Opinion
S1 01 Cr. 635 (CSH)
February 11, 2002
MEMORANDUM OPINION AND ORDER
The defendant in this case, Eric Newton, is charged in a 14-count superseding indictment with two counts of conspiracy to violate the federal laws against making false statements in a matter within the jurisdiction of the United States, 18 U.S.C. § 1001, and visa fraud, 18 U.S.C. § 1542; five counts of making false statements; and seven counts of visa fraud. Trial is scheduled to commence on February 19, 2002. This Opinion resolves several in limine matters raised by the government in a motion filed on January 25, 2002.
BACKGROUND
Newton has been an agent of the United States Drug Enforcement Agency (the "DEA") since 1992. From 1996 to 2000, Newton was stationed in Lagos, Nigeria as a Deputy Country Attache assigned to the United States embassy. His job required him to investigate narcotics trafficking between West Africa and the United States and to coordinate drug interdiction efforts with local law enforcement agencies including the Nigerian National Drug Law Enforcement Agency (the "NDLEA"). In furtherance of his duties, Newton sometimes procured U.S. non-immigrant visas for Nigerians with whom he was working for legitimate work-related reasons.
Newton was empowered to procure visas by making what are known as "A" referrals to State Department officials at the U.S. embassy in Lagos who are charged with the issuance of visas. An "A" referral is a method by which a U.S. government official certifies to the State Department that he or she knows the applicant and that the issuance of a non-immigrant visa to that individual would be in the best interests of the referring agency and the United States. "A" referrals differ from the usual visa application process chiefly in that they dispense with the normal interview requirement in which State Department employees evaluate the applicant's background and reasons for seeking the visa.
The government charges that Newton took advantage of his position by making fraudulent "A" referrals for seven Nigerian nationals during the summer of 1999 and lying about the referrals to State Department officials. More specifically, the government alleges that (1) on May 14, 1999, Newton made fraudulent "A" referrals for Chinedu Osondu and Emenike Umunna by falsely attesting to a State Department official that they were Nigerian law enforcement agents traveling to the United States for training and that he did not want any Nigerian staff members at the embassy to know that they were going to the United States; (2) on June 1, 1999, Newton made a fraudulent "A" referral for Eunice Jaiveola by falsely attesting to a State Department official that she was assisting the DEA in an investigation by pretending to be a drug courier and that a visa would help convince drug traffickers that she had the capacity to travel to the United States; and (3) on July 23, 1999, Newton made fraudulent "A" referrals for George Adeyemi Adesokan, John Fidelis, Simon Izundu Ike and Noel Chibuzor Uzomah by falsely informing State Department officials in substance that they were the first four of a group of 16 Nigerian law enforcement agents working for him who were traveling to Quantico, Virginia for training and that they would be in danger if the visas disclosed the purpose of their travel.
In the present motion, the government seeks the admission of(1) evidence concerning non-charged fraudulent visa referrals allegedly made by Newton, (2) evidence that two of the applicants whose visas Newton is charged with falsely procuring each paid $4,000 to obtain them, rather than the usual $45 consular fee, and (3) a certification of the absence of NDLEA personnel records showing that the visa applicants in the charged and uncharged referrals were NDLEA employees. Defendant opposes these requests.
DISCUSSION
A. Other Crimes/Acts Evidence
The government moves to admit evidence that in the months before the crimes charged in the indictment Newton: (1) made similar but uncharged "A" referrals by falsely claiming that applicants were law enforcement agents traveling to the United States for training, controlled drops or sting operations; (2) made an "A" referral for a woman whose visa was initially granted and then revoked when the State Department discovered that she had previously applied for visas using two other identities; and (3) introduced a friend of his, the governor of a Nigerian state, to a State Department official and asked the official to grant a visa to the governor's girlfriend, a request which was apparently denied. The government urges the Court to admit the first two categories of evidence as relevant background evidence inextricably intertwined with the crimes charged or alternatively, along with the third category of evidence, as "other crimes" evidence offered for a proper purpose under Fed.R.Evid. 404(b).
Rule 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
Evidence of uncharged criminal activity is not "other crimes" evidence subject to Rule 404(b)'s strictures "if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial." United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (internal quotation marks and citation omitted). The government submits that the evidence of Newton's course of conduct in making "A" referrals based on false information very similar to that underlying the crimes charged is inextricably intertwined with and arises from the same series of transactions as the charged offenses.
