United States v. Farah

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4712

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

INTISAR KHALIF FARAH, a/k/a Intisar Ali,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (1:05-cr-00163-LDW)

Argued: May 25, 2007 Decided: August 14, 2007

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Wilkinson and Judge Niemeyer joined.

ARGUED: Melinda Laverne VanLowe, GREENSPUN, DAVIS & LEARY, P.C.,
Fairfax, Virginia, for Appellant. Jeanine Linehan, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Peter D. Greenspun,
GREENSPUN, DAVIS & LEARY, P.C., Fairfax, Virginia, for Appellant.
Chuck Rosenberg, United States Attorney, Edmund Power, Assistant
United States Attorney, Aaron M. Zebley, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

2
GREGORY, Circuit Judge:

Intisar Khalif Farah appeals her conviction for procuring

naturalization unlawfully in violation of 18 U.S.C. § 1425(a). She

assigns error to several of the district court’s evidentiary

rulings and rulings on her pre-trial and post-trial motions. For

the reasons set forth below, we affirm.

I.

Farah, a native of Somalia, entered the United States for the

first time on January 10, 1983, as a non-immigrant with a student

visa. In May 1984, the Immigration and Naturalization Service

(“INS”) denied her application for an extension of stay and ordered

her to depart the United States by July 13, 1984. Farah left for

Mogadishu, Somalia, on July 10, 1984 and, later that summer, became

engaged to marry Yusef Abdi Ali. At some point thereafter, Farah

re-entered the United States, moving to Cape Giradeau, Missouri, in

1985 and to Alexandria, Virginia, in 1988.

On February 27, 1989, Farah applied for asylum. She stated in

her application that January 11, 1983, was the date of her last

arrival in the United States. She also stated that she and her

family were members of the Isaaq clan and, as a result of that

membership, she had been arrested three times, imprisoned, and

tortured in Somalia. Her application was successful, and in

December 1990, a year after receiving asylum, Farah applied for and

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was granted lawful permanent resident status as an asylee eligible

for adjustment.

On December 21, 1990, Farah requested refugee status in

Canada, where her husband believed it would be easier for him to

obtain asylum. In making her request, Farah claimed that she

feared persecution in Somalia because she was “Isaac [sic] [and]

the government kills all of our people.” J.A. 1871. Farah claimed

that she was arrested and imprisoned in Somalia in August 1989,

fled Somalia in November 1990, and spent one month illegally in the

United States en route to Canada. Farah further claimed that she

was in Ethiopia from June 1988 to August 1989. Farah denied on two

separate Canadian applications that she had ever applied for

refugee status in any other country.

In June 1991, Farah appeared before the Canadian Immigration

and Refugee Board and testified that she was Isaaq, that she was

arrested in Somalia in May 1988 for participating in a protest

against then-President Siad Barre, and that she went to Ethiopia

after being released from prison but, upon her return to Mogadishu

in August 1989, was arrested with other Isaaqs for being Isaaq.

Farah testified that her boyfriend procured her release from prison

and that she fled Somalia a year later for Canada, stopping first

in the United States to meet her boyfriend. The Canadian

government denied Farah’s refugee application and ordered her to

depart Canada by October 13, 1992. Farah returned to the United

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States. In July 1993, Farah’s parents and siblings were admitted

to the United States as refugees because Farah’s father, a member

of the Darod clan in Somalia, had been singled out for persecution

as a high-ranking member of the former Somali government.

On April 20, 1995, Farah became a United States citizen. She

swore in her application for citizenship, and again during her

interview with the INS, that her only absence from the United

States since becoming a permanent resident was a visit to Canada

from August 1991 to November 1991. Farah stated that she was

living in Virginia and working in the District of Columbia from

1990 to 1992.

In December 1996, Farah sponsored her husband’s admission to

the United States and, in March 1998, Farah submitted a declaration

to the Executive Office of Immigration Review on behalf of her

husband. In that declaration, Farah provided details of her

background which were inconsistent with the details she provided in

her applications for asylum, adjustment of status, and

naturalization. Investigation into the affairs of Farah’s husband

provoked scrutiny of Farah’s immigration file and, in December

1998, an INS official authored an internal memorandum identifying

what the official considered false statements by Farah that were

sufficient to denaturalize her.

