U.S. v. Singh, s. 1013

• Decision Date: 12 June 1980
• Docket Number: 1014,Nos. 1013,1015,D,1016,s. 1013
• Citation: 628 F.2d 758
• Parties: 6 Fed. R. Evid. Serv. 661 UNITED STATES of America, Plaintiff-Appellee, v. Mohinder SINGH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Shamsher WADUD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. BENGAL CABARET, INC., d/b/a Nirvana Restaurant, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. BANGLADESH HOUSE, INC., d/b/a Nirvana Boutique, Defendant-Appellant. ockets 79-1439, 79-1440, 79-1484, 79-1485.
• Court: U.S. Court of Appeals — Second Circuit

Page 758

628 F.2d 758

6 Fed. R. Evid. Serv. 661

UNITED STATES of America, Plaintiff-Appellee, v. Mohinder SINGH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Shamsher WADUD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. BENGAL CABARET, INC., d/b/a Nirvana Restaurant, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. BANGLADESH HOUSE, INC., d/b/a Nirvana Boutique, Defendant-Appellant.

Nos. 1013, 1014, 1015, 1016, Dockets 79-1439, 79-1440,

79-1484, 79-1485.

United States Court of Appeals Second Circuit.

Argued April 17, 1980.

Decided June 12, 1980.

Roy R. Kulscar, New York City (Backal, Kulscar, Labush & Lamendola) New York City, for appellant Singh.

Gerald M. Labush, New York City (Backal, Kulscar, Labush & Lamendola), New York City, for appellants Wadud, Bengal Cabaret, Inc., and Bangladesh House, Inc.

Robert S. Groban, Jr., Sp. Asst. U. S. Atty., New York City (Pamela Rogers Chepiga, Mary Jo White, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before MULLIGAN, Circuit Judge, SPEARS, ^* and SWEET, ^** District Judges.

SPEARS, District Judge:

This is an appeal by defendants Mohinder Singh, Shamsher Wadud, Bengal Cabaret, Inc. (d/b/a The Nirvana Restaurant), and Bangladesh House, Inc. (d/b/a The Nirvana Boutique) from a judgment of conviction entered in the United States District Court for the Southern District of New York.

The indictment, in seven counts, charged Mohinder Singh, Wadud, and other individuals, as well as the two corporate defendants, each wholly owned by appellant Wadud, with developing and maintaining a sophisticated, broad-based scheme to exploit illegal aliens by manipulating the United States immigration laws. Count One charged Wadud, the two corporations, Mohinder Singh, and Huq Rabiul Mani Sheikh with conspiring to harbor illegal aliens and to violate federal law by making false statements on various immigration forms and receiving money, services, and other unauthorized benefits from aliens in violation of 18 U.S.C. §§ 1001, 1015, 1422, 1546, and 8 U.S.C. § 1324. Count Two charged Wadud and Bangladesh House with making false statements in connection with an "Application for Status as Permanent Resident" filed with the Immigration and Naturalization Service ("INS") by Prema Kumari Muddan in violation of 18 U.S.C. §§ 1001 and 1002. Count Three charged that Mohinder Singh, Wadud, and Bengal Cabaret aided and abetted Sarbjit Singh in obtaining an immigrant visa through fraud in violation of 18 U.S.C. §§ 1542 and 1546. Counts Four and Five charged Wadud and Bangladesh House with aiding and abetting Shyam Sunder and Jagtar Singh Sehgal in making false statements to INS in connection with their "Applications for Status as Permanent Residents" in violation of 18 U.S.C. §§ 1001 and 1002. Count Six charged that Wadud and Bengal Cabaret aided and abetted Ahsan Ullah in obtaining an immigrant visa through fraud in violation of 18 U.S.C. §§ 1542 and 1546. Count Seven charged that Wadud and Bengal Cabaret aided and abetted Huq Rabiul Mani Sheikh in making false statements to the United States Department of Labor in connection with Sheikh's "Application for Alien Employment Certification" in violation of 18 U.S.C. §§ 1001 and 1002.

