U.S. v. Vidacak
| Citation | 553 F.3d 344 |
| Decision Date | 23 January 2009 |
| Docket Number | No. 07-4904.,07-4904. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Veselin VIDACAK, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED: J. Scott Coalter, McKinney & Justice, P.A., Greensboro, North Carolina, for Appellant. Patrick Auld, Office of the United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney, Greensboro, North Carolina, for Appellee.
Before WILKINSON and DUNCAN, Circuit Judges, and RICHARD D. BENNETT, United States District Judge for the District of Maryland, sitting by designation.
Affirmed by published opinion. Judge BENNETT wrote the opinion, in which Judge WILKINSON and Judge DUNCAN joined.
Veselin Vidacak appeals his conviction on four counts of making materially false statements orally and on his United States immigration applications in violation of 18 U.S.C. § 1546(a) and 18 U.S.C. § 1001(a)(2), specifically failing to report any military service in the Army of the Republika Srpska (the "VRS") during the Bosnian Civil War. At trial, the district court received into evidence certain military records and the testimony of two government witnesses concerning translated statements made by Vidacak. All three sources of evidence indicated that Vidacak had in fact served in the VRS. Vidacak contends that the district court erred in admitting these sources of evidence. Because the district court did not abuse its discretion in admitting the evidence at issue, we affirm.
Veselin Vidacak was born in present-day Bosnia, on July 3, 1974. (J.A. 393.) In the late 1990s, Vidacak was residing with his family in Serbia when he decided he would attempt to emigrate to the United States. With the assistance of the International Organization of Migration (IOM), a refugee aid organization, Vidacak filed a Registration for Classification as Refugee Application (Form I-590). (J.A. 414-16.) In March 2002, Vidacak was interviewed by U.S. Immigration Officer Susan Tierney in Belgrade, Serbia, as part of the refugee application process. (J.A. 417.) The interview was conducted with the assistance of a Serbian translator named Dusanka Bucou, or "Duchka," who was employed by the IOM. (J.A. 321.) After the interview, Vidacak and his family were granted refugee status and they arrived in the United States on July 8, 2002. (J.A. 418-19.) In August of 2003, Vidacak submitted his Application to Register Permanent Residence or Adjust Status (Form I-485). (J.A. 420.) In both of his refugee applications, Forms I-590 and I-485, Vidacak failed to report any military service in the Army of the Republika Srpska (the "VRS") during the Bosnian Civil War. (J.A. 315-25; Gov't Exh. 15.)
The International Criminal Tribunal for the Former Yugoslavia (the "ICTY") in The Hague investigates alleged war crimes that occurred during the civil war fought between the ethnic Serb-dominated Republika Srpska and the Federation of Bosnia-Herzegovina (led by Muslims and ethnic Croatians). (J.A. 33-39.) The ICTY launched an investigation into the July 1995 Srebrenica massacre, wherein elements of the VRS, primarily from the Zvornik and Bratunac Brigades, over-ran a United Nations safe-area and executed thousands of Bosnian Muslims. (J.A. 39-41.) In the spring of 1998, ICTY agents executed a search warrant at the Zvornik Brigade headquarters and seized various military records. (J.A. 44, 254.) ICTY analysts used the records to catalogue the names of VRS soldiers who were connected to the events at Srebrenica and the results were provided to the Department of Homeland Security's Department of Immigration and Customs Enforcement ("ICE"), to be cross-referenced against a database of refugees. (J.A. 264-65.) As a result of its inquiry, ICE determined that Vidacak served in the Zvornik Brigade of the VRS. (J.A. 185-92, 271-78.)
On December 11, 2006, ICE agents arrested Vidacak at his home in Guilford County, North Carolina. (J.A. 341-46.) Vidacak was taken into custody and questioned by ICE Special Agent Rodney Coulston through a U.S. government-contracted interpreter named Carmen Ess. (J.A. 341-88.) Vidacak waived his Miranda rights and admitted that he had served in the VRS during the Bosnian Civil War and that he knowingly had falsified his immigration applications to conceal his service. (J.A. 345-53, 356-65, 383-84.)
Vidacak was charged in a four count indictment for misstating orally and on his Forms I-590 and I-485 immigration applications that he had never served in the military when he had served as a soldier in the Zvornik Brigade of the VRS from May 1, 1993, to July, 1995. (J.A. 9-12.) Vidacak pled not guilty and the matter was set for trial.
