16-1432-cr
U.S. v. Kalume


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 28th day of March, two thousand seventeen.

PRESENT: REENA RAGGI,
         DENNY CHIN,
         SUSAN L. CARNEY,
                                           Circuit Judges.
UNITED STATES OF AMERICA,
                                                 Appellee,

                 v.                                                  No. 16-1432-cr

ZUBEDA KALUME,
                                     Defendant-Appellant.

APPEARING FOR APPELLANT:                 JAMES P. EGAN, Assistant Federal Public
                                         Defender, for Lisa A. Peebles, Federal Public
                                         Defender, Office of the Federal Public
                                         Defender, Syracuse, New York.

APPEARING FOR APPELLEE:                  CHELSEA A. PRIEST, Attorney, United States
                                         Department of Justice, Washington, D.C.,
                                         (Geoffrey J.L. Brown, Assistant United States
                                         Attorney, on the brief), for Richard S.
                                         Hartunian, United States Attorney for the
                                         Northern District of New York, Syracuse,
                                         New York.


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        Appeal from a judgment of the United States District Court for the Northern

District of New York (Glenn T. Suddaby, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 28, 2016, is AFFIRMED.

        Defendant Zubeda Kalume was convicted following a jury trial of one count of

marriage fraud in violation of 8 U.S.C. § 1325(c).            Sentenced to 14 months’

imprisonment, Kalume appeals her conviction on grounds of evidentiary, charging, and

sentencing error. We assume the parties’ familiarity with the facts and procedural history

of this case, which we reference only as necessary to explain our decision to affirm.

1.      Exclusion of Kalume’s Videotaped Statements

        Kalume argues that the district court erred in excluding a video recording of

interview responses she gave to an immigration official on August 14, 2013, on the

ground that the video was minimally probative and potentially prejudicial. See Fed. R.

Evid. 403. Kalume sought to introduce the video not for the truth of her out-of-court

statements, but to demonstrate that her English proficiency was limited, a fact relevant to

the jury’s assessment of her 2011 statement to other federal officials admitting her

involvement in marriage fraud.

        We review a district court’s evidentiary rulings for abuse of discretion, and we

will reverse only for “manifest error,” evidenced by an “arbitrary and irrational” ruling.

United States v. Daugerdas, 837 F.3d 212, 226 (2d Cir. 2016) (internal quotation marks

omitted); United States v. Al Kassar, 660 F.3d 108, 123 (2d Cir. 2011). That is not this

case.

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      As the district court recognized, Kalume had a motive to minimize her English

proficiency at the time of the 2013 interview. This both reduced the probative value of

the videotape and increased its potential for prejudice given the government’s inability to

test the proficiency displayed. In such circumstances, the district court’s decision to

exclude the video was not arbitrary or irrational. See United States v. Esdaille, 769 F.2d

104, 105–06 (2d Cir. 1985) (upholding exclusion of voice exemplar offered by defendant

to discredit police identification because probative value of such evidence was minimal

and outweighed by unfair prejudice to the government “in light of both the ease with

which [the defendant] could deliberately alter his accent and the inability of the

government to test the reliability of the accented reading”); see also United States v.

Gabinskaya, 829 F.3d 127, 134 (2d Cir. 2016) (deferring to trial court’s evidentiary

decisions in recognition of “superior position to assess relevancy and to weigh the

probative value of evidence against its potential for unfair prejudice” (citations and

internal quotation marks omitted)). This conclusion is only reinforced by the district

court’s recognition that whatever probative value the video had to Kalume’s defense was

cumulative of evidence already before the jury, specifically, (1) the 2011 interviewing

officer’s testimony that Kalume sometimes “hesitated” in responding to questions, “took

time to find words,” and “kept it pretty simple,” App’x 110–11; and (2) the 2013

interviewing officer’s testimony that she had to “rephrase” questions and “speak slower”

because Kalume “need[ed] that kind of help,” id. at 235–36; see United States v. Gupta,

747 F.3d 111, 133 (2d Cir. 2014). Kalume’s argument that she elicited this testimony



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only because the district court excluded the video is belied by the fact that the testimony

was given before the district court issued its exclusion ruling.

       Thus, we identify no abuse of discretion in the exclusion of the video and,

therefore, need not consider the government’s alternative harmless-error argument.

2.     Admitted Testimony Regarding Immigration Applications

       Kalume argues that the district court erred in allowing an immigration officer to

offer opinion testimony as to the ultimate question of the legitimacy of her marriage to

Alieu Jaiteh. Because Kalume raised no objection to this testimony in the district court,

we review only for plain error, which is not apparent here. See United States v. Wagner-

Dano, 679 F.3d 83, 94 (2d Cir. 2012) (identifying elements of plain error as (1) error,

(2) that is clear and obvious, (3) affecting substantial rights, and (4) seriously impugning

fairness, integrity, or public reputation of judicial proceedings); United States v. Coriaty,

300 F.3d 244, 252 (2d Cir. 2002).

       The law permits a lay witness who has direct knowledge of certain facts to testify

in the form of an opinion that goes to “‘an ultimate issue to be decided by the trier of

fact,’ . . . so long as that testimony is ‘helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.’” Cameron v. City of New York, 598

F.3d 50, 62 (2d Cir. 2010) (quoting Fed. R. Evid. 701(b), 704(a)).1 There is no question

here that the immigration officer’s testimony was based on direct knowledge acquired in

the course of conducting a review of and making a recommendation on the petition of


1
  Because the parties both treat the immigration officer’s testimony as lay opinion, we do
not here consider the aptness of that characterization.
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Kalume and Jaiteh to secure unconditional resident status for Jaiteh based on the couple’s

marriage. With the petition and supporting documents in evidence, the officer identified

the parts she considered most significant to her review, specifically her review of the

bona fides of the couple’s marriage, and she explained both how she reached her adverse

recommendation and why she would have made the same recommendation even if she

had not known about Kalume’s earlier admission to marriage fraud.