On April 19, 2005, a grand jury indicted Farah for

naturalization fraud. Farah filed a motion to dismiss for failure

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to return the indictment within the statute of limitations; the

motion was denied after a hearing. In August 2005, in response to

a court order, the Government filed a bill of particulars

enumerating the allegedly materially false statements Farah made in

her applications for asylum, lawful permanent residence, and

naturalization. Farah then filed a renewed motion to dismiss for

failure to return the indictment within the statute of limitations,

a motion to dismiss for prejudicial pre-indictment delay and

vindictive prosecution, and several motions in limine. After a

hearing, the district court denied the motion to dismiss for

prejudicial pre-indictment delay, stating that it would determine

the issue during trial. The court reserved its decision on the

motion regarding the statute of limitations and the motions in

limine.

At trial in November 2005, the Government presented documents

from the INS, including a copy of Farah’s 1984 plane ticket from

the United States to Somalia, establishing that Farah left the

United States for Mogadishu around July 1984 and returned to the

United States sometime thereafter. Additionally, the Government

showed that Farah’s declaration on behalf of her husband states

that she is a member of the Darod clan although she based her claim

for asylum on her membership in the Isaaq clan. Accordingly, the

Government presented evidence confirming that Farah and her

immediate family are Darod, not Isaaq. At the time Farah applied

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for asylum, the Department of State considered members of the Isaaq

clan to have a well-founded fear of persecution by Barre’s regime

and, consequently, a basis for being granted asylum in the United

States. The Government therefore argued at trial that Farah knew

a claim to have suffered mistreatment because she was Isaaq

heightened her chances of being granted asylum. Also at trial, an

INS officer testified that knowledge of Farah’s false statements

about her clan membership and her date of last entry into the

United States would have resulted in the denial of her asylum

application. Likewise, INS testimony established that if Farah had

been truthful about living in Canada for approximately twenty-two

months, rather than merely visiting Canada for three months, her

extended absence from the United States would have rendered her

ineligible to become a naturalized citizen. INS’s knowledge that

Farah obtained her lawful permanent resident status through fraud

would have had the same consequence. An INS officer similarly

testified that committing any fraud, generally, would have rendered

Farah ineligible for adjustment of status.

The November 2005 trial ended in a hung jury. After a hearing

conducted before the new trial, the district court denied Farah’s

renewed motion to dismiss for failure to return the indictment

within the statute of limitations and reserved its decision on her

motion to exclude the testimony of several Government witnesses.

A second trial in March 2006 ended with a verdict of guilty. The

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district court then denied all outstanding motions, including a

motion by Farah for judgment of acquittal, and sentenced Farah to

one month of incarceration and one year of supervised release.

This appeal followed.

II.

Statute of Limitations

The district court denied Farah’s renewed motion to dismiss

for failure to return an indictment within the statute of

limitations, finding that the indictment, dated April 19, 2005, was

returned within ten years of the date Farah was naturalized, April

20, 1995. This Court reviews timely objections to an indictment

de novo. United States v. Darby, 37 F.3d 1059, 1062-63 (4th Cir.

1994).

Farah does not dispute that the offense charged in the

indictment, procuring naturalization unlawfully in violation of 18

U.S.C. § 1425(a), has a ten-year statute of limitations or that the

one-day window the Government left itself in charging her is

sufficient. Rather, Farah argues that the rule of lenity requires

that the five-year statute of limitations for the offense of making

a false statement in an immigration matter in violation of 18

U.S.C. § 1015 be applied to her case because the Government could

have prosecuted her under that statute instead of under § 1425(a).

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 The rule of lenity provides that “ambiguity concerning the

ambit of criminal statutes should be resolved in favor of lenity.”

United States v. Bass, 404 U.S. 336, 348 (1971). Farah submits

that the ambiguity in her case arises in Congress’s failure to

explain the disparity between the statute of limitation for §

1425(a) and that for § 1015. The rule of lenity, however, “serves

as an aid for resolving an ambiguity; it is not to be used to beget

one.” Callanan v. United States, 364 U.S. 587, 596 (1961). Here,

there is no ambiguity regarding the single statutory offense with

which Farah is charged——violation of § 1425(a)——and the statute of

limitations for that offense. See United States v. Helem, 186 F.3d

449, 455 (4th Cir. 1999) (stating that rule does not apply where

statute is not ambiguous). For this reason, Farah’s reliance on

United States v. Head, 641 F.2d 174 (4th Cir. 1981), is misplaced.

