U.S. v. Rana
| Decision Date | 10 July 1991 |
| Docket Number | No. 90-5714,90-5714 |
| Citation | 944 F.2d 123 |
| Parties | UNITED STATES of America, Appellee, v. Ghulam Sabir RANA, Appellant. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Linda George, Hackensack, N.J., for appellant.
Michael Chertoff, U.S. Atty., Edna B. Axelrod, Leslie F. Schwartz, Asst. U.S. Attys., Newark, N.J., for appellee.
Before STAPLETON, HUTCHINSON and HIGGINBOTHAM, Circuit Judges.
Ghulam Sabir Rana (Rana) appeals convictions of one count of conspiracy to defraud the United States in violation of 18 U.S.C.A. § 371 (West 1966), one count of making false, fictitious and fraudulent statements to an agency of the United States in violation of 18 U.S.C.A. § 1001 (West 1976) and aiding and abetting others in commission of the latter in violation of 18 U.S.C.A. § 2 (West 1969). A jury found Rana guilty of both substantive counts. Only one of the issues Rana raised on this appeal, the jury's examination during trial of a notebook the government compiled that contained exhibits not yet entered into evidence, requires comment. 1 On that issue we hold that the district court erred when it allowed the government to provide each juror with a notebook that contained exhibits not yet admitted. On the record before us, however, we hold that this error was harmless. Thus, we will affirm Rana's convictions.
On May 24, 1989, a grand jury sitting in the United States District Court for the District of New Jersey indicted Rana on one count of conspiring to defraud the United States and one count of making false, fictitious and fraudulent statements to an agency of the United States. Rana's alleged co-conspirators included Mohsin Bashir Chaudry (Chaudry), Azad Khan, Inam Khan and Sherry Pettiford. The conspiracy count charged that Rana and the co-conspirators sought to defraud the Immigration and Naturalization Service (INS) by arranging "false" or "paper" marriages between citizens of Pakistan and citizens of the United States so that the Pakistanis could attain permanent resident alien status in the United States. The false statements count charged that Rana made false statements in writing to the INS concerning the marriage of Mohammad Mushtaq (Mushtaq) and Wendy Wallace (Wallace).
All of the conspirators except Rana pled guilty. Rana's jury trial began on April 23, 1990. At the beginning of trial the government asked the court for permission to give each juror a notebook containing about 125 of the government's exhibits. The admissibility of all of the documents in the notebook had not been ruled on, but the government argued that the books could nevertheless be given to the jurors at once if the court instructed them that they should not look at any particular document until told to do so. Over an objection by Rana's counsel, the district court permitted the government to give the notebooks to the jury, but precluded the jurors from taking the notebooks out of the courtroom.
On the second day of trial, while questioning a witness about Exhibit 15, the government's attorney advised the court that some jurors seemed to be looking at Exhibit 15 though it had not yet been admitted. The court cautioned the jurors against looking at a particular exhibit before it was admitted into evidence and the court had instructed the jurors that they could look at the exhibit. Soon after this incident, Exhibit 15 was admitted into evidence.
Later in the trial, the government instructed a witness to hold up Exhibit 133 so that the jury could see it even though Exhibit 133 had not yet been admitted into evidence. Rana's counsel objected because Exhibit 133 had not yet been admitted. The district court responded, "Not yet," and did not rule further on the objection. Supplemental Appendix for Appellant at 208. Exhibit 133 was later admitted into evidence.
The jury returned guilty verdicts on both counts of the indictment against Rana. On August 3, 1990, Rana was sentenced to concurrent five-year terms of imprisonment and ordered to pay a $10,000.00 fine and a $100.00 special assessment. Rana filed a timely notice of appeal on August 13, 1990.
We state the facts material to Rana's conviction under the usual standard for judging the sufficiency of a jury verdict in a criminal case by resolving all conflicts in the evidence in favor of the government, and giving it the benefit of all reasonable inferences from that evidence. See United States v. Inigo, 925 F.2d 641, 649 (3d Cir.1991).
Rana, a Pakistani, arrived in the United States on December 19, 1981. He entered as a temporary visitor for business reasons and was given permission to stay in the country until February 28, 1982. He was granted an extension until July 28, 1982. Rana remained in the United States after July 28 and was classified by INS as "out of status." Appendix for Appellee (App.) at 6-7. A person classified as out of status is subject to deportation.
One afternoon in late July or early August of 1983, Rana met Sheila Malachi (Sheila) as she walked past his home at 97 Palisades Avenue in Jersey City, New Jersey. That very day, Rana and Sheila began talking about getting married, not so they could live together forever after, but so that Rana could stay in the United States forever after. They agreed to stay married only until Rana got a "green card" 2 and then at once to get divorced. Rana told Sheila she would not have to be sexually intimate with him and that he would pay her some money immediately and give her more when she went with him to see the INS officials.