Vidacak filed a motion in limine objecting to the introduction of his statements made through interpreters to Officer Tierney on March 11, 2002, and to Agent Coulston on December 11 and 12, 2006, contending that the interpreters should be available for cross-examination at trial. (Paper No. 12.) In addition, Vidacak moved to exclude the military documents seized from the Zvornik Brigade headquarters for being improperly authenticated pursuant to Fed.R.Evid. 901 and for being inadmissible hearsay. The district court held a joint pretrial hearing for Vidacak and two similarly-situated defendants.1 (J.A. 17-176.) During the trial, the district court held that the military records and testimony concerning Vidacak's statements to Tierney and Coulston were admissible. (J.A. 155-56, 166.)
The Government presented testimony from four witnesses that are relevant to this appeal. Richard Butler, a military analyst at the ICTY, testified to demonstrate the authenticity of the military records from the Zvornik Brigade headquarters and explained his involvement in their seizure, cataloguing, and storage. (J.A. 41-51, 74-126, 212-42, 247-302.) Immigration Officer Susan Tierney testified about her 2002 interview with Vidacak in Belgrade. (J.A. 303-37.) Officer Tierney identified her interpreter, Duchka, and attested to her honesty and ability; however Duchka did not appear in person. (J.A. 320-21, 331-36.) ICE Special Agent Rodney Coulston testified with respect to a Miranda waiver executed by Vidacak and the process of the interview which was conducted with the assistance of interpreter Carmen Ess. (J.A. 345-47.) Ess testified that she accurately translated the comments made during Vidacak's post-arrest interview. (J.A. 383-84, 388.) On May 3, 2007, a jury returned verdicts of guilty on all four counts. (J.A. 486.) Vidacak timely filed his notice of appeal on September 14, 2007. (J.A. 493.)
We "review decisions to admit evidence for abuse of discretion." United States v. Forrest, 429 F.3d 73, 79 (4th Cir.2005). Accord United States v. Bostian, 59 F.3d 474, 480 (4th Cir.1995); United States v. Russell, 971 F.2d 1098, 1104 (4th Cir.1992). "Under the abuse of discretion standard, this Court may not substitute its judgment for that of the district court; rather, [it] must determine whether the [district] court's exercise of discretion, considering the law and the facts, was arbitrary or capricious." United States v. Mason, 52 F.3d 1286, 1289 (4th Cir.1995).
At trial, over defense objection, the Government introduced several foreign military documents. (J.A. 276.) Government's exhibit # 2 (with corresponding English translation as Government's exhibit # 1) reflects a list of individual soldiers from the 2nd Infantry Battalion of the Zvornik Infantry Brigade for the month of July, 1995. (J.A. 275.) Government exhibit # 5 (along with a one page extract as Government's exhibit # 3) is a personnel administrative log of the 2nd Infantry Battalion of the Zvornik Infantry Brigade. (J.A. 275, 289.) Government's exhibit # 4 is a mobilization card from the former Yugoslav's People's Army ("JNA"), now the Army of the Republic of Srpska. (J.A. 275.) These documents were introduced for purposes of proving that Vidacak served in the VRS.
Each of these exhibits was introduced through the testimony of Richard Butler of the ICTY who participated in a search of the Zvornik Brigade headquarters in the spring of 1998. (J.A. 254, 276.) Butler described his role in the execution of a search warrant that authorized the seizure of "all military documents created during the course of the [Bosnian Civil War] from April 1992 through December 1995." (J.A. 43.) Butler testified as to how numerous documents were seized and taken to the War Crimes Tribunal in The Hague, where they were later catalogued. (J.A. 254-63.) Butler identified each of the Government's exhibits as being seized during the 1998 search of the Zvornik Brigade headquarters. (J.A. 273.) However, Butler stated that the first time he saw Vidacak's name was in the summer of 2004, and that he could not remember specifically seeing these documents when he searched the headquarters. (J.A. 88, 286-87.) He testified that the documents were present in Zvornik during the search, based on the electronic registration number ("ERN") system and ICTY document cataloguing procedures. (J.A. 94-95.) On cross-examination, Butler acknowledged he could not "talk about [the history of these documents prior to their seizure by the ICTY in 1998] in first person terms." (J.A. 287.)
Vidacak argues that the district court abused its discretion by admitting at trial the three exhibits of VRS military documents seized from the Zvornik Brigade headquarters.2 He claims that the Government did not submit evidence sufficient to make a prima facie case that the "documents were created prior to July 1995 having some relevance as to whether Vidacak was in the military." (Appellant Br. 15-16.) He notes that the Government failed to account for the approximate three year gap between the creation of the documents and their seizure in 1998. (Id. at 16.) In addition, Vidacak claims that the records constituted...
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