In Head, this Court applied the rule of lenity when a single

conspiracy count charged the defendant with conspiracy to commit

several different offenses with different statutes of limitations.

Here, by contrast, there is no confusion among applicable offenses

(only one is charged in the indictment) or applicable statutes of

limitations (only one applies to the offense charged). The

district court properly denied Farah’s motion to dismiss.

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 The 1998 INS Memorandum

The district court denied Farah’s request for production of

the 1998 INS memorandum detailing the author’s belief that Farah

made false statements on immigration applications and that there

were grounds to denaturalize her in an administrative proceeding.

The Government had notified Farah that it would not produce the

memorandum because the INS had marked it as confidential attorney

work product, and had provided the court a copy of the memorandum

for in camera inspection only. We review a district court’s denial

of discovery requests for abuse of discretion. United States v.

Fowler, 932 F.2d 306, 311 (4th Cir. 1991).

As a rule, and pursuant to a discovery order entered in this

case, any defendant may inspect items in the Government’s

possession that are “material to preparing the defense.” Fed. R.

Crim. P. 16(a)(1)(E)(i). “A showing of materiality must include

‘some indication that the pretrial disclosure of the disputed

evidence would have enabled the defendant significantly to alter

the quantum of proof in his favor.’” United States v. Kirk, No.

88-5095, 877 F.2d 61, 1989 WL 64139, at *2 (4th Cir. June 2, 1989)

(unpublished) (quoting United States v. Ross, 511 F.2d 757, 762-63

(5th Cir. 1975), cert denied, 423 U.S. 836 (1975)).

Farah argues that, in denying her request for production, the

district court improperly focused on whether the Government was

going to use the memorandum at trial (the Government said that it

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would not) and improperly relieved the Government of its burden to

show that the memorandum actually constituted attorney work

product. Cf. In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th

Cir. 1996) (“The work-product privilege protects the work done by

an attorney in anticipation of litigation.”). Farah also argues

that the memorandum was relevant to her motion to dismiss the

indictment for prejudicial pre-indictment delay and her ability to

identify potential trial witnesses. By the time the court heard

arguments on Farah’s request for production, however, the

Government had filed not only a bill of particulars but also more

than one thousand pages of discovery in advance of both trials.

Cf. Ross, 511 F.2d at 763 (stating that the “extensiveness of the

material which the Government did produce and the availability of

the disputed material from other sources, including the defendant’s

own knowledge, must also be considered” in determining

materiality); United States v. Automated Med. Labs., Inc., 770 F.2d

399, 406 (4th Cir. 1985) (stating that the purpose a of bill of

particulars “is to fairly apprise the defendant of the charges

against him so that he may adequately prepare a defense and avoid

surprise at trial”). Given this evidence, it is not clear that the

memorandum would have significantly altered the quantum of proof in

Farah’s favor. Because Farah cannot make the requisite showing,

and because the Government did not intend to use the memorandum at

trial and the memorandum is, on its face, attorney work product,

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the district court did not abuse its substantial discretion to

manage the discovery process by denying Farah’s request.

Prejudicial Pre-Indictment Delay

The district court denied Farah’s motion to dismiss the

indictment for prejudicial pre-indictment delay, in which Farah

asserted that the Government’s delay of up to seventeen years* in

indicting her deprived her of testimonial and documentary evidence

necessary to her defense. We review timely objections to an

indictment de novo. Darby, 37 F.3d at 1062-63.

The Fifth Amendment’s Due Process Clause requires dismissal of

an indictment when a defendant establishes actual prejudice

resulting from the Government’s delay, and, after balancing the

defendant’s prejudice against the Government’s justification for

the delay, we find that “the [G]overnment’s action in prosecuting

after substantial delay violates ‘fundamental conceptions of

justice’ or ‘the community’s sense of fair play and decency.’”

Jones v. Angelone, 94 F.3d 900, 904 (4th Cir. 1996) (citation

omitted). Two of Farah’s examples of actual prejudice lack merit.

First, Farah claims that her father, who died in 1996, could have

offered credible, exculpatory testimony about Farah’s clan

*
Farah’s repeated reference to a delay of ten-to-seventeen
years is simply incredible, as any number over ten amounts to a
claim that the Government failed to indict her even before the date
she committed the charged offense, April 20, 1995.

