United States v. Farah , 475 F. App'x 1 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4712
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
INTISAR KHALIF FARAH, a/k/a Intisar Ali,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (1:05-cr-00163-LDW)
Argued: May 25, 2007 Decided: August 14, 2007
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Wilkinson and Judge Niemeyer joined.
ARGUED: Melinda Laverne VanLowe, GREENSPUN, DAVIS & LEARY, P.C.,
Fairfax, Virginia, for Appellant. Jeanine Linehan, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Peter D. Greenspun,
GREENSPUN, DAVIS & LEARY, P.C., Fairfax, Virginia, for Appellant.
Chuck Rosenberg, United States Attorney, Edmund Power, Assistant
United States Attorney, Aaron M. Zebley, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
Intisar Khalif Farah appeals her conviction for procuring
naturalization unlawfully in violation of 18 U.S.C. § 1425(a). She
assigns error to several of the district court’s evidentiary
rulings and rulings on her pre-trial and post-trial motions. For
the reasons set forth below, we affirm.
I.
Farah, a native of Somalia, entered the United States for the
first time on January 10, 1983, as a non-immigrant with a student
visa. In May 1984, the Immigration and Naturalization Service
(“INS”) denied her application for an extension of stay and ordered
her to depart the United States by July 13, 1984. Farah left for
Mogadishu, Somalia, on July 10, 1984 and, later that summer, became
engaged to marry Yusef Abdi Ali. At some point thereafter, Farah
re-entered the United States, moving to Cape Giradeau, Missouri, in
1985 and to Alexandria, Virginia, in 1988.
On February 27, 1989, Farah applied for asylum. She stated in
her application that January 11, 1983, was the date of her last
arrival in the United States. She also stated that she and her
family were members of the Isaaq clan and, as a result of that
membership, she had been arrested three times, imprisoned, and
tortured in Somalia. Her application was successful, and in
December 1990, a year after receiving asylum, Farah applied for and
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was granted lawful permanent resident status as an asylee eligible
for adjustment.
On December 21, 1990, Farah requested refugee status in
Canada, where her husband believed it would be easier for him to
obtain asylum. In making her request, Farah claimed that she
feared persecution in Somalia because she was “Isaac [sic] [and]
the government kills all of our people.” J.A. 1871. Farah claimed
that she was arrested and imprisoned in Somalia in August 1989,
fled Somalia in November 1990, and spent one month illegally in the
United States en route to Canada. Farah further claimed that she
was in Ethiopia from June 1988 to August 1989. Farah denied on two
separate Canadian applications that she had ever applied for
refugee status in any other country.
In June 1991, Farah appeared before the Canadian Immigration
and Refugee Board and testified that she was Isaaq, that she was
arrested in Somalia in May 1988 for participating in a protest
against then-President Siad Barre, and that she went to Ethiopia
after being released from prison but, upon her return to Mogadishu
in August 1989, was arrested with other Isaaqs for being Isaaq.
Farah testified that her boyfriend procured her release from prison
and that she fled Somalia a year later for Canada, stopping first
in the United States to meet her boyfriend. The Canadian
government denied Farah’s refugee application and ordered her to
depart Canada by October 13, 1992. Farah returned to the United
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States. In July 1993, Farah’s parents and siblings were admitted
to the United States as refugees because Farah’s father, a member
of the Darod clan in Somalia, had been singled out for persecution
as a high-ranking member of the former Somali government.
On April 20, 1995, Farah became a United States citizen. She
swore in her application for citizenship, and again during her
interview with the INS, that her only absence from the United
States since becoming a permanent resident was a visit to Canada
from August 1991 to November 1991. Farah stated that she was
living in Virginia and working in the District of Columbia from
1990 to 1992.
In December 1996, Farah sponsored her husband’s admission to
the United States and, in March 1998, Farah submitted a declaration
to the Executive Office of Immigration Review on behalf of her
husband. In that declaration, Farah provided details of her
background which were inconsistent with the details she provided in
her applications for asylum, adjustment of status, and
naturalization. Investigation into the affairs of Farah’s husband
provoked scrutiny of Farah’s immigration file and, in December
1998, an INS official authored an internal memorandum identifying
what the official considered false statements by Farah that were
sufficient to denaturalize her.
