U.S. v. Whab

• Decision Date: 20 January 2004
• Docket Number: No. 02-1541.,02-1541.
• Citation: 355 F.3d 155
• Parties: UNITED STATES of America, Appellee, v. Usama Sadik Ahmed Abdel WHAB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

355 F.3d 155

UNITED STATES of America, Appellee, v. Usama Sadik Ahmed Abdel WHAB, Defendant-Appellant.

No. 02-1541.

United States Court of Appeals, Second Circuit.

Argued: January 12, 2004.

Decided: January 20, 2004.

Appeal from the United States District Court for the Southern District of New York, Colleen McMahon, J.

COPYRIGHT MATERIAL OMITTED

Tina Schneider, Portland, ME, for Appellant.

Jonathan B. Leiken, Assistant United States Attorney (Laura Grossfield Birger, Assistant United States Attorney, of counsel; James B. Comey, United States Attorney for the Southern District of New York, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.

Before: CABRANES and RAGGI, Circuit Judges, and MUKASEY, District Judge.^*

JOSÉ A. CABRANES, Circuit Judge.

Defendant Usama Sadik Ahmed Abdel Whab appeals from a judgment entered on September 16, 2002 in the United States District Court for the Southern District of New York (Colleen McMahon, Judge) following a jury trial. Defendant was convicted on three counts: (1) making a false statement in an application for a United States passport, in violation of 18 U.S.C. §§ 1542 and 2; (2) making and using a false writing, specifically, a forged baptismal certificate, in support of his application for a passport, in violation of 18 U.S.C. § 1001; and (3) making a false statement to a federal agent, in violation of 18 U.S.C. § 1001. Defendant was sentenced principally to a term of 6 months' imprisonment, which he has now completed, to be followed by three years' supervised release.

We view the evidence presented at trial in the light most favorable to the government. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Pimentel, 346 F.3d 285, 288 (2d Cir.2003). In June 2001, defendant, an Egyptian-born citizen of Egypt, claimed in an application for a United States passport that he was born in Brooklyn, New York. After receiving a request for additional documentation supporting his claim that he was born in the United States, defendant submitted a forged baptismal certificate to the United States Passport Agency ("Passport Agency"). In October 2001, defendant was interviewed by a federal agent, and again falsely stated that he had been born in Brooklyn.

Defendant claims on appeal that (1) under the "willfulness" requirement of 18 U.S.C. § 1001, the Government was required to prove that defendant specifically knew that making a false statement to a federal agent was criminal, and failed to do so; (2) the Government failed to prove that his forged baptismal certificate was material to his passport application under 18 U.S.C. § 1001, in light of the baptismal certificate's recent date of issue; and (3) the District Court erred in refusing to instruct the jurors that they were not to consider the reasonableness of defendant's belief that he was born in Brooklyn. We affirm.

Discussion

I. "Willfulness" and 18 U.S.C. § 1001

Defendant first argues that there was insufficient evidence to prove that he violated 18 U.S.C. § 1001 by making a false statement to a federal agent, because the Government was required, and failed, to prove that defendant specifically knew that it was unlawful to make a false statement to a federal agent. Defendant's argument, while cast in terms of a challenge to the sufficiency of the evidence, is in essence a claim that the District Court erred by failing to instruct the jury that the Government was required to prove that defendant knew that making a false statement to a federal agent was a crime.

Because defendant did not raise this argument below, we review for plain error. Before we can correct an error not raised at trial, "there must be (1) `error,' (2) that is `plain,' and (3) that `affect[s] substantial rights.'" Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (alteration in original); accord United States v. Thomas, 274 F.3d 655, 667 (2d Cir.2001) (en banc). Where all three conditions are met, "an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error `seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'" Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770); accord Thomas, 274 F.3d at 667.

For an error to be plain, "it must, `at a minimum,' be `clear under current law.'" United States v. Weintraub, 273 F.3d 139, 152 (2d Cir.2001) (quoting United States v. Feliciano, 223 F.3d 102, 115 (2d Cir.2000)). We "typically will not find such error where the operative legal question is unsettled," including where there is no binding precedent from the Supreme Court or this Court. Id. In Weintraub, for example, we found that "no binding precedent" supported the defendant's position on appeal, and concluded that "[w]ithout a prior decision from this court or the Supreme Court mandating the jury instruction that [defendant], for the first time on appeal, says should have been given, we could not find any such error to be plain, if error it was." Id. at 152.

