United States v. Muhammad Anwar ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3726
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Muhammad Anwar, *
*
Appellant. *
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Submitted: September 12, 2005
Filed: November 14, 2005
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Before BYE, RILEY, and BENTON, Circuit Judges.
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RILEY, Circuit Judge.
Muhammad Anwar (Anwar) was charged with and convicted of conspiring to
defraud the government by aiding and abetting others to enter into fraudulent
marriages between 1993 and 2003, in violation of 18 U.S.C. § 371, and aiding and
abetting a foreign national and a United States citizen in the act of entering into a
fraudulent marriage for the purpose of evading immigration laws, in violation of
8 U.S.C. § 1325(c). The district court1 sentenced Anwar to six months’ imprisonment
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
and three years’ supervised release. Anwar appeals, raising multiple errors. Finding
no reversible errors, we affirm.
I. BACKGROUND
At trial, the jury heard testimony relating to Anwar’s solicitation of female
employees and acquaintances, from approximately 1993 to 2003, to marry Pakistani
men for the purpose of allowing the men to evade United States immigration laws.
Six women–specifically, Amy Gauthier (Gauthier), Mary Tucker (Tucker), Essie
Cooper (Cooper), Keeley Hoyt Ali (Hoyt Ali), Sherry Ali (Ali), and Kayleen Nazir
(Nazir)–testified Anwar approached them and asked if they would marry Pakistani
men. The women understood the proposed marriages were not intended to be
legitimate marital relationships, but instead would be “green card marriages,” i.e.,
marriages for the purpose of helping the foreign nationals remain in the United States
by evading immigration laws. With respect to Tucker, Cooper, Hoyt Ali, Ali, and
Nazir, Anwar allegedly assured the women they would be taken care of financially
in exchange for marrying Pakistani men.
Amy Skalsky-Akhtar (Akhtar), a United States citizen, testified Anwar asked
her to marry his nephew, Tariq, who lived in Pakistan. Akhtar later married Tariq
after knowing him for only five or six hours. The couple neither consummated the
marriage nor lived together following the wedding. Following Akhtar’s marriage to
Tariq, Anwar allegedly asked Akhtar several times to begin working on Tariq’s
immigration paperwork. When Akhtar expressed her reluctance to do so, Anwar
allegedly told her to file the paperwork and then divorce Tariq after he came to the
United States.
The jury also heard testimony relating to Anwar’s conduct between late 2002
and early 2003 in aiding a fraudulent marriage between Amanda Reinier (Reinier) and
Hamid Bashir (Bashir). Reinier testified that in January 2003 Anwar asked her to
marry Bashir, who, according to Reinier’s and Bashir’s marriage certificate as well
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as Bashir’s immigration documents, was born in Pakistan. Reinier agreed to do so.
After knowing one another for less than two weeks, Reinier and Bashir married on
February 13, 2003, in South Dakota, a state that has no waiting period for entering
into marriage. At the time Reinier married Bashir, she had no intention of living with
him as a spouse. Rather, her purpose was to allow Bashir to obtain a green card and
residency in the United States. In exchange for marrying Bashir, Anwar allegedly
told Reinier she would receive a truck. Anwar later made the down payment on the
truck.
Following Reinier’s and Bashir’s wedding, Anwar allegedly began asking
Reinier when she would file the necessary immigration paperwork, instructing her
how to make the marriage appear legitimate by living with Bashir. Reinier ultimately
signed the requisite paperwork on Bashir’s behalf. After Reinier joined the military
in about March 2003, Reinier realized her marriage to Bashir was wrong and wanted
to end it. Anwar allegedly advised Reinier if she filed for no-fault divorce, Bashir’s
immigration status would not be affected. Reinier annulled the marriage in October
2003.
Gauthier, Reinier’s sister, also testified regarding the Reinier and Bashir
marriage. According to Gauthier, after Reinier’s wedding Anwar asked her to write
a letter in support of Bashir’s application, allegedly telling her too many Pakistani
people had submitted support letters to the Immigration and Naturalization Service
(INS) and Reinier would get in trouble if Gauthier did not sign the letter. Gauthier
subsequently filed the letter of support.
