United States v. Brown ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4250
ROBERT BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-01-459)
Argued: January 24, 2003
Decided: April 21, 2003
Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Douglas Adrien Steinberg, LAW OFFICE OF GWENA
KAY TIBBITS, Alexandria, Virginia, for Appellant. Richard D.
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Alexan-
dria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United
States Attorney, Dean Lanter, Special Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
2 UNITED STATES v. BROWN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A grand jury indicted Robert Brown for possessing a forged visa
in violation of 18 U.S.C. § 1546(a). The district court ordered a mis-
trial after the jury deadlocked. Shortly thereafter, one juror contacted
a government case agent to discuss the trial and jury deliberations.
The government disclosed this information to the district court, and
Brown filed motions for sanctions alleging, inter alia, that the juror
contact violated Local Rule 83.5. The district court denied the motion
for sanctions. During retrial, Brown objected to testimony of one lay
witness and one expert witness. The district court overruled both
objections. The second jury found Brown guilty. Brown now appeals
the district court’s rulings on the juror contact issue and the admission
of lay and expert witness testimony. For the reasons that follow, we
affirm the district court.
I.
Robert Brown, a native of Ghana, Africa, was arrested by Immigra-
tion and Naturalization Service ("INS") inspectors on November 17,
2001, at Washington Dulles International Airport ("Dulles"). INS
Inspector Paul Trump arrested Brown after looking at his visa and
determining that it was fraudulent. Inspector Trump based his conclu-
sion on the fact that there was "a strong odor emanating from the visa,
. . . that the security codes on the visa appeared to be incorrect, . . .
and that one of the visa’s security features normally invisible to the
naked eye was clearly visible." On December 13, 2001, a grand jury
indicted Brown for knowingly and unlawfully using and possessing
a visa, knowing it to be forged, counterfeited, altered, or falsely made,
in violation of 18 U.S.C. § 1546(a) (2000). A jury trial was held on
February 13, 2002. The jury deadlocked, and the district judge
declared a mistrial. On February 15, 2002, Brown filed a motion
requesting discovery and bond pending retrial.
UNITED STATES v. BROWN 3
On February 18, 2002, a man entered Inspector Trump’s office at
Dulles, introduced himself as a juror from Brown’s first trial, and
explained the jury’s division of eleven-to-one in favor of conviction.
The juror spoke with Inspector Trump for no more than five minutes,
during which time Inspector Trump nodded at the juror and smiled,
periodically responding to him. The government disclosed the contact
to the district court on February 19, 2002, the same day it filed its
response to Brown’s February 15th motions. Also on that date, the
government indicated to the court its intent to retry the case.
The district court held a hearing, sua sponte, to review the evidence
of the government’s contact with the former juror. The court found
that Inspector Trump did not engage in improper conduct and the
government did not violate Local Rule 83.5. Brown then filed a
motion for sanctions, which included a request to dismiss, with preju-
dice, the indictment against him, because the government had alleg-
edly used the information gained from the conversation between the
juror and Inspector Trump to improperly influence the district court.
The court denied Brown’s motion for sanctions insofar as it was
based on the juror contact,* and a second jury trial was held on Febru-
ary 28, 2002.
During retrial, the government called expert witness Christopher
Misciagno to testify about the application procedures for obtaining a
visa from the U.S. Embassy in Accra, Ghana between April and
December 2001, and to testify about the types of visa fraud that took
place in Accra during 2001. Misciagno testified that the records in the
State Department visa applicant database and the characteristics of the
altered visa were consistent with the type of visa fraud prevalent in
Ghana in 2001. Brown objected to this testimony, arguing that it
would be confusing to the jury. The district court sustained the objec-
tion on the grounds that the question had already been answered.
The government also called INS Inspector William Allen, who
inspected Brown’s visa at Dulles. Inspector Allen testified that Brown
appeared nervous and displayed a demeanor consistent with actions
*Brown’s motion for sanctions was also based on previously undis-
closed statements by the government. The district court granted that por-
tion of the motion.
