United States v. Lita ( 2020 )

19-158 (L)
United States v. Lita, et al.
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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
27th day of January, two thousand twenty.
Present:
REENA RAGGI,
DEBRA ANN LIVINGSTON,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 19-158 (L)
19-213 (Con)
19-252 (Con)
DALIA LITA, ELINA RAHMAN, and LUBNA RAHMAN,
Defendants-Appellants.
_____________________________________
For Appellee: CARINA H. SCHOENBERGER, Assistant United States
Attorney, for Grant C. Jaquith, United States Attorney
for the Northern District of New York, Syracuse, NY
For Defendant-Appellant Dalia Lita: JAMES P. EGAN, Assistant Federal Public Defender, for
Lisa A. Peebles, Federal Public Defender, Syracuse,
NY
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For Defendant-Appellant Elina Rahman: BENJAMIN GRUENSTEIN, Cravath, Swaine & Moore,
LLP, New York, NY
For Defendant-Appellant Lubna Rahman: PETER J. TOMAO, Garden City, NY
Appeal from a judgment of the United States District Court for the Northern District of
New York (Thomas J. McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Dalia Lita, Elina Rahman, and Lubna Rahman (collectively, “Defendants”) appeal from
their respective convictions, entered on January 14, 2019, following trial for conspiracy to commit
visa fraud in violation of 18 U.S.C. §§ 371 and 1546(a). The government introduced evidence at
trial that, in order to obtain visas, Defendants concealed, among other things, that Elina and Lubna
had previously resided in the United States. On appeal, Defendants primarily challenge the
admission of Elina and Lubna’s visa applications, the sufficiency of the evidence, and a jury
instruction regarding an uncalled consular officer. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
I. Admissibility of Visa Applications
We review the district court’s evidentiary rulings for abuse of discretion. See United
States v. Williams, 930 F.3d 44, 58 (2d Cir. 2019). The government contends that Defendants
objected only on grounds of authenticity in the district court, and that their hearsay claims must
therefore also satisfy the plain-error standard of review. We need not resolve whether plain-error
review applies because the district court did not abuse its discretion in admitting the visa
applications and, even if it had, any error would have been harmless.
Turning first to authenticity, Federal Rule of Evidence 901(a) requires “the proponent [to]
produce evidence sufficient to support a finding that the item is what the proponent claims it is.”
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It is not “a particularly high hurdle” and may be cleared by “circumstantial evidence.” United
States v. Dhinsa, 243 F.3d 635, 658–59 (2d Cir. 2001) (quotation marks and citation omitted).
The district court found that the visa applications were satisfactorily authenticated as public
records. See Fed R. Evid. 901(b)(7). Defendants contend that the government failed to lay a
sufficient foundation to establish such authenticity. We disagree. “Public records are regularly
authenticated by proof of custody, without more.” Fed. R. Evid. 901, Advisory Committee Notes
(1972). A representative of U.S. Citizenship and Immigration Services testified to the agency’s
creation and custody of the Rahmans’ A-Files, which contained the visa applications. Such
evidence was sufficient to clear the relatively low hurdle posed by Rule 901.
Turning to whether the visa applications contain hearsay, the district court concluded that
they were admissible as business records. The government does not defend this rationale on
appeal, instead arguing that the applications were not admitted for their truth or, in the alternative,
that their contents fall within Rule 801(d)(2)’s hearsay exemptions. We agree. To the limited
extent that statements in the applications were offered for their truth, such statements were properly
admitted pursuant to Rule 801(d)(2) as either party admissions or statements of a co-conspirator.
The government introduced substantial evidence, detailed below, that all three sisters
participated in a conspiracy to commit visa fraud and that the applications were prepared in
furtherance of this conspiracy. See United States v. Gupta, 747 F.3d 111, 123 (2d Cir. 2014)
(noting that statements are admissible pursuant to Rule 801(d)(2)(E) when (a) “there was a
conspiracy, (b) . . . its members included the declarant and the party against whom the statement
is offered, and (c) . . . the statement was made during the course of and in furtherance of the
conspiracy”) (quotation marks and citation omitted)); see also Bourjaily v. United States, 483 U.S.
171, 176–81 (1987). To the extent Dalia made representations in the applications on behalf of
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either Elina or Lubna, those statements are admissible against her as the statements of an opposing
party and against her sisters as co-conspirator statements. On the other hand, to the extent Elina
and Lubna completed the applications, then such statements are admissible for the inverse reasons:
They are admissible against each sister pursuant to Rule 801(d)(2)(A) or (B), and against Dalia
pursuant to Rule 801(d)(2)(E).
The only statement in the applications that does not qualify as a statement of an opposing
party or as a co-conspirator statement is the attestation of the consular officer that Elina and
Lubna’s attestations were “[s]ubscribed and sworn to before [him or her].” J.A. 469, 494. That
statement, however, was not offered for its truth. The government did not rely upon the consular
officer’s attestation to argue that Elina and Lubna has signed the applications and sworn to the
truth of their contents.
Thus, even assuming the visa applications were not admissible as business records, such
error was harmless because the applications were admissible either because they were not offered
for their truth or under Rule 801(d)(2). See, e.g., United States v. Vargo, 185 F. App’x 111, 114–
15 (2d Cir. 2006) (rejecting reasoning below and concluding that error was harmless because
statement was admissible under Rule 801(d)(2)(E)); Gonzalez v. Napolitano, 101 F.3d 109 (2d
Cir. 1996) (summary order) (“Because the conviction was undisputedly admissible on this
alternative theory, any error on the part of the district court is harmless.”). And, because the visa
applications were admissible as an opposing party’s statements, Defendants’ Confrontation Clause
challenge is without merit. See Giles v. California, 554 U.S. 353, 374 n.6 (2008); Crawford v.
