                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-31-2008

USA v. Kamara
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2512




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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                   __________

                                     No. 06-2512
                                     __________

                          UNITED STATES OF AMERICA

                                            v.

                                OUMAR KAMARA,
                                            Appellant




                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                               (D. C. No. 05-cr-00120)
                     District Judge: Honorable Juan R. Sanchez




                            Argued on December 11, 2008

                 Before: McKEE, SMITH and ROTH, Circuit Judges

                          (Opinion filed: December 31, 2008)


David L. McColgin, Esquire
Michael D. Raffaele, Esquire (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

Counsel for Appellant
Virgil B. Walker, Esquire (Argued)
Robert A. Zauzmer, Esquire
Office of the United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106

Counsel for Appellee




                                       OPINION




ROTH, Circuit Judge:

       Oumar Kamara appeals two issues arising from his conviction of preventing his

deportation under 8 U.S.C.A. § 1253 (a)(1)(c). The first issue is whether the District

Court erred in precluding Kamara’s defense of justification. The second issue is whether

the District Court erred when it refused to reveal the contents of three jury questions to

Kamara. For the reasons discussed below, we will affirm.

I. Background and Procedural History

       Because the facts are well known to the parties, we will discuss them only briefly.

A jury empaneled in the United States District Court for the Eastern District of

Pennsylvania convicted Oumar Kamara of preventing and hampering his departure from

the United States. The District Court then imposed a sentence of twenty-four months’




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imprisonment, a term of supervised release of three years, a $2,500 fine, and a special

assessment of $100.

       Before trial, Kamara indicated his intent to present a justification defense. The

government, in response, filed a motion in limine to preclude that defense. The District

Court granted the government’s motion. At the close of the first day of trial, just before

closing arguments, the District Court informed the parties that it had received three

questions from the jury. It did not share the contents with either party; instead, it sealed

the questions.

II. Analysis

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291.

       Kamara first argues that he presented a prima facie showing on justification and

was thus entitled to present it to the jury. We will review the District Court’s ruling on

Kamara’s use of the justification defense de novo. See United States v. Alston, 526 F.3d

91, 93–98 (3d Cir. 2008). We will moreover view the evidence in the light most

favorable to Kamara. United States v. Paolello, 951 F.2d 537, 542 (3d Cir. 1991).

       To present a justification defense to the jury, a defendant must satisfy four

requirements: (1) he was under unlawful and present threat of death or serious bodily

injury, (2) he did not recklessly place himself in a situation where he could be forced to

engage in criminal conduct, (3) he had no reasonable legal alternative (to both the



                                              3
criminal act and the avoidance of the threatened harm), and (4) there is a direct causal

relationship between the criminal action and the avoidance of the threatened harm.

Alston, 526 F.3d at 95; Paolello, 951 F.2d at 540.

       The District Court found that Kamara may have suffered from the Sierra Leone

government in the past, but that he had not adduced sufficient evidence that the political

climate in Sierra Leone is still in a condition that he would face imminent harm upon his

return. We agree with the District Court that Kamara did not adduce sufficient evidence

for prong one. The District Court thus did not err.

       Kamara next argues that the District Court’s decision to seal the jury questions

deprived him of his due process rights and his rights under the Fifth and Sixth

Amendments. Three questions are at issue: (1) “Is U.S. Government responsible for the

return of your safety to your country?”; (2) “What was he convicted of?”; and (3) “What

is a habeas corpus appeal? Regarding NY Supreme Court decision?” The government

concedes that the District Court erred. It, however, argues that the error was harmless.

       A defendant’s constitutional right to be present at every stage of his criminal

proceeding is grounded in the Confrontation Clause and the Due Process Clause of the

Fifth Amendment. United States v. Toliver, 330 F.3d 607, 611 (3d Cir. 2003); see United

States v. Gagnon, 470 U.S. 522, 526 (1985). The right is also mandated by Federal Rule

of Criminal Procedure 43. Toliver, 330 F.3d at 611. The harmless-error standard applies

to Rule 43 violations; this standard requires that the “government prove beyond a



                                             4
reasonable doubt that the defendant was uninjured by the error.” Id. at 613. That means

that “there must be ‘no reasonable possibility’ of prejudice for an error to be deemed

harmless.” Id. (quoting United States v. Alessandrello, 637 F.2d 131, 139 (3d Cir. 1980)).

       Kamara argues that he was harmed when the District Court withheld question one

because the jury concluded that he was not a credible witness. But the District Court did

instruct the jury, after telling it that it would not answer the three questions, that “[y]ou

are the sole judges of the credibility of each witness.” We have long “presum[ed] that

juries follow the instructions given by district courts.” United States v. Hakim, 344 F.3d

324, 330 (3d Cir. 2003) (citing United States v. Newby, 11 F.3d 1143, 1147 (3d Cir.

1993)). Kamara’s credibility was thus not harmed.

       Kamara’s arguments for questions two and three also fail. His argument for both

of these questions is the same: He was harmed because the jury might have researched

the answers to these questions on its own and found prejudicial information. But the

District Court twice instructed the jury not to consult outside sources. The jury is, of

course, presumed to have not strayed from the District Court’s mandate. See Hakim, 344

F.3d at 330. There was no reasonable possibility of prejudice for Kamara. The

government therefore carried its burden to prove beyond a reasonable doubt that Kamara

was uninjured by the error.

III. Conclusion

       For the reasons set forth above, we will affirm the judgment of the District Court.



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