Opinion
No. 03-20077-01-13-JWL.
July 9, 2004
MEMORANDUM ORDER
A jury convicted defendant Shabber Ali on Count 1 and defendant Azheer Ul Islam on Count 3 of the Superseding Indictment returned in this case. The matter is before the court on defendants' motions for judgment of acquittal. (Docs. 242 and 244). As discussed more fully herein, the court denies the defendants' requested relief. In short, the government presented evidence sufficient for a rational juror to find both defendants guilty beyond a reasonable doubt on their counts of conviction. Moreover, Mr. Ali has failed to show that the interests of justice require a new trial.
While Mr. Ali requests a judgment of acquittal under Federal Rule of Criminal Procedure 29, his second ground for relief, set forth in his motion and supporting memorandum, does not challenge the sufficiency of the evidence underlying his conviction. Instead, he challenges the admission of a duplicate copy of a digitally recorded conversation. As such, the court construes Mr. Ali's second basis for relief as a request for a new trial under Federal Rule of Criminal Procedure 33.
BACKGROUND
On July 23, 2003, a grand jury returned a Superseding Indictment against multiple defendants, including Mr. Ali and Mr. Islam. In Count 1, the Superseding Indictment alleged that beginning shortly before April 26, 2001, and continuing until on or about February 8, 2003, in the District of Kansas and elsewhere, defendants Crystal Porter Jamil, Mohammad Kahn, Shabber Ali, and Tariq Mahmood knowingly and willfully combined, conspired, and agreed together and with each other and with others known and unknown to the grand jury to arrange marriages between Pakistani citizens and citizens of the United States in order for the Pakistani citizens to evade a provision of the United States immigration laws, in violation of Title 8, United States Code, Section 1325(c), all in violation of 18 U.S.C. § 371. In Count 3, the Superseding Indictment alleged that on or about June 15, 2001, in the District of Kansas, Zaheer Ul Islam did knowingly enter into a marriage with Angelle Charlene Herbert for the purpose of evading a provision of the immigration laws, in violation of Title 8, United States Code, Section 1325(c).On April 7, 2004, the defendants proceeded to trial. On April 14, 2004, the jury returned a guilty verdict against all defendants. Mr. Ali and Mr. Islam filed timely motions for judgment of acquittal on May 14, 2004. The government did not file a response.
Rule 29 requires a defendant to renew a motion for judgment of acquittal within 7 days after a guilty verdict or after the court discharges the jury, or within any other time the court sets during the 7-day period. Fed.R.Crim.P. 29(c)(1). Rule 33 provides identical deadlines. Fed.R.Crim.P. 33(b)(2). Within seven days of the jury verdict, the court ordered the defendants to file post-trial motions on or before May 14, 2004. (Doc. 230). As such, defendants' motions are timely.
STANDARD
Mr. Ali and Mr. Islam move for a judgment of acquittal. The court has also construed Mr. Ali's motion as a request for a new trial. As to the motions for judgment of acquittal, the court must uphold the jury's verdict of guilty if "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Haber, 251 F.3d 881, 887 (10th Cir. 2001) (quoting United States v. Schluneger, 184 F.3d 1154, 1158 (10th Cir. 1999)). The court "must ask `only whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find [defendant] guilty beyond a reasonable doubt.'" United States v. Magleby, 241 F.3d 1306, 1311 (10th Cir. 2001) (quoting United States v. Springfield, 196 F.3d 1180, 1184 (10th Cir. 1999)). "Furthermore, `the evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt.'" Id. (quoting United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000)).As to Mr. Ali's motion for a new trial, Federal Rule of Criminal Procedure 33 provides that "[t]he court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Fed.R.Crim.P. 33. "A motion for new trial under Fed.R.Crim.P. 33 is not regarded with favor and should be granted only with great caution." United States v. Custodio, 141 F.3d 965, 966 (10th Cir. 1998) (further quotation and citation omitted). The decision whether to grant a motion for new trial is committed to the sound discretion of the trial court. United States v. Stevens, 978 F.2d 565, 570 (10th Cir. 1992).
