22-2092 United States v. Alharbi

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 5th day of March, two thousand twenty-four. 4 5 PRESENT: 6 RICHARD C. WESLEY, 7 MICHAEL H. PARK, 8 ALISON J. NATHAN, 9 Circuit Judges. 10 _______________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 22-2092 17 18 Fadl Mohamad Alharbi, AKA Fadl Mohamed Alharbi, 19 20 Defendant-Appellant. 21 _______________________________________ 22 23 FOR APPELLEE: JOHN-ALEX ROMANO, Attorney, 24 Appellate Section, Criminal Division, 25 United States Department of Justice 26 (Lisa H. Miller, Deputy Assistant 27 Attorney General, and Michael F. 28 Perry, Assistant United States 29 Attorney, on the brief ) for Nicole M. 30 Argentieri, Acting Assistant Attorney 31 General, Washington, D.C., and 32 Carla B. Freedman, United States 1 Attorney for the Northern District of 2 New York, Syracuse, NY. 3 4 FOR DEFENDANT-APPELLANT: STEPHEN N. PREZIOSI, Law Office of 5 Stephen N. Preziosi P.C., New York, 6 NY. 7

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

9 New York (Scullin, J.).

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

11 DECREED that the judgment of the district court is AFFIRMED.

12 Following a jury trial in the Northern District of New York, Defendant-Appellant Fadl

13 Mohamad Alharbi was convicted of unlawfully procuring naturalization, in violation of 18 U.S.C.

14 § 1425(a), and making a false statement in a passport application, in violation of

.

15 The district court imposed a time-served sentence, two years of supervised release, and a $10,000

16 fine. It also ordered that Alharbi’s citizenship be revoked. We assume the parties’ familiarity

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

18 I. Alharbi failed to show a tactical delay or concrete prejudice from any delay.

19 Alharbi argues that the government’s delay in bringing charges against him violated his

20 constitutional rights. The district court concluded that he failed to demonstrate either that the

21 government intentionally delayed prosecution to gain a tactical advantage or that any delay

22 actually—rather than speculatively—prejudiced his defense. We review the denial of a motion

23 to dismiss as a mixed question, reviewing legal conclusions de novo and factual findings for clear

24 error. United States v. Van Der End,

(2d Cir. 2019); see United States v.

25 Sanchez,

(2d Cir. 2000) (de novo review of denial of motion to dismiss alleging

26 due process violation). We conclude that the district court correctly denied the motion to dismiss.

2 1 Alharbi’s indictment was brought within the statute of limitations, which is 10 years for

2 both crimes.

. Prosecutions brought within the statute of limitations carry “a

3 strong presumption of validity” and “are only rarely dismissed.” United States v. Cornielle, 171

(2d Cir. 1999). Nevertheless, a pre-indictment delay can violate the Due Process

5 Clause of the Fifth Amendment if it “cause[s] substantial prejudice to [a defendant’s] rights to a

6 fair trial” and if “the delay was an intentional device to gain tactical advantage over the accused.”

7 United States v. Marion,

(1971). The defendant “bears the ‘heavy burden’ of

8 proving both” prongs of this two-part test, namely that “he suffered actual prejudice because of

9 alleged pre-indictment delay and that such delay was a course intentionally pursued by the

10 government for an improper purpose.” Cornielle, 171 F.3d at 752. “Actual prejudice” means

11 prejudice that is not speculative. United States v. Birney,

, 105–06 (2d Cir. 1982).

12 Alharbi points to his 2012 statements at the U.S. Embassy in Yemen as the basis on which

13 the government could have brought its charges. The government explained to the district court

14 that it did not bring the indictment in 2012 because its investigation was ongoing. The district

15 court correctly concluded that Alharbi failed to show that the government intentionally delayed

16 indictment to gain a tactical—rather than evidentiary—advantage. See United States v. Lovasco,

17

(1977) (requiring that delay be “solely to gain tactical advantage over the

18 accused” (quotation marks omitted)); see also United States v. Mickens, Nos. 20-258(L), 20-462,

19 20-630,

, at *2 (2d Cir. July 26, 2021) (“Accordingly, the evidence amply

20 supports the District Court’s conclusion that the delay was an ‘investigative delay,’ and not an

21 intentional protraction of proceedings ‘solely to gain tactical advantage over the accused.’”

22 (quoting Lovasco,

)). The district court also correctly noted that Alharbi failed to

23 identify evidence or witnesses rendered unavailable as a result of the government’s delay.

3 1 II. Neither the Court Interpreters Act nor Rule 604 applies to out-of-court translations.

2 Alharbi next argues that the admission of his videotaped interview with federal agents

3 violated both the Court Interpreters Act and Federal Rule of Evidence 604 because the federal

4 agent who translated from English to Arabic for him was not a certified court interpreter. We

5 review the admission or exclusion of evidence for an abuse of discretion. United States v. Gatto,

6

(2d Cir. 2021). But Alharbi raises this argument for the first time on appeal;

7 we thus review for plain error. United States v. Donziger,

, 302–03 (2d Cir. 2022).

8 The Court Interpreters Act,

, applies in “judicial proceedings instituted by

9 the United States,” including “all proceedings . . . conducted in, or pursuant to the lawful authority

10 and jurisdiction of a United States district court.”

