PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4151

SAMIR IBISEVIC,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, Senior District Judge.

(1:10-cr-00265-TSE-1)

Argued: January 25, 2012

Decided: March 14, 2012

Before MOTZ, Circuit Judge, Thomas D. SCHROEDER,

United States District Judge for the Middle District of

North Carolina, sitting by designation, and

J. Michelle CHILDS, United States District Judge for the

District of South Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge Motz

wrote the opinion, in which Judge Schroeder and Judge

Childs joined.
COUNSEL

ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for

Appellant. Justin Edward Fairfax, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee.

ON BRIEF: Michael S. Nachmanoff, Federal Public

Defender, Patrick L. Bryant, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Samir Ibisevic appeals from convictions arising from his

attempt to leave the United States carrying approximately

$40,000 in United States currency, without reporting the currency to customs authorities. In denying his motion for a new

trial, the district court acknowledged that it had erred in

excluding certain testimony at Ibisevic’s trial, but concluded

that the error was harmless. Because we cannot say, with fair

assurance, that the error did not have a substantial and injurious effect on the jury verdict, we must vacate the judgment

of the district court and remand for further proceedings.

I.

A grand jury indicted Ibisevic of three crimes growing out

of his failure to declare currency when attempting to leave the

United States: bulk cash smuggling in violation of 31 U.S.C.

§ 5332(a); failing to file a required report of international

transportation of currency in violation of 31 U.S.C.

§§ 5316(a), 5324(c); and making false statements in violation

of 18 U.S.C. § 1001. The indictment also sought forfeiture of

the currency "[u]pon conviction of the offenses."

2 UNITED STATES v. IBISEVIC
The only issue disputed at trial was Ibisevic’s intent. All

three offenses required the Government to prove Ibisevic

knowingly or intentionally violated the law. See 31 U.S.C.

§ 5332(a)(1) (making it unlawful to "knowingly conceal[ ]

more than $10,000 in currency" "with the intent to evade a

currency reporting requirement"); id. §§ 5316(a), 5324(c)

(making it unlawful to "fail to file" an accurate currency

report "for the purpose of evading the reporting requirements

of section 5316"); 18 U.S.C. § 1001(a) (making it unlawful to

"knowingly and willfully . . . make[ ] any materially false, fictitious, or fraudulent statement or representation"). Ibisevic

steadfastly contended that he had no intent to knowingly or

intentionally violate any of these statutes; instead, Ibisevic

maintained that, because of his poor English, he simply did

not understand questions put to him by customs agents.

A.

The evidence at trial revealed that on June 18, 2010,

Ibisevic and his mother, Rahima, attempted to board a flight

at Dulles International Airport in Virginia to Vienna, Austria,

with final service to Sarajevo, Bosnia. They were traveling to

Bosnia to attend the funeral of Ibisevic’s father.

When Ibisevic and Rahima proceeded down the corridor

leading to the plane’s jetway, Officer Andres Zayas of the

United States Customs and Border Protection ("CBP"), who

speaks English with a Puerto Rican accent, approached them.

As part of a currency interdiction effort that involves random

inspections of passengers departing on outbound international

flights, Officer Zayas asked Ibisevic questions concerning the

purpose of his trip and his line of work. During this questioning, Rahima and CBP Officer Steven Rodeheaver stood

within earshot.

Officer Zayas testified that he then asked Ibisevic "the currency question." That is, Officer Zayas explained that it was

not illegal to "carry over $10,000 out of the country," but if

UNITED STATES v. IBISEVIC 3
a person was carrying more than $10,000, he was required "to

fill out a form." According to Officer Zayas, he asked Ibisevic

if he was "travelling with money" or "carrying any cashier’s

check, money orders, [or] any other type of monetary instruments?" Officer Rodeheaver testified that Officer Zayas asked

Ibisevic:

How much currency are you travelling with? That is

to include all currency—reportable currency instruments such as cashier’s check, money orders, Traveler’s checks; that’s including any currencies that

you are carrying for other peoples, in [sic] your person and on [sic] your luggage.1

Ibisevic answered, $5,000. Officer Zayas led Ibisevic and his

mother to a "more private area inside the corridor" with their

luggage. He asked again how much currency they were traveling with "as a whole." Ibisevic again said, $5,000. Officer

Zayas then gave Ibisevic the CBP form explaining the currency reporting requirements. The form states that "[i]t is

legal to transport any amount of currency or other monetary

instruments into or out of the United States," but explains that

an individual must file a report when transporting or attempting to transport "currency or other monetary instruments in an

aggregate amount exceeding $10,000."