DISCUSSION
I. Motion for Judgment of Acquittal
Both Mr. Ali and Mr. Islam allege that there was insufficient evidence to support the jury's verdict. Because the defendants were convicted of different offenses, the court will analyze each defendant separately.
A. Shabber Ali: Conspiracy to Commit a Crime Against the United States
The jury convicted Mr. Ali on Count 1 of the Superseding Indictment, which charged him with conspiracy to commit a crime against the United States in violation of 18 U.S.C. § 371. The underlying object of the charged conspiracy was an agreement to arrange marriages between Pakistani citizens and citizens of the United States in order for the Pakistani citizens to evade a provision of the United States immigration laws, in violation of Title 8, United States Code, Section 1325(c). "Under 18 U.S.C. § 371, a conviction for conspiracy requires the government to prove: (1) the defendant's agreement with another person to violate the law; (2) his knowledge of the essential objective of the conspiracy; (3) his knowing and voluntary involvement; and (4) interdependence among the alleged coconspirators." United States v. Rahseparian, 231 F.3d 1267, 1272 (10th Cir. 2000).
The government's evidence suggested that the charged conspiracy originated with the marriage of Crystal Porter to her putitive spouse, Khurrum Jamil. In exchange for her agreement to marry Mr. Jamil and complete relevant immigration paperwork so that Mr. Jamil could obtain a green card, Ms. Porter-Jamil received $500 up front and $60 a month in maintenance. She then received $1,000 after completing paper work at an attorney's office, and $1,000 when she completed the relevant forms at the United States Citizenship and Immigration Services (formerly "Immigration and Naturalization Service" or "INS"). During her marriage to Mr. Jamil, Shabber Ali, among other individuals, provided her with $60 monthly maintenance payments.
After she successfully entered into the marriage and completed the immigration interviews, Mohammad M. Kahn asked her to recruit other females to enter into similar arrangements for other Pakistani men. Because she found these individuals to be nice and because she would be paid for her efforts, Ms. Porter-Jamil agreed to recruit other putative wives. Ms. Porter-Jamil arranged several marriages to Pakistani men. In particular, Ms. Porter-Jamil arranged the marriage between Tamatha LaShawn Stubblefield and Faiz Rasool. Mr. Ali was present at this marriage ceremony. Mr. Ali also paid Ms. Stubblefield monthly maintenance payments of $60. Ms. Porter-Jamil also arranged the marriage between Angela Herbert and Mr. Islam. Mr. Ali took steps to facilitate this marriage. On at least one occasion, Mr. Ali asked Ms. Jamil-Porter when Mr. Islam could plan his trip to Kansas. A jury could infer from this inquiry that Mr. Ali was inquiring when Ms. Jamil-Porter would be able to successfully recruit the next female so that Mr. Islam could marry her and acquire a green card. Ms. Jamil-Porter convinced Ms. Herbert to enter into the marriage. Mr. Ali also attended that ceremony.
On February 8, 2003, Mr. Ali met with Tamatha Stubblefield. Unbeknownst to Mr. Ali, the government had placed a device on the person of Ms. Stubblefield so that she could record her conversation with Mr. Ali. During this encounter, Mr. Ali paid Ms. Stubblefield $60. Mr. Ali also advised Ms. Stubblefield that if anyone came to her home to inquire about her marriage she should: (1) deny the fact that she married Mr. Rasool for money; (2) immediately thereafter, call Mr. Ali so that he could send Mr. Rasool over to her residence; and (3) he advised her not to discuss her marriage issues on the telephone.
Taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find that Mr. Ali's advice to Ms. Stubblefield, his payment of maintenance to the brides, his presence at marriage ceremonies; his inquiry to Ms. Jamil-Porter regarding when Mr. Islam could travel to Kansas, along with the overwhelming evidence that Ms. Porter-Jamil was involved in a conspiracy to arrange sham marriages is sufficient to prove his guilt beyond a reasonable doubt. See, e.g, United States v. Amahia, 825 F.2d 177, 182 (8th Cir. 1987) (finding evidence sufficient to convict defendant where he told spouse to lie to INS agents about their sham marriage and not to tell them that he had paid her any money to marry him); United States v. Tagalicud, 84 F.3d 1180, 1182 (9th Cir. 1996) (finding evidence was sufficient to establish the requisite mens rea for conspiracy because jury could have concluded that defendant lied about his address, and lied about taking money for the marriage, in order to conceal immigration fraud, and jury could have inferred that he would not have lied if he did not have the requisite intention to commit the underlying offense). As such, the court denies Mr. Ali's motion for judgment of acquittal.
B. Zaheer Ul Islam: Marriage Fraud
The jury convicted Mr. Islam on Count 3 of the Superseding Indictment, which charged him with knowingly entering into a marriage with Angelle Charlene Herbert for the purpose of evading a provision of the immigration laws, in violation of 8 U.S.C. § 1325(c). To convict Mr. Islam on this charge, the government had to prove beyond a reasonable doubt that: (1) Mr. Islam, an alien, knowingly entered into a marriage; (2) that the marriage was entered into for the purpose of evading any provision of the immigration laws; and (3) that the alien knew or had reason to know of the immigration laws. See United States v. Chowdhury, 169 F.3d 402, 406-07 (6th Cir. 1999).
Defendant primarily challenges the sufficiency of the second element, that the marriage was entered into for the purpose of evading a provision of the immigration laws. When viewed in the light most favorable to the government, however, the court finds that a rational juror could find that Mr. Islam entered into a sham marriage to evade the immigration laws. At trial, Ms. Porter-Jamil testified that she recruited Angelle Charlene Herbert-Islam for the marriage. Ms. Porter-Jamil approached Angelle Charlene Herbert-Islam and told her that she knew a man that needed to get married so that he could obtain legal residency in this country. In negotiating the arrangement, Ms. Porter-Jamil testified that she informed Ms. Herbert-Islam that she would receive $500 initially, and $60 a month for maintenance. Additionally, Ms. Porter-Jamil told her that she would receive $1,000 after completing the immigration interviews and additional money upon completing paper work at an attorney's office. She told Ms. Herbert that she would not have to live with Mr. Islam, but that they would need to create financial records that suggested that they were in a legitimate marriage. The government also presented evidence suggesting that Mr. Islam was not ignorant of the fraudulent arrangement. Ms. Porter-Jamil testified that Mr. Islam would call her place of business from New York to speak with Mr. Ali and others about when he should travel to Kansas. She also testified that when Mr. Islam came to Kansas City, Kansas, she was directed to bring Ms. Herbert-Islam to her place of employment. While the defendant offered several financial records, bills and invoices in an effort to demonstrate the validity of their marriage, nearly all of these records were dated after January 27, 2003, the date investigators first came to speak with Ms. Herbert-Islam about her marriage to Mr. Islam.
Though Ms. Herbert testified that she was not in love with Mr. Islam at the time, the couple married on June 15, 2001. Thereafter, Ms. Herbert-Islam, accompanied by Mr. Islam, completed the paper work and interview process with immigration officials, which ultimately lead to Mr. Islam obtaining lawful resident status. In the immigration paper work, Ms. Herbert-Islam and Mr. Islam listed their address as 13303 W. 105th St. in Lenexa, Kansas. The government, however, presented documentary evidence, in the form of food stamp applications submitted by Ms. Herbert-Islam, wherein Ms. Herbert-Islam reported living at residences other than the one listed in these immigration documents. Moreover, these applications required her to list any other individuals that lived in her household, and Ms. Herbert-Islam did not list Mr. Islam as a member of her household.
