19-158 (L) United States v. Lita, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of January, two thousand twenty.

Present: REENA RAGGI, DEBRA ANN LIVINGSTON, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 19-158 (L) 19-213 (Con) 19-252 (Con) DALIA LITA, ELINA RAHMAN, and LUBNA RAHMAN,

Defendants-Appellants. _____________________________________

For Appellee: CARINA H. SCHOENBERGER, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY

For Defendant-Appellant Dalia Lita: JAMES P. EGAN, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender, Syracuse, NY

1 For Defendant-Appellant Elina Rahman: BENJAMIN GRUENSTEIN, Cravath, Swaine & Moore, LLP, New York, NY

For Defendant-Appellant Lubna Rahman: PETER J. TOMAO, Garden City, NY

Appeal from a judgment of the United States District Court for the Northern District of

New York (Thomas J. McAvoy, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Dalia Lita, Elina Rahman, and Lubna Rahman (collectively, “Defendants”) appeal from

their respective convictions, entered on January 14, 2019, following trial for conspiracy to commit

visa fraud in violation of

and 1546(a). The government introduced evidence at

trial that, in order to obtain visas, Defendants concealed, among other things, that Elina and Lubna

had previously resided in the United States. On appeal, Defendants primarily challenge the

admission of Elina and Lubna’s visa applications, the sufficiency of the evidence, and a jury

instruction regarding an uncalled consular officer. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

I. Admissibility of Visa Applications

We review the district court’s evidentiary rulings for abuse of discretion. See United

States v. Williams,

(2d Cir. 2019). The government contends that Defendants

objected only on grounds of authenticity in the district court, and that their hearsay claims must

therefore also satisfy the plain-error standard of review. We need not resolve whether plain-error

review applies because the district court did not abuse its discretion in admitting the visa

applications and, even if it had, any error would have been harmless.

Turning first to authenticity, Federal Rule of Evidence 901(a) requires “the proponent [to]

produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

2 It is not “a particularly high hurdle” and may be cleared by “circumstantial evidence.” United

States v. Dhinsa,

, 658–59 (2d Cir. 2001) (quotation marks and citation omitted).

The district court found that the visa applications were satisfactorily authenticated as public

records. See Fed R. Evid. 901(b)(7). Defendants contend that the government failed to lay a

sufficient foundation to establish such authenticity. We disagree. “Public records are regularly

authenticated by proof of custody, without more.” Fed. R. Evid. 901, Advisory Committee Notes

(1972). A representative of U.S. Citizenship and Immigration Services testified to the agency’s

creation and custody of the Rahmans’ A-Files, which contained the visa applications. Such

evidence was sufficient to clear the relatively low hurdle posed by Rule 901.

Turning to whether the visa applications contain hearsay, the district court concluded that

they were admissible as business records. The government does not defend this rationale on

appeal, instead arguing that the applications were not admitted for their truth or, in the alternative,

that their contents fall within Rule 801(d)(2)’s hearsay exemptions. We agree. To the limited

extent that statements in the applications were offered for their truth, such statements were properly

admitted pursuant to Rule 801(d)(2) as either party admissions or statements of a co-conspirator.

The government introduced substantial evidence, detailed below, that all three sisters

participated in a conspiracy to commit visa fraud and that the applications were prepared in

furtherance of this conspiracy. See United States v. Gupta,

(2d Cir. 2014)

(noting that statements are admissible pursuant to Rule 801(d)(2)(E) when (a) “there was a

conspiracy, (b) . . . its members included the declarant and the party against whom the statement

is offered, and (c) . . . the statement was made during the course of and in furtherance of the

conspiracy”) (quotation marks and citation omitted)); see also Bourjaily v. United States,

, 176–81 (1987). To the extent Dalia made representations in the applications on behalf of

3 either Elina or Lubna, those statements are admissible against her as the statements of an opposing

party and against her sisters as co-conspirator statements. On the other hand, to the extent Elina

and Lubna completed the applications, then such statements are admissible for the inverse reasons:

They are admissible against each sister pursuant to Rule 801(d)(2)(A) or (B), and against Dalia

pursuant to Rule 801(d)(2)(E).

The only statement in the applications that does not qualify as a statement of an opposing

party or as a co-conspirator statement is the attestation of the consular officer that Elina and

Lubna’s attestations were “[s]ubscribed and sworn to before [him or her].” J.A. 469, 494. That

statement, however, was not offered for its truth. The government did not rely upon the consular

officer’s attestation to argue that Elina and Lubna has signed the applications and sworn to the

truth of their contents.

Thus, even assuming the visa applications were not admissible as business records, such

error was harmless because the applications were admissible either because they were not offered

for their truth or under Rule 801(d)(2). See, e.g., United States v. Vargo,

, 114–

15 (2d Cir. 2006) (rejecting reasoning below and concluding that error was harmless because

statement was admissible under Rule 801(d)(2)(E)); Gonzalez v. Napolitano,

(2d

Cir. 1996) (summary order) (“Because the conviction was undisputedly admissible on this

alternative theory, any error on the part of the district court is harmless.”). And, because the visa

applications were admissible as an opposing party’s statements, Defendants’ Confrontation Clause

challenge is without merit. See Giles v. California,

, 374 n.6 (2008); Crawford v.

Washington,

(2004) (“Most of the hearsay exceptions covered statements that by

their nature were not testimonial—for example, business records or statements in furtherance of a

conspiracy.”).

