United States v. Sebaggala

• Citation: 256 F.3d 59
• Decision Date: 05 June 2001
• Docket Number: No. 99-1349,99-1349
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. NASSER NTEGE SEBAGGALA, DEFENDANT, APPELLANT. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 59

256 F.3d 59 (1st Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. NASSER NTEGE SEBAGGALA, DEFENDANT, APPELLANT.

No. 99-1349

United States Court of Appeals For the First Circuit

Heard June 5, 2001

Decided July 16, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Reginald C. Lindsay, U.S. District Judge] [Copyrighted Material Omitted]

Ralph J. Perrotta for appellant.

Theodore D. Chuang, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge.

Selya, Circuit Judge

A jury found defendant-appellant Nasser Ntege Sebaggala guilty of two counts of making false statements on United States Customs forms, four counts of bank fraud, and two counts of transporting altered securities. See 18 U.S.C. §§§§ 1001, 1344, 2314. The district court imposed a fifteen-month incarcerative term and ordered the appellant to pay both a $10,000 fine and $44,000 in restitution. The appellant challenges the sufficiency of the evidence on two counts, as well as various evidentiary rulings. Discerning no error, we affirm the judgment below.

I. BACKGROUND

We recount the facts in the light most flattering to the government's theory of the case, consistent with record support. See United States v. Singh, 222 F.3d 6, 8 (1st Cir. 2000).

The appellant is a Ugandan national, mayor of the capitol city of Kampala, proprietor of a successful currency exchange bureau in Uganda, and a frequent visitor to this country. On September 29, 1997, he opened an account at a Waltham, Massachusetts, branch of a Boston bank. Over the next few months, he caused four fraudulently altered third-party checks to be deposited in the account. Prior to deposit, each check had been negotiated at a South African financial institution and stolen during subsequent processing within the banking system. The Boston bank eventually discovered that these checks were bogus. Before the bank came to that realization, however, the appellant had withdrawn, transferred, or otherwise siphoned off substantial sums for personal use, campaign expenses, and the like.

In the midst of these shenanigans, the appellant went to Great Britain. He reentered the United States at Logan International Airport, Boston, Massachusetts, on January 1, 1998, carrying approximately $108,000 worth of travelers' checks (more than half of which had been reported lost or stolen). He nonetheless presented customs officials with a completed customs form (Form 6059B) in which he declared that he was not carrying currency or monetary instruments in excess of $10,000. When questioned about this declaration, he orally reaffirmed that he had less than $10,000 in currency or monetary instruments in his possession. A customs inspector then asked the appellant how much he was carrying, and the appellant replied that he had $4,000 in travelers' checks.

Apparently dissatisfied with this response, customs officials escorted the appellant to an interview room. When questioned anew, the appellant began to waffle. He admitted carrying $40,000 and completed a new form (Form 4790) containing that information. A subsequent consensual search of his luggage revealed the full extent of the travelers' checks in his possession. Customs officials seized the bulk of the travelers' checks and permitted the appellant to go about his business.

These events prompted a federal grand jury to indict the appellant on two counts of making false statements, four counts of bank fraud, and two counts of illegally transporting altered securities in foreign commerce. Following a month-long trial, a jury found him guilty on all counts. This appeal ensued.

II. ANALYSIS

This appeal encompasses four principal assignments of error. First, the appellant contends that the district court erred in denying his motion for judgment of acquittal, Fed. R. Crim. P. 29, on the false statement counts. Second, he assigns error to the court's exclusion of proffered expert testimony. Third, he maintains that the court erred in allowing rebuttal evidence. Fourth, he posits that the court irretrievably prejudiced him by permitting the introduction of an unduly large number of the seized travelers' checks. We address these asseverations sequentially.

A. The Rule 29 Motion.

Because the appellant's arguments about the sufficiency of the evidence on the first and second "false statement" counts differ from each other, we treat the two counts separately. As to both counts, however, we review the district court's denial of the motion for judgment of acquittal de novo. Singh, 222 F.3d at 9. The test is whether the evidence, construed favorably to the government, permitted rational jurors to conclude, beyond a reasonable doubt, that the defendant was guilty as charged. Id. This test sets the bar quite high - and the appellant fails to clear it on either count.

