13-2471 United States v. FNU LNU



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 17 th** **day of September, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **CHRISTOPHER F. DRONEY,** 7 **Circuit Judges ,**  8 9 **LEWIS A. KAPLAN,** 10 **District Judge**

**.** ***** 11 12 - - - - - - - - - - - - - - - - - - - -X 13 **UNITED STATES OF AMERICA,** 14 **Appellee ,**  15 16 **-v.- 13-2471** 17 18 **FNU LNU, AKA Oscar Mario Garcia,** 19 **Defendant-Appellant**

**.** 20 - - - - - - - - - - - - - - - - - - - -X 21 22

* The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New York, sitting by designation.

1**FOR APPELLANT:** MALVINA NATHANSON, Law Office of 1 Malvina Nathanson, New York, New 2 York. 3 4 **FOR APPELLEE:** REBECCA MERMELSTEIN (Brent S. 5 Wible, on the brief ), forPreet 6 Bharara, United States Attorney 7 for the Southern District of New 8 York, New York, New York. 9 10 Appeal from a judgment of the United States District 11 Court for the Southern District of New York (Karas, J. ). 12 13 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 14 **AND DECREED**that the judgment of the district court be 15 **AFFIRMED**

. 16 17 The Defendant-Appellant appeals from the judgment of 18 the United States District Court for the Southern District 19 of New York (Karas, J. ), convicting him of: unlawful 20 procurement of naturalization, in violation of 18 U.S.C. § 21 1425(a); two counts of false statement in application and 22 use of a passport, in violation of 18 U.S.C. § 1542; and 23 fraud and related activity in connection with identification 24 documents, in violation of 18 U.S.C. § 1028A; and social 25 security fraud, in violation of 42 U.S.C. § 408(a)(2) . On 26 appeal, the Appellant argues the district court erred in two 27 of its evidentiary decisions during trial. We assume the 28 parties’ familiarity with the underlying facts, the 29 procedural history, and the issues presented for review. 30 31 1. The district court permitted the Government to 32 introduce a witness’ prior consistent statement regarding 33 the identification of her husband’s photograph prior to her 34 testimony at trial. We review a district court’s 35 evidentiary decisions for abuse of discretion. See United 36 States v. Dhinsa , 243 F.3d 635, 649 (2d Cir. 2001). The 37 Appellant points out that the ruling is not supported by 38 Federal Rule of Evidence 801(d)(1)(B), which allows a prior 39 consistent statement to rebut a charge of fabrication or 40 recent improper motive in testifying. The Appellant’s 41 argument, however, ignores Rule 801(d)(1)(C) which permits a 42 witness’ prior consistent statement when the declarant 43 testifies, is subjected to cross-examination, and 44 “identifies a person as someone the declarant perceived 45 earlier.” The witness here was subjected to cross46 examination, and the prior consistent statement involved her 47

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

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