United States v. Jawara ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30266
Plaintiff-Appellee, D.C. No.
v. CR-04-00511-JLR
MOHAMED JAWARA, also known as  ORDER
Haji Jawara, AMENDING
Defendant-Appellant. OPINION AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
May 1, 2006—Seattle, Washington
Filed September 15, 2006
Amended January 19, 2007
Before: Stephen Reinhardt, M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge Reinhardt
803
UNITED STATES v. JAWARA 807
COUNSEL
Ralph Hurvitz, Seattle, Washington, for the defendant-
appellant.
Michael J. Lang, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
ORDER
The Opinion filed on September 15, 2006, slip op. 11351,
and appearing at 462 F.3d 1173, is amended as follows:
1. At slip op. 11381 (462 F.3d at 1190), replace lines 10
through 38 (beginning with the sentence, “Agent Smalley’s
testimony” and ending with “tribal designation”) with the fol-
lowing:
Although Jawara raised a general Confrontation
Clause issue in his briefs to this court, it was not
until the Petition for Rehearing that Jawara, along
with amicus curiae, the National Association of
Criminal Defense Lawyers, first addressed whether
the expert’s reliance on the country report is testimo-
nial under Crawford v. Washington, 541 U.S. 36
(2004). This is a significant question given the tradi-
tional reliance on State Department country reports
in immigration proceedings. We do not need to reach
this issue, however, because the comparative country
conditions were not central to the charges here and
the admission of this testimony was harmless. Rahm,
993 F.2d at 1415. The same is true with respect to
808 UNITED STATES v. JAWARA
Agent Smalley’s testimony regarding the computer
indices and the location of the Maraka tribe.
2. At slip op. 11388 (462 F.3d at 1194), add the following
paragraph at the end of Judge Reinhardt’s dissent:
Because I would reverse on misjoinder, I need not
consider whether the Confrontation Clause also
requires reversal, under Crawford v. Washington,
541 U.S. 36 (2004). However, as I have stated, the
evidence on the document fraud charge is compara-
tively weak. Thus, I do not agree with the majority’s
determination of harmless error with respect to the
expert testimony regarding the State Department
country reports.
With these amendments, the panel has voted to deny the
petition for panel rehearing. No further petitions for rehearing
will be entertained.
OPINION
McKEOWN, Circuit Judge:
Mohamed Jawara (a.k.a. Haji Jawara) appeals from his
convictions for document fraud related to his personal asylum
application and conspiracy to commit marriage fraud to avoid
the immigration laws. Jawara challenges the district court’s
denial of his motions to sever the two counts, to suppress
physical evidence, and to conduct a pre-trial hearing address-
ing the reliability of expert testimony, as well as various evi-
dentiary rulings by the district court. We focus primarily on
Jawara’s claim of misjoinder and clarify the framework for
assessing whether the joined offenses are of the “same or sim-
ilar character” under Federal Rule of Criminal Procedure 8(a).
Looking to the indictment, we conclude that the two counts
UNITED STATES v. JAWARA 809
are unrelated in nature and purpose, temporal scope, physical
location, modes of operation, and key evidence. To suggest
that joinder is proper simply because each involves an immi-
gration matter would stretch the “same or similar character”
basis for joinder beyond reasonable limits. Although we hold
that the counts were in fact misjoined, error does not warrant
reversal in this case. Nor did the district court commit revers-
ible error with respect to the other matters challenged by
Jawara. We affirm the convictions.
BACKGROUND
In December 2000, “Haji Jawara” executed Immigration
and Naturalization Service form I-589, an application for
asylum and withholding of removal. In this application, he
claimed, among other things, to be a native of Sierra Leone
and a member of the Maraka tribe who had suffered imprison-
ment and witnessed the killing of his parents at the hands of
rebels in Sierra Leone. The asylum application was prepared
by a man who called himself “Mohamed Ali.” Copies of two
identity documents were attached to the asylum application:
a Republic of Sierra Leone identity card and a “Death Certifi-
cate” purportedly issued by the Ministry of Health of the
Republic of Sierra Leone. Although the “Death Certificate”
was apparently submitted to certify Haji Jawara’s birth in
Sierra Leone, the certificate, in fact, stated that Haji Jawara
“died 4th July 1979 at 6:45 p.m. at Kono Government Hospi-
tal” in Sierra Leone.
Three years later, Darrick Smalley, a senior special agent
with Immigration and Customs Enforcement, began investi-
gating the activities of “Mohamed Jawara,” as part of a larger
investigation involving several individuals. During the course
of his investigation, Agent Smalley discovered that “Mo-
hamed Jawara” was also using the name “Haji Jawara,” and
that in 1999, “Mohamed Jawara” had submitted applications
for a visa and a social security number, in which he claimed
810 UNITED STATES v. JAWARA
The Gambia as his birthplace and provided his Gambian pass-
port.
The following year, while this investigation was still pend-
ing, Jawara approached his friend Peter Coleman for help in
finding a citizen to marry his friend “Ibrahim” for immigra-
tion purposes. Coleman, unbeknownst to Jawara, was a paid
informant who had assisted federal law enforcement authori-
ties in several cases since his own arrest in 2001. In June
2004, Coleman met Jawara and Ibrahim at a coffee shop and
introduced them to Carol, a prospective marriage candidate.
They discussed the mechanics of a potential sham marriage,
including housing and living arrangements. Coleman wore a
recording device during this meeting, and federal agents,
including Agent Smalley, monitored the meeting and took
photographs. Some months later, Coleman had another meet-
ing with Jawara, also recorded, at which Jawara sought Cole-
man’s help in finding a wife for himself.
In November 2004, law enforcement officials arrested
Jawara and executed a search warrant at his apartment, where
they recovered various documents, including his Sierra Leone
identity card and death certificate. A grand jury indicted
Jawara on one count of fraud related to immigration docu-
ments, in violation of 18 U.S.C. § 1546(a), and one count of
conspiracy to commit marriage fraud, in violation of 18
U.S.C. § 371 and 8 U.S.C. § 1325.
The document fraud charge read, in pertinent part:
On or about December 23, 2000, . . . MOHAMED
JAWARA, aka: HAJI JAWARA, did knowingly
make false statements under oath, and . . . knowingly
subscribed as true, false statements with respect to a
material fact in an application . . . required by the
immigration laws or regulations prescribed thereun-
der, and knowingly presented such application
UNITED STATES v. JAWARA 811
. . . which contained such false statement . . . that is,
in an Immigration and Naturalization Service Form
I-589 (Application for Asylum or For Withholding
of Removal), the defendant made the following false
statements . . . .
The false statements alleged in the superceding indictment
included Jawara’s response of “Sierra Leone” to questions
regarding his nationality and birthplace.
The marriage fraud conspiracy charge read, in pertinent
part:
At an exact time unknown, but beginning within the
past five years and continuing until on or around
November 13, 2004 . . . MOHAMED JAWARA,
aka: HAJI JAWARA, and others . . . did knowingly
and willfully conspire . . . to enter into, and to aid
and abet others to enter into, a marriage for the pur-
pose of evading any provision of the immigration
law . . . .
The superceding indictment alleged that Jawara committed
the following overt acts in furtherance of the marriage fraud
conspiracy:
a. On or about June 24, 2004, . . . JAWARA did
facilitate a meeting between a cooperating wit-
ness, identified as P.C., an alien, and a female
United States citizen, in which the conspirators
discussed having the United States citizen marry
the alien in order to evade the immigration laws
of the United States.
b. On or about November 13, 2004, . . .
JAWARA[ ] did meet with and solicit a cooper-
ating witness, identified as P.C., to procure a
United States citizen who would agree to marry
812 UNITED STATES v. JAWARA
JAWARA in order to evade the immigration
laws of the United States.
Prior to trial, Jawara moved to sever the two counts, assert-
ing misjoinder under Federal Rule of Criminal Procedure 8(a)
and prejudicial joinder under Federal Rule of Criminal Proce-
dure 14. Jawara also moved to suppress the documentary evi-
dence seized during the search of his residence. After a
hearing, the district court denied both motions.