I am not persuaded. The charged crimes are straightforward and may be fully understood without reference to Newton's other allegedly false referrals. This case is not analogous to the situation in Carboni, cited by the government, where evidence that the defendant added fictional items to his company's inventory was considered inextricably intertwined with the charged crime of making false statements to secure advances on a line of credit for that company. The uncharged activity of falsifying inventory was considered part and parcel of the defendant's effort to paint a rosy financial picture of the company and therefore maintain the credit line. Nor is this evidence analogous to the admissible background evidence in United States v. Gonzalez, 110 F.3d 936, 941-42 (2d Cir. 1997), also cited by the government. In Gonzalez, the defendants were charged with illegal possession of firearms. At trial, the court admitted evidence of the defendants' connection to an uncharged attempted burglary which occurred in the vicinity of their arrest. The court of appeals affirmed, reasoning that "[t]he burglary evidence in this case was relevant both to a possible motive for the defendants' possession of firearms and to provide crucial background evidence that gave coherence to the basic sequence of events that occurred on the night of February 24." 110 F.3d at 942.
The uncharged visa referrals in this case are of a different order. Unlike the evidence in Carboni and Gonzalez, the activity underlying the evidence the government proffers has no direct involvement with or crucial connection to the charged referrals. While the proffered evidence may tend to show that Newton was engaged in a pattern of activity involving the fraudulent procurement of visas, knowledge of that activity does not assist in understanding the charged crimes. The fact that he may have committed similar fraudulent acts in close temporal proximity to the charged crimes furnishes an element of context, but it is certainly not crucial information without which the jury will be confused or the government's theory of the case unfairly curtailed. Nor can it be said that the uncharged and charged crimes arose out of the same transaction or series of transactions. While the activity was similar, these were separate visa referrals made with respect to different individuals at different times. Accordingly, I conclude that the uncharged activity which the government seeks to admit is not "background" evidence but rather other crimes/acts" evidence that must come in, if at all, under Rule 404(b).
Evidence of prior bad acts is precluded under Rule 404(b) when it is sought to be admitted for the purpose of proving action by the witness in conformity therewith; but such evidence may be admitted for purposes other than to show propensity. See United States v. Bok, 156 F.3d 157, 165 (2d Cir. 1998). Under the Second Circuit's "inclusive approach," other crimes or bad acts evidence is admissible "for any purpose except to show criminal propensity, unless the trial judge concludes that its probative value is substantially outweighed by its potential for unfair prejudice." United States v. Germosen, 139 F.3d 120, 127 (2d Cir. 1998) (internal quotations and citation omitted). Admissibility of the evidence proffered by the government here depends in part upon whether a proper purpose for it can be shown. I will discuss each category of other acts evidence separately.
1. False Visa Referrals
The government posits that the evidence that Newton made false visa referrals for other applicants in the months preceding the charged crimes is admissible to show, contrary to defendant's anticipated defense, that Newton could not have mistakenly believed that the applicants charged in the indictment were Nigerian law enforcement officers as he assured the State Department officials. The government also contends that the evidence of Newton's success in securing visas under false pretenses from State Department officials who did not demand supporting documentation demonstrates Newton's plan to continue using the same concocted stories in connection with the applications charged in the indictment and his knowledge that those applications were false.
In response, Newton argues that he will not assert the defense of mistake and therefore the evidence is not necessary to show the absence of mistake, that there cannot be a "common plan or scheme" since the government has charged two separate conspiracies in the complaint, and that evidence of other false visa referrals is unduly prejudicial because it will make the jury more likely to believe defendant committed the charged crimes and the similarity between the charged and uncharged crimes will make it difficult for the jury to distinguish between them.
By stating that he will not assert mistake or accident as a defense to the charges, defendant apparently intends to invoke the principle that a defendant may avoid the admission of 404(b) evidence by agreeing not to dispute a contested issue. See United States v. Colon, 880 F.2d 650, 657-59 (2d Cir. 1989). "[A] defendant may completely forestall the admission of [the] other act evidence on the issue of intent by express[ing] a decision not to dispute that issue with sufficient clarity that the trial court will be justified (a) in sustaining objection to any subsequent cross-examination or jury argument that seeks to raise the issue and (b) in charging the jury that if they find all other elements established beyond a reasonable doubt, they can resolve the issue against the defendant because it is not disputed." Id. at 657 (internal quotations omitted) (first alteration added).