Over Anwar’s pretrial objection, the government was allowed to present
evidence concerning Anwar’s romantic involvement with LeAnne Roof (Roof) and
with Ali. Saqib Chudarry (Chudarry), a native of Pakistan, testified Anwar stated he
had arranged marriages between various individuals, including a man named Unis
Hamid (Unis) and Anwar’s own girlfriend, Roof. Cheryl Stempien (Stempien),
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Roof’s aunt, testified she attended a wedding between a man named Unis and Roof
sometime in the 1990’s, even though Roof and Anwar were involved in a personal
relationship both before and after the wedding. Both during and immediately after
the wedding, Stempien allegedly heard Anwar promise to pay Roof $2,000 to marry
Unis. Finally, Ali testified she was in a romantic relationship with Anwar between
1993 and 1999, and that during the course of their relationship, Anwar allegedly
asked Ali ten to twenty times to marry various Pakistani men so the men could get
green cards.
The jury returned a guilty verdict on both counts of the two-count indictment.
With regard to Count 1, the jury found Anwar conspired to commit marriage fraud
with five individuals: Roof, Reinier, Gauthier, Bashir, and Akhtar. Additionally, the
jury found five overt acts were committed in furtherance of the conspiracy: (1) Anwar
asked Akhtar to marry his nephew, Tariq, in Pakistan, and Akhtar did so after
knowing Tariq for a few hours; (2) Anwar repeatedly asked Akhtar to complete the
INS paperwork to allow Tariq to enter and remain in the United States; (3) Anwar
knowingly and unlawfully aided and abetted the marriage of Reinier, a United States
citizen, and Bashir for the purpose of allowing Bashir to remain in the United States
and evade immigration laws; (4) Bashir and Reinier were married on or about
February 13, 2003, for the purpose of allowing Bashir to evade immigration laws;
and (5) following the marriage of Bashir and Reinier, Anwar continually directed
Reinier to complete the INS paperwork to allow Bashir to evade immigration laws.
With regard to Count 2, the jury found Anwar guilty of aiding and abetting the
commission of marriage fraud on or about late 2002 and early 2003.
Following the verdict, the district court denied Anwar’s motion for a new trial
and motion for judgment of acquittal. Anwar appeals, asserting (1) insufficient
evidence supported the convictions, (2) the verdict was contrary to the weight of the
evidence, (3) the district court erred in admitting evidence of his romantic
relationships, (4) the district court erred in admitting prejudicial Federal Rule of
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Evidence 404(b) evidence of his other solicitations and failing to give a limiting
instruction before final jury instructions, (5) prosecutorial misconduct deprived him
of a fair trial, (6) the government’s improper contact with and intimidation of a
defense witness denied him the opportunity to call the witness, (7) the district court
erred in refusing to give his preferred jury instruction, (8) the district court’s failure
to consult defense counsel before responding to a request from the jury violated his
constitutional rights, and (9) cumulative trial errors warrant a new trial.
II. DISCUSSION
A. Sufficiency of the Evidence
Anwar first contends there was insufficient evidence to support the jury’s
findings of guilt on both counts. “Jury verdicts are not lightly overturned.” United
States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995) (citation omitted). We will reverse
the jury’s verdict for insufficient evidence “only if no reasonable jury could have
found [Anwar] guilty beyond a reasonable doubt.” United States v. Henderson-
Durand, 985 F.2d 970, 975 (8th Cir. 1993). In doing so, we view the evidence in the
light most favorable to the jury’s verdict, resolving any evidentiary conflicts in the
government’s favor. United States v. Lee, 356 F.3d 831, 836 (8th Cir. 2003) (citation
omitted).
Under the guidance of this strict standard of review, see United States v.
Galaviz-Luna, 416 F.3d 796, 799 (8th Cir. 2005), we conclude the evidence was
sufficient to support Anwar’s convictions. With regard to the conspiracy charge, the
jury reasonably could have concluded there was an agreement among Anwar, male
Pakistani foreign nationals, and female United States citizens to enter into fraudulent
marriages to evade immigration laws. As evidence of Anwar’s intent to evade
immigration laws, Anwar solicited several women to enter into “green card
marriages” with various Pakistani men for the purpose of helping the men remain in
the United States, and assured the women they would be taken care of financially in
exchange for marrying the foreign nationals. Furthermore, ample evidence supports
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the jury’s finding Anwar conspired with Akhtar, Roof, Reinier, Bashir, and Gauthier.
