United States of America v.  Samir Ibisevic

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-4151 
SAMIR IBISEVIC,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Senior District Judge.
(1:10-cr-00265-TSE-1)
Argued: January 25, 2012
Decided: March 14, 2012
Before MOTZ, Circuit Judge, Thomas D. SCHROEDER,
United States District Judge for the Middle District of
North Carolina, sitting by designation, and
J. Michelle CHILDS, United States District Judge for the
District of South Carolina, sitting by designation.
Vacated and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge Schroeder and Judge
Childs joined.

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COUNSEL
ARGUED: Geremy C. Kamens, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Justin Edward Fairfax, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Patrick L. Bryant, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Vir-
ginia, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Samir Ibisevic appeals from convictions arising from his
attempt to leave the United States carrying approximately
$40,000 in United States currency, without reporting the cur-
rency to customs authorities. In denying his motion for a new
trial, the district court acknowledged that it had erred in
excluding certain testimony at Ibisevic’s trial, but concluded
that the error was harmless. Because we cannot say, with fair
assurance, that the error did not have a substantial and injuri-
ous effect on the jury verdict, we must vacate the judgment
of the district court and remand for further proceedings.
I.
A grand jury indicted Ibisevic of three crimes growing out
of his failure to declare currency when attempting to leave the
United States: bulk cash smuggling in violation of 31 U.S.C.
§ 5332(a); failing to file a required report of international
transportation of currency in violation of 31 U.S.C.
§§ 5316(a), 5324(c); and making false statements in violation
of 18 U.S.C. § 1001. The indictment also sought forfeiture of
the currency "[u]pon conviction of the offenses."
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The only issue disputed at trial was Ibisevic’s intent. All
three offenses required the Government to prove Ibisevic
knowingly or intentionally violated the law. See 31 U.S.C.
§ 5332(a)(1) (making it unlawful to "knowingly conceal[ ]
more than $10,000 in currency" "with the intent to evade a
currency reporting requirement"); id. §§ 5316(a), 5324(c)
(making it unlawful to "fail to file" an accurate currency
report "for the purpose of evading the reporting requirements
of section 5316"); 18 U.S.C. § 1001(a) (making it unlawful to
"knowingly and willfully . . . make[ ] any materially false, fic-
titious, or fraudulent statement or representation"). Ibisevic
steadfastly contended that he had no intent to knowingly or
intentionally violate any of these statutes; instead, Ibisevic
maintained that, because of his poor English, he simply did
not understand questions put to him by customs agents.
A.
The evidence at trial revealed that on June 18, 2010,
Ibisevic and his mother, Rahima, attempted to board a flight
at Dulles International Airport in Virginia to Vienna, Austria,
with final service to Sarajevo, Bosnia. They were traveling to
Bosnia to attend the funeral of Ibisevic’s father.
When Ibisevic and Rahima proceeded down the corridor
leading to the plane’s jetway, Officer Andres Zayas of the
United States Customs and Border Protection ("CBP"), who
speaks English with a Puerto Rican accent, approached them.
As part of a currency interdiction effort that involves random
inspections of passengers departing on outbound international
flights, Officer Zayas asked Ibisevic questions concerning the
purpose of his trip and his line of work. During this question-
ing, Rahima and CBP Officer Steven Rodeheaver stood
within earshot.
