U.S. v. Jawara

• Decision Date: 15 September 2006
• Docket Number: No. 05-30266.,05-30266.
• Citation: 474 F.3d 565
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mohamed JAWARA, also known as Haji Jawara, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

474 F.3d 565

UNITED STATES of America, Plaintiff-Appellee, v. Mohamed JAWARA, also known as Haji Jawara, Defendant-Appellant.

No. 05-30266.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 1, 2006.

Filed September 15, 2006.

Amended January 19, 2007.

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Ralph Hurvitz, Seattle, WA, for the defendant-appellant.

Michael J. Lang, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; James L. Robart, District Judge, Presiding. D.C. No. CR-04-00511-JLR.

Before STEPHEN REINHARDT, M. MARGARET McKEOWN, and RICHARD R. CLIFTON, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

McKEOWN, Circuit Judge.

ORDER

The Opinion filed on September 15, 2006, slip op. 11351, and appearing at 462 F.3d 1173, is amended as follows:

1. At slip op. 11381 (462 F.3d at 1190), replace lines 10 through 38 (beginning with the sentence, "Agent Smalley's testimony" and ending with "tribal designation") with the following:

Although Jawara raised a general Confrontation Clause issue in his briefs to this court, it was not until the Petition for Rehearing that Jawara, along with amicus curiae, the National Association of Criminal Defense Lawyers, first addressed whether the expert's reliance on the country report is testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This is a significant question given the traditional reliance on State Department country reports in immigration proceedings. We do not need to reach this issue, however, because the comparative country conditions were not central to the charges here and the admission of this testimony was harmless. Rahm, 993 F.2d at 1415. The same is true with respect to Agent Smalley's testimony regarding the computer indices and the location of the Maraka tribe.

2. At slip op. 11388 (462 F.3d at 1194), add the following paragraph at the end of Judge Reinhardt's dissent:

Because I would reverse on misjoinder, I need not consider whether the Confrontation Clause also requires reversal, under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, as I have stated, the evidence on the document fraud charge is comparatively weak. Thus, I do not agree with the majority's determination of harmless error with respect to the expert testimony regarding the State Department country reports.

With these amendments, the panel has voted to deny the petition for panel rehearing. No further petitions for rehearing will be entertained.

OPINION

McKEOWN, Circuit Judge.

Mohamed Jawara (a.k.a. Haji Jawara) appeals from his convictions for document fraud related to his personal asylum application and conspiracy to commit marriage fraud to avoid the immigration laws. Jawara challenges the district court's denial of his motions to sever the two counts, to suppress physical evidence, and to conduct a pre-trial hearing addressing the reliability of expert testimony, as well as various evidentiary rulings by the district court. We focus primarily on Jawara's claim of misjoinder and clarify the framework for assessing whether the joined offenses are of the "same or similar character" under Federal Rule of Criminal Procedure 8(a). Looking to the indictment, we conclude that the two counts are unrelated in nature and purpose, temporal scope, physical location, modes of operation, and key evidence. To suggest that joinder is proper simply because each involves an immigration matter would stretch the "same or similar character" basis for joinder beyond reasonable limits. Although we hold that the counts were in fact misjoined, error does not warrant reversal in this case. Nor did the district court commit reversible error with respect to the other matters challenged by Jawara. We affirm the convictions.

BACKGROUND

In December 2000, "Haji Jawara" executed Immigration and Naturalization Service form I-589, an application for asylum and withholding of removal. In this application, he claimed, among other things, to be a native of Sierra Leone and a member of the Maraka tribe who had suffered imprisonment and witnessed the killing of his parents at the hands of rebels in Sierra Leone. The asylum application was prepared by a man who called himself "Mohamed Ali." Copies of two identity documents were attached to the asylum application: a Republic of Sierra Leone identity card and a "Death Certificate" purportedly issued by the Ministry of Health of the Republic of Sierra Leone. Although the "Death Certificate" was apparently submitted to certify Haji Jawara's birth in Sierra Leone, the certificate, in fact, stated that Haji Jawara "died 4th July 1979 at 6:45 p.m. at Kono Government Hospital" in Sierra Leone.

