369 F.3d 337 | 3rd Cir. | 2004
FOR THE THIRD CIRCUIT BEFORE: SCIRICA, Chief Judge,
ROSENN and GREENBERG, Circuit Judges No. 02-3042 (Filed May 28, 2004)
UNITED STATES OF AMERICA,
Christopher J. Christie v. United States Attorney George S. Leone LAWRENCE FAMAKINDE Chief, Appeals Division ADEDOYIN Sabrina G. Comizzoli (argued) a/k/a Assistant United States Attorney LAWRENCE FAMAKINDE Office of the United States Attorney OMOADEDOYIN 970 Broad Street a/k/a Room 700 LAWRENCE FAMAKINDE Newark, NJ 07102 a/k/a SIR LAWRENCE ADEDOYIN Attorneys for Appellee a/k/a LAWRENCE OMOADEDOYIN Paul B. Brickfield (argued) a/k/a Brickfield & Donahue FAMAKINDE LAWRENCE 70 Grand Avenue ADEDOYIN River Edge, NJ 07661 a/k/a ADEDOYIN FAMAKINDE Attorneys for Appellant Lawrence Adedoyin,
OPINION OF THE COURT
Appellant GREENBERG, Circuit Judge. On Appeal from the United States District Court
I. INTRODUCTION
for the District of New Jersey (D.C. Crim. No. 99-cr-00239) This matter comes on before this Honorable William H. W alls, court on Lawrence Adedoyin’s appeal
District Judge from a judgment of conviction and sentence entered in this criminal case on After returning to the United July 15, 2002. [1] The district court
States Adedoyin, from 1997 through exercised jurisdiction under 18 U.S.C. § 1999, attempted to set up a television 3231 and we exercise jurisdiction network promoting African and African- pursuant to 28 U.S.C. § 1291. American heritage. While engaging in
this endeavor, Adedoyin failed to pay The background of the case is as several landlords, vendors and his own follows. Adedoyin is a Nigerian national employees. He also bounced a $180,000 who has entered the United States on check to a vendor who had agreed to several occasions. In August 1981, provide satellite access for the television Adedoyin, then using the name Lawrence station. Omoadedoyin, pled nolo contendere in the Superior Court of California to a Adedoyin’s conduct led to an felony. As a result of his plea, Adedoyin indictment in the proceedings was convicted and sentenced to one year culminating in this appeal. After a in prison and three years on probation. superseding indictment was filed, a In 1985, an immigration judge in San second superseding indictment was filed Francisco ordered Adedoyin, who was on July 24, 2001. The second using the name Lawrence Omoadedoyin, superseding indictment charged deported. At that time the judge issued a Adedoyin with two counts of improper Warrant of Deportation and Adedoyin entry into the United States by an alien, left the country. in violation of 8 U.S.C. § 1325(a) and 18
U.S.C. § 2; two counts of fraud and Adedoyin, however, returned to misuse of visas, permits and other the United States on November 27, 1994. documents, in violation of 18 U.S.C. §§ Prior to returning, Adedoyin obtained a 1546(a), 2; three counts of mail fraud, in Nigerian passport under the name violation of 18 U.S.C. §§ 1341, 2; and Adedoyin Famakinde which he used three counts of wire fraud, in violation of successfully in obtaining a United States 18 U.S.C. §§ 1343, 2. Adedoyin entered visa. At the time he applied for the visa, a plea of not guilty to all charges and Adedoyin, in responding to a question in moved to sever the mail and wire fraud the application as to whether he had any charges from the entry and visa counts. criminal convictions, answered The court granted the motion and negatively and accordingly did not determined that the mail and wire fraud disclose his 1981 California conviction. case would be tried first. After various
continuances and changes of counsel, Adedoyin’s trial on the mail and wire fraud counts was scheduled to start on September 11, 2001, but the Islamic [1] The district court issued an amended terrorist attacks which, inter alia, judgment on August 5, 2002. destroyed the World Trade Center major corporations with one-hour prevented the case from going forward. promotional videos to be aired on the Consequently, the court rescheduled the television network for $150,000. In an trial for September 19, 2001. attempt to counter the government’s
evidence, Adedoyin offered two Prior to the commencement of witnesses. The first, Wilfred Warrick, trial on September 19, 2001, Adedoyin was involved with Adedoyin at the time moved for a 90-day postponement. He of trial in setting up another television argued that he could not receive a fair station seeking to promote Africa and trial in the wake of the attack on the African culture. The court asked World Trade Center because he was a Warrick several questions in an attempt foreign national alleged to have to obtain information about the new perpetrated a fraud against, among other venture. individuals and entities, the World Trade Center. The court denied Adedoyin’s Adedoyin concluded his defense motion, stating that inasmuch as he was a with his own testimony. He testified that Nigerian national and was not of Middle a form which he presented to a Eastern descent, there was little risk that representative from U.S. Media to show the jury unfairly would link him to the that his business was