It is not clear from counsel's concise statement on page four of his brief that he will not be asserting "mistake or accident as a defense" whether the defendant expects to not contest the important issue of intent and, if so, whether his assertion meets the above criteria.
Having considered the parties' respective positions, I conclude that this evidence may be admitted. The fact that Newton previously obtained visas by falsely claiming that applicants were Nigerian police officers or were working with him on an investigation casts serious doubt on whether Newton mistakenly believed that the applicants in the crimes charged served in the same capacities. However even if, as he now informs us, Newton does not intend to argue that he was mistaken or duped, this evidence is admissible because it tends to show that he knew that the visas in the charged counts were not needed for the reasons he gave — an element of the government's case-in-chief. Moreover, the evidence that Newton effortlessly obtained visas under similar false pretenses does tend to show a plan or method for procuring visas on Newton's part, even though the crimes themselves may not have been connected.
Admission of this evidence of very similar uncharged criminal activity by Newton will undoubtedly create a danger of unfair prejudice because it may lead the jury to believe that is more likely to have committed the fraud charged. Rule 403 prohibits the introduction of evidence whose probative value is substantially outweighed by the danger of unfair prejudice its admission will create. For the reasons just described, the probative value of this evidence is strong and the danger of prejudice, while real, does not substantially outweigh its probative value. The evidence may be admitted but I will curtail the possibility of prejudice by giving the jury a limiting instruction explaining the proper consideration of this evidence.
2. Woman With Three Identities
As noted, the government wishes to admit evidence that in the summer of 1999 Newton made an "A" referral on behalf of a woman who he said was assisting him in an investigation and who subsequently had her visa revoked because she was found to have used two other identities in past visa applications. The government asserts that this evidence is probative of Newton's intent. According to the government, its probative value lies in the fact that Newton was reminded of this incident when he applied for the four visas on July 23, 1999 and "nevertheless persisted in his efforts that same day to obtain the visas". Brief at p. 17.
The Court is not persuaded that this evidence is probative of any material issue in this case — much less the defendant's knowledge or intent with respect to the charged referrals. The facts that a visa applicant for whom he made a referral was found to have used three identities and that Newton was reminded of it do not have any obvious bearing on his knowledge of the accuracy of his charged referrals. The applicant's use of multiple identities does not necessarily mean that she was not who defendant said she was — a person assisting him in an investigation. That may be a fair inference to be drawn, but the inference is too attenuated to make the evidence probative of defendant's knowledge of the law enforcement status of the other applicants. The fact that Newton was notified about a prior referral's identity problems does not make it more likely that he knew of the falsity, in a different respect, of his other referrals. Even if it does, the minimal probative value the evidence offers on that score is substantially outweighed by the prejudice that it would cause defendant by revealing his association with a shady character. Accordingly, the government's request to admit this evidence is denied.
3. Governor's Girlfriend
The government prays for the admission of evidence that Newton introduced his friend, a Nigerian governor, to a State Department official and asked the official to obtain a visa for the governor's girlfriend. The government postulates that this evidence is admissible under 404(b) because it is probative of Newton's willingness to disregard the formal visa system in order to help a friend with powerful contacts. I reject this argument. In my view, this evidence would primarily show that Newton is a person with bad character and poor judgment and is not probative of any of the salient issues in this prosecution. Thus, it fails the tests for admissibility under Rules 402, 403 and 404(b).
Newton's actions with regard to the governor do not resemble his alleged activities in connection with the charged crimes. In the case of the governor, Newton made an inappropriate request to disregard the formal visa system based on a forthright disclosure to the State Department official that he wanted to do a favor for the governor. There is no suggestion that he lied to the official or tried to pass off the girlfriend or the governor as anything other than his friends. By contrast, in the charged crimes Newton is accused of having adhered to the visa system by proffering false information to State Department officials. The two situations are entirely dissimilar. In the former case he was trying to bypass the system; in the latter he was trying to improperly manipulate it. The only elements the proffered evidence and the charged crimes have in common are Newton, visas and State Department officials. But that is not enough to make the evidence relevant. Evidence of Newton's willingness to disregard the visa system by furnishing correct information does not tend to prove — as the government charges here — that he gave false information while he was attempting to use the system. In any event, even if the evidence were somewhat probative of Newton's state of mind or motive in that it tends to show his belief that he could "beat" the visa system for his own advantage, its potential for unfairly prejudicing the jury by portraying Newton as an immoral rule-breaker greatly outweighs that slight probative value. Accordingly, the evidence may not be admitted.