On April 19, 2005, a grand jury indicted Farah for
naturalization fraud. Farah filed a motion to dismiss for failure
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to return the indictment within the statute of limitations; the
motion was denied after a hearing. In August 2005, in response to
a court order, the Government filed a bill of particulars
enumerating the allegedly materially false statements Farah made in
her applications for asylum, lawful permanent residence, and
naturalization. Farah then filed a renewed motion to dismiss for
failure to return the indictment within the statute of limitations,
a motion to dismiss for prejudicial pre-indictment delay and
vindictive prosecution, and several motions in limine. After a
hearing, the district court denied the motion to dismiss for
prejudicial pre-indictment delay, stating that it would determine
the issue during trial. The court reserved its decision on the
motion regarding the statute of limitations and the motions in
limine.
At trial in November 2005, the Government presented documents
from the INS, including a copy of Farah’s 1984 plane ticket from
the United States to Somalia, establishing that Farah left the
United States for Mogadishu around July 1984 and returned to the
United States sometime thereafter. Additionally, the Government
showed that Farah’s declaration on behalf of her husband states
that she is a member of the Darod clan although she based her claim
for asylum on her membership in the Isaaq clan. Accordingly, the
Government presented evidence confirming that Farah and her
immediate family are Darod, not Isaaq. At the time Farah applied
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for asylum, the Department of State considered members of the Isaaq
clan to have a well-founded fear of persecution by Barre’s regime
and, consequently, a basis for being granted asylum in the United
States. The Government therefore argued at trial that Farah knew
a claim to have suffered mistreatment because she was Isaaq
heightened her chances of being granted asylum. Also at trial, an
INS officer testified that knowledge of Farah’s false statements
about her clan membership and her date of last entry into the
United States would have resulted in the denial of her asylum
application. Likewise, INS testimony established that if Farah had
been truthful about living in Canada for approximately twenty-two
months, rather than merely visiting Canada for three months, her
extended absence from the United States would have rendered her
ineligible to become a naturalized citizen. INS’s knowledge that
Farah obtained her lawful permanent resident status through fraud
would have had the same consequence. An INS officer similarly
testified that committing any fraud, generally, would have rendered
Farah ineligible for adjustment of status.
The November 2005 trial ended in a hung jury. After a hearing
conducted before the new trial, the district court denied Farah’s
renewed motion to dismiss for failure to return the indictment
within the statute of limitations and reserved its decision on her
motion to exclude the testimony of several Government witnesses.
A second trial in March 2006 ended with a verdict of guilty. The
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district court then denied all outstanding motions, including a
motion by Farah for judgment of acquittal, and sentenced Farah to
one month of incarceration and one year of supervised release.
This appeal followed.
II.
Statute of Limitations
The district court denied Farah’s renewed motion to dismiss
for failure to return an indictment within the statute of
limitations, finding that the indictment, dated April 19, 2005, was
returned within ten years of the date Farah was naturalized, April
20, 1995. This Court reviews timely objections to an indictment
de novo. United States v. Darby, 37 F.3d 1059, 1062-63 (4th Cir.
1994).
Farah does not dispute that the offense charged in the
indictment, procuring naturalization unlawfully in violation of 18
U.S.C. § 1425(a), has a ten-year statute of limitations or that the
one-day window the Government left itself in charging her is
sufficient. Rather, Farah argues that the rule of lenity requires
that the five-year statute of limitations for the offense of making
a false statement in an immigration matter in violation of 18
U.S.C. § 1015 be applied to her case because the Government could
have prosecuted her under that statute instead of under § 1425(a).
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The rule of lenity provides that “ambiguity concerning the
ambit of criminal statutes should be resolved in favor of lenity.”
United States v. Bass, 404 U.S. 336, 348 (1971). Farah submits
that the ambiguity in her case arises in Congress’s failure to
explain the disparity between the statute of limitation for §
1425(a) and that for § 1015. The rule of lenity, however, “serves
as an aid for resolving an ambiguity; it is not to be used to beget
one.” Callanan v. United States, 364 U.S. 587, 596 (1961). Here,
there is no ambiguity regarding the single statutory offense with
which Farah is charged——violation of § 1425(a)——and the statute of
limitations for that offense. See United States v. Helem, 186 F.3d
449, 455 (4th Cir. 1999) (stating that rule does not apply where
statute is not ambiguous). For this reason, Farah’s reliance on
United States v. Head, 641 F.2d 174 (4th Cir. 1981), is misplaced.
