United States of America v. Mamadou Diallo, a/k/a MUHAMMED DIALLO a/k/a MUHAMMAD DIALLO a/k/a MOHAMMED DIALLO…

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
07-3641
UNITED STATES OF AMERICA
v.
MAMADOU DIALLO,
a/k/a MUHAMMED DIALLO a/k/a MUHAMMAD
DIALLO
a/k/a MOHAMMED DIALLO a/k/a AMADOU DIALLO,-
Appellant
___________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 05-cr-00324
District Judge: The Honorable Nora B. Fischer
Argued October 23, 2008
Before: RENDELL and SMITH, Circuit Judges,

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The Honorable Louis H. Pollak, Senior District Judge*
for the United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
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and POLLAK, District Judge*
Renee Pietropaolo (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222-0000
Counsel for Appellant
Robert L. Eberhardt
Laura S. Irwin (Argued)
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
(Filed: July 31, 2009)
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OPINION
______________
SMITH, Circuit Judge.
A petit jury convicted Mamadou Diallo of intentionally

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trafficking in goods and knowingly using a counterfeit mark on
or in connection with those goods in violation of 18 U.S.C. §
2320(a). The goods were handbags bearing a counterfeit “LV”
logo. The counterfeit “LV” logo was substantially
indistinguishable from the genuine “LV” logo owned by the
Louis Vuitton Malletier Corporation, a designer of luxury
handbags. Diallo contends that his conviction should be set
aside because the evidence was insufficient in that it failed to
establish his “use” of the counterfeit mark. Alternatively, Diallo
asserts that his conviction should be vacated because the jury
instruction defining the term “use” was incorrect. For reasons
explained below, we will affirm.
I.
On July 13, 2005, Pennsylvania State Trooper Timothy
Callahan stopped Diallo’s van on Interstate-80 because the
license plate was not illuminated. During the traffic stop,
Trooper Callahan observed numerous sealed plastic bags in the
van. After the traffic stop was concluded, Trooper Callahan
explained to Diallo that he was free to go, but proceeded to
mention that Interstate-80 is a corridor for the transportation of
drugs from New York. He asked if Diallo had any drugs or
firearms in the van. When Diallo denied possession of any such
items, Trooper Callahan asked him what was contained in the
plastic bags. Diallo replied that the bags contained clothes.
When Trooper Callahan asked to see the clothes, Diallo opened
the rear of the vehicle, pulled out a plastic bag, and opened it.

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Although the “Stop Counterfeiting in Manufactured1
Goods Act” amended paragraph (a) of § 2320 in March of 2006
to address the growth of counterfeiting in component parts, Pub.
L. No. 109-181, 120 Stat. 285 (March 16, 2006), we are
concerned here with the statute in effect when Diallo was
arrested in 2005. At that time, § 2320(a) made it a crime to
“intentionally traffic[] . . . in goods or services and knowingly
use[] a counterfeit mark on or in connection with such goods or
services . . . .” 18 U.S.C. § 2320(a) (2005).
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What Trooper Callahan observed were numerous handbags
bearing the “LV” mark. Knowing that Louis Vuitton handbags
were an exclusive item sold only by Louis Vuitton stores,
Trooper Callahan asked Diallo to whom the bags belonged.
Diallo admitted they belonged to him and showed Trooper
Callahan a business license from Indianapolis. Unimpressed,
Trooper Callahan arrested Diallo.
A grand jury for the United States District Court for the
Western District of Pennsylvania subsequently returned a one-
count indictment against Diallo, charging him with violating 18
U.S.C. § 2320(a). A jury trial commenced on April 10, 2006.1
The witnesses presented by the Government in its case in chief
included Trooper Callahan, Diallo’s passenger, Housseinou
Diakhaby, expert witnesses who explained that the handbags
were not genuine products of the Louis Vuitton Malletier
Corporation, and a previous customer of Diallo’s Indianapolis
store who related how she discovered that handbags she had

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purchased were not genuine Louis Vuitton handbags.
Diallo submitted his proposed jury instructions on the
second day of trial. Relying upon the Supreme Court’s decision
in United States v. Bailey, 516 U.S. 137 (1995), and its
interpretation of the word “uses” in 18 U.S.C. § 924(c), Diallo
argued that the jury had to find beyond a reasonable doubt that
he actively employed the counterfeit mark on or in connection
with the handbags by displaying or offering them for sale.
Consistent with this theory, Diallo moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29. He
claimed that because the handbags were sealed in bags in the
back of his van they had not been displayed or offered for sale.
The District Court reserved ruling on this motion.
During closing arguments, Diallo’s counsel conceded that
all but one of the elements of the offense were met — the
element of “use.” He argued that “use” required active
employment of the mark by showing or displaying the goods
bearing the counterfeit mark. On rebuttal, the government
argued that “use begins when [Diallo] bought them in New
York, carried them along the highway for purposes of using
them at his commercial venture to sell.” The prosecutor
explained to the jury that Diallo “uses them when he buys them
as inventory, as stuff he is going to take to his business in
Indianapolis, [and] put up on all of those racks.”
The Court instructed that the government had to prove