After allowing Ibisevic a minute or two to read the CBP

form, Officer Zayas asked Ibisevic if he understood the form

and instructed him to write down "[t]he amount that he was

carrying" and to sign the form to indicate that "he understood

what is on the form." Although the CBP form does not contain a signature line, Officer Zayas marked an "x" on the form

1This language tracks the CBP Currency Reporting form, on which both

agents testified they relied in questioning Ibisevic. That form, CBP Publication No. 503, is available at http://www.cbp.gov/linkhandler/cgov/

newsroom/publications/travel/currency_rpt_flyer/currency_reporting.ctt/

currency_reporting.pdf (last visited Feb. 27, 2012). 

4 UNITED STATES v. IBISEVIC
indicating the place for Ibisevic’s signature. Ibisevic wrote

"5000" and signed his name.

Officers Zayas and Rodeheaver then placed the Ibisevices’

carry-on bags on a table. Officer Zayas asked Ibisevic,

"Where is the money?" In response, Ibisevic produced money

from an envelope in his jacket pocket and from his wallet.

Officer Zayas motioned to Ibisevic’s bags on the table, looked

at Ibisevic, and asked whether there was "any other money in

the bags." After Ibisevic denied having other money in the

bags, Officer Zayas searched Ibisevic’s carry-on bags and

found no additional currency. When Officer Zayas counted

the money given to him from Ibisevic’s pocket and wallet, it

totaled $5,031. 

During this time, Officer Rodeheaver inspected the carryon bags belonging to Ibisevic’s mother, Rahima. According to

Officer Rodeheaver, he first examined a camera bag Rahima

was carrying and found "a bank envelope" containing currency. Next, while searching Rahima’s purse, he felt a "mass

inside the bag" that he could not access. Ibisevic informed

Officer Rodeheaver that the mass was sewn into the purse.

Upon making these discoveries, Officer Rodeheaver asked

Ibisevic, "How much currency are you traveling with?" and

"How much money are we going to find?" According to Officer Rodeheaver, Ibisevic then became "a little flustered" and

stated there was $10,000 in his mother’s camera bag, $25,000

in her purse, and $5,000 on his person.

After the officers discovered the currency in Rahima’s

camera bag and purse, they escorted the Ibisiveces back to the

main terminal of the airport. Officer Rodeheaver testified that

the officers undertook "a full exam of all their luggage" and

notified other personnel to "offload their luggage from the aircraft to see if there is [sic] any other prohibited items or contraband."2

2The Government has offered no evidence that the CBP officers found

any currency in the Ibisevices’ checked luggage. 

UNITED STATES v. IBISEVIC 5
Special Agent Julie Hilario of Immigration and Customs

Enforcement then questioned Ibisevic. She testified that she

met with him for approximately forty-five minutes. During

that time, he waived his Miranda rights and spoke with her in

English without the assistance of an interpreter. Ibisevic told

Agent Hilario that all of the money was his. Like Officers

Zayas and Rodeheaver, Agent Hilario testified that Ibisevic

appeared to understand her questions and responded to them

without hesitation and without need or request for a Bosnian

interpreter.

The Government also called Chris Lowman to testify. Lowman described his role as a human resources manager of a

large corporation that employed Ibisevic to assemble medical

devices from 2005 to 2008. Lowman authenticated several

documents from Ibisevic’s employee file, including Ibisevic’s

resume and employment records, which indicate that

Ibisevic’s primary language is "Bosnian" and his secondary

language is "English." Lowman also authenticated an employment comprehension test that Ibisevic had passed by answering thirteen of fourteen questions correctly. On crossexamination, Lowman conceded that he had no personal

knowledge as to whether the comprehension test was given to

Ibisevic in English or whether he responded in English. Lowman also acknowledged that an evaluation of Ibisevic in his

personnel file stated that "[o]ther than language barrier, very

good worker," and that another document in the personnel file

stated that Ibisevic needed an English translator for written

information. Finally, Lowman acknowledged that his corporation employed about one hundred Bosnians, some of whom

"don’t speak very much English" because their job did not

require it.