In Head, this Court applied the rule of lenity when a single
conspiracy count charged the defendant with conspiracy to commit
several different offenses with different statutes of limitations.
Here, by contrast, there is no confusion among applicable offenses
(only one is charged in the indictment) or applicable statutes of
limitations (only one applies to the offense charged). The
district court properly denied Farah’s motion to dismiss.
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The 1998 INS Memorandum
The district court denied Farah’s request for production of
the 1998 INS memorandum detailing the author’s belief that Farah
made false statements on immigration applications and that there
were grounds to denaturalize her in an administrative proceeding.
The Government had notified Farah that it would not produce the
memorandum because the INS had marked it as confidential attorney
work product, and had provided the court a copy of the memorandum
for in camera inspection only. We review a district court’s denial
of discovery requests for abuse of discretion. United States v.
Fowler, 932 F.2d 306, 311 (4th Cir. 1991).
As a rule, and pursuant to a discovery order entered in this
case, any defendant may inspect items in the Government’s
possession that are “material to preparing the defense.” Fed. R.
Crim. P. 16(a)(1)(E)(i). “A showing of materiality must include
‘some indication that the pretrial disclosure of the disputed
evidence would have enabled the defendant significantly to alter
the quantum of proof in his favor.’” United States v. Kirk, No.
88-5095, 877 F.2d 61, 1989 WL 64139, at *2 (4th Cir. June 2, 1989)
(unpublished) (quoting United States v. Ross, 511 F.2d 757, 762-63
(5th Cir. 1975), cert denied, 423 U.S. 836 (1975)).
Farah argues that, in denying her request for production, the
district court improperly focused on whether the Government was
going to use the memorandum at trial (the Government said that it
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would not) and improperly relieved the Government of its burden to
show that the memorandum actually constituted attorney work
product. Cf. In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th
Cir. 1996) (“The work-product privilege protects the work done by
an attorney in anticipation of litigation.”). Farah also argues
that the memorandum was relevant to her motion to dismiss the
indictment for prejudicial pre-indictment delay and her ability to
identify potential trial witnesses. By the time the court heard
arguments on Farah’s request for production, however, the
Government had filed not only a bill of particulars but also more
than one thousand pages of discovery in advance of both trials.
Cf. Ross, 511 F.2d at 763 (stating that the “extensiveness of the
material which the Government did produce and the availability of
the disputed material from other sources, including the defendant’s
own knowledge, must also be considered” in determining
materiality); United States v. Automated Med. Labs., Inc., 770 F.2d
399, 406 (4th Cir. 1985) (stating that the purpose a of bill of
particulars “is to fairly apprise the defendant of the charges
against him so that he may adequately prepare a defense and avoid
surprise at trial”). Given this evidence, it is not clear that the
memorandum would have significantly altered the quantum of proof in
Farah’s favor. Because Farah cannot make the requisite showing,
and because the Government did not intend to use the memorandum at
trial and the memorandum is, on its face, attorney work product,
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the district court did not abuse its substantial discretion to
manage the discovery process by denying Farah’s request.
Prejudicial Pre-Indictment Delay
The district court denied Farah’s motion to dismiss the
indictment for prejudicial pre-indictment delay, in which Farah
asserted that the Government’s delay of up to seventeen years* in
indicting her deprived her of testimonial and documentary evidence
necessary to her defense. We review timely objections to an
indictment de novo. Darby, 37 F.3d at 1062-63.
The Fifth Amendment’s Due Process Clause requires dismissal of
an indictment when a defendant establishes actual prejudice
resulting from the Government’s delay, and, after balancing the
defendant’s prejudice against the Government’s justification for
the delay, we find that “the [G]overnment’s action in prosecuting
after substantial delay violates ‘fundamental conceptions of
justice’ or ‘the community’s sense of fair play and decency.’”
Jones v. Angelone, 94 F.3d 900, 904 (4th Cir. 1996) (citation
omitted). Two of Farah’s examples of actual prejudice lack merit.
First, Farah claims that her father, who died in 1996, could have
offered credible, exculpatory testimony about Farah’s clan
*
Farah’s repeated reference to a delay of ten-to-seventeen
years is simply incredible, as any number over ten amounts to a
claim that the Government failed to indict her even before the date
she committed the charged offense, April 20, 1995.
