United States v. Farag , 41 F. App'x 338 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 28 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 01-1559
AHMED SABRY ABDUL AZIZ (D.C. No. 01-CR-247-D)
FARAG, aka Luciano Gilbert (D. Colorado)
Cisneros,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, EBEL and LUCERO, Circuit Judges. **
On August 24, 2001, a federal jury convicted Defendant-Appellant Ahmed
Sabry Abdul Aziz Farag of one count of making a false statement in an
application for a passport, in violation of 18 U.S.C. § 1542, and the United States
District Court for the District of Colorado subsequently sentenced Mr. Farag to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
time served and three years of supervised release. On direct appeal, Mr. Farag
argues that his conviction should be reversed because (1) the government did not
present sufficient evidence to support his conviction and (2) the district court
erroneously excluded extrinsic evidence of a prior inconsistent statement made by
an important government witness. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291, we find both claims unavailing and affirm Mr. Farag’s conviction.
I.
In 1997, Mr. Farag, a native of Egypt, illegally entered the United States.
Two years later, he moved to Colorado; shortly thereafter, he began working as a
cook at a restaurant, where he worked with Angela Kraydie, the former wife of
the restaurant’s co-owner, Sami Kraydie. In September 2000, Mr. Farag and Ms.
Kraydie went to a Denver, Colorado, post office and submitted a passport
application in the name of Luciano Gilbert Cisneros, Ms. Kraydie’s late brother.
According to trial testimony, Ms. Kraydie prepared the application, R.O.A. Vol. 3
at 60-63, Mr. Farag signed the name Luciano Gilbert Cisneros on the document,
R.O.A. Vol. 4 at 349, and Luciano Gilbert Cisneros’s birth certificate was
submitted with the application as proof of identity and citizenship. R.O.A. Vol. 2
at 30, 36, 49-50.
Approximately one month before submitting the passport application, Mr.
Farag, with the assistance of Ms. Kraydie, unsuccessfully applied for a social
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security card and a Colorado state identification card using the name Luciano
Gilbert Cisneros. R.O.A. Vol. 3 at 114-15, 296. After these efforts proved
unfruitful, Mr. Farag, again with the help of Ms. Kraydie, obtained an unofficial
identification card from a Denver business using the name Luciano Gilbert
Cisneros. R.O.A. Vol. 2 at 54; Vol. 4 at 297-99.
On June 20, 2001, a federal grand jury indicted Mr. Farag for making a
false statement on a passport application, in violation of 18 U.S.C. § 1542, and
for fraudulently using a social security number, in violation of 42 U.S.C.
§ 408(a)(7)(B). R.O.A. Vol. 1, Doc. 12. A jury subsequently convicted Mr.
Farag of making a false statement on a passport application, but acquitted him of
the charge concerning the social security number. Id., Doc. 65. This appeal
followed.
II.
On appeal, Mr. Farag first argues that the government failed to present
sufficient evidence demonstrating that he “willfully and knowingly made a false
statement on a passport application.” Aplt. Br. at 10. In making this argument,
Mr. Farag raises many of the claims he asserted previously at trial, including that
he knows and speaks very little English, that Ms. Kraydie prepared the passport
application, and that Ms. Kraydie told him that the passport application was, in
fact, an application to change his name. Id.
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The core of Mr. Farag’s argument, however, is that the government’s case
depended upon contradictory and inconsistent evidence. He points out, for
example, that a report prepared by one State Department agent indicated that he
spoke poor English, while another State Department agent testified that Mr. Farag
“was able to speak and understand English,” R.O.A. Vol. 240-41, 243, and he
notes that several defense witnesses testified as to his poor proficiency in English.
Aplt. Br. at 11-12. Mr. Farag attacks particularly Ms. Kraydie’s trial testimony.
