United States v. Serag , 188 F. App'x 204 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4927
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HASSAN SERAG,
Defendant - Appellant.
No. 05-4945
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOYCE SNOWDEN,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-05-74)
Submitted: March 29, 2006 Decided: May 30, 2006
Before WILKINS, Chief Judge, and WIDENER and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sol Z. Rosen, Washington, D.C.; Robert F. Horan III, HORAN &
FISHER, Fairfax, Virginia, for Appellants. Paul J. McNulty, United
States Attorney, Jeanine Linehan, Assistant United States Attorney,
Kevin R. Gingras, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
In these consolidated appeals, co-defendants Hassan Serag
and Joyce Snowden appeal their convictions on one count of
conspiracy to commit immigration fraud, in violation of 18 U.S.C.
§§ 371, 1001(a), and 1546(a) (2000) (“Count One”). Defendant
Snowden also appeals her conviction on one count of making a
materially false statement, in violation of 18 U.S.C. § 1001(a)
(“Count Four”).
The charges against Serag and Snowden stem from an
ongoing conspiracy to arrange fraudulent marriages between Middle
Eastern men and African-American women. While this conspiracy
apparently involved many different “brides” and “grooms,” the
particular accusation that was the subject of the trial was that
Serag and Snowden assisted in arranging a sham marriage between co-
conspirators Mahmoud Ahmed and Rosetta Harrod. Serag introduced
Ahmed to Aabid Rashad Shoeib, a fellow co-conspirator, who, with
the assistance of co-conspirator Teresa Dunn, arranged the Harrod-
Ahmed marriage for $1500. Serag then asked Snowden to rent the
basement of her home to Ahmed and Harrod so that they could appear
to have established a matrimonial domicile. Snowden, Harrod, and
Ahmed signed a lease, which Ahmed submitted to the Customs and
Immigration Service (“CIS”) in support of his petition for change
in residency status. Ahmed also submitted signed affidavits from
- 3 -
Serag and Snowden, in which they affirmed that Ahmed and Harrod had
been married since May 16, 2003.
While there is no dispute that Harrod and Ahmed did in
fact legally marry, there is similarly no dispute that their
marriage was a sham. Ahmed and Harrod never lived together as
husband and wife; they never occupied Snowden’s basement, or even
so much as spent one night there. At the CIS immigration
interview, Harrod fully admitted to the fraudulent nature of the
marriage. CIS began an investigation that led to the arrests of
Ahmed, Harrod, Shoeib, Dunn, Serag, and Snowden. Serag and Snowden
were the only two to plead not guilty; the other four co-
conspirators pled guilty and testified for the Government at trial.
After considering the various issues raised by
Defendants, we affirm Defendants’ convictions. Serag and Snowden
raise two common issues, as well as several individual claims. The
first common issue is Defendants’ claim of prosecutorial
misconduct. The purported misconduct was the prosecutor’s
reference to Defendants’ signed affidavits as evidence of their
involvement in the conspiracy to commit immigration fraud. These
affidavits provided the basis for two other false statement
charges, both of which were dismissed upon Defendants’ motion for
judgment of acquittal.
To establish a prosecutorial misconduct claim, the
defendant must show: (1) the prosecutor’s conduct was improper,
- 4 -
and (2) the conduct “prejudiced the defendant’s substantial rights
so to deny the defendant a fair trial.” United States v. Alerre,
430 F.3d 681, 689 (4th Cir. 2005). The prosecutor’s conduct here
was not improper. Though the district court dismissed the false
statement charges that were predicated on these affidavits, the
affidavits remained in evidence as to the Government’s conspiracy
case; thus, it was not improper for the prosecutor to refer to them
as overt acts in furtherance of the conspiracy.
Defendants’ next assignment of error also stems from the
district court’s dismissal of the two false statement charges.
