United States Court of Appeals
For the First Circuit
No. 99-1349
UNITED STATES OF AMERICA,
Appellee,
v.
NASSER NTEGE SEBAGGALA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Ralph J. Perrotta for appellant.
Theodore D. Chuang, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief, for
appellee.
July 16, 2001
SELYA, Circuit Judge. A jury found defendant-appellant
Nasser Ntege Sebaggala guilty of two counts of making false
statements on United States Customs forms, four counts of bank
fraud, and two counts of transporting altered securities. See
18 U.S.C. §§ 1001, 1344, 2314. The district court imposed a
fifteen-month incarcerative term and ordered the appellant to
pay both a $10,000 fine and $44,000 in restitution. The
appellant challenges the sufficiency of the evidence on two
counts, as well as various evidentiary rulings. Discerning no
error, we affirm the judgment below.
I. BACKGROUND
We recount the facts in the light most flattering to
the government's theory of the case, consistent with record
support. See United States v. Singh, 222 F.3d 6, 8 (1st Cir.
2000).
The appellant is a Ugandan national, mayor of the
capitol city of Kampala, proprietor of a successful currency
exchange bureau in Uganda, and a frequent visitor to this
country. On September 29, 1997, he opened an account at a
Waltham, Massachusetts, branch of a Boston bank. Over the next
few months, he caused four fraudulently altered third-party
checks to be deposited in the account. Prior to deposit, each
check had been negotiated at a South African financial
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institution and stolen during subsequent processing within the
banking system. The Boston bank eventually discovered that
these checks were bogus. Before the bank came to that
realization, however, the appellant had withdrawn, transferred,
or otherwise siphoned off substantial sums for personal use,
campaign expenses, and the like.
In the midst of these shenanigans, the appellant went
to Great Britain. He reentered the United States at Logan
International Airport, Boston, Massachusetts, on January 1,
1998, carrying approximately $108,000 worth of travelers' checks
(more than half of which had been reported lost or stolen). He
nonetheless presented customs officials with a completed customs
form (Form 6059B) in which he declared that he was not carrying
currency or monetary instruments in excess of $10,000. When
questioned about this declaration, he orally reaffirmed that he
had less than $10,000 in currency or monetary instruments in his
possession. A customs inspector then asked the appellant how
much he was carrying, and the appellant replied that he had
$4,000 in travelers' checks.
Apparently dissatisfied with this response, customs
officials escorted the appellant to an interview room. When
questioned anew, the appellant began to waffle. He admitted
carrying $40,000 and completed a new form (Form 4790) containing
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that information. A subsequent consensual search of his luggage
revealed the full extent of the travelers' checks in his
possession. Customs officials seized the bulk of the travelers'
checks and permitted the appellant to go about his business.
These events prompted a federal grand jury to indict
the appellant on two counts of making false statements, four
counts of bank fraud, and two counts of illegally transporting
altered securities in foreign commerce. Following a month-long
trial, a jury found him guilty on all counts. This appeal
ensued.
II. ANALYSIS
This appeal encompasses four principal assignments of
error. First, the appellant contends that the district court
erred in denying his motion for judgment of acquittal, Fed. R.
Crim. P. 29, on the false statement counts. Second, he assigns
error to the court's exclusion of proffered expert testimony.
Third, he maintains that the court erred in allowing rebuttal
evidence. Fourth, he posits that the court irretrievably
prejudiced him by permitting the introduction of an unduly large
number of the seized travelers' checks. We address these
asseverations sequentially.
A. The Rule 29 Motion.
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Because the appellant's arguments about the sufficiency
of the evidence on the first and second "false statement" counts
differ from each other, we treat the two counts separately. As
to both counts, however, we review the district court's denial
of the motion for judgment of acquittal de novo. Singh, 222
F.3d at 9. The test is whether the evidence, construed
favorably to the government, permitted rational jurors to
conclude, beyond a reasonable doubt, that the defendant was
guilty as charged. Id. This test sets the bar quite high — and
the appellant fails to clear it on either count.