4 UNITED STATES v. BROWN
he was trained to recognize as those of a person who is "not being
completely honest or concealing a fact." Brown objected to this testi-
mony, arguing that Allen was offering improper expert testimony,
which he had not been qualified to do. The district court overruled the
objection, stating, "An ordinary person can testify to emotional states
of other people or they appeared a certain way, at least how they
appear."
At the conclusion of the retrial, the jury convicted Brown of violat-
ing 18 U.S.C. § 1546(a). The district court sentenced him to six
months in prison with credit for time served, three years of supervised
release with special conditions related to INS deportation proceed-
ings, and a special assessment of $100.00. Brown timely filed this
appeal.
II.
We apply a clear error standard in reviewing a district court’s
denial of a motion to dismiss an indictment based on alleged prosecu-
torial misconduct. United States v. McDonald, 61 F.3d 248, 253 (4th
Cir. 1995), overruled on other grounds by United States v. Wilson,
205 F.3d 720 (4th Cir. 2000). "A finding is clearly erroneous when,
although there is evidence to support it, on the entire evidence the
reviewing court is left with the definite and firm conviction that a
mistake has been made." United States v. Breza, 308 F.3d 430, 433
(4th Cir. 2002) (citing Faulconer v. Comm’r., 748 F.2d 890, 895 (4th
Cir. 1985)) (internal quotations omitted). We review a district court’s
ruling to admit the testimony of lay and expert witnesses for abuse of
discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) ("We
have held that abuse of discretion is the proper standard of review of
a district court’s evidentiary rulings."); Tyger Constr. Co. Inc. v. Pen-
sacola Constr. Co., 29 F.3d 137, 142 (4th Cir. 1994); Mattison v. Dal-
las Carrier Corp., 947 F.2d 95, 110 (4th Cir. 1991). An abuse of
discretion occurs when a district court makes an error of law. United
States v. Barile, 286 F.3d 749, 753 (4th Cir. 2002). Where we find
that a district court made an error of law with respect to evidentiary
rulings, we conduct a harmless error review under Federal Rule of
Criminal Procedure 52. United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997) ("In order to find a district court’s error harmless, we
need only be able to say with fair assurance, after pondering all that
UNITED STATES v. BROWN 5
happened without stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the error." (internal
quotations and citations omitted)).
III.
Brown alleges that the district court: (1) erred in finding the gov-
ernment did not violate Local Rule 83.5; (2) abused its discretion by
permitting an expert witness to testify as to whether documented evi-
dence was consistent with a particular type of fraud; and (3) abused
its discretion by permitting a lay witness to testify as to Brown’s
truthfulness. We examine each of these issues in turn.
A.
We begin with Brown’s asserted violation of Local Rule 83.5.
Under Local Rule 83.5, United States District Court for the Eastern
District of Virginia:
No attorney or party litigant shall personally, or through any
investigator or other person acting for the attorney or party
litigant, interview, examine or question any juror or alter-
nate juror with respect to the verdict or deliberations of the
jury in any action, civil or criminal, except on leave of such
court granted upon good cause shown and upon such condi-
tions as the court shall fix.
The Eastern District of Virginia has held that the purpose of this rule
is to allow jurors to "return to their normal lives [at the conclusion of
the case] without fear or concern of attorneys, or attorneys’ represen-
tatives, knocking on their door or calling them at home in the evening
to question them about the whys and wherefores of their respective
verdicts." Daniel v. Jones, 39 F. Supp. 2d 635, 637-38 (E.D. Va.
1999). It follows, therefore, that a violation of the rule occurs when
an attorney or a representative of the attorney initiates contact with a
juror regarding the jury’s verdict or deliberations. The evidence in the
record indicates that the juror sought out Inspector Trump to discuss
the jury deliberations. Inspector Trump testified that no one instructed
him to find out what the verdict was or what the division was between
6 UNITED STATES v. BROWN
the jurors. The Assistant U.S. Attorney, Mr. Rossi, also testified that
Inspector Trump was not asked to try to find out the division of the
jury.