Defendants challenge the propriety of the district court’s jury
instruction on conspiracy because it referred to “false statements”
and “false documents,” despite the court’s dismissal of the false
statement charges. Although Defendants initially objected to the
instruction, upon the district court’s amendment thereto, both
Defendants agreed to the amended instruction; accordingly, we
review for plain error. See United States v. Stitt, 250 F.3d 878,
883 (4th Cir. 2001).
The district court’s jury instruction on conspiracy was
not plainly erroneous. The judgment of acquittal as to the two
false statement charges did not preclude the Government from using
the affidavits as evidence of Defendants’ involvement in the
conspiracy to commit immigration fraud, or remove the affidavits
from the body of evidence pertaining to the conspiracy offense. As
- 5 -
Defendants do not claim the district court misstated the applicable
law or improperly referenced the dismissed charges, the district
court committed no error in its jury instruction.
The next two claims are raised only by Defendant Serag.
Serag first contends insufficient evidence existed to support his
conspiracy conviction. This court reviews sufficiency of the
evidence challenges by determining whether, viewing the evidence in
the light most favorable to the Government, any rational trier of
fact could find the essential elements of the crime beyond a
reasonable doubt. Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.
1982). We review both direct and circumstantial evidence, and
permit the “[G]overnment the benefit of all reasonable inferences
from the facts proven to those sought to be established.”
Tresvant, 677 F.2d at 1021.
In evaluating the sufficiency of the evidence, this court
does not “weigh the evidence or review the credibility of the
witnesses.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997). Where the evidence supports differing reasonable
interpretations, the jury decides which interpretation to credit.
Id. (quotations omitted). This court will uphold the jury’s
verdict if there is substantial evidence to support it, and will
reverse only in those rare cases “‘where the prosecution’s failure
is clear.’” United States v. Beidler, 110 F.3d 1064, 1067 (4th
- 6 -
Cir. 1997) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)).
When an appellant challenges the sufficiency of the evidence
underlying his or her conviction, the uncorroborated testimony of
a single witness may be sufficient evidence of guilt, even if the
witness is an accomplice, a co-defendant, or an informant. See
United States v. Wilson, 115 F.3d 1185, 1189-90 (4th Cir. 1997).
There was sufficient evidence on which the jury could
have convicted Serag. The Government presented the testimony of
four of the six co-conspirators involved in the marriage-fraud
conspiracy, each of whom testified as to Serag’s knowledge of the
conspiracy and his involvement therein.
Serag’s last claim alleges the district court erred in
admitting evidence of his prior involvement in procuring fraudulent
marriages, in violation of Federal Rule of Evidence 404(b).
Federal Rule of Evidence 404(b) prohibits the admission of evidence
of “other crimes” solely to prove a defendant’s bad character, but
allows for the admission of such evidence “for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Fed. R.
Evid. 404(b). For such evidence to be admissible under Rule
404(b), it must be necessary, reliable, and relevant to an issue
other than character.
When reviewing a district court’s judgment as to
admissibility of evidence under Fed. R. Evid. 404(b), this court
- 7 -
must examine the evidence “in the ‘light most favorable to its
proponent, maximizing its probative value and minimizing its
prejudicial effect.’” United States v. Love, 134 F.3d 595, 603
(4th Cir. 1998) (quoting United States v. Simpson, 910 F.2d 154,
157 (4th Cir. 1990)). The admission is reviewed for an abuse of
discretion and the decision of the district court to admit Rule
404(b) evidence will not be disturbed unless it is arbitrary or
irrational. See United States v. Mark, 943 F.2d 444, 447 (4th Cir.
1991); United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988).
The district court permitted two co-conspirators to
testify about Serag’s prior involvement in procuring American
brides for Egyptian men seeking to obtain legal permanent residence
status. This testimony was offered to show Serag’s knowledge and
understanding of both the marriage-fraud scheme in particular and
the immigration process in general. Thus, the district court’s
decision to admit this testimony was not arbitrary or irrational.
Defendant Snowden also raises two individual issues.
Snowden first contends the district court erred in denying her Rule
29 motion for judgment of acquittal and her Rule 34 motion to
arrest judgment on Count Four, the false statement charge. Snowden
bases both assignments of error on her contention that the false
statement charge was legally insufficient because it was predicated
on a lease, and a lease is not a “statement” under 18 U.S.C.