1. The First False Statement ("Less Than $10,000").
In order to convict a defendant of making a false statement
under 18 U.S.C. § 1001, the prosecution must prove that the
defendant, in a matter within the jurisdiction of the United
States government, knowingly made a material statement to the
government, which was false. United States v. Notarantonio, 758
F.2d 777, 785 (1st Cir. 1985). The appellant concedes falsity
and the government's jurisdiction over customs matters, but
argues vociferously that he did not knowingly make the first
false statement because he misunderstood the question and, in
all events, lacked knowledge that travelers' checks were
included within the definition of "monetary instruments."
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This argument is unpersuasive: the customs form on
which the appellant made his initial declaration referred
specifically to travelers' checks and made crystal clear that
they were reportable monetary instruments. What is more, the
government adduced evidence that the appellant had answered
other questions on the customs form accurately; and that, on a
prior visit to the United States, he had responded to an inquiry
about "how much" he was carrying by alluding to the amount of
travelers' checks in his possession. Then, too, the government
adduced circumstantial evidence which strongly indicated that
the first false statement was not the result of a
misunderstanding: on this record, a rational jury surely could
have inferred that the appellant prevaricated in order to
conceal his possession of a large cache of stolen and altered
travelers' checks.1 To cinch matters, the government presented
proof sufficient to ground a reasonable inference that the
appellant had the facility not only to understand the inquiry
contained on the form but also to appreciate the definitions
incorporated therein. This evidence revealed that the appellant
had earned both a general certificate of education and a
1
This conclusion is buttressed by the fact that even after
customs officials informed him orally that travelers' checks had
to be reported, the appellant gave a second false statement as
to the total amount of travelers' checks in his possession.
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business administration diploma from British educational
institutions; that he had reviewed and discussed English
language materials with George Colvin, an American diplomat, and
Ted Kaster, an American serving as Uganda's honorary consul; and
that various persons (including the customs inspectors with whom
he dealt) found him able to communicate in English without
difficulty.
We see little point in rehearsing the minutiae of the
government's proof. It suffices to say that, on this record, a
finding of scienter was clearly supportable. See Singh, 222
F.3d at 10 (finding sufficient evidence that the defendant, who
answered other questions on Social Security forms intelligently
and was able to communicate with INS officials in English, had
knowledge of false statements); United States v. Rodriguez, 592
F.2d 553, 557 (9th Cir. 1979) (holding that defendant's
execution of a customs form that clearly explained the currency
reporting requirement was sufficient to show that he knowingly
made a false statement).
The appellant has a fallback position: he points out
that he admitted, the second time around, to carrying over
$10,000 in currency equivalents. He treats this second
declaration as "amending" the first and, analogizing to cases
involving perjury, e.g., United States v. Scivola, 766 F.2d 37,
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43-46 (1st Cir. 1985); United States v. Goguen, 723 F.2d 1012,
1016-18 (1st Cir. 1983), he says that this "amendment" negated
his earlier false statement.
The analogy is not apt. Although an individual
sometimes can avoid a perjury prosecution by recanting a prior
false statement, that result flows from a specific statutory
provision applicable only to perjury cases.2 The statute under
which the appellant was charged and convicted is devoid of any
comparable safe harbor; it simply provides for criminal
consequences if a person “knowingly and willfully makes any
materially false, fictitious, or fraudulent statement or
representation" in a matter within the government's
jurisdiction. 18 U.S.C. § 1001. The appellant cites no
authority that would support transplanting the provisions of
section 1623(d) into the unreceptive soil of section 1001. For
2The perjury statute provides in pertinent part:
Where, in the same continuous court or grand
jury proceeding in which a declaration is
made, the person making the declaration
admits such declaration to be false, such
admission shall bar prosecution under this
section if, at the time the admission is
made, the declaration has not substantially
affected the proceeding, or it has not
become manifest that such falsity has been
or will be exposed.
18 U.S.C. § 1623(d).
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our part, we see no basis for writing into section 1001 a
recantation defense that Congress chose to omit. After all,
"[c]ourts may not create their own limitations on legislation,
no matter how alluring the policy arguments for doing so."
Brogan v. United States, 522 U.S. 398, 408 (1998).
