                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    December 4, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                       No. 05-3327
 v.                                                 (District of K ansas)
                                               (D.C. No. 04-CR-40081-SAC)
 M O H A M M A D MO N IR UZZA M AN,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


I.    IN TR OD UC TIO N

      Defendant M ohammad M oniruzzaman was convicted after a jury trial of

entering a false marriage for purposes of evading United States immigration laws,

conspiracy to enter a false marriage for purpose of evading United States




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff.
Jan. 1, 2007).
immigration law s, and conspiracy to provide false statements. He appeals his

conviction, raising allegations of erroneous evidentiary rulings and jury

instructions, prosecutorial misconduct, and cumulative error. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm M oniruzzaman’s

convictions.

II.   BAC KGR OU N D

      M oniruzzaman and his brother, Qamruzzaman Islam, are citizens of

Bangladesh. In 2003, Islam began comm unicating with Amanda Revell in an

Internet chat room. Shortly thereafter, the two met for dinner. During the meal,

Islam asked Revell if she would be interested in marrying his friend to help the

friend get a “green card.” Revell eventually agreed to marry Islam’s friend in

exchange for monthly payments of $150 and the understanding she would receive

additional payments if Islam’s friend received a work permit and United States

citizenship. Revell signed a marriage license and immigration papers provided to

her by Islam.

      On M ay 9, 2003, Islam picked up Revell at her home in Topeka and drove

her to the Douglas County Courthouse in Lawrence, Kansas. Revell met the

groom, appellant M oniruzzaman, in the parking lot of the courthouse and learned

he was Islam’s brother. After the ceremony, M oniruzzaman drove Revell back to

her home in Topeka. Between M ay 2003 and November 2003, Revell saw

M oniruzzaman approximately once a month, when he brought monthly cash

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payments to her. In some months, Revell saw M oniruzzaman several times

because he needed her signature on tax forms and other documents. Among the

documents Revell signed were papers requesting a change to M oniruzzaman’s

immigration status and a lease for a University of Kansas student housing

apartment. Revell also accompanied M oniruzzaman to his bank, where

M oniruzzaman added her to his account.

      In November 2003, Revell went to the Topeka Police Department and told

Officer Tom Glor about her marriage to M oniruzzaman. Glor contacted

Immigration and Customs Enforcement (“ICE”) and a federal immigration

investigation was commenced by Agent Ken Lovesee. Revell informed Lovesee

she and M oniruzzaman would be interviewed by immigration officials on

December 9, 2003, regarding M oniruzzaman’s request for a change in his

immigration status. Revell also informed Lovesee she was meeting with

M oniruzzaman and Islam on D ecember 2 to discuss the December 9 meeting and

“go over some details and make sure that everything was correct and would go

smooth at INS.” Revell agreed to wear a recording device to the meeting with

M oniruzzaman and Islam.

      On December 2, Lovesee and Glor observed Islam and M oniruzzaman pick

Revell up at her residence then drive to a M cDonald’s restaurant where the three

sat at a booth for approximately one hour. Revell testified that during this

meeting M oniruzzaman was “coaching [her] to say things for IN S like his birth

                                          -3-
date and, you know, Social Security number and things of that nature.” After

Revell returned to her residence, Lovesee and Glor retrieved the digital recording

device and took it to the FBI’s electronic surveillance unit where the information

was downloaded to a compact disc.

       On December 9, 2003, M oniruzzaman was interviewed by Daniel Byrd, an

employee of the United States Citizenship and Immigration Services. Prior to the

interview, Byrd had been advised by Lovesee that M oniruzzaman was under

investigation. M oniruzzaman told Byrd he and Revell had met on the campus of

the University of Kansas, they had dated for three months before getting engaged,

they lived together, and he had offered her no compensation to marry him except

“mutual understanding.”

