United States v. Sagarsen Haldar

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1238

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SAGARSEN HALDAR,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 10-CR-268 — Rudolph T. Randa, Judge.

ARGUED DECEMBER 3, 2013 — DECIDED APRIL 30, 2014

Before POSNER, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. A jury found Sagarsen Haldar

guilty of conspiring to defraud the United States by using his

position as leader of a Hare Krishna temple in Milwaukee to

obtain religious-worker visas for people who were not actually

religious workers. Haldar appeals his conviction and seeks a

new trial by raising three issues, none of which he raised in the

district court. He argues: (1) certain statements from the

prosecutor and a government witness improperly called into

2 No. 13-1238

question the validity of his temple and were unfairly prejudi-

cial under Federal Rule of Evidence 403; (2) the prosecutor

misrepresented testimony during his closing argument and

relied on facts outside the record; and (3) the district court on

its own initiative should have instructed the jury not to

scrutinize the religious qualifications of the visa recipients.

Haldar cannot satisfy the stringent “plain error” standard that

he must meet to win a new trial when raising such issues for

the first time on appeal. We affirm his conviction.

I. Factual and Procedural Background

Haldar is an Indian citizen who came to the United States

in 1999 and has been a permanent resident since 2006. A few

years after his arrival he founded the Gaudiya Vaisnava

Society, Inc., known as GVS-Milwaukee. Gaudiya Vaisnava (or

Vaishnava) is another name for the Hare Krishna religion.

From 2004 to 2007, GVS-Milwaukee sponsored twenty-five

applicants for religious-worker visas known as “R-1 visas,” see

8 C.F.R. § 214.2(r)(1), seventeen of which were approved.

For reasons not fully explained in the record, by mid-2007

the State Department had advised the Department of Home-

land Security (DHS) that GVS-Milwaukee might be involved

in visa fraud. DHS had also received an anonymous tip along

the same lines. As a result, the agency began an investigation

that included temple visits, surveillance, searches of Haldar’s

luggage on international trips, and interviews with GVS-

sponsored visa recipients. Haldar was charged in 2010 with

conspiracy to defraud the United States under 18 U.S.C. § 371.

At trial, DHS agents testified about their investigation. One

agent, Ali Lubbad from the fraud detection arm of U.S.

No. 13-1238 3

Citizenship and Immigration Services (USCIS), described the

investigation’s inception and initial stages. He mentioned the

State Department’s suspicions of visa fraud and that DHS had

received a tip about GVS-Milwaukee. As he was about to

describe the content of the tip, defense counsel objected to the

testimony as hearsay. Before the judge could rule, the prosecu-

tor interjected, “Actually I think I can take care of it this way.

Without going into the substance of the letter, is it fair to say

you received a tip letter that indicated that you should look

into GVS?” Lubbad responded, “Yes.”1 Haldar’s lawyer did

not renew his hearsay objection or object to this testimony on

another basis.

Agent Lubbad also told the jury that, in any event, DHS

routinely investigates organizations sponsoring R-1 visa

applicants because up to 33 percent of all applications are

sponsored by “[c]ompletely fraudulent” organizations,

meaning there was actually “no organization” at all. Defense

counsel did not object to Lubbad’s testimony on this point.

Agent Lubbad went on to describe a surprise visit he made

to the main GVS temple location. During that visit, Haldar

seemed anxious for him to leave because no religious activity

1

Although Haldar does not raise the hearsay problem with Lubbad’s

testimony on appeal, such “course of investigation” evidence is only rarely

relevant. When the prosecution offers this type of testimony, it invites

witnesses to give inadmissible hearsay and invites appellate courts to

reverse on evidentiary or Confrontation Clause grounds. See Jones v.

Basinger, 635 F.3d 1030, 1044–48 (7th Cir. 2011) (ordering habeas corpus

relief where “course of investigation” evidence violated defendant’s

Confrontation Clause rights).

4 No. 13-1238

was apparent: “He was encouraging me to leave that location.