economically viable events of September 11th. The court also was a projection of his future income cited the long delay in bringing the case rather than a reflection of money he to trial. Nevertheless, to address actually had earned. The court Adedoyin’s concerns, the court questioned Adedoyin on this point. At questioned the jurors individually to the conclusion of the trial, on October 5, determine if each could be fair and 2001, the jury returned a verdict of guilty impartial even though there were on the three mail fraud counts and not allegations that he had defrauded the guilty on the three wire fraud counts. World Trade Center. Each of the impaneled jurors informed the court that The trial on the four entry and he or she could be fair and impartial. visa charges began on November 27,
2001. At trial, the district court, over At trial, the government presented Adedoyin’s objection, admitted a various witnesses to prove the mail and certified copy of his 1981 California wire fraud alleged against Adedoyin. felony conviction. As we have set forth, Former landlords, vendors and former Adedoyin had pled nolo contendere to employees of the television network the charges which led to that conviction. testified against Adedoyin, detailing his Adedoyin attempted to prevent evidence failure to make payments. In addition, of the conviction from being admitted, persons Adedoyin had solicited testified pointing out that Rule 410 of the Federal that he sent out letters offering to provide Rules of Evidence, except in certain circumstances not relevant here, continuance for abuse of discretion. See prohibits the admissibility of “a plea of United States v. Lattany, 982 F.2d 866, nolo contendere.” Fed. R. Evid. 410(2). 870 (3d Cir. 1993). Under 18 U.S.C. § The district court overruled his objection 3161(h)(8)(A), a district court is and admitted the certified copy of the empowered to grant a continuance in a 1981 conviction. At the conclusion of criminal trial under the Speedy Trial Act the trial, the jury found Adedoyin guilty if it makes findings “that the ends of of two counts of improper entry into the justice” would be served best by such a United States by an alien but not guilty delay. Prior to trial on the mail and wire of two counts of fraud and misuse of fraud charges, Adedoyin sought a 90-day visas, permits and other documents. postponement of the proceedings due to After the court sentenced Adedoyin on the September 11, 2001 terrorist attacks. both sets of convictions he timely As we have indicated, Adedoyin argued appealed. that because he was a Nigerian national
and one of the alleged victims of his fraudulent activities was the World Trade Center, he would be unable to receive a
II. DISCUSSION fair trial. The court denied the motion for continuance and the mail and wire Adedoyin raises three separate fraud case proceeded to trial on issues on this appeal. First, he maintains September 19, 2001, eight days after the that the district court abused its terrorist attacks. The court reasoned that discretion in denying his motion for a 90- the case had been delayed on several day continuance in the wake of the occasions because Adedoyin frequently September 11, 2001 terrorist attacks. had changed attorneys and the court Second, Adedoyin argues that the district stated that inasmuch as Adedoyin was of court further abused its discretion in Nigerian origin and not of Middle asking questions of both him and defense Eastern descent and the allegations witness Wilfred Warrick. Finally, involved charges of fraud rather than Adedoyin claims that the district court violent action, starting the trial so soon erred in admitting evidence that he after September 11, 2001, would not previously had been convicted of a prejudice him. felony on the basis of a plea of nolo contendere. We will address each claim We reiterate that to ascertain if the in turn. terrorist attacks would prejudice
Adedoyin, the court conducted an A. Denial of a further continuance individual voir dire of each juror to determine whether the events of We review the district court’s September 11, 2001, would affect his or denial of Adedoyin’s motion for a 90-day her ability to be fair and impartial. [2] Each juror informed the court that he or she
could be fair and impartial. Adedoyin maintains that “[i]n [2] The judge individually asked each refusing to grant the stay, the defendant’s juror the same question (although right to a fair trial was severely varying the wording slightly with each prejudiced.” Appellant’s br. at 9. While juror). For example, the court stated to he recognizes that each juror informed juror number three: the court, during individual questioning, that he or she could be fair and impartial,
As I told you and Adedoyin states in his brief that “one your colleagues at the questions whether jurors could truly outset, this case involves understand or acknowledge the depth of charges by the government their feelings so soon after this unique that the defendant, Mr. national tragedy.” Appellant’s br. at 12. Adedoyin, committed acts of mail and wire fraud.