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beyond a reasonable doubt:
First, that the defendant trafficked or attempted to
traffic in goods.
Second, that such trafficking or attempt to traffic was
intentional.
Third, that the defendant used a counterfeit mark
on or in connection with the goods.
And fourth, that the defendant knew the marks
used on the goods were counterfeit.
The Court defined “traffics” and “counterfeit mark” in
accordance with their statutory definitions. Because the statute
does not define “use,” however, the jury instructions did not
elaborate on the meaning of that term. During its deliberations,
the jury submitted a question to the Court:
What is the definition of “use” as it pertains to
this trial . . . [and] the 3rd [and] 4th elements of
the charge? Is it pertaining to a physical
exchange or use of one or more senses?
The District Court excused the jury for the night, and the
following morning provided counsel an opportunity to respond
to the question. Defense counsel, again relying on the Supreme
Court’s decision in Bailey, urged that the instruction should “say

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affirmative acquisition is not enough to prove that the defendant
used a mark on or in connection with the goods, that possession
is not enough, that possession with intent to sell is not enough,
and that trafficking, as defined by statute, is not enough to prove
use . . . .”
After considering counsel’s arguments, the District Court
distinguished the Supreme Court’s decision in Bailey and
declared that
the prudent course is to provide the jury with a
dictionary definition of the word “use” both from
Black’s Law Dictionary and the Webster’s Third
New International Dictionary, Unabridged
Version, and the Court will reduce that instruction
into writing and make it part of the record . . . .
The instruction to the jury stated that the “Definition of the word
‘use’” is “[t]o make use of, to put into action or convert to one’s
service, to avail oneself of, to have recourse to or enjoyment of,
to employ.” Defense counsel objected to the portion of the
definition that said “to have recourse to or enjoyment of.”
Following this instruction, the jury deliberated briefly before
finding Diallo guilty of violating 18 U.S.C. § 2320(a). Post-
verdict, Diallo renewed his Rule 29 motion for judgment of
acquittal, challenging the sufficiency of the evidence for the

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After the jury was discharged, the jury foreman revealed2
to the bailiff that he had used a computerized device to access
a dictionary database to look up the definition of the word “use.”
The District Court brought this impropriety to the attention of
counsel and advised them that he would call the jury back to
conduct voir dire. Diallo’s counsel did not raise juror
misconduct as a ground for new trial. Diallo’s only post-verdict
motion was the renewed Rule 29 motion.
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element of use.2
The District Court denied Diallo’s renewed Rule 29
motion. It determined that there was sufficient evidence that
Diallo used the counterfeit mark on or in connection with goods,
stating that:
Diallo’s knowing, intentional acquisition of
handbags emblazoned with spurious marks for
sale at a profit at his store was more than
sufficient evidence to prove that he had “used”
counterfeit marks because he “avail[ed] [him]self
of [or] ha[d] recourse to or enjoyment of them” on
or in connection with goods or services for which
the genuine marks are actually registered.
Thereafter, the District Court sentenced Diallo to probation for
a term of three years, with a six month term of electronically
monitored home detention. In addition, Diallo was directed to

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pay restitution of $2,600.00 to the Louis Vuitton Malletier
Corporation.
This appeal followed. Diallo contends that the District
Court erred in denying the Rule 29 motion because the evidence
was insufficient to establish the “use” required by 18 U.S.C.
2320(a). In addition, Diallo contends that the Court’s
instruction on the element of “use” was error because it deprived
Diallo of his theory of the defense that his constructive
possession of the handbags contained in sealed bags within his
van did not constitute a use of the counterfeit mark on or in
connection with the handbags.
II.
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We exercise final order jurisdiction under 28 U.S.C. §
1291.
“We exercise plenary review to determine whether jury
instructions misstated the applicable law, but in the absence of
a misstatement we review for an abuse of discretion.” United
States v. Hoffecker, 530 F.3d 137, 173-74 (3d Cir. 2008)
(citation omitted). In conducting our review, our focus should
be on “the totality of the instructions and not a particular
sentence or paragraph in isolation.” United States v. Coyle, 63
F.3d 1239, 1245 (3d Cir. 1995).

