United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4250

ROBERT BROWN,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-01-459)

Argued: January 24, 2003

Decided: April 21, 2003

Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Douglas Adrien Steinberg, LAW OFFICE OF GWENA

KAY TIBBITS, Alexandria, Virginia, for Appellant. Richard D.

Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Alexan-

dria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United

States Attorney, Dean Lanter, Special Assistant United States Attor-

ney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,

Virginia, for Appellee.

2 UNITED STATES v. BROWN

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

A grand jury indicted Robert Brown for possessing a forged visa

in violation of 18 U.S.C. § 1546(a). The district court ordered a mis-

trial after the jury deadlocked. Shortly thereafter, one juror contacted

a government case agent to discuss the trial and jury deliberations.

The government disclosed this information to the district court, and

Brown filed motions for sanctions alleging, inter alia, that the juror

contact violated Local Rule 83.5. The district court denied the motion

for sanctions. During retrial, Brown objected to testimony of one lay

witness and one expert witness. The district court overruled both

objections. The second jury found Brown guilty. Brown now appeals

the district court’s rulings on the juror contact issue and the admission

of lay and expert witness testimony. For the reasons that follow, we

affirm the district court.

I.

Robert Brown, a native of Ghana, Africa, was arrested by Immigra-

tion and Naturalization Service ("INS") inspectors on November 17,

2001, at Washington Dulles International Airport ("Dulles"). INS

Inspector Paul Trump arrested Brown after looking at his visa and

determining that it was fraudulent. Inspector Trump based his conclu-

sion on the fact that there was "a strong odor emanating from the visa,

. . . that the security codes on the visa appeared to be incorrect, . . .

and that one of the visa’s security features normally invisible to the

naked eye was clearly visible." On December 13, 2001, a grand jury

indicted Brown for knowingly and unlawfully using and possessing

a visa, knowing it to be forged, counterfeited, altered, or falsely made,

in violation of 18 U.S.C. § 1546(a) (2000). A jury trial was held on

February 13, 2002. The jury deadlocked, and the district judge

declared a mistrial. On February 15, 2002, Brown filed a motion

requesting discovery and bond pending retrial.

UNITED STATES v. BROWN 3

On February 18, 2002, a man entered Inspector Trump’s office at

Dulles, introduced himself as a juror from Brown’s first trial, and

explained the jury’s division of eleven-to-one in favor of conviction.

The juror spoke with Inspector Trump for no more than five minutes,

during which time Inspector Trump nodded at the juror and smiled,

periodically responding to him. The government disclosed the contact

to the district court on February 19, 2002, the same day it filed its

response to Brown’s February 15th motions. Also on that date, the

government indicated to the court its intent to retry the case.

The district court held a hearing, sua sponte, to review the evidence

of the government’s contact with the former juror. The court found

that Inspector Trump did not engage in improper conduct and the

government did not violate Local Rule 83.5. Brown then filed a

motion for sanctions, which included a request to dismiss, with preju-

dice, the indictment against him, because the government had alleg-

edly used the information gained from the conversation between the

juror and Inspector Trump to improperly influence the district court.

The court denied Brown’s motion for sanctions insofar as it was

based on the juror contact,* and a second jury trial was held on Febru-

ary 28, 2002.

During retrial, the government called expert witness Christopher

Misciagno to testify about the application procedures for obtaining a

visa from the U.S. Embassy in Accra, Ghana between April and

December 2001, and to testify about the types of visa fraud that took

place in Accra during 2001. Misciagno testified that the records in the

State Department visa applicant database and the characteristics of the

altered visa were consistent with the type of visa fraud prevalent in

Ghana in 2001. Brown objected to this testimony, arguing that it

would be confusing to the jury. The district court sustained the objec-

tion on the grounds that the question had already been answered.

The government also called INS Inspector William Allen, who

inspected Brown’s visa at Dulles. Inspector Allen testified that Brown

appeared nervous and displayed a demeanor consistent with actions

*Brown’s motion for sanctions was also based on previously undis-

closed statements by the government. The district court granted that por-

tion of the motion.