Jawara also moved in limine to exclude the proposed expert
testimony of Carolyn Bayer-Broring, a forensic document
examiner employed by the Department of Homeland Security,
regarding the authenticity of Jawara’s documents from Sierra
Leone. Jawara requested a separate hearing to assess the reli-
ability of Bayer-Broring’s expert testimony. After an in limine
hearing, the district court denied the motion to exclude the
expert testimony and determined that a separate Daubert hear-
ing was unnecessary. See Daubert v. Merrell Dow Pharma-
ceuticals, Inc., 509 U.S. 579 (1993). The district court also
denied Jawara’s motions in limine to exclude certain aspects
of Agent Smalley’s testimony and school examination records
from The Gambia listing Mohamed Jawara as a local student.
At trial, Agent Smalley testified about his role in the inves-
tigation, the asylum process in general, and the importance of
country conditions in asylum determinations. Over defense
counsel’s objections, Agent Smalley testified that: (1) based
on his review of State Department country reports, country
conditions in Sierra Leone were comparatively worse than in
The Gambia; (2) a substantially larger percentage of asylum
applications were received from natives of Sierra Leone than
The Gambia; and (3) based on his review of various computer
indices, including a site called “ethnolog.com,” the Maraka
tribe (to which Jawara had claimed membership in his asylum
application) was not located in Sierra Leone but in The Gam-
bia. Citing expertise in the area of forensic document exami-
nation, Bayer-Broring also testified that the Sierra Leone
UNITED STATES v. JAWARA 813
identity card and death certificate recovered from Jawara’s
apartment were counterfeit.
The government’s case included the testimony of two coop-
erating witnesses: Essa Jobarteh and Peter Coleman. Jobarteh
testified that he was Jawara’s high school classmate at St.
Augustine’s Secondary School in The Gambia from 1995 to
1998 and that he knew Jawara by the names “Haji” and “Mo-
hamed.” Jobarteh became reacquainted with Jawara in 2004
at a party in the Seattle area. Jobarteh testified that when he
sought Jawara’s advice about securing asylum in the United
States, Jawara advised him to get married instead because
“it’s quicker to get your papers” and to marry an older woman
because they were “kind of more desperate.” Over defense
counsel’s objection, the court admitted two examination
records issued by the West African Examinations Counsel,
listing Mohamed Jawara as a student at St. Augustine’s in The
Gambia.
Coleman testified that Jawara represented himself as a
Gambian whose parents were still alive, that he knew Jawara
by the names “Haji” and “Mohamed,” and that he and Jawara
had spoken generally about how “you can use someone else’s
documents from another country” for immigration purposes.
Coleman recounted his discussions with Jawara about finding
a wife, first for Ibrahim, and then later, for Jawara himself.
The recorded meetings were played for the jury. During the
November 2004 meeting, Jawara was recorded as saying that
he needed a wife for himself because he was “going through
some stuff with the INS . . . about [his] papers” and that he
wanted to “finish [his] stuff and get [his] citizenship.”
The defense’s case consisted of Jawara’s testimony. Jawara
testified that his real name was Haji, he was born in Sierra
Leone, and “Mohamed Jawara” was the name of his Gambian
cousin, whose passport he borrowed to enter the United
States. He admitted using Mohamed Jawara’s passport and
name to obtain various identity cards in the United States, but
814 UNITED STATES v. JAWARA
after a few months, he sent the passport back to The Gambia.
With respect to the document fraud charge, Jawara acknowl-
edged several falsehoods in his asylum application, including
the nature of his parents’ death. He maintained that he was
unaware of the falsehoods at the time the application was filed
because he was misled by Mohamed Ali,1 who prepared the
application. Jawara testified that aside from providing Ali
with copies of his Sierra Leonean identity card and death cer-
tificate, he had no role in preparing the application and read
no part of it before signing. Jawara denied attending high
school with Jobarteh in The Gambia or advising him to marry
a citizen. Jawara maintained that the fraudulent marriage idea
originated with Coleman and that Coleman initiated all dis-
cussions and meetings on the subject.
The jury returned a guilty verdict on both counts. The dis-
trict court sentenced Jawara to ten months confinement, fol-
lowed by two years of supervised release.
ANALYSIS
I. JOINDER AND SEVERANCE
Jawara argues the two counts were improperly joined under
Rule 8(a). Alternatively, he argues that even if the initial join-
der was proper, the district court should have severed the
counts under Rule 14 because the joinder was prejudicial.
[1] Rule 8(a) provides for joinder of offenses against a sin-
gle defendant in the indictment if one of three conditions is
satisfied. The offenses charged must be: (1) “of the same or
similar character;” (2) “based on the same act or transaction;”
1
The real name of this individual was apparently “Souleymane
Camara.” The superceding indictment also charged Camara and two other
defendants with multiple counts of immigration fraud; the government
agreed to sever Jawara’s trial from the proceedings of the other named
defendants.
UNITED STATES v. JAWARA 815
or (3) “connected with or constitut[ing] parts of a common
scheme or plan.” Fed. R. Crim. P. 8(a). Misjoinder of charges
under Rule 8(a) is a question of law reviewed de novo. United
States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990).
Rule 14 permits the district court to “order separate trials
of counts” at its discretion “[i]f the joinder of offenses . . . in
an indictment . . . appears to prejudice a defendant.” Fed. R.
Crim. P. 14(a). Thus, “[e]ven if joinder is permissible under
Rule 8, a party who feels prejudiced by joinder may move to
sever pursuant to [Rule] 14.” United States v. Smith, 795 F.2d
841, 850 (9th Cir. 1986), cert. denied, 481 U.S. 1032 (1987).
A. JOINDER UNDER RULE 8(A)
[2] We take the view that “[b]ecause Rule 8 is concerned
with the propriety of joining offenses in the indictment, the
validity of the joinder is determined solely by the allegations
in the indictment.” Terry, 911 F.2d at 276; see also United
States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995) (“In
making our assessment, we examine only the allegations in
the indictment.”). Thus, in Terry, we observed that “there is
no need to assess what actually happened in the trial” as part
of a Rule 8 inquiry. 911 F.2d at 277. Though on occasion,
our decisions have noted matters outside of the indictment,2
the established rule in this circuit is that a valid basis for join-
der should be discernible from the face of the indictment,3 and
2
For example, in VonWillie, we recited the “indictment-only” standard
and explained that joinder was proper because the “indictment charges
[defendant] in count 1 with possessing the same three weapons that he is
charged in count 2 with using in relation to a drug trafficking crime”;
however, we went on to note that “[t]estimonial and physical evidence . . .
is also common to both counts.” 59 F.3d at 929. Similarly, in United
States v. Fiorillo, 186 F.3d 1136, 1145 (9th Cir. 1999) (per curiam), we
noted that “at least three witnesses testified at the trial concerning both”
counts.
3
The majority of circuits apply the “indictment-only” standard, as we do
—at least in name, if not always in practice. See, e.g., United States v. But-
816 UNITED STATES v. JAWARA
we remain faithful to that principle here.4
Because Rule 14 is available “as a remedy for prejudice
that may develop during the trial,” Rule 8 has been “broadly
construed in favor of initial joinder . . . .” United States v.
Friedman, 445 F.2d 1076, 1082 (9th Cir. 1971).5 Nonetheless,
ler, 429 F.3d 140, 146 (5th Cir. 2005) (“Whether the initial joinder of
charges was improper under Rule 8 . . . is judged according to the allega-
tions in the . . . indictment.”); United States v. Chavis, 296 F.3d 450, 456
(6th Cir. 2002) (same); United States v. Wadena, 152 F.3d 831, 848 (8th
Cir. 1998) (same); United States v. Coleman, 22 F.3d 126, 134 (7th Cir.
