Argued December 3, 2013.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 10-CR-268 -- Rudolph T. Randa, Judge.
For United States of America, Plaintiff - Appellee: Gregory J. Haanstad, Office of The United States Attorney, Milwaukee, WI.
For Sagarsen Haldar, also known as: GOPAL HARI DAS, Defendant - Appellant: Kellen C. Kasper, Thomas L. Shriner Jr., Foley & Lardner Llp, Milwaukee, WI.
Before POSNER, MANION, and HAMILTON, Circuit Judges.
Hamilton, Circuit Judge .
A jury found Sagarsen Haldar guilty of conspiring to defraud the United States by using his position as leader of a Hare Krishna temple in Milwaukee to obtain religious-worker visas for people who were not actually religious workers. Haldar appeals his conviction and seeks a new trial by raising three issues, none of which he raised in the district court. He argues: (1) certain statements from the prosecutor and a government witness improperly called into question the validity of his temple and were unfairly prejudicial under Federal Rule of Evidence 403; (2) the prosecutor misrepresented testimony during his closing argument and relied on facts outside the record; and (3) the district court on its own initiative should have instructed the jury not to scrutinize the religious qualifications of the visa recipients. Haldar cannot satisfy the stringent " plain error" standard that he must meet to win a new trial when raising such issues for the first time on appeal. We affirm his conviction.
I. Factual and Procedural Background
Haldar is an Indian citizen who came to the United States in 1999 and has been a permanent resident since 2006. A few years after his arrival he founded the Gaudiya Vaisnava Society, Inc., known as GVS-Milwaukee. Gaudiya Vaisnava (or Vaishnava) is another name for the Hare Krishna religion. From 2004 to 2007, GVS-Milwaukee sponsored twenty-five applicants for religious-worker visas known as " R-1 visas," see 8 C.F.R. § 214.2(r)(1), seventeen of which were approved.
For reasons not fully explained in the record, by mid-2007 the State Department had advised the Department of Homeland Security (DHS) that GVS-Milwaukee might be involved in visa fraud. DHS had also received an anonymous tip along the same lines. As a result, the agency began an investigation that included temple visits, surveillance, searches of Haldar's luggage on international trips, and interviews with GVS-sponsored visa recipients. Haldar was charged in 2010 with conspiracy to defraud the United States under 18 U.S.C. § 371.
At trial, DHS agents testified about their investigation. One agent, Ali Lubbad
from the fraud detection arm of U.S. Citizenship and Immigration Services (USCIS), described the investigation's inception and initial stages. He mentioned the State Department's suspicions of visa fraud and that DHS had received a tip about GVS-Milwaukee. As he was about to describe the content of the tip, defense counsel objected to the testimony as hearsay. Before the judge could rule, the prosecutor interjected, " Actually I think I can take care of it this way. Without going into the substance of the letter, is it fair to say you received a tip letter that indicated that you should look into GVS?" Lubbad responded, " Yes."  Haldar's lawyer did not renew his hearsay objection or object to this testimony on another basis.
Agent Lubbad also told the jury that, in any event, DHS routinely investigates organizations sponsoring R-1 visa applicants because up to 33 percent of all applications are sponsored by " [c]ompletely fraudulent" organizations, meaning there was actually " no organization" at all. Defense counsel did not object to Lubbad's testimony on this point.
Agent Lubbad went on to describe a surprise visit he made to the main GVS temple location. During that visit, Haldar seemed anxious for him to leave because no religious activity was apparent: " He was encouraging me to leave that location. Kept saying I have another Temple at Ramsey. You know, it's better to see. And it seemed--my feeling was that he wanted to leave that location as soon as possible." Following Haldar to the Ramsey Avenue temple location in a separate car, Lubbad saw him talking on his cell phone during the drive. Lubbad testified that he thought the people he encountered at the Ramsey location, who were loudly performing music, looked as if they were expecting a visit. Haldar's lawyer objected to this testimony as speculative, to which the prosecutor responded that Lubbad could testify about his own perception of the situation. The court allowed the testimony to stand, and Haldar's lawyer offered no other objection.
Near the end of Agent Lubbad's direct examination, the prosecutor asked how DHS keeps track of organizations that sponsor religious workers. Lubbad answered in part by once more volunteering his statistic about the rate of fraud in R-1 visa applications, this time saying that " a very significant 33 percent [of applications] were -- ...