United States v. Gurr, Bernard

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the

Clerk of any formal errors in order that corrections may be made before the

bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2006 Decided December 8, 2006

No. 05-3122

UNITED STATES OF AMERICA,

APPELLEE

v.

BERNARD GURR,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 99cr00394-01)

Joseph R. Conte, appointed by the court, argued the cause

and filed the briefs for appellant.

John P. Gidez, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Kenneth L. Wainstein,

U.S. Attorney at the time the brief was filed, and Roy W.

McLeese III and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: SENTELLE, ROGERS and GARLAND, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Appellant Bernard Gurr appeals

his conviction by a jury of defrauding the United States when he

was the manager of a federal credit union in American Samoa.

He contends that the district court erred in (1) denying his

motion to suppress documents discovered during a border

search upon his arrival at the Honolulu International Airport; (2)

admitting, over his hearsay objection, a report by an examiner

from the National Credit Union Administration (“NCUA”); and

(3) denying his motion for judgment of acquittal of

embezzlement (Count 18) and witness tampering (Count 20).

Gurr pro se also contends that the district court lacked subject

matter jurisdiction and that venue was improper. We affirm.

I.

From June 1986 until October 1993, Bernard Gurr was the

manager of the American Samoa Government Employees

Federal Credit Union, located in American Samoa and

supervised and insured by the NCUA. In late 1992, Pete

Steiger, a Problem Case Officer at the NCUA, was assigned to

review problems that had been identified at the credit union,

including inadequate liquidity, poor loan underwriting, and a

high loan-deficiency rating. Steiger’s investigation and audit of

the credit union, which was summarized in a report consisting

of an Order of Conservatorship and Confidential Statement of

Grounds for Conservatorship, led the NCUA to place the credit

union in conservatorship in October 1993. In December 1999,

Gurr was indicted with three other credit union employees for

conspiring to defraud the United States. The indictment alleged

that the goals of the conspiracy were to keep the NCUA from

discovering the true financial status of the credit union and to

maintain control of the credit union’s assets for the personal

benefit of the conspirators.

3

Flying from American Samoa on December 11, 1999, Gurr

was arrested for credit union fraud upon landing in Hawaii at

the Honolulu International Airport. Shortly after his arrival,

two United States Customs officials seized and searched his

luggage and discovered financial documents taken from the

credit union. On May 30, 2000, Gurr was charged in a

superseding indictment with conspiracy, in violation of 18

U.S.C. § 371 (Count 1); two counts of knowingly making and

causing to be made false federal credit institution entries, and

aiding and abetting, in violation of 18 U.S.C. §§ 1006, 2

(Counts 2 and 3); fourteen counts of willfully and knowingly

defrauding lending, credit, and insurance institutions, and aiding

and abetting, in violation of 18 U.S.C. §§ 657, 2 (Counts 4, 6-

18); knowingly making and causing to be made false statements

in a loan and credit application, and aiding and abetting, in

violation of 18 U.S.C. §§ 1014, 2 (Count 5); obstruction of an

examination of a financial institution, and aiding and abetting,

in violation of 18 U.S.C. §§ 1517, 2 (Count 19); and tampering

with a witness, and aiding and abetting, in violation of 18

U.S.C. §§ 1512, 2 (Count 20).

The district court denied Gurr’s motion to suppress the

financial documents seized during Customs officials’ search of

his luggage and his motion to reconsider. The district court also

overruled Gurr’s objections to the admission of the NCUA

report prepared by Problem Case Officer Steiger as hearsay,

ruling that the report was admissible as a business record under

FED. R. EVID. 803(6). The district court granted the

government’s mid-trial motion to dismiss one count of fraud

(Count 7). A jury found Gurr guilty of the remaining counts.

On November 14, 2003, the district court sentenced Gurr to 70

months’ imprisonment to be followed by three years’ supervised

release.

4

II.

