FILED
NOT FOR PUBLICATION MAR 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10129
Plaintiff - Appellee, D.C. No. 3:07-cr-00677-CRB
v.
MEMORANDUM *
DORIS AKUYOMA ANYANWU,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-10130
Plaintiff - Appellee, D.C. No. 3:07-cr-00677-CRB
v.
ANDREW IHENTUGE ASHIEGBU,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted September 10, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.
Appellant Andrew Ashiegbu (Ashiegbu) challenges his convictions for
making a false statement on an immigration document, and conspiring to make a
false statement to a federal agency. Appellant Doris Anyanwu (Anyanwu)
challenges her convictions for making a false statement on an immigration
document, making a false statement to a federal agency, and conspiring to make
false statements to a federal agency.
1. The district court did not abuse its discretion when it admitted Ashiegbu’s
1995 declaration pursuant to Fed. R. Evid. 404(b), as the declaration was probative
of Ashiegbu’s modus operandi in making false statements to obtain citizenship for
his relatives. See United States v. Gonzalez, 533 F.3d 1057, 1064 (9th Cir. 2008)
(“Beyond propensity, the evidence established a way of behavior that could be
reasonably relied upon by a juror to convict [Ashiegbu] of the charged offenses.”).
The district court also considered whether the declaration was more
probative than prejudicial pursuant to Fed. R. Evid. 403. See United States v.
Cherer, 513 F.3d 1150, 1159 (9th Cir. 2008) (“In allowing Rule 404(b) evidence, a
district court is not required to recite the corresponding Rule 403 balancing
analysis for the record. It is enough that this court can conclude, based on a review
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of the record, that the district court considered Rule 403’s requirements.” ) (citation
and parentheses omitted).
2. Because Ashiegbu did not testify, the district court correctly applied Fed. R.
Evid. 404(b) in lieu of Fed. R. Evid. 608 in admitting the 1995 declaration. See
United States v. Scott, 74 F.3d 175, 177 (9th Cir. 1996) (“Federal Rule of Evidence
608(b) specifically contemplates inquiries into prior behavior in order to challenge
a witness’s credibility.”) (citation and alterations omitted).
3. Allowing the government to appeal to fairness and societal problems in its
closing argument was not plain error warranting reversal of Ashiegbu’s conviction.
See United States v. Inzunza, 580 F.3d 894, 910 (9th Cir. 2009).
4. As conceded by Ashiegbu in his reply brief, the government did not
argue that Ashiegbu could be convicted even if he had no knowledge of the false
statement.
5. There was sufficient evidence supporting the convictions as “any rational
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trier of fact could have found the essential elements of the crime[s] beyond a
reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)
(en banc) (citations omitted) (emphasis in the original).
6. The district court’s error in adding an extraneous “not” to Ninth
Circuit Model Criminal Jury Instruction 3.5 on reasonable doubt does not compel
reversal of the appellants’ convictions because the instructions clearly conveyed
the government’s burden. See United States v. Soto, 519 F.3d 927, 932 (9th Cir.
2008) (“Here, the district court repeatedly emphasized the government’s burden to
prove all elements of the offense beyond a reasonable doubt. In light of those clear
jury instructions . . . there is no likelihood that the jury understood that any lower
standard of proof could suffice.”) (footnote reference omitted).
7. We decline to alter the model instruction on reasonable doubt pursuant to
our supervisory powers. The instruction’s exclusion of speculation as a basis for
reasonable doubt comports with the law. See Ramirez v. Hatcher, 136 F.3d 1209,
1212-13 (9th Cir. 1998) (“The Supreme Court has expressly approved this contrast
between reasonable doubt and mere possible doubt, and doubt that does not rise
4
above pure speculation is not reasonable.”) (citations and internal quotation marks
omitted).
8. Because the district court’s evidentiary rulings were proper, the prosecutor’s
comments did not affect the trial, and the district court adequately instructed the
jury on reasonable doubt, “[t]here is no cumulative error warranting reversal.”
United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008) (citation omitted).
AFFIRMED.
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