UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5753

KWAME YAMOAH AFRIFA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-95-100-A)

Argued: May 10, 1996

Decided: July 3, 1996

Before RUSSELL and LUTTIG, Circuit Judges,
and CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Roger Allen Eddleman, Falls Church, Virginia, for
Appellant. Thomas Craig Bradley, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Kwame Yamoah Afrifa appeals his conviction and sentence for
making false statements on a passport application in violation of 18
U.S.C. § 1542, and for making false statements to an agent of the
United States in violation of 18 U.S.C. § 1001. Afrifa raises varied
constitutional and procedural claims. Because none of Afrifa's rights
were violated, we affirm his sentence and conviction.

I.

On August 15, 1991, Afrifa submitted a fraudulent United States
passport application to the Trade Center Post Office in Alexandria,
Virginia, along with a Virginia driver's license and a forged United
States Virgin Islands birth certificate. The evidence of record showed
that the photographs accompanying the passport application were of
Afrifa and that Afrifa's fingerprints were found on both the original
passport application and on the forged birth certificate. The handwrit-
ing on the application was also identified as Afrifa's.

Afrifa was tried twice. The first jury was unable to reach a unani-
mous verdict. A month later he was retried. During his second trial,
at which he was convicted, Afrifa continued to deny having filled out
the fraudulent passport application, continued to deny having fled
from U.S. agents at the time of his arrest, and continued to claim that
his fingerprints appeared on the application forms because U.S.
agents handed him the originals some time after his arrest.

II.

Afrifa asserts that the district court violated his Fifth Amendment
due process right and his Sixth Amendment right to confront wit-
nesses. Afrifa argues that the district court violated his due process

                     2
right to a fair trial by denying his motion in limine to exclude the
Government's handwriting expert from testifying. Afrifa believes that
the expert's testimony should have been excluded because the Gov-
ernment violated Fed. R. Crim. P. 16(a)(1)(E) by not timely providing
Afrifa with the basis and reasons for the expert's opinion that Afrifa
had disguised his handwriting on the fraudulent passport application.
Afrifa alternatively argues that the district court should have granted
him a continuance because the Government's withholding of Rule 16
materials prejudiced his ability to adequately prepare for cross-
examination of the Government's expert. We disagree with each of
Afrifa's arguments.

Afrifa contends that in order for the expert's testimony to have
been properly permitted, the Government should have given him the
basis and reasons for the expert's opinion sooner than the evening
before his second trial. A district court's ruling on a Rule 16 motion
is reviewable only for abuse of discretion. United States v. Jackson,
51 F.3d 646, 651 (7th Cir. 1995) (holding that the government's sum-
mary of expert testimony regarding drug courier profiles sufficiently
described the basis for expert opinion and witness qualifications,
where the statement showed that testimony would be based on the
witnesses' years of training and experience as drug agents).

Rule 16(a)(1)(E) does not specify how many days in advance of
trial Rule 16 matters must be made available to the defendant. The
rule only entitles the defendant to such materials, upon the defen-
dant's request. Rule 16(a)(1)(E) states:

          At the defendant's request, the government shall disclose to
          the defendant a written summary of testimony the govern-
          ment intends to use under Rules 702, 703, or 705 of the Fed-
          eral Rules of Evidence during its case in chief at trial. This
          summary must describe the witnesses' opinions, the basis
          and the reasons therefore, and the witnesses qualifications.

Fed. R. Crim. P. 16(a)(1)(E). Because the rule is silent on a discovery
deadline, the trial court often sets a deadline in its pre-trial discovery
order with which the Government must comply when providing Rule
16(a)(1)(E) materials. In the instant case however, no deadline was set
in the district court's pre-trial order.

                     3
Afrifa's trial began on Wednesday June 21, 1995. Although Afrifa
received the expert's final report the evening before trial, the evidence
of record reveals that Afrifa received portions of the expert's sum-
mary during the week prior to trial. In fact, on June 15, six days
before trial, the Government orally informed Afrifa that it intended to
call its handwriting expert to testify against Afrifa. The Government
informed Afrifa as to the nature of the expert's testimony. The expert
would testify that after comparing various documents, known to have
been completed by Afrifa, to the passport application, she had deter-
mined that there were similarities sufficient to conclude that the same
person wrote the documents. On Monday, June 19, Afrifa was pro-
vided with a two-page summary of the expert's analysis indicating her
findings. This summary also informed Afrifa of the exhibits that the
Government had prepared for trial. Regardless of this notice, Afrifa
already knew that the specific documents used in the comparison
study had been filed with the court on Wednesday, June 14, one week
in advance of trial. Furthermore, Afrifa had known that handwritting
was going to be an issue in his second trial because he had made
handwriting analysis an issue in his first trial. And it was clear that
the Government was going to pursue the handwriting issue in the sec-
ond trial because it asked Afrifa to provide writing exemplars.

With this information before it, the district court dismissed Afrifa's
motion in limine. The district court found:

          The defendant's claim of unfair surprise relating to hand-
          writing of course is without foundation. The issue of hand-
          writing had been alive and at the forefront since the mistrial
          in this case some time ago. It was very clear, since the
          Defendant made a great issue of it last time, that it would
          be an issue at the retrial. So it was obvious to the Defendant
          from the start that this would be an issue, and the Defendant
          had every opportunity to pursue his own handwriting
          experts.