4 UNITED STATES v. BROWN

he was trained to recognize as those of a person who is "not being

completely honest or concealing a fact." Brown objected to this testi-

mony, arguing that Allen was offering improper expert testimony,

which he had not been qualified to do. The district court overruled the

objection, stating, "An ordinary person can testify to emotional states

of other people or they appeared a certain way, at least how they

appear."

At the conclusion of the retrial, the jury convicted Brown of violat-

ing 18 U.S.C. § 1546(a). The district court sentenced him to six

months in prison with credit for time served, three years of supervised

release with special conditions related to INS deportation proceed-

ings, and a special assessment of $100.00. Brown timely filed this

appeal.

II.

We apply a clear error standard in reviewing a district court’s

denial of a motion to dismiss an indictment based on alleged prosecu-

torial misconduct. United States v. McDonald, 61 F.3d 248, 253 (4th

Cir. 1995), overruled on other grounds by United States v. Wilson,

205 F.3d 720 (4th Cir. 2000). "A finding is clearly erroneous when,

although there is evidence to support it, on the entire evidence the

reviewing court is left with the definite and firm conviction that a

mistake has been made." United States v. Breza, 308 F.3d 430, 433

(4th Cir. 2002) (citing Faulconer v. Comm’r., 748 F.2d 890, 895 (4th

Cir. 1985)) (internal quotations omitted). We review a district court’s

ruling to admit the testimony of lay and expert witnesses for abuse of

discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) ("We

have held that abuse of discretion is the proper standard of review of

a district court’s evidentiary rulings."); Tyger Constr. Co. Inc. v. Pen-

sacola Constr. Co., 29 F.3d 137, 142 (4th Cir. 1994); Mattison v. Dal-

las Carrier Corp., 947 F.2d 95, 110 (4th Cir. 1991). An abuse of

discretion occurs when a district court makes an error of law. United

States v. Barile, 286 F.3d 749, 753 (4th Cir. 2002). Where we find

that a district court made an error of law with respect to evidentiary

rulings, we conduct a harmless error review under Federal Rule of

Criminal Procedure 52. United States v. Brooks, 111 F.3d 365, 371

(4th Cir. 1997) ("In order to find a district court’s error harmless, we

need only be able to say with fair assurance, after pondering all that

UNITED STATES v. BROWN 5

happened without stripping the erroneous action from the whole, that

the judgment was not substantially swayed by the error." (internal

quotations and citations omitted)).

III.

Brown alleges that the district court: (1) erred in finding the gov-

ernment did not violate Local Rule 83.5; (2) abused its discretion by

permitting an expert witness to testify as to whether documented evi-

dence was consistent with a particular type of fraud; and (3) abused

its discretion by permitting a lay witness to testify as to Brown’s

truthfulness. We examine each of these issues in turn.

A.

We begin with Brown’s asserted violation of Local Rule 83.5.

Under Local Rule 83.5, United States District Court for the Eastern

District of Virginia:

No attorney or party litigant shall personally, or through any

investigator or other person acting for the attorney or party

litigant, interview, examine or question any juror or alter-

nate juror with respect to the verdict or deliberations of the

jury in any action, civil or criminal, except on leave of such

court granted upon good cause shown and upon such condi-

tions as the court shall fix.

The Eastern District of Virginia has held that the purpose of this rule

is to allow jurors to "return to their normal lives [at the conclusion of

the case] without fear or concern of attorneys, or attorneys’ represen-

tatives, knocking on their door or calling them at home in the evening

to question them about the whys and wherefores of their respective

verdicts." Daniel v. Jones, 39 F. Supp. 2d 635, 637-38 (E.D. Va.

1999). It follows, therefore, that a violation of the rule occurs when

an attorney or a representative of the attorney initiates contact with a

juror regarding the jury’s verdict or deliberations. The evidence in the

record indicates that the juror sought out Inspector Trump to discuss

the jury deliberations. Inspector Trump testified that no one instructed

him to find out what the verdict was or what the division was between

6 UNITED STATES v. BROWN

the jurors. The Assistant U.S. Attorney, Mr. Rossi, also testified that

Inspector Trump was not asked to try to find out the division of the

jury.

