     13-2471
     United States v. FNU LNU

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of September, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHRISTOPHER F. DRONEY,
 8                              Circuit Judges,
 9
10                    LEWIS A. KAPLAN,
11                                  District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                    -v.-                                               13-2471
18
19       FNU LNU, AKA Oscar Mario Garcia,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
               The Honorable Lewis A. Kaplan, United States District
         Judge for the Southern District of New York, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:             MALVINA NATHANSON, Law Office of
 2                              Malvina Nathanson, New York, New
 3                              York.
 4
 5   FOR APPELLEE:              REBECCA MERMELSTEIN (Brent S.
 6                              Wible, on the brief), for Preet
 7                              Bharara, United States Attorney
 8                              for the Southern District of New
 9                              York, New York, New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Southern District of New York (Karas, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        The Defendant-Appellant appeals from the judgment of
19   the United States District Court for the Southern District
20   of New York (Karas, J.), convicting him of: unlawful
21   procurement of naturalization, in violation of 18 U.S.C. §
22   1425(a); two counts of false statement in application and
23   use of a passport, in violation of 18 U.S.C. § 1542; and
24   fraud and related activity in connection with identification
25   documents, in violation of 18 U.S.C. § 1028A; and social
26   security fraud, in violation of 42 U.S.C. § 408(a)(2). On
27   appeal, the Appellant argues the district court erred in two
28   of its evidentiary decisions during trial. We assume the
29   parties’ familiarity with the underlying facts, the
30   procedural history, and the issues presented for review.
31
32        1. The district court permitted the Government to
33   introduce a witness’ prior consistent statement regarding
34   the identification of her husband’s photograph prior to her
35   testimony at trial. We review a district court’s
36   evidentiary decisions for abuse of discretion. See United
37   States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001). The
38   Appellant points out that the ruling is not supported by
39   Federal Rule of Evidence 801(d)(1)(B), which allows a prior
40   consistent statement to rebut a charge of fabrication or
41   recent improper motive in testifying. The Appellant’s
42   argument, however, ignores Rule 801(d)(1)(C) which permits a
43   witness’ prior consistent statement when the declarant
44   testifies, is subjected to cross-examination, and
45   “identifies a person as someone the declarant perceived
46   earlier.” The witness here was subjected to cross-
47   examination, and the prior consistent statement involved her

                                  2
 1   previous identification of her late husband’s photograph.
 2   Such testimony falls within the hearsay exclusion of Rule
 3   801(d)(1)(C).
 4
 5        2. The Appellant also argues that the district court
 6   erred in barring as hearsay his testimony about the
 7   circumstances of a family dispute which caused him to move
 8   to New York. Because the Appellant never asserted a basis
 9   for the admissibility of the testimony, we review for plain
10   error. See United States v. Marcus, 560 U.S. 258, 262
11   (2010); United States v. Cruz, 894 F.2d 41, 44 (2d Cir.
12   1990). The Appellant argues that the testimony was not
13   hearsay because it was intended only to show his state of
14   mind in deciding to move, and not offered for the truth of
15   the matter asserted. However, “the mere identification of a
16   relevant non-hearsay use of . . . evidence is insufficient
17   to justify its admission if the jury is likely to consider
18   the statement for the truth of what was stated with
19   significant resultant prejudice.” United States v. Reyes,
20   18 F.3d 65, 70 (2d Cir. 1994); see also Fed. R. Evid. 403.
21   Here, the district court could reasonably have concluded
22   that the proffered testimony would be considered by the jury
23   for the truth of the matter asserted. We see no error, let
24   alone plain error, in the district court’s decision to
25   exclude this testimony.
26
27        For the foregoing reasons, and finding no merit in the
28   Appellant’s other arguments, we hereby AFFIRM the judgment
29   of the district court.
30
31                              FOR THE COURT:
32                              CATHERINE O’HAGAN WOLFE, CLERK
33




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