The jury returned guilty verdicts against each of the appellants on all counts of the indictment in which they were named. Ahsan Ullah was acquitted; the case against Sarbjit Singh was severed during trial with the Government's consent. The remaining defendants were not present for trial, and were believed to have returned to their homelands. Testimony of Civil Suit Against Defendant

As the first point of error, Wadud and the corporate defendants assert that the district court erred when it allowed the Government to elicit from Miron, one of the prosecution's twenty-four witnesses, that he had brought a civil suit for non-payment of wages which had resulted in an unpaid money judgment against Wadud. The appellants argue that the admission of this testimony destroyed the basic presumption of innocence on the part of the defendant, as set forth in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); and Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895). They argue that the effect of the introduction of this evidence, with no immediate curative instruction from the court, was that the jury was left with the impression that what Miron said was more worthy of belief because another court had found Miron worthy of belief. The appellants further argue that the introduction of this evidence was in violation of Rule 404(b) of the Federal Rules of Evidence, which states,

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Since the judgment in the state civil suit remained unpaid, Miron had a strong motive to testify in a manner consistent with his testimony in the civil suit. In addition, the mere fact that such a suit had been instituted with the resulting judgment yet unpaid reflected the possibility that Miron bore considerable enmity toward Wadud.

While it is universally accepted that the "enforcement (of the presumption of innocence) lies at the foundation of the administration of our criminal law," Coffin v. United States, supra, it should not be implied that the admission of evidence of the bias and self-interest of a witness would destroy the presumption. If anything, the admission here would serve to impeach the credibility of the witness rather than make his testimony more believable. This court has long held that, although credibility generally may not be supported until it has first been attacked, an exception exists which allows the Government to bring out on direct examination the circumstances surrounding a witness's motivation for cooperating with the Government or other matters damaging to the witness's credibility. United States v. Blackwood, 456 F.2d 526, 529 (2d Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972); United States v. Del Purgatorio, 411 F.2d 84, 87 (2d Cir. 1969); United States v. Rothman, 463 F.2d 488, 489-90 (2d Cir.), cert. denied, 409 U.S. 956, 93 S.Ct. 291, 34 L.Ed.2d 231 (1972); United States v. Di Francesco, 604 F.2d 769, 775 (2d Cir.), pet. for cert. granted on other grounds, 444 U.S. 1070, 100 S.Ct. 1012, 62 L.Ed.2d 751 (1980). Admission of this evidence is permitted in order to avoid an inference by the jury that the Government is attempting to keep from the jury the witness's possible bias.

Furthermore, proper curative instructions were given by the district judge in order to prevent any possibility that the jury might consider the evidence concerning the civil suit on some issue other than Miron's motive in testifying. Although the appellants now complain that the district judge erred in not giving the instructions immediately after the testimony of Miron, the record reflects that they did not seek such an instruction at that time. The point has clearly been waived. See United States v. Rothman, supra, in which this court held that the complete absence of cautionary instructions was not such plain error by the trial judge as to require reversal of the convictions. In the present case, proper instructions were given along with the court's charge to the jury. There is no error on appellants' first point of error.

Evidence of "Other Crimes" and "Bad Acts"

As the second point of error, the two corporate appellants and appellant Wadud contend that the testimony of several witnesses regarding the nonpayment of wages by the defendant and the conditions of their employment constituted inadmissible character evidence of "other crimes" or "bad acts" of Wadud in violation of Rule 404(b) of the Federal Rules of Evidence. Numerous witnesses other than Miron testified concerning the nonpayment of wages to the employees of the Nirvana Restaurant.

T. M. Nazrul Inslam testified that he worked six or seven days a week from 4:00 p. m. until 1:00 to 4:00 a. m. and that he was paid no salary for his labor, but was allowed to take the tips home. This testimony proceeded with absolutely no objection on behalf of the defendants, although opportunity for objection was obviously present since counsel objected to other portions of the witness's testimony on various grounds, generally as to the form of the questions. At no point did the defense argue that the testimony being admitted constituted evidence of "bad acts" or "other crimes" in violation of Rule 404(b) of the Federal Rules of Evidence.

A.K.M. Omour Faroque Khan testified that he worked at the Nirvana Restaurant from July, 1973, until July, 1974. He stated that he worked from 5:00 in the afternoon until 1:00 or 2:00 a. m., but received no salary. Once again, no objection was lodged with the court concerning the evidence elicited from the witness, although there were objections made throughout this testimony regarding the form of the questions.

Mahboobur Rahman Khan testified that when he was hired by appellant Wadud, he was told that when he had learned the job of waiter, he would be paid the same amount the other waiters received. Although he worked for Wadud from August or September, 1974, until April, 1975, and again from October, 1975, until February, 1977, he testified that he never received any pay. Again, the only objection lodged was to the form of the question. No objection was made to the admission of evidence regarding the nonpayment of wages.

Nur Ahmed testified that he worked at the restaurant for approximately five months, and that he worked approximately sixteen hours a day, but was never...