Challenging the denial of his motion to suppress the

financial documents that U.S. Customs officials seized during

a search of his luggage upon his arrival in the United States,

Gurr contends that even if Customs officials generally have the

legal authority to perform routine border searches of

passengers’ luggage, in this case, the warrantless search was

unreasonable. The U.S. Customs Service is authorized, pursuant

to 19 U.S.C. § 1582,1 to subject every international traveler to

a routine warrantless inspection. See United States v. Galloway,

316 F.3d 624, 629 (6th Cir. 2003); Bradley v. United States, 299

F.3d 197, 202 (3rd Cir. 2002); United States v. Yang, 286 F.3d

940, 944 (7th Cir. 2002); United States v. Fortna, 796 F.2d 724,

1

Section 1582 authorizes the Secretary of the Treasury to

issue regulations “for the search of persons and baggage . . . coming

into the United States from foreign countries.” 19 U.S.C. § 1582.

Pursuant to that authority, the Secretary’s regulations provide, in

relevant part:

All persons, baggage, and merchandise arriving in the

Customs territory of the United States from places

outside thereof are liable to inspection and search by

a Customs officer . . . authorized to cause inspection,

examination, and search to be made under section

467, Tariff Act of 1930, as amended (19 U.S.C. §

1467), of persons, baggage, or merchandise, even

though such persons, baggage, or merchandise were

inspected, examined, [or] searched . . . at another . . .

place in the United States or the Virgin Islands, if

such action is deemed necessary or appropriate.

19 C.F.R. § 162.6. “Customs territory of the United States . . .

includes the States, the District of Columbia, and the Commonwealth

of Puerto Rico.” Id. § 134.1(f); see also id. § 7.2.

5

738 (5th Cir. 1986); 19 C.F.R. § 162.6 (2006). Gurr does not

deny this, but instead maintains that the FBI’s involvement

transformed the inspection from a permissible border action into

“an FBI fishing expedition.” Appellant’s Br. at 11. As proof of

the FBI’s dominating influence, Gurr points to evidence that the

FBI agents were on site and that Customs officials asked the

FBI agents whether they should keep the financial documents

and, upon seizing them, immediately handed the documents

over to the FBI. As Gurr sees it, Customs had no suspicion that

his luggage contained contraband or dutiable merchandise,2 and

hence the search was capricious and illegal. Our review of the

denial of a motion to suppress is de novo. See United States v.

Ornelas, 517 U.S. 690, 691 (1996).

Congress enjoys a plenary “power to protect the Nation by

stopping and examining persons entering this country [and,

accordingly], the Fourth Amendment’s balance of

reasonableness is qualitatively different at the international

border than in the interior.” United States v. Montoya de

Hernandez, 473 U.S. 531, 537 (1985). “[N]ot only is the

expectation of privacy less at the border than in the interior . . . ,

the Fourth Amendment balance between the interests of the

Government and the privacy right of the individual is also

struck much more favorably to the Government at the border.”

Id. at 539-40. “[S]earches made at the border, pursuant to the

long-standing right of the sovereign to protect itself by stopping

2

Under 19 U.S.C. § 482, a Customs officer is authorized

to search any trunk or envelope, wherever found, in

which [the officer] . . . may have a reasonable cause

to suspect there is merchandise which was imported

contrary to law; and if any such officer . . . shall find

any merchandise . . . he shall seize and secure the

same for trial.

6

and examining persons and property crossing into this country,

are reasonable simply by virtue of the fact that they occur at the

border.” United States v. Ramsey, 431 U.S. 601, 616 (1977).

The search of a passenger’s luggage upon arriving in the United

States after a nonstop flight from outside the country is

considered “the functional equivalent of a border search.”

Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973).

Courts have routinely rejected the notion that cooperation

among federal agencies renders a border search unlawful. For

example, then-Judge Anthony Kennedy, writing in United

States v. Schoor, 597 F.2d 1303, 1306 (9th Cir. 1979),

confronted similar circumstances as here and rejected the

argument that a search violated the Fourth Amendment because

it was not limited to a search for contraband and was conducted

at the behest of Drug Enforcement Administration (“DEA”)

agents who lacked probable cause to search. In Schoor, DEA

agents alerted Customs officials that two passengers suspected

of smuggling heroin in transistor radio shipments were en route

to the United States on a flight from Thailand and requested that

Customs search them, as they might be carrying narcotics. A

subsequent search by Customs, in the presence of a DEA agent,

revealed bills for radios and other items transported earlier from

Thailand, as well as airway bills apparently relating to a

shipment of heroin-filled radios seized in Thailand. The two

men were arrested by DEA agents for conspiracy to smuggle

heroin into the United States, and the DEA agents seized the

documents incident to the arrest. Judge Kennedy explained the

court’s reasoning:

[T]here is no dispute that the search was conducted at

an international border by customs officers legally

entitled to search persons entering the United States.

