UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4323
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TSOMORLIG BATJARGAL, a/k/a Somoun,
Defendant - Appellant.
No. 08-4324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LLOYD W. MINER, a/k/a Rico,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District Judge.
(1:07-cr-00190-LO-2; 1:07-cr-00190-LO-1)
Submitted: August 25, 2008 Decided: December 8, 2008
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Cristin Traylor, MCGUIREWOODS, LLP, Richmond, Virginia; Mark
Diamond, Richmond, Virginia, for Appellants. Chuck Rosenberg,
United States Attorney, Ronald L. Walutes, Jr., Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Tsomorlig Batjargal and
Lloyd W. Miner challenge their convictions. Miner also challenges
his sentencing. After a jury trial, Batjargal was convicted of one
count of conspiracy to commit fraud with an identification
document, in violation of 18 U.S.C.A. § 1028(a)(1), (b)(1)(A)(ii)
and (f) (West 2000 & Supp. 2008), and Miner was convicted of one
count of concealing, harboring or shielding from detection an
illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and
(a)(1)(B)(ii) (2006) and one count of encouraging an illegal alien
to enter and reside in the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iv) and (a)(1)(B)(ii) (2006). Both Appellants
challenge the sufficiency of the evidence supporting the
convictions. Batjargal also claims the district court erred by
denying her motion for a mistrial or in the alternative, a
severance, based on remarks made by Miner’s counsel during his
opening and closing statements. Miner claims the court erred by
admitting photographic evidence of trips he took with a friend. He
also challenges remarks made by the prosecutor during the closing
argument. In addition, he claims the district court erred by
applying a two-level enhancement for obstruction of justice.
Finding no error, we affirm.
We review the district court’s denial of a motion for
judgment of acquittal de novo, and its ruling on a motion for a new
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trial for abuse of discretion. See United States v. Smith, 451
F.3d 209, 216 (4th Cir. 2006); United States v. Ryan-Webster, 353
F.3d 353, 359 (4th Cir. 2003). A defendant challenging the
sufficiency of the evidence faces a heavy burden. United States v.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). “[A]n appellate
court’s reversal of a conviction on grounds of insufficient
evidence should be confined to cases where the prosecution’s
failure is clear.” United States v. Jones, 735 F.2d 785, 791 (4th
Cir. 1984). A jury’s verdict must be upheld on appeal if there is
substantial evidence in the record to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942). In determining whether the
evidence in the record is substantial, this court views the
evidence in the light most favorable to the government, and
inquires whether there 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. United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). In evaluating
the sufficiency of the evidence, this court does not review the
credibility of the witnesses and assumes that the jury resolved all
contradictions in the testimony in favor of the government. United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
We find there was sufficient evidence supporting
Batjargal’s conviction. The evidence showed she traveled to
Washington State because it was easier to get a driver’s license
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there than it would have been to renew her license in Virginia.
Batjargal never lived in Washington State, nor did she intend on
living there in the future. In addition, in order to get her
Washington State driver’s license, she used a friend’s Washington
State address as her place of residence. In addition to allowing
her to use her address, her friend took her to the DMV so she could
get her license.
With respect to Miner, we find sufficient evidence shows
that he knew Batjargal was no longer in the United States legally
because she was no longer attending school as was required under
her student visa. The evidence further shows Miner encouraged her
to stay in the United States despite her illegal status and that he
harbored her by providing her with a place to live, an automobile,
a cell phone, auto insurance and gym membership. We find Miner’s
argument that the statute is unconstitutional because it is vague
to be without merit. See United States v. Terrazas-Carrasco, 861
F.2d 93, 96-97 (5th Cir. 1988); United States v. Gonzalez-
Hernandez, 534 F.2d 1353, 1354 (9th Cir. 1976); United States v.
Cantu, 501 F.2d 1019, 1021 (7th Cir. 1972).
Batjargal claims that Miner’s counsel’s statement during
his opening remarks violated her right against self-incrimination
because he stated she would testify. The Fifth Amendment right
against self-incrimination protects a defendant’s decision not to
testify. Comments made during a trial regarding a defendant’s
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decision not to testify may be harmful if the comments invite the
jury to infer guilt from the defendant’s decision not to testify.