       There was no error, much less clear and obvious error, in deeming this testimony

helpful to the jury’s understanding of why the evidence of marriage that Kalume and

Jaiteh presented in support of Jaiteh’s immigration petition was suspect. The witness

nowhere suggested that the identified concerns were based on evidence not heard by the

jury. See United States v. Grinage, 390 F.3d 746, 750 (2d Cir. 2004). Moreover, the

witness’s conclusion that the evidence did not support a favorable administrative

recommendation did not suggest the result to the jury, particularly in the context of this

trial, during which the prosecution and defense adduced evidence beyond that known to

the witness. See id.

       Because Kalume cannot satisfy the first two requirements of plain error, this

evidentiary challenge fails on the merits.

3.     Response to Jury Note

       Kalume argues that the district court’s response to a jury note requesting

clarification on the mens rea element of marriage fraud improperly suggested that the

element could be satisfied simply by proof of Kalume’s intent to be paid in return for

marrying Jaiteh. Kalume waived her right to appeal this issue by expressing assent to the

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instruction when the district court proposed its response and solicited comment. See

United States v. Agrawal, 726 F.3d 235, 259 (2d Cir. 2013) (“Such a strategic decision,

evidenced not merely by silence but by a negative response on the record to a district

court invitation to voice objection, does more than forfeit the unraised objection; it

waives it.”); United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009); see also App’x

611 (“That language that you just read, I have no objection.”).

       Even if Kalume could clear this hurdle, she could not demonstrate plain error.

While the district court statement highlighted by Kalume—that “a defendant enters into a

marriage for the purpose of evading the provision of United States immigration laws

when at the time of the marriage she lacks any intent to establish a life with her spouse”

App’x 613—would not, by itself, accurately describe the prosecution’s burden as to mens

rea, the statement cannot be read in isolation. See United States v. Lange, 834 F.3d 58,

75 (2d Cir. 2016) (stating that jury charge should be viewed as a whole in evaluating

claimed instruction error). Both before and after the quoted statement, the district court

expressly told the jury that while proof of Kalume’s intent to be paid for the marriage

might be some evidence of the requisite purpose to evade, it could not, by itself, establish

that element. Then, in response to further jury inquiry, the district court reiterated that

the government had to prove that the defendant acted “with the intent to do something

that she knew the law forbids.” App’x 614–15. On this record, we cannot conclude that

the district court suggested that the defendant could be convicted based solely on her

intent to be paid for marrying Jaiteh. The supplemental instructions, viewed as a whole,

do not demonstrate plain error.

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4.     Sentencing Challenge

       Kalume challenges her 14-month prison sentence as substantively unreasonable.

The government argues that the question is moot because Kalume completed her prison

term and was released from custody on December 20, 2016, and does not challenge the

three-year term of supervised release to which she is now subject. See United States v.

Williams, 475 F.3d 468, 479 (2d Cir. 2007) (stating that “defendant’s sentencing appeal is

. . . moot upon completion of the term of incarceration where the possibility of the district

court’s imposing a reduced term of supervised release on remand is . . . remote and

speculative” (internal quotation marks omitted)).       We agree with the government’s

contention.

       Nevertheless, even if Kalume’s challenge were not moot, it would fail on the

merits. In reviewing a challenged sentence for reasonableness, we apply “a particularly

deferential form of abuse-of-discretion review” to both the procedures used to arrive at

the sentence (procedural reasonableness) and to the length of the sentence (substantive

reasonableness). United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d Cir. 2008) (en

banc); accord United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012). We will

“set aside a district court’s substantive determination only in exceptional cases where the

trial court’s decision cannot be located within the range of permissible decisions.”

United States v. Cavera, 550 F.3d at 189 (emphasis and internal quotation marks

omitted); see also United States v. Messina, 806 F.3d 55, 66 (2d Cir. 2015) (discussing

“broad range of permissible decisions available to the district court”). Kalume’s 14-

month sentence was at the high end of her 8–14 month Sentencing Guidelines range.

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“[I]n the overwhelming majority of cases, a Guidelines sentence will fall comfortably

within the broad range of sentences that would be reasonable in the particular

circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). This case

presents no exception.

      The district court was entitled to rely on Kalume’s lack of remorse, a factor

informing her Guidelines range, to explain its decision as to where to sentence within that

range. See United States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994) (recognizing lack of

remorse as factor that can inform sentence); accord United States v. Broxmeyer, 699 F.3d

at 284, 295 (affirming reliance on lack of remorse as aggravating factor supporting above

Guidelines sentence even where defendant was denied acceptance-of-responsibility credit

in calculating Guidelines range). The district court also acted within its discretion in

taking account of the fact that, at the same time Kalume was presenting herself to one

government agency as married to secure an immigration benefit (for Jaiteh), she was

presenting herself to other government agencies as single to secure monetary benefits.

See 18 U.S.C. § 3661 (stating that no limit shall be placed on information concerning

background, character, and conduct of defendant for purpose of imposing sentence);

United States v. Cavera, 550 F.3d at 191 (recognizing broad discretion afforded by

§ 3661 to consider all but invidious considerations). The district court’s statements at

sentencing belie Kalume’s contention that it failed to consider mitigating personal

factors. To the extent Kalume thinks these factors were entitled to more weight, that is a

matter committed to the sound discretion of the district court, see United States v.



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Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008), which we have no reason to gainsay

here.

5.      Conclusion

        We have considered Kalume’s remaining arguments and conclude that they are

without merit. For the reasons stated, the district court’s April 28, 2016 judgment is

AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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