In his view, Ms. Kraydie, who admitted that she filled out the false passport
application, assisted Mr. Farag in his unsuccessful efforts to obtain a social
security card and a state identification card in the name of Luciano Gilbert
Cisneros, and was convicted of a felony in 1964, lacked credbility. See ,e.g.,
Aplt. Br. at 13 (arguing that “the evidence to prove [Mr. Farag’s] guilt was
insufficient to prove his guilt beyond a reasonable doubt” because Ms. Kraydie
was not credible). In light of Ms. Kraydie’s diminished credibility and the
conflicting evidence in the record, Mr. Farag seems to suggest, Ms. Kraydie’s
testimony that he spoke English well and that he wanted a passport so that he
could travel to Egypt and reenter the United States, R.O.A. Vol. 3 at 96, 107-08,
should be discounted. As he succinctly explains in his reply brief, “Mr. Farag
does not dispute that Ms. Kraydie’s testimony supported the government’s theory
of the case and conflicted with his; however, he contends that no reasonable jury
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could have found her testimony credible enough to find guilt beyond a reasonable
doubt.” Reply Br. at 2.
As a general rule, we treat sufficiency of the evidence claims as legal
questions that are reviewed de novo. United States v. McKissick, 204 F.3d 1282,
1289 (10th Cir. 2000). In conducting this de novo review, “we ‘ask only whether
taking the evidence–both direct and circumstantial, together with the reasonable
inferences to be drawn therefrom–in the light most favorable to the government, a
reasonable jury could find the defendant guilty beyond a reasonable doubt.’” 1 Id.
1
In this case, the government points out that Mr. Farag moved for an
acquittal under Rule 29 of the Federal Rules of Criminal Procedures after the
prosecution rested its case, R.O.A. Vol. 3 at 255-56, a motion the district court
denied, id. at 265, but then failed to renew his motion at the close of all the
evidence. R.O.A. Vol. 4 at 261; see also Fed. R. Crim. P. 29(a) (providing, in
relevant part, that a defendant may move “for a judgement of acquittal” after the
government closes its case “if the evidence is insufficient to sustain a
conviction”). Because Mr. Farag did not renew his Rule 29(a) motion, the
government argues, Mr. Farag waived his sufficiency of the evidence claim,
thereby limiting our standard of review to one for plain error. Aple. Br. at 16.
The government is technically correct that the Tenth Circuit follows “the
waiver rule,” treating a defendant’s failure to renew a Rule 29(a) motion at the
close of all the evidence as a waiver of a sufficiency of the evidence claim.
United States v. Bowie, 892 F.2d 1494, 1496 (10th Cir. 1990). Where waiver
occurs, the government rightly notes, we will generally limit our “review [of the
claim] for plain error under Fed.R.Crim.P. 52(b).” Id.; see also United States v.
Cox, 929 F.2d 1511, 1513 (10th Cir. 1991) (same) (citing United States v. Parrott,
434 F.2d 294, 295 (10th Cir. 1970)). In the sufficiency of the evidence context,
however, we have explained that a defendant’s waiver “is of little moment,”
Bowie, 892 F.2d at 1496, because, although “plain error language is sometimes
used, . . . the standard actually applied is ‘essentially the same as if there had
been a timely motion for acquittal.’” Cox, 929 F.3d at 1514 (quoting Bowie, 892
(continued...)
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(quoting United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1997)
(quotation marks and citation omitted)). During our review, we will not revisit
questions of witness credibility or re-weigh the evidence before the jury. See
McKissick, 204 F.3d at 1289-90 (“It is for the jury, as the fact finder, to resolve
conflicting testimony, weigh the evidence, and draw inferences from the facts
presented.”); United States v. Beers, 189 F.3d 1297, 1301 (10th Cir. 1999)
(explaining that appellate courts evaluating the sufficiency of the evidence will
not “‘second guess’” jury determinations as to the credibility of witnesses or the
weight of the evidence) (quoting United States v. Yoakam, 116 F.3d 1346, 1349
(10th Cir. 1997)).
Turning to the facts of this case, we find Mr. Farag’s sufficiency of the
evidence argument unpersuasive. First, to the extent Mr. Farag’s challenge
depends upon Ms. Kraydie’s lack of credibility, see Reply Br. at 2
(acknowledging that Ms. Kraydie’s testimony supported the government’s case,
but contending that Ms. Kraydie lacked credibility), his argument fails, for this
1
(...continued)
F.2d at 1497) (further citations omitted). Consequently, even when we apply the
plain error standard of review to a sufficiency of the evidence claim, we still ask
“whether, taking the evidence–both direct and circumstantial, together with the
reasonable inferences to be drawn therefrom–in the light most favorable to the
government, a reasonable jury could find the defendant guilty beyond a
reasonable doubt.” United States v. Beers, 189 F.3d 1297, 1301 (10th Cir. 1999)
(quotation marks omitted); see also Cox, 929 F.2d at 1514 (identifying standard
applied in the plain error context); Bowie, 892 F.2d at 1497 (same).
