U.S. v. Prince-Oyibo

Decision Date27 February 2003
Docket NumberNo. 02-4104.,02-4104.
Citation320 F.3d 494
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marvel Johnson PRINCE-OYIBO, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Matthew Alan Wartel, Bynum & Jenkins, P.L.L.C., Alexandria, VA, for Appellant. Eric David Edmondson, Special Assistant United States Attorney, Office of the United States Attorney, Alexandria, VA, for Appellee.

ON BRIEF:

Paul J. McNulty, United States Attorney, Office of the United States Attorney, Alexandria, VA, for Appellee.

Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

OPINION

KING, Circuit Judge.

Marvel Johnson Prince-Oyibo appeals his conviction on one count of travel document fraud. Prior to trial, the Government moved in limine to exclude both the results of Prince-Oyibo's polygraph examination, and evidence that he suffered persecution as a Christian in his predominantly Muslim home country of Nigeria. During the course of the jury trial, the district court granted both portions of the Government's motion, thereby excluding both the polygraph evidence and the evidence of persecution. In his appeal, Prince-Oyibo asserts that the evidentiary exclusions constitute reversible error. For the reasons stated below, we disagree and affirm.

I.

Prince-Oyibo arrived at Dulles International Airport after a flight from Lagos, Nigeria, by way of Amsterdam, on October 26, 2001. At border control, he presented his Nigerian passport, with an enclosed United States non-immigrant B1/B2 tourist type visa foil stamp, to Immigration and Naturalization Service Inspector Warren Blair. Inspector Blair had reservations concerning the authenticity of the visa and referred Prince-Oyibo to secondary inspection for further investigation. The secondary inspector found additional problems with the visa and determined that it was not genuine.

On October 29, 2001, Prince-Oyibo was arrested and was charged by criminal complaint with travel document fraud, to wit, that he "did knowingly use, and attempt to use, a false, forged, counterfeited and altered nonimmigrant visa ... knowing it to be forged, counterfeited, altered, and falsely made," in violation of 18 U.S.C. § 1546(a). On November 27, 2001, a grand jury in the Eastern District of Virginia returned an indictment charging Prince-Oyibo with the same offense as the criminal complaint.

During Prince-Oyibo's January 30, 2002, jury trial, the Government presented the testimony of forensics examiner Lurline Trizna. Examiner Trizna concluded that, while the passport was genuine and unaltered and the visa was genuine when issued, various subtle abnormalities indicated that the visa had subsequently been altered. At the conclusion of Examiner Trizna's testimony, the Government introduced a State Department document showing that Prince-Oyibo's visa foil had originally been issued to a Nigerian woman.

At trial, Prince-Oyibo did not challenge the Government's contention that his visa had been altered. Rather, his defense was that he "never intended to get a fraudulent visa"; that his failure to realize the visa had been altered was reasonable; and that his ignorance of the proper procedure for obtaining a visa, coupled with his culture's practice of "paying officials to do what they are supposed to do," prevented him from realizing that his visa was "counterfeit, altered, falsely made or otherwise unlawfully obtained."

Prince-Oyibo took the witness stand at trial to explain the circumstances surrounding his acquisition of the visa. This, he stated, was the first time that he had ever needed a visa. Given his inexperience, he accepted the offer of a friend, Tony Igberi, to assist him. Igberi travelled with Prince-Oyibo to Lagos, where they went to the United States embassy and met a man who appeared to be an embassy employee. The purported embassy employee had previously been given certain documentation (Prince-Oyibo's passport, birth certificate, and bank statements), as well as U.S. $2,045, all of which Prince-Oyibo had brought with him to Lagos. Prince-Oyibo completed a visa application and departed.

Several weeks later, Prince-Oyibo returned to the embassy on the appointed date to receive his visa. An embassy employee handed him both his passport and what he believed to be a legitimate visa. Prince-Oyibo testified that he did not notice any irregularities; nor was he made suspicious by the fact that attainment of the visa had required the payment of such a large sum: he was inexperienced with foreign travel, and, in Nigeria, it is common to have to "tip" officials to do their jobs in a timely fashion. Furthermore, when Prince-Oyibo checked with two airlines (KLM and British Airways) concerning flights to the United States, both airlines indicated that they had confirmed the visa. And when the visa was checked during the Amsterdam stopover of his KLM flight to Dulles, the visa was again confirmed. Thus, Prince-Oyibo testified, when he presented the visa to Inspector Blair, he believed it to be legitimate.