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We “review the sufficiency of the evidence ‘in the light
most favorable to the government, and will sustain the verdict
if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Pritchard,
346 F.3d at 470 n.1 (internal citations omitted). Our review of
the District Court’s construction of the element of “use” is
plenary. Id.
III.
Diallo’s claim that the jury instruction was erroneous and
his contention that there was insufficient evidence both concern
the statutory interpretation of the term “uses” in § 2320(a). “The
role of the courts in interpreting a statute is to give effect to
Congress’s intent. . . . Because it is presumed that Congress
expresses its intent through the ordinary meaning of its
language, every exercise of statutory interpretation begins with
an examination of the plain language of the statute.” Rosenberg
v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001) (citations
omitted). Section 2320(a) makes it a crime to “intentionally
traffic[] . . . in goods or services and knowingly use[] a
counterfeit mark on or in connection with such goods or services
. . . .” 18 U.S.C. § 2320(a) (emphasis added). The plain
language of the statute, therefore, requires that the Government
prove not simply that a defendant has knowingly “used” a
counterfeit mark or in connection with a good or service, but
also that the defendant intentionally trafficked in the goods or
services. Thus, the Government must demonstrate both

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trafficking in goods and “use” of the counterfeit mark on or in
connection with goods. United States v. Giles, 213 F.3d 1247,
1249 (5th Cir. 2000); see also United States v. Song, 934 F.2d
105, 108-09 (7th Cir. 1991) (pointing out that “[t]he use of the
conjunctive ‘and’ preceding the term ‘counterfeit mark’
indicates congressional intent to prosecute one who traffics in
goods and who uses a counterfeit mark in connection with those
goods”). “Use” for purposes of § 2320(a), however, is not
defined by the statute. In the absence of a statutory definition,
we give “the words used their ordinary meaning.” Moskal v.
United States, 498 U.S. 103, 108 (1990) (quoting Richards v.
United States, 369 U.S. 1, 9 (1962)) (internal quotation marks
omitted).
According to Diallo, his conviction must be overturned
because the District Court erred in its interpretation of the term
“uses” in § 2320 because it failed to heed the guidance of the
Supreme Court in United States v. Bailey, that “‘use’ must
connote more than mere possession” and “that the Government
must show active employment of the firearm.” 516 U.S. at 143,
144. In Bailey, the Supreme Court considered the meaning of
the term “uses” in 18 U.S.C. § 924(c), which sets forth certain
penalties for “any person who, during and in relation to any
crime of violence or drug trafficking crime . . . uses or carries a
firearm . . . .” Id. at 138. The Court observed that the term
“‘[u]se’ draws meaning from its context,” and it “look[ed] not
only to the word itself, but also to the statute and the sentencing
scheme, to determine the meaning Congress intended.” Id. at

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143. In addition, the Court instructed that:
We start, as we must, with the language of the
statute. The word “use” in the statute must be
given its “ordinary or natural” meaning, a
meaning variously defined as “[t]o convert to
one’s service,” “to employ,” “to avail oneself of,”
and “to carry out a purpose or action by means
of.” . . . We consider not only the bare meaning of
the word but also its placement and purpose in the
statutory scheme. The meaning of statutory
language, plain or not, depends on context. . . .
Id. at 144-45 (internal quotations marks and citations omitted).
Consistent with these instructions, the Court noted that the
“various definitions of ‘use’ imply action and implementation,”
id. at 145, and pointed out that the statute applied to “two types
of conduct with a firearm: ‘uses’ or ‘carries,’” id. Mindful that
“Congress intended each of [the statutes’s] terms to have
meaning” and that judges should hesitate to treat as surplusage
any statutory terms, id. at 145, the Court reasoned:
We assume that Congress used two terms because
it intended each term to have a particular,
nonsuperfluous meaning. While a broad reading
of “use” undermines virtually any function for
“carry,” a more limited, active interpretation of
“use” preserves a meaningful role for “carries” as
an alternative basis for a charge.