1994) (same); United States v. Natanel, 938 F.2d 302, 306 (1st Cir. 1991)
(“In the ordinary case, a rational basis for joinder of multiple counts
should be discernible from the face of the indictment.”).
4
We note that some of our sister circuits have adopted a modified
approach. For example, the Fourth Circuit has explicitly held that “compli-
ance with Rule 8(a) is determined by examining the indictment and evi-
dence presented at trial.” United States v. Cardwell, 433 F.3d 378, 385 n.
1 (4th Cir. 2005) (emphasis added). Two other circuits have explicitly held
that courts may consider governmental proffers of evidence before trial,
in addition to allegations in the indictment, when assessing the propriety
of joinder under Rule 8. See United States v. Dominguez, 226 F.3d 1235,
1241 (11th Cir. 2000) (“It is enough that when faced with a Rule 8 motion,
the prosecutor proffers evidence which will show the connection between
the charges.”); United States v. Halliman, 923 F.2d 873, 883 (D.C. Cir.
1991) (“In this circuit, . . . the government need not demonstrate the pro-
priety of its joinder decisions on the face of the indictment . . . . Rather,
the government need only present evidence before trial [justifying join-
der].”).
5
Several circuits embrace this justification for broadly construing initial
joinder. See, e.g., United States v. Randazzo, 80 F.3d 623, 627 (1st Cir.
1996) (“Rule 8(a)’s joinder provision is generously construed in favor of
joinder . . . in part because [Rule] 14 provides a separate layer of protec-
tion where it is most needed.”); Coleman, 22 F.3d at 134 (explaining the
“respective roles of Rule 8 and Rule 14”). Although this rationale makes
sense in theory, commentators have questioned this justification in prac-
tice: “Given the evident reluctance of . . . courts to grant separate trials
under Rule 14, a broad interpretation of Rule 8 means broad joinder,
whether or not this is just or fair.” 1A CHARLES ALAN WRIGHT, FEDERAL
PRACTICE AND PROCEDURE § 143 (3d ed. 1999); see also Note, Harmless
UNITED STATES v. JAWARA 817
the joinder decision warrants scrutiny, and Rule 14 should not
be viewed as a backstop or substitute for the initial analysis
required under Rule 8(a). At least one of Rule 8(a)’s three
conditions must be satisfied for proper joinder, and “those
conditions, although phrased in general terms, are not infi-
nitely elastic.” United States v. Randazzo, 80 F.3d 623, 627
(1st Cir. 1996); see also United States v. Cardwell, 433 F.3d
378, 385 (4th Cir. 2005). In Jawara’s case, the government
invokes two of the three bases for joinder: that the counts
formed part of a “common scheme or plan” to engage in
immigration fraud, and that the counts were of a “similar
character.”
1. “Common Scheme or Plan”
We have not specifically defined the requisite nexus for a
“common scheme or plan”; because the words are self-
defining, courts generally permit joinder under this test where
the counts “grow out of related transactions.” See Randazzo,
80 F.3d at 627. Stated another way, we ask whether
“[c]ommission of one of the offenses [ ]either depended upon
[ ]or necessarily led to the commission of the other; proof of
the one act [ ]either constituted [ ]or depended upon proof of
the other.” United States v. Halper, 590 F.2d 422, 429 (2d
Cir. 1978); see also United States v. Anderson, 642 F.2d 281,
284 (9th Cir. 1981) (“When the joined counts are logically
related, and there is a large area of overlapping proof, joinder
is appropriate.”) (citing United States v. Roselli, 432 F.2d 879,
899 (9th Cir. 1970)).
Error and Misjoinder Under the Federal Rule of Criminal Procedure: A
Narrowing Division of Opinion, 6 HOFSTRA L. REV. 533, 536 n. 14 (1978)
(“For the defendant who goes to trial properly joined under rule 8, the
chances of receiving a separate trial at a later time are unlikely at the trial
level and even less likely on appeal. . . . It is for this reason that the courts’
interpretation of rule 8 and what they first determine to be the bounds of
proper joinder are of central importance. A broad interpretation of rule 8
means broad joinder.”).
818 UNITED STATES v. JAWARA
[3] Restricting our inquiry to the allegations in the super-
ceding indictment, nothing suggests such a nexus between the
two counts. The document fraud count describes acts—
knowingly making false statements on an asylum application
— that were completed as of December 23, 2000. The mar-
riage fraud conspiracy count describes very different acts—
the two meetings between Jawara and a “cooperating witness,
identified as P.C.”—that occurred several years later, on June
24, 2004 and November 13, 2004. The document fraud charge
makes no reference to the “cooperating witness” that is cen-
tral to the marriage fraud charge, and the marriage fraud
charge makes no reference to the asylum application that is
central to the document fraud charge. Aside from the subject
matter of immigration, the superceding indictment does not
offer a discernable link between the two offenses or suggest
any overlapping evidence. No plan or common scheme links
the charges nor can any commonality be inferred from the
indictment. See Terry, 911 F.2d at 276 (“No effort is made in
the indictment even to suggest that the offenses are . . . parts
of a common scheme.”).
This case stands in marked contrast to situations where we
have determined that a “common scheme or plan” exists; such
cases typically involve a concrete connection between the
offenses that goes beyond mere thematic similarity. For
example, in United States v. Kinslow, 860 F.2d 963, 965 (9th
Cir. 1988), cert. denied, 493 U.S. 829 (1989), overruled on
other grounds by United States v. Brackeen, 969 F.2d 827,
830 (9th Cir. 1992), a prison escapee forced a family at gun-
point to transport him across state lines and he then sexually
molested one of the children. We concluded that the charges
of kidnaping, interstate transportation of a minor, unlawful
transportation of firearms, and stolen property were properly
joined in the indictment because “[t]he incidents listed in the
indictment all took place within the same 24 hour time period
and they all made up part of Kinslow’s common plan to get
to California with the . . . family as his hostages.” Id. at 966
(emphasis added).
UNITED STATES v. JAWARA 819
In a case involving joined counts of espionage and tax eva-
sion, we held that the charges were part of a common plan or
scheme even though they occurred at different times because
the “tax evasion flow[ed] directly from” the espionage activ-
ity and the tax evasion “result[ed] in large part from the
necessity of concealing the illegal proceeds of that activity.”
United States v. Whitworth, 856 F.2d 1268, 1277 (9th Cir.
1988) (emphasis added). In Whitworth, “the money allegedly
received in exchange for classified information was the same
as that involved in the tax charges,” a circumstance we distin-
guished from Halper, a Second Circuit case deeming Medic-
aid fraud and tax evasion charges unconnected because “the
sums charged in the income tax evasion indictment were not
the same funds embraced in the Medicaid fraud indictment.”
Id. (quoting Halper, 590 F.2d at 429).
[4] Here, there is no direct connection between the acts
other than Jawara’s participation in both events. For example,
the false statements were not made to bolster or help conceal
the marriage fraud conspiracy, nor can it be said that the mar-
riage fraud conspiracy flowed from the document fraud crime.
Although a close temporal relationship is not, in and of itself,
a sufficient condition for joinder, see Cardwell, 433 F.3d at
386, we consider it significant in this case that the alleged acts
underlying the two offenses had no temporal connection and
were separated by several years. “Whatever connection exists
here, it is entirely too speculative to justify joinder” on the
basis of a common scheme or plan. Halper, 590 F.2d at 429.
2. “Same or Similar Character”
The more difficult question is the government’s alternate
basis for joinder— that the offenses are of a “similar charac-
ter” because they relate to immigration fraud. The “same or
similar character” prong of Rule 8(a) is the most amorphous
and controversial of the three grounds for joinder.6 Numerous
6
The “same and similar” language, like all of Rule 8(a),“was intended
by the Advisory Committee to be substantially a restatement of the law
820 UNITED STATES v. JAWARA
courts and commentators have questioned the logic and fair-
ness of such a rule. See e.g., Randazzo, 80 F.3d at 627 (“It is
obvious why Congress provided for joinder of counts that
grow out of related transactions . . . ; the reasons for allowing
joinder of offenses having ‘the same or similar character’ is
less clear.”); Halper, 590 F.2d at 430 (“When all that can be
said of two separate offenses is that they are of the ‘same or
similar character,’ the customary justifications for joinder
(efficiency and economy) largely disappear. . . . At the same
time, the risk to the defendant in such circumstances is con-
siderable.”); Note, Joint and Single Trials under Rule 8 and
14 of the Federal Rules of Criminal Procedure, 74 YALE L.