       M oniruzzaman w as charged by indictment with entering into a false

marriage for the purpose of evading immigration laws, in violation of 8 U.S.C. §

1325(c); conspiring with Islam to enter into a false marriage for the purpose of

evading immigration laws, in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. §

371; and conspiring with Islam to provide false statements, in violation of 18

U.S.C. §§ 371, 1001. He was tried together with Islam and convicted by a jury on

all three counts. This appeal followed.

III.   D ISC USSIO N

       M oniruzzaman first challenges the district court’s refusal to give a

cautionary instruction to the jury. His request for the instruction was prompted

                                          -4-
by the testimony of Agent Byrd. During his direct examination, Byrd stated his

job duties involved review ing applications filed by individuals seeking both

permanent residency and citizenship in the United States and determining their

eligibility. He testified it was part of his job to be aware of the legal standards

that apply to such applications and, pursuant to Section 204(c) of the Immigration

and Nationality Act (8 U.S.C. § 1154(c)), he could not approve a petition if it was

“determined that the marriage— the qualifying marriage was entered into for the

purpose of evading immigration laws.” M oniruzzaman argued before the district

court that Byrd’s testimony could mislead the jury into believing Byrd, and not

the court, was the source of the law to be applied in the case. Accordingly,

M oniruzzaman requested the court give the following cautionary instruction:

      Daniel Byrd, an employee of the Bureau of Citizenship, testified
      regarding certain law s that governed his jobs and about certain
      findings he made as part of his job, you are advised that this Court is
      the sole source of the law that applies to this case and you are the
      sole judges of the facts, the conclusion of the witness concerning his
      interpretation of the law and facts should be disregarded by the jury.

The district court refused to give the instruction and M oniruzzaman alleges error

in that decision.

      This court reviews a district court’s refusal to give a requested instruction

for abuse of discretion but reviews the instructions as a whole de novo to

determine whether they correctly and adequately state the applicable law. Powers

v. M JB Acquisition Corp., 184 F.3d 1147, 1152 (10th Cir. 1999). If “the charge



                                          -5-
as a whole adequately states the law , the refusal to give a particular instruction is

not an abuse of discretion.” United States v. Suntar Roofing, Inc., 897 F.2d 469,

473 (10th Cir. 1990). Although the district court refused to give the instruction

proposed by M oniruzzaman, it did instruct the jury as follow s:

             Although you as jurors are the sole judges of the facts, you are
      duty bound to follow the law as stated in the instructions of the court
      and to apply the law so given to the facts as you find them from the
      evidence before you.
             ...
             Regardless of any opinion you may have as to what the law
      ought to be, it would be a violation your sworn duty to base a verdict
      upon any view of the law other than that given in the instructions of
      the court.

This instruction properly informed the jury the court’s instructions w ere the sole

source of the applicable law. Thus, it conveyed essentially the same information

to the jury as that contained in the instruction proposed by M oniruzzaman. The

mere fact the court refused to use the exact language requested by M oniruzzaman

does not constitute error. A defendant is entitled only to an instruction that

correctly states the law; he is not entitled to a particularly worded instruction.

Upon de novo review of the record, we conclude the instructions given by the

district court fairly and adequately informed the jury on the governing issues and

the legal standards to apply. Accordingly, the district court did not abuse its

discretion by refusing to give the instruction proposed by M oniruzzaman.

      M oniruzzaman next challenges the district court’s ruling admitting into

evidence the recording of the December 2 meeting between Revell, Islam, and

                                          -6-
M oniruzzaman. This court reviews a district court’s evidentiary rulings for abuse

of discretion. United States v. Jenkins, 313 F.3d 549, 559 (10th Cir. 2002). The

recording was admitted over M oniruzzaman’s objection that it was inadequately

authenticated under Rule 901 of the Federal Rules of Evidence. Specifically,

M oniruzzaman argued the government failed to lay a proper foundation for the

admission of the recording because Agent Lovesee testified he was not familiar

with the voices of Islam and M oniruzzaman and distinguished between them only

by context.