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Id. at 146. It rejected the interpretation that “use” was
synonymous with “possession” and determined that the term
“uses” meant that “Congress intended ‘uses’ in the active sense
of ‘to avail oneself of.’” Id. at 150. The Court acknowledged
that this “active-employment understanding of ‘use’” included
“brandishing, displaying, bartering, striking with, and most
obviously, firing or attempting to fire a firearm[,]” as well as the
offender’s reference to the fact that he possesses a firearm. Id.
at 148. Although this reading of the term “use” was restrictive,
the Bailey Court concluded that it was consistent with both the
context of the term and Congress’ intent. Id. at 150.
The Supreme Court revisited the meaning of “use” in §
924(c) in United States v. Watson, 128 S. Ct. 579 (2007), which
considered whether a defendant’s swap of his drugs for a
firearm constituted “use” of the firearm “during and in relation
to any . . . drug trafficking crime[.]” Id. at 581 (quoting 18
U.S.C. § 924(c)). Again the Court noted that in the absence of
a statutory definition or a “definitive clue, the meaning of the
verb ‘uses’ has to turn on the language as we normally speak it.”
Id. at 583. The Court “looked for ‘everyday meaning’ . . .
revealed in phraseology that strikes the ear as ‘both reasonable
and normal.’” Id. (quoting United States v. Smith, 508 U.S. 223,
228, 230 (1993)). The Court agreed with the defendant that the
“ordinary meaning and the conventions of English” meant a
person did not use a firearm when he received it in exchange for
drugs. Id. at 586.

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Diallo cites to Watson as support for his contention that
the District Court erred in defining “use.” Focusing on the
prosecution’s closing argument that Diallo’s use began when he
purchased “them as inventory,” Diallo argues that Watson
illustrates that his mere receipt in trade of the handbags is
insufficient to establish “use” of the counterfeit mark in
connection with the goods. Diallo’s argument is flawed. It
assumes that the critical moment for purposes of this
prosecution was the commercial transaction in New York when
he purchased the handbags. The focus of this prosecution,
however, was on what Diallo did with the handbags bearing the
counterfeit Louis Vuitton mark after he purchased them. In
other words, Diallo’s purchase is relevant only to the extent that
at that point in time he acquired ownership and control over the
handbags.
Relying on Bailey’s interpretation of the word “uses” in
§ 924(c), Diallo asserts that “uses” in § 2320(a) requires active
employment of the counterfeit mark by displaying or offering
the handbag for sale. In United States ex rel. Chicago, New
York & Boston Refrigerator Co. v. Interstate Commerce
Commission, 265 U.S. 292, 295 (1943), the Supreme Court
acknowledged that “because words used in one statute have a
particular meaning they do not necessarily denote an identical
meaning . . . in another and different statute.” In the context of
§ 2320(a), the “use” is of the counterfeit marks. As the District
Court pointed out, there is little similarity between the “use” of
counterfeit marks as contemplated by § 2320(a) and the “use” of

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Paragraph (e)(1) of § 2320 provides:3
[T]he term “counterfeit mark” means --
(A) a spurious mark --
(I) that is used in connection with
trafficking in goods or services;
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firearms pursuant to § 924(c). The very nature of a firearm
makes the concept of its “use” as “active employment” readily
understandable. The “use” of a mark in connection with goods
does not. Thus, while Bailey’s interpretation of the word “uses”
may be informative, it is in no way controlling in the context of
§ 2320(a).
Although we find that factual distinctions render Bailey
and Watson inapposite to our inquiry, we follow Bailey’s
regimen for statutory interpretation and begin with the language
of the statute. Bailey, 516 U.S. at 144. Section 2320(a)
provides that “whoever intentionally traffics . . . in goods or
services, and knowingly uses a counterfeit mark on or in
connection with such goods or services” commits a crime. 18
U.S.C. § 2320(a). The statutory definition of the term “traffic”
is broad, meaning “transport, transfer, or otherwise dispose of,
to another, as consideration for anything of value, or make or
obtain control of with intent so to transport, transfer, or dispose
of . . . .” 18 U.S.C. § 2320(e)(2). “Uses,” however, is not
defined by the statute. The term appears in the statutory
definition of “counterfeit mark,” and each time “use” appears3

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(ii) that is identical with, or
substantially indistinguishable
from, a mark registered for those
goods or services on the principal
register in the United States Patent
and Trademark Office and in use,
whether or not the defendant knew
such mark was so registered; and
(iii) the use of which is likely to
cause confusion, to cause mistake,
to deceive; or
* * *
but such term does not include any mark or
designation used in connection with goods or
services of which the manufacturer or producer
was, at the time of the manufacture or production
in question authorized to use the mark or
designation for the type of goods or services so
manufactured or produced, by the holder of the
right to use such mark or designation.
18 U.S.C. § 2320(e)(1) (emphases added).
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it is in conjunction with a reference to either a spurious mark or
a genuine mark registered with the United States Patent and
Trademark Office.
On its face, the statute “refers to trafficking in ‘goods,’
and using the counterfeit mark ‘on or in connection with such