The Supreme Court has “stressed And, one of the victims, the wide discretion granted to the trial one of the alleged victims court in conducting voir dire in the area in this case, according to of pretrial publicity and in other areas of the government, is the inquiry that might tend to show juror World Trade Center. That bias.” Mu’Min v. Virginia, 500 U.S. is because the government 415, 427, 111 S.Ct. 1899, 1906 (1991). claims that he allegedly The trial court here exercised its defrauded the World Trade discretion with great care and determined Center of rent due for that Adedoyin could receive a fair trial in office space that had been the wake of the September 11th terrorist rented in one of the towers. Now, in light of what happened last Supp. app. at 7. Tuesday, does that fact that one of the alleged victims All 12 jurors answered this question no. in this case, there are about The court further asked if each juror ten alleged victims, does knew any victims of the terrorist attacks that fact that one of them is and whether any relationships with the World Trade Center victims would affect the juror’s ability effect in any way your “to be fair and impartial in this trial ability to provide a fair trial involving Mr. Adedoyin?” Id. at 8. to Mr. Adedoyin? Each juror who knew victims answered
no. attacks. As stated above, the criminal entitled to a new trial where trial took activity of which he was charged at the place immediately after the first World first trial, that is mail and wire fraud, had Trade Center terrorist attack in 1993); no similarity to the terrorism of that see also United States v. Lampley, 127 horrific day. Nor was Adedoyin’s F.3d 1231, 1235-39 (10th Cir. 1997) national origin similar to that of the (finding that it was not plain error for the terrorist attackers and he hardly could be district court to conduct trial of confused with them. In this regard we defendants on charges of, among other can take judicial notice of the fact that by things, conspiracy to make and possess a September 19, 2001, there had been destructive device, on the one-year massive publicity in the United States as anniversary of the bombing of the Alfred to the Middle Eastern origin of the P. Murrah Federal Building in Oklahoma terrorists. See Fed. R. Evid. 201(b). City). We therefore will uphold the
district court’s decision not to postpone The district court determined that the trial. the allegation that Adedoyin defrauded the World Trade Center of rent several B. The court’s questioning years prior to the terrorism on September 11, 2001, could be addressed fairly by Our review of the district court’s the jury. As a means of determining questioning of Adedoyin and Warrick whether the jury in fact could be fair, the pursuant to Federal Rule of Evidence court conducted an individual voir dire 614(b) is for abuse of discretion. If we of each juror. In view of these cautious find that the court abused its discretion, procedures, we cannot say that the court we must determine whether the abused its discretion in denying questioning was harmless or prejudiced Adedoyin’s motion for a 90-day Adedoyin’s substantial rights. See postponement. See, generally, United United States v. Beaty, 722 F.2d 1090, States v. Koubriti, 252 F. Supp. 2d 437 1093 (3d Cir. 1983). (E.D. Mich. 2003) (finding that postponement until the end of the war Federal Rule of Evidence 614(b) against Iraq was not warranted in case provides that the district court may where defendants of M iddle Eastern interrogate witnesses. Inasmuch as a descent were indicted on charges of, trial is “a search for the truth” and the among other things, conspiracy to court is more than a “mere umpire” of provide material support or resources to the proceedings, it is certainly within its terrorists) ; United States v. El-Jassem, province to question witnesses. Riley v. 819 F. Supp. 166, 177-79 (E.D.N.Y. Goodman, 315 F.2d 232, 234 (3d Cir. 1993) (holding that defendant of M iddle 1963) (citations omitted). However, as Eastern descent convicted of attempting we have recognized, a judge must not to explode three car bombs was not “abandon his [or her] proper role and States of having committed a felony. [3] assume that of an advocate.” United States v. Green, 544 F.2d 138, 147 (3d The jury convicted him on this count. Cir. 1976). Therefore, it found him guilty of