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identification. But Farah’s father died two years before 1998, the

year she argues she should have been indicted because the INS

memorandum emerged that year. Even by Farah’s timeline, her father

never would have been available to testify. Second, Farah asserts

that her conviction will have drastic immigration consequences for

her family. But had Farah been indicted at precisely the same

moment, yet acquitted, her family would suffer no immigration

consequences. Thus, Farah’s conviction is problematic for her

family, not her delayed indictment.

Farah’s other examples of actual prejudice have merit. First,

Farah asserts that the delay made it difficult for her to verify

that she was living and working in the United States and not Canada

in 1991 and 1992——a major trial issue. Farah could not locate

leases and bank records that could confirm her residence

approximately fifteen years ago, and, in the last ten years, her

former employer’s business dissolved. Both her former employer and

his accountant destroyed the records that could have verified her

employment during 1991 and 1992, and her former employer could not

independently recall her dates of employment. Second, Farah

asserts that the delay made it difficult to unearth evidence that

could support statements she made on her asylum application——also

a major trial issue. Two of the immigration officials who

testified at trial about Farah’s 1989 asylum application could not

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remember Farah, and her former immigration lawyer destroyed her

asylum file.

These latter claims of prejudice are sincere, but describe

problems——faded memories, lost evidence——that attend every case

brought just barely within the statute of limitations. Cf. United

States v. Marion, 404 U.S. 307, 326 (1971) (observing “the real

possibility of prejudice inherent in any extended delay: that

memories will dim, witnesses become inaccessible, and evidence be

lost”). Nonetheless, we assume Farah has shown actual prejudice,

and balance that prejudice against the Government’s justification

for its delay.

The Government, arguing that there was no delay, correctly

notes that, although Farah maintains that the Government knew of

her offenses in 1998 and should have indicted her then, the

document on which she relies is an internal communication between

attorneys at an agency with no authority to prosecute Farah. See

28 U.S.C. §§ 547(1),(2). The U.S. Attorney’s Office, the only

prosecuting authority for Farah’s crime, first learned of Farah’s

crime in September 2004, just seven months before the indictment.

Farah does not dispute this fact or argue that seven months

constitutes an unreasonable delay. Nor, we note, does Farah allege

nefarious motives on the Government’s part. See also Automated

Med. Labs., 770 F.2d at 404 (considering it relevant, in declining

to find a due process violation, that “there is no indication that

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the Government intentionally delayed to gain some tactical

advantage”).

Having balanced the Government’s position regarding its

alleged delay against Farah’s quite ordinary claims of prejudice,

we cannot say that her indictment offends “fundamental conceptions”

of justice, fair play, or decency. Jones, 94 F.3d at 904. We

affirm the denial of Farah’s motion to dismiss for prejudicial pre-

indictment delay.

Exhibits 1-1 through 1-21

Exhibits 1-1 through 1-21 are documents from Farah’s

immigration file, including her applications for asylum, lawful

permanent residence, and naturalization, her green card and

naturalization certificate, and communications sent to Farah by the

INS. Farah argues that the documents should have been excluded

from evidence for a variety of reasons. We review the district

court’s evidentiary rulings for abuse of discretion. Gen. Elec.

Co. v. Joiner, 522 U.S. 136, 141 (1997).

Farah’s myriad protests fail. The documents were kept in the

course of regularly conducted business at the INS and are therefore

admissible as business records. Fed. R. Evid. 803(6). Testimony

established (and Farah’s appellate brief admits) that Farah herself

either inscribed directly or supplied indirectly much of the

information in the documents, therefore many of the statements

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within the documents are admissible as party admissions. Fed. R.

Evid. 801(d)(2)(A). Finally, even if the stray markings by INS

officials on the applications were nonverbal conduct intended as

assertions and therefore “statements” under the Rules of Evidence,

see Fed. R. Evid. 801(a), as Farah asserts, they fall within the

business records exception to hearsay based on the testimony of two

Government witnesses about the markings. In sum, the district

court did not abuse its discretion in admitting Exhibits 1-1

through 1-21.

Exhibits 7-1 through 7-9

The district court also did not abuse its discretion in

admitting into evidence Exhibits 7-1 through 7-9, documents from

Farah’s Canadian immigration file. Farah argues that (1) the

exhibits do not qualify as business records, and that (2) the

Government impermissibly offered these exhibits to prove Farah’s

bad character (i.e., dishonest) or bad acts committed in conformity

with her character (i.e., making false statements to immigration

officials in the United States).

