United States v. Moniruzzaman ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-3327
v. (District of K ansas)
(D.C. No. 04-CR-40081-SAC)
M O H A M M A D MO N IR UZZA M AN,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
I. IN TR OD UC TIO N
Defendant M ohammad M oniruzzaman was convicted after a jury trial of
entering a false marriage for purposes of evading United States immigration laws,
conspiracy to enter a false marriage for purpose of evading United States
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff.
Jan. 1, 2007).
immigration law s, and conspiracy to provide false statements. He appeals his
conviction, raising allegations of erroneous evidentiary rulings and jury
instructions, prosecutorial misconduct, and cumulative error. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm M oniruzzaman’s
convictions.
II. BAC KGR OU N D
M oniruzzaman and his brother, Qamruzzaman Islam, are citizens of
Bangladesh. In 2003, Islam began comm unicating with Amanda Revell in an
Internet chat room. Shortly thereafter, the two met for dinner. During the meal,
Islam asked Revell if she would be interested in marrying his friend to help the
friend get a “green card.” Revell eventually agreed to marry Islam’s friend in
exchange for monthly payments of $150 and the understanding she would receive
additional payments if Islam’s friend received a work permit and United States
citizenship. Revell signed a marriage license and immigration papers provided to
her by Islam.
On M ay 9, 2003, Islam picked up Revell at her home in Topeka and drove
her to the Douglas County Courthouse in Lawrence, Kansas. Revell met the
groom, appellant M oniruzzaman, in the parking lot of the courthouse and learned
he was Islam’s brother. After the ceremony, M oniruzzaman drove Revell back to
her home in Topeka. Between M ay 2003 and November 2003, Revell saw
M oniruzzaman approximately once a month, when he brought monthly cash
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payments to her. In some months, Revell saw M oniruzzaman several times
because he needed her signature on tax forms and other documents. Among the
documents Revell signed were papers requesting a change to M oniruzzaman’s
immigration status and a lease for a University of Kansas student housing
apartment. Revell also accompanied M oniruzzaman to his bank, where
M oniruzzaman added her to his account.
In November 2003, Revell went to the Topeka Police Department and told
Officer Tom Glor about her marriage to M oniruzzaman. Glor contacted
Immigration and Customs Enforcement (“ICE”) and a federal immigration
investigation was commenced by Agent Ken Lovesee. Revell informed Lovesee
she and M oniruzzaman would be interviewed by immigration officials on
December 9, 2003, regarding M oniruzzaman’s request for a change in his
immigration status. Revell also informed Lovesee she was meeting with
M oniruzzaman and Islam on D ecember 2 to discuss the December 9 meeting and
“go over some details and make sure that everything was correct and would go
smooth at INS.” Revell agreed to wear a recording device to the meeting with
M oniruzzaman and Islam.
On December 2, Lovesee and Glor observed Islam and M oniruzzaman pick
Revell up at her residence then drive to a M cDonald’s restaurant where the three
sat at a booth for approximately one hour. Revell testified that during this
meeting M oniruzzaman was “coaching [her] to say things for IN S like his birth
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date and, you know, Social Security number and things of that nature.” After
Revell returned to her residence, Lovesee and Glor retrieved the digital recording
device and took it to the FBI’s electronic surveillance unit where the information
was downloaded to a compact disc.
On December 9, 2003, M oniruzzaman was interviewed by Daniel Byrd, an
employee of the United States Citizenship and Immigration Services. Prior to the
interview, Byrd had been advised by Lovesee that M oniruzzaman was under
investigation. M oniruzzaman told Byrd he and Revell had met on the campus of
the University of Kansas, they had dated for three months before getting engaged,
they lived together, and he had offered her no compensation to marry him except
“mutual understanding.”
M oniruzzaman w as charged by indictment with entering into a false
marriage for the purpose of evading immigration laws, in violation of 8 U.S.C. §
1325(c); conspiring with Islam to enter into a false marriage for the purpose of
evading immigration laws, in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. §
371; and conspiring with Islam to provide false statements, in violation of 18
U.S.C. §§ 371, 1001. He was tried together with Islam and convicted by a jury on
all three counts. This appeal followed.
III. D ISC USSIO N
M oniruzzaman first challenges the district court’s refusal to give a
cautionary instruction to the jury. His request for the instruction was prompted
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by the testimony of Agent Byrd. During his direct examination, Byrd stated his
job duties involved review ing applications filed by individuals seeking both
permanent residency and citizenship in the United States and determining their
eligibility. He testified it was part of his job to be aware of the legal standards
that apply to such applications and, pursuant to Section 204(c) of the Immigration
and Nationality Act (8 U.S.C. § 1154(c)), he could not approve a petition if it was
“determined that the marriage— the qualifying marriage was entered into for the
purpose of evading immigration laws.” M oniruzzaman argued before the district
court that Byrd’s testimony could mislead the jury into believing Byrd, and not
the court, was the source of the law to be applied in the case. Accordingly,
M oniruzzaman requested the court give the following cautionary instruction:
Daniel Byrd, an employee of the Bureau of Citizenship, testified
regarding certain law s that governed his jobs and about certain
findings he made as part of his job, you are advised that this Court is
the sole source of the law that applies to this case and you are the
sole judges of the facts, the conclusion of the witness concerning his
interpretation of the law and facts should be disregarded by the jury.