          With respect to the notice, Rule 16 does refer to a written
          summary. It appears that on Thursday, June 15th, the Defen-
          dant received oral notice of the opinions that were to be ren-
          dered. And while the oral notice did not discuss precisely
          which characters were similar and where they appeared on

                     4
          the paper, it did indicate which documents were compared,
          and the fact that she as an expert had found them similar.
          There was no written report that she had given as of that
          time, as I understand it.

          Then on the 19th of June, which is Monday, the Defen-
          dant was provided with a two-page summary of findings by
          the document analyst indicating what her findings were and
          what exhibits, precisely were prepared. . . .

          All right. As I see, the Rule 16 discovery order that has
          been entered, no deadline is set, nor does the rule set any
          deadline for the production of that information. So the Court
          really must focus on whether there is any fundamental
          unfairness to the Defendant in this regard, and the Court
          concludes ultimately there isn't. This Defendant has had
          ample notice that handwriting was going to be an issue in
          this case. He's had ample notice of what was going to be
          compared. He had the documents. . . .

          The Court, accordingly, denies the motion for a continu-
          ance, and it also denies the motion in limine with respect to
          excluding the expert witness.

J.A. 360-64.

We hold the district court did not abuse its discretion in dismissing
Afrifa's motion in limine to exclude the expert testimony. Although
Afrifa was not provided a written summary of the expert's testimony
until the day before trial, he had received all of the report's contents
before having received the actual report. Therefore, Afrifa was not
unduly surprised when he received the expert's report, and his right
of due process was not violated.

Afrifa's alternative claim that the district court violated his Sixth
Amendment right to confront witnesses is also meritless. As discussed
above, Afrifa was put on notice of the Government's intended use of
a handwriting expert when, after his first trial the Government
requested that he provide writing exemplars. For over a month before

                     5
the start of his second trial, Afrifa knew that his handwriting was
going to be an issue. Because Afrifa knew of the charges leveled
against him and because he had notice that the Government intended
to use a handwriting expert, Afrifa should have secured his own
expert to rebut any anticipated testimony of the Government's expert.
Furthermore, Afrifa had adequate notice of the expert's identity
because the Government filed a Disclosure of Expert Witnesses,
which included the expert's resume and curriculum vitae. Afrifa could
have contacted the expert and interviewed her regarding her proposed
testimony. Had Afrifa taken these precautions, he would have been
better prepared to cross-examine the expert and defend himself at
trial. Thus, we hold that Afrifa's right to confront witnesses was not
prejudiced.

III.

Afrifa also contends the district court abused its discretion in fail-
ing to grant a mistrial when the Government began cross-examining
Afrifa about his fraudulent marriage to gain citizenship and his former
status as an illegal alien. We find that the district court's actions did
not amount to a clear abuse of discretion.

On cross-examination Afrifa was asked:

          Q: Isn't it a fact that you arranged this marriage by offer-
          ing to pay Maureen Ball what --

          Defense Counsel: I object . . . .

The objection was sustained before Afrifa could respond. A bench
conference followed, after which the Government then asked whether
Afrifa was illegally in the United States at the time of this marriage.
Again, before he could answer, Afrifa's counsel objected, and the dis-
trict court sustained the objection.

After a brief bench conference defense counsel moved for a mis-
trial. The district court overruled the motion stating: "There is no
basis for that motion in the Court's view. . . . And, of course ladies
and gentlemen you're instructed to disregard the question entirely."

                     6
J.A. 632. During the remainder of the trial, the Government made no
further inquiries or references implying that Afrifa's marriage was a
sham or that he had been in the United States illegally.

Denial of mistrial is reviewable only for abuse of discretion. United
States v. Dorsey, 45 F.3d 809, 817 (1995). For the trial court's ruling
to constitute a clear abuse of discretion, the defendant must show
prejudice. Id.

The following four factors aid in determining whether or not the
Government's questions prejudiced Afrifa's case:

          1) the degree to which the prosecutor's remarks have a
          tendency to mislead the jury and to prejudice the
          accused;

          2) whether the remarks were so isolated or extensive;

          3) absent the remarks, the strength of competent proof
          introduced to establish the guilt of the accused; and

          4) whether the comments were deliberately placed before
          the jury to divert attention to extraneous matters.

United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983), cert.
denied, 466 U.S. 972 (1984). Despite Afrifa's protestations otherwise,
a finding of prejudice cannot be found when we review the Govern-
ment's inquiries in light of the four factors.

First, based on the evidence of record, there is no colorable claim
that the remarks mislead the jury or had the tendency to mislead the
jury. The district court sustained Afrifa's objections following each
question and gave a curative instruction regarding the second inquiry.
Furthermore, the district court prohibited the Government from pursu-
ing either of these lines of cross-examination. The jury instructions
also helped cure any potential prejudice by reminding the jurors that
"when the court has sustained an objection to a question addressed to
a witness, the jury must disregard the question and may draw no
inference from the wording of it, or speculate as to what the witness

                    7
would have said had she or he been permitted to answer the question."
J.A. at 291-92.

Second, the Government's inquiries were brief, isolated, and went
unanswered.

Third, the jury could make individual guilt determinations based on
the Government's presentation of forensic evidence of fingerprints,
photographs, and handwriting analysis.

Fourth, there is no evidence that the comments were deliberately
placed before the jury to divert attention to extraneous matters.

Accordingly, we hold the district court did not abuse its discretion
in not granting Afrifa's motion for a mistrial.

IV.

We have considered the other arguments Afrifa raised, all of which
we determine are without merit. We therefore affirm Afrifa's convic-
tion and sentence for violating 18 U.S.C. § 1542 and 18 U.S.C.
§ 1001.

AFFIRMED

                    8