      Rule 901 permits lay opinion testimony as a foundation for voice

identification if that opinion is “based upon hearing the voice at any time under

circumstances connecting it w ith the alleged speaker.” Fed. R. Evid. 901(b)(5).

Revell testified the voices on the recording were those of herself, Islam, and

M oniruzzaman. She further testified the recording was an accurate recording of

the conversation. Lovesee testified he did not know M oniruzzaman’s voice, but

was able to distinguish between Islam and M oniruzzaman on the recording by the

context of the conversation. Lovesee further explained,

      W ell, to our knowledge there were three people only speaking. One
      of the three was [Revell], so we knew it to be [Revell] speaking. The
      other two were [M oniruzzaman] and [Islam] and I went by the
      context of the interview of who was speaking about what and I
      figured out who was speaking.

      The district court did not abuse its discretion when it admitted the

recording. Revell’s testimony alone w as sufficient to lay the necessary

                                         -7-
foundation. Lovesee never testified as to the substance of the conversation.

Instead, the recording was played for the jury. Thus, Lovesee’s inability to

conclusively distinguish Islam’s voice from M oniruzzaman’s is irrelevant to the

question of whether the recording was properly admitted. The jury was able to

determine for themselves what was said and who was speaking.

       In a related argument, M oniruzzaman asserts the district court erred by

admitting a transcript Lovesee prepared from the recording of the D ecember 2

meeting. The transcript was played for the jury by means of a scrolling video as

the recording was played. According to M oniruzzaman, permitting the jury to

consider Lovesee’s opinion regarding who was making particular statements

during the conversation amounted to permitting inadmissible expert opinion.

       Prior to permitting the jury to see the transcript, the district court instructed

them as follow s:

       It is important, however, that you understand that in this case the
       tape is evidence and the transcript is not evidence. If you perceive
       any variations between w hat you hear and what you read, you must
       be guided solely by the tape and not the transcript. If you cannot
       determine from the tape whether particular words are spoken or who
       is speaking them, you must disregard the transcript insofar as those
       words are concerned. The transcript is intended only to be an aid to
       you. You are given the direction to decide whether to use a
       transcript or not. You have the discretion to do so.

“The admission of transcripts to assist the trier of fact . . . lies within the

discretion of the trial court.” United States v. Devous, 764 F.2d 1349, 1354 (10th

Cir. 1985). This court has previously held that a district court does not commit

                                            -8-
error by admitting a transcript if a proper cautionary instruction is given to the

jury. United States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991); United States v.

Lucero, 601 F.2d 1147, 1149-50 (10th Cir. 1979). Here, the district court clearly

and explicitly instructed the jury to disregard the transcript if they could not

determine for themselves from the recording what words were being spoken or

who was speaking them. In light of the detailed cautionary instruction given in

this case, we conclude M oniruzzaman’s argument the district court abused its

discretion when it admitted the transcript has no merit.

      M oniruzzaman next argues a comment made by the government during

closing argument amounted to prosecutorial misconduct. During closing

argument, Islam’s counsel objected 1 when the prosecution made the following

statement,

      Folks, they say that this is the wrong forum for this and, you know,
      we shouldn’t be here, we should be over at INS. W ell, look, we have
      those immigration laws for a reason and we have them in this country
      at this time it’s more important than any other time in probably our
      history.

M oniruzzaman seeks a reversal of his conviction, asserting this comm ent was an

improper reference to his race and religion and was made for the sole purpose of

reminding the jury of “the on-going ‘war on terror.’”




      1
        The objection was phrased as follows: “I object to that. I think that calls
for the w rong conclusion for this jury to reach.” Counsel did not move for a
mistrial.