B. $4,000 Payments for Visas
The government has indicated that it intends to offer evidence that two of the applicants for whom Newton allegedly made "A" referrals on July 23, 1999 paid $4,000 to secure their visas. The government discloses that the mother of one of the applicants is prepared to testify that she obtained a visa for her son after she paid the equivalent of $4,000 to a family friend who told her he had an unspecified contact at the U.S. embassy. Another of the July 23 applicants, John Fidelis, was detained and questioned by INS inspectors after he attempted to enter the United States using the visa on August 15, 1999 at Detroit Metro Airport. During his questioning he made several statements about the purpose of his visit to two different INS inspectors, apparently while under oath. Fidelis initially stated to one INS inspector, in substance, that he was a police officer in Nigeria and that he was coming to the United States for training. He subsequently admitted to that agent that he was not coming to the United States for training but that he intended to look for work and stay in the United States. He then told another inspector, in substance, that he had paid $4,000 for his visa, that he was a police officer in Nigeria, that the purpose of his trip was to attend school and that he wished to stay in the United States for three months. Fidelis was denied entry and placed on a flight departing the country. The government maintains that despite its diligent efforts, it has not been able to locate Fidelis. Accordingly, it seeks to admit evidence of Fidelis' statement that he paid $4,000 to obtain the visa as a statement against penal interest through the testimony of one of the INS inspectors.
The government also argues that another statement by Fidelis should be admitted — a statement that he was not a police officer. This request is puzzling because nowhere in the government's recitation of the facts is there a description of a statement by Fidelis that he was not a police officer in Nigeria. In fact, both the government's statement of facts and the affidavit of Eileen Vidal of the State Department which is attached to the Complaint indicate that Fidelis told both INS agents that he was a police officer and do not mention that he changed that statement. Accordingly, until the government offers a factual basis for this assertion I decline to consider this aspect of the government's application.
1. Relevance
As a threshold matter, defendant challenges the introduction of this evidence as irrelevant because it does not establish that either of the payments have any direct connection to him. To be sure, neither Fidelis nor the other applicant's mother mentions Newton as the recipient of the payment. Nonetheless, the evidence is clearly relevant. Both applicants received visas because of Newton's "A" referrals on July 23. Both applicants made the equivalent of $4,000 payments to receive the visas, instead of the nominal $45 fee. Together, these facts raise the permissible inferences that the visas were not procured through ordinary lawful means and that Newton, who obtained the visas, may have had a financial motive to obtain them fraudulently. Defendant is perfectly entitled to make the argument at trial that the testimony of neither of these witnesses furnishes any direct connection to him, but the lack of direct evidence connecting Newton to the payments is not a reason to keep this evidence out. On balance, the possibility that defendant will be unfairly tainted by evidence implying that he received all or part of these payments is strongly outweighed by the evidence's probative value.2. Rule 804(b)(3)
Fed.R.Evid. 804(b)(3), makes hearsay declarations by unavailable witnesses admissible if the statement:
was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
In order to avoid Confrontation Clause problems, a hearsay statement must either (1) fall within a "firmly rooted hearsay exception" or (2) contain "particularized guarantees of trustworthiness" such that cross-examination would be expected to add little to the statement's reliability. Ohio v. Roberts, 448 U.S. 56, 66 (1980); United States v. Moskowitz, 215 F.3d 265, 269 (2d Cir. 2000). The Second Circuit has never decided whether the statement against interest hearsay exception is so firmly rooted as to satisfy the Confrontation Clause, See United States v. Petrillo, 237 F.3d 119, 122 (2d Cir. 2000), and instead tends to resolve the issue by recourse to the alternative particularized guarantees of trustworthiness" criterion. See Petrillo; United States v. Matthews, 20 F.3d 538, 544-46 (2d Cir. 1994). Rule 804(b)(3) and the Confrontation Clause are, of course, closely related. See United States v. Katsougrakis, 715 F.2d 769, 776 (2d Cir. 1983) ("As a practical matter . . . a hearsay statement that satisfies the penal interest exception usually will survive Confrontation Clause scrutiny because the `trustworthiness' issue has already been decided in favor of admissibility.").
