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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
IZAZ ELVIN KHAN,
Appellant, Court of Appeals No. A-9552
Trial Court No. 3UN-04-340 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2210 April 3, 2009
Appeal from the Superior Court, Third Judi
cial District, Unalaska, Sharon L. Gleason,
Judge.
Appearances: G. Blair McCune, Anchorage, for
the Appellant. W. H. Hawley Jr., Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
Izaz Elvin Khan was convicted of perjury1 for knowingly
making false statements under oath in an application for court-
appointed counsel (i.e., knowingly | under-reporting his assets and income | ). In this appeal, Khan challenges the superior courts denial of his motion for a change of venue, as well as some of the superior courts evidentiary rulings and one of the jury instructions (the instruction dealing with the requirement of jury unanimity | ). |
| For the reasons explained here, we conclude that Khan waived his right to challenge the superior courts venue ruling because he did not renew his motion following jury selection. We further conclude that the superior courts evidentiary rulings are supportable. With regard to the challenged jury instruction on unanimity, we agree with Khan that it was erroneous, but we conclude that Khan was not prejudiced by this error. Accordingly, we affirm Khans conviction. | ||
Underlying facts
In October 2004, Khan was being held in the
Unalaska jail on unrelated criminal charges. Khan
asked the jailor for the paperwork necessary to apply
for court-appointed counsel. Khan completed this
paperwork, including the required financial statement,
and he signed this document under oath. This document
contained an explicit warning (just above the signature
line) that [m]aking false statements under oath is a
crime. Khan signed the document in front of the
jailor, and the jailor notarized Khans signature.
As part of his financial statement, Khan
provided information about his current income, his past
income, his current and past employment, and his
assets. In the financial statement, Khan declared that
he was not currently working, and that he had not
worked for the preceding three years (specifically,
since September 2001). In the space provided for a
list of employers in the past year, Khan listed None.
Khan also declared that he had no current monthly
income, and that he had received no income during the
preceding twelve months. In the portion of the
financial statement labeled Cash and Assets, Khan left
the majority of the questions blank, and he answered
None on the line where he was supposed to give the
total value of his assets. Khan repeatedly answered no
or none on the lines calling for him to give the amount
of his income and to list the values of his assets.
The truth was that Khan had worked
sporadically since mid-2001. According to records kept
by the Alaska Department of Labor, Khan worked during
twelve of the thirteen fiscal-year quarters between
September 2001 and October 2004. Khan had also been
employed by at least two different employers during the
twelve months immediately preceding his act of applying
for appointed counsel.
Moreover, according to records kept by the
Alaska Division of Motor Vehicles, Khan owned a vehicle
(a Toyota pickup truck) at the time he applied for
appointed counsel.
Based on these facts, Khan was indicted on
one count of perjury. This count was based on the
various false statements in the financial affidavit.
The motion for change of venue
Before trial, Khans attorney asked the
superior court to move Khans trial out of Unalaska. In
this motion, the defense attorney alleged that Khan was
notorious in Unalaska as an outspoken, unpopular
advocate for Pakistani issues. The defense attorney
argued that, due to community prejudice against Khan,
it would not be possible for Khan to receive a fair
trial in Unalaska.
The trial judge, Superior Court Judge Sharon
L. Gleason, denied this pre-trial motion, but did so
without prejudice to Khans right to raise the venue
issue again during or after jury selection.
Khans attorney never renewed the motion for a
change of venue, and Khans trial was held in Unalaska.
Under Alaska law, a criminal defendants
failure to renew a request for a change of venue based
on adverse pre-trial publicity or community sentiment
is deemed a waiver of the request.2 Accordingly, we
affirm the superior courts denial of Khans motion to
change venue.
The evidence of Khans earlier false statements to the
Department of Labor when applying for unemployment
benefits
Before trial, the State asked for permission
to introduce evidence that Khan had knowingly withheld
material facts (i.e., facts pertaining to his
employment and income over a period of five months in
2003) when he applied for unemployment benefits from
the Department of Labor.
Initially, the State did not ask for
permission to use this evidence in its case-in-chief,
but rather sought permission to use the evidence if
Khan testified and offered a defense based on mistake
or innocent intent. However, during trial, the State
altered its request and asked for permission to
introduce this evidence in its case-in-chief. The
State asserted that, based on Khans attorneys questions
to the jury panel during voir dire, it was obvious that
Khan would be relying on a defense of mistake or
innocent intent.
Judge Gleason concluded that evidence of
Khans prior fraudulent unemployment-benefit claims was
relevant to the perjury case for reasons other than to
prove Khans character and that the proposed evidence
was therefore admissible under Alaska Evidence Rule
404(b)(1). However, Judge Gleason also instructed the
jury that this evidence could be used only for the
limited purpose of deciding ... [Khans] knowledge,
plan, or absence of mistake.