We recently noted that, "in the rare case," we can notice plain error that does not "contravene[] clearly established precedent," United States v. Brown, 352 F.3d 654, 665 n. 10 (2d Cir.2003), where such error is "`so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant's failure to object.'" Id. at 665 (quoting United States v. Gore, 154 F.3d 34, 42-43 (2d Cir.1998)). It may be appropriate for this Court to find an error "plain," even in the absence of binding precedent from the Supreme Court or this Circuit, where other circuits have uniformly taken a position on an issue that has never been squarely presented to this Court. We emphasize, however, that such cases are bound to be exceedingly rare. Cf., e.g., Brown, 352 F.3d at 670 (finding no plain error in the district court's decision to deny defendant's religion-based Batson challenge to the Government's use of peremptory strikes). Certainly, an error cannot be deemed "plain," in the absence of binding precedent, where there is a genuine dispute among the other circuits. See Gore, 154 F.3d at 43.¹

We hold that, in the circumstances presented, this case does not require a resort to any such difficult or exceptional application of "plain error" review. Defendant was convicted of violating 18 U.S.C. § 1542 and § 1001, both of which prohibit knowingly and willfully making false statements to government agents or particular agencies.² The District Court, in explaining the concept of knowing and willful conduct in connection with Count One of the indictment, the § 1542 offense, stated:

An act is done knowingly if it is done voluntarily and purposely and not because of mistake, accident, or some other reason. An act is done willfully if it is done knowingly, intentionally and with a bad purpose, a purpose to do something that the law forbids.

In determining whether a defendant has acted knowingly and willfully, it is not necessary for the Government to establish that the defendant knew that he was breaking any particular law or particular rule. He need only have been aware of the generally unlawful nature of his actions.

Later, in explaining the same element as it pertained to Counts Two and Three, the § 1001 offenses, the Court reiterated its earlier definition of knowing and willful conduct. With respect to Count Two, it charged:

An act is done knowingly if it is done purposely and voluntarily, as opposed to mistakenly or accidentally. An act is done willfully if it is done with an intention to do something that the law forbids; that is to say, with a bad purpose either to disobey or disregard the law.

With respect to Count Three, the Court stated:

I remind you that an act is done knowingly if it is done purposely and voluntarily, as opposed to by mistake or accident. An act is done willfully if it is done with an intention to do something that the law forbids.

"We do not review portions of the instructions in isolation, but rather consider them in their entirety to determine whether, on the whole, they provided the jury with an intelligible and accurate portrayal of the applicable law." Weintraub, 273 F.3d at 151. Where, as in this case, a district court provides a jury with the identical definition of key terms such as "knowingly" and "willfully" in its instructions on three separate counts of the indictment, it would be obvious to the jury that any amplifications of the definitions provided in the court's first discussion of their application necessarily pertain to subsequent applications as well. In short, tedious repetition was unnecessary to ensure an intelligible and accurate portrayal of the law. Reviewing the District Court's instructions as a whole, we are satisfied that they clearly charged the jury that, in order to find that defendant acted "willfully" under § 1001, the Government was required to show that he acted with a purpose to do something the law forbids, and with an awareness of the generally unlawful nature of his actions.

Defendant seems to argue that the requirement of § 1001 that a defendant act "willfully" in making a false statement includes something more: specific knowledge that lying to a federal agent is a crime. He contends that his conviction cannot stand in the absence of "evidence showing that [he] was told that it was a crime to make such a false statement." Defendant relies on United States v. Wiener, 96 F.3d 35, 40 (2d Cir.1996), in which we rejected the "exculpatory no" doctrine, a judicially-created exception to § 1001, adopted by several courts, that made § 1001 inapplicable to "false statements that are essentially exculpatory denials of criminal activity." Id. at 37. In discussing the...