Defendant spends a great deal of time highlighting evidence that could support an inference that the marriage was valid. Unfortunately for Mr. Islam, in considering his motion for judgment of acquittal, the court cannot weigh the evidence or consider the credibility of witnesses. Burks v. United States, 437 U.S. 1, 16 (1978). Rather, the court must "view the evidence in the light most favorable to the government and then determine whether there is sufficient evidence from which a jury might properly find the accused guilty beyond a reasonable doubt." United States v. White, 673 F.2d 299, 301 (10th Cir. 1982). When viewed in its totality and in the light most favorable to the government, a rational juror could conclude beyond a reasonable doubt that Mr. Islam entered into this marriage for the purpose of evading immigration laws. As such the court denies his motion for judgment of acquittal. II.
Motion for New Trial
During the government's case-in-chief, it moved to admit a duplicate copy of a digital surveillance recording of a conversation between Mr. Ali and Ms. Stubblefield. The duplicate copy was purported to be recorded on an audio cassette tape that the government identified as Exhibit 36. At trial, the government played the original digital recording to the jury. Rather than admitting the original recording, however, the government offered and the court admitted a duplicate audio cassette tape under Federal Rule of Evidence 1002. After the case was submitted to the jury, the parties realized that the purported duplicate admitted into evidence was not, in fact, a copy of the original digital recording. Instead, the audio cassette was a recording of a police interview. To remedy this inadvertent mistake, the court permitted the government to replace this audio cassette tape with the cassette tape that contained the duplicate of the digital recording that the government thought it had originally offered and the court thought it had admitted. In his motion, Mr. Ali argues that he is entitled to a judgment of acquittal because the court should not have allowed the government to correct its mistake by replacing the cassette tape that contained a recording of a police interview with the cassette tape that contained a duplicate recording of Ms. Stubblefield's conversation with Mr. Ali. As noted above, the court construes this argument as a motion for a new trial under Rule 33.
Mr. Ali cites no authority, and the court has found none in its independent research, suggesting that the court erred by allowing the government to replace the inadvertently admitted cassette tape with the one that the government thought it was offering and the court believed it had admitted. Moreover, the court finds that the ends of justice do not warrant relief for several reasons. First, the government played the original digital recording of the conversation between Mr. Ali and Ms. Stubblefield to the jury, without any objection from counsel. As such, the jury was exposed to the substance and content of their conversation, whether or not a duplicate copy of this recording was received into evidence. Second, the defendants, the government and the court all believed that exhibit 36 was an audiocassette containing a duplicate copy of the digital recording, and no party objected to its admission at that time. Agent Kenneth Lovesee testified that exhibit 36 was a cassette tape that contained a recording of the conversation between Tamatha Stubblefield and Shabber Ali. After laying a proper foundation, the government moved to admit the cassette. The court admitted the cassette, without objection from counsel. There is no reason to believe that the court prejudiced Mr. Ali's rights by permitting the government to replace the incorrect cassette tape with the one that the parties agreed to admit during trial. Finally, the defendant cannot argue that the audio tape containing a recording of the police interview prejudiced his rights because the jury never heard that tape.
Given that the jury heard the original digital recording of the conversation and that counsel did not object to the admission of the purported duplicate copy at trial, the ends of justice do not warrant relief. This is particularly true given that a motion for new trial under Rule 33 is not regarded with favor and should be granted only with great caution. Custodio, 141 F.3d at 966 (10th Cir. 1998). As such, the court denies Mr. Ali's request for relief on this ground.
CONCLUSION
In the end, the court denies the defendants' motions in their entirety. The court denies the motions for judgment of acquittal because the government provided sufficient evidence for a rational juror to convict Mr. Ali and Mr. Islam on their counts of conviction. The claims that the court construed as a motion for new trial are denied because Mr. Ali failed to demonstrate that the interests of justice necessitate a new trial.
IT IS THEREFORE ORDERED THAT defendants' motions for judgment of acquittal (Docs. 242 and 244) are denied in their entirety.