United States of America v. Josephine Sami Halabi

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPHINE SAMI HALABI,
Defendant - Appellant.
No. 13-50410
D.C. No. 2:12-cr-00499-DMG-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted August 6, 2015
Pasadena, California
Before: SILVERMAN, SACK**, and WARDLAW, Circuit Judges.
Defendant Josephine Halabi appeals from the district court’s denial of her
motion for a mistrial. A jury convicted Halabi of charges arising from her receipt
of Supplemental Security Income ("SSI") payments to which she was not entitled
FILED
AUG 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.

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and from false statements she made to the Social Security Administration ("SSA")
regarding her eligibility for those payments. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
Halabi urges us to review the district court's denial of her motion for a
mistrial for abuse of discretion, while the government urges us to treat the motion
as an unpreserved evidentiary objection and review for plain error. See, e.g.,
United States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008) ("We generally review
the district court's denial of a motion for a mistrial for abuse of discretion."). But
see United States v. Rivera, 43 F.3d 1291, 1294-95 (9th Cir. 1995) (treating motion
for a mistrial based on alleged evidentiary error as untimely evidentiary objection).
Assuming without deciding that abuse of discretion is the appropriate standard, the
district court's ruling fell within its "broad discretion" to deny the motion. United
States v. Orozco, 764 F.3d 997, 1000 (9th Cir. 2014).
The testimony in question, which pertained to a county government form
reflecting Halabi's purchase of a second home, did not constitute impermissible
"other acts" evidence entered "to prove a person's character in order to show that
on a particular occasion the person acted in accordance with the character." Fed.
R. Evid. 404(b)(1). The false statement and perjury charges contained in the
indictment required the government to prove that Halabi owned two properties, the
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second of which was not her primary residence. Most of the disputed testimony
pertained directly to this charged conduct.
Halabi argues that the challenged testimony impermissibly suggested that
she had made an uncharged false statement; namely, that she intended to use the
second property as a primary residence. But the government witness whose
testimony Halabi challenges testified that he did not know who had completed the
form and checked the box indicating that the property was to be used as a primary
residence. He testified that while the form "[a]ppear[ed] to be signed by [Halabi],"
he "[didn't] know if she was the one who filled it out." The district court did not
abuse its discretion in denying the motion on the grounds there was no evidentiary
error.
Even if we were to "[a]ssum[e] without deciding that the testimony in
question was inadmissible [], reversal would be warranted only if any error in the
initial admission of the evidence was not harmless." United States v. George, 56
F.3d 1078, 1083 (9th Cir. 1995). Halabi has failed to show that she was prejudiced
by the testimony in question.1 First, the challenged testimony was duplicative of
other, unchallenged evidence in the record. See Evanow v. M/V Neptune, 163 F.3d
1 Defense counsel declined an instruction offered by the district court to
"cure" any jury confusion that this evidence might have generated.
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1108, 1117 (9th Cir. 1998) (holding that defendants could not show prejudice
where challenged evidence was "largely duplicative" of unchallenged evidence).
The witness, an SSA investigator, testified as to (1) the contents of the form and
(2) his visit to Halabi's second home, which revealed that Halabi did not live there.
The former aspect of the testimony is unlikely to have prejudiced Halabi any more
than the contents of the form itself, which Halabi does not dispute was properly
admitted. The latter aspect of the testimony is unlikely to have prejudiced Halabi
any more than her own August 2011 admission that she owned a second home,
which she used for rental income rather than as her own residence.
Second, the evidence supporting the conclusion that Halabi knowingly made
the false statements in question was overwhelming. The SSA claims representative
who conducted Halabi's eligibility review testified that Halabi denied owning a
second home and signed statements to that effect after being advised that her
ownership of a second home would preclude her receipt of SSI payments and that
she signed one form under penalty of perjury. The representative's supervisor
corroborated the representative's testimony in several respects. Finally, the
manager of an apartment complex in which Halabi once lived testified that the
manager frequently observed Halabi read, write, and speak English without
apparent difficulty. Halabi has thus failed to show that, "more probably than not,
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the lower court's error [if there was one] tainted the verdict." Mahone v. Lehman,
347 F.3d 1170, 1172 (9th Cir. 2003) (internal quotation marks omitted).
AFFIRMED.
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