The government presented evidence concerning (1) Anwar’s solicitation of Akhtar,
Roof, and Reinier to marry Pakistani men for the purpose of helping the men obtain
residency in the United States; (2) Akhtar’s marriage to Anwar’s nephew, Tariq, in
Pakistan after knowing Tariq for only five to six hours; (3) Reinier’s marriage to
Bashir for the purpose of allowing Bashir to remain in the United States and evade
immigration laws; (4) Anwar’s repeated requests to Akhtar and Reinier to submit the
requisite immigration paperwork for their new husbands; and (5) Gauthier’s letter in
support of Bashir’s immigration paperwork, filed pursuant to Anwar’s request.
We reach the same conclusion with regard to Anwar’s conviction for marriage
fraud. Again, sufficient evidence supports the jury’s verdict on the charge of aiding
and abetting the commission of marriage fraud between Reinier and Bashir:
(1) Anwar asked Reinier to marry Bashir, and Reinier agreed to do so; (2) at the time
of the marriage, Reinier had no intention of living with Bashir as a spouse;
(3) Reinier’s purpose in marrying Bashir was to allow him to obtain a green card and
United States residency; (4) Anwar inquired when Reinier would file Bashir’s
immigration paperwork, and instructed her how to make the marriage appear
legitimate; and (5) Anwar advised Reinier that Bashir’s immigration status would not
be affected if she filed for no-fault divorce. Thus, we find no basis for disturbing the
jury’s verdict.
B. Verdict Against the Weight of the Evidence
Anwar next argues the jury’s verdict was contrary to the weight of the
evidence, thus warranting a new trial. In determining whether to grant a motion for
a new trial on the ground the verdict is contrary to the weight of the evidence, “[t]he
district court need not view the evidence in the light most favorable to the verdict; it
may weigh the evidence and in so doing evaluate for itself the credibility of the
witnesses.” United States v. Walker, 393 F.3d 842, 847 (8th Cir. 2005) (quoting
United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). If, after doing so, the
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court determines “the evidence preponderates sufficiently heavily against the verdict
that a serious miscarriage of justice may have occurred, it may set aside the verdict,
grant a new trial, and submit the issues for determination by another jury.” Id. at 847-
48. The district court’s denial of Anwar’s motion for a new trial based on the weight
of the evidence will be affirmed “absent a ‘clear and manifest abuse of discretion.’”
United States v. Frank, 354 F.3d 910, 916 (8th Cir. 2004) (quoting United States v.
Jiminez-Perez, 238 F.3d 970, 974 (8th Cir. 2001)).
Our review of the record leads us to conclude the district court did not abuse
its discretion in denying Anwar’s motion for a new trial. Simply put, Anwar’s
convictions “do[] not evince a serious miscarriage of justice such that we must reject
the jury’s verdict or the district court’s sense of justice.” Walker, 393 F.3d at 848.
C. Alleged Trial Errors
1. Admission of Anwar’s Relationships
Anwar contends the district court erred in admitting evidence regarding his
personal relationships with Roof and Ali, arguing the evidence should have been
excluded under Federal Rules of Evidence 403 and 404(b). “We review de novo the
district court’s interpretation and application of the rules of evidence, and review for
an abuse of discretion the factual findings supporting its evidentiary ruling.” United
States v. Claybourne, 415 F.3d 790, 797 (8th Cir. 2005) (citation omitted).
