Case Information
*2 Before HARTZ , KELLY , and CARSON , Circuit Judges.
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CARSON , Circuit Judge.
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Fundamental to our justice system—and even our democracy—is the jury.
Pena-Rodriguez v. Colorado,
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,
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 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 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.
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. 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. 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.
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 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?” 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.
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.
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
over the scope of voir dire at trial. United States v. Espinosa,
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,
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 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]
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,
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.
In support, the government cites United States v. Bacon,
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 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 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,
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 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 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,
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,
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.
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,
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,
The district court did not abuse its discretion in determining that Guevara’s
testimony would not unfairly prejudice Defendants. Indeed, the district court “has
broad discretion to determine whether prejudice inherent in otherwise relevant
evidence outweighs its probative value.” Irving,
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,
C.
Third, Diann challenges Jury Instruction No. 21. That instruction provided: 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,
(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
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,
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,
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,
2014) (citing Abdulhaseeb v. Calbone,
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
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,
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.,
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
state.” He contends this ruling contradicts United States v. Goodman,
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.,
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 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.
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,
(10th Cir. 2006) (citing Lozano v. Ashcroft,
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,
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,
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,
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,
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,
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
,
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,
A conspiracy requires a “
shared,
single criminal objective, not just similar or
parallel objectives between similarly situated people.” Small,
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,
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,
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,
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.
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,
AFFIRMED.
Notes
[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,
[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.