On appeal, Khan argues that this evidence was
not admissible under Evidence Rule 404(b)(1) because it
had no relevance other than to prove propensity that
is, no relevance other than to show (1) that Khan was a
person who characteristically committed fraud, and (2)
that Khan probably acted true to character during the
incident being litigated in this case.
We disagree. Khans defense at trial was a
combination of mistake and innocent intent (i.e., a
lack of intent to defraud). During the defense
attorneys summation to the jury, she argued that Khan
was emotionally distraught at the time of his arrest on
the unrelated charges and that, when Khan filled out
the financial affidavit, he either mistakenly or
carelessly answered that he had no income or assets.
The States evidence of Khans prior fraudulent claim for
unemployment benefits was directly relevant to rebut
this defense. This evidence was relevant to negate
Khans assertion that his responses were the result of
mistake or carelessness.
According to the States offer of proof (i.e.,
the factual assertions in the States application to
present this evidence), Khan was involved in admini
strative proceedings with the Department of Labor in
January 2004 concerning allegations that he
fraudulently applied for unemployment benefits. The
Departments claim of fraud was based on Khans failure
to report his employment and earnings during five
months in 2003. Thus, when Khan applied for court-
appointed counsel in October 2004, he had recently
litigated allegations that he fraudulently concealed
employment and income. This fact made it much less
likely that Khan acted innocently or negligently when,
in the financial affidavit he submitted to support his
request for counsel, he reported that he had no income
and no employment between September 2001 and October
2004.
For these reasons, we uphold Judge Gleasons
ruling that the evidence was admissible under Evidence
Rule 404(b)(1).
Khan also argues that even if this evidence
was admissible under Rule 404(b)(1), Judge Gleason
nevertheless should have found that its potential
unfair prejudice outweighed whatever probative value it
had, and that the evidence should therefore have been
excluded under Evidence Rule 403.
This balancing of probative value versus
potential for unfair prejudice is entrusted to the
discretion of the trial judge.3 Here, Judge Gleason
recognized that the challenged evidence had a potential
for unfair prejudice, and (for this reason) she gave
the jury a cautionary instruction that explained the
limited purposes for which the jurors could properly
consider this evidence. Reasonable judges could
conclude that this was a satisfactory way to balance
the States need for the evidence against its potential
for unfair prejudice.
In sum, we conclude that Judge Gleason did
not abuse her discretion when she allowed the State to
introduce this evidence.
Khans request to introduce evidence that he would have
qualified for court-appointed counsel even if he had
filled out the financial affidavit truthfully
Before trial, the State asked Judge Gleason
to preclude Khan from introducing evidence that he
would have qualified for court-appointed counsel even
if he had truthfully listed his income and assets in
the financial affidavit.
Judge Gleason concluded that any such
evidence would not be relevant to the issue of whether
Khan knowingly lied when he filled out the financial
affidavit. For this reason, she ruled that Khans
attorney would not be allowed to introduce evidence
concerning the financial qualifications for obtaining
court-appointed counsel.
The question of whether Khan would have
qualified for court-appointed counsel if he had given
truthful answers concerning his financial situation had
(at best) only peripheral relevance to the issue to be
decided by the jury: to wit, whether Khan knowingly
gave false answers when he filled out the financial
affidavit. Moreover, Judge Gleason could reasonably
conclude that, in all probability, the primary effect
of such evidence would be to suggest that the jury
should overlook Khans crime because his false answers
caused no financial harm to the State. For these
reasons, we conclude that Judge Gleason did not abuse
her discretion when she excluded this evidence.
Khan appears to argue (in a footnote to his
brief) that Judge Gleasons ruling denied him due
process of law because it prevented him from presenting
evidence favorable to his case. But we have repeatedly
held that a defendants right to due process of law is
not abridged when a trial judge correctly concludes
that the defendants proposed evidence is not admissible
under the rules of evidence.4
The jury instruction on the requirement of unanimity
At Khans trial, the State presented evidence
of the falsity of four separate statements in Khans
financial affidavit. Without objection from the
defense (other than the defense attorneys comment that
the instruction was not necessary), Judge Gleason
instructed the jurors that they could convict Khan of
perjury if each of the jurors concluded that at least
one of these four statements was knowingly false even
if there was no unanimous agreement as to the falsity
of any particular statement.
On appeal, for the first time, Khan argues
that this instruction was improper that it was
unlawful for the jury to convict him unless the jurors
reached unanimous agreement concerning which statement
or statements were knowingly false.