In challenging the admission of her Canadian immigration file

as a business record, Farah raises many of the same, unavailing

arguments she raised in challenging the admission of her INS

immigration file. Her additional argument that the Canadian file

is incomplete, preventing the court and the parties from knowing

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whether critical information that would place the exhibits in a

different light, lacks merit: whether the file qualifies as a

business record does not depend on whether it includes every

potentially relevant document. Her argument that the file contains

an opinion and order issued by the Canadian Immigration and Refugee

Board when, under Nipper v. Snipes, 7 F.3d 415 (4th Cir. 1993),

court orders do not fall within the business records exception to

the hearsay rule, is misplaced. Nipper actually holds that

judicial findings of fact are not “public records” within the

meaning of the public records exception to hearsay found in Federal

Rule of Evidence 803(8)(C). 7 F.3d at 417. Neither party to this

appeal invokes 803(8)(C) and, because the factual findings in the

opinion and order were redacted, none remain about which to

complain.

Farah’s classification of Exhibits 7-1 through 7-9 as

character evidence also fails. Under Rule 404(b) of the Federal

Rules of Evidence, evidence of other crimes or wrongs “are

admissible if they are (1) relevant to an issue other than

character, (2) necessary, and (3) reliable.” United States v.

Rawle, 845 F.2d 1244, 1257 (4th Cir. 1988). Here, the Government

introduced the Canadian immigration documents as circumstantial

evidence that Farah lived in Canada in 1991 and 1992, and as

evidence that Farah falsely stated on her application for

naturalization in the United States that she had stayed in Canada

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for less than six months. Where, as here, evidence “is admitted as

to acts intrinsic to the crime charged, and is not admitted solely

to demonstrate bad character, it is admissible.” United States v.

Chin, 83 F.3d 83, 88 (4th Cir. 1996). Even if, as Farah

additionally claims, the Government referenced the exhibits in

remarking on Farah’s character during its closing argument, we

cannot say that the district court abused its discretion in

admitting Exhibits 7-1 through 7-9 as business records.

Exhibits 2-1 through 2-6

The district court did not abuse its discretion in admitting

Exhibits 2-1 through 2-6, documents from the immigration file of

Farah’s father. The court admitted the documents under Federal

Rule of Evidence 803(6), the business records exception to hearsay,

and Rule 804(b)(4), the exception for statements of an unavailable

declarant concerning the declarant’s or a relative’s personal or

family history. Under the latter rule, because Mr. Farah was

unavailable at trial (he was deceased), his statements concerning

his and his family’s clan membership are excepted from the hearsay

rule. Farah’s assertion that clan membership in Somalia is not as

straight-forward and mechanical as facts concerning dates of birth,

marriage, and the like allowed under Rule 804(b)(4) is not

sufficient to disturb the district court’s decision to admit Mr.

Farah’s statements under the rule.

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 Farah’s final argument that the admission of Mr. Farah’s file

violates her rights under the Confrontation Clause is also

unavailing. The Confrontation Clause bars the “admission of

testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had a prior

opportunity for cross-examination.” Crawford v. Washington, 541

U.S. 36, 53-54 (2004). Mr. Farah’s statements were not testimonial

because the “primary purpose” (any future purpose is irrelevant) of

Mr. Farah’s interrogation, liberally assuming his immigration

interviews can even be called that, was not “to establish or prove

past events potentially relevant to later criminal prosecution.”

Davis v. Washington, 126 S. Ct. 2266, 2274 (2006). The primary

purpose was to determine Mr. Farah’s eligibility for an immigration

benefit. Our highly deferential standard of review leads us to

affirm the district court’s decision here as well.

Authentication of Exhibits in Groups 1 and 2

Farah asserts that Exhibits 1-1 through 1-21 and 2-1 through

2-6, documents from her and her father’s immigration files were not

properly authenticated because, according to Farah, the Government

alleged only that she and her father signed the documents. The

Government argues that for purposes of authentication, the

documents were public records under Federal Rule of Evidence

901(b)(7) and did not require handwriting authentication. We

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review decisions of the district court regarding authentication for

abuse of discretion. United States v. Patterson, 277 F.3d 709, 713

(4th Cir).