Kept saying I have another Temple at Ramsey. You know, it’s

better to see. And it seemed—my feeling was that he wanted

to leave that location as soon as possible.” Following Haldar to

the Ramsey Avenue temple location in a separate car, Lubbad

saw him talking on his cell phone during the drive. Lubbad

testified that he thought the people he encountered at the

Ramsey location, who were loudly performing music, looked

as if they were expecting a visit. Haldar’s lawyer objected to

this testimony as speculative, to which the prosecutor re-

sponded that Lubbad could testify about his own perception of

the situation. The court allowed the testimony to stand, and

Haldar’s lawyer offered no other objection.

Near the end of Agent Lubbad’s direct examination, the

prosecutor asked how DHS keeps track of organizations that

sponsor religious workers. Lubbad answered in part by once

more volunteering his statistic about the rate of fraud in R-1

visa applications, this time saying that “a very significant 33

percent [of applications] were – had some elements of fraud in

them.” Again Haldar’s lawyer made no objection.

Another agent from DHS, Scott Engelhardt, who became

involved with the investigation after it was transferred from

USCIS to U.S. Immigration and Customs Enforcement (ICE),

testified that he twice supervised the inspection of Haldar’s

luggage at O’Hare Airport when Haldar returned from trips to

India. The luggage contained completed R-1 visa applications

and supporting documents, including numerous passports,

letters to U.S. consulates, and training certificates that Haldar

had signed. Engelhardt also testified that he interviewed three

R-1 visa recipients sponsored by GVS-Milwaukee who were

No. 13-1238 5

working in secular jobs rather than for Haldar or GVS-Milwau-

kee or any other religious organization. These men, Engelhardt

explained, agreed to cooperate with the investigation.

The testimony of the three visa recipients, along with covert

audio recordings of two meetings one of them had with

Haldar, formed the heart of the government’s case. All three

men testified that Haldar had agreed to help them obtain visas

in exchange for payments ranging from $20,000 to $30,000. He

had then fulfilled his end of the bargain by making GVS-

Milwaukee their sponsoring organization and arranging for

them to be provided with training certificates and other

supporting documents by a colleague in India. The visa

recipients also testified that—although they had received

enough training before leaving India to enable them to pass for

Hare Krishna priests if interviewed by U.S. officials—they had

always intended, as Haldar knew full well, to work in secular

jobs in the United States.2

The recordings were made when one of the visa recipients,

Gurpreet Singh, wore a recording device to two meetings with

Haldar. According to the translated transcript of the first

meeting, Singh explained to Haldar that his visa would soon

expire and he needed help getting an extension. Haldar

responded by scolding Singh for having failed to pay all he

had promised for the visa: “You people did not pay my

money … it has been such a long time. … You should just think

2

A person need not be a priest or minister in his or her religion to receive

an R-1 visa, but the visa applicants here pretended to be priests. “Religious

worker” is a broader category, though the requirements for qualifying are

quite demanding. See 8 C.F.R. §§ 214.2(r)(1)(iii), (r)(3).

6 No. 13-1238

about … what a difficult job for me it was to get your job done.

…You should have paid my money … I have asked so many

times for it.” Singh promised to pay Haldar what he already

owed and also to pay more for the visa extension. He then

gave Haldar $500. Haldar laughed and said, “You owe me

$10,000 and you are paying me $500 only,” but he agreed to

accept installment payments and to assist with the visa

extension. At the second meeting, Haldar accepted another

$500 payment.

On cross-examination, Singh and another visa holder,

Kashish Chopra, admitted that their removal from the United

States had been deferred so that they could testify against

Haldar. Chopra also admitted that he had gotten married for

the sole purpose of staying in the United States. The third man,

Sanjiv Kumar, admitted that he initially denied to investigators

that he had ever paid Haldar any money. And all three

answered in the affirmative when asked if they would “do

anything” to stay in the United States. (None of the three had

been charged with a crime when they testified, but none had

been promised immunity either.)

In his closing argument, the prosecutor summed up the

evidence against Haldar, stressing the recordings and the visa

recipients’ testimony that Haldar was a party to the fraud.

