1 14-1533-cr United States v. Ohanmu UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 24 th day of June, two thousand fifteen. PRESENT: PIERRE N. LEVAL, CHESTER J. STRAUB, REENA RAGGI, Circuit Judges

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 14-1533-cr VICTOR OSA OHANMU, AKA Idahosa Osaigbovo, Defendant-Appellant

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FOR APPELLANT: Randall D. Un ger, Esq., Bayside, New York. FOR APPELLEE: Monica J. Richar ds, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York. Appeal from a judgment of the United States District Court for the Western District of New York (Richard J. Arcara, Judge ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment ente red on May 1, 2014, is AFFIRMED. Defendant Victor Osa Ohanmu appeals from his conviction after trial of (1) attempting to reenter the United States wit hout consent of the Attorney General after removal subsequent to a convi ction for an aggravated fel ony, see 8 U.S.C. § 1326(a), (b)(2); and (2) making a false st atement to a federal official, see 18 U.S.C. § 1001(a)(2). Ohanmu contends that exclus ion of testimony from his wife denied him his due process right to present a defense. Ohanmu submits th at his wife would have testified that he had not intended to enter the United States but had been forced to do so when he found himself unable to make a U-turn upon escorting her and their children to the U.S.-Can ada border. See generally United States v. Martus, 138 F. 3d 95, 97 (2d Cir. 1998) (holding that § 1326(a) conviction requires proof of “voluntary act of reentry or attempted reentry”). We assume the parties’ familiar ity with the facts and the reco rd of prior proceedings, which we reference only as necessary to explain our deci sion to affirm. Where a defendant argues that excluded ev idence deprived him of his right to present a defense, we generally determine firs t whether the evidentiary ruling was correct. See Hawkins v. Costello, 460 F.3d 238, 244 ( 2d Cir. 2006). Even if we identify error, we will reverse only if “the omitted evidence eval uated in the context of the entire record creates a reasonable doubt that did not otherwise exist.” Id. (internal quotation marks omitted).3 There was no error here. Ohanmu’s wife tes tified out of the jury’s presence so that the court could hear her proposed testimony. Asked to describe “the plan,” she stated, “My husband was escorting us to the—to the borde r . . . . [W]hen we were leaving, he said he would take us to the shortcut to the borde r.” J.A. 193–94, Tr. 11 :19–12:1. She further stated that, at the border, Ohanmu “could not make a U-turn back home,” J.A. 194, Tr. 12:17, and that he was not “goi ng to Boston with [her],” J.A. 197, Tr. 15:12–13. Insofar as this testimony was offered to show that the defendant did not intend to enter the United States, it fails in two respects. First, the statements the w itness ascribes to Ohanmu, even if admissible under the state-of-mind exceptio n to the hearsay rule, see Fed. R. Evid. 803(3), do not express his intent after escorting his family to the border. Second, to the extent the witness conclusorily asserted that Ohamu had no intent to go to Boston, there was no evidence “sufficient to support a findi ng that the witness ha [d] personal knowledge of” her husband’s intentions. Fed. R. Ev id. 602. The testimony was thus properly excluded. Even if we were to identify evidentia ry error, however, th e excluded testimony could not have created a reasona ble doubt as to Ohanmu’s gu ilt. Uncontroverted evidence showed that Ohanmu ne ver told border officials that he did not wish to enter the United States but, instead, wished to tu rn back to Canada. Rather, he told them he was going to a funeral in Boston and, in support, produced a funeral flyer and a possibly fraudulent Canadian passport, which were admitted into evidence. S ee J.A. 24, 32, 37, 51, 66–67, 74. Thus, even if the jury had heard the ex cluded testimony and inferred that Ohanmu had4 originally told his wife that he did not plan to enter the Un ited States with her and their children, there could be no reasonable doubt th at, upon arrival at the border, he knowingly attempted to enter the United States through his own volunt ary acts. Thus, Ohanmu’s claim that he was convicted in violation of due process fails. We have considered Ohanmu’s remaining arguments and conclude that they are without merit. We therefore AFFIRM the judgment of the district court.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court