§ 1827(j). Federal Rule of Evidence 604

11 states that an “interpreter must be qualified and must give an oath or affirmation to make a true

12 translation,” but it applies “to proceedings before . . . United States district courts,” among other

13 courts. Fed. R. Evid. 1101(a). By their plain terms, then, neither the Court Interpreters Act nor

14 Rule 604 applies to a law enforcement officer’s out-of-court interview of a suspect, witness, or

15 victim. See United States v. Ben-Shimon,

(2d Cir. 2001) (rejecting a defendant’s

16 objection to the authentication of a transcript translated by an agent and a cooperating witness even

17 though the cooperator was “not a certified translator”). Moreover, Alharbi did not contest the

18 accuracy of Officer Mere’s translations at trial. See United States v. Huang,

, 1136

19 (2d Cir. 1992) (“Objections to the adequacy of translation may be waived . . . and the ultimate

20 question is whether the translator’s performance has rendered the trial fundamentally unfair.”

21 (citing United States v. Villegas,

(2d Cir. 1990))). The district court did not

22 err by admitting the videotaped interview.

4 1 III. Alharbi’s requested jury instruction was not supported by the evidence.

2 The district court refused Alharbi’s request that the jury be instructed that it could define

3 “parent” to extend beyond someone’s biological parents. Reviewing de novo, see United States

4 v. Gonzalez,

(2d Cir. 2005), we agree with the district court that the evidence

5 did not support Alharbi’s requested instruction. A defendant is entitled to a requested instruction

6 submitting a defense theory to the jury only if “there is a foundation in the evidence.” United

7 States v. Podlog,

(2d Cir. 1994). There was no credible evidence to support

8 Alharbi’s theory that his uncle legitimated him. Alharbi testified that his uncle never formally

9 adopted him in Yemen because Yemen does not permit adoptions. And Alharbi conceded that

10 he is not the biological son of his aunt and uncle. Alharbi’s sole evidence that he was his uncle’s

11 “legitimate” son was a pair of Yemeni court documents that he admitted were falsified both in

12 interviews with federal agents and again at trial. In short, Alharbi failed to identify any evidence

13 that a jury could credit to support the theory that his uncle “legitimated” him as his son. Without

14 an evidentiary basis to support the proposed instruction, the district court correctly rejected it.

15 Alharbi points to a New York Court of Appeals case, Brooke S.B. v. Elizabeth A.C.C.,

16

(2016), to argue that New York has expanded “parent” to include nonbiological,

17 nonadoptive adults who accept responsibility for a child. But even assuming Brooke—a New

18 York case decided 25 years after Alharbi first applied for a visa to move to Michigan—applies, it

19 would not help Alharbi. Brooke determined the meaning of “parent” to include nonbiological,

20 nonadoptive partners who agreed to conceive and raise a child together.

. Alharbi

21 offered no evidence that his uncle and mother (who are siblings) agreed to conceive and raise him.

22 So even if Brooke were relevant as the law of the child or parent’s domicile for purposes of

23 legitimation under

(b)(1)(C), it would make no difference here. See Schreiber v.

5 1 Cuccinelli,

, 773–74 (10th Cir. 2020) (opinion of Holmes, J.) (concluding that

2 “legitimated” in § 1101(b)(1)(C) necessarily requires a biological link between parent and child);

3 id. at 789 (Tymkovich, C.J., concurring in the judgment) (concluding that “legitimated” may not

4 require a biological link if the law of the child or parent’s domicile does not so require). The

5 district court did not err by declining to give Alharbi’s requested instruction about parentage.

6 IV. The jury’s verdict was amply supported.

7 Alharbi’s final argument is that there was insufficient evidence for the jury to convict him

8 on either count. He moved after the government’s case and at the close of evidence for a

9 judgment of acquittal under Federal Rule of Criminal Procedure Rule 29. The district court

10 denied the motion, finding that the documentary evidence and Alharbi’s own admissions that he

11 knew that his uncle was not his father could support a guilty verdict on both counts. We review

12 the denial of a Rule 29 motion de novo, taking all facts in the light most favorable to the jury’s

13 verdict. United States v. Avenatti,

, 183–84 (2d Cir. 2023).

14 The government’s evidence at trial was not insufficient. Alharbi admitted, both orally

15 under oath and in a writing signed under the penalty of perjury, that statements on his 2010

16 naturalization and passport applications were false. Other evidence corroborated these

17 admissions. For example, his 2015 passport application listed his birth parents—people other

18 than those listed on his 2010 application—and his 2019 letter to his congressman admitted that he

19 immigrated under his uncle’s name, then changed his legal name back to his “original” name when

20 he was naturalized. A jury could reasonably find not only that Alharbi was aware of the lies on

21 the naturalization and passport applications, but that he was aware of the legal significance of his

22 relationship to his uncle. That is, a jury could find that Alharbi knew that his uncle was not his

23 “parent” when he sought an F-11 visa, which is restricted to children of U.S. citizens. Finally,

6 1 for the reasons stated above, the jury was not required to credit Alharbi’s theory that he was his

2 uncle’s legitimated son under Yemeni law. The jury’s verdict was amply supported, and the

3 district court properly denied Alharbi’s Rule 29 motion.

4 * * *

5 We have considered Alharbi’s remaining arguments and find them to be without merit.

6 Accordingly, the judgment of the district court is AFFIRMED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk of Court 9

7