4 II. Sufficiency of the Evidence

Evidence is sufficient to convict if, “after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia,

(1979). Where the crime

is conspiracy, “there must be some evidence from which it can reasonably be inferred that the

person charged with conspiracy knew of the existence of the scheme . . . and knowingly joined

and participated in it.” United States v. Snow,

(2d Cir. 2006) (quotation marks

and citation omitted). Once again, the government contends that it is entitled to an even more

deferential standard of review because Defendants failed to renew their motion for acquittal after

Dalia presented evidence at trial. Because we conclude that Defendants’ sufficiency challenge

fails even under the usual standard, we do not address this argument.

Defendants argue that the government failed to produce sufficient evidence that Elina and

Lubna knowingly submitted applications containing false information. Not so. As Defendants

themselves concede, the government presented evidence that all three sisters lived together when

the conspiracy began; Elina and Lubna consistently used the names Alina Habib and Lubna Habib

Ruma until Dalia submitted visa petitions on their behalf under the names Elina and Lubna

Rahman; Elina and Lubna remained in the United States until Dalia obtained visas for them, at

which point they traveled to Bangladesh under the surname Habib before returning with the

surname Rahman; the two sisters had an incentive to participate in the scheme, namely obtaining

visas; the Rahmans’ signatures appear on visa applications that falsely stated they had never been

in the United States; and the Rahmans completed, and in some instances signed, other forms in

English, including a medical form, indicating that they were able to read and understand English.

This evidence is plainly sufficient to sustain Defendants’ convictions. See United States v.

5 Santos,

(2d Cir. 2008) (“interested cooperation” or having “a stake in a venture”

coupled with participation in the scheme is sufficient to establish conspiracy).

III. Jury Instructions

Finally, Defendants argue that the district court erred by failing to give a “missing witness”

instruction regarding the government’s failure to call the consular officer who signed Elina and

Lubna’s visa applications. In the alternative, Defendants argue that the “uncalled witness”

instruction provided was flawed. Neither argument has merit.

Turning first to the “missing witness” charge, such an instruction “permits the jury to draw

an adverse inference against a party failing to call a witness when the witness’s testimony would

be material and the witness is peculiarly within the control of that party.” United States v. Caccia,

(2d Cir. 1997). “We review a district court’s refusal to provide a requested

missing witness instruction for abuse of discretion and actual prejudice.” United States v. Ebbers,

(2d Cir. 2006).

Defendants assert that the consular officer was peculiarly within the government’s control

because of the difficulties they would have faced in subpoenaing a State Department employee

stationed abroad. Nevertheless, Defendants never asked the government to track down the

consular officer or to provide them with any information regarding such officer. We have

previously held that a defendant’s failure to inquire about a possible missing witness suggests that

a witness was not actually unavailable. United States v. Adeniji,

(2d Cir. 1994);

United States v. Nichols,

(2d Cir. 1990). And, as Defendants concede, the

State Department provides a mechanism by which private parties may subpoena consular officers.

Moreover, “[b]ecause we recognize that an aura of gamesmanship frequently accompanies

requests for missing witness charges, . . . [w]e are particularly disinclined to second-guess [district

6 court] decisions [regarding such changes] where, as in this case, a judge refrains from commenting

on the inference to be drawn on the facts before the jury and allows counsel instead to argue the

inference.” United States v. Gaskin,

(2d Cir. 2004) (quotation marks and

citations omitted). Defendants argued that the absence of the consular officer created reasonable

doubt regarding Defendants’ guilt. Accordingly, we discern neither an abuse of discretion in nor

any prejudice flowing from the district court’s decision not to give a “missing witness” charge.

As to Defendants’ argument regarding the district court’s “uncalled witness” instruction,

we review claims of flawed jury instructions de novo, “reversing only where, viewing the charge

as a whole, there was prejudicial error.” United States v. Sheehan,

(2d Cir.

2016). Where a witness is equally available to both sides, the district court has “discretion to (1)

give no instruction and leave the entire subject to summations, (2) instruct the jury that no

unfavorable inference may be drawn against either side, or (3) instruct the jury that an adverse

inference may be drawn against either or both sides.” Caccia,

. The district

court here opted to follow the second path.

Defendants argue that the district court’s instruction nevertheless suffered from two flaws:

(1) it instructed jurors to “not be concerned with why someone was not called as a witness,” as

opposed to directing jurors to “not draw any inferences” based on the absence of a witness, and

(2) the instruction failed to emphasize that the defendant bears no burden in a criminal case. J.A.

334. Neither of these supposed errors rendered the instruction infirm. At oral argument,

counsel for Elina Rahman conceded that the instruction was not legally erroneous, but, rather,

argued that it was likely to confuse the jury. We identify no evidence of such confusion on the

face of the instruction or in the record. Looking at the whole instruction, the court explained that

the jury “must decide this case based on the evidence or lack of evidence presented” immediately

7 before stating that jurors “should not be concerned with why someone was not called as a witness.”

J.A. 334 (emphasis added). In context, the charge urged jurors to consider whether sufficient

evidence was presented to warrant a particular finding and not to infer anything from the absence

of a witness. Further, the court’s instruction expressly stated that “the defendant has no

obligation to call any witnesses or present any proof.”

Accordingly, Defendants have failed

to establish that they suffered any prejudice from the jury instruction provided, even assuming,

arguendo, it was erroneous in some respect.

* * *

We have considered Defendants’ remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

8