United States v. Murry

Appellate Case: 20-1214 Document: 010110672826 Date Filed: 04/19/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 19, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1214
GALIMA MURRY,
Defendant - Appellant.
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1241
RAJESH RAMCHARAN,
Defendant - Appellant.
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1243
DIANN RAMCHARAN,
Defendant - Appellant.
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Appellate Case: 20-1214 Document: 010110672826 Date Filed: 04/19/2022 Page: 2
v. No. 20-1245
KEN HARVELL,
Defendant - Appellant.
_________________________________
Appeals from the United States District Court
for the District of Colorado
(D.C. Nos. 1:19-CR-00154-DME-4; 1:19-CR-00154-DME-1;
1:19-CR-00154-DME-3, & 1:19-CR-00154-DME-5)
_________________________________
Ryan A. Ray, Norman Wohlgemuth, Tulsa, Oklahoma, for Defendant-Appellant Galima
Murry.
Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the brief), Denver, Colorado, for Defendant-Appellant Rajesh
Ramcharan.
James L. Hankins, Edmond, Oklahoma, for Defendant-Appellant Diann Ramcharan.
Jonathan S. Willett, Boulder, Colorado, for Defendant-Appellant Ken Harvell.
Marissa R. Miller, Assistant United States Attorney (Matthew T. Kirsch, Acting United
States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.
_________________________________
Before HARTZ, KELLY, and CARSON, Circuit Judges.
_________________________________
CARSON, Circuit Judge.
_________________________________
Fundamental to our justice system—and even our democracy—is the jury.
Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 860 (2017). The jury checks
government power. It resolves factual disputes. It determines ultimate questions of
guilt or innocence. In doing so, “its judgments find acceptance in the community, an
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acceptance essential to respect for the rule of law.” Id. And voir dire—allowing the
court to question potential jurors—helps guarantee an impartial jury.
Three out of four defendants here identify as minorities, and two are illegal
immigrants. They assert that the district court abused its discretion in failing to ask
the potential jurors whether they harbored racist views. One defendant posits that if
“America as an institution harbors racial prejudice in the context of immigration law,
it stands to reason that some members of that same institution also harbor similar
views.” But the Supreme Court has long held that no constitutional presumption of
juror bias exists for or against members of any particular racial or ethnic groups.
Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981) (plurality opinion). And
we decline to create such a presumption today. Rather, without any substantial
indication that racial or ethnic prejudice likely affected the jurors, we hold that the
district court did not abuse its discretion in denying Defendants’ requests to directly
examine the jurors about the subject.
Defendants also appeal the district court’s evidentiary rulings, the jury
instructions, and the sufficiency of the evidence. We exercise jurisdiction under 28
U.S.C. § 1291. Finding Defendants’ arguments with respect to these issues equally
unpersuasive, we affirm.
I.
Defendants Rajesh and Diann Ramcharan immigrated to the United States
from Trinidad and Tobago with their son Raul. After overstaying their temporary-
visitor visas, Rajesh and Diann moved to Colorado Springs, Colorado. They
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integrated themselves into the community—becoming involved in a local church
pastored by Defendant Ken Harvell and starting a landscaping business.
The Ramcharans and Harvells became close—so close that the Ramcharans
listed the Harvells as emergency contacts on their children’s school forms. Despite
marrying in 2001 in Trinidad and Tobago, the Ramcharans remarried in the United
States in 2010 with Defendant Harvell officiating. A short two months later, the
Ramcharans filed for divorce while Diann was seven-months pregnant with their
third child. The government asserts this was the beginning of a paper trail that the
Ramcharans and Harvell initiated to obtain green cards for Rajesh, Diann, and Raul.
The divorce petition listed Diann’s address as the family home. Rajesh listed the
Harvells’ home as his address. Despite the separate addresses, Rajesh and Diann
continued to live in the same home, renewing the lease on their apartment several
times, taking out renters’ insurance together, and continuing to present themselves as
husband and wife to friends and neighbors.
Five days after her divorce became final, Diann married a United States
citizen—Defendant Galima Murry. Once again, Defendant Harvell signed the
marriage certificate. Despite the marriage, Rajesh and Diann opened a new bank
account together the next day. Three weeks following the wedding, Murry, an Army
sergeant stationed in Colorado Springs, deployed to Afghanistan. Before deploying,
Murry drafted a note, which provided that his new wife, Diann, would receive
nothing in the event of his death, serious injury, or divorce. Rather, his assets would
pass to his brother. Diann signed the note. Murry’s brother remained the beneficiary
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on his life insurance. Murry and his brother were not close. Murry’s brother was
unaware of Diann’s existence.
Once married, Murry immediately began collecting an extra $250 per month in
Afghanistan for a “family separation allowance.” Upon his return to the United
States, Murry obtained additional perks from both the military and the Ramcharans.
Murry began claiming Raul, the Racharans’ oldest son, as a dependent on his taxes.
He received extra money from the Army in the form of a housing allowance because
of Diann and Raul, which amounted to over $1,000 per month—a stipend he
collected for nearly six years and benefited him around $100,000. The Ramcharans
gave Murry a vehicle bought through their landscaping business. But as the vehicle-
transfer paperwork shows, Murry did not live with Diann. Rajesh listed his address
as the location where Diann lived and listed Murry’s address as Murry’s separate
apartment. The Ramcharans used Harvell’s Social Security number to register the
car with the Department of Motor Vehicles and listed Harvell as an “authorized
employee” though he never worked for the landscaping business.
After Murry deployed, Diann filed paperwork for a green card—form I-130,
Petition for Alien Relative, and form I-485, Application to Register Permanent
Residence or Adjust Status. Because of Murry’s deployment, Diann attended her
interview alone and testified under oath that Rajesh had returned to Trinidad and
Tobago. Diann became a conditional permanent resident, which allowed her to
obtain a green card for a two-year period.
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The Army transferred Murry to Washington, then Maryland, then Georgia.
Murry requested reimbursement for moving expenses from the Army for not only
himself, but also Diann and Raul. On the transfer forms, he misspelled Diann’s first
name on each form and gave four different birth dates for Raul.
Three years after her wedding to Murry, Diann filed form I-751, Petition to
Remove Conditions on Residence. On the form, Diann and Murry signed a statement
certifying their marriage was “not for the purpose of procuring an immigration
benefit.” They attached a letter to the petition from Harvell stating that he had
married the couple and that they were still together. The government approved the
form and Diann became a lawful permanent resident with a green card valid for ten
years, which enabled her to obtain a green card for Raul.
Having secured lawful permanent-resident status, Diann began to arrange a
marriage for Rajesh. While working at Walmart, Diann became friends with a co-
worker, Angelica Guevara. Diann told Guevara that she had married a United States
citizen to stay in the United States. Diann referred to Murry as her “green card
husband.” Diann told Guevara that Murry benefited too from his additional Army
benefits. She explained that Rajesh’s visa had expired and that he could face
deportation. She further explained that Rajesh faced danger in Trinidad and Tobago,
that he might be unable to return to the United States if deported, and that her
children would lose their father as a result. Diann asked Guevara to marry Rajesh to
keep her family together—assuring Guevara that people did not get in trouble for this
type of activity. Diann told Guevara that she would walk her through the process.
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Guevara would just have to take some pictures, sign some papers, and wait two years
before she could obtain a divorce. Guevara agreed.