We conclude the district court did not err in admitting such evidence. Contrary
to Anwar’s argument, evidence of his romantic associations with Roof and Ali was
admitted not under Rule 404(b), but rather “as substantive evidence of the conspiracy
to commit marriage fraud.” Specifically, the district court found the evidence was
“relevant to the issue of whether [Roof’s and Ali’s] marriages to other Pakistani men
were fraudulent.” We are not persuaded by Anwar’s contention there “was no
evidence that having the alleged extra-marital affair meant that Anwar would not
want his paramour to enter into a true marriage.” Anwar told Chudarry he had
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arranged marriages between Unis and Anwar’s girlfriend, Roof. According to
Stempien, Anwar promised to pay Roof $2,000 to marry Unis and was in a romantic
relationship with Roof both before and after her wedding to Unis. Furthermore, while
intimately involved with Ali from 1993 to 1999, Anwar asked Ali approximately ten
to twenty times to marry different Pakistani men. Such evidence certainly is relevant
and makes it more likely than not the women’s marriages or proposed marriages to
other Pakistani men were not for a legitimate purpose.
Additionally, we agree with the district court’s determination “the relevance
of Roof’s and Ali’s relationships with [Anwar] [was] not substantially outweighed
by the danger of unfair prejudice.” Unfair prejudice “means an undue tendency to
suggest decision on an improper basis.” United States v. Adams, 401 F.3d 886, 899-
900 (8th Cir. 2005) (citation omitted). However, evidence of Anwar’s personal
involvement with Roof and Ali does not appear to be “so inflammatory on [its] face
as to divert the jury’s attention from the material issues in the trial.” Id. at 900(citation omitted). Accordingly, we find no error on this issue.
2. Admission of Anwar’s Solicitations of Fraudulent
Marriages Under Rule 404(b)
Anwar next assigns as error the admission of evidence concerning his
solicitations of Tucker, Hoyt Ali, Cooper, Ali, Gauthier, and Nazir to marry foreign
nationals for the purpose of evading immigration laws. The district court initially
admitted the testimony as substantive evidence of the conspiracy, yet noted if the
court had erred in its ruling, the testimony also was admissible under Rule 404(b).
Anwar argued the evidence was inadmissible, and, even if admissible, he was entitled
to a Rule 404(b) cautionary instruction before each woman’s testimony. His request
was denied. At the close of the evidence, however, the district court held the
evidence was admissible only under Rule 404(b) for the purpose of showing Anwar’s
intent to commit the offenses charged, and instructed the jury in this regard during
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final jury instructions. On appeal, Anwar reasserts his previous objections to this
evidence.
“Giving great deference to the district court’s determination in balancing the
prejudicial effect and probative value of evidence of other crimes or acts, we will
reverse the district court’s evidentiary decision only when the evidence admitted
clearly has no bearing on any issue involved.” Claybourne, 415 F.3d at 797 (internal
quotation omitted). The district court acted within its discretion in admitting
evidence of Anwar’s solicitations of other fraudulent marriages if (1) the evidence is
relevant to an issue other than Anwar’s character, (2) it is similar in kind and not
overly remote to the crime charged, (3) it is supported by sufficient evidence, and
(4) the potential unfair prejudice of the evidence does not substantially outweigh its
probative value. United States v. Jackson, 278 F.3d 769, 771 (8th Cir. 2002) (citing
United States v. Green, 151 F.3d 1111, 1113 (8th Cir. 1998)).
Again, Anwar’s claim of error fails. First, Anwar’s prior acts of solicitation of
American women to marry Pakistani men so the men could enter or remain in the
United States are relevant to Anwar’s intent to commit the charged conduct. Second,
his prior bad acts are similar in kind to the crimes charged. Anwar was charged with
conspiring to commit marriage fraud and aiding and abetting the commission of
marriage fraud. His prior acts involved asking women to marry foreign nationals so
the men could remain in the United States and evade immigration laws, and assuring
the women they would be taken care of financially for entering into such a marriage.
Also, the acts–occurring between 1993 and 2003–are not overly remote, given Anwar
was charged with engaging in a marriage fraud conspiracy between 1993 and
November 2003. While “proximity in time is a factor in deciding whether to admit
Rule 404(b) evidence, we have held that ‘there is no fixed period within which the
prior acts must have occurred.’” Jackson, 278 F.3d at 772 (quoting United States v.