Pursuant to an immunity agreement, Ibisevic’s mother,

Rahima, also testified during the Government’s case. Rahima

neither speaks nor understands English. Through a Bosnian

interpreter, she testified that she was aware of the money in

her bags and that all of the money belonged to her son. On

6 UNITED STATES v. IBISEVIC
cross-examination, defense counsel attempted to question

Rahima about what Ibisevic said to her after he signed the

CBP form. As she started to explain, the district court sua

sponte halted Rahima’s testimony, characterized the answer

she was about to give as hearsay, and called the lawyers to the

bench.

During the bench conference, defense counsel proffered

Rahima would testify that when customs officials asked the

Ibisevices to step aside, Ibisevic told his mother in Bosnian,

"They are asking me how much the checked luggage cost if

it’s lost." The defense argued that this statement constituted

a present sense impression and so, even if hearsay, was

admissible. The Government objected to the statement both

on hearsay and relevancy grounds. The district court found

the testimony "clearly relevant" but sustained the objection,

ruling that it constituted hearsay and did not fall within the

present sense impression exception to the hearsay rule.

Accordingly, the jury never heard Rahima’s testimony that, at

the time of questioning by CBP agents, Ibisevic told her that

the agents were simply inquiring as to what the checked luggage would cost if it were lost.

B.

In the defense case, Ibisevic himself testified through a

Bosnian interpreter that he was born and raised in Bosnia and

legally entered the United States in 2000. He explained that

when questioned at Dulles, he and his mother had been traveling for some time, having been delayed overnight in the Syracuse airport before arriving at Dulles. Ibisevic related that he

had been unable to sleep because of a bad headache and

because he was depressed due to his father’s death. Although

he had been steadily employed since coming to this country

and became a United States citizen about two years prior to

trial, Ibisevic maintained that he understood only basic

English—that necessary for his job and everyday life. In

response to questions, he acknowledged that he understood

UNITED STATES v. IBISEVIC 7
the meaning of the word "money," but insisted he did not

know the meaning of the word "currency."

Ibisevic testified that he was unaware of any reporting

requirement and could not understand what Officer Zayas said

to him or what the CBP form asked but, based on a friend’s

experience with lost checked luggage, he believed "it might

be . . . they are asking about the value of the luggage." He

signed the CBP form, "and then put on a number, what I

thought would be a value proper to those checked bags."

Ibisevic further testified that immediately after doing so, he

told his mother that he "signed something, what I believe is

for some insurance for our checked luggage. But now they are

showing me to that table, so I probably need to be like

checked out by these officers." He explained, "[t]he reason I

told her this is because I was afraid if I go with the officer,

she is going to continue to go to board the plane, and I had

her boarding pass and I had her passport with me. . . . She

doesn’t speak English. She doesn’t read or write English. I

just wanted her to know she could remain with me."

According to Ibisevic, he only realized that the officers

were inquiring about the amount of money he was carrying

after Officer Zayas began to look in his wallet, at which point

he immediately informed the officers that he was carrying

$40,000. He explained, "If I had known, I would have admit

to him immediately I had money with me. . . . Because it was

my own money, and it is money what [sic] I borrowed from

my sister."

In addition to Ibisevic, the defense called four witnesses, all

of whom testified that Ibisevic’s ability to speak or understand English was limited. A neighbor and former co-worker,

Almir Beganovic, related that he needed to help Ibisevic communicate in English both at work and in his personal life.

Safet Garibovic, who supervised Ibisevic when Ibisevic

worked as a driver for Swift Transportation until shortly

before trial, testified that Ibisevic’s "English was really bad."

8 UNITED STATES v. IBISEVIC
She explained that she spoke to Ibisevic in Bosnian and that

he did not speak or write much English or understand written

messages in English. She recalled instances in which she

would have to call customers on Ibisevic’s behalf. Ibisevic’s

sister, Fatima Velic, testified through a Bosnian interpreter

that Ibisevic’s English was "much worse" than her own; she

also corroborated Ibisevic’s testimony that she had given him

$10,000 to take to Bosnia.