Further, there is no evidence in the record that shows that Inspector

Trump interviewed, examined or questioned the juror. To the con-

trary, the record is undisputed that Inspector Trump nodded, smiled,

and periodically responded to the juror, but did not ask him questions

or press him further. Because Inspector Trump did not initiate contact

with the juror and because Brown failed to demonstrate that the gov-

ernment interviewed, examined or questioned the juror with respect

to jury deliberations, we find that there was no violation of Local

Rule 83.5 and affirm the district court’s denial of Brown’s motion for

sanctions based on the juror contact.

B.

Next, Brown claims that the district court abused its discretion in

permitting the testimony of Christopher Misciagno. Misciagno testi-

fied that the characteristics of the altered visa Brown held were con-

sistent with the type of visa fraud prevalent in Ghana in 2001. He was

asked the following questions and gave the following responses:

Q. Now do you have an expert opinion based upon your

knowledge, training, skill, and background as to

whether or not the information contained on Govern-

ment Exhibit 8C, the nonimmigrant visa application

detail in the name of Kwame Amoasi, as well as the

information contained in the sealed documents 8A and

9 and the passport, Government Exhibit 2 as well as the

visa, based upon these documents and your own train-

ing and experience, is the evidence of these documents

and the evidence you’ve reviewed in this case consis-

tent with the type of visa fraud that you were seeing in

the summer of 2001 in Ghana?

A. Yes, sir. It’s a perfect example of that, that exact type

of fraud that I wrote the report on.

Q. And tell the members of the jury why.

UNITED STATES v. BROWN 7

A. Mr. Kwame Amoasi, based upon the information that

I have as part of these exhibits, it shows that he proba-

bly had a fairly easy time obtaining a visa in the

embassy in Accra. He then appears to have taken this

visa, passed it off to a visa fixer, who made, our esti-

mation was, about $50 for the payment of his services

to go and obtain the visa.

Brown’s lawyer objected to this testimony, which the district court

sustained on the grounds that the question had been asked and

answered. Misciagno had earlier testified that the visa looked as

though it had been altered and provided examples of the errors on the

visa that led him to that conclusion. Brown did not object to the ear-

lier testimony, nor did he, after his later objection was sustained,

move to strike Misciagno’s comments from the record or request that

the jury be instructed to disregard Misciagno’s prior testimony.

Brown now contends that the testimony was impermissibly prejudi-

cial to him because Misciagno was stating his belief that Brown was

guilty of the crime. However, Brown has not preserved this issue for

appeal. Kollsman, a Div. of Sequa Corp. v. Cohen, 996 F.2d 702, 707

(4th Cir. 1993) ("To preserve an issue for appeal, an objection must

be timely and state the grounds on which it was based." (citations

omitted)). His later objection was sustained, and there were no other

objections made to Misciagno’s testimony. Therefore, we find that

there was no error.

C.

Finally, Brown contends that the district court abused its discretion

by permitting a lay witness to testify as to his truthfulness. During

retrial, Inspector Allen testified that Brown appeared nervous while

being questioned. Allen explained his opinion by stating,

At first, it [Brown’s demeanor] was about normal. As I

started to pry and ask him questions, he became nervous. He

started searching the room. In training, we learn certain tell-

tale signs when a person is not being completely honest or

they’re concealing a fact. There’s certain body language that

they’ll display.

8 UNITED STATES v. BROWN

Brown objected at trial, arguing that Inspector Allen was proffering

unqualified expert testimony. The district court judge overruled the

objection, concluding that Inspector Allen was permitted to explain to

the jury why he made the statement that Brown was nervous. Brown

asserts that this ruling constitutes error because it allowed the witness

to give an opinion as to Brown’s truthfulness and honesty. We agree.

A lay witness may testify in the form of an opinion or inference

provided that the testimony is "(a) rationally based on the perception

of the witness, (b) helpful to a clear understanding of the witness’ tes-

timony or the determination of a fact in issue, and (c) not based on

scientific, technical, or other specialized knowledge within the scope

of Rule 702." Fed. R. Evid. 701; see also MCI Telecomm. Corp. v.

