UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4327

TIMOTHY VINCENT AKUMEH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert E. Payne, District Judge.
(CR-96-468-A)

Submitted: June 30, 1998

Decided: August 6, 1998

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mark John Petrovich, MARTIN, ARIF & PETROVICH, Burke, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, Patrice
M. Mulkern, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Timothy Vincent Akumeh appeals his conviction for making a
false statement on his United States passport application in violation
of 18 U.S.C. § 1542 (1994). At the close of the Government's evi-
dence, and again after his conviction, Akumeh unsuccessfully sought
a judgment of acquittal under Fed. R. Crim. P. 29. In addition,
Akumeh attempted to obtain a new trial under Fed. R. Crim. P. 33 on
the grounds that a comment by the prosecutor in his opening state-
ment was impermissibly inflammatory. In this appeal, Akumeh
assigns error to these adverse rulings and claims that the district court
erred in admitting the opinion evidence of a lay witness under Fed.
R. Evid. 701. Because we find no merit to Akumeh's contentions, we
affirm his criminal conviction.

During Akumeh's trial, the jury heard evidence that Akumeh
sought a letter from the United States Passport Office stating that he
had once been issued a passport. Luis Linares, a senior passport spe-
cialist for the United States Department of State, investigated
Akumeh's request and found that on his 1989 application for a pass-
port Akumeh stated that he was born in Hartford, Connecticut.
Although this comported with what Akumeh had told Linares, Linares
discovered that when Akumeh applied for a Social Security number
in 1983, he listed his birthplace as the Volta Region in Ghana. In
addition, the Government introduced significant evidence that there
was no record of Akumeh's birth in Hartford and no record that
Akumeh was a naturalized citizen of the United States. Despite
Akumeh's Rule 29 motion suggesting that there was insufficient evi-
dence to convict him, the district court allowed the case to go to the
jury.

After the jury returned with a guilty verdict, Akumeh renewed his
Rule 29 motion and filed a motion under Rule 33 suggesting that he
was entitled to a new trial "in the interest of justice" because the pros-
ecutor made a passing reference to the California criminal prosecution
of O.J. Simpson. The district court denied both motions and sentenced
Akumeh to six months probation. This appeal followed.

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Akumeh first claims that his conviction was not supported by suffi-
cient evidence and that the district court erred in denying his Rule 29
motion. Because the denial of a Rule 29 motion is reviewed under a
sufficiency of the evidence standard, see United States v. Brooks, 957
F.2d 1138, 1147 (4th Cir. 1992), we consider Akumeh's challenge to
the sufficiency of the evidence and his claim of error in denying his
Rule 29 motion together. "To sustain a conviction[,] the evidence,
when viewed in the light most favorable to the government, must be
sufficient for a rational trier of fact to have found the essential ele-
ments of the crime beyond a reasonable doubt." United States v.
Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see also Glasser v. United
States, 315 U.S. 60, 80 (1942). Circumstantial as well as direct evi-
dence is considered, and the government is given the benefit of all
reasonable inferences from the facts proven to those sought to be
established. See United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982). "[A]n appellate court's reversal of a conviction on
grounds of insufficient evidence should be `confined to cases where
the prosecution's failure is clear.'" United States v. Jones, 735 F.2d
785, 791 (4th Cir. 1984) (quoting Burks v. United States, 437 U.S. 1,
17 (1978)). During this inquiry, "this court is bound by the `credibility
choices of the jury.'" United States v. Saunders, 886 F.2d 56, 60 (4th
Cir. 1989). (quoting United States v. Arrington , 719 F.2d 701, 704
(4th Cir. 1983)).

In this case, there was no clear failure of evidence on the part of
the prosecution. The jury made a reasonable inference that Akumeh
was truthful in applying for his Social Security number. On that
assumption, the verdict shows that the jury concluded that Akumeh
was born in Ghana. This inference is properly premised not only on
the Social Security application, but also on the testimony of three wit-
nesses who were unable to find any evidence that Akumeh was born
in Connecticut or that he had become a naturalized citizen. As a
result, the jury was entitled to conclude that Akumeh was not born
Hartford, Connecticut, and his statement to that effect on his passport
application was a falsehood. Considered in a light most favorable to
the Government, Akumeh's conviction was supported by sufficient
evidence, and the district court did not err in denying Akumeh's Rule
29 motion.