Robert Schaffer, a retired Professor of Education and

Ibisevic’s former English teacher, was the last defense witness. He testified that Ibisevic attended the professor’s

English classes for several months after Ibisevic came to the

United States. Professor Schaffer explained that he saw

Ibisevic socially in subsequent years and helped him communicate in English, including assisting him in the purchase of

a home. Regarding Ibisevic’s English proficiency, Professor

Schaffer described it as "poor," and testified that over the

years Ibisevic was "losing language rather than gaining language." Professor Schaffer also testified that Ibisevic had

more difficulty understanding English spoken with an accent

and was unlikely to comprehend new concepts that came from

"out of the blue."

C.

After a day-and-one-half of testimony, on the third morning

of trial, the jury began deliberations. Approximately two

hours later, the jury sent a note requesting "the legal definition

of ‘reasonable doubt.’" The district court, in accordance with

our precedent, see, e.g., United States v. Walton, 207 F.3d

694, 698 (4th Cir. 2000) (en banc), provided a proper instruction nearly identical to that given in the original jury instructions. Approximately four hours after beginning deliberations,

the jury returned with a verdict of guilty on all three counts.

The district court sentenced Ibisevic to two years of superUNITED STATES v. IBISEVIC 9
vised probation and one hundred hours of community service

and ordered that he forfeit $35,000 of the currency.3

Ibisevic moved for a new trial, arguing, inter alia, that the

district court "inappropriately excluded" testimony "essential

to the defense"—namely, the testimony of his mother,

Rahima, that Ibisevic had told her immediately after signing

the CBP form that the officers were asking the insurance

value of the checked luggage. The district court denied the

motion. See United States v. Ibisevic, 761 F. Supp. 2d 326

(E.D. Va. 2010).

The district court concluded it had erred in excluding Rahima’s testimony, finding the excluded testimony was not hearsay and, in any event, "likely falls within the exception for

present sense impressions." Id. at 341. However, the court

found that exclusion of the testimony constituted harmless

error because the proffered testimony "hardly stood alone on

the issue of defendant’s state of mind" and the Government

presented "overwhelming" evidence of guilt. Id. at 342-43.

Ibisevic timely noted this appeal of the court’s denial of his

motion for a new trial.4 We review that denial for abuse of

discretion. United States v. Stokes, 261 F.3d 496, 502 (4th Cir.

2001).

II.

A.

The district court properly acknowledged that it erred in

3Upon finding "good cause" to believe $10,000 of the $35,000 belonged

to Ibisevic’s sister, Fatima, the district court ultimately amended the forfeiture order to only $25,000. 

4Because we hold that the district court’s exclusion of Rahima’s testimony constitutes reversible error, we need not reach Ibisevic’s other

claims of error. 

10 UNITED STATES v. IBISEVIC
excluding Rahima’s proffered testimony as to what Ibisevic

told her immediately after signing the CBP form. See Ibisevic,

761 F. Supp. 2d at 341.

First, Ibisevic did not proffer the statement "to prove the

truth of the matter asserted," i.e., that he was actually being

asked the value of his checked luggage. Rather, he offered it

"merely to prove that [he] expressed [his] belief" that he was

being asked about the value of his luggage. See Lyons P’ship,

L.P. v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir.

2001) (emphasis omitted). Accordingly, the statement was

"direct evidence" of his "reaction[ ] and not hearsay." See id.

(holding statements of children mistakenly calling a man in a

purple reptilian costume "Barney" were improperly excluded

as hearsay in trademark infringement suit); see also United

States v. Kohan, 806 F.2d 18, 22 (2d Cir. 1986) (holding

statements offered to prove "that they were made and that

[defendant] believed them to be true" were not hearsay).

Second, even if the statement had been hearsay, it was

admissible under the present sense impression exception to

the hearsay rule. Ibisevic made the statement to his mother

immediately after listening to and answering the CBP agents’

questions. See Fed. R. Evid. 803(1) (rendering admissible a

statement "describing or explaining an event or condition,

made while or immediately after the declarant perceived it");

see also Lyons, 243 F.3d at 804.