Haldar’s lawyer countered that Haldar was himself a victim,

deceived by the visa recipients. He argued that the visa

recipients’ testimony about Haldar’s knowledge was not

credible. The three could not be believed on any subject, the

lawyer contended, because they had admitted on cross-

examination that they “would do whatever it takes” to stay in

the United States. Yes, he conceded, “This case does involve

No. 13-1238 7

fraud. It just doesn’t involve fraud on the part of Mr. Haldar.

It involves fraud on the part of three guys that got caught and

are doing whatever it takes to stay here.”

II. Analysis

The jury found Haldar guilty, and the district court

sentenced him to 37 months in prison. On appeal Haldar

argues that three aspects of his trial call for reversal and a new

trial. Because Haldar never raised these issues in the district

court, he has forfeited any appellate claim based upon them

and our review is only for “plain error.” A plain error is an

error that is obvious, affected the defendant’s substantial

rights—meaning that the defendant likely would have been

acquitted otherwise—and seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.

United States v. Jones, 739 F.3d 364, 368 (7th Cir. 2014). In effect,

a finding of plain error says that an error was so obvious and

prejudicial that the district judge should have intervened

without being prompted by an objection from defense counsel.

See United States v. Alexander, 741 F.3d 866, 870 & n.1

(7th Cir. 2014).

A. Questioning the Religious Legitimacy of GVS-Milwaukee

During his opening statement, the prosecutor said that

Haldar “identified himself” as GVS-Milwaukee’s founder and

president and “held himself out” as holding various other

titles. Haldar argues that this unfairly insinuated that he was

a charlatan and that GVS-Milwaukee was a sham religious

organization. This insinuation was reinforced, Haldar says, by

the testimony of Agent Lubbad, who not only said that the

people he saw at the second temple location were putting on

8 No. 13-1238

a show for him but also suggested a high likelihood of fraud by

citing the statistic that one-third of all R-1 visa applications

were sponsored by “completely fraudulent” organizations or

had “some elements of fraud” in them. Haldar argues that the

prosecutor’s statements constituted prosecutorial misconduct

and that those statements and Agent Lubbad’s testimony were

substantially more prejudicial than probative, violating Federal

Rule of Evidence 403.

Haldar’s claim of prosecutorial misconduct is based on his

belief that any questioning of GVS-Milwaukee’s legitimacy was

barred by a promise the prosecutor made before the jury was

empaneled. The purported promise came in the context of a

request from Haldar’s lawyer that potential jurors be asked

during voir dire about their religious beliefs and views on

religious freedom, with the goal of identifying anyone who

might be intolerant of Hare Krishnas. The lawyer explained:

Hare Krishnas historically in this country have had

negative connotation. From movies where they’re

seen—for example, the movie Airplane. A recurring

theme. They’ve been made fun of. They’ve been the

subject of controversy throughout the 60’s, the 70’s.

And depending upon the age of the jurors they

could have various opinions on the Krishnas them-

selves from prior experience. And I think we at least

need to address their understanding of whether or

not they have those biases. And a big question at the

end of the day is, is this a bona fide religious organi-

zation? That’s part of the require-ment [for obtaining

a religious-worker visa], and I think we’re going to

get into it.

No. 13-1238 9

The judge responded that he did not think the government

was disputing whether “the GVS … was an established

religious organization,” and the prosecutor confirmed, “No,

we’re not disputing that.” The judge then explained that he

would ask prospective jurors about any prejudice against the

Hare Krishna religion but would not inquire into their religious

beliefs.

We accept the premise that a prosecutor who promises not

to raise certain issues during trial but nonetheless does so—at

least without warning and an opportunity for the defense to

object—may engage in misconduct. Cf. United States v. Melvin,

730 F.3d 29, 32 (1st Cir. 2013) (prosecutor’s use of proffered

information at trial after assuring defendant that he would not

so use it violated due process). But we cannot conclude that

such a promise was broken in this case, let alone that there was

a plain error.

