                                                                           FILED
                           NOT FOR PUBLICATION
                                                                             NOV 26 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 18-10096

              Plaintiff-Appellee,                D.C. No. 1:17-cr-00001-2

 v.
                                                 MEMORANDUM*
MOHAMMED RAFIQUL ISLAM, aka
Md. Rafiqul Islam,

              Defendant-Appellant.


                    Appeal from the United States District Court
                  for the District of the Northern Mariana Islands
                   John C. Coughenour, District Judge, Presiding

                      Argued and Submitted October 24, 2019
                                Honolulu, Hawaii

Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.

      Defendant Mohammed Rafiqul Islam timely appeals his convictions for one

count of mail fraud, in violation of 18 U.S.C. § 1341, and three counts of fraud in

foreign labor contracting, in violation of 18 U.S.C. § 1351(a). We affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. "We review de novo allegations of due process violations." United States

v. Chang Da Liu, 538 F.3d 1078, 1087 (9th Cir. 2008).

      The government’s duty to investigate whether government witnesses had

committed perjury was not triggered until mid-trial. The recorded call and Abbu

Bakkar Beg’s and Belayet Hossain’s mortgage and loan documents were not

sufficient to put the government "on notice of the real possibility of false

testimony" so as to trigger a duty to investigate before trial began. Northern

Mariana Islands v. Bowie, 243 F.3d 1109, 1118 (9th Cir. 2001).

      The government took adequate steps to correct the initial testimony of

Mohammed Tazizul Islam ("Tazizul"). After Beg testified, identifying one of the

speakers on the recorded phone call as Tazizul, the government was on notice that

Tazizul had likely committed perjury. The government satisfied its duty to

investigate, Morris v. Ylst, 447 F.3d 735, 744 (9th Cir. 2006), by interviewing

Tazizul, who admitted to lying. It then satisfied its duty to correct the false

testimony by providing an official report of the investigation to defense counsel;

and, in a bench conference with the judge, agreeing with defense counsel on how

to inform the jury and correct the record. See United States v. LaPage, 231 F.3d

488, 492 (9th Cir. 2000) (noting that an appropriate course of action for

prosecutors to take when they realize that a witness has lied is to "interrupt their


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own questioning, and work out in a bench conference with the judge and defense

counsel how to inform the jury immediately that the testimony is false").

      Any due process violation stemming from a duty that arose during trial to

investigate potential perjury by the other witnesses fails for lack of prejudice,

which is a required element to succeed on a due process claim. Morris, 447 F.3d at

745. The trial resulted "in a verdict worthy of confidence." Id. (quoting Hall v.

Dir. of Corr, 343 F.3d 976, 984 (9th Cir. 2003) (per curiam)). The corroborating

documentary evidence provided compelling evidence of guilt. And a defense

argument that all the witnesses were lying about their knowledge of T-visas was

supported on the existing record.

      2. The district court did not abuse its discretion by denying a new trial

because of prosecutorial misconduct. See United States v. King, 660 F.3d 1071,

1076 (9th Cir. 2011) (holding that we review for abuse of discretion a district

court’s denial of a motion for new trial); United States v. Steele, 298 F.3d 906, 910

(9th Cir. 2002) (holding that we review for abuse of discretion a district court’s

ruling on objections to alleged prosecutorial misconduct). The lead prosecutor

acted improperly in attempting to inject matters outside the record. The district

court repeatedly intervened to stop his excesses during closing argument. Despite




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the sustained objections and admonitions from the court, the prosecutor continued

to make improper statements.

      But the district court took appropriate steps to remedy the prosecutor’s

improper statements. Because the misconduct did not go to central issues at trial,

the district court’s remedies were sufficient, and any errors were harmless beyond

a reasonable doubt. See United States v. Nobari, 574 F.3d 1065, 1073, 1076 (9th

Cir. 2009) (stating standard).

      3. The district court did not commit reversible error in any of its evidentiary

rulings. See United States v. Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016)

(holding that we review for abuse of discretion a district court’s decision to admit

or exclude evidence). The district court’s evidentiary rulings regarding the

National Bank Limited records, a check allegedly signed by Defendant, a deposit

slip from Akter’s bank account, and Defendent’s work certifications all fell within

the district court’s discretion. The district court erred by admitting the set of

untranslated Bengali loan and bank records, but that error was harmless.

Assuming, without deciding, that it was error for the district court to admit Beg’s

and Hossain’s mortgage and loan documents, the error was harmless.

      4. The district court did not violate the Confrontation Clause by limiting

defense counsel’s cross-examination of government witnesses regarding their


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conversations with their attorney. See United States v. Larson, 495 F.3d 1094,

1101 (9th Cir. 2007) (en banc) (holding that we review de novo allegations that a

district court violated the Confrontation Clause by excluding an area of inquiry on

cross-examination). Defendant has not met his burden to show that the jury "might

have received a significantly different impression of [a witness’] credibility" had

the district court allowed additional questioning. Delaware v. Van Arsdall, 475

U.S. 673, 680 (1986).

      5. Even considered cumulatively, the errors we have identified are not likely

to have "materially affect[ed] the verdict" and, thus, are not sufficient to warrant

reversal. United States v. Fernandez, 388 F.3d 1199, 1257 (9th Cir. 2004).

      AFFIRMED.




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