13-2471

United States v. FNU LNU

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 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 APPENDIX 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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 17th 4 day of September, two thousand fourteen.

5

6 PRESENT: DENNIS JACOBS,

7 CHRISTOPHER F. DRONEY,

8 Circuit Judges,

9

10 LEWIS A. KAPLAN,

District Judge.* 11

12

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14 UNITED STATES OF AMERICA, 

15 Appellee,

16

17 -v.- 13-2471

18

19 FNU LNU, AKA Oscar Mario Garcia, 

20 Defendant-Appellant.

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22

* The Honorable Lewis A. Kaplan, United States District

Judge for the Southern District of New York, sitting by

designation.

1
1 FOR APPELLANT: MALVINA NATHANSON, Law Office of

2 Malvina Nathanson, New York, New

3 York.

4

5 FOR APPELLEE: REBECCA MERMELSTEIN (Brent S.

6 Wible, on the brief), for Preet

7 Bharara, United States Attorney

8 for the Southern District of New

9 York, New York, New York.

10

11 Appeal from a judgment of the United States District

12 Court for the Southern District of New York (Karas, J.).

13

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15 AND DECREED that the judgment of the district court be

16 AFFIRMED. 

17

18 The Defendant-Appellant appeals from the judgment of

19 the United States District Court for the Southern District

20 of New York (Karas, J.), convicting him of: unlawful

21 procurement of naturalization, in violation of 18 U.S.C. §

22 1425(a); two counts of false statement in application and

23 use of a passport, in violation of 18 U.S.C. § 1542; and

24 fraud and related activity in connection with identification

25 documents, in violation of 18 U.S.C. § 1028A; and social

26 security fraud, in violation of 42 U.S.C. § 408(a)(2). On

27 appeal, the Appellant argues the district court erred in two

28 of its evidentiary decisions during trial. We assume the

29 parties’ familiarity with the underlying facts, the

30 procedural history, and the issues presented for review. 

31

32 1. The district court permitted the Government to

33 introduce a witness’ prior consistent statement regarding

34 the identification of her husband’s photograph prior to her

35 testimony at trial. We review a district court’s

36 evidentiary decisions for abuse of discretion. See United

37 States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001). The

38 Appellant points out that the ruling is not supported by

39 Federal Rule of Evidence 801(d)(1)(B), which allows a prior

40 consistent statement to rebut a charge of fabrication or

41 recent improper motive in testifying. The Appellant’s

42 argument, however, ignores Rule 801(d)(1)(C) which permits a

43 witness’ prior consistent statement when the declarant

44 testifies, is subjected to cross-examination, and

45 “identifies a person as someone the declarant perceived

46 earlier.” The witness here was subjected to cross47 examination, and the prior consistent statement involved her

2
1 previous identification of her late husband’s photograph. 

2 Such testimony falls within the hearsay exclusion of Rule

3 801(d)(1)(C). 

4

5 2. The Appellant also argues that the district court

6 erred in barring as hearsay his testimony about the

7 circumstances of a family dispute which caused him to move

8 to New York. Because the Appellant never asserted a basis

9 for the admissibility of the testimony, we review for plain

10 error. See United States v. Marcus, 560 U.S. 258, 262

11 (2010); United States v. Cruz, 894 F.2d 41, 44 (2d Cir.

12 1990). The Appellant argues that the testimony was not

13 hearsay because it was intended only to show his state of

14 mind in deciding to move, and not offered for the truth of

15 the matter asserted. However, “the mere identification of a

16 relevant non-hearsay use of . . . evidence is insufficient

17 to justify its admission if the jury is likely to consider

18 the statement for the truth of what was stated with

19 significant resultant prejudice.” United States v. Reyes,

20 18 F.3d 65, 70 (2d Cir. 1994); see also Fed. R. Evid. 403. 

21 Here, the district court could reasonably have concluded

22 that the proffered testimony would be considered by the jury

23 for the truth of the matter asserted. We see no error, let

24 alone plain error, in the district court’s decision to

25 exclude this testimony.

26

27 For the foregoing reasons, and finding no merit in the

28 Appellant’s other arguments, we hereby AFFIRM the judgment

29 of the district court.

30

31 FOR THE COURT:

32 CATHERINE O’HAGAN WOLFE, CLERK

33

3