The parties agree that, under Rule 901(a), the “requirement of

authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what the proponent claims.”

Fed. R. Evid. 901(a). “To meet the threshold established by Rule

901(a), the party seeking to introduce physical evidence must

provide a basis for the jury to resolve the authenticity question

in favor of that party.” Patterson, 277 F.3d at 713 (quotation

marks omitted). Rule 901(b)(1) provides that a witness with

knowledge may authenticate a piece of evidence by testifying that

a matter is what it is claimed to be. A party need not rely on

“nonexpert opinion as to the genuineness of handwriting” to

authenticate or identify a document, so long as another method of

conforming with Rule 901(a) is used.

Here, the INS record custodian had knowledge of documents kept

by the INS and testified that the documents in the Farahs’ files

are what the Government claims. Cf. United States v.

Hernandez-Herrera, 952 F.2d 342, 344 (10th Cir. 1991) (“We find

that the testimony of Wheeler, an INS agent familiar with the

record keeping practices of the INS regarding Exhibits 1-4,

establishes the authenticity of these exhibits under Rule

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901(b)(7).”). Further, contrary to what Hernandez-Herrera

suggests, it is not necessary for the Government to invoke Rule

901(b)(7) for authentication; testimony pursuant to Rule 901(b)(1)

sufficed.

The Expert Testimony of Dr. Lee Cassinelli

The Government called Dr. Lee Cassinelli, a researcher of

Somali culture, to establish that clan identity in Somalia is

patrilineal and to elicit his opinion that, based on her father’s

clan identity, Farah is Darod, not Isaaq. Farah argues that Dr.

Cassinelli’s testimony should have been excluded under Federal Rule

of Evidence 702 because it was not reliable (he did not interview

Farah, her family, or her friends), it did not aid the jury in

determining a fact in issue (what Farah phrases as her belief about

her clan identity), and it was generally more prejudicial than

probative. We review the district court’s decisions regarding the

admission of expert testimony for abuse of discretion. United

States v. Mohr, 318 F.3d 613, 622 (4th Cir. 2003).

“Unlike an ordinary witness, see Rule 701, an expert is

permitted wide latitude to offer opinions, including those that are

not based on firsthand knowledge or observation.” Daubert v.

Merrell Dow Pharma., Inc., 509 U.S. 579, 592 (1993). Dr.

Cassinelli, therefore, did not need personal knowledge of Farah’s

clan identity or a personal interview with Farah to opine about her

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clan identity. His testimony about Somali clan structure was

relevant, a fact Farah concedes, and Farah had the opportunity on

cross-examination to show the jury that, although Dr. Cassinelli

believed he knew what clan Farah belongs to, there would be no way

for him to know what clan she believes she belongs to.

Accordingly, the district court did not abuse its discretion in

admitting Dr. Cassinelli’s expert testimony.

The Expert Testimony of Mary von Briesen, et al.

Farah argues that the district court improperly allowed

Mary von Briesen, Edward Newman, Michael Comfort, and Stanford

Knight, all lay witnesses, to offer what amounted to expert

testimony about the asylum, lawful permanent residence, or

naturalization process. We review for abuse of discretion. United

States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000).

Federal Rule of Evidence 701 provides that a lay witness may

express opinions that are “(a) rationally based on the perception

of the witness, (b) helpful to a clear understanding of the

witness’ testimony or the determination of a fact in issue, and not

based on scientific, technical, or other specialized knowledge

within the scope of Rule 702 [on testimony by expert witnesses].”

The rule “permits lay witnesses to offer an opinion on the basis of

relevant historical or narrative facts that the witness has

perceived.” Certain Underwriters at Lloyd’s, London v. Sinkovich,

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232 F.3d 200, 203 (4th Cir. 2000) (quotation marks and citations

omitted).

Newman, Comfort, and Knight, former INS immigration examiners,

and von Briesen, an officer at the Department of State, explained

the requirements for obtaining asylum, lawful permanent resident

status, or naturalization, and the applicant’s duty to be truthful.

The four witnesses expressed opinions based on relevant facts that

they perceived in completing departmental functions. Their

opinions about the consequences for an applicant who makes an

untruthful statement on an application were based on firsthand

knowledge of department protocol that is not overly technical or

particularly specialized in nature. In addition, although the

Government conceded that Comfort could be certified as an expert

and that “it [was] certainly sufficient for someone with this man’s

amount of experience to say this is how they were trained, this is

our procedure, this is the law, and this is why the statements are

material,” we cannot say that the district court abused its

discretion in allowing Comfort, any more than it did von Briesen,

Newman, and Knight, to testify as a lay witness rather than as an

expert witness. J.A. 1252-53.