Guevara married Rajesh with Harvell officiating. Harvell explained to
Guevara that she was doing God’s work. The wedding was small and without
fanfare. And in Guevara’s words, “it wasn’t a real ceremony.” After Harvell
pronounced them husband and wife, “everybody laughed.” No pictures show
Guevara and Rajesh kissing on the mouth because she did not want to do so. After
the ceremony, Harvell, the Ramcharans, and Guevara had lunch together at Burger
King, and Diann told Guevara that the post office would deliver her mail to Harvell’s
address to make it appear that she lived there with Rajesh. Guevara executed a lease
for the Harvell’s basement. She never saw the basement and instead moved in with
her boyfriend a few months after her marriage.
The government became suspicious during an interview for Raul’s green card
that Murry did not attend. The interviewer asked Diann about Murry’s absence. She
replied that he was deployed to Maryland. The interviewer asked whether she moved
to Washington with Murry. Diann replied that she had not because her children
wanted to be near their father. When the interviewer looked back at Diann’s file, he
noticed that she had once stated that she lived in Washington with Murry and that
Rajesh had returned to Trinidad and Tobago. The interviewer forwarded the file for
investigation.
United States Custom and Immigration Services began its investigation and
noticed the connection between the Ramcharans, Murry, Guevara, and Harvell.
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Immigration agents visited the Ramcharans’ house on a weekday morning in
Colorado Springs, where they found Rajesh outside scraping ice off his car. Shortly
after that visit, Rajesh filed his form I-485, on which he swore that he lived at the
Harvells’ address and that he had “not withheld any information that would affect the
outcome of this application.”
Agents next went to the Harvells’ residence—the address where Rajesh and
Guevara supposedly lived. They arrived at 7:45 a.m., and Harvell answered the
door. Neither Rajesh nor Guevara were there. Agents asked Harvell whether Rajesh
lived at the residence, and he responded: “He can live here.” Agents found Harvell’s
responses to their remaining questions vague and evasive.
After the Harvell stop, agents arrived at Guevara’s boyfriend’s residence.
Guevara insisted that they speak to her outside—her boyfriend was unaware of
Rajesh. Guevara at first tried to stick to the story, but she couldn’t keep up with the
agent’s detailed questions. Guevara, believing she looked guilty, decided to tell the
truth. Guevara wrote a statement confessing that her marriage was fake and for
immigration purposes only.
Agents then returned to the Ramcharans’ home. Diann admitted that Rajesh
spent the night sometimes but only to babysit. Diann said Murry was in Maryland,
but she did not know which city. After learning about Guevara’s confession, she
became evasive and ended the interview. A few months later, Diann and Murry
divorced.
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Agents called Murry on the telephone after the divorce, but he refused to
answer several questions. The Army had more success. Murry admitted to the Army
investigator that Diann and Raul never lived with him, yet he had claimed the family-
moving expenses and housing allowance. Despite this confession, Murry maintained
that the marriage with Diann was real. He claimed to have sent her funds while
apart, but subpoenas yielded no transfers between the two.
Guevara, cooperating with the government, called Diann from an agent’s
office. Guevara said that she wanted to confess everything: that the marriage “was
not a real marriage” and that she “was just trying to help” the Ramcharans. Diann
said she understood but encouraged Guevara to maintain that she married Rajesh but
it did not work out. Diann hung up on Guevara.
The government executed a search warrant on Diann’s home. Agents found a
framed photo of Diann and Rajesh in the front hall captioned, “Bless this house with
laughter and love.” The bed in the master bedroom looked used on both sides.
Above the bed was a sign that read “Always kiss me goodnight.” The closet had both
men’s and women’s clothing in it. And Rajesh’s cell phone was on the nightstand
along with men’s deodorant.
A grand jury indicted Diann, Rajesh, Murry, Guevara, and Harvell. Guevara
pleaded guilty to one count of conspiracy. Diann, Rajesh, Murry, and Harvell
proceeded to trial. Count one charged Rajesh, Diann, and Harvell with entering
marriage for the purpose of evading immigration laws in violation of 8 U.S.C.
§ 1325(c) and 18 U.S.C. § 2 based on the marriage of Rajesh and Guevara. Count
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two charged Rajesh, Diann, Harvell, and Murry with making false statements to
government officials in violation of 18 U.S.C. § 1001(a)(3) and 18 U.S.C. § 2 based
on Diann’s form I-751. Count three charged Rajesh, Diann, and Harvell with making
false statements to government officials in violation of 18 U.S.C. § 1001(a)(3) and
18 U.S.C. § 2 based on Rajesh’s form I-485. Count four charged Rajesh, Diann,
Harvell, and Murry with conspiracy to commit marriage fraud and making false
statements to government officials in violation of 18 U.S.C. § 371 based on their
actions from July 2010 to August 2017.
Prior to voir dire, the district court asked prospective jurors to fill out a
questionnaire, which asked these three questions:
22. Have you or has anyone in your immediate family had any experience
with U.S. Immigration Authorities?
23. To your knowledge, have you, or has anyone in your immediate family
or anyone with whom you have a close personal relationship ever sought to
obtain a right to reside in the United States as a result of a marriage to a
United States citizen?
24. Do you believe there is any reason why you cannot be a fair and
impartial juror in a criminal case regarding immigration and residency
issues? If yes, please give your reason(s).
Also before trial, Rajesh submitted a list of proposed voir dire questions. Two
questions explored whether a potential jury member held prejudicial views about
race. Rajesh requested that the district court ask the following:
Does the race, ethnicity, or religion of the immigrant affect your thoughts
on whether that person should be welcome in the United States?
You may have heard that President Trump made the following statement:
“why are we having all these people from shit hole countries come here?”
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in reference to countries such as El Salvador, Haiti, and African nations.
What do you think about that statement?
The district court asked neither question on the first day of voir dire but did begin by
summarizing the charges, emphasizing that the case involved immigration. The
district court asked the potential jurors twice if anything immigration-related would
prevent them from being fair and impartial. One potential juror responded
affirmatively, and the district court dismissed that juror for cause. The district court
also asked many jurors individually about immigration. The district court excused
five potential jurors for cause based on their views on immigration.
Rajesh objected to the voir dire proceedings and moved the district court to
directly address the issue of racial and ethnic prejudice. Arguing to the court,
Rajesh’s attorney posited: “I think that that is important for the Court to examine
with the jurors how they feel about defendants who don’t look like them and whether
or not they have any implicit or explicit bias.” Diann joined in the motion, her
attorney stating, “If I had an opportunity to ask the jury, I would say, ‘We are living
in a country right now where the President has indicated there are certain shithole
countries.’” The government noted its problem with a question about race. It argued
that no one would introduce any evidence that race, ethnicity, or religion played a
role in what occurred. And any question about a “shit hole country” would inject
something into the case that was missing. Rajesh’s attorney countered that the
evidence was present in the courtroom by the very color of Defendants’ skin and that
to say “we don’t see color” was offensive.
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The district court sided with the government. In its oral ruling, the district
court told the parties that it had covered this subject. The district judge stated that
this voir dire was one of the most extensive he had ever participated in as a lawyer or
a judge, noting that he had never granted as many for-cause challenges. The district
court said that asking potential jurors if they are biased or prejudiced is not the best
way to detect bias and prejudice.
The trial lasted nine days. The government presented almost twenty witnesses
and introduced over 100 exhibits. The government presented documentary evidence
consisting of the leases, insurance policies, and bank statements. The Ramcharans’
neighbors and friends testified about the Ramcharans’ shared home, joint parties, and
representation of marital status. Another friend testified that Diann told her about
having a green-card husband. Guevara also testified. She described how Diann
persuaded her to join the conspiracy, how Harvell married her to Rajesh, and how she
confessed. The jury heard the recorded call between Guevara and Diann.
