United States v. Linda Ashiegbu

FILED
NOT FOR PUBLICATION MAR 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10128
Plaintiff - Appellee, D.C. No. 3:07-cr-00654-CRB
v.
MEMORANDUM *
LINDA NGOZI ASHIEGBU,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted September 10, 2010
San Francisco, California
Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.
Appellant Linda Ashiegbu (Ashiegbu) challenges her conviction for making
a false statement in an immigration document on behalf of her brother, Emmanuel
Anyanwu (Anyanwu).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court did not abuse its discretion when it admitted Anyanwu’s
alien registration file (A-file), as the A-file was admissible pursuant to the public
records exception. See United States v. Estrada-Eliverio, 583 F.3d 669, 672-73
(9th Cir. 2009).
In any event, any error in admitting the A-file was harmless given the
substantial evidence supporting Ashiegbu’s conviction. See United States v.
Pintado-Isiordia, 448 F.3d 1155, 1157 (9th Cir. 2006).
2. The A-file was relevant to the false statement charge. See United States v.
Nobari, 574 F.3d 1065, 1075 (9th Cir. 2009) (“Relevant evidence means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.”) (citation, parentheses and internal quotation marks
omitted).
3. Because of the additional evidence of Ashiegbu’s motive in making the false
statement, the admission of testimony regarding spousal preferences for citizenship
applications “was harmless as it is more probable than not that the erroneous
admission of the evidence did not affect the jury’s verdict.” United States v.
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Gallenardo, 579 F.3d 1076, 1081 (9th Cir. 2009) (citation and internal quotation
marks omitted).
4. Allowing the government’s closing argument regarding the Federal Poverty
Guidelines was not plain error. Given the substantial independent evidence of
Ashiegbu’s guilt, Ashiegbu “has not met and cannot meet the high burden of
demonstrating a plain error that seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Trevino, 419 F.3d 896, 902
(9th Cir. 2005), as amended (citation and internal quotation marks omitted).
5. The government’s closing argument did not constructively amend the
indictment, as “there was no complex of facts presented at trial distinctly different
from those in the indictment.” United States v. Casch, 448 F.3d 1115, 1117 (9th
Cir. 2006) (citation and internal quotation marks omitted).
AFFIRMED.
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