First, an assurance regarding GVS-Milwaukee would not

necessarily extend to Haldar personally. He was being charged

with conspiracy to defraud the United States, so attacks on his

sincerity or integrity could not have been a surprise. Second,

the prosecutor’s statements about Haldar’s use of religious

titles were not followed by an assertion that he did not hold

those titles; the implication was, at worst, that the prosecutor

did not know whether he actually held them. Third, but most

important, whether the prosecutor was making an assurance

regarding GVS-Milwaukee specifically or about Hare Krishnas

in general is not clear from the transcript, but the absence of

any objection from Haldar at trial weighs heavily in favor of

concluding that the prosecutor broke no promise.

10 No. 13-1238

Haldar also argues that the prosecutor’s opening statement

and Agent Lubbad’s testimony were substantially more

prejudicial than probative and so should have been excluded

under Federal Rule of Evidence 403. Calling into question

Haldar’s religious sincerity, he contends, inflamed the jurors

against him.

Accusations that a person is irreligious or has acted

contrary to a religion’s teachings can be inflammatory. See,

e.g., Slagle v. Bagley, 457 F.3d 501, 518 (6th Cir. 2006) (baseless

implication from prosecutor that defendant did not pray was

designed “to inflame the passions of the jury” but affirming

denial of habeas corpus relief); United States v. Giry, 818 F.2d

120, 133–34 (1st Cir. 1987) (prosecutor’s comparison of defen-

dant’s actions “to Peter’s denial of Christ” was “an irrelevant

and inflammatory appeal to the jurors’ private, religious

beliefs” but not a plain error). And sometimes such accusations

are highly prejudicial, as in Nichols v. American Nat’l Ins. Co.,

154 F.3d 875, 885, 890 (8th Cir. 1998), which reversed a defense

verdict where the jury learned that the plaintiff had an abor-

tion “even though it was against her religion,” a piece of

information that “increased the likelihood that the jury would

view her as immoral and not worthy of trust and reach its

verdict on such basis,” requiring a new trial.

But the prosecutor in Haldar’s case did not question his

faith, nor did the prosecutor criticize the Hare Krishna religion.

While the general theme of the prosecution undeniably was

that Haldar used his position as the leader of GVS-Milwaukee

to carry out the fraud, this theme was not improper. Haldar’s

misuse of his position was the essence of the crime he was

No. 13-1238 11

charged with committing. Nothing the prosecutor said during

his opening statement was unfairly prejudicial.

Aspects of Agent Lubbad’s testimony are more troubling.

Haldar focuses on Lubbad’s claim that one-third of R-1 visa

applications are fraudulent, his reference to a tip about GVS-

Milwaukee, his description of the first temple location he

visited as devoid of religious activity, and his stated belief that

the people at the second temple were putting on a show for his

benefit.

In addition to stressing religion’s special inflammatory

potential, Haldar argues that Lubbad’s testimony was equiva-

lent to the testimony that we found unduly prejudicial in

United States v. Klebig, 600 F.3d 700, 710 (7th Cir. 2010), where

the defendant was charged with firearms offenses and the jury

was told that the defendant had a sign on his door warning

that nothing inside was “worth dying for.” This testimony in

Klebig, combined with photographs of the defendant’s excep-

tionally cluttered home, had no probative value and instead

painted the defendant as a “perhaps unbalanced man” and a

“gun nut,” inviting the jury to convict him based on fear or

dislike rather than the evidence of a crime. Id. at 712–13.

Haldar also draws a comparison to United States v. Wolf,

787 F.2d 1094, 1098 (7th Cir. 1986), where irrelevant innuendo

implied that the defendant in a Mann Act case once had a

venereal disease, and to United States v. DeGeratto, 876 F.2d 576,

583–86 (7th Cir. 1989), where the defendant, charged with

crimes related to the interstate transport of stolen property,

was painted as a dangerous loan shark who was also running

a prostitution ring. In each case, we concluded that the

12 No. 13-1238

insinuations constituted unfairly prejudicial attacks on the

defendant’s character.

