United States v. Lawal , 104 F. App'x 877 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4353
HAKEEM G. LAWAL, a/k/a Hakeem
O. Dawodu,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-02-260-A)
Submitted: May 19, 2004
Decided: July 19, 2004
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John O. Iweanoge, Jr., LAW OFFICES OF JOHN O. IWEANOGE,
P.A., Alexandria, Virginia, for Appellant. Paul J. McNulty, United
States Attorney, Brian D. Miller, Michael J. Elston, Assistant United
States Attorneys, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. LAWAL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Hakeem G. Lawal, a/k/a Hakeem O. Dawodu, was convicted by a
jury of two counts of making a false statement in violation of 18
U.S.C. § 1001(a)(2) (2000), one count of making a false statement in
violation of 18 U.S.C. § 1015 (2000), and one count of using a false
passport in violation of 18 U.S.C. § 1543 (2000). Lawal was sen-
tenced to concurrent terms of two years’ probation on each count. We
find no reversible error and affirm Lawal’s convictions and sentence.
Lawal first contends the district court abused its discretion by
admitting a probation officer’s testimony regarding Lawal’s admis-
sion that he entered the United States using the name Hakeem
Dawodu with "a British passport that didn’t belong to him." Lawal
objected at trial on the ground that the statement, made in a presen-
tence investigation interview for a prior conviction, was confidential,
and the Government should be prohibited from introducing the state-
ment at a subsequent trial. On appeal, Lawal abandons this argument
and claims for the first time that his statement was compelled self-
incrimination, and its admission violated Miranda v. Arizona, 384
U.S. 436 (1966). He also asserts that admission of the testimony was
unduly prejudicial because it was irrelevant and informed the jury that
Lawal had a prior record or conviction.
"Decisions regarding the admission or exclusion of evidence are
committed to the sound discretion of the district court and will not be
reversed absent an abuse of that discretion." United States v. Lancas-
ter, 96 F.3d 734, 744 (4th Cir. 1996). "We will find that discretion to
have been abused only when the district court acted ‘arbitrarily or
irrationally.’" United States v. Moore, 27 F.3d 969, 974 (4th Cir.
1994) (quoting United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.
1993)). To preserve a claim of error predicated upon a ruling which
admits evidence, a party must make a timely objection "stating the
UNITED STATES v. LAWAL 3
specific ground of objection, if the specific ground was not apparent
from the context." Fed. R. Evid. 103(a)(1); see also Fed. R. Crim. P.
51(b). "Where counsel fails adequately to present and preserve an
objection on the record, we review the admission of evidence solely
for plain error." United States v. Brewer, 1 F.3d 1430, 1434 (4th Cir.
1993); see also Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993)
(absent plain error or a fundamental miscarriage of justice, "issues
raised for the first time on appeal generally will not be considered").
"Any statement given freely and voluntarily without any compel-
ling influences is, of course, admissible in evidence." Miranda, 384
U.S. at 478. Where a probationer is interviewed by his probation offi-
cer in a non-custodial setting, and he is free to leave at the end of the
meeting, the interview is not "inherently compelling," and Miranda
warnings are not required. Minnesota v. Murphy, 465 U.S. 420, 430
& n.5 (1984). Presentence interviews are likewise not "inherently
compelling," and Miranda warnings are not required prior to a routine
presentence interview. United States v. Hicks, 948 F.2d 877, 885 &
n.8 (4th Cir. 1991). A probationer’s general obligation to report to his
probation officer and be truthful does not render the probationer’s
incriminating statements compelled self-incrimination within the
meaning of the Fifth Amendment. Murphy, 465 U.S. at 431. Like any
witness, the probationer must timely assert his Fifth Amendment priv-
ilege, or his statements will be deemed voluntary and admissible. Id.
at 440.
