United States v. FNU LNU , 578 F. App'x 27 ( 2014 )

13-2471
United States v. FNU LNU
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of September, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9
10 LEWIS A. KAPLAN,
11 District Judge.*
12
13 - - - - - - - - - - - - - - - - - - - -X
14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 -v.- 13-2471
18
19 FNU LNU, AKA Oscar Mario Garcia,
20 Defendant-Appellant.
21 - - - - - - - - - - - - - - - - - - - -X
22
*
The Honorable Lewis A. Kaplan, United States District
Judge for the Southern District of New York, sitting by
designation.
1
1 FOR APPELLANT: MALVINA NATHANSON, Law Office of
2 Malvina Nathanson, New York, New
3 York.
4
5 FOR APPELLEE: REBECCA MERMELSTEIN (Brent S.
6 Wible, on the brief), for Preet
7 Bharara, United States Attorney
8 for the Southern District of New
9 York, New York, New York.
10
11 Appeal from a judgment of the United States District
12 Court for the Southern District of New York (Karas, J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the judgment of the district court be
16 AFFIRMED.
17
18 The Defendant-Appellant appeals from the judgment of
19 the United States District Court for the Southern District
20 of New York (Karas, J.), convicting him of: unlawful
21 procurement of naturalization, in violation of 18 U.S.C. §
22 1425(a); two counts of false statement in application and
23 use of a passport, in violation of 18 U.S.C. § 1542; and
24 fraud and related activity in connection with identification
25 documents, in violation of 18 U.S.C. § 1028A; and social
26 security fraud, in violation of 42 U.S.C. § 408(a)(2). On
27 appeal, the Appellant argues the district court erred in two
28 of its evidentiary decisions during trial. We assume the
29 parties’ familiarity with the underlying facts, the
30 procedural history, and the issues presented for review.
31
32 1. The district court permitted the Government to
33 introduce a witness’ prior consistent statement regarding
34 the identification of her husband’s photograph prior to her
35 testimony at trial. We review a district court’s
36 evidentiary decisions for abuse of discretion. See United
37 States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001). The
38 Appellant points out that the ruling is not supported by
39 Federal Rule of Evidence 801(d)(1)(B), which allows a prior
40 consistent statement to rebut a charge of fabrication or
41 recent improper motive in testifying. The Appellant’s
42 argument, however, ignores Rule 801(d)(1)(C) which permits a
43 witness’ prior consistent statement when the declarant
44 testifies, is subjected to cross-examination, and
45 “identifies a person as someone the declarant perceived
46 earlier.” The witness here was subjected to cross-
47 examination, and the prior consistent statement involved her
2
1 previous identification of her late husband’s photograph.
2 Such testimony falls within the hearsay exclusion of Rule
3 801(d)(1)(C).
4
5 2. The Appellant also argues that the district court
6 erred in barring as hearsay his testimony about the
7 circumstances of a family dispute which caused him to move
8 to New York. Because the Appellant never asserted a basis
9 for the admissibility of the testimony, we review for plain
10 error. See United States v. Marcus, 560 U.S. 258, 262
11 (2010); United States v. Cruz, 894 F.2d 41, 44 (2d Cir.
12 1990). The Appellant argues that the testimony was not
13 hearsay because it was intended only to show his state of
14 mind in deciding to move, and not offered for the truth of
15 the matter asserted. However, “the mere identification of a
16 relevant non-hearsay use of . . . evidence is insufficient
17 to justify its admission if the jury is likely to consider
18 the statement for the truth of what was stated with
19 significant resultant prejudice.” United States v. Reyes,
20 18 F.3d 65, 70 (2d Cir. 1994); see also Fed. R. Evid. 403.
21 Here, the district court could reasonably have concluded
22 that the proffered testimony would be considered by the jury
23 for the truth of the matter asserted. We see no error, let
24 alone plain error, in the district court’s decision to
25 exclude this testimony.
26
27 For the foregoing reasons, and finding no merit in the
28 Appellant’s other arguments, we hereby AFFIRM the judgment
29 of the district court.
30
31 FOR THE COURT:
32 CATHERINE O’HAGAN WOLFE, CLERK
33
3