attempting to enter or obtain “entry to the We find that the district court did United States by a willfully false or not abuse its discretion in asking misleading representation or the willful questions of Adedoyin and Warrick, concealment of a material fact.” 8 though we acknowledge that the court U.S.C. § 1325(a). approached close to the limit of what would be appropriate questioning. Prior to trial on the four entry and Moreover, we point out that the jury visa counts, Adedoyin brought a motion found Adedoyin guilty on the mail fraud in limine seeking to prevent the counts but not guilty on the wire fraud prosecution from introducing evidence of counts. This mixed verdict tends to his 1981 felony conviction in California, demonstrate that the jury did not simply arguing that under Federal Rule of take the court’s questioning as a signal to Evidence 410 that conviction, which was find Adedoyin guilty and that the court’s pursuant to a plea of nolo contendere, questioning did not prejudice Adedoyin. was not admissible. Rule 410 provides,
in relevant part, “[e]xcept as otherwise C. The prior conviction provided in this rule, evidence of the following is not, in any civil or criminal We review the court’s ruling proceeding, admissible against the admitting the 1981 conviction on an defendant who made the plea or was a abuse of discretion standard. participant in the plea discussions: . . . Nevertheless to the extent that it based its (2) a plea of nolo contendere.” determination on an interpretation of the Surprisingly, we seem not to have Federal Rules of Evidence our review is controlling precedent on the admissibility plenary. United States v. Furst, 886 F.2d of a conviction predicated on a plea of 558, 571 (3d Cir. 1989). nolo contendere as distinguished from
Count II of the second superseding indictment charged [3] Count I charged that Adedoyin had Adedoyin with attempting to enter the violated that same statute when he United States on November 27, 1994, in attempted to enter the United States violation of 8 U.S.C. § 1325(a) and 18 using the alias of Adedoyin Famakinde. U.S.C. § 2, by willfully concealing that This count did not implicate his felony he had been convicted in the United conviction. Defendant was convicted on Counts I and II, but acquitted on Counts III and IV for fraud and misuse of visas, permits and other documents.
the admissibility of the plea itself. contendere are admissible to prove the fact of conviction. It is true that a plea of The Advisory Committee Notes to nolo contendere is not an admission of Rule 410 recognize that the exclusion of guilt and thus the fact that a defendant nolo contendere pleas as admissible made such a plea cannot be used to evidence promotes the disposition of demonstrate that he was guilty of the criminal cases. As several other courts crime in question. See id. at 60. of appeals have recognized there is, Nevertheless, a plea of nolo contendere however, a clear distinction between has the same legal consequences as a pleas of nolo contendere and convictions plea of guilty and results in a conviction. entered on the basis of such pleas. See See Brewer, 210 F.3d at 1096; Myers, Brewer v. City of Napa, 210 F.3d 1093, 893 F.2d at 844; Williams, 642 F.2d at 1096 (9th Cir. 2000) (“Rule 410 by its 138 (“It is well settled that a plea of nolo terms prohibits only evidence of pleas contendere admits ‘every essential (including no contest pleas), insofar as element of the offense (that is) well pleas constitute statements or pleaded in the charge.’”) (citations admissions.”); Olsen v. Correiro, 189 omitted). F.3d 52, 58 (1st Cir. 1999) (“The evidentiary rules that exclude evidence At trial, the prosecution did not of nolo pleas do not directly apply to the seek the admission of a certified copy of convictions and sentences that result Adedoyin’s conviction for the purpose of from such pleas.”); Myers v. Sec’y of proving that he was in fact guilty of a HHS, 893 F.2d 840, 843 (6th Cir. 1990) felony in 1981. The prosecution put (stating that Federal Rule of Evidence forth the evidence in order to show that 410 and Federal Rule of Criminal he previously had been convicted of a Procedure 11(e)(6) “prohibit use of ‘a felony which he failed to disclose when
