The opinion of the court was delivered by: William M. Skretny United States District Judge
Defendant Mohamed Bahaa El Din Hamdy is charged in a four-count Second Superseding Indictment with Concealing a Material Fact (18 U.S.C. § 1001 (a)(1)), Making a Materially False Statement and Representation (18 U.S.C. § 1001 (a)(2)), Making and Using a Materially False Document (18 U.S.C. § 1001 (a)(3)), and Making a False Statement on an Immigration Application (18 U.S.C. § 1546 (a)).
Trial on this indictment commenced on June 14, 2006. After four days of trial and six government witnesses, Defendant moved for a mistrial when a government witness testified about investigations into uncharged criminal conduct involving Defendant. After hearing from counsel in compliance with Federal Rule of Criminal Procedure 26.3,*fn1 this Court granted Defendant's motion and advised that this decision would follow. It is for the reasons stated below that this Court granted Defendant's request for a mistrial.
According to the allegations in the Second Superceding Indictment, Defendant is a citizen of Egypt who entered the United States lawfully in September of 2000, based on his marriage to a United States citizen. In December of 2001, Defendant and his wife divorced. In April of 2002, Defendant entered the United States Army in Buffalo, New York.
On December 26, 2002, the Immigration and Naturalization Service*fn2 received Defendant's Application for Naturalization ("the Application"), which was dated October 30, 2002. Defendant sought naturalization based on his qualifying military service.
On or about April 1, 2003, Defendant left his military unit without authority and traveled to Egypt. Hereturned to the United States via the Denver International Airport approximately two months later, on May 28, 2003. An agent from the Federal Bureau of Investigation ("FBI") met Defendant at the airport, interviewed him, and then released him.
Thereafter, on August 3, 2003, the Army charged Defendant under Article 86 of the Uniform Code of Military Justice with being absent from his unit without authority between April 1, 2003, and May 29, 2003. This charge was resolved on August 21, 2003, when the Army discharged Defendant under other than honorable conditions in lieu of trial by court-martial.
On April 13, 2005, Defendant sat for an interview with a District Adjudication Officer from USCISin Buffalo, New York, regarding his Application. The officer verified and ensured the accuracy of the information Defendant provided on the Application. Under the "Good Moral Character" section of the Application, Defendant answered "No" to the question of whether he was ever charged with committing any crime or offense. At the end of the interview, Defendant signed the Application, swearing and certifying "under penalty of perjury under the laws of the United States of America" that the contents of the Application subscribed by him were true and correct to the best of his knowledge and belief. Approximately three months later, on July 15, 2005, the government commenced this false statement prosecution by filing a criminal complaint.
III. DISCUSSION AND ANALYSIS
A. Standard for Granting a Mistrial
"A motion for mistrial is addressed to the sound discretion of the trial judge." United States v. Rudaj, No. 04 Cr. 1110, 2005 WL 2746564, at *3 (S.D.N.Y. Oct. 25, 2005) (quoting United States v. Marshall, 458 F.2d 446, 451 (2d Cir. 1972)). A mistrial may be granted when a defendant suffers actual prejudice from the introduction of improper testimony or evidence. See United States v. Colombo, 909 F.2d 711, 713-14 (2d Cir. 1990).
In some cases, curative instructions to the jury may ameliorate prejudice to the defendant. In this regard, the law presumes "that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it." Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 97 L.Ed. 2d 618 (1987). However, a curative instruction will not suffice where a defendant shows " that it is 'overwhelming[ly] probab[le]' that the jury will be unable to follow the instruction; and  that the effect of the evidence would have a strong likelihood of being 'devastating' to the defendant." Id. (internal citations omitted); Dickens v. Herbert, No. 00 Civ. 3249, 2002 WL 1728514, at *5 (S.D.N.Y. July 25, 2002) (quoting same); see also Black v. Walker, No. 96 Civ. 0668E, 2000 WL 461106, at *8 (W.D.N.Y. April 14, 2000) (the assumption that juries will follow limiting and curative instructions "does not apply when the prejudice is so severe that the instructions would be ineffective").
For example, in United States v. Colombo, 909 F.2d 711, 712 (2d Cir. 1990), the appellant, William F.X. Klan, appealed his convictions for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 (d) (1988), and conspiracy to distribute narcotics, 21 U.S.C. § 846 (1988). During the trial, the prosecutor introduced and dwelled on the fact that Klan's co-defendants raped and sodomized a woman during the course of a robbery that formed one of the predicate acts of the RICO conspiracy. Id. at 712-14. The prosecutor questioned several witnesses about this incident, including Klan, who was challenged "a number of times" about his knowledge of the rape and sodomy, which he denied knowing about. Id. at 714.
On appeal, the Second Circuit held that the district court's admonishment to the jury to consider the evidence of the uncharged rape and sodomy only as background information was insufficient. Id. at 715. The court reasoned that "[w]ith such a negative vision of the defendant, there is an 'overwhelming probability' that the jury was unable to consider dispassionately the evidence of such a violent crime simply as ...