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court will not evaluate witness credibility when considering a sufficiency of the
evidence appeal. McKissick, 204 F.3d at 1289; Beers, 189 F.3d at 1301; United
States v. Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997). Second, after reviewing
the record, we believe that the government presented sufficient evidence to
sustain Mr. Farag’s conviction for knowingly and willfully making a false
statement in a passport application. Ms. Kraydie, for example, testified that Mr.
Farag directly spoke in English with officials at the Social Security
Administration office and at the Colorado Department of Motor Vehicles, R.O.A.
Vol. 3 129-31, 134, and that a private tutor taught Mr. Farag English twice a week
while he was working Ms. Kraydie’s restaurant. Id. at 114. In addition, a State
Department agent testified that Mr. Farag spoke English during his interview,
appeared to understand what was said to him in English, and handed over his
Egyptian passport when an agent asked him, in English, to do so. R.O.A. Vol. 3
at 238-39. Other witnesses similarly described Mr. Farag as possessing enough
English proficiency to negotiate simple transactions, such as renting an apartment.
R.O.A. Vol. 3 at 223-24.
Additional circumstantial evidence adduced at trial, contrary to Mr. Farag’s
claims, reinforces the government’s case. For instance, Mr. Farag admitted that
he studied English for six years while in school in Egypt, focusing on “the basics
and grammar of the English language.” R.O.A. Vol. 4 at 312. Furthermore, Mr.
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Farag admitted that he studied French for three years during his schooling in
Egypt, id. at 311-12, and conceded that his Egyptian passport, contained the
French term for passport, “passeport.” 2 Id. at 352-53.
A reasonable jury could also have inferred from other circumstantial
evidence produced at trial that Mr. Farag submitted the false passport application
as part of larger, unlawful attempt to gain legitimate immigration status in the
United States. Besides Mr. Farag’s unsuccessful efforts to obtain a social security
card and a state identification card, the government revealed that Mr. Farag
briefly was married to an English speaking US citizen, whom he did not love and
whom he knew for only three days prior to the marriage. R.O.A. Vol. 4 at 316.
In light of all this evidence, as well as other evidence in the record, we
conclude that a reasonable jury could have found Mr. Farag guilty of knowingly
and willfully submitting a false passport application. Beers, 189 F.3d 1301-02.
Accordingly, we reject his insufficiency of the evidence argument.
2
Mr. Farag contends that his schooling in French and English is insufficient
to support the jury’s verdict because the government produced “no evidence . . .
[showing] the number of hours of study, how well Mr. Farag performed, or the
nature of the curriculum.” Reply Br. at 3-4. We find this argument
unconvincing. Looking at the evidence in the light most favorable to the
government, we believe a reasonable jury could infer from Mr. Farag’s years of
study that he gained a sufficient proficiency to understand that he was signing and
submitting a passport application.
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III.
Mr. Farag’s other claim on appeal is that the district court erred in
preventing him from introducing extrinsic evidence of a prior out-of-court
statement by Ms. Kraydie that was allegedly inconsistent with her trial testimony.
During the trial, Mr. Farag’s attorney attempted to question a defense witness,
Mouhaddin Al Dabbas, about a prior out-of-court statement he overheard Ms.
Kraydie make, in which she allegedly told Mr. Farag that the passport application
was, in fact, an application to change his name. R.O.A. Vol. 4 at 267. During the
trial, according to Mr. Farag, Ms. Kraydie testified that she did not make this
statement. 3 The Assistant United States Attorney prosecuting the case promptly
3
Mr. Farag does not directly quote the portion of Ms. Kraydie’s testimony
that he believes contradicts the prior out-of-court statement that Mr. Al Dabbas
would have described. It appears, however, that he thinks the contradiction
occurred during the following exchange on cross-examination:
Q [by defense counsel Warren Williamson]. Now, you told Ahmed
Farag when you were going through this process of getting
documents and filling out this application . . . that you were doing
that to help him change his name to a more American-sounding
name, didn’t you?