he sought entry into the United States. [4] plea of nolo contendere,’ not a conviction pursuant to a nolo plea”) (citation omitted); United States v. Williams, 642 F.2d 136, 138 (5th Cir. [4] During the charge to the jury, the 1981) (“A judgment entered on a plea of district court stated: nolo contendere adjudicates guilt with the same finality and force as a judgment
Evidence that the entered pursuant to a guilty plea or defendant Adedoyin was conviction following trial.”). convicted of having committed a crime in
We agree with the persuasive California in 1981 has been reasoning of the court in Olsen v. admitted into evidence. Correiro, 189 F.3d at 58-62, that But you may consider that convictions based on pleas of nolo evidence only in See Pearce v. United States Dep’t of For the first time on appeal, Justice, 836 F.2d 1028, 1029 (6th Cir. Adedoyin challenges the admissibility of 1988) (“Notwithstanding Rule 410, a the certified copy of the conviction as conviction pursuant to a nolo contendere hearsay that falls outside of the ambit of plea is a conviction within the meaning Federal Rule of Evidence 803(22). That of [21 U.S.C. § 824] and gives rise to a rule states, in pertinent part, that variety of collateral consequences in “[e]vidence of a final judgment, entered subsequent proceedings.”); Qureshi v. after a trial or upon a plea of guilty (but INS, 519 F.2d 1174, 1176 (5th Cir. 1975) not upon a plea of nolo contendere), (“[I]t is the fact of conviction that is of adjudging a person guilty of a crime moment here, not the collateral punishable by death or imprisonment in evidentiary uses of whatever plea may excess of one year, to prove any fact have resulted in it.”). essential to sustain the judgment, but not
including, when offered by the Indeed, it did not even matter in Government in a criminal prosecution for this case whether Adedoyin was guilty of purposes other than impeachment” is not the California crime. The material hearsay. Adedoyin argues that the question at trial was whether his exception for judgments based on pleas representation that he did not have a of nolo contendere prevents the criminal conviction was willfully false or admission of the certified copy of the misleading and the conviction, though judgment. Even assuming that we based on a plea of nolo contendere, should address this issue in the first established that his representation was instance, Adedoyin’s argument is without false, though not necessarily willfully so. merit. The district court admitted the Thus, evidence of it was admissible. certified copy of the conviction pursuant
to Federal Rule of Evidence 803(8) as a public record and not under Rule 803(22). App. at 808-09. Furthermore, Rule 803(22) deals with evidence
connection with whether or introduced “to prove any fact essential to not the government has sustain the judgment.” As explained established beyond a above, the certified copy of Adedoyin’s reasonable doubt that M r. conviction was not introduced for the Adedoyin concealed that purpose of establishing any of the facts prior conviction in regard related to the underlying conviction. It to his application to obtain was admitted to prove the fact of the a United States visa for conviction itself. purposes of attempting to enter the United States.
The Advisory Committee’s Note to Rule 803(22) states, “[j]udgments of App. at 858. conviction based upon pleas of nolo contendere are not included. This position is consistent with the treatment of nolo pleas in Rule 410 and the authorities cited in the Advisory Committee’s Note in support thereof.” Therefore, the same reasoning animates Rule 803(22) as Rule 410, that is, that pleas of nolo contendere and convictions on the basis of such pleas are not admissible for purposes of proving that the defendant is guilty of the crime in question. However, the government did not introduce the certified copy of the conviction for purposes of proving that Adedoyin committed the California crime. It offered the evidence solely for the purpose of showing that Adedoyin had a prior felony conviction. Accordingly, the district court correctly admitted the certified copy of the 1981 California conviction.
III. CONCLUSION
For the foregoing reasons the judgment of conviction and sentence entered July 15, 2002, will be affirmed.