Agent Lubbad’s testimony was not as likely to instill fear in

the jurors as the testimony in Klebig or as likely to inflame them

as the testimony about abortion could have in Nichols. Nor do

we think Haldar’s character was maligned unfairly as in Wolf

and DeGeratto. Still, Lubbad’s provision of the statistic about

R-1 visa fraud was both irrelevant and unfair. “Evidence is

unfairly prejudicial if it induces the jury to decide the case on

an improper basis rather than on the evidence presented.”

United States v. Conner, 583 F.3d 1011, 1025 (7th Cir. 2009).

Telling the jurors that a large proportion of R-1 applications are

fraudulent encouraged them to conclude, without any evi-

dence specific to this case, that the applications Haldar spon-

sored had a strong chance of being fraudulent. The rest of

Agent Lubbad’s testimony was not especially prejudicial on its

own, but book-ended as it was by the irrelevant and prejudicial

statistic he provided twice, the testimony did exacerbate the

implication that the GVS-sponsored visas were likely to fall

into the supposedly massive pool of fraudulent applications.

A jury should no more have been told of that pool than it

should have been given overall conviction rates for the

category of crime that was charged.

The government tries to justify Agent Lubbad’s testimony

as a hedge against any accusation that the government had

unfairly singled out GVS-Milwaukee. No such accusation had

been made, though, and the government was playing with fire

when it chose to anticipate one with Lubbad’s flimsy assertion

of the one-third statistic.

No. 13-1238 13

Haldar, however, did not object at trial to Agent Lubbad’s

testimony about the rate of R-1 visa fraud. In fact, he made no

relevant objection to any part of Lubbad’s testimony. (His

objection that Lubbad’s description of people at the second

temple was speculative and his abandoned hearsay objection

to the tip testimony did not preserve any objection based on

Rule 403. See, e.g., United States v. Blount, 502 F.3d 674, 677–78

(7th Cir. 2007) (an objection on one ground does not preserve

a challenge based on another).) As a result, our review is only

for plain error, Jones, 739 F.3d at 368, and Haldar cannot satisfy

that standard.

A finding of plain error requires not only that the error be

obvious but that the defendant probably would not have been

found guilty if not for the error. Id. Considering the testimony

of the three visa recipients and the recordings of Haldar

seeking payment for R-1 visa sponsorship from a person he

knew was not a religious worker, Haldar was highly likely to

have been convicted regardless of the statistic Agent Lubbad

offered. A defendant is guaranteed a fair trial but not a perfect

trial. Brown v. United States, 411 U.S. 223, 231–32 (1973); United

States v. Harris, 271 F.3d 690, 704 (7th Cir. 2001). Agent

Lubbad’s testimony was not so prejudicial as to amount to a

plain error that denied Haldar a fair trial.

B. Prosecutor’s Closing Argument

Haldar next argues that the prosecutor in his closing

argument improperly bolstered the testimony of the visa

recipients with evidence not in the record and misrepresented

some evidence that was in the record. The prosecutor’s

purported misconduct is contained in this passage, which

14 No. 13-1238

followed the prosecutor’s acknowledgment that the visa

recipients’ testimony was inconsistent on some smaller points:

In fact, with respect to all of these different types of

information, that is the payment of a substantial fee

at Haldar’s direction, the payment in cash, the

payment in India in Rupees, the installments, the no

training as a Priest, all of those things, they remain

consistent all the way through. They were—that’s

what the witnesses told the Agents the first time

they met. That’s what they testified to here, with the

exception of Sanjiv Kumar, who as you heard from

him, held back the fact that he had paid for his

religious worker Visas. But he never held back on

the fact that this was fraud. On that, all these wit-

nesses have been definite from the beginning, and

continued to be here at the trial.

Haldar did not object to the prosecutor’s closing at the time.

