                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 11-13975         ELEVENTH CIRCUIT
                                                     JUNE 25, 2012
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                 D.C. Docket No. 1:11-cr-00034-KD-B-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

AMJAD YACOUB SAHAVNEH,

                                                        Defendant-Appellant.

                     ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                      ________________________

                             (June 25, 2012)

Before HULL, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
      After a jury trial, Defendant Amjad Sahavneh appeals his conviction for

encouraging and inducing an alien, his nephew and co-defendant Mann Haddad, to

reside illegally in the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv).

On appeal, Sahavneh raises two evidentiary issues. To understand them requires

us to outline Sahavneh’s own immigration proceedings and then what happened at

trial. After full review, we conclude Sahavneh has shown no error in his trial.

                                I. BACKGROUND

A.    Defendant Sahavneh’s Immigration Proceedings

      Defendant Sahavneh was born and raised in Jordan. In 1989, Sahavneh

came to the United States on a student visa. In 1992, Sahavneh married a United

States citizen, and Sahavneh’s wife filed an I-130 visa petition on Sahavneh’s

behalf. In May 1993, Sahavneh filed an I-485 petition for adjustment of status to

lawful permanent resident based on his marriage. After immigration interviews in

1993 and 1995, Sahavneh’s petition was initially denied, but was later granted,

and, in 1997, his status was adjusted to lawful permanent resident.

      In 2001, Sahavneh and his wife divorced. In 2002, Sahavneh applied for

naturalization based on his five years as a lawful permanent resident. After his

application was granted, Sahavneh became a U.S. citizen in 2003.

B.    Co-Defendant Haddad’s Immigration Proceedings

                                          2
      At the time of the charged offense, Defendant Sahavneh operated a package

store in Alabama. On June 20, 2007, Sahavneh’s nephew, Mann Haddad, a

Jordanian citizen, entered the United States on a visitor’s visa. Two months later,

on August 22, 2007, Haddad married Christine Caver, one of the employees at

Defendant Sahavneh’s package store.

      On January 8, 2008, Caver filed an I-130 petition so that Haddad could

obtain permanent resident status based on their marriage. Both Caver and

Defendant Sahavneh submitted affidavits of financial support for Haddad. After

Caver and Haddad attended an August 2008 immigration interview, Haddad was

granted conditional resident status, which allowed him to live and work in the

United States while his petition was under review by the United States Citizenship

and Immigration Service (“USCIS”). However, on October 1, 2010, Haddad was

notified that his application was insufficient and he needed to submit additional

evidence that his marriage to Caver was legitimate. On October 22, 2010, Haddad

advised the USCIS that he wished to withdraw his petition because his wife

wanted a divorce. Haddad’s request was granted, and his petition for lawful

permanent resident status was withdrawn.

C.    FBI Investigation of Haddad’s Marriage to Caver

      In September 2010, the Federal Bureau of Investigation began investigating

                                         3
whether Haddad’s marriage to Caver was a sham and approached Caver. Caver

admitted that the marriage was a sham and said that Defendant Sahavneh gave her

a car and paid some of her bills in exchange for marrying Haddad. Caver agreed

to cooperate and recorded conversations with Defendant Sahavneh and Haddad.

      Relevant to this appeal, on October 8, 2010, Caver wore a recording device

and met with Sahavneh at his package store. During the first twenty minutes,

Caver and Sahavneh discussed Caver’s personal life, including her recent arrest

after an altercation with her ex-husband (not Haddad), her efforts to find a job,

her three children and her parents.

      After twenty minutes, Caver told Sahavneh that Haddad had filed for

divorce, and asked Sahavneh, “[A]re we going to finish our deal with this . . . ?”

Haddad responded, “What deal? What deal?” Caver insisted that Haddad owed

her money and pointed out that she had not yet signed the divorce papers. Haddad

told Caver that “[t]here was no deal” and that he did not care whether she signed

the divorce papers. Haddad said he had known Caver for four years, that he had

helped Caver “in a personal way” both before and after she married Haddad and

that his own “relationship with [Caver] is not about any deal.” Sahavneh insisted

that what happened between Caver and Haddad was not his business and that he

would not give Caver any money.

                                          4
D.    Indictment and Motions in Limine

      A grand jury indicted Defendant Sahavneh and Haddad with one count of

conspiring to commit immigration-related marriage fraud, in violation of 18

U.S.C. § 371. In addition, Sahavneh was charged with one count of encouraging

and inducing Haddad to reside in the United States, knowing and in reckless

disregard of the fact that Haddad’s residence was unlawful, in violation of 8

U.S.C. § 1324(a)(1)(A)(iv). Co-defendant Haddad was charged with a substantive

count of immigration-related marriage fraud, in violation of 8 U.S.C. § 1325(c).