Akumeh concedes that the information on one of the two applica-
tions was false. However, in support of his appeal, he contends that

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the Government failed to prove beyond a reasonable doubt that it was
the information on the passport application, as opposed to the infor-
mation on his application for a Social Security number, that was false.
Akumeh notes that if he was not born in a Hartford hospital in 1938,
his birth would not have necessarily been recorded. In other words,
if he were born at home, a record of his birth might not be contained
in the files searched by the prosecution's witnesses. This fact, sug-
gests Akumeh, completely undermines the usefulness of the wit-
nesses' testimony in proving that he was not born in Hartford.
Although the assertion forms the basis for the defense's theory of the
case, it is an assertion that the jury did not act unreasonably in reject-
ing. Akumeh's own statement on his Social Security application pro-
vided evidence that he was born somewhere other than Hartford. The
jury was entitled to credit that statement and determine that Akumeh
used a falsehood to obtain a passport.

Akumeh next contends that the district court erred in allowing
Linares to offer his lay opinion regarding whether Akumeh was a citi-
zen. See Fed. R. Evid. 701. In general, district courts have broad dis-
cretion to admit lay opinion evidence--evidentiary rulings will be
disturbed on appeal only for an abuse of discretion. See United States
v. Fowler, 932 F.2d 306, 312 (4th Cir. 1991). Rule 701 states that lay
opinion testimony is admissible where it is (1) rationally based on the
perception of the witness and (2) "helpful" to a clear understanding
of the witness's testimony or the determination of a fact in issue. See
id.

Because Akumeh attempts to raise this claim of error for the first
time in this court, our review of the issue is limited to a search for
plain error. See United States v. Olano, 507 U.S. 725, 731-32 (1993).
Akumeh must show that an error occurred in the admission of the evi-
dence, that the error was plain, and that the error affected his substan-
tial rights. See id. at 732; United States v. Hastings, 134 F.3d 235,
239-40 (4th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3758
(U.S., May 26, 1998) (No. 97-8732). Moreover, even if Akumeh
makes the required showing, we should not exercise our discretion to
correct the error unless it "`seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.'" Olano, 507 U.S. at 732
(quoting United States v. Young, 470 U.S. 1, 15 (1985)).

                     4
The passport specialist stated that based on his inability to locate
any record of Akumeh in the data banks of naturalized citizens, he
concluded that Akumeh was not a citizen of the United States.
Akumeh contends that Linares' conclusion fails to take into account
the possibility that Akumeh was born in the United States and
obtained citizenship by virtue of jus soli. However, Linares testified
that through his investigation, he was unable to verify that Akumeh
was born in Connecticut as he claimed. On that information, Linares
logically concluded that Akumeh must have been born elsewhere, had
not been naturalized and was not, therefore, a citizen of the United
States. In light of this chain of logic, Linares' opinion was rationally
based on his perceptions. Even assuming that there were other ratio-
nal conclusions to be drawn from Linares' perceptions, as Akumeh
suggests, Linares' conclusion was not so overwhelmingly irrational as
to amount to plain error for the district court to admit in evidence.

Finally, Akumeh claims that the district court erred in denying his
motion for a new trial. This court reviews a denial of a motion for
new trial for an abuse of discretion. See United States v. Singh, 54
F.3d 1182, 1190 (4th Cir. 1995). An abuse of the district court's dis-
cretion occurs when the court either fails to take into account judi-
cially recognized factors constraining the exercise of its discretion or
relies on erroneous legal or factual premise. See James v. Jacobson,
6 F.3d 233, 239 (4th Cir. 1993). Akumeh makes no suggestion of
error of this magnitude.

Akumeh's motion for a new trial was premised on a single com-
ment the prosecutor made in his opening argument. Attempting to
explain the nature of the case to the jury, the prosecutor stated that
Akumeh's trial was "not the O.J. Simpson case." Akumeh did not
object to the comment. In his argument in support of the motion for
a new trial, Akumeh claimed that the comment was impermissibly
prejudicial in that it inappropriately placed pressure on the entirely
white jury to convict Akumeh. In declining to grant Akumeh's motion
on this basis, the district court considered the correct standard, see
United States v. Mitchell, 1 F.3d 235, 241 (4th Cir. 1993), and did not
rely on any erroneous factual premises. As a result, we conclude that
there was no abuse of discretion.

Applying the Mitchell factors, the district court correctly described
the comment as isolated and not misleading. In addition, the court

                     5
noted that the evidence establishing Akumeh's guilt was "quite exten-
sive." See id. Akumeh primarily suggests that the district court did not
afford the appropriate weight to the various factors of the Mitchell
analysis. This contention does not suggest an abuse of the district
court's discretion. Instead, the court applied the facts of the case to
the correct standard in considering Akumeh's motion for a new trial.
See James, 6 F.3d at 239. We find that Akumeh's claim of error on
this front is meritless.

Accordingly, we affirm Akumeh's conviction. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the Court and argument would not
aid the decisional process.

AFFIRMED

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