddin was convicted, after a trial by jury, of (1) conspiracy to
transfer false identification documents, in violation of 18 U.S.C. § 1028(a)(2), (f); and (2) conspiracy
to commit bribery, in violation of 18 U.S.C. § 371. In substance, the jury found that Mesbahuddin
conspired to obtain and sell a false driver’s license from the California Department of Motor
Vehicles. Mesbahuddin now challenges his conviction, principally on the ground that the evidence
presented at trial was insufficient to prove that he conspired with at least one other person to
commit bribery. We assume familiarity with the underlying facts and procedural history of this case.

         Although we review sufficiency challenges de novo, United States v. Desposito, 704 F.3d 221, 226
(2d Cir. 2013), “a defendant challenging the sufficiency of the evidence that led to his conviction at
trial bears a heavy burden,” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (internal quotation
marks omitted). That is because we “must view the evidence in the light most favorable to the
government, crediting every inference that could have been drawn in the government’s favor, and
deferring to the jury’s assessment of witness credibility, and its assessment of the weight of the
evidence,” United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008) (internal citations, alterations and
quotation marks omitted), and because we must uphold the judgment of conviction if “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt,”
Jackson v. Virginia, 443 U.S. 307, 319 (1979).

        Mesbahuddin contends that the government failed to prove that he conspired with another
person other than the government’s informant. Mesbahuddin is correct that the government was
required to prove that he conspired with at least one other person who was not a government
informant, see United States v. Andrades, 169 F.3d 131, 135 (2d Cir. 1999), but he is not correct that the
government failed to adduce the necessary evidence. Though the evidence introduced at trial was
not overwhelming, it included, among other things, a recording of Mesbahuddin’s side of a
telephone conversation in which Mesbahuddin referred to identification documents and to the
“head of the DMV.” See Joint App’x 484-85. Based on this recording, a rational juror could
conclude that Mesbahuddin conspired with the other participant in the telephone call—one
Mozammel Hoque.

         Mesbahuddin nonetheless insists that the District Court erred in failing to instruct the jury
that it was not sufficient for the government to prove only that Mesbahuddin conspired with the
government’s informant. Mesbahuddin did not raise this objection before the District Court, and


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the District Court’s jury instructions are therefore subject to “plain error” review. See United States v.
Nouri, 711 F.3d 129, 138 (2d Cir. 2013); see also United States v. Crowley, 318 F.3d 401, 413 (2d Cir.
2003) (“[T]he mere fact that a defendant submitted his proposed language as part of a requested
charge does not in itself preserve the point for appeal.”). This standard is met when “(1) there is an
error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error
affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome
of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 130 S. Ct. 2159, 2164
(2010) (internal quotation marks and brackets omitted). Even if we were to conclude that the jury
instructions were in error, we would have no reason to think that the error was clear or obvious, or
that the error affected the outcome of the trial, inasmuch as the evidence demonstrated that
Mesbahuddin conspired at least with Hoque, if not others.

        Finally, we find no merit in Mesbahuddin’s arguments (1) that the indictment should have
been dismissed because the government failed to specify the second conspirator in its opening
statement—a proposition for which Mesbahuddin advances no legal support; and (2) that the
evidence was insufficient to prove that he intended to commit bribery, inasmuch as the record
discloses ample evidence to demonstrate his intent.

                                           CONCLUSION

       We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
above, we AFFIRM the June 25, 2012 judgment of the District Court.

                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk of Court




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