When a jury instruction is challenged for the
first time on appeal, the party challenging the
instruction must show plain error.5 In the context of
jury instructions, [p]lain error exists when [the] jury
instruction obviously create[d] a high likelihood that
the jury w[ould] follow an erroneous theory resulting
in a miscarriage of justice.6
In its brief to this Court, the State
contends that the four false statements were simply
alternative ways in which Khan might have committed the
single offense of perjury when he swore to the truth of
the financial affidavit. Thus, the State reasons, the
jurors did not have to agree on the precise theory
(i.e., the precise statement) by which Khans conduct
was an act of perjury. Rather, the jurors simply had
to agree that Khans making of the false affidavit was
an act of perjury because the affidavit contained one
or more knowingly false statements.
The problem with the States approach is that
it rests on the premise that a person commits only one
act of perjury, no matter how many false statements the
person makes during a single hearing or in a single
document. Indeed, the State expressly asks this Court
to interpret the perjury statute as meaning that
multiple false statements in a single document can
support [only] one conviction.
The State bases this assertion on the
legislative commentary to AS 11.56.240(1), the statute
which codifies the definition of statement for purposes
of the perjury statutes (AS 11.56.200 230). According
to AS 11.56.240(1), a statement means a representation
of fact. The accompanying legislative commentary says
basically the same thing, except that the commentary
uses the word any instead of a. Thus, the commentary
declares that a statement means any representation of
fact.7
According to the State, this seemingly
inconsequential variation in language between the
statute and the commentary actually changes the
definition of the offense of perjury. The State argues
that, because the commentary uses the phrase any
representation (instead of a representation), the
legislature must have meant that a charge of perjury
can be based on the theory that, in a single document
or during a single trial or evidentiary hearing, the
defendant made one or more knowingly false statements.
Accordingly, the State asserts that when a jury decides
whether the defendant is guilty of perjury, the jurors
need not agree on which of the defendants statements
were knowingly false, as long as every juror concludes
that the defendant made at least one knowingly false
statement.
There are two problems with the States
position.
First, the commentary to the perjury section
in the Tentative Draft of the Alaska Criminal Code
demonstrates that the drafters used the phrase any
representation of fact for two reasons: first, to
clarify that the new perjury statute extended to false
statements concerning a persons belief or memory; and
second, to distinguish the new perjury statute from
Alaskas former perjury statute, which required proof
that the defendants false representation of fact was
material.8
Second, the States position appears to be
contrary to the law on this issue. As this Court noted
in Machado v. State, 797 P.2d 677 (Alaska App. 1990),
[there is] substantial [judicial] authority
allowing a defendant to be convicted on
multiple counts of perjury where the perjury
occurred at a single hearing and [even when]
the factual difference between the perjurious
statements is slight. See Commonwealth v.
Gurney, 13 Mass. App. 391, 433 N.E.2d 471,
475 (1982). Cf. DeMan v. State, 677 P.2d
903, 906 (Alaska App.1984) (no double
jeopardy violation for similar perjury which
occurred at different proceedings).
Machado, 797 P.2d at 687.
Although this Court has never
issued a definitive ruling on this legal
question, we note that in York v. State, 757
P.2d 68, 73 (Alaska App. 1988), we upheld
separate perjury convictions based on various
statements that the defendant made in a
single proceeding before the Alaska Workers
Compensation Board, and in Harrison v. State,
923 P.2d 107, 109-110 (Alaska App. 1996), we
upheld separate perjury convictions for two
different assertions of fact in the same
sworn application for post-conviction relief.
Indeed, the facts of Khans case are
similar to the facts presented in Harrison.
Khan submitted a single affidavit that
allegedly contained four false statements.
Our decisions in Machado, York, and Harrison
strongly suggest that Khan could have been
charged with (and convicted of) four separate
counts of perjury, had the State elected to
indict him in this manner.
The States position is also
contrary to another doctrine of our law:
When a defendant is charged with a crime
under more than one theory, the jurors need
not unanimously agree on the theory that
serves as the basis for the defendants
conviction, but the jurors must unanimously
agree that the defendant committed the
wrongful deed. State v. James, 698 P.2d
1161, 1165 (Alaska 1985). In James, our
supreme court declared that jurors must agree
upon just what the defendant did; they must
all agree that the defendant committed a
single offense. Id. at 1167.
Thus, in Covington v. State, 703
P.2d 436 (Alaska App. 1985), this Court held
that when a defendant is charged with a
single count of sexual abuse of a minor,
encompassing repeated acts of sexual abuse
over a period of time, the defendant can not
properly be convicted unless the jurors
unanimously agree on the specific act(s) of
abuse that the defendant committed. Id. at
440-41.
All of these decisions suggest that
Khan may have been entitled to demand an
amendment of his indictment so that each
alleged false statement in his financial
affidavit would be charged in an individual
count. We need not decide this issue,
because Khan never attacked his indictment as
duplicitous (i.e., on the ground that it
improperly combined more than one charge).