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goods.’” Giles, 213 F.3d at 1249. The Government must prove
two distinct actions: trafficking in goods and using the
counterfeit mark on or in connection with goods. The definition
section of the statute reiterates that the act of trafficking pertains
to the goods or services, and that the act of using relates to the
counterfeit mark. The use is of the counterfeit mark, not the
goods. This distinction is reinforced by the fact that the phrase
“use of the counterfeit mark” must be “on or in connection with
such goods.” Indeed, in Giles, the Tenth Circuit emphasized
that criminal liability under § 2320(a) would lie only if the “use”
of the counterfeit mark was in connection with the goods being
trafficked. That Court concluded that “the mere act of
trafficking in [patch sets or] counterfeit labels which are
unconnected to any goods” did not violate the statute that was in
effect in 1994. 213 F.3d at 1251.
Therefore, unlike § 924(c) in Bailey which proscribes
more than one type of conduct involving a firearm, i.e., the
using or carrying of a firearm under certain circumstances, 516
U.S. at 145, § 2320 does not present a statutory scheme
proscribing multiple types of conduct involving the same object.
Rather, § 2320 addresses only one type of conduct involving the
counterfeit mark, i.e., the use of it in connection with a good. It
is unnecessary, therefore, to restrict the meaning of the
expansive term “uses” in § 2320 as occurred in Bailey. See
Bailey, 516 U.S. at 146; see also Smith, 508 U.S. at 229 (noting
that “§ 924(c)(1)’s language sweeps broadly,” and is
“expansive”), and id. at 241 (Scalia, J., dissenting)

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(characterizing “use” as “elastic”).
Were we to adopt the meaning for the term “uses” urged
by Diallo, which focuses on displaying and offering the goods
bearing the spurious marks for sale, we would be rewriting the
text of the statute from “uses the counterfeit mark on or in
connection with such goods” to “uses the counterfeit mark on or
in connection with such goods in a sales transaction.” Yet,
neither the words “sale” nor “sell” appears in § 2320. Instead,
the statute more broadly references a commercial component by
incorporating the word “traffics,” and without limiting that term
to the point of sale. See 18 U.S.C. § 2320(e)(2) (defining
“traffics”). Because the Supreme Court has instructed that “[o]n
matters of statutory interpretation, ‘[o]ur task is to apply the text,
not to improve on it[,]’” Bd. of Educ. of Westside Cmty, Schools
v. Mergens By and Through Mergens, 496 U.S. 226, 241 (1990)
(quoting Pavelic & LeFlore v. Marvel Entm’t Group, 493 U.S.
120, 126 (1989)), we decline to read into § 2320(a) a
requirement that “use,” by itself, requires either a potential, or
an actual, sales transaction.
In our view, an ordinary and natural reading of “uses”
gives effect to Congress’s intent “to control and prevent
commercial counterfeiting” by reaching a stream of illegal
commerce and not simply its point of sale. See Pub. L. No. 104-
153, 110 Stat. 1386 (July 2, 1996) (specifying in its
Anticounterfeiting Consumer Protection Act of 1996 the
purpose of the Act). Regardless of whether the goods bearing

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the counterfeit marks are physically located in a kiosk at a
shopping mall or in a remote warehouse, the trafficker may still
be prosecuted if he knowingly uses the mark on or in connection
with a good. Diallo’s reading, however, would limit
enforcement to prosecuting vendors who have the counterfeit
goods displayed and ready for sale.
We find support for this reading of the term “uses” in §
2320(a) in United States v. Farmer, 370 F.3d 435 (4th Cir.
2004), and United States v. Song, 934 F.2d at 106. In each case,
the defendant’s conviction for violating § 2320(a) was affirmed
even though the goods bearing the counterfeit marks were
neither displayed for sale nor physically located at a store or
shop. For example, in Farmer, the Fourth Circuit upheld the
defendant’s conviction under § 2320(a) based on his
warehousing of thousands of shirts bearing counterfeit brand
name logos of Nike and Adidas. 370 F.3d at 437. In Song, the
Seventh Circuit affirmed Song’s conviction on five counts of
trafficking in counterfeit goods based on not only her displaying
counterfeit Gucci watches at her flea market stand, but also
because she had watches bearing four other counterfeit marks
stored in her van.
We conclude, based on the statutory text of § 2320(a),
that we need not restrict the expansive statutory term “uses” as
Diallo suggests. Accordingly, because the commercial aspect of
a defendant’s conduct is encompassed in the element of
trafficking, we reject Diallo’s argument that the term “uses” in