At trial, the Ramcharans contended that their marriages to Guevara and Murry
were real even if unconventional. They argued that their lives remained intertwined
after their divorce because of their children and their business. Murry also contended
at trial that his marriage to Diann was real and that their relationship fell apart
following his deployment. Harvell maintained that he was not involved in the
alleged conspiracy and did not know what the others were doing. He asserted that
the Ramcharans exploited his kindness.
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The jury convicted Rajesh, Diann, and Murry on all counts against them. The
jury convicted Harvell on counts three and four but acquitted him on counts one and
two. Rajesh, Diann, Murry, and Harvell appealed.
II.
Rajesh, Diann, and Murry first argue that the district court erred by declining
to ask the jury pool about racial bias. Second, Diann and Harvell appeal the district
court’s refusal to exclude testimony that Harvell “had done this before.” Third,
Diann challenges a jury instruction that stated, “a person intends the natural and
probable consequences of acts knowingly done or omitted.” Fourth, Harvell argues
that the district court wrongfully declined a proposed instruction on the First
Amendment. Fifth, Harvell argues that the district court erred by excluding evidence
about his mental state and religious beliefs. Sixth, Murry appeals the district court’s
decision not to take judicial notice of the fact that “Recruiter” is a “Military
Occupational Specialty,” or “MOS.” Seventh, Murry argues that the jury lacked
sufficient evidence to support his conviction on counts two and four. Eighth, and
finally, Harvell contends that the jury lacked sufficient evidence to support his
conviction on counts three and four. Addressing each issue in turn, we affirm.
A.
Defendants Rajesh, Diann, and Murry first contend that the district court
abused its discretion when conducting voir dire. The district court has discretion
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over the scope of voir dire at trial. United States v. Espinosa, 771 F.2d 1382, 1405
(10th Cir. 1985) (citations omitted). And we will not disturb that discretion absent a
clear showing that the district court abused it. Id. (citations omitted).
The Supreme Court has long recognized that voir dire plays a critical function
in assuring a defendant that the court will honor his Sixth Amendment right to an
impartial jury. Rosales-Lopez, 451 U.S. at 188. But the Court has also
acknowledged that the adequacy of voir dire is not easily subject to appellate review.
Id. The trial judge must determine impartiality and credibility by relying on his own
evaluations of demeanor evidence and responses to questions. Id. (citation omitted).
We cannot “easily second-guess the conclusions of the decision-maker who heard
and observed the witnesses.” Id.Despite the ample discretion a district court has in empaneling a jury, the
Constitution may require questioning prospective jurors about racial or ethnic bias.
Id. at 189. But to be sure, no constitutional presumption of juror bias exists for or
against members of any particular racial or ethnic group. Id. at 190. “Only when
there are more substantial indications of the likelihood of racial or ethnic prejudice
affecting the jurors in a particular case does the trial court’s denial of a defendant’s
request to examine the jurors’ ability to deal impartially with this subject amount to
an unconstitutional abuse of discretion.” Id. If not, “the Constitution leaves it to the
trial court, and the judicial system within which that court operates, to determine the
need for such questions.” Id. The Supreme Court recognized that mandating trial
courts to engage in such an inquiry in every case would create the impression that
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justice turns on one’s skin color or the accident of birth. Id. (citation omitted). But
courts must balance the risk of that impression with the defendant’s perception that
the jury has undiscovered racial or ethnic biases. Id. at 191.
The Supreme Court determined that the best practice would allow the
defendant to decide whether he would prefer to inquire into racial or ethnic prejudice.
Id. Failure to honor the defendant’s request, however, is reversible error only when
the case’s circumstances show a reasonable probability that racial or ethnic prejudice
might have influenced the jury. Id. Ultimately, outside the violent-crime context,
“the decision as to whether the total circumstances suggest a reasonable possibility
that racial or ethnic prejudice will affect the jury remains primarily with the trial
court, subject to case-by-case review by the appellate courts.” Id. at 192.
Before turning to the merits, we address the government’s preservation
argument. The government asserts that we should review the Ramcharans’ claims for
plain error. Although Rajesh and Diann objected below, the government believes
that they rely on a legal rule they never presented to the district court. And the
government argues that because Murry did not join Rajesh’s objection, we cannot
address the merits of his claim.1
1
The government correctly notes that the Supreme Court has held that a
defendant cannot complain the district court failed to question the venire on racial
prejudice without having specifically requested such an inquiry. Turner v. Murray,
476 U.S. 28, 37 (1986). Murry still contends that Rajesh and Diann’s objection was
enough to preserve the claim for him. When evidentiary issues are concerned, we
have not yet taken a position on vicarious objections. United States v. Irving, 665
F.3d 1184, 1207 (10th Cir. 2011) (citing United States v. Ray, 370 F.3d 1039, 1043
n.3 (10th Cir. 2004)). And we need not do so today. Even assuming Rajesh’s
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Preserving an issue in the district court is simple. A party need “only to alert
the court to the issue and seek a ruling.” United States v. Ansberry, 976 F.3d 1108,
1124 (10th Cir. 2020) (quoting Harris v. Sharp, 941 F.3d 962, 979 (10th Cir. 2019)).
Federal Rule of Criminal Procedure 51(b) tells parties how to preserve claims of
error: “by informing the court—when the court ruling or order is made or sought—of
the action the party wishes the court to take, or the party’s objection to the court’s
action and the grounds for that objection.” Puckett v. United States, 556 U.S. 129,
135 (2009) (quoting Fed. R. Crim. P. 51(b)). Rajesh requested the district court ask
two questions intended to reveal racial or ethnic prejudice. After the district court
failed to ask those questions, Rajesh objected and renewed his request for one of the
questions—in his attorney’s words—to expose possible juror biases and provide
reasonable assurance that the court would discover prejudice if present. The district
court again denied the request.
Despite Rajesh and Diann objecting to the lack of an explicit question to
expose racial bias in the potential jury pool, the government faults them for failing to
cite to the district court the Rosales-Lopez standard that underpins their appellate
briefing. That standard obligates a district court to ask the potential jury members
about racial bias when external circumstances suggest a reasonable possibility that
racial or ethnic prejudice will influence the jury’s evaluation of the evidence.
objection preserved the issue for Murry, Murry’s claim still fails given our holding
on the issue as to Rajesh and Diann.
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In support, the government cites United States v. Bacon, 950 F.3d 1286, 1292
(10th Cir. 2020). Bacon recites our oft-cited proposition that we decline to allow
parties to assert for the first time on appeal legal theories not raised before the district
court, “even when they fall under the same general rubric as an argument presented
to the district court.” 950 F.3d at 1292 (quoting United States v. A.B., 529 F.3d
1275, 1279 n.4 (10th Cir. 2008)) (citing United States v. Buonocore, 416 F.3d 1124,
1128 (10th Cir. 2005); United States v. Anderson, 374 F.3d 955, 958 (10th Cir.
2004)). In Bacon, the defendant objected to the district court’s decision to keep his
plea supplement under seal, asserting that a sealed plea supplement in his court
records would endanger him. 950 F.3d at 1292. On appeal, Bacon argued that the
district court erred in overruling his objection because the court did not consider the
presumptive common-law right of access to judicial records or conduct the balancing
test flowing from that presumption. Id. We held that because Bacon did not invoke
the common-law right of public access in the district court, he forfeited that
argument. Id.