In any event, Khan would not have
been entitled to dismissal of the indictment
on this ground for, as this Court explained
in Carman v. State, 658 P.2d 131, 139 (Alaska
App. 1983), the rule against duplicitous
counts in an indictment is a rule of
pleading[,] not substance. The remedy for
this charging error is not dismissal, but
rather a segregation of the improperly joined
charges into separate counts in the same
indictment. Id.
Moreover, as the Alaska Supreme
Court stated in Drahosh v. State, 442 P.2d
44, 48-49 (Alaska 1968), in the absence of a
showing that a defendants substantial rights
were prejudiced ... , an otherwise proper
judgment of conviction will not be disturbed
because of a duplicitous count in the
indictment or complaint.
Thus, even if we assume that Khan
was entitled to demand a separate count of
the indictment for each alleged false
statement, or that Khan was at least entitled
to have the jury return special verdicts
indicating the jurors vote on each alleged
false statement, the real issue in Khans case
is whether his substantial rights were
prejudiced.
This Court confronted a similar
situation in Covington, a case we mentioned
earlier. The defendant in Covington was
indicted on several counts of sexually
abusing a minor, but each count encompassed
several acts of alleged abuse over a period
of months. 703 P.2d at 438. This Court held
that the jury was required to reach a
unanimous verdict as to which act or acts
Covington committed. Id. at 440-41. And
because the jury was not apprised of this
requirement, we initially reversed Covingtons
convictions. Id. at 441. However, on
rehearing, we concluded that this error did
not require reversal of Covingtons
convictions. See State v. Covington, 711
P.2d 1183, 1185 (Alaska App. 1985).
In our opinion on rehearing, we
noted that Covington had not raised this
issue in the superior court, and thus the
issue was raised as a claim of plain error on
appeal.9 We then noted that, at Covingtons
trial, he did not raise separate or different
defenses to the various alleged acts of
sexual abuse. Rather, Covington contended
that he never sexually abused the victim, and
that the victim was lying about the whole
matter.10
Given the way Covingtons case was
litigated, we concluded that the trial judges
failure to inform the jurors of the need for
unanimous agreement concerning one or more
instances of sexual abuse did not appreciably
affect any verdict against Covington. Id. at
1185.
We reach the same conclusion in
Khans case. We will assume that Khans jury
should have been instructed that they had to
reach a unanimous decision regarding each of
the four false statements alleged by the
State. Nevertheless, this error was
harmless.
Khan presented the same defense to
each statement. He did not seriously dispute
that these statements were false. (Indeed,
when the defense attorney presented her
summation, she told the jury: Were not
denying that [Khan] did have some income in
[the preceding] three years [and] were not
denying that [Khan owned a] pickup truck.)
Rather, the defense attorney argued that, due
to Khans anger, fright, agitation, and
frustration, he was not paying careful
attention to how he filled out the affidavit
and, therefore, he did not make these false
statements knowingly.
In sum, Khan (like Covington)
presented a blanket defense to all of the
States allegations. Khan conceded that he
made the four statements identified by the
State, and he conceded that these statements
were false, but he asserted that he lacked
the culpable mental state for perjury. Given
this record, we conclude that Khan has not
shown plain error. Even if he is right that
the jurors should have been instructed on the
need for unanimity with respect to each
separate statement, the failure to instruct
the jurors in this manner did not affect the
jurys verdict.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.56.200(a).
2 Mallott v. State, 608 P.2d 737, 748 (Alaska 1980); West v.
State, 923 P.2d 110, 114 (Alaska App. 1996); Alexander v.
State, 838 P.2d 269, 273 (Alaska App. 1992); Wylie v. State,
797 P.2d 651, 656 (Alaska App. 1990).
3 Bluel v. State, 153 P.3d 982, 986 (Alaska 2007); Hawley v.
State, 614 P.2d 1349, 1361 (Alaska 1980).
4 Cleveland v. State, 91 P.3d 965, 974-75 (Alaska App. 2004)
(discussing several cases on this point); Larson v. State,
79 P.3d 650, 659 (Alaska App. 2003).
5 Aviation Associates, Ltd. v. TEMSCO Helicopters, Inc., 881
P.2d 1127, 1131 (Alaska 1994); Wylie v. State, 797 P.2d 651,
661 n. 8 (Alaska App. 1990).
6 Aviation Associates, Ltd. v. TEMSCO Helicopters, Inc., 881
P.2d at 1131 n. 7 (Alaska 1994), quoting Ollice v. Alyeska
Pipeline Service Co., 659 P.2d 1182, 1185 (Alaska 1983).
7 Commentary to the Alaska Revised Criminal Code, 1978 Senate
Journal, Supplement No. 47 (June 12), p. 72.
8 Alaska Criminal Code Revision, Tentative Draft, Part 2
(1977), pages 97-98.
9Id. at 1184.
10 Id. at 1185.
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