Thus, the district court clearly erred in excluding Rahima’s

proffered testimony.

B.

Of course, a finding of error does not end the matter. We

must determine whether the error requires reversal or was

harmless. To prove a nonconstitutional error, like this one,

harmless, "the Government must demonstrate that the error

did not have a ‘substantial and injurious effect or influence in

UNITED STATES v. IBISEVIC 11
determining the jury’s verdict.’" United States v. Curbelo, 343

F.3d 273, 278 (4th Cir. 2003) (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)). An appellate court does not

inquire into whether absent the error "sufficient evidence

existed to convict," but rather whether "we believe it ‘highly

probable that the error did not affect the judgment.’" United

States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994). Thus, we

must be able to "say, with fair assurance, after pondering all

that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error." United States v. Byers, 649 F.3d 197, 211 (4th Cir.

2011) (quoting Kotteakos, 328 U.S. at 765).

We have identified three decisive factors in making this

determination: "(1) the centrality of the issue affected by the

error; (2) the steps taken to mitigate the effects of the error;

and (3) the closeness of the case." United States v. Ince, 21

F.3d 576, 583 (4th Cir. 1994). We consider each in turn.

1.

As to the first factor—the centrality of the issue affected by

the error—the excluded testimony clearly did go to the central

issue in the case, i.e., Ibisevic’s intent.

Because the Government had to prove that Ibisevic knowingly or intentionally evaded the reporting requirements and

made a false statement, the issue of Ibisevic’s intent was the

central question in the case. As the prosecutor put it during

closing argument, "Ultimately, this case is about lying."

Indeed, Ibisevic’s intent was the only disputed issue in the

case. The parties agreed as to his conduct—that he attempted

to board an international flight with over $40,000 without

reporting that fact. Ibisevic’s defense was that he could not

have knowingly or intentionally committed the charged

crimes because he did not understand the critical questions

about "currency" put to him by the customs agents. Rahima’s

excluded testimony was the sole evidence that directly corrob12 UNITED STATES v. IBISEVIC
orated Ibisevic’s own testimony that he believed the customs

agents were asking about the insurance value of his checked

luggage (not the amount of currency in his carry-on bags) and

thus had no knowledge of the currency reporting requirements, and so did not intend to violate them.

In maintaining that Rahima’s testimony was not central to

the defense, the Government relies on the district court’s conclusion that, although "clearly relevant," Rahima’s testimony

was merely cumulative of other evidence indicating Ibisevic

had difficulty understanding English. But that is simply not

the case. The Government, as did the district court, conflates

the purpose of Rahima’s proffered testimony—to corroborate

Ibisevic’s testimony regarding his state of mind in response to

the questions of the customs agents—with the more general

inquiry as to Ibisevic’s ability to understand English.

Certainly, Ibisevic had the opportunity to, and did, present

witnesses attesting to the more general question. But the district court improperly excluded the only testimony corroborating Ibisevic’s belief that Officer Zayas was asking about the

value of his checked luggage, not the amount of money he

was carrying. The jury could have credited the testimony of

Ibisevic’s witnesses that he generally had poor English skills

yet discounted his stand-alone testimony that he misunderstood Officer Zayas in this particular matter. Because Rahima’s excluded testimony was the only evidence that

corroborated Ibisevic’s claim that he believed he was truthfully answering questions as to the value of his checked luggage, her testimony was not cumulative.

The Fifth Circuit has held that the improper exclusion of

testimony strikingly similar to that excluded here could not be

discounted as cumulative or harmless. United States v. Parry,

649 F.2d 292, 296 (5th Cir. 1981). In Parry, as here, the district court sua sponte and erroneously excluded certain testimony as hearsay. There, as here, the excluded testimony was

the only evidence that would have corroborated the defenUNITED STATES v. IBISEVIC 13
dant’s own testimony of assertedly innocent conduct. And

there, as here, the excluded testimony came from the defendant’s mother.

