United States v. Mohammed Islam ( 2019 )

FILED
NOT FOR PUBLICATION
NOV 26 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10096
Plaintiff-Appellee, D.C. No. 1:17-cr-00001-2
v.
MEMORANDUM*
MOHAMMED RAFIQUL ISLAM, aka
Md. Rafiqul Islam,
Defendant-Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
John C. Coughenour, District Judge, Presiding
Argued and Submitted October 24, 2019
Honolulu, Hawaii
Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.
Defendant Mohammed Rafiqul Islam timely appeals his convictions for one
count of mail fraud, in violation of 18 U.S.C. § 1341, and three counts of fraud in
foreign labor contracting, in violation of 18 U.S.C. § 1351(a). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. "We review de novo allegations of due process violations." United States
v. Chang Da Liu, 538 F.3d 1078, 1087 (9th Cir. 2008).
The government’s duty to investigate whether government witnesses had
committed perjury was not triggered until mid-trial. The recorded call and Abbu
Bakkar Beg’s and Belayet Hossain’s mortgage and loan documents were not
sufficient to put the government "on notice of the real possibility of false
testimony" so as to trigger a duty to investigate before trial began. Northern
Mariana Islands v. Bowie, 243 F.3d 1109, 1118 (9th Cir. 2001).
The government took adequate steps to correct the initial testimony of
Mohammed Tazizul Islam ("Tazizul"). After Beg testified, identifying one of the
speakers on the recorded phone call as Tazizul, the government was on notice that
Tazizul had likely committed perjury. The government satisfied its duty to
investigate, Morris v. Ylst, 447 F.3d 735, 744 (9th Cir. 2006), by interviewing
Tazizul, who admitted to lying. It then satisfied its duty to correct the false
testimony by providing an official report of the investigation to defense counsel;
and, in a bench conference with the judge, agreeing with defense counsel on how
to inform the jury and correct the record. See United States v. LaPage, 231 F.3d
488, 492 (9th Cir. 2000) (noting that an appropriate course of action for
prosecutors to take when they realize that a witness has lied is to "interrupt their
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own questioning, and work out in a bench conference with the judge and defense
counsel how to inform the jury immediately that the testimony is false").
Any due process violation stemming from a duty that arose during trial to
investigate potential perjury by the other witnesses fails for lack of prejudice,
which is a required element to succeed on a due process claim. Morris, 447 F.3d at
745. The trial resulted "in a verdict worthy of confidence." Id. (quoting Hall v.
Dir. of Corr, 343 F.3d 976, 984 (9th Cir. 2003) (per curiam)). The corroborating
documentary evidence provided compelling evidence of guilt. And a defense
argument that all the witnesses were lying about their knowledge of T-visas was
supported on the existing record.
2. The district court did not abuse its discretion by denying a new trial
because of prosecutorial misconduct. See United States v. King, 660 F.3d 1071,
1076 (9th Cir. 2011) (holding that we review for abuse of discretion a district
court’s denial of a motion for new trial); United States v. Steele, 298 F.3d 906, 910
(9th Cir. 2002) (holding that we review for abuse of discretion a district court’s
ruling on objections to alleged prosecutorial misconduct). The lead prosecutor
acted improperly in attempting to inject matters outside the record. The district
court repeatedly intervened to stop his excesses during closing argument. Despite
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the sustained objections and admonitions from the court, the prosecutor continued
to make improper statements.
But the district court took appropriate steps to remedy the prosecutor’s
improper statements. Because the misconduct did not go to central issues at trial,
the district court’s remedies were sufficient, and any errors were harmless beyond
a reasonable doubt. See United States v. Nobari, 574 F.3d 1065, 1073, 1076 (9th
Cir. 2009) (stating standard).
3. The district court did not commit reversible error in any of its evidentiary
rulings. See United States v. Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016)
(holding that we review for abuse of discretion a district court’s decision to admit
or exclude evidence). The district court’s evidentiary rulings regarding the
National Bank Limited records, a check allegedly signed by Defendant, a deposit
slip from Akter’s bank account, and Defendent’s work certifications all fell within
the district court’s discretion. The district court erred by admitting the set of
untranslated Bengali loan and bank records, but that error was harmless.
Assuming, without deciding, that it was error for the district court to admit Beg’s
and Hossain’s mortgage and loan documents, the error was harmless.
4. The district court did not violate the Confrontation Clause by limiting
defense counsel’s cross-examination of government witnesses regarding their
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conversations with their attorney. See United States v. Larson, 495 F.3d 1094,
1101 (9th Cir. 2007) (en banc) (holding that we review de novo allegations that a
district court violated the Confrontation Clause by excluding an area of inquiry on
cross-examination). Defendant has not met his burden to show that the jury "might
have received a significantly different impression of [a witness’] credibility" had
the district court allowed additional questioning. Delaware v. Van Arsdall, 475
U.S. 673, 680 (1986).
5. Even considered cumulatively, the errors we have identified are not likely
to have "materially affect[ed] the verdict" and, thus, are not sufficient to warrant
reversal. United States v. Fernandez, 388 F.3d 1199, 1257 (9th Cir. 2004).
AFFIRMED.
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