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identification. But Farah’s father died two years before 1998, the
year she argues she should have been indicted because the INS
memorandum emerged that year. Even by Farah’s timeline, her father
never would have been available to testify. Second, Farah asserts
that her conviction will have drastic immigration consequences for
her family. But had Farah been indicted at precisely the same
moment, yet acquitted, her family would suffer no immigration
consequences. Thus, Farah’s conviction is problematic for her
family, not her delayed indictment.
Farah’s other examples of actual prejudice have merit. First,
Farah asserts that the delay made it difficult for her to verify
that she was living and working in the United States and not Canada
in 1991 and 1992——a major trial issue. Farah could not locate
leases and bank records that could confirm her residence
approximately fifteen years ago, and, in the last ten years, her
former employer’s business dissolved. Both her former employer and
his accountant destroyed the records that could have verified her
employment during 1991 and 1992, and her former employer could not
independently recall her dates of employment. Second, Farah
asserts that the delay made it difficult to unearth evidence that
could support statements she made on her asylum application——also
a major trial issue. Two of the immigration officials who
testified at trial about Farah’s 1989 asylum application could not
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remember Farah, and her former immigration lawyer destroyed her
asylum file.
These latter claims of prejudice are sincere, but describe
problems——faded memories, lost evidence——that attend every case
brought just barely within the statute of limitations. Cf. United
States v. Marion, 404 U.S. 307, 326 (1971) (observing “the real
possibility of prejudice inherent in any extended delay: that
memories will dim, witnesses become inaccessible, and evidence be
lost”). Nonetheless, we assume Farah has shown actual prejudice,
and balance that prejudice against the Government’s justification
for its delay.
The Government, arguing that there was no delay, correctly
notes that, although Farah maintains that the Government knew of
her offenses in 1998 and should have indicted her then, the
document on which she relies is an internal communication between
attorneys at an agency with no authority to prosecute Farah. See
28 U.S.C. §§ 547(1),(2). The U.S. Attorney’s Office, the only
prosecuting authority for Farah’s crime, first learned of Farah’s
crime in September 2004, just seven months before the indictment.
Farah does not dispute this fact or argue that seven months
constitutes an unreasonable delay. Nor, we note, does Farah allege
nefarious motives on the Government’s part. See also Automated
Med. Labs., 770 F.2d at 404 (considering it relevant, in declining
to find a due process violation, that “there is no indication that
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the Government intentionally delayed to gain some tactical
advantage”).
Having balanced the Government’s position regarding its
alleged delay against Farah’s quite ordinary claims of prejudice,
we cannot say that her indictment offends “fundamental conceptions”
of justice, fair play, or decency. Jones, 94 F.3d at 904. We
affirm the denial of Farah’s motion to dismiss for prejudicial pre-
indictment delay.
Exhibits 1-1 through 1-21
Exhibits 1-1 through 1-21 are documents from Farah’s
immigration file, including her applications for asylum, lawful
permanent residence, and naturalization, her green card and
naturalization certificate, and communications sent to Farah by the
INS. Farah argues that the documents should have been excluded
from evidence for a variety of reasons. We review the district
court’s evidentiary rulings for abuse of discretion. Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 141 (1997).
Farah’s myriad protests fail. The documents were kept in the
course of regularly conducted business at the INS and are therefore
admissible as business records. Fed. R. Evid. 803(6). Testimony
established (and Farah’s appellate brief admits) that Farah herself
either inscribed directly or supplied indirectly much of the
information in the documents, therefore many of the statements
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within the documents are admissible as party admissions. Fed. R.
Evid. 801(d)(2)(A). Finally, even if the stray markings by INS
officials on the applications were nonverbal conduct intended as
assertions and therefore “statements” under the Rules of Evidence,
see Fed. R. Evid. 801(a), as Farah asserts, they fall within the
business records exception to hearsay based on the testimony of two
Government witnesses about the markings. In sum, the district
court did not abuse its discretion in admitting Exhibits 1-1
through 1-21.
Exhibits 7-1 through 7-9
The district court also did not abuse its discretion in
admitting into evidence Exhibits 7-1 through 7-9, documents from
Farah’s Canadian immigration file. Farah argues that (1) the
exhibits do not qualify as business records, and that (2) the
Government impermissibly offered these exhibits to prove Farah’s
bad character (i.e., dishonest) or bad acts committed in conformity
with her character (i.e., making false statements to immigration
officials in the United States).