The district court refused to give the instruction and M oniruzzaman alleges error
in that decision.
This court reviews a district court’s refusal to give a requested instruction
for abuse of discretion but reviews the instructions as a whole de novo to
determine whether they correctly and adequately state the applicable law. Powers
v. M JB Acquisition Corp., 184 F.3d 1147, 1152 (10th Cir. 1999). If “the charge
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as a whole adequately states the law , the refusal to give a particular instruction is
not an abuse of discretion.” United States v. Suntar Roofing, Inc., 897 F.2d 469,
473 (10th Cir. 1990). Although the district court refused to give the instruction
proposed by M oniruzzaman, it did instruct the jury as follow s:
Although you as jurors are the sole judges of the facts, you are
duty bound to follow the law as stated in the instructions of the court
and to apply the law so given to the facts as you find them from the
evidence before you.
...
Regardless of any opinion you may have as to what the law
ought to be, it would be a violation your sworn duty to base a verdict
upon any view of the law other than that given in the instructions of
the court.
This instruction properly informed the jury the court’s instructions w ere the sole
source of the applicable law. Thus, it conveyed essentially the same information
to the jury as that contained in the instruction proposed by M oniruzzaman. The
mere fact the court refused to use the exact language requested by M oniruzzaman
does not constitute error. A defendant is entitled only to an instruction that
correctly states the law; he is not entitled to a particularly worded instruction.
Upon de novo review of the record, we conclude the instructions given by the
district court fairly and adequately informed the jury on the governing issues and
the legal standards to apply. Accordingly, the district court did not abuse its
discretion by refusing to give the instruction proposed by M oniruzzaman.
M oniruzzaman next challenges the district court’s ruling admitting into
evidence the recording of the December 2 meeting between Revell, Islam, and
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M oniruzzaman. This court reviews a district court’s evidentiary rulings for abuse
of discretion. United States v. Jenkins, 313 F.3d 549, 559 (10th Cir. 2002). The
recording was admitted over M oniruzzaman’s objection that it was inadequately
authenticated under Rule 901 of the Federal Rules of Evidence. Specifically,
M oniruzzaman argued the government failed to lay a proper foundation for the
admission of the recording because Agent Lovesee testified he was not familiar
with the voices of Islam and M oniruzzaman and distinguished between them only
by context.
Rule 901 permits lay opinion testimony as a foundation for voice
identification if that opinion is “based upon hearing the voice at any time under
circumstances connecting it w ith the alleged speaker.” Fed. R. Evid. 901(b)(5).
Revell testified the voices on the recording were those of herself, Islam, and
M oniruzzaman. She further testified the recording was an accurate recording of
the conversation. Lovesee testified he did not know M oniruzzaman’s voice, but
was able to distinguish between Islam and M oniruzzaman on the recording by the
context of the conversation. Lovesee further explained,
W ell, to our knowledge there were three people only speaking. One
of the three was [Revell], so we knew it to be [Revell] speaking. The
other two were [M oniruzzaman] and [Islam] and I went by the
context of the interview of who was speaking about what and I
figured out who was speaking.
The district court did not abuse its discretion when it admitted the
recording. Revell’s testimony alone w as sufficient to lay the necessary
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foundation. Lovesee never testified as to the substance of the conversation.
Instead, the recording was played for the jury. Thus, Lovesee’s inability to
conclusively distinguish Islam’s voice from M oniruzzaman’s is irrelevant to the
question of whether the recording was properly admitted. The jury was able to
determine for themselves what was said and who was speaking.
In a related argument, M oniruzzaman asserts the district court erred by
admitting a transcript Lovesee prepared from the recording of the D ecember 2
meeting. The transcript was played for the jury by means of a scrolling video as
the recording was played. According to M oniruzzaman, permitting the jury to
consider Lovesee’s opinion regarding who was making particular statements
during the conversation amounted to permitting inadmissible expert opinion.
Prior to permitting the jury to see the transcript, the district court instructed
them as follow s:
It is important, however, that you understand that in this case the
tape is evidence and the transcript is not evidence. If you perceive
any variations between w hat you hear and what you read, you must
be guided solely by the tape and not the transcript. If you cannot
determine from the tape whether particular words are spoken or who
is speaking them, you must disregard the transcript insofar as those
words are concerned. The transcript is intended only to be an aid to
you. You are given the direction to decide whether to use a
transcript or not. You have the discretion to do so.
“The admission of transcripts to assist the trier of fact . . . lies within the
discretion of the trial court.” United States v. Devous, 764 F.2d 1349, 1354 (10th
Cir. 1985). This court has previously held that a district court does not commit
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error by admitting a transcript if a proper cautionary instruction is given to the
jury. United States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991); United States v.
