filed: September 4, 1991; As Amended September 27, 1991.
Appeal from the United States District Court for the District of New Jersey; D.C. Criminal Action No. 89-00195-02.
Stapleton, Hutchinson and Higginbotham, Circuit Judges.
HUTCHINSON, Circuit Judge
Ghulam Sabir Rana (Rana) appeals convictions of one count of conspiracy to defraud the United States in violation of 18 U.S.C.A. § 371 (West 1966), one count of making false, fictitious and fraudulent statements to an agency of the United States in violation of 18 U.S.C.A. § 1001 (West 1976) and aiding and abetting others in commission of the latter in violation of 18 U.S.C.A. § 2 (West 1969). A jury found Rana guilty of both substantive counts. Only one of the issues Rana raised on this appeal, the jury's examination during trial of a notebook the government compiled that contained exhibits not yet entered into evidence, requires comment.*fn1 On that issue we hold that the district court erred when it allowed the government to provide each juror with a notebook that contained exhibits not yet admitted. On the record before us, however, we hold that this error was harmless. Thus, we will affirm Rana's convictions.
On May 24, 1989, a grand jury sitting in the United States District Court for the District of New Jersey indicted Rana on one count of conspiring to defraud the United States and one count of making false, fictitious and fraudulent statements to an agency of the United States. Rana's alleged co-conspirators included Mohsin Bashir Chaudry (Chaudry), Azad Khan, Inam Khan and Sherry Pettiford. The conspiracy count charged that Rana and the co-conspirators sought to defraud the Immigration and Naturalization Service (INS) by arranging "false" or "paper" marriages between citizens of Pakistan and citizens of the United States so that the Pakistanis could attain permanent resident alien status in the United States. The false statements count charged that Rana made false statements in writing to the INS concerning the marriage of Mohammad Mushtaq (Mushtaq) and Wendy Wallace (Wallace).
All of the conspirators except Rana pled guilty. Rana's jury trial began on April 23, 1990. At the beginning of trial the government asked the court for permission to give each juror a notebook containing about 125 of the government's exhibits. The admissibility of all of the documents in the notebook had not been ruled on, but the government argued that the books could nevertheless be given to the jurors at once if the court instructed them that they should not look at any particular document until told to do so. Over an objection by Rana's counsel, the district court permitted the government to give the notebooks to the jury, but precluded the jurors from taking the notebooks out of the courtroom.
On the second day of trial, while questioning a witness about Exhibit 15, the government's attorney advised the court that some jurors seemed to be looking at Exhibit 15 though it had not yet been admitted. The court cautioned the jurors against looking at a particular exhibit before it was admitted into evidence and the court had instructed the jurors that they could look at the exhibit. Soon after this incident, Exhibit 15 was admitted into evidence.
Later in the trial, the government instructed a witness to hold up Exhibit 133 so that the jury could see it even though Exhibit 133 had not yet been admitted into evidence. Rana's counsel objected because Exhibit 133 had not yet been admitted. The district court responded, "Not yet," and did not rule further on the objection. Supplemental Appendix for Appellant at 208. Exhibit 133 was later admitted into evidence.
The jury returned guilty verdicts on both counts of the indictment against Rana. On August 3, 1990, Rana was sentenced to concurrent five-year terms of imprisonment and ordered to pay a $10,000.00 fine and a $100.00 special assessment. Rana filed a timely notice of appeal on August 13, 1990.
We state the facts material to Rana's conviction under the usual standard for judging the sufficiency of a jury verdict in a criminal case by resolving all conflicts in the evidence in favor of the government, and giving it the benefit of all reasonable inferences from that evidence. See United States v. Inigo, 925 F.2d 641, 649 (3d Cir. 1991).
Rana, a Pakistani, arrived in the United States on December 19, 1981. He entered as a temporary visitor for business reasons and was given permission to stay in the country until February 28, 1982. He was granted an extension until July 28, 1982. Rana remained in the United States after July 28 and was classified by INS as "out of status." Appendix ...