In Parry, the defendant testified that he thought he was

working with law enforcement when he admittedly served as

a middle-man in a drug sting, and, as in this case, he further

testified that he discussed this belief with his mother. Id. at

294. The Fifth Circuit held that the district court’s error in

excluding the corroborating testimony of Parry’s mother

could not be ruled cumulative or harmless because although

Parry’s "farfetched" story had been "discounted by the jury

when standing alone," that story "may have been believed

when bolstered by his mother’s testimony." Id. at 296. Similarly, while the jury may have found Ibisevic’s contention that

he misunderstood the currency questions to be "farfetched . . .

when standing alone," the jury might have believed this contention "when bolstered by his mother’s testimony." Id.;

5

see

also Kohan, 806 F.2d at 22 (remanding for new trial when

improperly excluded testimony "would have corroborated

5Tellingly, the Government does not assert that the Fifth Circuit incorrectly held the error in Parry was not harmless. Rather, the Government

attempts to distinguish Parry on two grounds. Neither is persuasive. First,

the Government contends Rahima’s excluded testimony was merely

cumulative while the testimony of Parry’s mother was not. As explained

above, this argument is meritless. Second, the Government maintains that

this case is distinguishable from Parry because of the strength of its evidence against Ibisevic. It is not at all clear, however, that the evidence

offered by the Government against Ibisevic was any stronger than that

offered against Parry. For, the prosecution in Parry "elicited numerous

statements [from] the DEA agents that Parry was not working for the government agents, did not believe that he was working for the agents, and

did not know of the agents’ true identities." 649 F.2d at 295. Indeed, the

Fifth Circuit noted that "[t]he clear implication of the government’s evidence and of its response to Parry’s testimony was that Parry had fabricated his defense of lack of criminal intent." Id. at 295-96. Nevertheless,

the court held the exclusion of the testimony of Parry’s mother was not

harmless because "the excluded testimony was the only available evidence

that could corroborate Parry’s story." Id. at 296. 

14 UNITED STATES v. IBISEVIC
[defendant’s] statements to law enforcement officials, thereby

helping to diminish the effect of their self-serving nature").

In sum, the first factor—the centrality of the issue affected

by the error—provides no support for holding the error harmless. The issue affected by the error in excluding Rahima’s

testimony—whether Ibisevic understood the "currency question" and reporting requirements—clearly constitutes the central issue in this case.

2.

With respect to the second factor—mitigation efforts—the

district court took no steps to mitigate the effects of the error.

This is so because at trial the district court failed to acknowledge any existence of an error. See United States v. Nyman,

649 F.2d 208, 212 (4th Cir. 1980) (noting "no steps were

taken to mitigate an error whose existence was not recognized").

This fact, of course, distinguishes this case from many in

which we and other circuits have relied on mitigation efforts

to find an error harmless. See, e.g., United States v. Thomas,

664 F.3d 217, 224 (8th Cir. 2011) (holding harmless government’s improper question of witness regarding whether she

had been threatened before testifying when district court sustained defendant’s objection to the question and instructed the

jury to disregard the question); United States v. Barraza, 655

F.3d 375, 381 (5th Cir. 2011) (holding "extraneous information stated by a government witness" did not prejudice defendant when district court sustained defendant’s objection to the

testimony and "gave the jury a curative instruction, informing

the jurors to disregard the testimony"); United States v.

Lighty, 616 F.3d 321, 357 (4th Cir. 2010) (holding harmless

improperly admitted prejudicial evidence, in part, because

district court gave "explicit" curative instruction that the jury

could not infer from the evidence the defendant’s propensity

to commit crimes).

UNITED STATES v. IBISEVIC 15
Moreover, the nature of the excluded testimony—

corroborating Ibisevic’s stand-alone account of what he

believed was occurring—may have aggravated the effects of

the error in this case. For, "the jury may well have assumed

that because [Ibisevic] did not ask his mother to confirm the

existence of the critical conversation, the conversation probably never occurred." Parry, 649 F.2d at 296.

Accordingly, this factor too does not weigh in favor of

finding the error harmless.

3.

The final factor—the closeness of the case—is "the single

most important factor in a nonconstitutional harmless-error

inquiry." Ince, 21 F.3d at 584 (internal quotation marks omitted).