See Lakeside v. Oregon, 435 U.S. 333, 338-39 (1978). The inference
of guilt may compel a defendant to testify. Id. at 339. We find
Batjargal was not prejudiced by counsel’s remark. The statement
did not violate her Fifth Amendment right not to testify. Nor did
the statement infer that she was guilty if she chose not to
testify. Moreover, the evidence establishing her guilt was
overwhelming. Thus, we find the court did not abuse its discretion
by denying the motion for a mistrial. United States v. Wallace,
515 F.3d 327, 330 (4th Cir. 2008) (stating standard of review).
We further find the district court did not abuse its
discretion by denying the motion for severance. Zafiro v. United
States, 506 U.S. 534, 541 (1993); United States v. Khan, 461 F.3d
477, 490 (4th Cir. 2006). Batjargal was not unfairly prejudiced by
the joinder. We also find Miner’s counsel’s statement during the
summation was not improper. The evidence supported counsel’s
argument that Batjargal conspired with another individual.
Furthermore, the indictment charged Batjargal and Miner with
conspiring and agreeing to together and “with other persons known
to the grand jury” unlawfully produce an identification document.
We also find the defenses put forth by Batjargal and Miner were not
irreconcilable. Their defenses did not rely on accusing the other
of the offense.
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Miner challenges the district court’s decision to admit
certain photographs showing him on vacation with a Government
witness who was testifying with hope of getting a lower sentence
for convictions, none of which involved Miner. We review the
district court’s admission of evidence for an abuse of discretion.
See United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004). An
abuse of discretion occurs “only when it can be said that the trial
court acted arbitrarily or irrationally in admitting evidence.”
United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006)
(internal quotation marks and citation omitted). Evidentiary
rulings are subject to harmless error analysis. United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997). We find the district
court did not abuse its discretion by finding the photographs were
relevant and that the probative value was not substantially
outweighed by the danger of unfair prejudice.
We further find that the prosecutor’s closing remarks
were not improper. A claim of prosecutorial misconduct is reviewed
to determine whether the conduct complained of so infected the
trial with unfairness as to make the resulting conviction a denial
of due process. United States v. Scheetz, 293 F.3d 175, 185 (4th
Cir. 2002). To prevail under this standard, Miner must show that
“the prosecutor’s remarks or conduct were improper and,
second . . . that such remarks or conduct prejudicially affected
his substantial rights” so as to deprive him of a fair trial. Id.
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Whether prejudice exists is in turn established by the following:
(1) the degree to which the prosecutor’s remarks had a tendency to
mislead the jury; (2) whether the remarks were isolated or
extensive; (3) the strength of competent proof introduced to
establish defendant’s guilt; (4) whether the prosecutor’s remarks
were invited by the improper conduct of defense counsel; and
(5) whether curative instructions were given. Id. at 186. No one
factor is dispositive. United States v. Wilson, 135 F.3d 291, 299
(4th Cir. 1998). Even if the statements were improper, Miner
failed to show he was prejudiced.
Miner also challenges the district court’s decision to
enhance his offense level by two for obstructing justice under U.S.
Sentencing Guidelines § 3C1.1 (2007). The district court’s factual
findings supporting the obstruction of justice enhancement are
reviewed for clear error. United States v. Kiulin, 360 F.3d 456,
460 (4th Cir. 2004). Questions of law regarding the district
court’s application of the Sentencing Guidelines are reviewed de
novo. United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).
Pursuant to the remedial portion of United States v. Booker, 543
U.S. 220 (2005), district courts continue to make this
determination based on the preponderance of the evidence, taking
into account that the resulting guidelines range is advisory only.
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). Thus,
the conduct for which Miner received the enhancement was not
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required to be charged in the indictment or proven beyond a
reasonable doubt. We further find the obstructive conduct, which
was supported by a preponderance of the evidence, was related to
the convictions. Accordingly, the district court did not abuse its
discretion by applying the two level enhancement.
Accordingly, we affirm the convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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