We hasten to add that the appellant's argument would
fail even if the criteria found in 18 U.S.C. § 1623(d) were
imported into prosecutions brought under 18 U.S.C. § 1001. In
order effectively to recant a prior perjurious statement, the
declarant must make an outright retraction and repudiation. See
Scivola, 766 F.2d at 45. He also must "explain unambiguously
and specifically" the respects in which his earlier answer was
false. Goguen, 723 F.2d at 1018. In this case, the appellant
never tendered either an outright retraction or a meaningful
explanation of his first false statement: he did nothing more
than substitute a second false statement for it. The core
purpose of the recantation provision is "to encourage truthful
testimony." United States v. Moore, 613 F.2d 1029, 1040 (D.C.
Cir. 1979) (citing legislative history). In light of this
purpose, we do not believe that a person can recant simply by
replacing one lie with another.
2. The Second False Statement ("$40,000"). The
appellant asserts that as long as he reported possession of over
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$10,000 in currency or currency equivalents, any inaccuracy in
the total amount reported was immaterial (and, thus, his second
false statement was not violative of 18 U.S.C. § 1001).
Although the appellant's underlying premise is correct —
materiality is an element of a section 1001 offense, United
States v. Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994) — this
assertion lacks force.
The controlling legal principle is well-settled. The
test of materiality is whether the false statement in question
had a natural tendency to influence, or was capable of
influencing, a governmental function. Id.; Notarantonio, 758
F.2d at 785. Thus, if a statement could have provoked
governmental action, it is material regardless of whether the
agency actually relied upon it. United States v. Corsino, 812
F.2d 26, 31 (1st Cir. 1987); United States v. Alemany Rivera,
781 F.2d 229, 234 (1st Cir. 1985).
The evidence presented at trial was sufficient to
support a reasonable inference that the appellant's second false
statement — his claim that he possessed $40,000 in travelers'
checks — was material. The second false statement was inscribed
on a form that specifically required a declaration of the total
amount of currency or monetary instruments being transported.
The form explained quite plainly that a failure to disclose the
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correct amount would subject the declarant to criminal or civil
penalties. Testimony at the trial indicated that the amount
reported by a person entering the country bears directly upon
customs officials' decisions about what further action (if any)
should be taken (e.g., whether to seize the currency or currency
equivalents in the declarant’s possession, whether to
investigate the matter further, etc.). Given this testimony, it
seems self-evident that an underreporting of some $68,000,
comprising more than 150% of the amount falsely reported, had
the potential to influence customs officials' actions. See,
e.g., United States v. Yuzary, 55 F.3d 47, 48 (2d Cir. 1995)
(upholding conviction under 18 U.S.C. § 1001 when defendant was
carrying $480,000 but reported only $30,000); United States v.
Masters, 612 F.2d 1117, 1122 (9th Cir. 1979) (affirming section
1001 conviction for underreporting of $22,670); cf. United
States v. McGough, 510 F.2d 598, 603 (5th Cir. 1975) (finding
that understatements in financial statements had the capacity to
influence the conduct of a government function and thus were
material to false statement charges under section 1001). We
conclude, therefore, that the government adduced sufficient
evidence to satisfy the materiality element of section 1001 in
respect to the second false statement.
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B. The Proffered Expert Testimony.
The appellant next assigns error to the district
court's refusal to allow a proffered expert witness, Dr.
Aloysius Lugira, to testify on the linguistic and cultural
traits of the Baganda tribe (to which the appellant belongs).
The appellant argues that this testimony, if admitted, would
have aided the jury in assessing his ability to understand the
forms that he signed (and, therefore, his culpability vel non on
the two false statement counts).
Federal Rule of Evidence 702 provides in relevant part
that "[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise," as long
as certain conditions are satisfied. When the issue is whether
expert testimony will (or will not) materially assist a jury
within the intendment of this rule, trial courts enjoy
considerable latitude in deciding whether to admit or exclude
it. See United States v. Ladd, 885 F.2d 954, 959 (1st Cir.
1989); United States v. Wilson, 798 F.2d 509, 517 (1st Cir.