In addition to pointing to the witnesses who testified on his

behalf, Ibisevic argues that the jury’s deliberations indicate

that the jury in this particular case considered the case to be

close. He points out that, even absent his mother’s corroborating testimony, the jury deliberated for four hours on a singleissue case. Moreover, in the midst of those deliberations, the

jury sent a note to the district court requesting a definition of

"reasonable doubt," further suggesting that the jury did indeed

experience difficulty in reaching a verdict. The Government

assigns no significance to these facts. Indeed, the Government

virtually ignores them—mentioning the four-hour jury deliberation only in passing and the jury’s request for additional

instruction not at all. The Government instead maintains that

Rahima’s excluded testimony could not have had a substantial

effect on the outcome because Ibisevic’s own testimony was

not credible and because the Government put on "overwhelming" evidence of guilt.

a.

As to the first point, Ibisevic’s credibility, the Government

seizes on the district court’s observation in denying the

16 UNITED STATES v. IBISEVIC
motion for a new trial that the testimony from Ibisevic that

Rahima would have corroborated was "actually undermined

by the record as a whole." Ibisevic, 761 F. Supp. 2d at 343

n.73. The district court believed Ibisevic’s testimony was not

credible because the court found it "difficult to understand

why defendant would state that his luggage was worth $5,000

given it contained over $30,000." Id. at 342.

The Government’s reliance on the district court’s "difficult[y]" is misplaced because that "difficult[y]" arose from

a misunderstanding of the evidence at trial. What Ibisevic

actually stated at trial, and what Rahima was prepared to corroborate, is that he answered "$5,000" because he believed he

was being asked about the insurance value of his "checked

luggage." The Government presented no evidence that the

officers found any additional currency in the Ibisevices’

checked luggage; rather, the Government found the additional

money in carry-on bags. Thus, that Ibisevic valued his

checked luggage at $5,000 is not in any way "undermined" by

the fact that roughly $35,000 was found in the carry-on items

that Ibisevic had not checked.

The Government also relies on the district court’s observation in denying a new trial that Ibisevic’s testimony lacked

credibility because he "just happened to report a value for his

luggage that was equivalent to the exact amount of currency

he had on his person when he was being questioned." Id. at

342-43. This observation is accurate, albeit slightly exaggerated: the evidence showed that Ibisevic’s asserted insurance

claim ($5,000) was not "the exact amount" but slightly less

than the $5,031 found on his person. But just as the jury may

have concluded, as the district court did, that this circumstantial evidence cast doubt on Ibisevic’s credibility, so it might

have concluded (if permitted to do so) that Rahima’s testimony had the opposite effect of "lend[ing] plausibility to an

otherwise incredible yarn." United States v. Lis, 120 F.3d 28,

31 (4th Cir. 1997) (finding exclusion of evidence corroboratUNITED STATES v. IBISEVIC 17
ing defendant’s testimony was not harmless error); see also

Parry, 649 F.2d at 296.

b.

As to the Government’s second point, the asserted strength

of its case, the Government contends, and the district court

held in denying a new trial, that the prosecution presented

"overwhelming" evidence "concerning the defendant’s mens

rea—i.e., whether he understood the officers’ questions."

Appellee’s Br. at 20. The Government points to the testimony

of Officers Zayas and Rodeheaver and Agent Hilario that

Ibisevic was able to "understand English and the instructions

being given to him the day he was intercepted." Id. at 23.

We agree that the Government put on a good deal of evidence that Ibisevic could understand English. However, to

convict him, the Government had to prove beyond a reasonable doubt that Ibisevic actually understood the questions put

to him by the customs agents and so knowingly or intentionally committed the alleged crimes, not that he generally

understood English well enough so that he should have understood those questions. As to Ibisevic’s state of mind, the Government presented no direct evidence of his intent to commit

the alleged acts. Nor did the Government offer any evidence

as to why Ibisevic would intentionally evade the reporting

requirements, given that he legally possessed the money and

no law or regulation prohibited him from transporting it out

of the country as long as he complied with those requirements.