A [by Ms. Kraydie]. The purpose was not just to get him an
Americanized sounding name. The purpose was so that he would
obtain status so he could visit his family and return back.
....
Q. If you told us the truth today about what you said to Ahmed, that
(continued...)
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objected, arguing that Mr. Al Dabbas’s testimony was inadmissible hearsay, and
the district court immediately sustained the objection. Id. Mr. Farag’s attorney
then explained that he thought that the statement could be admitted as
“[i]mpeachment of what Miss Fradyia [sic] said,” an argument that the district
court rejected on the grounds that the evidence was “still an out-of-court
statement offered for the truth of the matter asserted therein.” Id. Mr. Farag’s
attorney again attempted to clarify the purpose for which he was offering the out-
of-court statement, explaining that “an out-of-court statement made in
3
(...continued)
this form was to be used to change his name to a more American-
sounding name, there would be no one to prosecute in this case but
you; isn’t that true?
A. He was aware of what we were doing.
R.O.A. Vol. 4 at 161-62; see Aplt. Br. at 19 (citing pages 161-62 of volume four
of the record on appeal). Although Ms. Kraydie never directly denies telling Mr.
Farag that the application was to change his name, the government apparently
concedes that Ms. Kraydie’s testimony would have been inconsistent with the
prior out-of-court statement heard by Mr. Al Dabbas. See Aple. Br. at 31-32. Cf.
United States v. Rogers, 549 F.2d 490, 496 (8th Cir. 1976) (“A statement’s
inconsistency may be determined from the circumstances and is not limited to
cases in which diametrically oppose assertions have been made. Thus,
inconsistencies may be found in changes in position; they may be implied through
silence; and they may be found in denial of recollection.”); Dennis v. United
States, 346 F.2d 10, 17-18 (10th Cir. 1965) (“In determining variances or
inconsistencies we should remember that flat contradictions are not the only test
for inconsistency. Omissions of fact or even contrast in emphasis or different
order of treatment may be relevant to the process of testing credibility of a
witness’ trial testimony.”), rev’d on other grounds by 384 U.S. 855 (1966).
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contradiction to what the witness said under oath comes in” and that the extrinsic
evidence was being offered as “[i]mpeachment by prior inconsistent statement.”
Id. When the district court pressed Mr. Farag’s attorney as to what specific
provision of the Federal Rules of Evidence he was invoking, however, the
attorney cited Rule 801(d)(1), which provides, in relevant part, that prior
statements “given under oath subject to the penalty of perjury at a trial, hearing or
other proceeding, or in a deposition” by a witness testifying at the current
proceeding, and who is “subject to cross-examination concerning the statement,”
are not considered hearsay and may be admitted for the truth of the matter
asserted in the statement. Fed. R .Evid. 801(d)(1)(A). The district court rejected
the invocation of Rule 801(d)(1), apparently on the grounds that Ms. Kraydie, the
witness Mr. Farag was attempting to impeach, was not then testifying. R.O.A.
Vol. 4 at 268.
On appeal, Mr. Farag concedes that his attorney erred by invoking Rule
801(d)(1) when arguing for the admission of the testimony, Aplt. Br. at 16; Reply
Br. at 7, but, citing to Rule 613(b), he nonetheless contends that the district court
committed reversible error in not admitting the inconsistent statement for
impeachment purposes. 4 Aplt. Br. at 16. Sometime later, after a different witness
4
Rule 613(b) states: “Extrinsic evidence of a prior inconsistent statement by
a witness is not admissible unless the witness is afforded an opportunity to
(continued...)
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had taken the stand and Mr. Al Dabbas had been excused, R.O.A. Vol. 4 at 279,
Mr. Farag’s attorney made an offer of proof that Mr. Al Dabbas would have
testified that he heard Ms. Kraydie state that the passport application was a
document “to change Mr. Farag’s name to an American name.” R.O.A. Vol. 4 at
305.