Further, there is no evidence in the record that shows that Inspector
Trump interviewed, examined or questioned the juror. To the con-
trary, the record is undisputed that Inspector Trump nodded, smiled,
and periodically responded to the juror, but did not ask him questions
or press him further. Because Inspector Trump did not initiate contact
with the juror and because Brown failed to demonstrate that the gov-
ernment interviewed, examined or questioned the juror with respect
to jury deliberations, we find that there was no violation of Local
Rule 83.5 and affirm the district court’s denial of Brown’s motion for
sanctions based on the juror contact.
B.
Next, Brown claims that the district court abused its discretion in
permitting the testimony of Christopher Misciagno. Misciagno testi-
fied that the characteristics of the altered visa Brown held were con-
sistent with the type of visa fraud prevalent in Ghana in 2001. He was
asked the following questions and gave the following responses:
Q. Now do you have an expert opinion based upon your
knowledge, training, skill, and background as to
whether or not the information contained on Govern-
ment Exhibit 8C, the nonimmigrant visa application
detail in the name of Kwame Amoasi, as well as the
information contained in the sealed documents 8A and
9 and the passport, Government Exhibit 2 as well as the
visa, based upon these documents and your own train-
ing and experience, is the evidence of these documents
and the evidence you’ve reviewed in this case consis-
tent with the type of visa fraud that you were seeing in
the summer of 2001 in Ghana?
A. Yes, sir. It’s a perfect example of that, that exact type
of fraud that I wrote the report on.
Q. And tell the members of the jury why.
UNITED STATES v. BROWN 7
A. Mr. Kwame Amoasi, based upon the information that
I have as part of these exhibits, it shows that he proba-
bly had a fairly easy time obtaining a visa in the
embassy in Accra. He then appears to have taken this
visa, passed it off to a visa fixer, who made, our esti-
mation was, about $50 for the payment of his services
to go and obtain the visa.
Brown’s lawyer objected to this testimony, which the district court
sustained on the grounds that the question had been asked and
answered. Misciagno had earlier testified that the visa looked as
though it had been altered and provided examples of the errors on the
visa that led him to that conclusion. Brown did not object to the ear-
lier testimony, nor did he, after his later objection was sustained,
move to strike Misciagno’s comments from the record or request that
the jury be instructed to disregard Misciagno’s prior testimony.
Brown now contends that the testimony was impermissibly prejudi-
cial to him because Misciagno was stating his belief that Brown was
guilty of the crime. However, Brown has not preserved this issue for
appeal. Kollsman, a Div. of Sequa Corp. v. Cohen, 996 F.2d 702, 707
(4th Cir. 1993) ("To preserve an issue for appeal, an objection must
be timely and state the grounds on which it was based." (citations
omitted)). His later objection was sustained, and there were no other
objections made to Misciagno’s testimony. Therefore, we find that
there was no error.
C.
Finally, Brown contends that the district court abused its discretion
by permitting a lay witness to testify as to his truthfulness. During
retrial, Inspector Allen testified that Brown appeared nervous while
being questioned. Allen explained his opinion by stating,
At first, it [Brown’s demeanor] was about normal. As I
started to pry and ask him questions, he became nervous. He
started searching the room. In training, we learn certain tell-
tale signs when a person is not being completely honest or
they’re concealing a fact. There’s certain body language that
they’ll display.
8 UNITED STATES v. BROWN
Brown objected at trial, arguing that Inspector Allen was proffering
unqualified expert testimony. The district court judge overruled the
objection, concluding that Inspector Allen was permitted to explain to
the jury why he made the statement that Brown was nervous. Brown
asserts that this ruling constitutes error because it allowed the witness
to give an opinion as to Brown’s truthfulness and honesty. We agree.
A lay witness may testify in the form of an opinion or inference
provided that the testimony is "(a) rationally based on the perception
of the witness, (b) helpful to a clear understanding of the witness’ tes-
timony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope
of Rule 702." Fed. R. Evid. 701; see also MCI Telecomm. Corp. v.
