DocketNumber: 13-2471
Citation Numbers: 578 F. App'x 27
Judges: Jacobs, Droney, Kaplan
Filed Date: 9/17/2014
Status: Non-Precedential
Modified Date: 10/19/2024
13-2471 United States v. FNU LNU 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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 17th day of September, two thousand fourteen. 5 6 PRESENT: DENNIS JACOBS, 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges, 9 10 LEWIS A. KAPLAN, 11 District Judge.* 12 13 - - - - - - - - - - - - - - - - - - - -X 14 UNITED STATES OF AMERICA, 15 Appellee, 16 17 -v.- 13-2471 18 19 FNU LNU, AKA Oscar Mario Garcia, 20 Defendant-Appellant. 21 - - - - - - - - - - - - - - - - - - - -X 22 * The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New York, sitting by designation. 1 1 FOR APPELLANT: MALVINA NATHANSON, Law Office of 2 Malvina Nathanson, New York, New 3 York. 4 5 FOR APPELLEE: REBECCA MERMELSTEIN (Brent S. 6 Wible, on the brief), for Preet 7 Bharara, United States Attorney 8 for the Southern District of New 9 York, New York, New York. 10 11 Appeal from a judgment of the United States District 12 Court for the Southern District of New York (Karas, J.). 13 14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 15 AND DECREED that the judgment of the district court be 16 AFFIRMED. 17 18 The Defendant-Appellant appeals from the judgment of 19 the United States District Court for the Southern District 20 of New York (Karas, J.), convicting him of: unlawful 21 procurement of naturalization, in violation of18 U.S.C. § 22
1425(a); two counts of false statement in application and 23 use of a passport, in violation of18 U.S.C. § 1542
; and 24 fraud and related activity in connection with identification 25 documents, in violation of 18 U.S.C. § 1028A; and social 26 security fraud, in violation of42 U.S.C. § 408
(a)(2). On 27 appeal, the Appellant argues the district court erred in two 28 of its evidentiary decisions during trial. We assume the 29 parties’ familiarity with the underlying facts, the 30 procedural history, and the issues presented for review. 31 32 1. The district court permitted the Government to 33 introduce a witness’ prior consistent statement regarding 34 the identification of her husband’s photograph prior to her 35 testimony at trial. We review a district court’s 36 evidentiary decisions for abuse of discretion. See United 37 States v. Dhinsa,243 F.3d 635
, 649 (2d Cir. 2001). The 38 Appellant points out that the ruling is not supported by 39 Federal Rule of Evidence 801(d)(1)(B), which allows a prior 40 consistent statement to rebut a charge of fabrication or 41 recent improper motive in testifying. The Appellant’s 42 argument, however, ignores Rule 801(d)(1)(C) which permits a 43 witness’ prior consistent statement when the declarant 44 testifies, is subjected to cross-examination, and 45 “identifies a person as someone the declarant perceived 46 earlier.” The witness here was subjected to cross- 47 examination, and the prior consistent statement involved her 2 1 previous identification of her late husband’s photograph. 2 Such testimony falls within the hearsay exclusion of Rule 3 801(d)(1)(C). 4 5 2. The Appellant also argues that the district court 6 erred in barring as hearsay his testimony about the 7 circumstances of a family dispute which caused him to move 8 to New York. Because the Appellant never asserted a basis 9 for the admissibility of the testimony, we review for plain 10 error. See United States v. Marcus,560 U.S. 258
, 262 11 (2010); United States v. Cruz,894 F.2d 41
, 44 (2d Cir. 12 1990). The Appellant argues that the testimony was not 13 hearsay because it was intended only to show his state of 14 mind in deciding to move, and not offered for the truth of 15 the matter asserted. However, “the mere identification of a 16 relevant non-hearsay use of . . . evidence is insufficient 17 to justify its admission if the jury is likely to consider 18 the statement for the truth of what was stated with 19 significant resultant prejudice.” United States v. Reyes, 2018 F.3d 65
, 70 (2d Cir. 1994); see also Fed. R. Evid. 403. 21 Here, the district court could reasonably have concluded 22 that the proffered testimony would be considered by the jury 23 for the truth of the matter asserted. We see no error, let 24 alone plain error, in the district court’s decision to 25 exclude this testimony. 26 27 For the foregoing reasons, and finding no merit in the 28 Appellant’s other arguments, we hereby AFFIRM the judgment 29 of the district court. 30 31 FOR THE COURT: 32 CATHERINE O’HAGAN WOLFE, CLERK 33 3