J. 553, 560 (1965) (recommending “abolition of joinder of
similar offenses under Rule 8” given its “lack of utility” and
risk of prejudice to the defendant); 1A CHARLES ALAN
WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 143 (3d ed.
1999) (“Joinder on this ground poses obvious dangers of prej-
udice to the defendant. . . . [I]t may fairly be asked whether
joinder of this kind should ever be allowed. If the offenses
arise out of separate and unrelated transactions, there is likely
to be little saving in time and money in having a single
trial.”).
[5] Mindful of these significant concerns, we turn to the
more immediate question: does the fact that the two offenses
relate to immigration fraud make them of a “similar charac-
ter” for joinder purposes? We have upheld initial joinder on
the basis of “similar character” in a handful of decisions. See,
e.g., United States v. Rousseau, 257 F.3d 925, 932 (9th Cir.
2001) (joinder of two counts of being a felon in possession of
a firearm); United States v. Fiorillo, 186 F.3d 1136, 1145 (9th
Cir. 1999) (per curiam) (joinder of charges relating to wire
applied prior to adoption of the rules.” 1A CHARLES ALAN WRIGHT,
FEDERAL PRACTICE AND PROCEDURE § 141 (3d ed. 1999); see also Randazzo,
80 F.3d at 627, n.1. (“The ‘same or similar’ language was drawn from ear-
lier law without explanation.”).
UNITED STATES v. JAWARA 821
fraud, improper hazardous waste practices in violation of the
Resource Conservation and Recovery Act, and improper
receipt of explosives); United States v. Kaplan, 895 F.2d 618,
621 (9th Cir. 1990) (joinder of counts relating to physician-
defendant’s controlled substance prescription practices and
the filing of false insurance claims); United States v. Bronco,
597 F.2d 1300, 1301 (9th Cir. 1979) (joinder of counts of con-
spiracy to sell counterfeit money, possession of counterfeit
money, and passing counterfeit money); Edwards v. Squier,
178 F.2d 758, 759 (9th Cir. 1949) (joinder of counts relating
to transport of a stolen vehicle, in violation of the Motor
Vehicle Theft Act, and transport of stolen securities, in viola-
tion of National Stolen Property Act, that occurred on the
same day). Aside from the general observation that “similar”
character does not mean the “same,” see Edwards, 178 F.2d
at 759, we have offered little guidance in the application of
this test.
“Same or similar character” cases often present a situation
where “line drawing between permissible and improper join-
der . . . becomes imprecise and the standards applied confus-
ing.” United States v. Buchanan, 930 F. Supp. 657, 662 (D.
Mass. 1996). This case underscores the importance of provid-
ing more clarity and texture for assessing the propriety of
joinder on the basis of “same or similar character,” and we
endeavor here to fill in some of the blanks.
Our analysis in Terry provides a useful jumping-off point,
although there, the analysis of the “common scheme” and
“similar character” prongs of Rule 8(a) is intertwined, making
it difficult to discern the dividing line between the two. In
rejecting the “similar character” of drug and firearm offenses
in Terry, we considered a variety of factors, such as the differ-
ent dates and locations of the acts underlying the two counts.
Terry, 911 F.2d at 276 (“Count I and II describe an event
occurring on June 9, 1988 in San Joaquin County. Count III
describes an event occurring on June 22, 1988 in another city
and county. The drug crimes referred to in Counts I and II are
822 UNITED STATES v. JAWARA
wholly different from the possession of a firearm charge in
Count III.”). We also considered the fact that the evidence
necessary to prove one offense was different from, and did
not overlap with, evidence necessary to prove the other
offense. Id. Thus, we undertook a fairly broad inquiry based
on factors that were readily apparent on the face of the indict-
ment or could be reasonably inferred from the allegations in
the indictment.
Looking to our sister circuits for guidance in the assess-
ment of “same or similar character,” the First and Seventh
Circuits have addressed this issue at some length. Although
both circuits focus the Rule 8(a) inquiry on allegations in the
indictment, see United States v. Coleman, 22 F.3d 126, 134
(7th Cir. 1994); United States v. Natanel, 938 F.2d 302, 306
(1st Cir. 1991), their respective approaches to “same or simi-
lar character” represent two ends of the spectrum.
The Seventh Circuit has adopted a “literal” or “categorical”
approach that pays almost exclusive attention to likeness of
“class” or “category” of the offenses, Coleman, 22 F.3d at
133-34, while the First Circuit utilizes what could be charac-
terized as a broader, more holistic approach that looks to a
variety of factors, including temporal proximity and potential
for evidentiary overlap. Cf. United States v. Edgar, 82 F.3d
499, 503 (1st Cir. 1996).7
7
Some other circuits are less easily categorized. For example, Coleman
cites a Fifth Circuit case, United States v. Holloway, 1 F.3d 307 (5th Cir.
1993), as applying a similar “categorical” approach. Coleman, 22 F.3d at
133-34. However, temporal proximity was a factor in the Fifth Circuit’s
analysis in Holloway. 1 F.3d at 310-11. In United States v. Werner, 620
F.2d 922 (2d Cir. 1980), the Second Circuit seemed to lean toward a literal
interpretation of “similar character”: “Rule 8(a) is not limited to crimes of
the ‘same’ character but also covers those of ‘similar’ character, which
means ‘(n) early corresponding; resembling in many respects; somewhat
alike; having a general likeness.’ ” Id. at 926 (quoting WEBSTER’S NEW
INTERNATIONAL DICTIONARY (2d ed.)). Yet, reading Werner in conjunction
with Halper, the Second Circuit’s “same or similar” inquiry considers the
extent of evidentiary overlap. See Halper, 590 F.2d at 431.
UNITED STATES v. JAWARA 823
In Coleman, a case involving the joinder of four separate
weapons possession charges that occurred on different dates,
the Seventh Circuit moved away from a “balancing of time
and evidence factors” embodied in previous cases, in favor of
a “more literal reading of the Rule.” 22 F.3d at 134. The court
wrote that the “same or similar character” language in Rule
8(a) was a “rather clear directive to compare the offenses
charged for categorical, not evidentiary, similarities.” Id. at
133. Acknowledging the “scant” evidentiary overlap and tem-
poral proximity between the joined offenses, id. at 132, the
Seventh Circuit in Coleman nevertheless upheld joinder:
“[s]imply put, if offenses are of like class, although not con-
nected temporally or evidentially, the requisites of proper
joinder should be satisfied so far as Rule 8(a) is concerned.”
Id. at 133.
In adopting this “categorical” framework, the Seventh Cir-
cuit explained that such an approach is “most consistent with
the respective roles of Rule 8 and Rule 14.” Id. at 134.
Namely, the initial joinder decision, based solely on the
indictment, offers little “real insight into the actual mutual rel-
evance of the individual offenses and their surrounding cir-
cumstances, which only crystallizes with the presentation of
evidence at trial.” Id. The Seventh Circuit concluded that the
“natural product” of this limitation is “[a]n uncomplicated
inquiry and review of initial joinder,” while an “examination
of the nature of the evidence and ties between the acts under-
lying the offenses” is best left to Rule 14 severance decisions
—with the extra caution that district courts should be “espe-
cially watchful for possible . . . sources of prejudice” in cases
of “same or similar character” joinder. Id.