Although Rajesh and Diann did not mention Rosales-Lopez by name to the
district court, they asked the district court to probe whether a potential juror’s racial
or ethnic prejudice would influence the jury’s evaluation of the evidence. Rajesh’s
attorney argued to the district court:
this is important information that we need to know about the jurors, the
beliefs that they hold as it pertains to the law that they’re going to have to
apply. The real issue is—and I know Your Honor has told them, if I give
you the law, will you follow it? If they don’t know what the law is, they
don’t know if they can follow it. If they don’t know what the law is, they
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can’t be able to know whether they have some explicit or implicit bias that
would make it impossible for them to follow the law.
...
[M]y client is black—he’s actually Indian, really; he comes across as a
black man living in America. I mean, I think most people would see him
that way. And with regard to Mr. Murry, he’s also a black man living in
America. Ms. Ramcharan is of darker color. I mean, they’re all minorities.
And I’m just saying that so that the record can reflect their skin color on the
record. I think that that is important for the Court to examine with the
jurors how they feel about defendants who don’t look like them and
whether or not they have any implicit or explicit bias.
We know from studies [that have] been done that people do have implicit
biases that they may not even know about. So when they’re filling out a
questionnaire, they may not say, oh, I’m a racist—like one of the potential
jurors did say on the questionnaire—but if you start probing a little bit and
talking about these issues with potential jurors, they do realize that they
have these issues. They want to be fair and impartial, but they need to
work through some of these issues in their brains before they realize that
maybe they can’t be fair and impartial on this particular jury.
...
The race and ethnicity of our clients is evidence in this case. There will be
in-court identifications of them. And they are all sitting here, their color is
evident, and the jury is going to be able to see that. The countries that they
come from, their countries of origin, we’re all going to hear about that. The
fact that Mr. Murry was adopted from an African country, the fact that Mr.
and Mrs. Ramcharan are from Trinidad and Tobago in the Caribbean, that
is all evidence in this case. It’s not injecting it, it’s here, and you have to
deal with it. And to say simply that, oh, we don’t see color, it’s just—I
mean, it’s offensive.
Unlike the defendant in Bacon, Defendants here do not rely on a new legal theory.
Rajesh may not have mentioned Rosales-Lopez by name, but he asked for a jury
instruction on racial bias and objected when the district court refused to provide one
because a jury member could have an explicit or implicit bias that would influence
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the jury’s evaluation of the evidence. Thus, we review Rajesh and Diann’s claim of
error for an abuse of discretion rather than for plain error.
Diann argues that the district court violated her Sixth Amendment rights by
failing to ask the jury pool about racial bias. We disagree. The district court did not
commit reversible error in voir dire. The Constitution requires a trial judge to grant
the request for racial-bias questions only if “racial issues [are] inextricably bound up
with the conduct of the trial.” Rosales-Lopez, 451 U.S. at 189 (quotation omitted).
Here, no “special circumstances” of constitutional dimension were present. The case
did not involve a violent criminal act with a victim of a different racial or ethnic
group. Indeed, the government accused Defendants of a victimless crime. Diann
argues race was “inextricably bound up with the conduct of this trial,” and there
existed “substantial indications of the likelihood of racial or ethnic prejudice
affecting the jurors” because “this case involved four defendants of color, from three
different cultural backgrounds, each charged with illegal interracial marriage that was
for the purposes of curing illegal immigration.” But the illegality of the marriages
had nothing to do with the race of Defendants, nor were the marriages illegal in
themselves. Defendants committed crimes by marrying to evade immigration laws,
making false statements to government officials, and conspiring to commit marriage
fraud. That immigration sometimes implicates race or ethnicity does not make all
immigration cases inextricably bound up with race. See id. at 192 (finding “no
‘special circumstances’ of constitutional dimension” when the case involved a
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Mexican petitioner who was tried before a jury for his participation in helping three
Mexican immigrants illegally enter the country). This case is no exception.
Rajesh and Diann’s case therefore falls within that category requiring the trial
court to “determine if the external circumstances of the case indicate a reasonable
possibility that racial or ethnic prejudice will influence the jury’s evaluation of the
evidence.” We hold that Defendants have not shown that reasonable possibility.
Whether a case presents a reasonable possibility that racial or ethnic prejudice might
have influenced the jury is a case-by-case determination. Rosales-Lopez involved
immigration—the petitioner was a Mexican who helped three Mexican immigrants
illegally enter the country. Id. at 184. The petitioner challenged the trial judge’s
refusal to question the jurors about possible racial or ethnic bias. Id. at 187. The
Supreme Court held that the trial judge did not abuse his discretion because no
reasonable possibility existed that racial or ethnic prejudice would affect the jury. Id.
at 194. Diann and Rajesh’s arguments, barring their “interracial marriage” argument,
are nearly identical to those in Rosales-Lopez.2 As in Rosales-Lopez, the district
court reasonably determined that a juror’s prejudice toward aliens might affect his or
her ability to serve impartially. The trial judge thus questioned the prospective jurors
about their attitudes toward aliens. And as in Rosales-Lopez, “[t]here can be no
2
Indeed, the facts of Rosales-Lopez are close to the facts in this case—
prosecution of a member of a minority group for violating immigration laws.
Although Rosales-Lopez is a plurality opinion, the concurrence disagreed with the
plurality opinion only insofar as the plurality opinion might require voir dire more
than the two concurring justices would.
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doubt that the jurors would have understood a question about aliens to at least include
[non-white] aliens.” Id. at 193. Here, the district court excused multiple potential
jurors for cause based on their responses to this question. Removing those potential
jurors eliminated any reasonable possibility that the jury would be influenced by an
undisclosed racial prejudice toward immigrants with darker skin. See id. The
Supreme Court has stated also that asking potential jurors generally whether any
grounds exist that would make them unable to sit fairly and impartially—as the trial
judge did here—coupled with the question about bias towards aliens, leaves “little
reason to believe that a juror who did not answer this general question would have
answered affirmatively a question directed narrowly at racial prejudice.” Id. at 193
n.8.
Under these circumstances, no reasonable possibility that racial or ethnic
prejudice would affect the jury existed. Thus, the district court did not abuse its
discretion in denying Defendants’ request.
B.
Diann and Harvell appeal the district court’s evidentiary ruling allowing
testimony that Harvell “had done this before.” At trial, the government asked
Guevara to describe how Diann persuaded her to marry Rajesh. The government
followed that question by asking if anyone besides the Ramcharans was involved.
Guevara named Harvell, stating that “[h]e was the person who conducted the fake
ceremony.” The government then asked, “Before the fake ceremony, did Mrs.
Ramcharan say anything about Pastor Harvell?” Guevara replied, “Just that he was
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somebody who had done this before, and he was also someone that could help them
through the process.” Harvell and Diann objected on Rule 404(b) and Rule 403
grounds. The district court overruled the objection, ruling that the statement was
intrinsic to the case and that the government offered the statement for its effect on the
listener. The district court said that the statement on its face was not Rule 404(b)
testimony because Harvell had once performed a wedding for Diann. The court then
gave a limiting instruction to the jury. The district court instructed the jury that it
should consider the statement only as evidence of Guevara’s frame of mind and
should not receive the statement as evidence of anything that Harvell did or did not
do.
We review a district court’s decision to admit evidence for abuse of discretion.
