                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 04 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10129

              Plaintiff - Appellee,              D.C. No. 3:07-cr-00677-CRB

  v.
                                                 MEMORANDUM *
DORIS AKUYOMA ANYANWU,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-10130

              Plaintiff - Appellee,              D.C. No. 3:07-cr-00677-CRB

  v.

ANDREW IHENTUGE ASHIEGBU,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                    Argued and Submitted September 10, 2010
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.

      Appellant Andrew Ashiegbu (Ashiegbu) challenges his convictions for

making a false statement on an immigration document, and conspiring to make a

false statement to a federal agency. Appellant Doris Anyanwu (Anyanwu)

challenges her convictions for making a false statement on an immigration

document, making a false statement to a federal agency, and conspiring to make

false statements to a federal agency.




1.    The district court did not abuse its discretion when it admitted Ashiegbu’s

1995 declaration pursuant to Fed. R. Evid. 404(b), as the declaration was probative

of Ashiegbu’s modus operandi in making false statements to obtain citizenship for

his relatives. See United States v. Gonzalez, 533 F.3d 1057, 1064 (9th Cir. 2008)

(“Beyond propensity, the evidence established a way of behavior that could be

reasonably relied upon by a juror to convict [Ashiegbu] of the charged offenses.”).

      The district court also considered whether the declaration was more

probative than prejudicial pursuant to Fed. R. Evid. 403. See United States v.

Cherer, 513 F.3d 1150, 1159 (9th Cir. 2008) (“In allowing Rule 404(b) evidence, a

district court is not required to recite the corresponding Rule 403 balancing

analysis for the record. It is enough that this court can conclude, based on a review


                                          2
of the record, that the district court considered Rule 403’s requirements.” ) (citation

and parentheses omitted).




2.    Because Ashiegbu did not testify, the district court correctly applied Fed. R.

Evid. 404(b) in lieu of Fed. R. Evid. 608 in admitting the 1995 declaration. See

United States v. Scott, 74 F.3d 175, 177 (9th Cir. 1996) (“Federal Rule of Evidence

608(b) specifically contemplates inquiries into prior behavior in order to challenge

a witness’s credibility.”) (citation and alterations omitted).




3.    Allowing the government to appeal to fairness and societal problems in its

closing argument was not plain error warranting reversal of Ashiegbu’s conviction.

See United States v. Inzunza, 580 F.3d 894, 910 (9th Cir. 2009).




4.    As conceded by Ashiegbu in his reply brief, the government did not

argue that Ashiegbu could be convicted even if he had no knowledge of the false

statement.




5.    There was sufficient evidence supporting the convictions as “any rational




                                            3
trier of fact could have found the essential elements of the crime[s] beyond a

reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)

(en banc) (citations omitted) (emphasis in the original).




6.    The district court’s error in adding an extraneous “not” to Ninth

Circuit Model Criminal Jury Instruction 3.5 on reasonable doubt does not compel

reversal of the appellants’ convictions because the instructions clearly conveyed

the government’s burden. See United States v. Soto, 519 F.3d 927, 932 (9th Cir.

2008) (“Here, the district court repeatedly emphasized the government’s burden to

prove all elements of the offense beyond a reasonable doubt. In light of those clear

jury instructions . . . there is no likelihood that the jury understood that any lower

standard of proof could suffice.”) (footnote reference omitted).




7.    We decline to alter the model instruction on reasonable doubt pursuant to

our supervisory powers. The instruction’s exclusion of speculation as a basis for

reasonable doubt comports with the law. See Ramirez v. Hatcher, 136 F.3d 1209,

1212-13 (9th Cir. 1998) (“The Supreme Court has expressly approved this contrast

between reasonable doubt and mere possible doubt, and doubt that does not rise




                                            4
above pure speculation is not reasonable.”) (citations and internal quotation marks

omitted).




8.    Because the district court’s evidentiary rulings were proper, the prosecutor’s

comments did not affect the trial, and the district court adequately instructed the

jury on reasonable doubt, “[t]here is no cumulative error warranting reversal.”

United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008) (citation omitted).

      AFFIRMED.




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