We recognize that the initial joinder inquiry under Rule 8,
which is confined to allegations in the indictment, offers a
more limited opportunity for detailed analysis than its more
“flexible” Rule 14 counterpart. Id.; see also Terry, 911 F.2d
at 277 (explaining that a Rule 14 motion to sever, unlike a
Rule 8 motion, “must be renewed at the close of evidence or
824 UNITED STATES v. JAWARA
it is waived,” so that the district court can “assess whether a
joinder is prejudicial at a time when the evidence is fully
developed . . .”) (internal quotations and citation omitted). We
are nonetheless uncomfortable with a Rule 8 “same or similar
character” inquiry that wholly ignores factors relevant to the
question of similarity, such as temporal proximity, physical
location, modes of operation, identity of the victims, likeli-
hood of evidentiary overlap, and the like, to the extent that
they can be gleaned from the indictment. The Seventh Cir-
cuit’s “categorical” approach, aside from instructing district
courts to eyeball the indictment for offenses of a “like class”
and encouraging vigilant scrutiny in the Rule 14 context,
offers little guidance in close cases. Depending on the level
of abstraction (e.g., offenses involving dishonesty, offenses
involving an intent to defraud), offenses of a “like class”
might encompass a host of otherwise unrelated offenses, mak-
ing an “uncomplicated” similar character inquiry tantamount
to no meaningful inquiry. And any “extra layer” of protection
provided by Rule 14 “does not relieve the trial court [or a
reviewing court] of its responsibility to ensure that joinder is
proper in the first instance.” Buchanan, 930 F. Supp. at 662
n.14. Although the “like class” standard provides a useful
benchmark, in our view it is too limiting and does not com-
port with our more expansive inquiry in Terry.
Our analysis in Terry more closely corresponds to the First
Circuit’s comprehensive review and its “consider[ation] [of]
such factors as ‘whether the charges are laid under the same
statute, whether they involve similar victims, locations, or
modes or operation, and the time frame in which the charged
conduct occurred.’ ” Edgar, 82 F.3d at 503 (quoting United
States v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995)) (holding
that workers’ compensation and insurance fraud counts were
“sufficiently similar” because they involved the same modus
operandi, the timing overlapped, and the evidence would also
overlap). This framework also considers the “extent of com-
mon evidence,” particularly, “the important evidence.” Ran-
dazzo, 80 F.3d at 628 (“Congress did not provide for joinder
UNITED STATES v. JAWARA 825
for unrelated transactions . . . merely because some evidence
might be common to all of the counts.”).
[6] We consider it appropriate to consider factors such as
the elements of the statutory offenses, the temporal proximity
of the acts, the likelihood and extent of evidentiary overlap,
the physical location of the acts, the modus operandi of the
crimes, and the identity of the victims in assessing whether an
indictment meets the “same or similar character” prong of
Rule 8(a). The weight given to a particular factor will depend
on the specific context of the case and the allegations in the
indictment. But the bottom line is that the similar character of
the joined offenses should be ascertainable—either readily
apparent or reasonably inferred—from the face of the indict-
ment. Courts should not have to engage in inferential gymnas-
tics or resort to implausible levels of abstraction to divine
similarity. Thus, where the government seeks joinder of
counts on the basis of “same or similar character,” it crafts a
barebones indictment at its own risk.
[7] Applying this inquiry to the indictment here, it is appar-
ent that the two counts are not of the “same or similar charac-
ter.” The indictment alleges two different statutory violations
requiring proof of different elements.8 The underlying acts
8
18 U.S.C. § 1546, “Fraud and misuse of visas, permits, and other docu-
ments,” provides, in relevant part:
Whoever knowingly makes under oath, or as permitted under
penalty of perjury . . . knowingly subscribes as true, any false
statement with respect to a material fact in any application, affi-
davit, or other document required by the immigration laws or reg-
ulations prescribed thereunder, or knowingly presents any such
application, affidavit, or other document which contains any such
false statement or which fails to contain any reasonable basis in
law or fact—
Shall be fined under this title or imprisoned . . .
8 U.S.C. § 1325, “Improper entry by alien,” provides, in relevant
part:
826 UNITED STATES v. JAWARA
alleged in the indictment are separated by three-and-a-half
years, a temporal distance that is not bridged by the “exact
time unknown” language appearing at the start of the mar-
riage fraud charge. The lack of any temporal connection is all
the more significant because the counts do not stem from
common events. As for potential evidentiary overlap, Peter
Coleman, the cooperating witness whose centrality to the
marriage fraud charge is obvious from the indictment, is nota-
bly absent from the document fraud charge; nor is any other
evidentiary link ascertainable from the indictment. The indict-
ment evinces no similar mode of operation with respect to the
two crimes—lying about being from Sierra Leone on an asy-
lum application is vastly different from facilitating or procur-
ing meetings with prospective marriage candidates. The
counts do not involve related geographic locations or related
victims of the fraud. Ultimately, the only similarity discern-
ible from the indictment is that both counts involve immigra-
tion. Such a “vague thematic connection” cannot, in and of
itself, justify joinder. Buchanan, 930 F. Supp. at 662.
If subject matter similarity alone were sufficient, wholly
unrelated charges for threatening an immigration officer upon
initial entry to the United States and participating in an alien
smuggling operation several years later could be deemed to be
of the “same or similar character.” Or, in the drug context,
consider the example of a pharmacist who sells, over the
counter, unlawful amounts of products containing pseu-
doephedrine and then, some years later, buys cocaine from a
government informant. Both crimes involve drugs and a drug-
gist, but surely such a general thematic commonality does not
make the offenses of the “same or similar character.” To
Any individual who knowingly enters into a marriage for the pur-
pose of evading any provision of the immigration laws shall be
imprisoned for not more than 5 years, or fined not more than
$250,000, or both.
UNITED STATES v. JAWARA 827
extend the rule so broadly would lead to absurd results and
render the “same or similar” test without meaningful limits.
[8] Even under the Seventh Circuit’s “like class” test, we
do not view these two immigration violations as being of “like
class.” The immigration document fraud charge is, in essence,
a perjury claim related to Jawara’s national origin. The other
charge stems from an arrangement to facilitate sham mar-
riages. The proof is in the framing. We interpret “similar” to
mean something beyond facial similarity of subject matter.
Looking at the allegations in the indictment, including any
reasonable inferences of the connections and similarities that
may be drawn about these two counts, we hold that the counts
do not qualify as “same or similar” under Rule 8.
3. Actual Prejudice
[9] According to the Supreme Court, our inquiry does not
end here. “A violation of Rule 8 ‘requires reversal only if the
misjoinder results in actual prejudice because it had a substan-
tial and injurious effect or influence in determining the jury’s
verdict.’ ” Terry, 911 F.2d at 277 (quoting United States v.
Lane, 474 U.S. 438, 449 (1986)). This standard, though “ex-
acting,” Rousseau, 257 F.3d at 932, is less exacting than Rule
14’s “manifest prejudice” standard. See United States v.
Lewis, 787 F.2d 1318, 1321 (9th Cir. 1986) (Under Rule 14,
“[t]he defendant has the burden of proving that the joint trial
was manifestly prejudicial,” such that “defendant’s right to a
fair trial was abridged.”). In any case, we will not presume
that “prejudice results whenever [Rule 8’s] requirements have
not been satisfied.” Lane, 474 U.S. at 449.
In Lane, the Supreme Court considered a variety of factors
in resolving that misjoinder under Rule 8 did not have a “sub-
stantial and injurious” effect on the jury’s verdict, including
the “overwhelming evidence of guilt shown,” the provision of
a “proper limiting instruction . . . admonish[ing] the jury to
consider each count and defendant separately,” and the likeli-
828 UNITED STATES v. JAWARA
hood that evidence admitted on the misjoined count would
have been admissible in a separate trial as evidence of intent
under Federal Rule of Evidence 404(b).9 Id. at 450. The Court
also refused to “necessarily assume that the jury misunder-
stood or disobeyed” the district court’s limiting instruction,
and noted that the evidence as to one count “was distinct and
easily segregated from evidence” relating to the other counts.