Washington, 541 U.S. 36, 56 (2004) (“Most of the hearsay exceptions covered statements that by
their nature were not testimonial—for example, business records or statements in furtherance of a
conspiracy.”).
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II. Sufficiency of the Evidence
Evidence is sufficient to convict if, “after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Where the crime
is conspiracy, “there must be some evidence from which it can reasonably be inferred that the
person charged with conspiracy knew of the existence of the scheme . . . and knowingly joined
and participated in it.” United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006) (quotation marks
and citation omitted). Once again, the government contends that it is entitled to an even more
deferential standard of review because Defendants failed to renew their motion for acquittal after
Dalia presented evidence at trial. Because we conclude that Defendants’ sufficiency challenge
fails even under the usual standard, we do not address this argument.
Defendants argue that the government failed to produce sufficient evidence that Elina and
Lubna knowingly submitted applications containing false information. Not so. As Defendants
themselves concede, the government presented evidence that all three sisters lived together when
the conspiracy began; Elina and Lubna consistently used the names Alina Habib and Lubna Habib
Ruma until Dalia submitted visa petitions on their behalf under the names Elina and Lubna
Rahman; Elina and Lubna remained in the United States until Dalia obtained visas for them, at
which point they traveled to Bangladesh under the surname Habib before returning with the
surname Rahman; the two sisters had an incentive to participate in the scheme, namely obtaining
visas; the Rahmans’ signatures appear on visa applications that falsely stated they had never been
in the United States; and the Rahmans completed, and in some instances signed, other forms in
English, including a medical form, indicating that they were able to read and understand English.
This evidence is plainly sufficient to sustain Defendants’ convictions. See United States v.
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Santos, 541 F.3d 63, 73 (2d Cir. 2008) (“interested cooperation” or having “a stake in a venture”
coupled with participation in the scheme is sufficient to establish conspiracy).
III. Jury Instructions
Finally, Defendants argue that the district court erred by failing to give a “missing witness”
instruction regarding the government’s failure to call the consular officer who signed Elina and
Lubna’s visa applications. In the alternative, Defendants argue that the “uncalled witness”
instruction provided was flawed. Neither argument has merit.
Turning first to the “missing witness” charge, such an instruction “permits the jury to draw
an adverse inference against a party failing to call a witness when the witness’s testimony would
be material and the witness is peculiarly within the control of that party.” United States v. Caccia,
122 F.3d 136, 138 (2d Cir. 1997). “We review a district court’s refusal to provide a requested
missing witness instruction for abuse of discretion and actual prejudice.” United States v. Ebbers,
458 F.3d 110, 124 (2d Cir. 2006).
Defendants assert that the consular officer was peculiarly within the government’s control
because of the difficulties they would have faced in subpoenaing a State Department employee
stationed abroad. Nevertheless, Defendants never asked the government to track down the
consular officer or to provide them with any information regarding such officer. We have
previously held that a defendant’s failure to inquire about a possible missing witness suggests that
a witness was not actually unavailable. United States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994);
United States v. Nichols, 912 F.2d 598, 602 (2d Cir. 1990). And, as Defendants concede, the
State Department provides a mechanism by which private parties may subpoena consular officers.
Moreover, “[b]ecause we recognize that an aura of gamesmanship frequently accompanies
requests for missing witness charges, . . . [w]e are particularly disinclined to second-guess [district
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court] decisions [regarding such changes] where, as in this case, a judge refrains from commenting
on the inference to be drawn on the facts before the jury and allows counsel instead to argue the
inference.” United States v. Gaskin, 364 F.3d 438, 463 (2d Cir. 2004) (quotation marks and
citations omitted). Defendants argued that the absence of the consular officer created reasonable
doubt regarding Defendants’ guilt. Accordingly, we discern neither an abuse of discretion in nor
any prejudice flowing from the district court’s decision not to give a “missing witness” charge.
As to Defendants’ argument regarding the district court’s “uncalled witness” instruction,
we review claims of flawed jury instructions de novo, “reversing only where, viewing the charge
as a whole, there was prejudicial error.” United States v. Sheehan, 838 F.3d 109, 121 (2d Cir.
2016). Where a witness is equally available to both sides, the district court has “discretion to (1)
give no instruction and leave the entire subject to summations, (2) instruct the jury that no
unfavorable inference may be drawn against either side, or (3) instruct the jury that an adverse
inference may be drawn against either or both sides.” Caccia, 122 F.3d at 139. The district
court here opted to follow the second path.
Defendants argue that the district court’s instruction nevertheless suffered from two flaws:
(1) it instructed jurors to “not be concerned with why someone was not called as a witness,” as
opposed to directing jurors to “not draw any inferences” based on the absence of a witness, and
(2) the instruction failed to emphasize that the defendant bears no burden in a criminal case. J.A.
334. Neither of these supposed errors rendered the instruction infirm. At oral argument,
counsel for Elina Rahman conceded that the instruction was not legally erroneous, but, rather,
argued that it was likely to confuse the jury. We identify no evidence of such confusion on the
face of the instruction or in the record. Looking at the whole instruction, the court explained that
the jury “must decide this case based on the evidence or lack of evidence presented” immediately
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before stating that jurors “should not be concerned with why someone was not called as a witness.”
J.A. 334 (emphasis added). In context, the charge urged jurors to consider whether sufficient
evidence was presented to warrant a particular finding and not to infer anything from the absence
of a witness. Further, the court’s instruction expressly stated that “the defendant has no
obligation to call any witnesses or present any proof.” Id. Accordingly, Defendants have failed
to establish that they suffered any prejudice from the jury instruction provided, even assuming,
arguendo, it was erroneous in some respect.
* * *
We have considered Defendants’ remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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