United States v. Kalume

16-1432-cr
U.S. v. Kalume
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 28th day of March, two thousand seventeen.
PRESENT: REENA RAGGI,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
v. No. 16-1432-cr
ZUBEDA KALUME,
Defendant-Appellant.
APPEARING FOR APPELLANT: JAMES P. EGAN, Assistant Federal Public
Defender, for Lisa A. Peebles, Federal Public
Defender, Office of the Federal Public
Defender, Syracuse, New York.
APPEARING FOR APPELLEE: CHELSEA A. PRIEST, Attorney, United States
Department of Justice, Washington, D.C.,
(Geoffrey J.L. Brown, Assistant United States
Attorney, on the brief), for Richard S.
Hartunian, United States Attorney for the
Northern District of New York, Syracuse,
New York.
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Appeal from a judgment of the United States District Court for the Northern
District of New York (Glenn T. Suddaby, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on April 28, 2016, is AFFIRMED.
Defendant Zubeda Kalume was convicted following a jury trial of one count of
marriage fraud in violation of 8 U.S.C. § 1325(c). Sentenced to 14 months’
imprisonment, Kalume appeals her conviction on grounds of evidentiary, charging, and
sentencing error. We assume the parties’ familiarity with the facts and procedural history
of this case, which we reference only as necessary to explain our decision to affirm.
1. Exclusion of Kalume’s Videotaped Statements
Kalume argues that the district court erred in excluding a video recording of
interview responses she gave to an immigration official on August 14, 2013, on the
ground that the video was minimally probative and potentially prejudicial. See Fed. R.
Evid. 403. Kalume sought to introduce the video not for the truth of her out-of-court
statements, but to demonstrate that her English proficiency was limited, a fact relevant to
the jury’s assessment of her 2011 statement to other federal officials admitting her
involvement in marriage fraud.
We review a district court’s evidentiary rulings for abuse of discretion, and we
will reverse only for “manifest error,” evidenced by an “arbitrary and irrational” ruling.
United States v. Daugerdas, 837 F.3d 212, 226 (2d Cir. 2016) (internal quotation marks
omitted); United States v. Al Kassar, 660 F.3d 108, 123 (2d Cir. 2011). That is not this
case.
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As the district court recognized, Kalume had a motive to minimize her English
proficiency at the time of the 2013 interview. This both reduced the probative value of
the videotape and increased its potential for prejudice given the government’s inability to
test the proficiency displayed. In such circumstances, the district court’s decision to
exclude the video was not arbitrary or irrational. See United States v. Esdaille, 769 F.2d
104, 105–06 (2d Cir. 1985) (upholding exclusion of voice exemplar offered by defendant
to discredit police identification because probative value of such evidence was minimal
and outweighed by unfair prejudice to the government “in light of both the ease with
which [the defendant] could deliberately alter his accent and the inability of the
government to test the reliability of the accented reading”); see also United States v.
Gabinskaya, 829 F.3d 127, 134 (2d Cir. 2016) (deferring to trial court’s evidentiary
decisions in recognition of “superior position to assess relevancy and to weigh the
probative value of evidence against its potential for unfair prejudice” (citations and
internal quotation marks omitted)). This conclusion is only reinforced by the district
court’s recognition that whatever probative value the video had to Kalume’s defense was
cumulative of evidence already before the jury, specifically, (1) the 2011 interviewing
officer’s testimony that Kalume sometimes “hesitated” in responding to questions, “took
time to find words,” and “kept it pretty simple,” App’x 110–11; and (2) the 2013
interviewing officer’s testimony that she had to “rephrase” questions and “speak slower”
because Kalume “need[ed] that kind of help,” id. at 235–36; see United States v. Gupta,
747 F.3d 111, 133 (2d Cir. 2014). Kalume’s argument that she elicited this testimony
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only because the district court excluded the video is belied by the fact that the testimony
was given before the district court issued its exclusion ruling.
Thus, we identify no abuse of discretion in the exclusion of the video and,
therefore, need not consider the government’s alternative harmless-error argument.
2. Admitted Testimony Regarding Immigration Applications
Kalume argues that the district court erred in allowing an immigration officer to
offer opinion testimony as to the ultimate question of the legitimacy of her marriage to
Alieu Jaiteh. Because Kalume raised no objection to this testimony in the district court,
we review only for plain error, which is not apparent here. See United States v. Wagner-
Dano, 679 F.3d 83, 94 (2d Cir. 2012) (identifying elements of plain error as (1) error,
(2) that is clear and obvious, (3) affecting substantial rights, and (4) seriously impugning
fairness, integrity, or public reputation of judicial proceedings); United States v. Coriaty,
300 F.3d 244, 252 (2d Cir. 2002).
The law permits a lay witness who has direct knowledge of certain facts to testify
in the form of an opinion that goes to “‘an ultimate issue to be decided by the trier of
fact,’ . . . so long as that testimony is ‘helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.’” Cameron v. City of New York, 598
F.3d 50, 62 (2d Cir. 2010) (quoting Fed. R. Evid. 701(b), 704(a)).1 There is no question
here that the immigration officer’s testimony was based on direct knowledge acquired in
the course of conducting a review of and making a recommendation on the petition of
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Because the parties both treat the immigration officer’s testimony as lay opinion, we do
not here consider the aptness of that characterization.
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Kalume and Jaiteh to secure unconditional resident status for Jaiteh based on the couple’s
marriage. With the petition and supporting documents in evidence, the officer identified
the parts she considered most significant to her review, specifically her review of the
bona fides of the couple’s marriage, and she explained both how she reached her adverse
recommendation and why she would have made the same recommendation even if she
had not known about Kalume’s earlier admission to marriage fraud.