Id. at 450 n. 13.
[10] After carefully reviewing the trial record as a whole,
we are comfortable in our analysis that misjoinder did not
have a “substantial and injurious” effect on the verdict. A
number of factors support this conclusion. We begin with the
fact that the district court instructed the jury to treat the
charges separately: “A separate crime is charged against the
defendant in each count. You must decide each count sepa-
rately. Your verdict as to one count should not control your
verdict on any other count.” That “the district court specifi-
cally instructed the jury that it was obliged to consider the
counts separately . . . . militates against a finding of preju-
dice.” Rousseau, 257 F.3d at 932; see also Fiorillo, 186 F.3d
at 1145 (explaining that even if misjoinder occurred, the
court’s jury instruction “to deliberate on the elements of each
charge separately . . . . militates against a finding of preju-
dice”).
[11] In addition, the evidence of guilt was overwhelming as
to both counts. See Lane, 474 U.S. at 450 (“In the face of
overwhelming evidence of guilt shown here, we are satisfied
9
Fed. R. Evid. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in confor-
mity therewith. It may, however, be admissible for other pur-
poses, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident, pro-
vided that upon request by the accused, the prosecution in a crim-
inal case shall provide reasonable notice in advance of trial . . . .
UNITED STATES v. JAWARA 829
that the [misjoinder] was harmless.”). The recorded meetings
and Coleman’s testimony conclusively demonstrated Jawara’s
participation in the marriage fraud conspiracy. Jawara’s credi-
bility was not a central issue as he was hard pressed to dis-
avow the recorded admissions. As for the document fraud
charge, Jawara admitted numerous falsehoods in his applica-
tion and acknowledged providing the two Sierra Leonean
identity documents to Ali, which Bayer-Broring testified were
counterfeit. To the extent that Jawara’s credibility was an
important factor in the document fraud conviction, his own
testimony consisted of numerous credibility-eroding admis-
sions, including his repeated use of his Gambian cousin’s
name and passport to secure various identity documents in the
United States.
Given the strength of the individual cases, we do not con-
front a situation where prejudice might stem from a disparity
of evidence—i.e., a weak case joined with a strong case. See,
e.g., Bean v. Calderon, 163 F.3d 1073, 1085 (9th Cir. 1998)
(explaining that “prejudice resulted from the disparity
between the evidence supporting his guilt” as to each of the
joined offenses); Lucero v. Kerby, 133 F.3d 1299, 1315 (10th
Cir. 1998) (“Courts have recognized that the joinder of
offenses in a single trial may be prejudicial when there is a
great disparity in the amount of evidence underlying the
joined offenses.”).
[12] Finally, for many of the same reasons that we deter-
mined the charges are not similar—the differences in applica-
ble statute, modes of operation, evidence, and time frame—
the jury likewise would have had no difficulty distinguishing
between the charges and the evidence. Although it is gener-
ally “much more difficult for jurors to compartmentalize dam-
aging information about one defendant derived from joined
counts, than it is to compartmentalize evidence against sepa-
rate defendants joined for trial,” Lewis, 787 F.2d at 1322
(citation omitted), “the jury was not likely in this case to con-
fuse which count particular evidence was introduced to estab-
830 UNITED STATES v. JAWARA
lish.” United States v. Johnson, 820 F.2d 1065, 1071 (9th Cir.
1987). The issues in this four-day trial were relatively simple,
and the evidence central to the document fraud count—the
asylum application, the Sierra Leonean identity documents
and Bayer-Broring’s testimony—was distinct and easily seg-
regated from evidence central to the marriage fraud count—
the recordings and Coleman’s testimony. See, e.g., Lane, 474
U.S. at 450, n. 13 (noting that misjoinder error was harmless,
in part, because “the evidence as to [the counts] was distinct
and easily segregated”).
In claiming prejudice as a result of the joinder, Jawara
offers the general assertion that “evidence of alleged material
misstatements in an asylum application would not have been
admissible against [him] in a separate trial on the charge of
conspiracy to commit marriage fraud, and vice versa.” We
have observed that one of the ways that joinder of offenses
may prejudice a defendant is that “the jury may use the evi-
dence of one of the crimes charged to infer a criminal disposi-
tion on the part of the defendant from which is found his guilt
of the other crime or crimes charged.” Johnson, 820 F.2d at
1070 (quoting Drew v. United States, 331 F.2d 85, 88 (D.C.
Cir. 1964)). Jawara does not point to any specific “inadmissi-
ble” evidence in support of this assertion. Even if some of the
evidence would not have been cross-admissible in separate
trials, it is likely that the jury was able to “compartmentalize
the evidence” in light of the other factors we have described.
Thus, in this case, evidence related to one crime did not likely
“taint the jury’s consideration” of the other crime. Johnson,
820 F.2d at 1071; see also Bean, 163 F.3d at 1085
(“[P]rejudice generally does not arise from joinder when the
evidence of each crime is simple and distinct, even in the
absence of cross-admissibility [of the evidence].”); Drew, 331
F.2d at 91 (“The federal courts, including our own, have,
however, found no prejudicial effect from joinder when the
evidence of each crime is simple and distinct, even though
such evidence might not have been admissible in separate tri-
als . . . .”).
UNITED STATES v. JAWARA 831
[13] In the absence of prejudice, reversal is not required.
Since Jawara has not established that he was prejudiced by the
violation of Rule 8, he cannot satisfy the burden of demon-
strating “manifest prejudice” under Rule 14.
II. REMAINING CLAIMS
We briefly address Jawara’s remaining claims, although
none warrants reversal.10
A. MOTION TO SUPPRESS
We review de novo Jawara’s argument that the district
court should have suppressed the documents seized during the
search of his residence because of an alleged material omis-
sion in paragraph 42 of Agent Smalley’s search warrant affi-
davit. United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir.
2001). This paragraph reads:
I began working on this case after determining that
an individual calling himself Haji JAWARA may
also be known as Mohamed JAWARA. It was
believed that he was using a false identity and that
he was originally from The Gambia but claimed to
be from Sierra Leone in order to obtain immigration
status.
Jawara contends that Agent Smalley’s failure to include the
source of the information in this recitation negates the affida-
vit’s facial showing of probable cause.
“A search warrant, to be valid, must be supported by an
10
We note that Jawara does not raise a cumulative error claim. See
United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (“We ‘will not
ordinarily consider matters on appeal that are not specifically and dis-
tinctly argued in appellant’s opening brief.’ ”) (quoting Miller v. Fairchild
Industries, Inc., 797 F.2d 727, 738 (9th Cir. 1986)).
832 UNITED STATES v. JAWARA
affidavit establishing probable cause.” United States v. Sta-
nert, 762 F.2d 775, 778 (9th Cir. 1985). In Stanert, we applied
the rationale of Franks v. Delaware, 438 U.S. 154 (1978), to
hold that a defendant could challenge a facially valid affidavit
by making a substantial preliminary showing that “the affiant
intentionally or recklessly omitted facts required to prevent
technically true statements in the affidavit from being mis-
leading.” Stanert, 762 F.2d at 781 (“By reporting less than the
total story, an affiant can manipulate the inferences a magis-
trate will draw. To allow a magistrate to be misled in such a
manner could denude the probable cause requirement of all
real meaning.”). In addition, the defendant must show that the
“affidavit, once corrected and supplemented,” would not
“provide . . . a substantial basis for concluding that probable
cause existed” to search defendant’s residence. Id. at 782.
Jawara fails, in several respects, to make this showing.
Jawara fails to show how the alleged omission was
“material”—i.e., how it caused technically true statements in
the affidavit to be misleading. The first sentence of the dis-
puted paragraph—“I began working on this case after deter-
mining that an individual calling himself Haji JAWARA may
also be known as Mohamed JAWARA”—indicates that
Agent Smalley is the source of the information in this para-
graph. Although the second sentence—“It was believed that
he was using a false identity . . .” —does not indicate a spe-
cific source, it is unclear how this omission is material when
read in the context of the first sentence and the dozen para-
graphs following it, which describe in excruciating detail how
Agent Smalley discovered that “Mohamed” and “Haji” were
the same person based on his comparison of photographs,
driver licenses, and other documents, and his discovery of
contradictory immigration documents submitted under both
names.