In challenging the admission of her Canadian immigration file
as a business record, Farah raises many of the same, unavailing
arguments she raised in challenging the admission of her INS
immigration file. Her additional argument that the Canadian file
is incomplete, preventing the court and the parties from knowing
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whether critical information that would place the exhibits in a
different light, lacks merit: whether the file qualifies as a
business record does not depend on whether it includes every
potentially relevant document. Her argument that the file contains
an opinion and order issued by the Canadian Immigration and Refugee
Board when, under Nipper v. Snipes, 7 F.3d 415 (4th Cir. 1993),
court orders do not fall within the business records exception to
the hearsay rule, is misplaced. Nipper actually holds that
judicial findings of fact are not “public records” within the
meaning of the public records exception to hearsay found in Federal
Rule of Evidence 803(8)(C). 7 F.3d at 417. Neither party to this
appeal invokes 803(8)(C) and, because the factual findings in the
opinion and order were redacted, none remain about which to
complain.
Farah’s classification of Exhibits 7-1 through 7-9 as
character evidence also fails. Under Rule 404(b) of the Federal
Rules of Evidence, evidence of other crimes or wrongs “are
admissible if they are (1) relevant to an issue other than
character, (2) necessary, and (3) reliable.” United States v.
Rawle, 845 F.2d 1244, 1257 (4th Cir. 1988). Here, the Government
introduced the Canadian immigration documents as circumstantial
evidence that Farah lived in Canada in 1991 and 1992, and as
evidence that Farah falsely stated on her application for
naturalization in the United States that she had stayed in Canada
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for less than six months. Where, as here, evidence “is admitted as
to acts intrinsic to the crime charged, and is not admitted solely
to demonstrate bad character, it is admissible.” United States v.
Chin, 83 F.3d 83, 88 (4th Cir. 1996). Even if, as Farah
additionally claims, the Government referenced the exhibits in
remarking on Farah’s character during its closing argument, we
cannot say that the district court abused its discretion in
admitting Exhibits 7-1 through 7-9 as business records.
Exhibits 2-1 through 2-6
The district court did not abuse its discretion in admitting
Exhibits 2-1 through 2-6, documents from the immigration file of
Farah’s father. The court admitted the documents under Federal
Rule of Evidence 803(6), the business records exception to hearsay,
and Rule 804(b)(4), the exception for statements of an unavailable
declarant concerning the declarant’s or a relative’s personal or
family history. Under the latter rule, because Mr. Farah was
unavailable at trial (he was deceased), his statements concerning
his and his family’s clan membership are excepted from the hearsay
rule. Farah’s assertion that clan membership in Somalia is not as
straight-forward and mechanical as facts concerning dates of birth,
marriage, and the like allowed under Rule 804(b)(4) is not
sufficient to disturb the district court’s decision to admit Mr.
Farah’s statements under the rule.
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Farah’s final argument that the admission of Mr. Farah’s file
violates her rights under the Confrontation Clause is also
unavailing. The Confrontation Clause bars the “admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had a prior
opportunity for cross-examination.” Crawford v. Washington, 541
U.S. 36, 53-54 (2004). Mr. Farah’s statements were not testimonial
because the “primary purpose” (any future purpose is irrelevant) of
Mr. Farah’s interrogation, liberally assuming his immigration
interviews can even be called that, was not “to establish or prove
past events potentially relevant to later criminal prosecution.”
Davis v. Washington, 126 S. Ct. 2266, 2274 (2006). The primary
purpose was to determine Mr. Farah’s eligibility for an immigration
benefit. Our highly deferential standard of review leads us to
affirm the district court’s decision here as well.
Authentication of Exhibits in Groups 1 and 2
Farah asserts that Exhibits 1-1 through 1-21 and 2-1 through
2-6, documents from her and her father’s immigration files were not
properly authenticated because, according to Farah, the Government
alleged only that she and her father signed the documents. The
Government argues that for purposes of authentication, the
documents were public records under Federal Rule of Evidence
901(b)(7) and did not require handwriting authentication. We
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review decisions of the district court regarding authentication for
abuse of discretion. United States v. Patterson, 277 F.3d 709, 713
(4th Cir).