Baker, 82 F.3d 273, 276 (8th Cir. 1996)). Third, there is sufficient evidence the
alleged acts occurred. The district court found the testimony of the six women was
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credible, thus satisfying the government’s burden to establish the alleged acts’
occurrences by clear and convincing evidence. See United States v. Callaway, 938
F.2d 907, 910 (8th Cir. 1991) (citation omitted). Fourth, the probative value of the
evidence is not substantially outweighed by the danger of unfair prejudice. Evidence
of Anwar’s prior bad acts was probative of his intent to commit the charged conduct
and was not so “inflammatory” as to “divert the jury’s attention from the material
issues.” Adams, 401 F.3d at 900. After carefully reviewing the record and giving
great deference to the district court’s determination, we conclude the district court
acted within its discretion in admitting evidence of Anwar’s prior acts under Rule
404(b). See Claybourne, 415 F.3d at 797.
We also find Anwar was not prejudiced by the district court’s failure to give
a limiting instruction before each woman’s testimony. Generally, a limiting
instruction should be given to inform the jury of the narrow purpose for which
evidence of other acts is admitted. See United States v. Perkins, 94 F.3d 429, 434
(8th Cir. 1996). Once the district court determined the evidence was admissible
solely under Rule 404(b), the jury was instructed it could consider the evidence only
on the issue of Anwar’s intent. During oral argument, Anwar asserted he was
prejudiced by the jury’s inability to analyze each witness at the time of her testimony
under the guidance of a limiting instruction. While we recognize the logic of
Anwar’s contention, we believe any potential prejudice was cured by the district
court’s inclusion of a limiting instruction on the proper use of the evidence during
final jury instructions. “Exactly when to so instruct [the jury] is surely a matter
within the district court’s broad discretion, and we respectfully decline to micro-
manage how that discretion should be exercised.” Id. at 436.
D. Alleged Government Misconduct
This court employs a two-part test to analyze whether reversible prosecutorial
misconduct exists: (1) whether the prosecutor’s conduct was improper, and
(2) whether such conduct prejudicially affected the defendant’s substantial rights so
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as to deprive the defendant of a fair trial. United States v. Conrad, 320 F.3d 851, 855
(8th Cir. 2003). The prejudicial effect of prosecutorial misconduct is determined by
“(1) the cumulative effect of such misconduct; (2) the strength of the properly
admitted evidence of the defendant’s guilt; and (3) the curative actions taken by the
court.” Id. (quoting United States v. Hernandez, 779 F.2d 456, 460 (8th Cir. 1985)).
A district court’s denial of a defendant’s motion for mistrial based on alleged
prosecutorial misconduct is reviewed for an abuse of discretion. United States v.
Beeks, 224 F.3d 741, 745 (8th Cir. 2000).
1. Failure to Disclose Chudarry’s Testimony
During the prosecution’s interview of Chudarry the evening before trial,
Chudarry stated Anwar had made a $3,000 payment on his behalf while Chudarry was
in custody on immigration-related charges. However, during direct examination,
Chudarry said, after speaking to the government during the pre-trial interview, he had
spoken to his girlfriend and realized someone other than Anwar made the $3,000
payment. Anwar moved for a mistrial, claiming the government’s failure to disclose
the exculpatory information was a violation of Brady,2 Federal Rule of Criminal
Procedure 16(c),3 and the parties’ stipulated discovery order requiring the production
2
The rule set forth in Brady v. Maryland, 373 U.S. 83 (1963), requires the
government to disclose any evidence that is both favorable to the accused and
material either to guilt or punishment. United States v. Gonzales, 90 F.3d 1363, 1368
(8th Cir. 1996).
3
Rule 16(c) requires a party who discovers additional evidence before or during
trial to disclose its existence to the other party or the court if: “(1) the evidence or
material is subject to discovery or inspection under th[e] rule; and (2) the other party
previously requested, or the court ordered, its production.” Fed. R. Crim. P. 16(c).
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of Jencks Act4 information. Finding no Brady violation or government misconduct,
the district court denied the motion.