[14] Jawara also fails to make any showing, let alone “a
substantial showing” that this omission of source was “delib-
erate or reckless.” Id. at 781. In his briefs, Jawara offers only
UNITED STATES v. JAWARA 833
the observation that “[o]ne cannot determine whether that
omission was deliberate or reckless.” Nor does Jawara dem-
onstrate that the affidavit, when supplemented with the omit-
ted information, would be insufficient to support a probable
cause finding. Id. at 782. Thus, the district court did not err
in denying Jawara’s suppression motion.
B. DAUBERT HEARING
The district court denied Jawara’s request for a pre-trial
Daubert hearing to determine the reliability of Bayer-
Broring’s expert testimony. District courts have a general
“gatekeeping” duty to ensure that proffered expert testimony
“both rests on a reliable foundation and is relevant to the task
at hand.” Daubert, 509 U.S. at 597. This obligation does not,
however, require the court to hold a separate Daubert hearing.
United States v. Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000)
(“Nowhere . . . does the Supreme Court mandate the form that
the inquiry into reliability and relevance must take . . . .”).
[15] The district court admitted Bayer-Broring’s testimony
after reviewing briefs and other materials relating to the in
limine motion and hearing lengthy oral argument from both
counsel. Bayer-Broring’s qualifications included a master’s
degree in Forensic Science, a certification in forensic docu-
ment examination, and experience in over 700 document
examinations, including 50-60 examinations of documents
allegedly from Sierra Leone. The district court stated only:
“The testimony will be allowed, and the Court finds that a
Daubert hearing is unnecessary.” Although the district court’s
ruling suggests an implicit finding of reliability, the failure to
make an explicit reliability finding was error. Mukhtar v. Cal-
ifornia State University, 299 F.3d 1053, 1066 (9th Cir. 2002)
(“[T]he only indication we have that the district court found
[the expert’s] testimony reliable is the fact that it was admit-
ted . . . . Surely Daubert and its progeny require more.”).
Nonetheless, in light of Bayer-Boring’s extensive academic
qualifications and experience and the relevance and value of
834 UNITED STATES v. JAWARA
her testimony to the jury, the “proffered testimony otherwise
satisfie[d] the requirements for admission.” United States v.
Rahm, 993 F.2d 1405, 1412 (9th Cir. 1993). The lack of an
explicit finding of reliability was harmless. See United States
v. Figueroa-Lopez 125 F.3d 1241, 1247 (9th Cir. 1997)
(“Given this background, we are certain [the expert] was qual-
ified to deliver the opinion testimony disputed in this case,
and the failure formally to go through the usual process—
although an error—was clearly harmless.”).
C. OTHER EVIDENTIARY CHALLENGES
1. Agent Smalley’s Testimony
Agent Smalley testified about the comparative country con-
ditions in Sierra Leone and The Gambia and the location of
the Maraka tribe in The Gambia, testimony Jawara challenges
as inadmissible hearsay and a violation of his Sixth Amend-
ment right to confrontation. In addition, Jawara challenges the
relevance of Agent Smalley’s testimony regarding the relative
number of asylum applications from natives of Sierra Leone
and The Gambia. We review the evidentiary claims for abuse
of discretion, Rahm, 993 F.2d at 1410, and the constitutional
claim for plain error because Jawara failed to object on Con-
frontation Clause grounds. See United States v. Allen, 425
F.3d 1231, 1235 (9th Cir. 2005).
In his briefs, Jawara appears to concede that Agent Smalley
was a qualified expert witness on immigration and asylum
matters. Although Jawara raised a general Confrontation
Clause issue in his briefs to this court, it was not until the
Petition for Rehearing that Jawara, along with amicus curiae,
the National Association of Criminal Defense Lawyers, first
addressed whether the expert’s reliance on the country report
is testimonial under Crawford v. Washington, 541 U.S. 36
(2004). This is a significant question given the traditional reli-
ance on State Department country reports in immigration pro-
ceedings. We do not need to reach this issue, however,
UNITED STATES v. JAWARA 835
because the comparative country conditions were not central
to the charges here and the admission of this testimony was
harmless. Rahm, 993 F.2d at 1415. The same is true with
respect to Agent Smalley’s testimony regarding the computer
indices and the location of the Maraka tribe.
[16] Similarly, although we doubt the relevance of Agent
Smalley’s testimony regarding the relative number of asylum
applications filed by natives of Sierra Leone and The Gambia,
the admission of that testimony was harmless. “[I]t is more
probable than not that the error did not materially affect the
verdict.” Rahm, 993 F.2d at 1415.
2. Gambian School Examination Records
The district court admitted into evidence two Gambian
school examination records, Exhibits 16.2 and 16.3. The gov-
ernment contends that these documents were properly admit-
ted as foreign business records. See 18 U.S.C. § 3505. Jawara
argues that § 3505 does not support the admission of these
documents, and that they should have been excluded on hear-
say and authenticity grounds.
“Pursuant to § 3505, ‘[i]n a criminal proceeding . . . , a for-
eign record of regularly conducted activity, or a copy of such
record, shall not be excluded as evidence by the hearsay rule
if a foreign certification attests’ ” to the requirements set forth
in § 3505(a)(1)(A)-(D).11 United States v. Hagege, 437 F.3d
11
Section 3505(a)(1) requires the foreign certification to attest that:
(A) such record was made, at or near the time of the occurrence
of the matters set forth, by (or from information transmitted by)
a person with knowledge of those matters; (B) such record was
kept in the course of a regularly conducted business activity; (C)
the business activity made such a record as a regular practice; and
(D) if such record is not the original, such record is a duplicate
of the original; unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.
18 U.S.C. § 3505(a)(1).
836 UNITED STATES v. JAWARA
943, 956 (9th Cir. 2006) (quoting 18 U.S.C. § 3505(a)(1)). A
foreign certification under this section also “serves to authen-
ticate the foreign records, and thus ‘dispenses with the neces-
sity of calling a live witness to establish authenticity.’ ” Id. at
957 (quoting United States v. Sturman, 951 F.2d 1466, 1489
(6th Cir. 1991)). Congress enacted § 3505 not “to add techni-
cal roadblocks to the admission of foreign records, but, rather,
to streamline the admission of such records.” United States v.
Strickland, 935 F.2d 822, 831 (7th Cir. 1991). “Further,
§ 3505 did not change the benchmark question in this and
every situation involving the admission of documentary evi-
dence: do the documents bear the indicia of reliability?” Id.
The district court did not abuse its discretion in admitting
Exhibits 16.2 and 16.3.
Exhibit 16.2 is a “Statement of Examination Result” for
“Candidate Name: Muhammed Jawara” from the West Afri-
can Examinations Council. The document contains a stamp
imprint from the “West African Examinations Council” and
reads, in relevant part:
This is to certify that according to records in this
Office MUHAMMED JAWARA took The West
African Senior School Certificate Examination in
May/June 1998 at the St. Augustine’s Senior Sec-
ondary School as candidate No. 8010002152.
That statement, along with “details of [Jawara’s] [exam] per-
formance” in several subjects, are incorporated into a letter
from the Council dated “17th February 2005.” The letter, in
turn, is attached to an attestation by Abraham Jouf, the head
of the Test Development Department.
[17] Jawara argues that this attestation failed to meet the
requirements of § 3505(a)(1)(A)-(D). Although Jouf’s attesta-
tion does not mirror the exact language of § 3505(a)(1), it sat-
isfies the statutory requirements in substance—the
certification confirms the accuracy of the test records main-
UNITED STATES v. JAWARA 837
tained in the files of the examination agency. Because the dis-
puted document contains sufficient indicia of reliability, the
district court was within its discretion to admit the document.