The parties agree that, under Rule 901(a), the “requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what the proponent claims.”
Fed. R. Evid. 901(a). “To meet the threshold established by Rule
901(a), the party seeking to introduce physical evidence must
provide a basis for the jury to resolve the authenticity question
in favor of that party.” Patterson, 277 F.3d at 713 (quotation
marks omitted). Rule 901(b)(1) provides that a witness with
knowledge may authenticate a piece of evidence by testifying that
a matter is what it is claimed to be. A party need not rely on
“nonexpert opinion as to the genuineness of handwriting” to
authenticate or identify a document, so long as another method of
conforming with Rule 901(a) is used.
Here, the INS record custodian had knowledge of documents kept
by the INS and testified that the documents in the Farahs’ files
are what the Government claims. Cf. United States v.
Hernandez-Herrera, 952 F.2d 342, 344 (10th Cir. 1991) (“We find
that the testimony of Wheeler, an INS agent familiar with the
record keeping practices of the INS regarding Exhibits 1-4,
establishes the authenticity of these exhibits under Rule
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901(b)(7).”). Further, contrary to what Hernandez-Herrera
suggests, it is not necessary for the Government to invoke Rule
901(b)(7) for authentication; testimony pursuant to Rule 901(b)(1)
sufficed.
The Expert Testimony of Dr. Lee Cassinelli
The Government called Dr. Lee Cassinelli, a researcher of
Somali culture, to establish that clan identity in Somalia is
patrilineal and to elicit his opinion that, based on her father’s
clan identity, Farah is Darod, not Isaaq. Farah argues that Dr.
Cassinelli’s testimony should have been excluded under Federal Rule
of Evidence 702 because it was not reliable (he did not interview
Farah, her family, or her friends), it did not aid the jury in
determining a fact in issue (what Farah phrases as her belief about
her clan identity), and it was generally more prejudicial than
probative. We review the district court’s decisions regarding the
admission of expert testimony for abuse of discretion. United
States v. Mohr, 318 F.3d 613, 622 (4th Cir. 2003).
“Unlike an ordinary witness, see Rule 701, an expert is
permitted wide latitude to offer opinions, including those that are
not based on firsthand knowledge or observation.” Daubert v.
Merrell Dow Pharma., Inc., 509 U.S. 579, 592 (1993). Dr.
Cassinelli, therefore, did not need personal knowledge of Farah’s
clan identity or a personal interview with Farah to opine about her
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clan identity. His testimony about Somali clan structure was
relevant, a fact Farah concedes, and Farah had the opportunity on
cross-examination to show the jury that, although Dr. Cassinelli
believed he knew what clan Farah belongs to, there would be no way
for him to know what clan she believes she belongs to.
Accordingly, the district court did not abuse its discretion in
admitting Dr. Cassinelli’s expert testimony.
The Expert Testimony of Mary von Briesen, et al.
Farah argues that the district court improperly allowed
Mary von Briesen, Edward Newman, Michael Comfort, and Stanford
Knight, all lay witnesses, to offer what amounted to expert
testimony about the asylum, lawful permanent residence, or
naturalization process. We review for abuse of discretion. United
States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000).
Federal Rule of Evidence 701 provides that a lay witness may
express opinions that are “(a) rationally based on the perception
of the witness, (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue, and not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702 [on testimony by expert witnesses].”
The rule “permits lay witnesses to offer an opinion on the basis of
relevant historical or narrative facts that the witness has
perceived.” Certain Underwriters at Lloyd’s, London v. Sinkovich,
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232 F.3d 200, 203 (4th Cir. 2000) (quotation marks and citations
omitted).
Newman, Comfort, and Knight, former INS immigration examiners,
and von Briesen, an officer at the Department of State, explained
the requirements for obtaining asylum, lawful permanent resident
status, or naturalization, and the applicant’s duty to be truthful.
The four witnesses expressed opinions based on relevant facts that
they perceived in completing departmental functions. Their
opinions about the consequences for an applicant who makes an
untruthful statement on an application were based on firsthand
knowledge of department protocol that is not overly technical or
particularly specialized in nature. In addition, although the
Government conceded that Comfort could be certified as an expert
and that “it [was] certainly sufficient for someone with this man’s
amount of experience to say this is how they were trained, this is
our procedure, this is the law, and this is why the statements are
material,” we cannot say that the district court abused its
discretion in allowing Comfort, any more than it did von Briesen,
Newman, and Knight, to testify as a lay witness rather than as an
expert witness. J.A. 1252-53.