Three years later, Darrick Smalley, a senior special agent with Immigration and Customs Enforcement, began investigating the activities of "Mohamed Jawara," as part of a larger investigation involving several individuals. During the course of his investigation, Agent Smalley discovered that "Mohamed Jawara" was also using the name "Haji Jawara," and that in 1999, "Mohamed Jawara" had submitted applications for a visa and a social security number, in which he claimed The Gambia as his birthplace and provided his Gambian passport.

The following year, while this investigation was still pending, Jawara approached his friend Peter Coleman for help in finding a citizen to marry his friend "Ibrahim" for immigration purposes. Coleman, unbeknownst to Jawara, was a paid informant who had assisted federal law enforcement authorities in several cases since his own arrest in 2001. In June 2004, Coleman met Jawara and Ibrahim at a coffee shop and introduced them to Carol, a prospective marriage candidate. They discussed the mechanics of a potential sham marriage, including housing and living arrangements. Coleman wore a recording device during this meeting, and federal agents, including Agent Smalley, monitored the meeting and took photographs. Some months later, Coleman had another meeting with Jawara, also recorded, at which Jawara sought Coleman's help in finding a wife for himself.

In November 2004, law enforcement officials arrested Jawara and executed a search warrant at his apartment, where they recovered various documents, including his Sierra Leone identity card and death certificate. A grand jury indicted Jawara on one count of fraud related to immigration documents, in violation of 18 U.S.C. § 1546(a), and one count of conspiracy to commit marriage fraud, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325.

The document fraud charge read, in pertinent part:

On or about December 23, 2000, . . . MOHAMED JAWARA, aka: HAJI JAWARA, did knowingly make false statements under oath, and . . . knowingly subscribed as true, false statements with respect to a material fact in an application . . . required by the immigration laws or regulations prescribed thereunder, and knowingly presented such application . . . which contained such false statement . . . that is, in an Immigration and Naturalization Service Form I-589 (Application for Asylum or For Withholding of Removal), the defendant made the following false statements . . . .

The false statements alleged in the superceding indictment included Jawara's response of "Sierra Leone" to questions regarding his nationality and birthplace.

The marriage fraud conspiracy charge read, in pertinent part:

At an exact time unknown, but beginning within the past five years and continuing until on or around November 13, 2004 . . . MOHAMED JAWARA, aka: HAJI JAWARA, and others . . . did knowingly and willfully conspire . . . to enter into, and to aid and abet others to enter into, a marriage for the purpose of evading any provision of the immigration law . . . .

The superceding indictment alleged that Jawara committed the following overt acts in furtherance of the marriage fraud conspiracy:

a. On or about June 24, 2004, . . . JAWARA did facilitate a meeting between a cooperating witness, identified as P.C., an alien, and a female United States citizen, in which the conspirators discussed having the United States citizen marry the alien in order to evade the immigration laws of the United States.

b. On or about November 13, 2004, . . . JAWARA[] did meet with and solicit a cooperating witness, identified as P.C., to procure a United States citizen who would agree to marry JAWARA in order to evade the immigration laws of the United States.

Prior to trial, Jawara moved to sever the two counts, asserting misjoinder under Federal Rule of Criminal Procedure 8(a) and prejudicial joinder under Federal Rule of Criminal Procedure 14. Jawara also moved to suppress the documentary evidence seized during the search of his residence. After a hearing, the district court denied both motions.

Jawara also moved in limine to exclude the proposed expert testimony of Carolyn Bayer-Broring, a forensic document examiner employed by the Department of Homeland Security, regarding the authenticity of Jawara's documents from Sierra Leone. Jawara requested a separate hearing to assess the reliability of Bayer-Broring's expert testimony. After an in limine hearing, the district court denied the motion to exclude the expert testimony and determined that a separate Daubert hearing was unnecessary. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court also denied Jawara's motions in limine to exclude certain aspects of Agent Smalley's testimony and school examination records from The Gambia listing Mohamed Jawara as a local student.

At trial, Agent Smalley testified about his role in the investigation, the asylum process in general, and the importance of country conditions in asylum determinations. Over defense counsel's objections, Agent Smalley testified that: (1) based on his...