That the search was made at the request of the DEA

officers does not detract from its legitimacy.

7

Suspicion of customs officials is alone sufficient

justification for a border search. The source of that

suspicion is irrelevant in sustaining the search.

Moreover, the border search was legitimate in

scope. We recognize that the primary purpose of a

border search is to seize contraband property

unlawfully imported or brought into the United States.

However, where customs officers are authorized to

search for material subject to duty or otherwise

introduced illegally into the United States and they

discover the instrumentalities or evidence of crimes,

they may seize the same.

Id. (citations omitted). The decisions in the other circuits are to

the same effect. See United States v. Boumelhem, 339 F.3d 414,

423 (6th Cir. 2003); People v. Villacrusis, 992 F.2d 886, 887

(9th Cir. 1993); United States v. Carter, 592 F.2d 402, 406 (7th

Cir. 1979); United States v. Bates, 526 F.2d 966, 967 (5th Cir.

1976).

Gurr thus misstates the law in arguing that no case suggests

that Customs officials may seize something that they do not

know to be contraband. The distinction that Gurr would draw

between contraband and documentary evidence of a crime is

without legal basis. Cf. Warden, Md. Penitentiary v. Hayden,

387 U.S. 294, 301 (1967). Following Gurr’s reasoning, and

contrary to Schoor, 597 F.2d at 1306, Customs officials could

not lawfully seize records of a drug operation during a border

search even if Customs had been informed by the DEA that an

arrested co-conspirator had implicated the passenger. The

Supreme Court has suggested in analogous circumstances that

the important factor for a court to consider is whether the search

was conducted under proper authority, not the “underlying

intent or motivation of the officers involved.” Scott v. United

8

States, 436 U.S. 128, 138 (1978); see United States v. Robinson,

414 U.S. 218, 236 (1973); see also Boumelhem, 339 F.3d at

423; Bates, 526 F.2d at 967; cf. United States v. Villamonte-

Marquez, 462 U.S. 579, 584 n.3 (1983); 1 WAYNE R. LAFAVE,

SEARCH AND SEIZURE: A TREATISE ON THE FOURTH

AMENDMENT § 1.8(b), at 261-62 (4th ed. 2004).

Additionally, Gurr misstates the trial record in asserting

that Customs officials “had no idea of the significance of the

documents they were looking at” because the documents

consisted only of “plain old account numbers with monetary

amounts next to them.” Appellant’s Br. at 13. Customs

officials testified that they knew that the charges pending

against Gurr involved a fraud allegedly committed against a

federal credit union in American Samoa. The two Customs

officials conducting the luggage search had been personally

involved in placing Gurr under arrest. U.S. Customs Special

Agent Douglas S. Palmer testified that, as a result, their

suspicions were heightened, giving them every reason to search

Gurr’s luggage and notice the financial documents, and that it

was a Customs agent who first realized the significance of the

financial documents. That agent, Ferdinand Jose, a senior

Customs inspector, testified that the FBI agents did not see any

of the documents as he took them out of the suitcase and that it

was only after he determined their relevance, reported his

findings, and turned over the documents to Palmer that it was

determined to retain them. Moreover, the documents seized

from Gurr’s luggage were clearly identifiable as relevant. For

example, one of the documents is labeled at the top, “ASG

EMPLOYEES FEDERAL CREDIT UNION WITHDRAWAL

VOUCHER,” and shows a transaction for $5000 cash; another

is labeled “JOURNAL VOUCHER: American Samoa

Government Employees Federal Credit Union” and shows a

transaction for $1000 cash.

