UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
November 23, 2011
UNITED STATES OF AMERICA, APPELLEE,
SAMUEL CARTER, JR., DEFENDANT, JASON SHOLA AKANDE, DEFENDANT-APPELLANT.
Appeal from a judgment of the United States District Court for the District of Connecticut (Robert N. Chatigny, Judge).
United States v. Jason Shola Akande
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 for the Second Circuit, held at the Daniel 2 Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 23rd day 3 of November, two thousand eleven.
PRESENT: JOSE A. CABRANES, CHESTER J. STRAUB, DEBRA ANN LIVINGSTON, Circuit Judges.
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Defendant-appellant Jason Shola Akande ("Akande") appeals from a January 20, 2010 judgment 8 of conviction entered by the District Court, convicting him, following a jury trial, on charges of 9 conspiracy to commit passport fraud in violation of 18 U.S.C. § 371, passport fraud in violation of 18 10 U.S.C. § 1542, and making false statements to immigration authorities in violation of 18 U.S.C. § 1001.
11 We assume the parties' familiarity with the underlying facts and procedural history of this case. On appeal, Akande raises two issues in his counseled briefs and numerous additional issues in a supplemental brief submitted pro se. First, Akande argues that the District Court erred by denying his motion to sever the passport fraud and false statement charges against him. Second, Akande argues that 16 certain statements in the government's summations caused him substantial prejudice. In his pro se 17 supplemental brief, Akande also argues that (1) the District Court erred by rejecting his requests to 18 introduce evidence to support his theory of a wide-ranging conspiracy against him; (2) that stand-by 19 counsel appointed by the District Court infringed his right to self-representation; (3) that the 20 government introduced "forged" state motor vehicle records and grand jury subpoenas; (4) that the 21 District Court erred by permitting his wife, Chastidy Williams, to testify, and by admitting his 22 handwritten letters to Williams; (5) that the government "selectively prosecuted" him for making false 23 statements to the immigration authorities while not indicting Williams; (6) that the District Court erred 24 by admitting his immigration file; and (7) that he received ineffective assistance from his appointed 25 counsel, who allegedly failed to advise him of the immigration consequences of a jury trial. Counsel on 26 this appeal, appointed under the Criminal Justice Act, 18 U.S.C. § 3006A, did not represent Akande at 27 trial, as Akande chose to proceed pro se.
The Propriety of Joinder
31 Rule 8(a) of the Federal Rules of Criminal Procedure provides for joinder of offenses when they 32 are "of the same or similar character, or are based on the same act or transaction, or are connected with 33 or constitute parts of a common scheme or plan." Fed. R. Crim. P. 8(a). "The propriety of Rule 8 34 joinder raises a question of law subject to de novo review." United States v. Feyrer, 333 F.3d 110, 113 (2d 35 Cir. 2003). We review the denial of a Rule 8 motion according to a "twofold inquiry: whether joinder 36 of the counts was proper, and if not, whether misjoinder was prejudicial to the defendant." United States 37 v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008) (quoting United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 38 1990)).
Rule 14(a) of the Federal Rules of Criminal Procedure provides that where joinder of offenses 2 for trial "appears to prejudice a defendant or the government, the court may order separate trials of 3 counts . . . or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). We review the 4 denial of a Rule 14(a) motion for abuse of discretion, and do not reverse "unless the defendant 5 demonstrates that the failure to sever caused him substantial prejudice in the form of a miscarriage of 6 justice." Rivera, 546 F.3d at 253 (quoting United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004) 7 (internal quotation marks omitted)); see Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (explaining "abuse 8 of discretion").
10 In this case, Akande argued that the passport fraud and false statement charges were not 11 properly joined under Rule 8(a), or in the alternative, that the District Court abused its discretion in 12 declining to sever the charges under Rule 14(a). We reject this argument primarily because the passport 13 fraud and false statement charges were "of the same or similar character." Fed. R. Crim. P. 8(a).
14 "'Similar' charges include those that are 'somewhat alike,' or those 'having a general likeness' to each 15 other." Rivera, 546 F.3d at 253 (quoting United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980)). Here, 16 the passport fraud and false statement charges share a "general likeness" in terms of the alleged conduct.
17 In both the passport fraud charges and the false statement charge, the defendant and a co-conspirator 18 submitted a fraudulent application to a United States agency. In both instances, the application was 19 submitted for the purpose of obtaining a document issued under the authority of the United States 20 related to the defendant's ability to re-enter and remain within the United States. And both offenses 21 were prompted by the fact that the defendant was an illegal alien residing in the United States. On these 22 facts, we are satisfied that the passport fraud charges and the false statement charge were substantially 23 similar in character, and that joinder was therefore appropriate.*fn1 In the absence of error, we do not 24 reach the issue of prejudice.
The Government's Summations
28 It is well established that "[t]he government has broad latitude in the inferences it may 29 reasonably suggest to the jury during summation." United States v. Edwards, 342 F.3d 168, 181 (2d Cir. 30 2003) (internal quotation marks omitted). An improper remark by a prosecutor will justify reversal 31 "only if it causes the defendant substantial prejudice by so infecting the trial with unfairness as to make 32 the resulting conviction a denial of due process." United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) 33 (quoting United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999)). In evaluating whether an improper 34 comment caused substantial prejudice, this Court will consider: "(1) the severity of the misconduct; (2) 35 the measures the district court adopted to cure the misconduct; and (3) the certainty of conviction 36 absent the improper statements." United States v. Burden, 600 F.3d 204, 221-22 (2d Cir. 2010).
In this case, Akande challenges certain statements in the government's summations as lacking 2 evidentiary support. Specifically, Akande objects to the following statements: (1) that Williams "signed 3 whatever [Akande] told her to sign" during her trip to Connecticut; (2) that Williams had just left 4 Tallahassee, moved to Atlanta, and had "no particular contacts or career set up" when she first met 5 Akande; and (3) that Williams called Akande when she either had a flat tire or needed other repairs on 6 her automobile. With respect to the first statement, although Williams testified that she obtained a 7 Connecticut identification card at the defendant's request, she did not specifically testify that she signed 8 the paperwork containing false representations as to her domicile that he provided. With respect to the 9 remaining statements, the government acknowledges that Williams did not testify about these matters 10 at trial. In the context of the full trial record, however, it is clear that these remarks did not rise to the 11 level of severe misconduct. See Burden, 600 F.3d at 222. At most, the prosecutor's comments were "an 12 aberration in an otherwise fair proceeding," United States v. Thomas, 377 F.3d 232, 245 (2d Cir. 2004) 13 (quoting United States v. Elias, 285 F.3d 183, 191 (2d Cir. 2002), and therefore cannot justify reversal.
17 We have considered all of the arguments raised in Akande's supplemental pro se brief. With the 18 exception of his ineffective assistance claim, we find his remaining claims to be without merit. Because 19 the record is insufficiently developed to allow us to resolve Akande's ineffective assistance claim, we 20 decline to hear it on direct review. See United States v. Brown, 623 F.3d 104, 112-13 (2d Cir. 2010).
24 We reject all of the defendant's claims on appeal. Accordingly,
the judgment of the District
Court is AFFIRMED.
OR THE COURT, Catherine O'Hagan Wolfe, Clerk of Court