United States v. Merritt, 961 F.3d 1105, 1111 (10th Cir. 2020) (citing United States
v. Tan, 254 F.3d 1204, 1207 (10th Cir. 2001)). Thus, we do not disturb a district
court’s decision to admit evidence unless we have a “definite and firm conviction”
that the district court “made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” Id. (quoting United States v. Leonard, 439
F.3d 648, 650 (10th Cir. 2006)).
Under Rule 404(b), a district court may not admit evidence of other crimes,
wrongs, or acts “to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1).
But this rule “only applies to evidence of acts extrinsic to the charged crime.” Irving,
665 F.3d at 1212 (quoting United States v. Pace, 981 F.2d 1123, 1135 (10th Cir.
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1992), abrogated on other grounds as recognized in United States v. Bell, 154 F.3d
1205, 1209–10 (10th Cir. 1998)) (citing United States v. O’Brien, 131 F.3d 1428,
1432 (10th Cir. 1997)). Indeed, Rule 404(b) is not applicable if the contested
evidence is intrinsic to the charged crime. Id. (citing O’Brien, 131 F.3d at 1432).
“Other act” evidence is intrinsic “when the evidence of the other act and the
evidence of the crime charged are inextricably intertwined or both acts are part of a
single criminal episode or the other acts were necessary preliminaries to the crime
charged.” Id. (citing United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir.
1993)). Intrinsic evidence is “directly connected to the factual circumstances of the
crime and provides contextual or background information to the jury.” Id. (quoting
United States v. Parker, 553 F.3d 1309, 1314 (10th Cir. 2009)). On the other hand,
extrinsic evidence “is extraneous and is not intimately connected or blended with the
factual circumstances of the charged offense.” Id. (citation omitted). Thus,
“evidence essential to the context of the crime is intrinsic and does not fall under the
other crimes limitation of Rule 404(b).” Id. (quotation omitted).
Here, the district court interpreted Guevara’s statement as explaining that
Harvell had married Diann and Murry—a fact central to the government’s case in
Counts two and four. Because Harvell married Diann and Murry, Guevara’s
testimony is germane background information directly connected to the factual
circumstances of the alleged conspiracy. Thus, her statement relates directly to the
factual circumstances of the crime and is intrinsic to the crime at issue. Rule 404(b)
is inapplicable.
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This conclusion does not end our inquiry. Rule 403 still may exclude the
evidence “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice . . . .” Fed. R. Evid. 403. Harvell and Diann both assert that the risk of
prejudice substantially outweighed the probative value of the statement. Diann
argues that the government should have used less prejudicial language indicating
only that Harvell had performed a marriage in the past for Diann and Murry, not a
statement that could imply that Harvell had done it for others aside from the parties
here.
Our cases favor admission of relevant evidence not otherwise prohibited.
Irving, 665 F.3d at 1213 (citing United States v. Rodriguez, 192 F.3d 946, 949 (10th
Cir. 1999)). Thus, exclusion under Rule 403 is “an extraordinary remedy [that]
should be used sparingly.” Id. (quoting Rodriguez, 192 F.3d at 949).
Unfair prejudice in the context of Rule 403 “means an undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.” Tan, 254 F.3d at 1211 (quoting Fed. R. Evid. 403 advisory
committee’s note). Even if evidence makes a conviction more likely because it
adversely affects the jury’s attitude toward the defendant separate from its judgment
as to his guilt of the crime charged, the risk of prejudice must substantially outweigh
the probative value of the evidence for a court to exclude it. Id. at 1211–12 (quoting
Rodriguez, 192 F.3d at 951) (citing Fed. R. Evid. 403).
The district court did not abuse its discretion in determining that Guevara’s
testimony would not unfairly prejudice Defendants. Indeed, the district court “has
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broad discretion to determine whether prejudice inherent in otherwise relevant
evidence outweighs its probative value.” Irving, 665 F.3d at 1214 (quoting United
States v. Johnson, 42 F.3d 1312, 1315 (10th Cir. 1994)). In weighing the probative
value of evidence against unfair prejudice, district courts “must ‘give the evidence its
maximum reasonable probative force and its minimum reasonable prejudicial
value.’” Merritt, 961 F.3d at 1115 (quoting United States v. Henthorn, 864 F.3d
1241, 1256 (10th Cir. 2017)). The district court appropriately weighed the risk of
prejudice against the probative value and admitted the testimony. Giving the
evidence its maximum probative force and minimum prejudicial value, the district
court did not abuse its discretion in admitting the statement.
The district court also offered a limiting instruction directing the jury to limit
its consideration of Diann’s statement to its effect on Guevara’s decision to go
forward in the fraud. The court also instructed the jury not to consider the statement
as evidence of whether Harvell had done anything in the past. Harvell contends that
offering a statement for its “effect on the listener” rather than the truth of the matter
asserted is a “novel hearsay theory.” Not so. We have long held that a statement
offered to establish its effect on the listener is not hearsay. United States v. Smalls,
605 F.3d 765, 785 n.18 (10th Cir. 2010) (citing Faulkner v. Super Valu Stores, Inc., 3
F.3d 1419, 1434 (10th Cir. 1993)). Thus, the district court did not err in admitting
Guevara’s testimony.
C.
Third, Diann challenges Jury Instruction No. 21. That instruction provided:
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The intent of a person or the knowledge that a person possesses at any
given time may not ordinarily be proved directly because there is no way of
directly scrutinizing the workings of the human mind. In determining the
issue of what a person knew or what a person intended at a particular time,
you may consider any statements made, or acts done, by that person and all
other facts and circumstances received in evidence which may aid in your
determination of that person’s knowledge or intent.
You may infer, but you are certainly not required to infer, that a person
intends the natural and probable consequences of acts knowingly done or
knowingly omitted. It is entirely up to you, however, to decide what facts to
find from the evidence received during the trial.
No matter what you infer, you must remember that the burden is always on
the government to prove each element of each charged crime beyond a
reasonable doubt, including, for each charged crime, the required mental
state of the defendant.
We review a district court’s decision to give a particular jury instruction for abuse of
discretion. United States v. John, 849 F.3d 912, 918 (10th Cir. 2017) (citing United
States v. Williamson, 746 F.3d 987, 990 (10th Cir. 2014)). To assess whether the
district court properly exercised its discretion, “we review the jury instructions de
novo to determine whether, as a whole, they accurately state the governing law and
provide the jury with an accurate understanding of the relevant legal standards and
factual issues in the case.” Id. (quoting United States v. Faust, 795 F.3d 1243, 1251
(10th Cir. 2015)). Generally, an instruction on how to assess evidence lies
particularly within trial-court discretion because it guides the jurors’ common sense
in the case’s context rather than informing them of the governing law. Id.Diann argues that this jury instruction lowered the government’s burden of
proof or shifted the burden of proof to her. Although we have expressed discomfort
with this instruction for decades, we have repeatedly held that we will not reverse a
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conviction because of its use so long as the district court made clear to the jury,
through the jury instructions as a whole, that the burden is on the government to
prove the requisite mental state beyond a reasonable doubt. Id. at 920 (citing United
States v. Heath, 580 F.2d 1011, 1025 (10th Cir. 1978); United States v. Woodring,
464 F.2d 1248, 1251 (10th Cir. 1972)). And the district court did that here. Thus, we
conclude the district court did not abuse its discretion in giving Instruction No. 21 to
the jury.
D.