9

For these reasons, it is apparent that the Customs officials

conducted a permissible border search and lawfully seized the

documents. The district court’s finding that there was “some

evidence” of FBI involvement in the search, as a result of an

FBI request to Customs to retain the financial documents, does

not require a different conclusion and we need not address the

government’s argument based on inevitable discovery, see Nix

v. Williams, 467 U.S. 431 (1984), and its progeny, upon which

the district court relied. See United States v. Davis, 181 F.3d

147, 149 (D.C. Cir. 1999).

Moreover, even if we had doubt about the lawfulness of

Customs’ seizure of Gurr’s luggage and assumed, as Gurr

maintains, that the superseding indictment sprang from the

seizure of the documents found therein, Gurr fails to explain

how the financial documents seized at the Honolulu airport

affected his convictions on any of the counts in the indictment.

On appeal, the government explains that most of the

documentary evidence critical to its case was obtained during

the course of the NCUA investigation, either from the credit

union or the NCUA Texas storage facility, independent of the

Honolulu documents. Further, witnesses testified regarding the

same information as appeared in the Honolulu documents. For

example, as to the Honolulu documents relevant to Counts 6

through 12 involving Gurr’s defrauding of Faataumalama Felti,

Felti testified that Gurr had told him to sign a receipt for money

from his credit union account that he never received. This

testimony was bolstered by the introduction of credit union

records regarding the suspect transactions. Additional counts

that Gurr identifies in his reply brief as having been proved by

the Honolulu documents are similarly supported by other record

evidence. Hence, any error in admitting the seized financial

documents was harmless beyond a reasonable doubt and a new

trial is not required. See Chapman v. California, 386 U.S. 18,

24 (1967).

10

III.

Gurr also contends that the district court erred in overruling

his hearsay objection to the admission of Exhibit PS 41, the

NCUA Order of Conservatorship and Confidential Statement of

Grounds for Conservatorship (“the report”). Because the report,

which was hearsay, was based, in part, on the NCUA Problem

Case Officer’s interviews of credit union employees, Gurr

maintains that it contained compound hearsay statements by his

accusers. From this he concludes that the report was testimonial

and its admission violated his rights under the Confrontation

Clause, citing Crawford v. Washington, 541 U.S. 36 (2004), and

Davis v. Washington, 126 S. Ct. 2266 (2006). Specifically,

Gurr maintains that the report was “testimonial” because in

Davis, the Supreme Court concluded that a domestic battery

victim’s written statements in an affidavit given to the police at

a crime scene were “testimonial” and therefore subject to the

Confrontation Clause.

In addressing Gurr’s hearsay objection, the district court

noted that the report appeared to meet the requirements of a

business record under FED. R. EVID. 803(6) and that because the

preparer of the report was testifying and would be subject to

cross-examination, the only remaining question was whether the

report contained references to statements by witnesses who

would not be testifying at trial. In this regard, the district court

observed that page 5 of the Confidential Statement of Grounds

for Conservatorship included statements that “information was

received from an employee” regarding one of the credit union

family accounts and that two former employees had “made

allegations . . . about improprieties on the part of current

management” that had not been confirmed. The district court

initially ruled that the report was inadmissible because of the

prejudicial statements by witnesses who were unavailable for

the defense to cross-examine. The prosecutor subsequently

11

advised the district court that the sources of the double hearsay

would be testifying at trial. The district court then ruled that the

report was admissible, noting that the statement concerning the

allegations by two former employees was in the nature of

minutes, and that upon applying FED. R. EVID. 403, the

probative value of the report outweighed any prejudice to Gurr.

The district court further indicated that it would redact the

compound hearsay statements that appear on page 5 of the

report. Our review of the district court’s admission of the report

is for abuse of discretion. See United States v. Kim, 595 F.2d

755, 763 n.38 (D.C. Cir. 1979).

To the extent that the report was a statement “other than

one made by the declarant while testifying at the trial . . .

offered in evidence to prove the truth of the matter asserted,”

FED. R. EVID. 801(c), it was hearsay, and to be admissible it

must fall within one of the exceptions to the hearsay rule, see

FED. R. EVID. 802. The business records exception to the

hearsay rule provides for the admission of:

A memorandum, report, record, or data compilation, in

any form, of acts, events, conditions, opinions, or

diagnoses, made at or near the time by, or from

information transmitted by, a person with knowledge,

if kept in the course of a regularly conducted business

activity, and if it was the regular practice of that

business activity to make the memorandum, report,

record, or data compilation, all as shown by the

testimony of the custodian or other qualified witness,

unless the information or method or circumstances of

preparation indicate lack of trustworthiness.