      Prior to trial, the government filed a motion in limine to exclude as

inadmissible hearsay Defendant Sahavneh’s exculpatory statements in his

recorded conversation with Caver. The district court granted in part and denied in

part the government’s motion. The district court concluded that the first part of

the conversation (the first 23 pages of the 63-page transcript), in which Defendant

Sahavneh and Caver talked about Caver’s personal life, was inadmissible hearsay.

However, the remainder of the conversation, in which Caver and Defendant

Sahavneh discussed whether Defendant Sahavneh had “a deal” to pay Caver to

marry Haddad, was admissible under Federal Rule of Evidence 803(3) to show

Sahavneh’s then-existing state of mind.

      Defendant Sahavneh also filed a motion in limine. Defendant Sahavneh

                                          5
sought to exclude his own immigration records, arguing that they were irrelevant

and prejudicial because they gave the false impression that Defendant Sahavneh

had also entered into a sham marriage to gain U.S. citizenship. The district court

denied Defendant Sahavneh’s motion in limine. The district court concluded that

Sahavneh’s immigration records were admissible to show his knowledge of the

U.S. immigration system, which was relevant to the government’s theory that

Sahavneh coached Haddad and Caver through the immigration process.

E.    Trial

      At trial, over Sahavneh’s objection, the government introduced Sahavneh’s

immigration records through Agent Kevin Douglas, the lead investigator. Agent

Douglas testified that he was familiar with alien files through his 26 years of

experience as a border patrol agent. Agent Douglas identified Defendant

Sahavneh’s alien file, which demonstrated that, like Haddad, Sahavneh originally

came to the United States on a temporary visa, married a U.S. citizen, and was

then granted permanent resident status based on that marriage.

      The government also presented Caver’s testimony that Sahavneh offered her

$8,000 to $10,000 to marry Haddad; coached Caver and Haddad on how to

complete immigration paperwork, prepare for the immigration interview and

provide evidence of a bona fide marriage; allowed Caver to live with Haddad in

                                          6
Sahavneh’s home for two months before the August 2008 immigration interview;

and gave Caver a car and paid some of her bills.

      On cross-examination, Caver testified about the recorded conversation she

had with Defendant Sahavneh at the package store in October 2010. Sahavneh

then introduced a recording of the latter portion of the conversation in which

Sahavneh denied the existence of any “deal” and Caver continued to insist

Sahavneh owed her money. After the recording was played for the jury, Caver

agreed that the first twenty minutes of the conversation—the portion not played

for the jury—was a “friendly” and “personal conversation” about “family” and

“just shooting the bull.”

      The jury convicted Haddad of marriage fraud and Sahavneh of alien

harboring, but acquitted both defendants of conspiracy to commit marriage fraud.

The district court sentenced Defendant Sahavneh to five years’ probation, to

include 120 days of home confinement and a $2,000 fine. Sahavneh filed this

appeal.

                                II. DISCUSSION

A.    Immigration Records

      On appeal, Defendant Sahavneh argues that the district court abused its

discretion by permitting the government to introduce into evidence Sahavneh’s

                                         7
alien file.1 However, Sahavneh has not shown abuse of discretion because his

immigration records were relevant to show (1) that Sahavneh was familiar with

immigration procedures for obtaining lawful permanent residence status based on

marriage to a U.S. citizen, knowledge that was essential to his alleged role in the

charged conspiracy; and (2) that Sahavneh knew that Haddad’s residence in the

United States violated the law, an element required for the government to sustain a

conviction under 8 U.S.C. § 1324(a)(1)(A)(iv). See Fed. R. Evid. 401, 402 (2011)

(together providing that evidence that has a tendency to make a fact that is “of

consequence to the determination of the action” more or less probable is

admissible unless it is otherwise excluded by federal law).

       Sahavneh also did not demonstrate the degree of prejudice required to

justify excluding his immigration records. Relevant evidence may be excluded if

“its probative value is substantially outweighed by a danger of unfair prejudice,

confusion of the issues, or misleading the jury.” Fed. R. Evid. 403 (2011); United

States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003) (stating that the remedy in

Rule 403 is “extraordinary, . . . should [be] invoke[d] sparingly,” and “the balance

. . . should be struck in favor of admissibility”) (internal quotation marks omitted).


       1
        We review a district court’s evidentiary rulings for a clear abuse of discretion, and will
reverse only if the error affected the defendant’s substantial rights. United States v. Dodd, 347
F.3d 893, 897 (11th Cir. 2003).