Lucero, 601 F.2d 1147, 1149-50 (10th Cir. 1979). Here, the district court clearly
and explicitly instructed the jury to disregard the transcript if they could not
determine for themselves from the recording what words were being spoken or
who was speaking them. In light of the detailed cautionary instruction given in
this case, we conclude M oniruzzaman’s argument the district court abused its
discretion when it admitted the transcript has no merit.
M oniruzzaman next argues a comment made by the government during
closing argument amounted to prosecutorial misconduct. During closing
argument, Islam’s counsel objected 1 when the prosecution made the following
statement,
Folks, they say that this is the wrong forum for this and, you know,
we shouldn’t be here, we should be over at INS. W ell, look, we have
those immigration laws for a reason and we have them in this country
at this time it’s more important than any other time in probably our
history.
M oniruzzaman seeks a reversal of his conviction, asserting this comm ent was an
improper reference to his race and religion and was made for the sole purpose of
reminding the jury of “the on-going ‘war on terror.’”
1
The objection was phrased as follows: “I object to that. I think that calls
for the w rong conclusion for this jury to reach.” Counsel did not move for a
mistrial.
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“W hen defense counsel contemporaneously objects to a prosecutor’s
comment at trial and moves for a mistrial, we review a district court’s decision to
deny his motion for abuse of discretion.” United States v. Kravchuk, 335 F.3d
1147, 1153 (10th Cir. 2003). The government argues the issue should be
reviewed for plain error because it was Islam, not M oniruzzaman, who objected
when the comment was made. It is unnecessary for us to decide whether the plain
error standard applies because we conclude the comment was not improper. A
review of the record reveals the prosecutor’s comment was made in response to
Islam’s earlier argument that the defendants had committed no federal crime and
their immigration status should be decided solely by Homeland Security. Islam’s
counsel had stated:
You’ve heard testimony that there are proceedings going on in this
courtroom and that there are other proceedings going on with INS
concerning [the] status of these foreign nationals. Ladies and
gentlemen, I would ask you, based on the evidence that you’ve heard,
that we’re in the wrong place. These questions belong in that other
forum. That immigration naturalization service administrative thing
that’s trying to sort out what’s going on. But these young men have
not committed a federal crime for which they should be convicted.
“W hen a prosecutor responds to an attack made by defense counsel, we evaluate
that response in light of the defense argument.” M oore v. Reynolds, 153 F.3d
1086, 1113 (10th Cir. 1998) (quotation omitted). Placed in context, the
prosecutor’s statement is revealed to be nothing more than a benign response to
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Islam’s assertion the federal courts were an inappropriate forum to decide the
immigration status of M oniruzzaman and Islam.
Finally, M oniruzzaman challenges another of the district court’s
evidentiary rulings. The challenged testimony involved the following exchange
between Revell and the prosecution:
Q. Did you ever live together with [M oniruzzaman] as man and
wife?
A. No.
Q. Did you ever intend to live with him as man and wife?
A. No.
Q. As far as you knew from your relationship with M ohamm ad
M oniruzzaman, did he ever intend to live with you as man and wife?
A. No.
M oniruzzaman objected to the last question, stating, “Object to the form of the
question, that’s conclusionary [sic]. He can ask what was said, but that calls for a
conclusion.” The district court overruled the objection and M oniruzzaman now
asserts the testimony was admitted in violation of Rule 701 of the Federal Rules
of Evidence.
Rule 701 permits the admission of lay opinion testimony that is “(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 (3) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.” Fed. R. Evid. 701; United States v. Bush, 405 F.3d 909,
915-16 (10th Cir. 2005). M oniruzzaman argues Revell’s opinion is not rationally
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based on her perceptions because she only met him a few times and had very little
interaction with him. He also asserts her opinion was not helpful to the jury
because they were free to draw their own conclusion about his intention from the
evidence presented.
The district court did not abuse its discretion when it permitted the
testimony. As M oniruzzaman himself concedes, Revell testified the arrangements
for the wedding were all made by Islam, she did not meet him until the day of the
ceremony, and following the ceremony she had very little interaction with him.
Although M oniruzzaman argues Revell’s limited contact with him demonstrates
her testimony was not rationally based on her perceptions of him, these facts
conversely provide a solid foundation for Revell’s opinion that M oniruzzaman did
not intend to live with her as man and wife. Further, the testimony was helpful in
the determination of a fact in issue, i.e., whether M oniruzzaman entered into the
marriage without intending to live with Revell as man and wife. 2
2
M oniruzzaman also argues his convictions must be vacated because the
cumulative effect of all the alleged errors denied him a fair trial. This argument
can be quickly rejected because w e have concluded no actual errors were
committed. M oore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998)
(“Cumulative error analysis applies where there are two or more actual errors; it
does not apply to the cumulative effect of non-errors.”).
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IV . C ON CLU SIO N
For the reasons stated above, M oniruzzaman’s convictions are affirmed.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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