FED. R. EVID. 803(6). The hearsay in records of regularly

conducted activity is admissible “only if it was reported to the

maker [of the report] directly or through others, by one who is

12

himself acting in the regular course of business, and who has

personal knowledge.” United States v. Smith, 521 F.2d 957, 964

(D.C. Cir. 1975).

“Double hearsay exists when a business record is prepared

by one employee from information supplied by another

employee.” United States v. Baker, 693 F.2d 183, 188 (D.C.

Cir. 1982); see FED. R. EVID. 805. It is excepted from the

hearsay rule provided “both the source and the recorder of the

information, as well as every other participant in the chain

producing the record, are acting in the regular course of

business,” Baker, 693 F.2d at 188. Because the regularity of

making the record is evidence of its accuracy, statements by

“outsiders” are not admissible for their truth under FED. R.

EVID. 803(6), see Baker, 693 F.2d at 188 (citing United States

v. Davis, 571 F.2d 1354 (5th Cir. 1978); 4 DAVID W. LOUISELL

& CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE, § 448

(1980); MCCORMICK ON EVIDENCE § 310, at 725-26 (2d ed.

1972); 4 JACK B. WEINSTEIN & MARGARET A. BERGER,

WEINSTEIN’S EVIDENCE ¶ 803(6)[04] (1981)), in the absence of

a showing that the outsider had a duty to report the information,

see United States v. Bortnovsky, 879 F.2d 30, 34 (2d Cir. 1989),

or that it was standard practice for the preparer to verify

information from outside sources, see United States v. Patrick,

959 F.2d 991, 1001 (D.C. Cir. 1992).

On appeal, Gurr does not challenge the district court’s

factual findings that, as Steiger, the preparer of the report,

testified, it was the regular practice of the NCUA to create these

reports in order to place credit unions into conservatorship, and

that it was a normal part of his job to prepare the Confidential

Statement of Grounds for Conservatorship, which he did in this

13

case.3 Gurr offers nothing to suggest a lack of trustworthiness

as to Steiger’s recording of his opinions, diagnoses, and

observations. See United States v. Frazier, 53 F.3d 1105, 1109-

10 (10th Cir. 1995) (citing 4 CHRISTOPHER B. MUELLER &

LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 450, at 534-36

(2d ed. 1994)); cf. United States v. Garland, 991 F.2d 328, 334-

35 (6th Cir. 1993). Instead, Gurr contends that the district

court erred in admitting the report for three reasons.

First, Gurr maintains that the report was hearsay admitted

in violation of FED. R. EVID. 802. However, most of the report

appears to be admissible as Steiger’s course-of-business

observations under the exception of FED. R. EVID. 803(6). Gurr

has not pointed to anything in the record suggesting otherwise.

Second, Gurr maintains that specific statements within the

report were inadmissible double hearsay. Of the five potentially

problematic paragraphs on page 5 of the report, Gurr points to

only two of them in his brief. Those paragraphs state that “a

3

Gurr’s claim that the report was made in contemplation of

litigation and therefore was inadmissible under FED. R. EVID. 803(6),

see Palmer v. Hoffman, 318 U.S. 109, 113-14 (1943); Scheerer v.

Hardee’s Food Systems, Inc., 92 F.3d 702, 706-07 (8th Cir. 1996), is

raised for the first time on appeal and he cannot show plain error, see

United States v. Thomas, 896 F.2d 589, 591 (D.C. Cir. 1990). The

credit union was in fact placed in conservatorship and the preparer of

the substantive part of the report, i.e., the Confidential Statement of

Grounds for Conservatorship, testified at trial. Gurr’s further claim

that factual findings in public reports under FED. R. EVID. 803(8)(C)

are admissible only against the government in criminal cases appears

only in his reply brief and is therefore waived, see United States v.