Before trial, Harvell proposed a jury instruction that cited the First
Amendment and the Religious Freedom Restoration Act (“RFRA”). That proposed
instruction stated:
The First Amendment of the United States Constitution creates an
individual right to the free and unobstructed practice of religion. The
government may not abridge that right. Therefore, if you find that the
government has not disproven beyond a reasonable doubt that the
Defendant was practicing religion when the claims of illegal activity in this
case occurred, then you must find him not guilty.
The district court rejected the jury instruction because it misstated the law. Harvell
argues the district court wrongfully rejected it because the jury should have been
permitted to determine whether his sincerely held religious beliefs were genuine and
whether the marriage-fraud-conspiracy charge impermissibly burdened his free-
exercise rights. We review the district court’s rejection of a requested instruction for
an abuse of discretion. United States v. Harris, 695 F.3d 1125, 1136 (10th Cir. 2012)
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(citing United States v. Turner, 553 F.3d 1337, 1347 (10th Cir. 2009)). We do not
require a district court to give another instruction “if it would simply give the jury a
clearer understanding of the issues.” United States v. Williamson, 746 F.3d 987, 990
(10th Cir. 2014) (quoting United States v. Bowling, 619 F.3d 1175, 1184 (10th Cir.
2010)). And unsurprisingly, we allow a district court to reject an instruction that
misstates the law. Id. (citing United States v. Pinson, 542 F.3d 822, 831 (10th Cir.
2008)).
The government first contends that Harvell either waived or forfeited this
argument. But we need not address the waiver or forfeiture here. See United States
v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007) (holding that forfeiture is not
jurisdictional and whether to address the argument is subject to our discretion).
Rather, we turn to the merits and hold that the district court did not abuse its
discretion in declining to give a RFRA-defense instruction. Harvell did not satisfy
his burden to prove entitlement to that defense. “To make out a prima facie RFRA
defense, a criminal defendant must show by a preponderance of the evidence that
government action (1) substantially burdens (2) a religious belief, not merely a
philosophy or way of life, (3) that the defendant sincerely holds.” United States v.
Quaintance, 608 F.3d 717, 719 (10th Cir. 2010) (citing United States v. Meyers, 95
F.3d 1475, 1482 (10th Cir. 1996)). A statute substantially burdens a religious belief
only if it “prevents the [person] from participating in an activity motivated by a
sincerely held religious belief. Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir.
2014) (citing Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010); Lyng v.
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Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988); Thomas v. Rev.
Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 716–18 (1981)). Harvell argues that his
duty to conduct marriages is a sincerely held religious belief. That may be so. But 8
U.S.C. § 1325(c) and 18 U.S.C. § 1001(a) do not criminalize conducting marriages—
without more. Harvell does not argue that his faith requires pastors to use marriage
to evade immigration laws or to marry anyone who asks even if the pastor knows the
purpose is to evade immigration laws. So he cannot show those generally applicable
statutes substantially burden his religious belief. Thus, the district court did not
abuse its discretion in failing to give the jury an instruction on a RFRA defense.
E.
Fifth, Harvell argues that the district court wrongfully excluded evidence about
his mental state and religious beliefs. Harvell wanted his brother to testify about his
deteriorating mental state brought on by Huntington’s disease, his “good and
religious character”—evidenced by convictions about church doctrine and
authenticity—and how “these character traits led him to be overly trustful and
victimized by others.” He also wanted to present lay testimony about his mental
condition. The government objected—first because evidence about a medical
condition requires expert testimony. And second because Harvell did not provide
required notice under Federal Rule of Criminal Procedure 12.2(b). As for evidence
of Harvell’s religious activities, the government objected based on relevance.
The district court held that Harvell could not introduce lay-witness testimony
about Huntington’s disease. But the district court allowed Harvell to present
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evidence about his “functioning at the relevant time of these two weddings.” It
noted, however, that it would not allow “testimony that is not related specifically to
the time period of these weddings.” The district court clarified it would allow
“people testifying about his functionability and functioning within a proximate period
of the wedding” but would not set “an arbitrary time frame.” We review a district
court’s determination of the admissibility of evidence for abuse of discretion. James
River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1212 (10th Cir. 2011) (quoting
United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008)).
The district court did not err in excluding lay-witness testimony about
Huntington’s disease. Rule 701 permits lay witnesses—not testifying as experts—to
give opinion testimony if it is based on the witness’s perception, helpful to
understanding the witness’s testimony or to determining a fact in issue, and not based
on scientific, technical, or other specialized knowledge within the scope of 702. Fed.
R. Evid. 701. “Rule 701 ‘does not permit a lay witness to express an opinion as to
matters which are beyond the realm of common experience and which require the
special skill and knowledge of an expert witness.’” James River Ins. Co., 658 F.3d at
1214 (quoting Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979)).
Rule 701 allows lay witnesses to offer “observations [that] are common enough and
require . . . a limited amount of expertise, if any.” Id. (quoting United States v.
VonWillie, 59 F.3d 922, 929 (9th Cir. 1995)).
Even so, Harvell argues the district court abused its discretion by prohibiting
his brother, who is not a doctor, from testifying about Harvell’s “deteriorating mental
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state.” He contends this ruling contradicts United States v. Goodman, 633 F.3d 963,
968 (10th Cir. 2011) (citations omitted), which states, “[s]ince neither Rule 701 nor
Rule 704(a) limits the subject matter of lay opinion testimony, there is no theoretical
prohibition against allowing lay witnesses to give their opinions as to the mental
states of others.” But Goodman continued: “the district court still has the discretion
to exclude lay witness testimony for other reasons contemplated by the Federal Rules
of Evidence.” Id. at 969 (citing United States v. Rea, 958 F.2d 1206, 1216 (2d Cir.
1992); United States v. Hauert, 40 F.3d 197, 202 (7th Cir. 1994)).
Harvell’s brother is not a doctor and thus could not opine on Harvell’s medical
diagnosis. That requires “specialized knowledge within the scope of Rule 702.” Fed.
R. Evid. 701(c). But the district court still allowed Harvell’s brother to testify about
Harvell’s mental state at the time of the weddings—complying with Goodman and
Rule 701(c).
Federal Rule of Criminal Procedure 12.2(b) requires a defendant intending to
introduce expert evidence related to a mental condition to notify the government
before trial. Harvell did not. And he could not skirt 702’s requirements by
presenting it as lay testimony under 701. See James River Ins. Co., 658 F.3d at 1216.
Indeed, “Rule 701 has been amended to eliminate the risk that the reliability
requirements set forth in Rule 702 will be evaded through the simple expedient of
proffering an expert in lay witness clothing.” Id. (quoting Fed. R. Evid. 701 advisory
committee’s note to 2000 amendment). A district court therefore must scrutinize a
witness’s testimony “under the rules regulating expert opinion to the extent that the
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witness is providing testimony based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Id. (quoting Fed. R. Evid. 701 advisory
committee’s note to 2000 amendment). Thus, the district court did not abuse its
discretion in limiting the testimony about Harvell’s mental condition.
Regarding the evidence about Harvell’s “good and religious character,” the
district court ruled it irrelevant. The district court reasoned that Harvell “could be
the most saintly man alive; but if he intended to perform this particular wedding—or
these two particular weddings—with the intent of evading Immigration laws, he
would be guilty.” The district court concluded “that all evidence about the church,
social good, and the validity of the church are simply not relevant.”
On appeal, Harvell argues the district court wrongfully prohibited this
evidence because, in a criminal case, Rule 404(a)(1) permits a defendant to introduce
evidence of a pertinent character trait and Rule 405(a) provides that “[w]hen
evidence of a person’s character . . . is admissible, it may be proved by testimony
about the person’s reputation or by testimony in the form of an opinion.” Fed. R.