In the case at bar, there is no dispute that Fidelis is unavailable within the meaning of Rule 804(b)(3). Nor is there serious dispute that his statement falls properly under that Rule as a statement that tended to subject him to civil or criminal liability. Fidelis made the statement to INS agents who, he must have known, had the power to deny him entry to the United States. Fidelis must also have had an inkling that his statement that he paid an exorbitant fee to procure the visa subjected him to criminal prosecution for visa fraud.
Newton argues instead that Fidelis' statement runs afoul of the Confrontation Clause because it is untrustworthy. In support of this argument, defendant points out that during his questioning Fidelis articulated contradictory purposes for visiting the United States. Defendant contends that because of the statement's internal inconsistencies it does not pass constitutional muster.
I do not share this view. To begin with, Fidelis' statements were apparently made under oath, see Government's Letter Brief in Reply dated February 5, 2002 at p. 5, a factor which tends to be an indicia of reliability. Cf. United States v. Chan, No. S11 97 CR 1053, 2002 WL 126111, *3 (S.D.N.Y. Jan. 14, 2002) (recognizing that a declaration against penal interest contains guarantees of trustworthiness where, among other factors, it was given under oath). Moreover, the statements Fidelis gave were not as contradictory and inconsistent as defendant suggests. Defendant correctly notes that Fidelis was at variance as to whether he had come to the United States to attend training or to look for work, and whether he was planning to stay. But, according to the government's summary of his statements, he never wavered on other points including the fact that he was a police officer in Nigeria, the fact that he worked for the Nigerian National Petroleum Company and — most significantly — that he paid $4,000 to obtain his visa. In light of the fact that Fidelis made the statements under oath and under circumstances indicating that he should have know that he was subject to criminal liability or, at a minimum, exclusion from the United States, I find that the statement that he paid $4,000 for his visa satisfies both Rule 804(b)(3) and the Confrontation Clause.
C. Other Issues
The government raises one final issue which relates to its concern that counsel for Newton will make reference in cross-examination or argument to a conspiracy by State Department officials to retaliate against Newton for investigating a prominent Nigerian friendly with a State Department official. Counsel for Newton has stated that he does not intend to make any reference to such a conspiracy in his opening statement and will do so in summation only if evidence is elicited which provides a factual basis for the defense to argue a bias or motive to fabricate or obfuscate the truth on the part of State Department witnesses against Newton". Brief at 7. Notwithstanding counsel's assurance, the government requests that the Court require counsel to make a proffer, before opening statements, of the factual basis underlying that conspiracy. The Court does not consider it necessary to grant that request. In light of defense counsel's representation to the Court, the Court will not require such a proffer to be made before opening statements. However, counsel is instructed that before he may make any reference at trial to the aforementioned conspiracy, counsel must demonstrate to the Court that he has an adequate factual basis to raise do so.
As a final matter, in his opposition brief defendant appears to argue that the conspiracy counts charged in the indictment should be dismissed because the government's proof will show that only one single conspiracy existed and will therefore be at variance with the indictment which charges two separate conspiracies. I say that defendant "appears to" make this argument because he asks the Court to treat the brief in part as a motion to dismiss the conspiracy counts, while at the same time noting that it "may become clear whether Mr. Newton's conduct as alleged is subject to prosecution as one or two conspiracies." Brief at 3-4. Defendant's lack of clarity underscores the reason why I must defer consideration of his motion — the government's proof has yet to be offered. It is useless to engage in conjecture about how many conspiracies the evidence will or will not show. At this stage of the prosecution nothing the Court has seen clearly demonstrates that the government's evidence will show that only one conspiracy occurred. Accordingly, I will reserve decision on the defendant's motion and wait to hear argument from counsel until after the government's evidence has been presented.
CONCLUSION
For the reasons explained above, I resolve the government's motion in limine as follows. The government's motion to admit Rule 404(b) is granted as to evidence of other false referrals allegedly made by the defendant, but it is denied with respect to evidence of his referral of a woman with multiple identities and evidence that he sought a visa for the girlfriend of a Nigerian governor. I grant the government's motion to admit evidence of $4,000 payments made by two of the applicants named in the indictment. Finally, I conclude that counsel for the defendant need not make a proffer of the facts supporting a State Department conspiracy against the defendant prior to opening statements.
Decision on defendant's motion to dismiss the conspiracy counts in the indictment is deferred until after introduction of the government's evidence.
It is SO ORDERED.