Shahwan

MEMORANDUM ***

Nedal Shahwan appeals his conviction for willfully and knowingly making a false statement on a passport application in violation of 18 U.S.C. § 1542 . We affirm.

The defense theory at trial was that Shahwan believed his mother’s recent account of his history; this made the real issue, as Shahwan’s counsel put it, whether he knew his mother’s story was false when he submitted the passport application. While we do not agree with the government that Shahwan’s 1997 Form 1-485 application based on his marriage to a United States citizen and related documents are inextricably intertwined with the charged offense, we cannot say that the district court abused its discretion in admitting the application, all of the documents that Shahwan produced at the hearing officer’s request, and evidence related to its disposition for the limited purpose of showing motive and intent. This evidence sheds light on Shahwan’s motive and intent in making the very different statements he made on his passport application, and in trying to stay in this country. Thus, the documents and testimony about the disposition were admissible under Fed.R.Evid. 404(b) for the limited purpose the district…

concurring in the judgment:

Because I would find that evidence of Appellant’s previous marriage “other acts” *631 evidence and was not admissible to show motive or intent under Rule 404(b) and because admission of this evidence was unduly prejudicial, I would hold that it was an abuse of discretion to admit evidence concerning Appellant’s previous marriage. I nonetheless join the majority in affirming Appellant’s conviction because I find that the error was harmless.

The government argues in large part that the evidence at issue was not prior act evidence. I disagree. Appellant’s previous marriage and his attempt to become a lawful permanent resident are not part of a “single criminal episode,” see United States v. Williams, 989 F.2d 1061, 1070 (9th Cir.1993), and are not “inextricably intertwined,” see United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995). Therefore, to be admissible, the evidence must meet the requirements of Rule 404(b).

The district court admitted the evidence because it tended to show motive and intent. Evidence of Appellant’s previous marriage does not go to his motive to make false statements in connection with his passport application;…