Farah additionally observes that Newman and Comfort did not
process any of her immigration papers or interview her in
conjunction with any of her immigration applications, and Knight
reviewed her application but testified that he could not recall any
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details about his review. Accordingly, Farah argues, their
testimony as to what information is material in determining whether
an immigration application should be granted was mere speculation
as to the information that was actually material to the immigration
officers who did review her applications and, therefore, their
testimony was irrelevant and inadmissible. See Fed. R. Evid. 402.
For the reasons just stated, we find this argument, too,
unavailing. The district court did not abuse its discretion in
allowing the testimony of von Briesen, Comfort, Newman, and Knight.
Motion for Judgment of Acquittal
After the jury returned a guilty verdict, Farah unsuccessfully
moved for judgment of acquittal. She argued that the Government
presented several witnesses who lacked personal knowledge about her
applications for asylum and naturalization, that it presented
insufficient evidence to prove that she was not in the United
States from January 1991 until October 1992, and that it never
offered evidence about Farah’s personal understanding of her clan
identity or evidence to prove that Farah was not persecuted as she
described. We review de novo a district court’s denial of a motion
for judgment of acquittal. United States v. Smith, 451 F.3d 209,
216 (4th Cir. 2006). We must “sustain a guilty verdict if, viewing
the evidence in the light most favorable to the prosecution, the
verdict is supported by ‘substantial evidence.’” Id. (citation
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omitted). Substantial evidence is “evidence that a reasonable
finder of fact could accept as adequate and sufficient to support
a conclusion of a defendant’s guilt beyond a reasonable doubt.”
Id. (citation omitted).
Viewing the evidence in the light most favorable to the
Government, substantial evidence——much of it catalogued earlier in
this opinion——supports the jury’s guilty verdict. The Government’s
case was not without its weaknesses, but the “jury, not the
reviewing court,” fills in the holes as it elects by “weigh[ing]
the credibility of the evidence and resolv[ing] any conflicts in
the evidence presented.” Id. at 217 (citation omitted). Moreover,
even Farah concedes that she has provided “inconsistent statements”
on her immigrations applications and the question is simply whether
her statements were knowingly false as opposed to something more
benign. We sustain the district court’s refusal to enter a
judgment of acquittal.
Motion for a Mistrial
Finally, Farah argues that two statements made by the
Government during closing arguments required the district court to
grant her motion for a mistrial. Because the “denial of a
defendant’s motion for a mistrial is within the sound discretion of
the district court,” we will disturb such a denial “only under the
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most extraordinary of circumstances.” United States v. Dorlouis,
107 F.3d 248, 257 (4th Cir. 1997).
Farah first highlights the Government’s remark that defense
counsel had not offered a defense to Farah’s alleged false
statements and, instead, had merely “attack[ed] the government for
taking the time” to investigate and indict Farah. J.A. 1725.
Farah contends that this statement required a curative instruction,
which the district court declined to give, because it improperly
suggested to the jury that Farah had a burden to present a defense.
Second, the Government surmised to the jury that if it had indicted
Farah any earlier, she would have argued that the Government
“rushed judgment.” J.A. 1727. Farah contends that this statement
led the jury to believe that the Government had been investigating
her since the date of her crime, a suggestion she could not rebut
because she could not use the 1998 INS memorandum at trial.
Our test to determine whether alleged incidents of
prosecutorial misconduct warrant reversal asks first, whether the
prosecutor’s remarks or conduct was improper, and second, whether
such remarks or conduct prejudicially “affected the defendant’s
substantial rights so as to deprive [her] of a fair trial.” United
States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003) (citation
omitted). Under this test, the Government’s statements, taken as
a whole, were merely argumentative——in the fashion of closing
arguments——and therefore not improper. Further, the statements did
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not deprive Farah of a fair trial because the district court
adequately instructed the jury that the burden of proof remained
with the Government and that closing arguments are not evidence.
On these facts, no mistrial was warranted.
III.
For the foregoing reasons, we affirm the rulings of the
district court.
AFFIRMED
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