United States v. Emmanuel Anyanwu ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 07 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-10321
Plaintiff - Appellee, D.C. No. 3:07-cr-00654-CRB-1
v.
MEMORANDUM*
EMMANUEL EJIKE ANYANWU,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted August 11, 2011
San Francisco, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
Appellant Emmanuel Anyanwu (“Anyanwu”) challenges his convictions for
making a false statement on an immigration document, conspiring to make a false
statement to a federal agency, and aggravated identity theft. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The government demonstrated at trial that Anyanwu used the
identification of another to make a false statement in an immigration document,
without any legal authority, at a time when he knew that the person existed, in
violation of 18 U.S.C. § 1028A. Hence, there was sufficient evidence supporting
the conviction. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)
(en banc).
2. The government did not constructively amend the indictment by
presenting a different conspiracy theory at trial than the one charged in the
superseding indictment. Both the district court and the prosecutor explained to the
jury that the conspiracy charge alleged Anyanwu conspired to make a false
statement to the federal authorities. The government also presented sufficient
evidence which supported the conspiracy to make false statements to the United
States Customs and Immigration Service with the goal of attaining permanent
residency. Hence, there was no “complex of facts presented at trial distinctly
different from those . . . in the indictment.” United States v. Adamson, 291 F.3d
606, 615 (9th Cir. 2002) (internal quotation marks and brackets omitted).
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3. The district court did not abuse its discretion when it admitted into
evidence various documents from Anyanwu’s alien registration file (“A-File”).
Many of the documents were non-hearsay because they were not admitted to prove
the truth of the matters asserted, but rather, to prove the very falsity of the
assertions made in the documents. The A-File documents were also admissible
pursuant to the public records exception under Federal Rule of Evidence 803(8)(e),
United States v. Hernandez–Herrera, 273 F.3d 1213, 1217–18 (9th Cir. 2001), and
pursuant to Rule 801(d)(2)(E) as statements of co-conspirators in furtherance of a
conspiracy.
4. The district court did not commit plain error when it provided the jury
with Ninth Circuit Model Jury Instructions § 3.5 to define “reasonable doubt.” We
have previously held that the district court’s submission of a § 3.5 instruction
defining reasonable doubt does not constitute plain error. United States v. Ruiz,
462 F.3d 1082, 1086 (9th Cir. 2006). The instruction’s exclusion of speculation as
a basis for reasonable doubt comports with the law. See Ramirez v. Hatcher, 136
F.3d 1209, 1212–13 (9th Cir. 1998).
AFFIRMED.
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