Prior to trial, Prince-Oyibo had taken and passed a polygraph examination regarding whether he knew the visa to be false, altered, counterfeit, or forged. The test, according to the retired FBI forensic polygrapher who administered it, indicated that Prince-Oyibo was truthful when he stated that he did not know that the visa was illegitimate. Before trial, the Government moved in limine to exclude this opinion from evidence, citing our circuit's per se rule that the results of polygraph tests are inadmissible. On the day of trial, after hearing argument on the Government's motion to exclude Prince-Oyibo's polygraph evidence, the court granted the motion.

Prince-Oyibo also hoped to present evidence showing that he was a prominent Christian in Nigeria and that, as such, he faced persecution from his country's Muslim majority. When asked during his polygraph examination "Did you come to the U.S. as you were afraid for your personal safety because of your religious beliefs?", the test indicated that Prince-Oyibo's affirmative answer was truthful. Prior to trial, however, the Government had also moved in limine to exclude all evidence relating to the defendant's past or future persecution. At the start of Prince-Oyibo's trial, the court withheld judgment on the admissibility of the persecution evidence, in order to "wait and see what you all present to see whether or not [it] becomes relevant." Ultimately, the court found that the persecution evidence was irrelevant to the central issue in the case, that is, "whether [the defendant] got a forged document and knew whether it was forged." Accordingly, the court granted the Government's motion to exclude all evidence of past or future religious persecution.

The sole issue before the jury was whether, "when the defendant used [the] nonimmigrant visa, he knew it was counterfeit, altered, falsely made or otherwise unlawfully obtained" and "did not act because of ignorance, mistake, or accident."1 The jury convicted Prince-Oyibo, and the court sentenced him to three months in prison (which amounted to time already served); two years of supervised release; a fine of $1,000; and a special assessment of $100. Prince-Oyibo filed a timely notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review rulings on the admissibility of scientific evidence, such as polygraph test results, for abuse of discretion. United States v. Ruhe, 191 F.3d 376, 387-88 (4th Cir.1999). In so doing, we keep in mind that "[a] district court by definition abuses its discretion when it makes an error of law." United States v. Stitt, 250 F.3d 878, 896 (4th Cir.2001) (internal quotation omitted). An abuse of discretion standard also applies to evidentiary issues such as relevancy. United States v. Ellis, 121 F.3d 908, 926 (4th Cir.1997).

III.
A.

Prince-Oyibo first contends that the district court's exclusion of his polygraph evidence constitutes reversible error. Though he recognizes that we have previously held polygraph evidence per se inadmissible, he maintains that recent advances in polygraph testing have rendered it sufficiently reliable for admission under the standard enunciated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The error is a reversible one, he maintains, because the polygraph test results reached the critical issue in his case, to wit, whether he was truthful when he stated that he did not know that his visa was false, forged, counterfeit, or altered when he presented it for inspection.

Prior to Daubert, this circuit consistently maintained a per se rule that the results of an accused's or a witness's polygraph test are not admissible to bolster or undermine credibility.2 See United States v. Chambers, 985 F.2d 1263, 1270-71 (4th Cir.1993); United States v. A & S Council Oil Co., 947 F.2d 1128, 1134 (4th Cir.1991); United States v. Morrow, 731 F.2d 233, 238 (4th Cir.1984) (describing polygraph evidence as "traditionally excluded"); see also United States v. Porter, 821 F.2d 968, 974 (4th Cir.1987) (holding that it is impermissible even to mention that a witness has taken a polygraph test); United States v. Tedder, 801 F.2d 1437, 1444-45 (4th Cir.1986) (same). Absent an en banc overruling or a superseding contrary decision of the Supreme Court, we, as a circuit panel, are bound by these precedents. Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n. 2 (4th Cir.2002). The questions before us, then, are two: (1) Did Daubert work a change in the law governing the admissibility of expert opinion testimony, such that the viability of per se rules barring admission of polygraph evidence has been thrown into doubt? And, if so, (2) have our post-Daubert precedents already resolved the matter by reestablishing this Circuit's adherence to our longstanding per se bar against...

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