Wanzer, 897 F.2d 703, 706 (4th Cir. 1990) ("A lay witness in a fed-
eral court proceeding is permitted under Fed. R. Evid. 701 to offer an
opinion on the basis of relevant historical or narrative facts that the
witness has perceived." (internal quotations and citation omitted)).
The district court overruled Brown’s objection because it found that
Inspector Allen’s testimony provided an explanation of why he
thought Brown was nervous. However, Inspector Allen’s testimony
went further than that. Inspector Allen’s statement that Brown started
searching the room provided an explanation for his conclusion that
Brown was nervous. His subsequent statement, "In training, we learn
certain telltale signs when a person is not being completely honest or
they’re concealing a fact," did not explain Inspector Allen’s conclu-
sion that Brown was nervous. Instead, it was testimony that Brown’s
nervousness meant that he was not being completely honest or con-
cealing a fact. This testimony is beyond the scope of Rule 701. While
Inspector Allen is permitted to explain why he thought Brown was
nervous, he cannot testify as to whether Brown was being truthful or
was concealing a fact. See United States v. Cecil, 836 F.2d 1431 (4th
Cir. 1988) (holding that the credibility of a witness is an issue for the
jury (citing United States v. Wertis, 505 F.2d 683, 685 (5th Cir.
1975)). Therefore, we conclude that the district court erred in admit-
ting that portion of Inspector Allen’s testimony that speculated as to
Brown’s credibility.
Although the district court committed error in admitting that por-
tion of Inspector Allen’s testimony, we find that the error is harmless.
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). The dis-
UNITED STATES v. BROWN 9
trict court’s error was harmless because the errant evidence presented
by Inspector Allen did not substantially sway the verdict. The errant
portion of Inspector Allen’s testimony was his statement that he is
trained to recognize signs "when a person is not being completely
honest or they’re concealing a fact." However, a reasonable juror
could conclude that Brown was not being honest or was concealing
a fact based on Inspector Allen’s testimony concerning the facts upon
which he based his conclusion that Brown was nervous. Inspector
Allen testified that Brown initially appeared calm, but became ner-
vous as the questioning progressed; he began searching the room and
assumed a "fight-or-flight" stance.
The most telling evidence that could lead a reasonable juror to find
Brown was not being honest is the testimony of Brown himself.
Brown testified that he went to the American embassy in Ghana to
secure a visa, that he paid $45 to a woman working inside the
embassy, and that, after paying the money, he received a yellow
appointment sheet for his interview. Brown also testified that, when
he returned to the embassy for his appointment, he was interviewed
for approximately twenty minutes and the yellow appointment sheet
was taken back from him by the consular. This testimony was contra-
dicted by Misciagno, who provided a different account of the process
by which visas are obtained in Ghana. Misciagno testified that: (1) the
guards would have handed visa applications to individuals outside the
gate — there was no reason for the applicant to come inside the
embassy; (2) the appointment sheet to come into the embassy for an
interview was white, not yellow; (3) the consular service did not take
money for an application for a nonimmigrant visa; (4) during the time
that Brown allegedly received his visa, applicants were interviewed,
at most, for five minutes; and (5) interview sheets were not taken
back from applicants, because the applicant would receive the sheet
after the interview as proof that they had paid the money for the appli-
cation. Thus, a reasonable juror could have concluded, based upon
Misciagno’s contradicting testimony, that Brown was being dishonest
about how he obtained the visa.
In light of the testimony of Inspector Allen and Misciagno, we con-
clude that a reasonable juror could find that Brown was not being
honest or was concealing a fact, and thus knowingly possessed the
fraudulent visa. Therefore, we find that, although the district court
10 UNITED STATES v. BROWN
erred in admitting the portion of Inspector Allen’s testimony that
speculated as to Brown’s credibility, the error did not substantially
sway the judgment and was therefore harmless.
IV.
For the foregoing reasons, we affirm the district court.
AFFIRMED