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§ 2320(a) means that the government must show active
employment of the counterfeit mark at a point of sale.
Having concluded that an ordinary and natural reading of
“uses” is appropriate in the context of § 2320, we consider the
definition crafted by the District Court in response to the jury’s
inquiry. Because Diallo contends the instruction was legally
incorrect, we exercise plenary review. United States v.
Zehrbach, 47 F.3d 1252, 1260 (3d Cir. 1995). In conducting our
review, we must be mindful “that a single instruction to a jury
may not be judged in artificial isolation, but must be viewed in
the context of the overall charge.” Cupp v. Naughten, 414 U.S.
141, 146-47 (1973). In reviewing the charge as a whole, we
consider whether the instruction regarding the meaning of “use”
“strikes the ear as ‘both reasonable and normal’” as required by
Watson, 128 S.Ct. at 583.
Consistent with the Bailey Court’s consultation of
dictionaries, 516 U.S. at 145, the District Court considered
definitions from Black’s Law Dictionary 1382 (5th ed. 1979),
and Webster’s Third New International Dictionary 2523 (3d ed.
1993). Black’s Law Dictionary defines the term as “[t]o put or
bring into action or service; to employ for or apply to a given
purpose.” Id. at 1382. The Black’s definition further explicates
the term in a “[n]on-technical sense,” such that “[t]he ‘use’ of
a thing means that one is to enjoy, hold, occupy, or have some
manner of benefit thereof.” Id. Among the numerous entries
explaining the word “use” in Webster’s Third New

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International Dictionary is the definition: “to put into action or
service; have recourse to or enjoyment of; Employ.” Id. at 2523.
Based on these definitions, the District Court combined the two
dictionary definitions to fashion the definition it provided to the
jury: “To make use of, to put into action or convert to one’s
service, to avail oneself of, to have recourse to or enjoyment of,
to employ.”
Diallo takes issue only with the language “to have
recourse to or enjoyment of,” which were not part of the
definition of “use” considered by the Bailey Court. 516 U.S. at
145. In his view, this language renders the definition “overly
broad and beyond any ordinary use of the word,” as it allowed
the jury to find him guilty of the offense based on his
constructive possession of the goods bearing the counterfeit
mark. As noted, Watson instructs that we should consider
whether the definition used by the District Court “strike[s] the
ear as reasonable and normal.” 128 S.Ct. at 583 (internal
quotation marks and citation omitted). In our view, the
definition crafted by the District Court from Black’s Law
Dictionary and Webster’s Third New International Dictionary
is “reasonable and normal” in describing the use of trademarks,
a form of intellectual property.
The intended purpose of a trademark, be it genuine or
spurious, is to convey that the good meets the design and
manufacturing specifications of the lawful owner of the
trademark, not only at the time the mark is first affixed or

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attached to the good, but throughout the lifetime of that good.
See 15 U.S.C. § 1127 (defining “trademark” and specifying that
it is “to identify and distinguish his or her goods, including a
unique product, from those manufactured or sold by others . . .
.”). This purpose informs our analysis. Here, the counterfeit
“LV” logo was used on or in connection with a good by being
affixed to it, i.e., by being attached to a handbag. The “LV”
logos were converted to Diallo’s service, and employed by being
attached, sewn, embossed, imprinted or connected to the
handbags in order to distinguish them as genuine Louis Vuitton
merchandise. The merchandise in the back of the van that
Diallo had recourse to and could avail himself of was not simply
handbags, but handbags bearing the exclusive Louis Vuitton
“LV” logo. As a result, even though these handbags bearing the
counterfeit “LV” logos were not yet in Diallo’s Indianapolis
store, they were a part of his inventory. Diallo’s ownership of
the handbags bearing the “LV” logos enabled him to represent
to others – falsely – that he owned genuine Louis Vuitton
handbags. Diallo was able to enjoy having an inventory that
contained seemingly authentic Louis Vuitton handbags,
knowing that they would command a greater purchase price than
a bag not bearing the counterfeit mark.
These explanations, which each draw on the definition
provided to the jury in Diallo’s case, are consistent with the
natural and ordinary meaning of the term “use” as it pertains to
trademarks. Accordingly, we can find no error in the District
Court’s definition of “use” and we conclude that the jury

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23
charge, taken as a whole, accurately submitted the issues to the
jury. The District Court’s refusal to delete the language
“recourse to and enjoyment of” in its definition of the term
“use” did not constitute an abuse of discretion.
With the District Court’s definition of “use” in mind, we
turn to whether there was sufficient evidence of Diallo’s “use”
of the counterfeit marks on or in connection with the goods to
sustain his conviction. As explained above, the evidence was
sufficient for a jury to conclude that Diallo “used” the
counterfeit “LV” logos on or in connection with the handbags.
As Trooper Callahan testified at trial, Diallo admitted that the
handbags, which bore the counterfeit “LV” logos, were for his
store in Indianapolis. Though packaged in plastic bags during
transit, the marked handbags were part of Diallo’s inventory and
he was able to enjoy the benefits of the counterfeit “LV” marks
that were on the handbags. This was sufficient for a jury to find
the element of “use” for purposes of § 2320(a).
For the reasons set forth above, we will affirm the
judgment of the District Court.
POLLAK, District Judge, concurring.
I concur in the court’s judgment, but I get there via a
somewhat different route. I agree with the court’s construction