Evid. 405(a). We disagree.
The district court did not abuse its discretion in concluding the evidence was
irrelevant. Harvell has not shown how his “religious character” is relevant to the
charges against him. As the district court observed, if Harvell intended to perform
the wedding with the intent to evade immigration laws, the law would adjudge him
guilty. His “religious character” is thus not a pertinent character trait. Moreover
Rule 405(a)’s allowance for character evidence by reputation or opinion depends on
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its admissibility. Rule 405(b) permits a party to introduce relevant, specific instances
of the person’s conduct when “a person’s character or character trait is an essential
element of a charge, claim, or defense.” Fed. R. Evid. 405(b). Harvell’s character
was not an essential element of a charge, claim, or defense. Thus, the district court
did not abuse its discretion in finding the evidence irrelevant.
F.
Sixth, Murry appeals the district court’s decision to not take judicial notice
that “Recruiter” is a “Military Occupational Specialty,” or “MOS.” An MOS
identifies a military member’s primary job. When Murry was married to Diann, his
MOS was “19K,” which meant that he was a “tanker”—or a crew member on a
military tank.
At trial, a United States Citizenship and Immigration Services agent testified
about Murry’s MOS. He testified that when he spoke to Diann during his
investigation, he asked her what Murry’s MOS was. The agent testified that she said
“recruiter,” which he found suspicious because “recruiter” is not an MOS. On cross-
examination, Murry’s counsel asked the agent if he knew that the Army made
“recruiter” an MOS in 2018 and that its code was “79R.”
Murry requested the district court take judicial notice that “recruiter” is an
MOS. Murry cited a training manual from the Army’s website. The government
objected, claiming that the document was improper impeachment and that the district
court should exclude it under Rule 403.
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The district court determined the information was relevant, but “not so central
that . . . [it] is likely to have a material effect on the outcome of the jury.” It said that
taking judicial notice of the fact would “elevate[] that issue above others.” So it
denied Murry’s motion. We review a district court’s decision to take judicial notice
of facts for abuse of discretion. United States v. Williams, 442 F.3d 1259, 1261
(10th Cir. 2006) (citing Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th Cir. 2001)).
The district court did not abuse its discretion in declining to take judicial
notice that “recruiter” is an MOS. Federal Rule of Evidence 201 allows a district
court to take judicial notice of an “adjudicative” fact, not subject to reasonable
dispute, that is “generally known within the trial court’s territorial jurisdiction” or
that can be “accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). Rule 201 further requires the court
to take judicial notice when a party requests it and supplies the court with the
necessary information. Fed. R. Evid. 201(c)(2).
But the district court has no obligation to allow presentation to the jury of a
judicially noticed fact that does not satisfy the usual relevance requirements.
Whether a recruiter is an MOS had no bearing on the case. After all, Murry was a
tanker, not a recruiter. Indeed, Murry could not have introduced evidence that a
“recruiter” is an MOS for any purpose other than impeaching the United States
Citizenship and Immigration Services agent. United States v. Walker, 930 F.2d 789,
791 (10th Cir. 1991) (citing State v. Oswalt, 381 P.2d 617, 619 (Wash. 1963))
(explaining such evidence is collateral); see also Fryar v. Curtis, 485 F.3d 179, 184
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(1st Cir. 2007) (quoting United States v. Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993))
(“A matter is considered collateral if the matter itself is not relevant in the litigation
to establish a fact of consequence, i.e., not relevant for a purpose other than mere
contradiction of the in-court testimony of the witness.”). And when the “extrinsic
evidence is only relevant to show that the witness made a specific error of fact, then
it is not admissible.” Roger Park & Tom Lininger, The New Wigmore, A Treatise on
Evidence: Impeachment and Rehabilitation § 4.2 (1st ed., 2022 Cumulative
Supplement). Thus, the district court did not abuse its discretion in declining to take
judicial notice of the fact that “recruiter” is an MOS.
G.
Seventh, Murry argues the jury lacked sufficient evidence to support his
conviction on counts two and four. Count two charged Murry with making false
statements to government officials in violation of 18 U.S.C. § 1001(a)(3) and
18 U.S.C. § 2 about Diann’s Form I-751 submitted May 2014. Count four charged
Murry with conspiracy to commit marriage fraud and make false statements to
government officials in violation of 18 U.S.C. § 371. We review de novo the
sufficiency of evidence. United States v. Sharp, 749 F.3d 1267, 1275 (10th Cir.
2014) (quoting United States v. Serrato, 742 F.3d 461, 472 (10th Cir. 2014)). We ask
“whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Id. (quoting Serrato, 742 F.3d at 472).
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To support a conviction under 18 U.S.C. § 1001(a)(3), the government must
show: (1) a defendant made a statement; (2) he knew the statement was false,
fictitious, or fraudulent; (3) the statement was made knowingly and willfully; (4) the
statement was within the jurisdiction of the federal agency; and (5) the statement was
material. United States v. Camick, 796 F.3d 1206, 1217 (10th Cir. 2015) (quoting
United States v. Harrod, 981 F.2d 1171, 1175 (10th Cir. 1992)). Murry claims that
the government presented insufficient evidence to prove the falsity, materiality, and
intent elements. He posits that he did not share Diann’s intent to marry for an
immigration benefit.
The government presented evidence that Murry signed his name on Diann’s
Form I-751, certifying that “the marriage . . . was not for the purpose of procuring an
immigration benefit.” Even though he did not intend to obtain an immigration
benefit, the government presented sufficient evidence for a jury to conclude that
Murry knew Diann did and intended her plan to succeed so that he could reap the
monetary marriage benefits from the Army. The district court instructed the jury that
under Pinkerton v. United States, 328 U.S. 640 (1946), “a participant in a conspiracy
is liable for all of the reasonably foreseeable acts of his coconspirators, provided
those acts are committed in furtherance of the conspiracy,” even if the defendant did
not commit them directly. United States v. Bowen, 527 F.3d 1065, 1078 n.10 (10th
Cir. 2008) (citing United States v. Lake, 472 F.3d 1247, 1265 (10th Cir. 2007)).
Because the jury found Murry guilty of the conspiracy in count four, he would also
be guilty of Diann’s reasonably foreseeable acts in furtherance of the conspiracy.
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Her false statement on the I-751 furthered the conspiracy to obtain green cards.
Thus, even if Murry didn’t have the relevant intent in making the false statement,
Diann did, and a reasonable jury could conclude the evidence was sufficient to
convict him under Pinkerton.
The government also charged Murry under the aiding-and-abetting statute.
Thus, the jury could find him guilty if he willfully associated himself with the
criminal venture and sought its successes through his own action. United States v.
Rosalez, 711 F.3d 1194, 1205 (10th Cir. 2013) (quoting United States v. Jackson, 213
F.3d 1269, 1292 (10th Cir. 2000), judgment vacated on other grounds, 531 U.S.
1033, (2000)) (citing Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)). The
evidence establishes—and a reasonable jury could conclude—that Murry sought to
make Diann’s venture succeed by marrying her and submitting immigration
documents with her. We thus conclude the jury had sufficient evidence to support
Murry’s conviction on count two.