1986). As we wrote some fourteen years ago:
The trial judge has a hands-on familiarity
with the nuances of the case — nuances which
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may not survive transplantation into a cold
appellate record. Thus, the district
court's assessment of what will or will not
assist the jury is entitled to considerable
deference in the Rule 702 milieu.
United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987).
We review the district court's rulings on the admission
or exclusion of expert testimony for abuse of discretion.
United States v. Montas, 41 F.3d 775, 783 (1st Cir. 1994). We
discern no such abuse in the lower court's refusal to admit the
proffered testimony anent linguistic and cultural traits
associated with the Baganda tribe. The court considered the
proffer fully and concluded that Dr. Lugira's proposed testimony
was grounded primarily in "anecdotal experiences" and was
"speculative at best." In the court's view, this testimony
would not materially assist the jury in assessing the
appellant's ability to comprehend customs forms. We explain
briefly why this determination was well within the encincture of
the lower court's discretion.
To the extent that the proffered testimony concerned
Bagandan cultural tribal traits and customs (including
affability), the connection between it and the issues in the
case seems tenuous at best. To the extent that the proffered
testimony concerned tribal forms of nonverbal communication, the
appellant employed none in this instance (and, thus, the
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testimony seems totally irrelevant). Finally, to the extent
that the proffered testimony concerned linguistic aptitude, it
was simply unnecessary.
One of the criteria for the admission of expert
testimony under Rule 702 is whether a lay person can be expected
to decide the issue intelligently without an expert's help. See
United States v. Salimonu, 182 F.3d 63, 73-74 (1st Cir. 1999);
United States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995); see
also Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d
77, 81 (1st Cir. 1998). Here, common sense supports the
district court's determination that jurors would understand,
without the aid of expert testimony, that an individual whose
primary language is other than English might have difficulty
comprehending bureaucratic forms.
C. The Rebuttal Evidence.
The appellant next complains that the district court
erroneously permitted the government to call rebuttal witnesses
regarding his proficiency in the English language. This
complaint need not occupy us for long. Appellate courts
traditionally afford trial courts a wide berth in respect to
regulating the scope of rebuttal testimony. See Geders v.
United States, 425 U.S. 80, 86-87 (1976); Faigin v. Kelly, 184
F.3d 67, 85 (1st Cir. 1999). We review challenges to such
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rulings for abuse of discretion, Faigin, 184 F.3d at 85; United
States v. LiCausi, 167 F.3d 36, 52 (1st Cir. 1999), and we find
none here.
In his case in chief, the appellant presented several
witnesses, some of them Ugandan nationals, who testified that he
had difficulty speaking and understanding English. To counter
this evidence, the government sought to present rebuttal
witnesses who had found the appellant proficient in reading and
speaking English. We think that it was permissible for the
district court to allow the government to proceed in this
fashion. It is a bedrock principle that “[r]ebuttal evidence
may be introduced to explain, repel, contradict or disprove an
adversary's proof," United States v. Laboy, 909 F.2d 581, 588
(1st Cir. 1990), and this case is a classic example of the
genre. Consequently, we reject the appellant's third assignment
of error.
D. Rule 403.
The appellant's final argument posits that the district
court denied him a fair trial on the bank fraud and
transportation of altered securities counts by allowing the
government to introduce, over objection, the mass of travelers'
checks seized at the airport. The appellant claims that this
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blizzard of stolen and altered paper amounted to "bad act
overkill" which overshadowed the real issues in the case and
compromised the fairness of the trial.
We set the stage. The appellant filed two pretrial
motions: a motion in limine to exclude anticipated government
evidence and a motion for relief from prejudicial joinder. By
these motions, he sought either to bar introduction of the
seized travelers' checks or to sever the false statement charges
from the remainder of the indictment. The district court denied
both motions. It found that the stolen and altered travelers'
checks had distinct probative value in regard to the false
statement counts because they provided a likely motive for
attempting to deceive the customs officials. It also found that
the travelers' checks were relevant as to the other charges and
that the danger of unfair prejudice did not substantially
outweigh their probative value.
The checks were admitted en masse at trial. The
appellant now challenges the district court's denial of his
motion in limine and simultaneously challenges the denial of his
post-trial motion for a new trial (which raised essentially the
same point). He does not, however, appeal from the denial of
the motion for severance.