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24
of the governing statute. My concern has to do with what the
jury was instructed by way of definition of the statute. The court
approves the District Court’s definition of the verb “use,” as
contained in a supplemental jury instruction (an instruction to
which Diallo took exception in part) responsive to the jury’s
question as to the intended meaning of “use.” In my view, the
definition contained in the supplemental instruction was, in one
respect, flawed. But I conclude that the error was harmless, and
hence I agree with the court that Diallo’s conviction and
sentence should be affirmed.
I.
As the court’s opinion makes clear, defendant Mamadou
Diallo’s troubles began when, on July 13, 2005, while Diallo
was driving from New York to Indianapolis on Interstate-80, his
forward progress was halted by Pennsylvania State Trooper
Timothy Callahan, who perceived that Diallo’s van did not
appear to be in conformity with the law’s requirement that a
license plate be illuminated. Callahan, apparently concerned
about the possible transport of drugs and firearms, inquired what
was in the several plastic bags in Diallo’s van. Diallo, after
explaining that the bags contained clothes, at Callahan’s request
(but, apparently, not command) opened one of the bags, which
turned out not to contain clothes but handbags bearing the
initials “LV,” the mark of expensive Louis Vuitton products.
Diallo was then arrested by Callahan. Not long after, Diallo
was indicted on one count of violating 18 U.S.C. Section

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Diallo was convicted pursuant to § 2320(a) as it stood4
in 2005. In 2006 Congress amended §2320(a); the amended
statute (1) follows its predecessor in making it a crime to
“intentionally traffic[ ] or attempt [ ] to traffic in goods or
services and knowingly use [ ] a counterfeit mark in connection
with such goods or services,” but (2) then goes on to list at
considerable length a variety of goods the specification of which
suggests that they are legislatively perceived as goods that are
particularly likely to be targets of counterfeiters.
25
2320(a). §2320(a) made it a crime punishable by fine and
imprisonment to “intentionally traffic [ ] or attempt [ ] to traffic
in goods or services and knowingly use [ ] a counterfeit mark in
connection with such goods or services.” Tried to a jury, Diallo4
was found guilty. He was sentenced to three years of probation,
six months of which was to consist of home detention.
The evidence at trial established that Diallo had
purchased the counterfeit Louis Vuitton handbags in New York
and was, when arrested, en route to Indianapolis to sell the
handbags at his retail store.
As the court explains, the District Court, in charging the
jury, outlined, concisely and with precision, the elements of the
offense which it was incumbent upon the government to prove:
First, that the defendant trafficked or attempted to
traffic in goods. Second, that such trafficking or

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26
attempt to traffic was intentional. Third, that the
defendant used a counterfeit mark on or in
connection with the goods. And fourth, that the
defendant knew the marks used on the goods were
counterfeit.
However, prior to the jury charge, the government’s
burden of proof had been lessened by defendant’s
acknowledgment, in closing argument, that the single issue in
dispute was whether Diallo, as of the time of his arrest, had,
within the intendment of the statute, “use[d]” the counterfeit
marks. Diallo’s position was that there could have been no use,
within the terms of §2320(a), until counterfeit goods were
offered for sale. In opposition, the government contended that
culpable “use” commenced when the counterfeit handbags were
purchased in New York with a view to subsequent sale.
Unsurprisingly, the jury, shortly after it started deliberating,
posed a question:
What is the definition of “use” as it pertains to
this trial between the dates of July 11, 2005 and
July 13, 2005, and the third and fourth elements
of the charge? Is it pertaining to a physical
exchange or use of one or more senses.
After substantial consultation with counsel, the District
Court undertook to answer the jury’s question the next day.
Weaving together two dictionary definitions, the District Court
explained “use” as follows:

