United States v. Omar Kabiljagic ( 2019 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, Nos. 17-10392
17-10484
Plaintiff-Appellee,
DC No.
v. CR 14-00021 GEB-1
OMAR KABILJAGIC,
MEMORANDUM*
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted March 13, 2019**
San Francisco, California
Before: SILER,*** TASHIMA, and McKEOWN, Circuit Judges.
Following a jury trial, Defendant-Appellant Omar Kabiljagic was convicted
under 18 U.S.C. § 287 for making false or fraudulent claims to the United States.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Kabiljagic appeals his conviction on the grounds that the district court erred when
it sustained the government’s hearsay objections to certain testimony that
Kabiljagic sought to elicit at trial from a government agent. This sought testimony
consisted of Kabiljagic’s own out-of-court statements. We have jurisdiction under
28 U.S.C. § 1291. Because Kabiljagic did not present to the district court the
theory of admissibility that he now advances for the excluded statements, we
review for plain error. See Hudspeth v. Comm’r, 914 F.2d 1207, 1215 (9th Cir.
1990) (“When the trial court excludes evidence, failure to make a timely
invocation of the grounds for the admission of the evidence renders the issue
reviewable only for plain error.” (citations omitted)). We affirm.
“Relief for plain error is available if there has been (1) error; (2) that was
plain; (3) that affected substantial rights; and (4) that seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.” United States
v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008) (citations omitted). Here, even
assuming that a non-hearsay ground was available for the admission of the
excluded statements, because Kabiljagic testified and thus had the opportunity to
testify to the excluded statements, he cannot show that the alleged error was
sufficiently prejudicial to have affected the outcome of the district court
proceedings, nor that the alleged error “seriously affect[ed] the fairness, integrity
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or public reputation” of those proceedings. Thus, because Kabiljagic ultimately
presented to the jury the relevant information encompassed by the excluded
statements when he himself testified at trial, there was no plain error. See United
States v. Jordan, 256 F.3d 922, 930 (9th Cir. 2001); see also Cannel, 517 F.3d at
1176.
AFFIRMED.
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