Farah additionally observes that Newman and Comfort did not

process any of her immigration papers or interview her in

conjunction with any of her immigration applications, and Knight

reviewed her application but testified that he could not recall any

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details about his review. Accordingly, Farah argues, their

testimony as to what information is material in determining whether

an immigration application should be granted was mere speculation

as to the information that was actually material to the immigration

officers who did review her applications and, therefore, their

testimony was irrelevant and inadmissible. See Fed. R. Evid. 402.

For the reasons just stated, we find this argument, too,

unavailing. The district court did not abuse its discretion in

allowing the testimony of von Briesen, Comfort, Newman, and Knight.

Motion for Judgment of Acquittal

After the jury returned a guilty verdict, Farah unsuccessfully

moved for judgment of acquittal. She argued that the Government

presented several witnesses who lacked personal knowledge about her

applications for asylum and naturalization, that it presented

insufficient evidence to prove that she was not in the United

States from January 1991 until October 1992, and that it never

offered evidence about Farah’s personal understanding of her clan

identity or evidence to prove that Farah was not persecuted as she

described. We review de novo a district court’s denial of a motion

for judgment of acquittal. United States v. Smith, 451 F.3d 209,

216 (4th Cir. 2006). We must “sustain a guilty verdict if, viewing

the evidence in the light most favorable to the prosecution, the

verdict is supported by ‘substantial evidence.’” Id. (citation

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omitted). Substantial evidence is “evidence that a reasonable

finder of fact could accept as adequate and sufficient to support

a conclusion of a defendant’s guilt beyond a reasonable doubt.”

Id. (citation omitted).

Viewing the evidence in the light most favorable to the

Government, substantial evidence——much of it catalogued earlier in

this opinion——supports the jury’s guilty verdict. The Government’s

case was not without its weaknesses, but the “jury, not the

reviewing court,” fills in the holes as it elects by “weigh[ing]

the credibility of the evidence and resolv[ing] any conflicts in

the evidence presented.” Id. at 217 (citation omitted). Moreover,

even Farah concedes that she has provided “inconsistent statements”

on her immigrations applications and the question is simply whether

her statements were knowingly false as opposed to something more

benign. We sustain the district court’s refusal to enter a

judgment of acquittal.

Motion for a Mistrial

Finally, Farah argues that two statements made by the

Government during closing arguments required the district court to

grant her motion for a mistrial. Because the “denial of a

defendant’s motion for a mistrial is within the sound discretion of

the district court,” we will disturb such a denial “only under the

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most extraordinary of circumstances.” United States v. Dorlouis,

107 F.3d 248, 257 (4th Cir. 1997).

Farah first highlights the Government’s remark that defense

counsel had not offered a defense to Farah’s alleged false

statements and, instead, had merely “attack[ed] the government for

taking the time” to investigate and indict Farah. J.A. 1725.

Farah contends that this statement required a curative instruction,

which the district court declined to give, because it improperly

suggested to the jury that Farah had a burden to present a defense.

Second, the Government surmised to the jury that if it had indicted

Farah any earlier, she would have argued that the Government

“rushed judgment.” J.A. 1727. Farah contends that this statement

led the jury to believe that the Government had been investigating

her since the date of her crime, a suggestion she could not rebut

because she could not use the 1998 INS memorandum at trial.

Our test to determine whether alleged incidents of

prosecutorial misconduct warrant reversal asks first, whether the

prosecutor’s remarks or conduct was improper, and second, whether

such remarks or conduct prejudicially “affected the defendant’s

substantial rights so as to deprive [her] of a fair trial.” United

States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003) (citation

omitted). Under this test, the Government’s statements, taken as

a whole, were merely argumentative——in the fashion of closing

arguments——and therefore not improper. Further, the statements did

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not deprive Farah of a fair trial because the district court

adequately instructed the jury that the burden of proof remained

with the Government and that closing arguments are not evidence.

On these facts, no mistrial was warranted.

III.

For the foregoing reasons, we affirm the rulings of the

district court.

AFFIRMED

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