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To make use of, to put into action or convert to
one’s service, to avail oneself of, to have recourse
to or enjoyment of, to employ.
Defendant objected to inclusion of the phrase “to have
recourse to or enjoyment of.” Defendant’s objection to “have
recourse to” is, in my judgment, without merit. But his
objection to “have. . .enjoyment of” is, in my judgment, soundly
based.
“[T]he meaning of the verb ‘uses’ has to turn on the
language as we normally speak it.” United States v. Watson,
128 S. Ct. 579, 583 (2007). In my view, “put into action,”
“convert to one’s service,” “avail oneself of,” “have recourse
to,” and “employ,” satisfy this standard. “[H]ave. . .enjoyment
of” does not.
It is true that Webster’s Third New International
Dictionary 754 (3d ed. 1993) includes, in the definition of
“enjoyment,” the phrase “possession and use (the [enjoyment]
of civil rights).” But this is a secondary meaning. What
Webster’s lists as the primary meaning of “enjoyment” is
(unsurprisingly) “the action or state of enjoying something: the
deriving of pleasure or satisfaction (as in the possession of
anything).” This primary meaning is “language as we normally
speak it.” Watson, supra, 128 S. Ct. at 583. Presenting to a jury
the phrase “have. . .enjoyment of” as a synonym of “use,”
without explaining that the phrase is being employed in its
secondary meaning – without, in short, anchoring the phrase in
a limiting and clarifying context – has the potential to mislead.

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My concern about the ambiguity of “have. . .enjoyment
of,” unilluminated by instructive context, may be illustrated by
an example, drawn on the verb “enjoy.” One may say: “The
lieutenant governor enjoys presiding over the state senate.” One
may also say: “The lieutenant governor enjoys qualified
immunity.” These two sentences mean very different things.
But the different meanings are signaled by the different settings
in which the verb “enjoys” appears. When the phrase “have. .
.enjoyment of” is employed without adornment or elaboration it
seems a reasonable surmise that the attentive audience will
suppose “have. . .enjoyment of” carries its primary meaning, for
that is “language as we normally speak it.”
This is why the inclusion of the phrase “have. .
.enjoyment of” in the supplementary language supplied to the
jury seems to me to have been more likely to confuse than to
illuminate. Accordingly, when defendant objected to the phrase
it should have been excised.
II.
Under the caption “Harmless Error,” Rule 52(a) of the
Federal Rules of Criminal Procedure provides:
Any error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.
A decade ago Chief Justice Rehnquist, speaking for the
Court, observed that, “Although this Rule by its terms applies to
all errors where a proper objection is made at trial, we have
recognized a limited class of fundamental constitutional errors

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Langford draws on Government of Virgin Islands v.5
Toto, 529 F.2d 278 (3d Cir. 1976), decided more than thirty
years ago. The opinion of Judge Aldisert, joined by Judges Weis
and Garth, is notable in that it builds upon, and expressly pays
tribute to, the harmless-error analysis propounded by Roger J.
Traynor, one of the most revered and influential state-court
judges of the twentieth century. As Judge Aldisert put it:
“Roger J. Traynor, the distinguished former Chief Justice of
California, offers the wisdom of profound experience in
approaching the basic problem from the viewpoint of harmless
error.” Id. at 284.
29
that ‘defy analysis by harmless error standards.’ . . . Errors of
this type are so intrinsically harmful as to require automatic
reversal (i.e., ‘affect substantial rights’) without regard to their
effect on the outcome. For all other constitutional errors,
reviewing courts must apply Rule 52(a)’s harmless-error
analysis and must ‘disregar[d]’ errors that are ‘harmless beyond
a reasonable doubt’.” Neder v. United States, 527 U.S. 1, 7
(1999). However, appellate review of non-constitutional errors
does not call for beyond-a-reasonable-doubt scrutiny.
“According to our traditional harmless error standard, a non-
constitutional error is harmless when ‘it is highly probable that
the error did not prejudice the defendant’.” United States v.
Langford, 516 F. 3d 205, 215 (3d Cir. 2008).5
I have argued above that it was error for the District
Court, in responding to the jury’s request for clarification as to
the meaning of the verb “use,” to have included among several
defining verbal phrases the phrase “have. . .enjoyment of.” If

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this was error, it was of course non-constitutional error. Is it
“‘highly probable that the error did not prejudice’ the
defendant”? Manifestly, the answer is “Yes.” If the phrase be
deemed to have carried any weight, it could only have worked
in Diallo’s favor. The reason for positing that the phrase might
have caused some confusion in a juror’s mind is that, given the
primary meaning of “enjoyment,” a juror might conceivably
have supposed that it was incumbent on the government to show
that Diallo had been gratified by – i.e., had taken pleasure in –
the counterfeit marks, and that in the absence of such a showing
the government had not proved its case. Thus, what I believe to
have been error was most assuredly harmless. And I therefor
concur in the judgment of the court affirming the judgment of
the District Court.

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