                                                 8
       Sahavneh alleges his immigration records could have misled the jury to

believe that Sahavneh’s own immigration was the result of “undiscovered and

unpunished wrongdoing” and encouraged the jury to convict him for that reason.2

However, nothing in Sahavneh’s immigration records suggested that Sahavneh

had committed any wrongdoing, and the government did not argue otherwise to

the jury. In fact, during cross-examination, Sahavneh’s counsel asked Agent

Douglas whether anyone was “implying that there was anything improper about

the way [Sahavneh] gained citizenship in the United States of America,” and

Agent Douglas responded, “No.”

       Under the circumstances, any danger that the immigration records would

unfairly prejudice Sahavneh or mislead the jury was minimal and did not

outweigh, much less substantially outweigh, the probative value of the evidence.

Further, even if the jury could have drawn an inference that Sahavneh’s own

citizenship was the result of marriage fraud, it appears the jury did not do so here



       2
         We find no merit to Sahavneh’s argument, made for the first time on appeal, that he was
prejudiced by Agent Douglas’s testimony that he currently was assigned to the FBI’s joint
terrorism task force. Specifically, at the beginning of his testimony, Agent Douglas explained
that as a border patrol agent, he investigated immigration crimes, such as alien smuggling and
illegal entry, and that, as part of the FBI joint terrorism task force, he investigated international
terrorists and complaints of national security. Agent Douglas then reviewed the defendants’ alien
files and explained the immigration process for becoming a lawful permanent resident. Agent
Douglas did not mention terrorism again. It is clear from Agent Douglas’s testimony as a whole
that he investigated Sahavneh for immigration matters and not for terrorism.

                                                 9
given that it acquitted Sahavneh of the conspiracy count.

B.          Recorded Conversation Between Sahavneh and Caver

        Because Sahavneh did not object contemporaneously to the district court’s

exclusion of the first twenty minutes of the recorded conversation, our review of

that issue is for plain error. See United States v. Turner, 474 F.3d 1265, 1275

(11th Cir. 2007).3

        The district court did not commit plain error in excluding the first twenty

minutes of the recorded conversation between Sahavneh and Caver as

inadmissible hearsay. Sahavneh does not dispute that the recorded conversation

was hearsay evidence, see Fed. R. Evid. 801(c), and hearsay evidence is

inadmissible unless it falls within an applicable exception, Fed. R. Evid. 802.

Sahavneh does not argue, much less show, that the first twenty minutes of his

recorded conversation with Caver fell within any hearsay exception.4

        Instead, Sahavneh argues that by excising the first portion of the

conversation, the district court prevented the jury from seeing the friendly



        3
         Under the plain error standard, we reverse only if the defendant shows (1) an error; (2)
that was plain; (3) that affected his substantial rights; and (4) that seriously affected the fairness
of the judicial proceedings. United States v. Jernigan, 341 F.3d 1273, 1289 (11th Cir. 2003).
        4
        The parties do not challenge the district court’s ruling that the latter portion of the
recorded conversation fell with the then-existing mental state exception to the hearsay rule, see
Fed. R. Evid. 803(3), and we do not address this issue on appeal.

                                                  10
relationship between Sahavneh and Caver and left the jury with the mistaken

impression that Sahavneh was suspicious and had reason to lie during the

conversation. Sahavneh cites Federal Rule of Evidence 106, which states that

“[w]hen a writing or recorded statement or part thereof is introduced by a party, an

adverse party may require the introduction at that time of any other part or any

other writing or recorded statement which ought in fairness to be considered

contemporaneously with it.” Fed. R. Evid. 106 (2011) (emphasis added); United

States v. Range, 94 F.3d 614, 621 (11th Cir. 1996) (extending Rule 106 to

conversations).

       As Sahavneh concedes, Rule 106 does not apply here because Sahavneh

sought to introduce the recorded conversation and thus was not the “adverse

party.”5 Because Sahavneh has not shown that the first portion of the recorded

conversation was admissible under Rule 106 or identified any other basis for its

admissibility, the district court did not commit error, much less plain error, by

excluding it as inadmissible hearsay.

       In any event, Sahavneh has not shown that the exclusion of this portion of



       5
       Because we conclude that the recorded conversation is not admissible under Rule 106,
we do not address whether Rule 106 makes admissible parts of a statement that otherwise are
inadmissible under the Rules of Evidence. See United States v. Pendas-Martinez, 845 F.2d 938,
944 & n.10 (11th Cir. 1988) (noting circuit split on the issue).

                                             11
the conversation affected his substantial rights. Caver testified on cross-

examination that the first twenty minutes of the conversation was a friendly

personal conversation about family. And, the jury appears to have believed

Sahavneh rather than Caver as to whether he had “a deal” with her given that the

jury acquitted Sahavneh of the conspiracy charge.

      For all these reasons, we affirm Sahavneh’s conviction and sentence.

      AFFIRMED.




                                         12