Rana and Sheila did not endure a long engagement. They were married on August 10, 1983. Rana then paid Sheila the money he had promised to pay her for going through a marriage ceremony with him. Soon thereafter, Rana and Sheila filed a petition with the INS seeking permanent resident status for Rana because he was now married to a citizen. The petition stated that Rana and Sheila lived at 97 Palisades Avenue. In fact Sheila never lived there. In support of the INS petition Rana also submitted a document that he said was an official Pakistani death certificate for his wife Raiza. Rana had told his co-conspirator, Chaudry, that his wife was still alive and well in Pakistan. The death certificate was a forgery. In preparation for the interview the INS requires in these cases, Rana and Sheila memorized vital personal information about each other. When the interview was over Rana paid Sheila about $3000.00. The INS approved Rana's petition for permanent resident status and issued him the coveted green card that gave him the status of permanent resident alien. Rana and Sheila were divorced on February 27, 1985.
In the meantime Rana and Sheila went into business together. Sheila helped Rana find other women willing to enter into sham marriages with Pakistani men who needed INS green cards. Sheila found Guyrine Hallenbeck (Hallenbeck) for Chaudry. Rana paid Sheila $500.00 for getting Hallenbeck to go through a marriage ceremony with Chaudry. Hallenbeck, like Sheila with Rana, did not live with Chaudry, nor have sex with him. Instead, she just took a blood test, went through the marriage ceremony and filled out the papers Chaudry needed to get his green card. Sheila made similar arrangements to get Madeline West to marry Moaziz Ahmed Syed and Wendy Wallace to marry Mohammed Mushtaq.
Rana profited from the marriages Sheila helped him arrange. Rana, along with Iftikhar Shaida (Shaida), arranged ten to fifteen sham marriages during 1985 and 1986. Rana and Shaida charged the men who went through these bogus ceremonies between $3500.00 and $5000.00 each. Rana and Shaida kept a portion of the fee each man paid, but told them that all of the money went to pay the women.
Shaida was arrested on charges unconnected with this case in October of 1989. Shaida went to jail. While there he told the government about a briefcase Rana had given him between March and May of 1989. Shaida said that Rana entrusted the briefcase to him so he could deliver its contents to Rana's true wife, Raiza, during Shaida's forthcoming visit to Pakistan. Shaida did indeed go to Pakistan and there deliver a letter from Rana to Raiza. While Shaida was in custody after his return from Pakistan he consented to turn Rana's briefcase over to federal agents. The briefcase contained a letter from Raiza to Rana, a green card that belonged to Rana, a 1984 1040 United States Individual Income Tax Return for Raiza and copies of forms filed with the INS in Rana's name.
The district court had subject matter jurisdiction over this criminal case under 18 U.S.C.A. § 3231 (West 1985). We have appellate jurisdiction over Rana's appeal pursuant to 28 U.S.C.A. § 1291 (West Supp.1991).
We review the district court's decision to allow the government to use its notebook narrowly for abuse of discretion. "[T]he conduct of trial is left to the broad discretion of the trial judge, and the court of appeals will not retroactively substitute its judgment for that of the trial judge unless there has been an abuse of discretion." Stich v. United States, 730 F.2d 115, 117 (3d Cir.), cert. denied, 469 U.S. 917, 105 S.Ct. 294, 83 L.Ed.2d 229 (1984). In the event of an abuse of discretion in the conduct of a trial by a district court, we must also decide whether the district court's error was harmless. "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Fed.R.Crim.P. 52(a). As we said in Government of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir.1976) (emphasis in original), an error is harmless when "it is highly probable that the [error] ... did not contribute to the jury's judgment of conviction." We have since stated that " '[h]igh probability' requires that we have a sure conviction that the error did not prejudice the defendant[ ]." United States v....
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Trial Proceedings and Motions
...to the jury , and not the trial judge, as to whether Grace, in fact, received the article before September 1968. United States v. Rana , 944 F.2d 123 (3d Cir. 1991). Allowing jury to see notebooks containing government’s 125 exhibits before they were admit- ted was not permitted by Rule 104......
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Trial proceedings and motions
...to the jury , and not the trial judge, as to whether Grace, in fact, received the article before September 1968. United States v. Rana , 944 F.2d 123 (3d Cir. 1991). Allowing jury to see notebooks containing government’s 125 exhibits before they were admitted was not permitted by Rule 104(b......
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Trial Proceedings and Motions
...to the jury , and not the trial judge, as to whether Grace, in fact, received the article before September 1968. United States v. Rana , 944 F.2d 123 (3d Cir. 1991). Allowing jury to see notebooks containing government’s 125 exhibits before they were admitted was not permitted by Rule 104(b......
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Trial proceedings and motions
...to the jury , and not the trial judge, as to whether Grace, in fact, received the article before September 1968. United States v. Rana , 944 F.2d 123 (3d Cir. 1991). Allowing jury to see notebooks containing government’s 125 exhibits before they were admitted was not permitted by Rule 104(b......