Of course, we do not fault the Government for the circumstantial nature of its case; often there are precious few avenues for proving a criminal defendant’s intent. For this

reason, the Government can base its case on circumstantial

evidence. See United States v. Harvey, 532 F.3d 326, 334 (4th

Cir. 2008). The fact remains, however, that the Government

was charged with proving Ibisevic acted knowingly or inten18 UNITED STATES v. IBISEVIC
tionally when he failed to report accurately the amount of currency he was carrying. See 18 U.S.C. § 1001(a); 31 U.S.C.

§§ 5316(a), 5324(c), 5332(a)(1). And, as we discussed above,

Rahima’s excluded testimony—directly corroborating

Ibisevic’s claim that he misunderstood Officer Zayas to be

asking about the insurance value of his checked luggage—

went to the heart of that inquiry. Had the jury heard and credited Rahima’s testimony, the Government would have had a

harder case to make. See Lis, 120 F.3d at 31 (noting that if

improperly-excluded corroborating evidence "[was] believed,

the government [would be] left without a ‘smoking gun,’ and

its circumstantial case becomes significantly weaker").

Moreover, the strength of the Government’s case does not,

in itself, resolve the "closeness" question. The closeness

inquiry "involves assessing whether the . . . evidence is not

only sufficient to convict, but whether it is sufficiently powerful in relation" to the excluded testimony to ensure the error

did not affect the outcome. Ince, 21 F.3d at 584.

For example, in United States v. Nyman, 649 F.2d 208 (4th

Cir. 1980), the Government presented strong direct evidence

of guilt: five eye-witnesses identified the defendant as the person responsible for the criminal acts. Id. at 209-10. But

weighing that evidence in relation to the excluded evidence—

the testimony of a law student assisting the defense that two

of these eye-witnesses failed to recognize the defendant on

the morning of trial—we held that the improper exclusion was

not harmless. Id. at 212.

We did not ground our holding in Nyman on our own

assessment that the evidence offered by the Government was

insufficient to sustain the conviction. Nor did we conclude, or

even suggest, that the Government’s evidence was not significantly stronger than the defense evidence that had been

improperly excluded. Rather, despite the strength of the Government’s evidence we noted that the jury’s five-hour deliberation in a "narrow, single-issue case" indicated that the jury

UNITED STATES v. IBISEVIC 19
that heard the evidence apparently found the case a close one.

649 F.2d at 212. For this reason, we held the erroneous exclusion of defense evidence could not be found harmless,

explaining that the judgment of "this particular jury in the particular circumstances of this trial" may "well have been

swayed by the excluded testimony." Id.

Here, too, the Government’s argument that the asserted

strength of its case compels a finding that the case was not a

close one runs headlong into the inescapable conclusion that

the particular jury that heard the evidence apparently did

regard the case as close. For the jury deliberated for four

hours in a "narrow, single-issue case," id., and requested an

additional instruction before rendering a verdict. Regardless

of "whether we—reading a cold appellate record—would consider the question of guilt a close one," id., we simply cannot

ignore these facts. Under these circumstances, Rahima’s

"clearly relevant" excluded testimony "could have been of

decisive importance in tipping the balance," id., as it would

have been the only corroborating evidence going to the central and only contested issue in the case—Ibisevic’s intent. In

short, the Government has failed to demonstrate that the

alleged strength of its circumstantial case and assertedly

incredible nature of Ibisevic’s testimony compel a finding that

the case was not close in the view of "this particular jury in

the particular circumstances of this trial." Id.

Accordingly, the final and most important factor—the

closeness of the case—also does not weigh in favor of finding

the error harmless.

* * *

In sum, given the centrality of the issue affected by the

excluded testimony, the absence of any mitigation (and possible aggravation) of the error’s effects, and what we can only

perceive as the relative closeness of the case in view of "this

particular jury," id., we "cannot say, with fair assurance, . . .

20 UNITED STATES v. IBISEVIC
that the judgment was not substantially swayed by the error."

Kotteakos, 328 U.S. at 765. Accordingly, we must vacate the

judgment of the district court, and remand the case for further

proceedings consistent with this opinion.

III.

For the reasons set forth above, we vacate the judgment of

the district court and remand the case for further proceedings

consistent with this opinion.

VACATED AND REMANDED

UNITED STATES v. IBISEVIC 21