A basic foundation of the law governing federal trials is

that lawyers, and especially prosecutors, should not refer to a

witness’s prior consistent statement if the earlier statement is

not in evidence, even though doing so does not automatically

call for reversal. See United States v. Tucker, 714 F.3d 1006, 1013

(7th Cir. 2013). The extra-record statements that Haldar

contends the prosecutor referred to are from the witnesses’

grand jury testimony, very little of which was introduced at

trial. But Haldar’s reading of the prosecutor’s words is unnatu-

ral. The prosecutor’s explicit reference to the visa recipients’

interviews with DHS agents made clear that the consistency he

was stressing was between those interviews, which the jury

No. 13-1238 15

heard about, and the trial testimony. There was no misconduct

here, let alone misconduct that could support a finding of plain

error.

Like any other lawyer, a prosecutor is also obliged to avoid

misrepresenting the evidence that was presented to the jury.

United States v. Wolfe, 701 F.3d 1206, 1214 (7th Cir. 2012).

Haldar contends that the prosecutor misstated the evidence in

his case by telling the jury in his closing argument that the visa

recipients agreed that “this was fraud” and that they had

received “no training” to be priests. The witnesses, Haldar

points out, never used the word “fraud” themselves, and they

explained that they were at least trained how to behave like

priests.

Considering the prosecutor’s statements in context, see

United States v. Roe, 210 F.3d 741, 747 (7th Cir. 2000), we

conclude that he did not misrepresent the visa recipients’

testimony. Although the witnesses did not say “fraud,” even

Haldar’s lawyer candidly acknowledged in his own closing

argument that what they described was fraud. The prosecu-

tor’s argument was certainly fair comment on the evidence.

And the prosecutor’s “no training” statement, while not

precise, was a permissible shorthand reminder of the wit-

nesses’ testimony that their training was meant to enable them

only to pass for priests rather than to work as priests. Again, we

find no prosecutorial misconduct.

C. Instruction on Religious Qualifications

Haldar never asked the court to instruct the jury that the

visa recipients were qualified religious workers, but he argues

now that the lack of such an instruction is reversible error. He

16 No. 13-1238

relies in part on our decision in McCarthy v. Fuller, 714 F.3d 971

(7th Cir. 2013), where we reversed a district court’s ruling that

a jury could decide whether the defendant was a member of a

Roman Catholic religious order. The church denied that the

defendant was a member of a religious order, and we held that

“once the court has satisfied itself that the authorized religious

body has resolved the religious issue, the court may not

question the resolution.” Id. at 976. Haldar also cites Hosanna-

Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694

(2012), which recognized the implied “ministerial exception”

in federal employment discrimination statutes, for the general

proposition that the government cannot choose a church’s

ministers. Notably, Haldar cites no case requiring a court to

give an instruction about religious qualifications when no such

instruction was requested, and we have found none.

Some of our cases treat a failure to request a jury instruction

as a waiver of any argument that such an instruction should

have been given, see, e.g., MMG Financial Corp. v. Midwest

Amusements Park, LLC, 630 F.3d 651, 658 (7th Cir. 2011), while

others consider the argument merely to have been forfeited,

see, e.g., United States v. Johnson, 655 F.3d 594, 605 (7th Cir.

2011). But even if we treat Haldar’s argument as only forfeited

and subject to plain-error review rather than waived, we find

no error, plain or otherwise. The jury was told to decide

whether Haldar sponsored the visa applicants with the

expectation that they would be religious workers. Performing

that task would have been impossible if an instruction had

required the jurors to accept that the applicants were religious

workers simply because Haldar had managed to obtain

certificates for them. Our analysis would be different if the

No. 13-1238 17

jurors had been asked to determine how much training is

required to become a Hare Krishna priest or whether the visa

recipients had been given enough, but no such questions were

posed to them. Haldar has not shown there was any error in

the jury instructions.

D. Cumulative Error

Haldar’s final argument is that even if none of the individ-

ual issues he has raised constituted plain error, they satisfy that

standard in the aggregate. To win reversal based on a

cumulative-error theory, Haldar would need to demonstrate

at least two errors and show that in combination they caused

his trial to be fundamentally unfair. United States v. Moore,

641 F.3d 812, 830 (7th Cir. 2011). Because we have found only

one minor error in Haldar’s trial (the admission of Agent

Lubbad’s statistic), we necessarily reject his cumulative-error

argument.

The judgment of the district court is AFFIRMED.