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

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 580, 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 aeknowl- *586 edged 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…

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The Opinion filed on September 15, 2006, slip op. 11351, and appearing at 462 F.3d 1173 , is amended as follows:

With these amendments, the panel has voted to deny the petition for panel rehearing. No further petitions for rehearing will be entertained.

OPINION

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). 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…

474 F.3d 565 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. Amended January 19, 2007. COPYRIGHT MATERIAL OMITTED 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. ORDER AMENDING OPINION AND AMENDED OPINION McKEOWN, Circuit Judge. ORDER 1 The Opinion filed on September 15, 2006, slip op. 11351, and appearing at 462 F.3d 1173 , is amended as follows: 2 1. At slip op. 11381 ( 462 F.3d at 1190 ), replace lines 10 through 38 (beginning with the sentence, "Agent Smalley's testimony" and ending with "tribal designation") with the following: 3 Although Jawara raised a general Confrontation Clause issue in his briefs to this court, it was not…