Normally, “[w]e review questions concerning the admission of evidence
under an abuse of discretion standard. ‘In reviewing a court’s determination for
abuse of discretion, we will not disturb the determination absent a distinct
showing that it was based on a clearly erroneous finding of fact or an erroneous
conclusion of law or manifests a clear error in judgment.’” United States v.
Mitchell, 113 F.3d 1528, 1531 (10th Cir. 1997) (quoting Cartier v. Jackson, 59
F.3d 1046, 1048 (10th Cir. 1995)). Even if we conclude that a district court
erroneously excluded certain evidence, that error will only result in reversal if we
conclude that the error was not harmless and “had a substantial influence on the
jury’s verdict in the context of the entire case, or leaves one in grave doubt
whether it had such an effect.” Id. at 1532. Where, however, a party
inadequately objects to the exclusion of testimony or makes an insufficient offer
(...continued)
4
explain or deny the same and the opposite party is afforded the opportunity to
interrogate the witness thereon, or the interests of justice otherwise require.” Fed.
R. Evid. 613(b).
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of proof, we review the district court’s exclusion of the evidence under the more
deferential plain error standard. 5 United States v. Norman T., 129 F.3d 1099,
1106 (10th Cir. 1997).
In this case, we doubt Mr. Farag properly preserved his claim for appellate
review. Although his attorney initially suggested that the prior inconsistent
testimony would be used to impeach Ms. Kraydie’s prior testimony, his attorney,
when pressed by the district court, directed the court to an evidentiary rule that
would have admitted the evidence for grounds other than impeachment, an error
he now acknowledges. 6 See United States v. Pino-Noriega, 189 F.3d 1089, 1097
5
Under the plain error standard, “before an appellate court can correct an
error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that
‘affect[s] substantial rights.’” United States v. Johnson, 520 U.S. 461, 466-67
(1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). “If all three
conditions are met, an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the fairness integrity, or
public reputation of judicial proceedings.” Id. at 466-67 (internal quotation
marks and citation omitted).
6
Mr. Farag argues that notwithstanding his invocation of Rule 801(d)(1), he
adequately preserved his Rule 613(b) argument on appeal. As Mr. Farag points
out, his attorney did suggest during his colloquy with the district court that the
evidence was being offered for impeachment purposes. R.O.A. Vol. 4 at 267. To
buttress his preservation argument, Mr. Farag invokes our decision in United
States v. Tisdale, 248 F.3d 964 (10th Cir. 2001), in which we concluded that an
attorney adequately raised an objection to a district court’s sentencing decision,
even though the attorney’s objection was “not a model of specificity” and failed
to cite the specific United States Sentencing Guideline provision at issue. Id. at
976. The argument by Mr. Farag’s trial counsel, however, went beyond the lack
of specificity described in Tisdale, and it may have reinforced the district court’s
belief that the out-of-court statement was being offered to prove the truth of the
(continued...)
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(9th Cir. 1999) (noting that a party fails to preserve an objection on appeal when
he makes the wrong specific objection below); United States v. Mendoza-Salgado,
964 F.2d 993, 1008 (10th Cir. 1992) (explaining that a party’s objection to the
admission of evidence must identify the specific ground for the objection, if the
ground was not clear from the context in which the objection was made); Fed. R.
Evid. 103(a) (same). Similarly, we have serious reservations about the timeliness
of Mr. Farag’s offer of proof, given that he did not make the offer until the
district court had already excused the witness who would have relayed the out-of-
court statement. See Polys v. Trans Colo. Airlines, Inc., 941 F.2d 1404, 1407
1409 (10th Cir. 1991) (noting that an offer of proof should “either precede[] or
immediately follow[] the ruling so that the trial judge can reconsider” and
explaining that the offer of proof requirement “contemplates some
contemporaneity between the trial judge’s knowledge about the proposed evidence
6
(...continued)
matter asserted, R.O.A. Vol. 4 at 267, i.e., that Ms. Kraydie told Mr. Farag that
the passport application was a name change document. For example, when asked
by the court to clarify his argument, Mr. Farag’s counsel again stated that the
evidence could be admitted for impeachment purposes, but he failed to explain
that, because it was not being offered for the truth of the matter asserted, the prior
inconsistent statement was not hearsay evidence. Mr. Farag’s attorney then
muddled the issue further by referencing an inapplicable evidentiary rule that
removes certain out-of-court statements from the hearsay rule and allows them to
be introduced for the truth of the matter asserted. Id. at 267-68; Fed. R. Evid.
