United States v. Mohamed Jawara, Also Known as Haji Jawara

462 F.3d 1173 UNITED STATES of America, Plaintiff-Appellee, v. Mohamed JAWARA, also known as Haji Jawara, Defendant-Appellant. No. 05-30266. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 1, 2006. Filed September 15, 2006. COPYRIGHT MATERIAL OMITTED Ralph Hurvitz, Seattle, WA, for the defendant-appellant. Michael J. Lang, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington; James L. Robart, District Judge, Presiding. D.C. No. CR-04-00511-JLR. Before STEPHEN REINHARDT, M. MARGARET McKEOWN, and RICHARD R. CLIFTON, Circuit Judges. Opinion by Judge McKEOWN; Dissent by Judge REINHARDT. McKEOWN, Circuit Judge. 1 Mohamed Jawara (a.k.a. Haji Jawara) appeals from his convictions for document fraud related to his personal asylum application and conspiracy to commit marriage fraud to avoid the immigration laws. Jawara challenges the district court's denial of his motions to sever the two counts, to suppress physical evidence, and to conduct a pre-trial hearing addressing the reliability of expert testimony, as well as various evidentiary rulings by the district…

Opinion by Judge McKEOWN; Dissent by Judge REINHARDT.

Mohamed Jawara (a.k.a. Haji Jawara) appeals from his convictions for document fraud related to his personal asylum application and conspiracy to commit marriage fraud to avoid the immigration laws. Ja-wara challenges the district court’s denial of his motions to sever the two counts, to suppress physical evidence, and to conduct a pre-trial hearing addressing the reliability of expert testimony, as well as various evidentiary rulings by the district court. We focus primarily on Jawara’s claim of misjoinder and clarify the framework for assessing whether the joined offenses are of the “same or similar character” under Federal Rule of Criminal Procedure 8(a). *1176 Looking to the indictment, we conclude that the two counts are unrelated in nature and purpose, temporal scope, physical location, modes of operation, and key evidence. To suggest that joinder is proper simply because each involves an immigration matter would stretch the “same or similar character” basis for joinder beyond reasonable limits. Although we hold that the counts were in fact misjoined, error does not warrant reversal in this case. Nor did the district…

dissenting from the judgment.

I join much of the majority opinion, but disagree that the misjoinder of the indictment is harmless error. I would hold that erroneously joining the two counts — falsifying one’s own immigration documents, and conspiring over a substantial period of time to aid other persons to enter into fraudulent marriages in violation of the immigration laws — had a “substantial and injurious effect” upon the jury’s determination. United States v. Lane, 474 U.S. 438, 449 , 106 S.Ct. 725 , 88 L.Ed.2d 814 (1986).

Although the majority characterizes the evidence of guilt under both counts as “overwhelming,” Maj. at 1187, the evidence with respect to the falsification of the defendant’s own immigration documents is clearly not. Jawara never denied that there were material errors in his asylum application. To the contrary, he acknowledged the errors in the application, but testified that he was not aware of their existence because another individual prepared the document for him. He also testified that he was unaware of any problems regarding the supporting documents and that he had received the identification card from a government office and his birth certificate…