Murry next challenges the sufficiency of the evidence on count four for
conspiracy. A conspiracy requires proof “(1) that two or more people agreed to
violate the law, (2) that the defendant knew at least the essential objectives of the
conspiracy, (3) that the defendant knowingly and voluntarily became a part of it, and
(4) that the alleged co-conspirators were interdependent.” United States v. Small, 423
F.3d 1164, 1182 (10th Cir. 2005) (citing United States v. Evans, 970 F.2d 663, 668
(10th Cir.1992)).
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Murry argues that the evidence did not show that he shared the conspiracy’s
objective because he did not intend to obtain immigration benefits for all three of Rajesh,
Diann, and Raul. Rather, he argues the Ramcharans orchestrated two conspiracies—one
to obtain immigration benefits for Diann and Raul and another for Rajesh. Murry contends
that this constituted a prejudicial variation between the evidence the government presented
at trial showing multiple conspiracies and the single conspiracy charged in the indictment.
“A variance occurs when the conspiracy charged in an indictment is different from the
evidence adduced at trial.” United States v. Hall, 473 F.3d 1295, 1305 (10th Cir. 2007)
(citing United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005)).
A conspiracy requires a “shared, single criminal objective, not just similar or
parallel objectives between similarly situated people.” Small, 423 F.3d at 1182 (quoting
Evans, 970 F.2d at 670). That said, “[a] defendant need not have knowledge of all the
details or all the members of the conspiracy and may play only a minor role in the
conspiracy.” Id. (quoting United States v. Mendoza–Salgado, 964 F.2d 993, 1005 (10th
Cir. 1992)). And the government must “only prove by direct or circumstantial evidence
‘that the defendant knew at least the essential objectives of the conspiracy, and the
defendant knowingly and voluntarily became part of it.’” Id. at 1182–83 (quoting
Mendoza–Salgado, 964 F.2d at 1005). Here, the indictment charged that the conspiracy’s
purpose was to obtain lawful immigration for status for Diann, Rajesh, and Raul, that the
conspiracy included all five Defendants (including Guevara who pleaded guilty), and that
the conspiracy spanned from July 2010 to August 2017. The government presented
evidence to establish that Murry voluntarily joined the conspiracy by marrying Diann to
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help her and Raul obtain immigration benefits in exchange for more money from the Army.
The evidence shows that Murry subsequently helped Diann submit immigration forms.
Thus, he knew the goal was to help Diann and her family obtain lawful immigration status.
That he may not have known Rajesh was also part of the conspiracy does not establish that
he did not know its essential objective. Drawing all inferences in the light most favorable
to the government, a reasonable jury could have found Murry guilty beyond a reasonable
doubt.
Moreover, Murry wrongly contends that two different conspiracies existed to create
an impermissible variance. “Distinguishing between a single, large conspiracy and several
smaller conspiracies is often difficult; we will generally defer to the jury’s determination
of the matter.” United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009); accord
United States v. Powell, 982 F.2d 1422, 1431 (10th Cir. 1992) (citing United States v.
Dickey, 736 F.2d 571, 581 (10th Cir. 1984)) (“Whether the evidence established a single
conspiracy is a fact question for the jury.”). To determine whether a variance occurred, the
analysis focuses on whether the alleged conspirators’ conduct shows that they intended to
act together for a shared mutual benefit within the scope of the conspiracy charged. United
States v. Hamilton, 587 F.3d 1199, 1208 (10th Cir. 2009) (citing United States v.
Edwards, 69 F.3d 419, 432 (10th Cir. 1995); United States v. Heckard, 238 F.3d 1222,
1231 (10th Cir. 2001)). Interdependence requires that “the alleged coconspirators were
united in a common unlawful goal or purpose and . . . a defendant’s activities facilitated
the endeavors of another alleged coconspirator or facilitated the venture as a whole.” Id.at 1208–09 (quoting United States v. Ailsworth, 138 F.3d 843, 851 (10th Cir. 1998)) (citing
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United States v. Hutchinson, 573 F.3d 1011, 1036 (10th Cir. 2009)). Murry married Diann
for their mutual benefit— his obtaining money and her immigration status—which
facilitated the conspiracy’s objective as a whole. Thus, a reasonable jury could find a single
conspiracy.
H.
Eighth, and finally, Harvell contends that the jury lacked sufficient evidence to
support his conviction on counts three and four. Count three charged Harvell with
making false statements to government officials in violation 18 U.S.C. § 1001(a)(3)
and 18 U.S.C. § 2. Count four charged Harvell with conspiracy to commit marriage
fraud and make false statements to government officials, in violation of 18 U.S.C.
§ 371.
Harvell moved for a judgment of acquittal on counts two and three—but not on
count four—at the close of the government’s case. “‘The Rules of Criminal
Procedure do not allow a defendant to wait until appeal’ to challenge the sufficiency
of the evidence.” United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019)
(quoting United States v. Goode, 483 F.3d 676, 680 (10th Cir. 2007)). Thus, “a
defendant must present claims of insufficient evidence in the first instance to the
district court through a motion for a judgment of acquittal.” Id. (citing Goode, 483
F.3d at 680–81; Fed. R. Crim. P. 29). And when a defendant presents to the district
court a sufficiency-of-the-evidence challenge on specific grounds, he waives all
grounds not specified in the motion. Id. (citing Goode, 483 F.3d at 681). Because
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Harvell moved for a judgment of acquittal on counts two and three but not four, he
did not preserve a sufficiency-of-the-evidence challenge to count four on appeal.
The United States Code prohibits “knowingly and willfully . . . mak[ing] or
us[ing] any false writing or document knowing the same to contain any materially
false, fictitious, or fraudulent statement or entry.” 18 U.S.C. § 1001(a)(3). And
18 U.S.C. § 2(a) provides that those who “aid[ ], abet[ ], counsel[ ], command[ ],
induce[ ], or procure[ ]” commission of an offense against the United States “[are]
punishable as . . . principal[s].”
Harvell first argues the government failed to present sufficient evidence to convict
him under count three—making false statements to government officials—because he
played no role in submitting Rajesh’s Form I-485 application to adjust his status,
representing Rajesh’s address as Harvell’s. But Harvell’s lack of direct involvement does
not matter. The jury could have found him liable as a co-conspirator or as an accomplice.
See United States v. Wardell, 591 F.3d 1279, 1291–92 (10th Cir. 2009) (“[P]ursuant to the
Pinkerton doctrine, Mr. Wardell was legally responsible for the physical attack on Mr.
Cluff, regardless of whether his physical acts independently satisfied the technical elements
of § 1513(b).”).
Second, Harvell argues that the government presented no evidence that he solicited
a fake lease for his basement. But Guevara testified that Harvell agreed to that plan; the
evidence revealed Rajesh received mail at Harvell’s address; and Harvell spoke to the
United States Custom and Immigration Services agents about Rajesh’s lease.
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Third, Harvell asserts that Rajesh’s address is immaterial because the lie did
not affect his Form I-485’s resolution. But a United States Custom and Immigration
Services agent testified about a Form I-485 address’s importance and how it helps
determine a marriage’s legitimacy.
Last, Harvell argues that we cannot consider his statements to the immigration
agents under the “exculpatory-no doctrine”—an exception to criminal liability under
18 U.S.C. § 1001 for a false statement that consists of the mere denial of
wrongdoing. But the “exculpatory-no doctrine” is not good law. Brogan v. United
States, 522 U.S. 398, 408 (1998) (“[T]he plain language of § 1001 admits of no
exception for an ‘exculpatory no’ . . . .”). Thus, a reasonable jury could have found
Harvell guilty beyond a reasonable doubt.
AFFIRMED.
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