1. The First False Statement ("Less Than $10,000"). In order to convict a defendant of making a false statement under 18 U.S.C. §§ 1001, the prosecution must prove that the defendant, in a matter within the jurisdiction of the United States government, knowingly made a material statement to the government, which was false. United States v. Notarantonio, 758 F.2d 777, 785 (1st Cir. 1985). The appellant concedes falsity and the government's jurisdiction over customs matters, but argues vociferously that he did not knowingly make the first false statement because he misunderstood the question and, in all events, lacked knowledge that travelers' checks were included within the definition of "monetary instruments."

This argument is unpersuasive: the customs form on which the appellant made his initial declaration referred specifically to travelers' checks and made crystal clear that they were reportable monetary instruments. What is more, the government adduced evidence that the appellant had answered other questions on the customs form accurately; and that, on a prior visit to the United States, he had responded to an inquiry about "how much" he was carrying by alluding to the amount of travelers' checks in his possession. Then, too, the government adduced circumstantial evidence which strongly indicated that the first false statement was not the result of a misunderstanding: on this record, a rational jury surely could have inferred that the appellant prevaricated in order to conceal his possession of a large cache of stolen and altered travelers' checks.¹ To cinch matters, the government presented proof sufficient to ground a reasonable inference that the appellant had the facility not only to understand the inquiry contained on the form but also to appreciate the definitions incorporated therein. This evidence revealed that the appellant had earned both a general certificate of education and a business administration diploma from British educational institutions; that he had reviewed and discussed English language materials with George Colvin, an American diplomat, and Ted Kaster, an American serving as Uganda's honorary consul; and that various persons (including the customs inspectors with whom he dealt) found him able to communicate in English without difficulty.

We see little point in rehearsing the minutiae of the government's proof. It suffices to say that, on this record, a finding of scienter was clearly supportable. See Singh, 222 F.3d at 10 (finding sufficient evidence that the defendant, who answered other questions on Social Security forms intelligently and was able to communicate with INS officials in English, had knowledge of false statements); United States v. Rodriguez, 592 F.2d 553, 557 (9th Cir. 1979) (holding that defendant's execution of a customs form that clearly explained the currency reporting requirement was sufficient to show that he knowingly made a false statement).

The appellant has a fallback position: he points out that he admitted, the second time around, to carrying over $10,000 in currency equivalents. He treats this second declaration as "amending" the first and, analogizing to cases involving perjury, e.g., United States v. Scivola, 766 F.2d 37, 43-46 (1st Cir. 1985); United States v. Goguen, 723 F.2d 1012, 1016-18 (1st Cir. 1983), he says that this "amendment" negated his earlier false statement.

The analogy is not apt. Although an individual sometimes can avoid a perjury prosecution by recanting a prior false statement, that result flows from a specific statutory provision applicable only to perjury cases.² The statute under which the appellant was charged and convicted is devoid of any comparable safe harbor; it simply provides for criminal consequences if a person "knowingly and willfully makes any materially false, fictitious, or fraudulent statement or representation" in a matter within the government's jurisdiction. 18 U.S.C. §§ 1001. The appellant cites no authority that would support transplanting the provisions of section 1623(d) into the unreceptive soil of section 1001. For our part, we see no basis for writing into section 1001 a recantation defense that Congress chose to omit. After all, "[c]courts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so." Brogan v. United States, 522 U.S. 398, 408 (1998).

We hasten to add that the appellant's argument would fail even if the criteria found in 18 U.S.C. §§ 1623(d) were imported into prosecutions brought under 18 U.S.C. §§ 1001. In order effectively to recant a prior perjurious statement, the declarant must make an outright retraction and repudiation. See Scivola, 766 F.2d at 45. He also must "explain unambiguously and specifically" the respects in which his earlier answer was false. Goguen, 723 F.2d at 1018. In this case, the appellant never tendered either an outright retraction or a meaningful explanation of his first false statement: he did nothing more than...