Taylor, 339 F.3d 973, 977 (D.C. Cir. 2003); in any event, any error

was harmless because the preparer of the report and the persons upon

whom he relied testified and were subject to cross-examination at trial.

See United States v. Davis, 181 F.3d 147, 149-50 (D.C. Cir. 1999).

14

former employee provided information demonstrating that the

manager’s list of his immediate family members’ accounts was

incomplete” and that “information was received from an

employee indicating another family account.” However, Gurr’s

counsel published them to the jury, explaining on appeal that he

did so in order to impeach the integrity of the report. Two other

paragraphs on page 5 include similar statements. One

paragraph states that “[f]our former employees and two former

directors have allegedly committed fraud.” Again, Gurr’s

counsel published this paragraph during his cross-examination

of Steiger. Gurr may not now object to evidence that he himself

submitted at trial. The other paragraph states that “two former

employees . . . made allegations . . . about improprieties on the

part of the current management” that could not be verified. The

district court ruled that this paragraph was admissible only as

minutes of Steiger’s investigation, and not to prove the truth of

the allegations against Gurr; hence, it poses no hearsay problem.

See FED. R. EVID. 801. The double hearsay in the remaining

paragraph was an employee’s statement that she had been told

by a credit union board member “to stand behind current

management or look for a new job.” Admission of this

statement, as well as the other double hearsay, was harmless

error because the witnesses testified at the trial and were subject

to cross-examination. See FED. R. CRIM. P. 52(a); Kotteakos v.

United States, 328 U.S. 750, 765 (1946).

Third, Gurr maintains that the admission of the double

hearsay violated his rights under the Confrontation Clause,

which provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. CONST. amend. VI. Because Gurr published

some of the double hearsay to the jury and because Steiger,

employees (including former employees), and account holders

testified at trial and were subject to cross-examination, Gurr’s

Confrontation Clause contention fails. See United States v.

15

Powell, 334 F.3d 42, 45-46 (D.C. Cir. 2003). Even if we were

to assume that there had been such a violation, any error in

admitting the report was harmless. See Chapman, 386 U.S. at

22-23; Baker, 693 F.2d at 189; FED. R. CRIM. P. 52(a). The

NCUA examiners were available for cross-examination and

they testified regarding the reasons for their conclusions that

conservatorship was necessary. There was abundant evidence,

including documentary evidence, independent of the report

relating to the matters it discussed. Defrauded credit union

account holders as well as present and former credit union

employees testified and were available for cross-examination.

A comparison of the report and the trial record reveals that the

government’s witnesses testified regarding its key areas of

discussion: insolvency, unprofitability, increasing delinquency,

non-amortizing loans, liquidity/asset liability management,

weak management, and fraud/internal controls.

IV.

Gurr also challenges the sufficiency of the evidence of

embezzlement in Count 184 and corrupt persuasion of a witness

4

Section 657 provides that it is a criminal offense for any

person who

being an officer, agent or employee of or connected

in any capacity with [an insured credit

institution,] . . . embezzles, abstracts, purloins or

willfully misapplies . . . [funds of that

institution] . . . or [funds] pledged or otherwise

entrusted to its care.

18 U.S.C. § 657.

16

in Count 20.5

Viewing the evidence most favorably to the government, as

we must, see United States v. Wahl, 290 F.3d 370, 375 (D.C.

Cir. 2002), there was sufficient evidence that Gurr embezzled

money from credit union member Francis Stowers.

Embezzlement is “the fraudulent appropriation of property by

a person to whom such property has been entrusted, or into

whose hands it has lawfully come.” United States v. Holmes,

611 F.2d 329, 331 (10th Cir. 1979) (quoting Moore v. United

States, 160 U.S. 268, 269 (1895)). The evidence showed that

Stowers, at Gurr’s direction, signed a blank voucher; that Gurr

told Stowers to return to the credit union the following day to

collect his money; that Gurr gave the voucher to the credit

union teller and told her to withdraw $5,000 from Stowers’

account, which she did, giving the money to Gurr; and that

Stowers returned the next day but never received his money.

