         10-1153-cr
         United States v. Samlal



                          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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17th day of March, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                PETER W. HALL,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                        10-1153-cr
17
18       GILDA SAMLAL,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:            Colleen P. Cassidy, Federal Defenders of
23                                 New York, Inc., Appeals Bureau, New York,
24                                 New York.
25
26       FOR APPELLEE:             Karin Orenstein, Assistant United States
27                                 Attorney (Susan Corkery, Assistant United
28                                 States Attorney, on the brief), for
29                                 Loretta E. Lynch, United States Attorney
30                                 for the Eastern District of New York.
 1
 2        Appeal from judgment of conviction in the United States
 3   District Court for the Eastern District of New York (Townes,
 4   J.).
 5
 6        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 7   AND DECREED that the judgment of the district court be
 8   AFFIRMED.
 9
10        Defendant-Appellant Gilda Samlal (“Samlal”) appeals
11   from a conviction for smuggling an alien into the United
12   States for private financial gain, in violation of 8 U.S.C.
13   § 1324. Samlal challenges her conviction on the ground that
14   the district court erred in admitting prior act evidence
15   pursuant to Fed. R. Evid. 404(b) to establish knowledge. We
16   assume the parties’ familiarity with the underlying facts,
17   the procedural history, and the issues presented for review.
18
19        We review evidentiary rulings for abuse of discretion.
20   United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009).
21   “To find such abuse, we must conclude that the trial judge’s
22   evidentiary rulings were arbitrary and irrational.” United
23   States v. Paulino, 445 F.3d 211, 217 (2d Cir. 2006)
24   (internal quotation marks omitted).
25
26        “To determine whether a district court properly
27   admitted other act evidence, we consider whether ‘(1) the
28   prior acts evidence was offered for a proper purpose; (2)
29   the evidence was relevant to a disputed issue; (3) the
30   probative value of the prior act evidence substantially
31   outweighed the danger of its unfair prejudice; and (4) the
32   court administered an appropriate limiting instruction.’”
33   Mercado, 573 F.3d at 141 (quoting United States v. Brand,
34   467 F.3d 179, 196 (2d Cir. 2006); see also Huddleston v.
35   United States, 485 U.S. 681, 691-92 (1988) (setting forth
36   the four factors a district court should consider when
37   evaluating Rule 404(b) evidence). “In so doing, we take an
38   ‘inclusionary approach.’” Mercado, 573 F.3d at 141.
39   (quoting United States v. Lasanta, 978 F.2d 1300, 1307 (2d
40   Cir. 1992)).
41
42        The Huddleston factors were satisfied. The evidence
43   was offered for the proper purpose of establishing that
44   Samlal either knew, or recklessly disregarded the fact, that
45   the child she escorted was different from the person


                                  2
 1   identified in the passport that the alien used. Taken as a
 2   whole, the following evidence was relevant to establishing
 3   Samlal’s knowledge: (1) Samlal had escorted four different
 4   people, who used recycled passports; (2) on two occasions
 5   (December 2007 and August 2008) the same passport was used
 6   for different people; (3) she received between $1,500 and
 7   $2,000 to perform a service that airlines perform for $75-
 8   $100; and (4) an agent of Customs and Border Patrol had
 9   warned her in April 2008 about the consequences of escorting
10   illegal aliens. Finally, the district court gave several
11   limiting instructions, during the trial and in its final
12   charge, directing the jury to consider the evidence solely
13   for the purpose of Samlal’s state of mind. See Mercado, 573
14   F.3d at 141-42 (2d Cir. 2009) (“The evidence was also
15   accompanied by a careful and thorough instruction limiting
16   the evidence to relevant Rule 404 grounds. That instruction
17   was delivered on several occasions during testimony as well
18   as in clear jury instructions on the issue. In light of the
19   purpose and value of the evidence, and of the limiting
20   instructions, we find no abuse of discretion in deeming the
21   evidence admissible under Rule 404.”).
22
23        Accordingly, we find that the district court did not
24   abuse its discretion in admitting the prior act evidence and
25   thus affirm the judgment of conviction.
26
27        We have considered Samlal’s remaining arguments and
28   find them to be without merit. For the foregoing reasons,
29   the judgment of conviction is AFFIRMED.
30
31
32                              FOR THE COURT:
33                              CATHERINE O’HAGAN WOLFE, CLERK
34




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