§ 1001(a).
- 8 -
This court reviews the denial of a Rule 29 motion de
novo. United States v. Ryan-Webster, 353 F.3d 353, 359 (4th Cir.
2003). Contrary to Snowden’s assertion, a contract such as a lease
can be considered a “statement”; further, the factual
misrepresentations contained therein, notably, that a deposit was
given when, in fact, it was not, and the back-dated execution date,
qualify it as “false.” See, e.g., United States v. Blankenship,
382 F.3d 1110, 1132-33 (11th Cir. 2004). As the Government
submitted ample proof as to the other elements of the charged
offense, the district court properly denied the Rule 29 motion.
As to Snowden’s Rule 34 motion challenging the sufficiency of
the indictment, because Snowden first raised this claim after the
jury had returned its verdict, we review for plain error. See
United States v. Quinn, 359 F.3d 666, 672-74 (4th Cir. 2004)
(ruling that the district court did not commit plain error in
entering convictions against defendants who first challenged the
sufficiency of the underlying indictment post-verdict, because, in
reviewing such a challenge, “‘every intendment is then indulged in
support of sufficiency’”) (quoting United States v. Vogt, 910 F.2d
1184, 1201 (4th Cir. 1990)); see also United States v. Rodriguez,
360 F.3d 949, 958 (9th Cir. 2004) (reviewing claim of insufficiency
of indictment raised for first time in Rule 34 motion to arrest
judgment for plain error). Snowden’s argument fails because the
- 9 -
indictment is plainly sufficient on its face as it stated the
necessary facts relevant to the false statement charge.
Snowden’s last argument is that she was unfairly
prejudiced by the joinder of her trial with Serag’s, and the
district court’s denial of her motion for a mistrial. Snowden
claims the testimony elicited from Serag about his knowledge of
other Middle Eastern men marrying American women to obtain legal
permanent residence status and about Snowden’s personal history —
including her two prior Egyptian husbands and her previous romantic
involvement with Serag — prejudiced her in the eyes of the jury.
This court reviews both the denial of a motion to sever
and the denial of a motion for a mistrial for abuse of discretion.
United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999);
United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). To
obtain severance under Fed. R. Crim. P. 14, a defendant must show
that the joinder “was so manifestly prejudicial that it outweighed
the dominate concern with judicial economy and compelled exercise
of the court’s discretion to sever.” United States v. Acker, 52
F.3d 509, 514 (4th Cir. 1995) (citing United States v. Armstrong,
621 F.2d 951, 954 (9th Cir. 1980)). The burden is upon the
defendant to make a particularized showing of prejudice from the
denial of a severance motion. United States v. Clark, 928 F.2d
639, 645 (4th Cir. 1991).
- 10 -
In reviewing the denial of a motion for a mistrial, in
order to show an abuse of discretion, a defendant must show
prejudice. United States v. West, 877 F.2d 281, 288 (4th Cir.
1989). Reversal is required only if there is a clear abuse of
discretion and a “‘reasonable possibility that the jury’s verdict
was influenced by the material that improperly came before it.’”
United States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992)
(quoting United States v. Barnes, 747 F.2d 246, 250 (4th Cir.
1984)).
Snowden fails to demonstrate she suffered substantial
prejudice so to support this court upsetting either the district
court’s denial of her motion to sever or her motion for a mistrial.
Even excluding the entirety of Serag’s testimony, compelling
evidence against Snowden remained. Snowden thus fails to meet the
requisite high level of prejudice because we discern no reasonable
possibility that she would have been acquitted had her severance
motion been granted. We accordingly conclude the district court
did not abuse its discretion in denying Snowden’s motions to sever
or for a mistrial.
Having considered all the claims raised on appeal, we
affirm Defendants’ convictions. We dispense with oral argument
because the facts and legal contentions are adequately presented in
- 11 -
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 12 -