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      “W hen defense counsel contemporaneously objects to a prosecutor’s

comment at trial and moves for a mistrial, we review a district court’s decision to

deny his motion for abuse of discretion.” United States v. Kravchuk, 335 F.3d

1147, 1153 (10th Cir. 2003). The government argues the issue should be

reviewed for plain error because it was Islam, not M oniruzzaman, who objected

when the comment was made. It is unnecessary for us to decide whether the plain

error standard applies because we conclude the comment was not improper. A

review of the record reveals the prosecutor’s comment was made in response to

Islam’s earlier argument that the defendants had committed no federal crime and

their immigration status should be decided solely by Homeland Security. Islam’s

counsel had stated:

      You’ve heard testimony that there are proceedings going on in this
      courtroom and that there are other proceedings going on with INS
      concerning [the] status of these foreign nationals. Ladies and
      gentlemen, I would ask you, based on the evidence that you’ve heard,
      that we’re in the wrong place. These questions belong in that other
      forum. That immigration naturalization service administrative thing
      that’s trying to sort out what’s going on. But these young men have
      not committed a federal crime for which they should be convicted.

“W hen a prosecutor responds to an attack made by defense counsel, we evaluate

that response in light of the defense argument.” M oore v. Reynolds, 153 F.3d

1086, 1113 (10th Cir. 1998) (quotation omitted). Placed in context, the

prosecutor’s statement is revealed to be nothing more than a benign response to




                                        -10-
Islam’s assertion the federal courts were an inappropriate forum to decide the

immigration status of M oniruzzaman and Islam.

      Finally, M oniruzzaman challenges another of the district court’s

evidentiary rulings. The challenged testimony involved the following exchange

between Revell and the prosecution:

      Q. Did you ever live together with [M oniruzzaman] as man and
      wife?
      A. No.
      Q. Did you ever intend to live with him as man and wife?
      A. No.
      Q. As far as you knew from your relationship with M ohamm ad
      M oniruzzaman, did he ever intend to live with you as man and wife?
      A. No.

M oniruzzaman objected to the last question, stating, “Object to the form of the

question, that’s conclusionary [sic]. He can ask what was said, but that calls for a

conclusion.” The district court overruled the objection and M oniruzzaman now

asserts the testimony was admitted in violation of Rule 701 of the Federal Rules

of Evidence.

      Rule 701 permits the admission of lay opinion testimony that is “(a)

rationally based on the perception of the witness, (b) helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue,

and (3) not based on scientific, technical, or other specialized knowledge within

the scope of Rule 702.” Fed. R. Evid. 701; United States v. Bush, 405 F.3d 909,

915-16 (10th Cir. 2005). M oniruzzaman argues Revell’s opinion is not rationally



                                         -11-
based on her perceptions because she only met him a few times and had very little

interaction with him. He also asserts her opinion was not helpful to the jury

because they were free to draw their own conclusion about his intention from the

evidence presented.

      The district court did not abuse its discretion when it permitted the

testimony. As M oniruzzaman himself concedes, Revell testified the arrangements

for the wedding were all made by Islam, she did not meet him until the day of the

ceremony, and following the ceremony she had very little interaction with him.

Although M oniruzzaman argues Revell’s limited contact with him demonstrates

her testimony was not rationally based on her perceptions of him, these facts

conversely provide a solid foundation for Revell’s opinion that M oniruzzaman did

not intend to live with her as man and wife. Further, the testimony was helpful in

the determination of a fact in issue, i.e., whether M oniruzzaman entered into the

marriage without intending to live with Revell as man and wife. 2




      2
       M oniruzzaman also argues his convictions must be vacated because the
cumulative effect of all the alleged errors denied him a fair trial. This argument
can be quickly rejected because w e have concluded no actual errors were
committed. M oore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998)
(“Cumulative error analysis applies where there are two or more actual errors; it
does not apply to the cumulative effect of non-errors.”).

                                        -12-
IV .   C ON CLU SIO N

       For the reasons stated above, M oniruzzaman’s convictions are affirmed.

                                      ENTERED FOR THE COURT



                                      M ichael R. M urphy
                                      Circuit Judge




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