The jury could have reasonably concluded that Gurr embezzled

or misapplied credit union funds when he (1) instructed a teller

to withdraw the cash meant as a home improvement loan for

Stowers; (2) took the money from the teller; and (3) never gave

5

Section 1512(b) provides that it is a criminal offense to

corruptly persuade[] another person, or attempt[] to

do so, or engage[] in misleading conduct toward

another person, with intent to . . . influence, delay, or

prevent the testimony of any person in an official

proceeding . . . [or] hinder, delay, or prevent the

communication to a law enforcement officer or judge

of the United States of information relating to the

commission or possible commission of a federal

offense.

18 U.S.C. § 1512(b).

17

the money to Stowers. As the government maintains, a fair

inference can be drawn that Gurr fraudulently converted

property entrusted to him and used it for his own purposes.

Similarly, there was sufficient evidence of witness

tampering. The evidence showed that after Gurr was arrested,

he and another credit union employee (Fiapapalagi Eteuati)

attempted to corruptly persuade a witness (Grace Uigalelei) to

sign an affidavit falsely stating that she had authorized money

to be transferred from her account. Gurr contends that this is

insufficient to establish the allegation in the indictment because

there was no evidence of cooperation between Gurr and the

other credit union employee and no evidence that the witness

was intimidated or threatened. However, Gurr was not charged

with intimidating or threatening Uigalelei, and the jury could

reasonably find that Gurr, with the assistance of Eteuati,

attempted to “corruptly persuade[]” Uigalelei in order to

influence her testimony by having her sign a false affidavit.

See, e.g., United States v. Sanders, 421 F.3d 1044, 1051 (9th

Cir. 2005); United States v. LaShay, 417 F.3d 715, 718 (7th Cir.

2005); United States v. Cruzado-Laureano, 404 F.3d 479, 487

(1st Cir. 2005); United States v. LaFontaine, 210 F.3d 125, 132-

33 (2d Cir. 2000).

V.

Finally, Gurr contends that the district court lacked

jurisdiction and that venue was improper. He first raised these

defenses nearly two years after his conviction (but before

sentencing).

Gurr’s objection is that only the courts of American Samoa

had jurisdiction because that is where the crimes occurred. See

U.S. CONST. art. III, § 2, cl. 3; 28 U.S.C. §§ 81-144; FED. R.

CRIM. P. 18. Contrary to Gurr’s contentions, U.S. Code Title 18

18

applies in American Samoa regardless of whether the Secretary

of the Department of the Interior has said so explicitly, see 18

U.S.C. § 5, and American Samoan courts do not have

jurisdiction of violations of Title 18, see id. § 3231. Rather, the

district courts of the United States have exclusive, original

jurisdiction of all offenses against the laws of the United States.

See id.

Gurr’s objection to venue is also meritless. Although Gurr

last resided in American Samoa and was arrested in Hawaii

after voluntarily entering the United States, because he was not

arrested or “first brought” into the United States until after he

had been indicted in the District of Columbia, venue was proper

in the District of Columbia. See 18 U.S.C. § 32386; United

States v. Catino, 735 F.2d 718, 724 (2d Cir. 1984); United

States v. Hsin-Yung, 97 F. Supp. 2d 24, 28 (D.D.C. 2000); 2

CHARLES ALAN WRIGHT, FEDERAL PRACTICE & PROCEDURE §

304 (3d ed. 2000) (citing United States v. Hilger, 867 F.2d 566,

568 (9th Cir. 1989); United States v. Layton, 855 F.2d 1388,

6

Section 3238 provides:

The trial of all offenses begun or committed upon the

high seas, or elsewhere out of the jurisdiction of any

particular State or district, shall be in the district in

which the offender, or any one of two or more joint

offenders, is arrested or is first brought; but if such

offender or offenders are not so arrested or brought

into any district, an indictment or information may be

filed in the district of the last known residence of the

offender or of any one or two or more joint offenders,

or if no such residence is known the indictment or

information may be filed in the District of Columbia.

18 U.S.C. § 3238.

19

1410-11 (9th Cir. 1988), overruled by Guam v. Ignacio, 10 F.3d

608, 612 n.2 (9th Cir. 1993)).

Accordingly, we affirm the judgment of conviction.