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A two-pronged framework implementing Federal Rule of
Evidence 404(b) governs the admissibility of "bad act" evidence.3
First, the proffered evidence must not merely show a defendant's
reprehensible character or predisposition towards knavery, but,
rather, must possess some special relevance to a disputed issue
in the case. Udemba v. Nicoli, 237 F.3d 8, 15 (1st Cir. 2001);
United States v. Devin, 918 F.2d 280, 286 (1st Cir. 1990). Even
if the evidence so qualifies, it still must run a second
gauntlet; Rule 404(b) incorporates sub silentio the prophylaxis
of Federal Rule of Evidence 403.4 This means that the evidence,
3The rule provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake
or accident.
Fed. R. Evid. 404(b).
4The latter rule provides:
Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair
prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence.
Fed. R. Evid. 403.
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although relevant, nonetheless must be rejected if its likely
prejudicial impact substantially outweighs its likely probative
worth. Veranda Beach Club Ltd. P'ship v. W. Sur. Co., 936 F.2d
1364, 1373 (1st Cir. 1991); Devin, 918 F.2d at 286.
We review the trial judge's decision to admit or
exclude Rule 404(b) evidence for abuse of discretion. United
States v. Guyon, 27 F.3d 723, 729 (1st Cir. 1994); United States
v. Hadfield, 918 F.2d 987, 994-95 (1st Cir. 1990). In this
instance, no such abuse occurred. The disputed evidence easily
passes the initial Rule 404(b) screen. As the district court
recognized, the stolen and altered travelers' checks were
probative of motive on the false statement counts; their
existence furnished a cogent reason for the appellant to lie to
the customs inspectors about the value of the monetary
instruments in his possession.
By the same token, the seized travelers’ checks also
were probative of scienter in respect to the bank fraud and
transportation of altered securities counts. The majority of
the travelers' checks in the appellant’s possession displayed a
large rubber stamp that concealed an underlying bank processing
stamp. This same model stamp was used to modify three of the
four checks involved in the bank fraud counts. Two of these
same checks — which were boosted, respectively, from 99¢ to
$39,000, and from $2,340.43 to $99,000 — formed the basis for
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the transportation counts. Moreover, a significant number of
the travelers' checks were stolen from a single financial
institution, Standard Bank of South Africa, as were three of the
checks involved in the bank fraud counts. Again, the
transportation counts were founded on two of these same checks.
In short, the similarities shared by the travelers' checks and
the third-party checks that formed the basis of the other
charges sufficed to show the requisite special relevance. See,
e.g., United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir.
1983) (finding evidence of prior fraudulent credit-card
transactions relevant to rebut claim of innocent involvement in
subsequent credit-card fraud).
The challenged evidence also passes the second screen.
We have observed before that "[o]nly rarely — and in
extraordinarily compelling circumstances — will we, from the
vista of a cold appellate record, reverse a district court's on-
the-spot judgment concerning the relative weighing of probative
value and unfair effect." Freeman v. Package Mach. Co., 865
F.2d 1331, 1340 (1st Cir. 1988). There is nothing so
extraordinary about the circumstances here as would impel us to
second-guess the district court's careful calibration of the
probative value/prejudicial effect scales. Evidence of
uncharged fraud activity that is substantially similar to the
activity underlying a charged fraud scheme often is admitted to
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show knowledge or intent to defraud with respect to the charged
fraud scheme. See, e.g., Guyon, 27 F.3d at 729; United States
v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989); United
States v. Scelzo, 810 F.2d 2, 4 (1st Cir. 1987). And, we see
little risk here that the evidence — which had obvious probative
value — was likely to have overwhelmed the jurors' emotions or
led them to behave irrationally. We therefore decline to
disturb the district court's fact-sensitive judgment concerning
the admissibility of the travelers' checks under the Rule 403
balancing test.
III. CONCLUSION
We need go no further. To the extent that the
appellant advances other arguments, they are insubstantial and
do not require comment. It suffices to say that the appellant
was fairly tried and justly convicted. The judgment below
must, therefore, be
Affirmed.
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