United States v. Diomande

40 F. App'x 120
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 1, 2002
DocketNo. 01-1353
StatusPublished
Cited by3 cases

This text of 40 F. App'x 120 (United States v. Diomande) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Diomande, 40 F. App'x 120 (6th Cir. 2002).

Opinion

RYAN, Circuit Judge.

Moussa Diomande appeals from his conviction entered pursuant to 18 U.S.C. § 371 for conspiring to defraud the United States Immigration and Naturalization Service (INS). On appeal, Diomande argues that the district court abused its discretion when it refused to declare a mistrial after striking a government witness’s testimony. He also argues that the district court infringed upon his Sixth Amendment rights when he was denied the opportunity to testify about the West African cultural tradition of providing assistance to fellow countrymen living in the United States. Neither of Diomande’s arguments has merit, and we affirm the judgment of the district court.

I.

Diomande was convicted in an October 2000 jury trial for his part in a conspiracy [121]*121to defraud the INS. The scheme, based in Flint, Michigan, paid U.S. women to marry men emigrating to the U.S. from the Ivory Coast, allowing the men to gain resident status or citizenship. It was alleged that Diomande’s role in the conspiracy was to drive couples to Ohio, where there is no waiting period to obtain a marriage license, to help couples complete and submit paperwork to the INS, and to pay some of the women for their participation. Upon conviction, Diomande was sentenced to 18 months’ imprisonment.

The government presented the testimony of Federal Bureau of Investigation Special Agent John Cecil, who, with an INS Agent, had interviewed Diomande in the course of an investigation into the sham marriage scheme. Cecil testified that Dio-mande had claimed during the interview that he had never driven any couples to Ohio to marry, that he had never assisted anyone in the preparation of documents submitted to the INS, and that he knew nothing about the marriage scheme. On cross-examination, however, Cecil revealed that he had not actually been present when Diomande was asked about the marriage scheme and that he had no personal knowledge about the abovementioned denials. The district court judge then intervened:

THE COURT: Wait a minute. Let me ask you a question. Wait a second. Did you personally hear Mr. Dio-mande say that he never drove anyone to Ohio?
THE WITNESS [(Cecil)]: Personally, no.
[DEFENSE COUNSEL]: Judge, I have a second motion and I ask the jury-
THE COURT: No. Did you personally hear him say he knew nothing about marriage fraud?
THE WITNESS: No, I did not.
THE COURT: Did you personally hear him say he knew nothing about filling out forms?
THE WITNESS: No, I did not.
THE COURT: The jury will disregard the witness’s testimony in those respects.

The judge then excused the jury in order to address further Cecil’s testimony. Although the Assistant U.S. Attorney claimed that she was told that Cecil was present when Diomande was asked about the conspiracy, she admitted that she had not interviewed the agent prior to his testimony. The defense then moved for a mistrial, prompting the trial judge to respond: “I understand you’re going to make a motion for a mistrial and I am not going to grant a mistrial because I am going to show ask [sic] you if there is a less restrictive means of dealing with all of the objections you have had. There will be no mistrial declared in this case, period, at this time. At this time.” The judge then summoned the jurors and said to them: “I have excused Mr. Cecil as a witness and you will disregard all of his testimony. Put it out of your mind. Forget it.”

Later in the trial, Diomande took the stand in his own defense. On re-direct conducted by his attorney, the following exchange occurred:

Q [DEFENSE ATTORNEY:] Some of the questions you were asked by [the AUSA] were questions — first of all, you gave rides to Ohio to three different couples, guy come [sic] over in the morning say [sic] I want to get married, you take him.
Remember those questions?
A[:] Yes.
Q[:] Is that type of help the type of help that West Africans give each other?
[AUSA]: Judge, this is — ■
[122]*122THE COURT: I’m going to sustain the objection.
[DEFENSE COUNSEL]: May I make a separate record on that?
THE COURT: No. You just go ahead.
[DEFENSE COUNSEL]: I’ve no further questions.

The defense then rested, and the jury later returned a verdict finding Diomande guilty.

II.

On appeal, Diomande presents two distinct arguments based on the trial court’s conduct of the trial. Upon review we find that neither argument has merit, and we dispose of each in turn.

First, Diomande argues that the district court abused its discretion when it denied Diomande’s motion for a mistrial after striking Cecil’s testimony. He contends that the case against him was a “close one,” and because the stricken testimony concerned a purported statement from the defendant, Cecil’s assertions were so prejudicial that the jury could not have been trusted to disregard them upon the judge’s instructions. The government counters that the testimony was offered in good faith and that it was not until cross-examination that the parties learned that Cecil was not present throughout the interview. Furthermore, the government contends that the agent had earlier informed counsel that he had participated in the entire interview.

We review a district court’s refusal to grant a mistrial for abuse of discretion. United States v. Carroll, 26 F.3d 1380, 1383 (6th Cir.1994). A district court has committed an abuse of discretion only “when the reviewing court is firmly convinced that a mistake has been made.” Id.

Upon review of a mistrial motion, fairness to the accused is our primary concern. United States v. Forrest, 17 F.3d 916, 919 (6th Cir.1994) (per curiam). We have held that when evidence is admitted in error, striking the testimony and providing clear limiting instructions to the jury usually cures the error. United States v. Carr, 5 F.3d 986, 993 (6th Cir. 1993). It is presumed that juries follow a trial judge’s admonition to disregard an improperly introduced statement. Forrest, 17 F.3d at 920-21. “Only if the erroneously admitted evidence is of an exceptionally prejudicial character, such that its withdrawal from consideration by the jury cannot be expected to remove the harm, will it be appropriate to grant a new trial.” Carr, 5 F.3d at 993.

Upon review, we find that the district court did not abuse its discretion in denying the mistrial motion. Cecil’s stricken testimony was not especially prejudicial, and even if the testimony did prejudice Diomande, the district court’s unequivocal and repeated instructions to disregard all of Cecil’s testimony were sufficient to cure any bias that could have affected the jury’s deliberations.

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40 F. App'x 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-diomande-ca6-2002.