We conclude the district court did not abuse its discretion in denying the
motion. First, there was no Brady violation, given Chudarry’s testimony was not
exculpatory and was disclosed during trial. See Gonzales, 90 F.3d at 1368. Second,
there was no Rule 16(c) violation. Anwar fails to demonstrate why Chudarry’s
testimony was subject to discovery or whether its production was ordered or
requested. Third, since no written statement of Chudarry’s interview was created, no
violation of the Jencks Act occurred. A review of Chudarry’s testimony does not
resemble an effort by the prosecution to “waft an unwarranted innuendo into the jury
box,” see Beeks, 224 F.3d at 746 (citation omitted), but rather an attempt to clarify
the witness’s testimony on what essentially turned out to be irrelevant evidence.
Furthermore, even if the prosecution’s conduct was improper, such conduct did not
prejudicially affect Anwar’s substantial rights so as to deprive him of a fair trial.
2. Failure to Disclose Gauthier’s Informal Immunity
After Gauthier’s testimony but before the prosecution rested its case, the
prosecution informed defense counsel Gauthier had been granted informal immunity
for signing an affidavit of support for her sister’s fraudulent marriage. Following the
district court’s denial of Anwar’s motion for a mistrial, a stipulation regarding
Gauthier’s immunity was read to the jury and also was included in the final jury
instructions. Anwar contends the prosecution’s failure to inform defense counsel of
Gauthier’s immunity before her testimony constitutes reversible prosecutorial
misconduct.
4
The Jencks Act, 18 U.S.C. § 3500, requires, upon motion by the defendant, the
production of any written statements made by a government witness after the witness
has testified on direct examination.
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Although the government concedes it was obligated to inform defense counsel
of Gauthier’s immunity from prosecution, Anwar fails to demonstrate how this error
“prejudicially affected [his] substantial rights.” Conrad, 320 F.3d at 855. While
Anwar was unable to cross-examine Gauthier regarding her immunity, the curative
actions taken by the court–evidenced by the stipulation and the reference to
Gauthier’s immunity during the final jury instructions–as well as the strength of other
properly admitted evidence of Anwar’s guilt, support the conclusion the district court
did not abuse its discretion in denying Anwar’s motion for a mistrial based on
prosecutorial misconduct.
3. Government’s Alleged Intimidation of Erin Sabir
Anwar further contends he was deprived of his Sixth Amendment right to call
a witness on his behalf due to the government’s alleged intimidation of Erin Sabir
(Sabir). During trial, a hearing was held on whether law enforcement officers
intimidated and threatened Sabir while serving a trial subpoena on her at her home.
According to Sabir, the officers threatened to prosecute her for perjury if she testified
on Anwar’s behalf and stated her children would be taken away from her and she
would go to jail if she lied. Although the officers admitted mentioning the
consequences for testifying falsely, they denied threatening or intimidating Sabir with
the mention of jail or the loss of her children in connection with a perjury charge.
Finding the officers’ conduct did not prevent Anwar from calling Sabir to testify on
his behalf, the district court denied Anwar’s motion for a new trial.
After reviewing the district court’s determination for an abuse of discretion, see
Beeks, 224 F.3d at 745, we find none. “[W]arnings concerning the dangers of perjury
cannot be emphasized to the point where they threaten and intimidate the witness into
refusing to testify.” United States v. Risken, 788 F.2d 1361, 1370 (8th Cir. 1986)
(quoting United States v. Blackwell, 694 F.2d 1325, 1334 (D.C. Cir. 1982)).
However, warnings by government agents to prospective witnesses regarding the
consequences for testifying falsely are not improper per se. Id. In denying Anwar’s
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motion, the district court noted (1) Sabir never stated she would refuse to testify if
asked; (2) the officers’ comments concerning the consequences of perjury did not
intimidate Sabir into refusing to testify; (3) Sabir was present at the courthouse along
with other potential defense witnesses during trial; and (4) Sabir was available to
testify during trial, but was not called by the defense. While we recognize the
government “should exercise considerable restraint when advising potential witnesses
about the consequences of committing perjury,” id. at 1371, we cannot say the district
court abused its discretion in concluding Anwar was not prevented from calling Sabir
to testify on his behalf.