Wanzer, 897 F.2d 703, 706 (4th Cir. 1990) ("A lay witness in a fed-

eral court proceeding is permitted under Fed. R. Evid. 701 to offer an

opinion on the basis of relevant historical or narrative facts that the

witness has perceived." (internal quotations and citation omitted)).

The district court overruled Brown’s objection because it found that

Inspector Allen’s testimony provided an explanation of why he

thought Brown was nervous. However, Inspector Allen’s testimony

went further than that. Inspector Allen’s statement that Brown started

searching the room provided an explanation for his conclusion that

Brown was nervous. His subsequent statement, "In training, we learn

certain telltale signs when a person is not being completely honest or

they’re concealing a fact," did not explain Inspector Allen’s conclu-

sion that Brown was nervous. Instead, it was testimony that Brown’s

nervousness meant that he was not being completely honest or con-

cealing a fact. This testimony is beyond the scope of Rule 701. While

Inspector Allen is permitted to explain why he thought Brown was

nervous, he cannot testify as to whether Brown was being truthful or

was concealing a fact. See United States v. Cecil, 836 F.2d 1431 (4th

Cir. 1988) (holding that the credibility of a witness is an issue for the

jury (citing United States v. Wertis, 505 F.2d 683, 685 (5th Cir.

1975)). Therefore, we conclude that the district court erred in admit-

ting that portion of Inspector Allen’s testimony that speculated as to

Brown’s credibility.

Although the district court committed error in admitting that por-

tion of Inspector Allen’s testimony, we find that the error is harmless.

United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). The dis-

UNITED STATES v. BROWN 9

trict court’s error was harmless because the errant evidence presented

by Inspector Allen did not substantially sway the verdict. The errant

portion of Inspector Allen’s testimony was his statement that he is

trained to recognize signs "when a person is not being completely

honest or they’re concealing a fact." However, a reasonable juror

could conclude that Brown was not being honest or was concealing

a fact based on Inspector Allen’s testimony concerning the facts upon

which he based his conclusion that Brown was nervous. Inspector

Allen testified that Brown initially appeared calm, but became ner-

vous as the questioning progressed; he began searching the room and

assumed a "fight-or-flight" stance.

The most telling evidence that could lead a reasonable juror to find

Brown was not being honest is the testimony of Brown himself.

Brown testified that he went to the American embassy in Ghana to

secure a visa, that he paid $45 to a woman working inside the

embassy, and that, after paying the money, he received a yellow

appointment sheet for his interview. Brown also testified that, when

he returned to the embassy for his appointment, he was interviewed

for approximately twenty minutes and the yellow appointment sheet

was taken back from him by the consular. This testimony was contra-

dicted by Misciagno, who provided a different account of the process

by which visas are obtained in Ghana. Misciagno testified that: (1) the

guards would have handed visa applications to individuals outside the

gate — there was no reason for the applicant to come inside the

embassy; (2) the appointment sheet to come into the embassy for an

interview was white, not yellow; (3) the consular service did not take

money for an application for a nonimmigrant visa; (4) during the time

that Brown allegedly received his visa, applicants were interviewed,

at most, for five minutes; and (5) interview sheets were not taken

back from applicants, because the applicant would receive the sheet

after the interview as proof that they had paid the money for the appli-

cation. Thus, a reasonable juror could have concluded, based upon

Misciagno’s contradicting testimony, that Brown was being dishonest

about how he obtained the visa.

In light of the testimony of Inspector Allen and Misciagno, we con-

clude that a reasonable juror could find that Brown was not being

honest or was concealing a fact, and thus knowingly possessed the

fraudulent visa. Therefore, we find that, although the district court

10 UNITED STATES v. BROWN

erred in admitting the portion of Inspector Allen’s testimony that

speculated as to Brown’s credibility, the error did not substantially

sway the judgment and was therefore harmless.

IV.

For the foregoing reasons, we affirm the district court.

AFFIRMED