We first note that Lawal was not in custody at the time of his pre-
sentence interview. Because Lawal disclosed incriminating informa-
tion instead of timely asserting his Fifth Amendment privilege, his
statement was not compelled self-incrimination and was therefore
admissible. Lawal’s claim that the probation officer’s testimony was
unduly prejudicial is also without merit. Lawal’s statement was rele-
vant to prove that the passport Lawal submitted in support of an appli-
cation with the Immigration and Naturalization Service was in fact
fraudulent, a necessary element to his conviction under 18 U.S.C.
§ 1543 (2000). In her brief testimony relating Lawal’s statement, the
probation officer referenced only her "investigation in another mat-
ter," not revealing Lawal’s prior record or conviction. We therefore
conclude that the district court did not abuse its discretion.
4 UNITED STATES v. LAWAL
Lawal next contends the evidence was insufficient to support his
conviction for violating 18 U.S.C. § 1001(a)(2) (2000) in connection
with his application for an airport security badge. In reviewing a suffi-
ciency challenge, "[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the Govern-
ment, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
"[W]e have defined ‘substantial evidence,’ in the context of a criminal
action, as that evidence which ‘a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a defen-
dant’s guilt beyond a reasonable doubt.’" United States v. Newsome,
322 F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (en banc)).
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 different, reasonable interpretations, the jury
decides which interpretation to believe." Id. (quoting United States v.
Murphy, 35 F.3d 143, 148 (4th Cir. 1994)). Furthermore, "[t]he
Supreme Court has admonished that we not examine evidence in a
piecemeal fashion, but consider it in cumulative context." Burgos, 94
F.3d at 863 (citations omitted). "The focus of appellate review, there-
fore, of the sufficiency of evidence to support a conviction is on the
complete picture, viewed in context and in the light most favorable
to the Government, that all of the evidence portrayed." Id.To prove a violation of 18 U.S.C. § 1001, the Government must
establish that "(1) the defendant made a false statement to a govern-
mental agency or concealed a fact from it or used a false document
knowing it to be false, (2) the defendant acted ‘knowingly and will-
fully,’ and (3) the false statement or concealed fact was material to
a matter within the jurisdiction of the agency." United States v. Arch
Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993) (citations omitted).
A fact about a matter within an agency’s jurisdiction is material under
§ 1001 if it "has a ‘natural tendency to influence agency action or is
capable of influencing agency action.’" Id. (citations omitted). How-
ever, "‘[t]here is no requirement that the false statement [actually]
influence or effect the decision making process of a department of the
United States government.’" Id. (citations omitted).
UNITED STATES v. LAWAL 5
A false statement on an application for an airport security badge,
which allows unescorted access to Secure Identification Display
Areas ("SIDA"), may be "material to a matter within the jurisdiction
of" the Federal Aviation Administration ("FAA"). See United States
v. Baer, 324 F.3d 282, 285-88 (4th Cir. 2003).* On Lawal’s applica-
tion for a SIDA badge, he answered "N/A" to the question whether
he had used any names other than Hakeem G. Lawal in the prior ten
years. On appeal, Lawal does not dispute that this constituted a false
statement or that he acted knowingly and willfully. He contends, how-
ever, that the Government failed to show that the statement was mate-
rial or that his application was within the jurisdiction of any
department of the United States. We disagree. The Government pro-
vided Lawal’s application and extensive testimony from the airport’s
security coordinator regarding FAA authority and requirements.
Moreover, the Government established that Lawal’s false statement
was capable of influencing agency action, since the FAA-required
background checks and clearances, which could result in denial of
SIDA access, could not be fully completed without the required infor-
mation.
Accordingly, we affirm Lawal’s convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
*We note that when Lawal signed his SIDA badge application, the
FAA had responsibility for administration and implementing regulations
under the Aviation Security Improvement Act of 1990, 49 U.S.C.
§ 44936 (2000). "That responsibility has since been transferred to the
Transportation Security Administration." Baer, 324 F.3d at 284 n.1.