E. Jury Questions
1. Anwar’s Requested Jury Instruction
During jury deliberations, the district court received a note from the jury
asking two questions, one of which read, “Instruction #20 On Statements 1-4 (acts)
do we need to find the defendant guilty of all 4 or just 1 of the 4.” After conferring
with both parties, the district court’s written response to the jury’s questions stated,
“I received your note, a copy of which is attached. The answers to your questions are
contained in Instruction Number 20 as well as all the other instructions. Please reread
the instructions and continue to deliberate.” Both parties agreed with the court’s
instruction, although Anwar’s counsel stated his preferred response would be “yes.”
Anwar now argues the district court’s refusal to give his suggested answer to
the jury’s question constituted an abuse of discretion. See United States v. Scout, 112
F.3d 955, 960 (8th Cir. 1997) (standard of review is abuse of discretion). We
disagree. The district court’s response–to which both parties agreed–adequately
answered the jury’s question. A thorough reading of Instruction Number 20 indicates
the answer to the jury’s question was contained therein. Furthermore, as the district
court correctly noted, the jury’s question was incapable of being answered in a “yes”
or “no” fashion. Anwar’s suggested response might have resulted in nothing but
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confusion. Thus, we conclude the district court did not abuse its discretion by
refusing to give Anwar’s preferred response.
2. Jury’s Request for Transcripts
During the jury’s deliberations, the district court received a note from the jury
requesting transcripts of the testimony of Gauthier and Reinier. Without consulting
the parties, the district court responded in writing, reminding the jury, as it had in the
court’s preliminary instructions, no transcripts of witness testimony were available.
The district court informed the parties of the note when the parties reconvened to
receive the verdict, and stated it had felt it was not necessary to confer with the
parties before answering the jury’s question. Anwar contends his Fifth and Sixth
Amendment rights as well as his right under Rule 43(a) of the Federal Rules of
Criminal Procedure to be present at every stage of his criminal proceeding were
violated when the district court responded to the jury’s request without alerting or
conferring with the parties about the proper response.
Under the guarantees of Rule 43(a), jury questions should be answered in open
court, and defense counsel should be given an opportunity to be heard before the
court responds. Rogers v. United States, 422 U.S. 35, 39 (1975). However, in some
cases, a violation of Rule 43(a) may be harmless error. Id. at 40. “[C]ommunications
between judge and jury in the absence of the defendant and his counsel are improper
and presumptively prejudicial. This presumption may be overcome, however, by a
clear indication of an absence of prejudice.” United States v. Koskela, 86 F.3d 122,
125 (8th Cir. 1996).
We conclude any potential violation of Rule 43(a) and Anwar’s constitutional
rights in this case amounts to no more than harmless error. During preliminary jury
instructions, the district court informed the jury transcripts would not be available,
and during final jury instructions, the jury was reminded this instruction remained in
effect. Furthermore, the “decision to read testimony requested by the jury rests within
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the sound discretion of the trial judge.” United States v. Varsalona, 710 F.2d 418,
420 (8th Cir. 1983) (citations omitted). The district court’s decision, which reiterated
its previous instructions to the jury, more than likely would not have changed
following a conference with the parties. We agree with the district court that, even
if a violation of Rule 43(a) occurred, such error was harmless. Therefore, the district
court’s denial of Anwar’s motion for a new trial on this basis was not an abuse of
discretion.
F. Cumulative Trial Errors
Finally, Anwar contends a new trial is warranted based on the cumulative effect
of the alleged errors. “We may reverse where the case as a whole presents an image
of unfairness that has resulted in the deprivation of a defendant’s constitutional rights,
even though none of the claimed errors is itself sufficient to require reversal.” United
States v. Riddle, 193 F.3d 995, 998 (8th Cir. 1999); see, e.g., United States v.
Walrath, 324 F.3d 966, 971 (8th Cir. 2003). This court will not reverse based upon
the cumulative effect of errors unless there is substantial prejudice to the defendant.
United States v. Gladfelter, 168 F.3d 1078, 1083 (8th Cir. 1999). After reviewing the
record, we reject Anwar’s argument. “The cumulative effect, if any, of the claimed
errors was not such as to deny [Anwar] a fair trial.” United States v. Steffen, 641
F.2d 591, 598 (8th Cir. 1981). Accordingly, we affirm the district court’s decision.
III. CONCLUSION
For the foregoing reasons, we affirm Anwar’s convictions and sentence.
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