801(d)(1)(A). Consequently, we disagree with Mr. Farag’s claim that the
“substance of [his] objection could not be any clearer.” Reply Br. at 7.
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and the evidentiary ruling to allow a proper decision at the time the evidence is
offered”) (emphasis in original); United States v. Russo, 527 F.2d 1051, 1058
(10th Cir. 1976) (concluding that offer of proof made “a day or two” after trial
court denied motion to admit polygraph test was untimely); Wright & Graham
Federal Prac. & Proc. § 5040 at 212 (West 1997) (“[T]he appropriate time for
making the offer of proof is at the time of the objection.”). But see Murphy v.
City of Flager Beach, 761 F.2d 622, 626 (11th Cir. 1985) (upholding offer of
proof made at evidentiary hearing after trial court had already excluded the
evidence); 12 Fed. Proc. L. Ed. § 33:27 (1988) (“It appears that, although an offer
of proof under FRE 103(a)(2) need not be made at the precise time the evidence is
excluded, it must be made in a reasonably timely manner.”).
Even if Mr. Farag properly preserved his argument for appeal and made an
adequate offer of proof (thereby removing his argument from the highly
demanding plain error standard of review), he is not entitled to relief, for the
exclusion of the extrinsic evidence was harmless. Under Rule 613(b), extrinsic
evidence of a prior inconsistent statement may be introduced only to impeach a
prior witness’s testimony, but may not be used as substantive evidence. Mitchell,
113 F.3d at 1532; Owen v. Patton, 925 F.3d 1111, 1113 n.1 (8th Cir. 1991). In
particular, prior inconsistent statements may be used to raise doubts about the
accuracy of any testimony or statements at trial with which they conflict, as well
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as the witness’s general credibility. See United States v. Strother, 49 F.3d 869,
875 (2d Cir. 1995); Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307, 1311-12 (8th
Cir. 1993).
In this case, substantial evidence was introduced at trial undercutting Ms.
Kraydie’s credibility, including admissions from Ms. Kraydie that she had been
previously convicted of a felony, Vol. 3 at 108, 158, had falsified Mr. Farag’s
passport application, id. at 156-57, and had helped Mr. Farag in his unlawful,
failed attempts to obtain documents in the name of Luciano Cisneros from the
Social Security Administration office and the Colorado Department of Motor
Vehicles. Id. at 159-60. Furthermore, during his cross-examination of Ms.
Kraydie, Mr. Farag’s attorney explicitly suggested that Ms. Kraydie told Mr.
Farag that the passport application was really a “document to change his name to
a more American-sounding name,” id. at 161, and implied that any denial of this
fact by Ms. Kraydie would be a lie designed by Ms. Kraydie to protect herself
from prosecution. Id. at 162. Ms. Kraydie responded somewhat equivocally,
explaining, “The purpose was not just to get him an Americanized sounding
name. The purpose was so that he would obtain status so he could visit his family
and return back,” id. at 161, and that Mr. Farag “was aware of what we were
doing.” Id. at 162. Noticeably, she never expressly denied telling Mr. Farag that
the application would be used to change his name. Therefore, even without the
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excluded testimony, Ms. Kraydie’s general credibility had been impeached, and
evidence in the record allowed Mr. Farag to argue that, in fact, Ms. Kraydie had
told Mr. Farag that the application he signed was to change his name, not to
obtain a passport. See Mitchell, 113 F.3d at 1532 (holding that exclusion of
inconsistent prior statements was harmless error, because, in part, the defendant
had been able to challenge the witness’s credibility in the presence of the jury).
When this evidence is combined with testimony suggesting that Mr. Farag
understood basic English, we remain unconvinced that the exclusion of Ms.
Kraydie’s allegedly inconsistent statement, even if erroneous, “had a substantial
influence on the jury’s verdict.” See Hanzlicek, 187 F.3d at 1238.
IV.
For the foregoing reasons, we AFFIRM Mr. Farag’s conviction.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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