We also note that the information contained in this exhibit is,
in any case, duplicative of Exhibit 16.3, which falls squarely
within the purview of § 3505.
Exhibit 16.3 lists “May/June 1998” examination results for
students from “St. Augustine’s Senior Secondary School” in
Banjul, The Gambia, including “Jawara Muhammed.” It con-
tains the heading “The West African Examinations Council”
and has a stamp imprint from the “Principal” of St. Augus-
tine’s. This document is accompanied by a “Certificate of
Authenticity of Business Records,” signed on January 14,
2005 by Charles Mendy, who attested on penalty of perjury
that he is the principal of St. Augustine’s. Mendy’s attestation
contains language exactly mirroring § 3505(a)(1)(A)-(D).
Notably, at the in limine hearing, Jawara’s attorney initially
acknowledged that the exhibit satisfied the statutory require-
ments: “[E]xhibit 16.3 . . . this is one exhibit from St. Augus-
tine’s which does seem to be covered by the certification. The
certification certainly tracks the language of the statute . . . .”
Jawara later claimed that § 3505 does not support the admis-
sion of Exhibit 16.3 because the principal of St. Augustine’s
cannot attest to an examination record prepared by the West
African Examinations Council. This argument is without
merit.
[18] Section 3505 provides for a “foreign certification” by
“the custodian of a foreign record of regularly conducted
activity or another qualified person.” 18 U.S.C. § 3505(c)(2)
(emphasis added). As the school’s principal, Mendy was a
proper “custodian” of official examination records for stu-
dents attending his school. See United States v. Basey, 613
F.2d 198, 202 n.1. (9th Cir. 1979) (holding no error in admit-
ting college records where “a sufficient custodian” had
attested to the fact that “the records were made and kept in the
838 UNITED STATES v. JAWARA
regular course of college business,” and it was “unimportant
under Fed. R. Evid. 803(6)[12] that the custodian did not her-
self record the information or know who recorded the infor-
mation.”). Borrowing the district court’s analogy, we would
have no trouble concluding that a college in the United States
was a proper custodian of its students’ SAT results, even
though the SAT results were actually prepared by another
entity.
AFFIRMED.
REINHARDT, Circuit Judge, dissenting from the judgment:
I join much of the majority opinion, but disagree that the
misjoinder of the indictment is harmless error. I would hold
that erroneously joining the two counts — falsifying one’s
own immigration documents, and conspiring over a substan-
tial period of time to aid other persons to enter into fraudulent
marriages in violation of the immigration laws — had a “sub-
stantial and injurious effect” upon the jury’s determination.
United States v. Lane, 474 U.S. 438, 449 (1986).
Although the majority characterizes the evidence of guilt
under both counts as “overwhelming,” Maj. at 828, the evi-
dence with respect to the falsification of the defendant’s own
immigration documents is clearly not. Jawara never denied
that there were material errors in his asylum application. To
the contrary, he acknowledged the errors in the application,
but testified that he was not aware of their existence because
another individual prepared the document for him. He also
testified that he was unaware of any problems regarding the
supporting documents and that he had received the identifica-
12
See United States v. Klinzing, 315 F.3d 803, 810 (7th Cir. 2003)
(explaining that “the foreign business records exception, § 3505, derived
specifically from . . . [Fed. R. Evid.] 803(6).”).
UNITED STATES v. JAWARA 839
tion card from a government office and his birth certificate
from his brother in Sierra Leone. The crucial issue with
respect to the document fraud charge, thus, was Jawara’s
credibility. Although the government presented an expert wit-
ness whose testimony rendered some of Jawara’s testimony
implausible, if the jury nevertheless believed his explanations
it would have acquitted him on that charge.
In the vast majority of cases, and especially in cases in
which a defendant’s credibility is the crucial issue, the most
prejudicial evidence the prosecution can present — perhaps
aside from a confession — is testimony establishing that the
defendant has committed other serious crimes and is a bad
person generally. Evidence of other crimes is particularly
damning when the other crimes, as in this case, are of the
same general type (here, immigration offenses) as the offense
with which the defendant is charged. Here, it is plain not only
that Jawara’s credibility was undermined, but that his entire
defense to the document fraud charge was destroyed when the
prosecution was allowed not only to inform, but to persuade,
the jury that following his own immigration violations Jawara
engaged in a course of criminal conduct in violation of the
immigration laws — that he engaged in a continuous pattern
of immigration fraud in aiding others to arrange fraudulent
marriages to circumvent the immigration statutes. Once the
jury reached its conclusion that Jawara had committed the
serious criminal offense of conspiring over an extended
period of time to aid others to fraudulently violate the immi-
gration laws, so that they would become eligible to remain in
the United States, it was almost inevitable that it would
believe that Jawara violated the immigration laws with respect
to his own immigration papers so that he would be able to
remain here. The case with respect to Jawara’s unlawful aid
to others having been proven, it is unreasonable to expect that
the jury would consider the question of Jawara’s falsification
of his own documents solely on the evidence relative to that
count. Persuading the jury of Jawara’s guilt on the more seri-
ous conspiracy charge eliminated any real possibility that it
840 UNITED STATES v. JAWARA
would accept his contention that he was unaware of the mis-
representations in his own application and the errors in his
other documents.
Prejudice can arise even more readily than in the average
case when there is misjoinder of a crime that would be partic-
ularly disturbing to the average juror. Conspiring to violate
the immigration laws by aiding a number of aliens to remain
in the country unlawfully and obtain permanent resident status
would be highly offensive to many jurors these days. In
United States v. Terry, 911 F.2d 272 (9th Cir. 1990), a leading
case on misjoinder, we held that the district court erred under
Rule 8(a) in joining two drug-related charges with a count of
being a felon in possession of a firearm. We concluded that
the misjoinder prejudiced the defendant:
A juror would inevitably be more disturbed about the
idea of a “drug dealer” with a gun than a citizen who
previously had committed some unknown crime. It
is highly probable that this inculpatory characteriza-
tion of Terry as a drug dealer influenced the jury in
determining its verdict.
Id. at 277. Similarly, here, the jury likely was influenced, in
determining whether Jawara was guilty of submitting his own
fraudulent immigration document, by its conclusion that he
had in fact conspired to commit immigration fraud to aid oth-
ers over an extended period of time.
Furthermore, a “substantial disparity” in the strength of the
evidence of two separate offenses which are joined can
“taint[ ] the jury’s consideration” of the offense for which
there is weaker evidence. Bean v. Calderon, 163 F.3d 1073,
1085 (9th Cir. 1998) (citing Lucero v. Kerby, 133 F.3d 1299,
1315 (10th Cir. 1998)). By hearing far stronger evidence on
the conspiracy charge than the document fraud charge, the
jury may have experienced “ ‘the human tendency to draw a
conclusion which is impermissible in the law: because he did
UNITED STATES v. JAWARA 841
it before, he must have done it again.’ ” Id. (quoting United
States v. Bagley, 772 F.2d 482, 488 (9th Cir. 1985)).
Although the majority relies heavily on its technical argu-
ments that the district court’s error was mitigated by the
instruction that the jury consider the counts separately, Maj.
at 828, and that the jury could compartmentalize the evidence
as to each charge, these factors, while not irrelevant, are
hardly sufficient to overcome the overwhelming actual preju-
dice created in this case by joinder with the conspiracy
charge.
For these reasons, I would find the improper joinder preju-
dicial, at least with respect to the document fraud charge.
Accordingly, I dissent from the majority’s holding that there
was no prejudice in this case.
Because I would reverse on misjoinder, I need not consider
whether the Confrontation Clause also requires reversal,
under Crawford v. Washington, 541 U.S. 36 (2004). However,
as I have stated, the evidence on the document fraud charge
is comparatively weak. Thus, I do not agree with the majori-
ty’s determination of harmless error with respect to the expert
testimony regarding the State Department country reports.