There was no error, much less clear and obvious error, in deeming this testimony
helpful to the jury’s understanding of why the evidence of marriage that Kalume and
Jaiteh presented in support of Jaiteh’s immigration petition was suspect. The witness
nowhere suggested that the identified concerns were based on evidence not heard by the
jury. See United States v. Grinage, 390 F.3d 746, 750 (2d Cir. 2004). Moreover, the
witness’s conclusion that the evidence did not support a favorable administrative
recommendation did not suggest the result to the jury, particularly in the context of this
trial, during which the prosecution and defense adduced evidence beyond that known to
the witness. See id.
Because Kalume cannot satisfy the first two requirements of plain error, this
evidentiary challenge fails on the merits.
3. Response to Jury Note
Kalume argues that the district court’s response to a jury note requesting
clarification on the mens rea element of marriage fraud improperly suggested that the
element could be satisfied simply by proof of Kalume’s intent to be paid in return for
marrying Jaiteh. Kalume waived her right to appeal this issue by expressing assent to the
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instruction when the district court proposed its response and solicited comment. See
United States v. Agrawal, 726 F.3d 235, 259 (2d Cir. 2013) (“Such a strategic decision,
evidenced not merely by silence but by a negative response on the record to a district
court invitation to voice objection, does more than forfeit the unraised objection; it
waives it.”); United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009); see also App’x
611 (“That language that you just read, I have no objection.”).
Even if Kalume could clear this hurdle, she could not demonstrate plain error.
While the district court statement highlighted by Kalume—that “a defendant enters into a
marriage for the purpose of evading the provision of United States immigration laws
when at the time of the marriage she lacks any intent to establish a life with her spouse”
App’x 613—would not, by itself, accurately describe the prosecution’s burden as to mens
rea, the statement cannot be read in isolation. See United States v. Lange, 834 F.3d 58,
75 (2d Cir. 2016) (stating that jury charge should be viewed as a whole in evaluating
claimed instruction error). Both before and after the quoted statement, the district court
expressly told the jury that while proof of Kalume’s intent to be paid for the marriage
might be some evidence of the requisite purpose to evade, it could not, by itself, establish
that element. Then, in response to further jury inquiry, the district court reiterated that
the government had to prove that the defendant acted “with the intent to do something
that she knew the law forbids.” App’x 614–15. On this record, we cannot conclude that
the district court suggested that the defendant could be convicted based solely on her
intent to be paid for marrying Jaiteh. The supplemental instructions, viewed as a whole,
do not demonstrate plain error.
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4. Sentencing Challenge
Kalume challenges her 14-month prison sentence as substantively unreasonable.
The government argues that the question is moot because Kalume completed her prison
term and was released from custody on December 20, 2016, and does not challenge the
three-year term of supervised release to which she is now subject. See United States v.
Williams, 475 F.3d 468, 479 (2d Cir. 2007) (stating that “defendant’s sentencing appeal is
. . . moot upon completion of the term of incarceration where the possibility of the district
court’s imposing a reduced term of supervised release on remand is . . . remote and
speculative” (internal quotation marks omitted)). We agree with the government’s
contention.
Nevertheless, even if Kalume’s challenge were not moot, it would fail on the
merits. In reviewing a challenged sentence for reasonableness, we apply “a particularly
deferential form of abuse-of-discretion review” to both the procedures used to arrive at
the sentence (procedural reasonableness) and to the length of the sentence (substantive
reasonableness). United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d Cir. 2008) (en
banc); accord United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012). We will
“set aside a district court’s substantive determination only in exceptional cases where the
trial court’s decision cannot be located within the range of permissible decisions.”
United States v. Cavera, 550 F.3d at 189 (emphasis and internal quotation marks
omitted); see also United States v. Messina, 806 F.3d 55, 66 (2d Cir. 2015) (discussing
“broad range of permissible decisions available to the district court”). Kalume’s 14-
month sentence was at the high end of her 8–14 month Sentencing Guidelines range.
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“[I]n the overwhelming majority of cases, a Guidelines sentence will fall comfortably
within the broad range of sentences that would be reasonable in the particular
circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). This case
presents no exception.
The district court was entitled to rely on Kalume’s lack of remorse, a factor
informing her Guidelines range, to explain its decision as to where to sentence within that
range. See United States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994) (recognizing lack of
remorse as factor that can inform sentence); accord United States v. Broxmeyer, 699 F.3d
at 284, 295 (affirming reliance on lack of remorse as aggravating factor supporting above
Guidelines sentence even where defendant was denied acceptance-of-responsibility credit
in calculating Guidelines range). The district court also acted within its discretion in
taking account of the fact that, at the same time Kalume was presenting herself to one
government agency as married to secure an immigration benefit (for Jaiteh), she was
presenting herself to other government agencies as single to secure monetary benefits.
See 18 U.S.C. § 3661 (stating that no limit shall be placed on information concerning
background, character, and conduct of defendant for purpose of imposing sentence);
United States v. Cavera, 550 F.3d at 191 (recognizing broad discretion afforded by
§ 3661 to consider all but invidious considerations). The district court’s statements at
sentencing belie Kalume’s contention that it failed to consider mitigating personal
factors. To the extent Kalume thinks these factors were entitled to more weight, that is a
matter committed to the sound discretion of the district court, see United States v.
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Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008), which we have no reason to gainsay
here.
5. Conclusion
We have considered Kalume’s remaining arguments and conclude that they are
without merit. For the reasons stated, the district court’s April 28, 2016 judgment is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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