Officer Zayas testified that he then asked Ibisevic "the cur-
rency question." That is, Officer Zayas explained that it was
not illegal to "carry over $10,000 out of the country," but if
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a person was carrying more than $10,000, he was required "to
fill out a form." According to Officer Zayas, he asked Ibisevic
if he was "travelling with money" or "carrying any cashier’s
check, money orders, [or] any other type of monetary instru-
ments?" Officer Rodeheaver testified that Officer Zayas asked
Ibisevic:
How much currency are you travelling with? That is
to include all currency—reportable currency instru-
ments such as cashier’s check, money orders, Trav-
eler’s checks; that’s including any currencies that
you are carrying for other peoples, in [sic] your per-
son and on [sic] your luggage.1
Ibisevic answered, $5,000. Officer Zayas led Ibisevic and his
mother to a "more private area inside the corridor" with their
luggage. He asked again how much currency they were travel-
ing with "as a whole." Ibisevic again said, $5,000. Officer
Zayas then gave Ibisevic the CBP form explaining the cur-
rency reporting requirements. The form states that "[i]t is
legal to transport any amount of currency or other monetary
instruments into or out of the United States," but explains that
an individual must file a report when transporting or attempt-
ing to transport "currency or other monetary instruments in an
aggregate amount exceeding $10,000."
After allowing Ibisevic a minute or two to read the CBP
form, Officer Zayas asked Ibisevic if he understood the form
and instructed him to write down "[t]he amount that he was
carrying" and to sign the form to indicate that "he understood
what is on the form." Although the CBP form does not con-
tain a signature line, Officer Zayas marked an "x" on the form
1This language tracks the CBP Currency Reporting form, on which both
agents testified they relied in questioning Ibisevic. That form, CBP Publi-
cation No. 503, is available at http://www.cbp.gov/linkhandler/cgov/
newsroom/publications/travel/currency_rpt_flyer/currency_reporting.ctt/
currency_reporting.pdf (last visited Feb. 27, 2012).
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indicating the place for Ibisevic’s signature. Ibisevic wrote
"5000" and signed his name.
Officers Zayas and Rodeheaver then placed the Ibisevices’
carry-on bags on a table. Officer Zayas asked Ibisevic,
"Where is the money?" In response, Ibisevic produced money
from an envelope in his jacket pocket and from his wallet.
Officer Zayas motioned to Ibisevic’s bags on the table, looked
at Ibisevic, and asked whether there was "any other money in
the bags." After Ibisevic denied having other money in the
bags, Officer Zayas searched Ibisevic’s carry-on bags and
found no additional currency. When Officer Zayas counted
the money given to him from Ibisevic’s pocket and wallet, it
totaled $5,031.
During this time, Officer Rodeheaver inspected the carry-
on bags belonging to Ibisevic’s mother, Rahima. According to
Officer Rodeheaver, he first examined a camera bag Rahima
was carrying and found "a bank envelope" containing cur-
rency. Next, while searching Rahima’s purse, he felt a "mass
inside the bag" that he could not access. Ibisevic informed
Officer Rodeheaver that the mass was sewn into the purse.
Upon making these discoveries, Officer Rodeheaver asked
Ibisevic, "How much currency are you traveling with?" and
"How much money are we going to find?" According to Offi-
cer Rodeheaver, Ibisevic then became "a little flustered" and
stated there was $10,000 in his mother’s camera bag, $25,000
in her purse, and $5,000 on his person.
After the officers discovered the currency in Rahima’s
camera bag and purse, they escorted the Ibisiveces back to the
main terminal of the airport. Officer Rodeheaver testified that
the officers undertook "a full exam of all their luggage" and
notified other personnel to "offload their luggage from the air-
craft to see if there is [sic] any other prohibited items or contra-
band."2
2The Government has offered no evidence that the CBP officers found
any currency in the Ibisevices’ checked luggage.
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Special Agent Julie Hilario of Immigration and Customs
Enforcement then questioned Ibisevic. She testified that she
met with him for approximately forty-five minutes. During
that time, he waived his Miranda rights and spoke with her in
English without the assistance of an interpreter. Ibisevic told
Agent Hilario that all of the money was his. Like Officers
Zayas and Rodeheaver, Agent Hilario testified that Ibisevic
appeared to understand her questions and responded to them
without hesitation and without need or request for a Bosnian
interpreter.
The Government also called Chris Lowman to testify. Low-
man described his role as a human resources manager of a
large corporation that employed Ibisevic to assemble medical
devices from 2005 to 2008. Lowman authenticated several
documents from Ibisevic’s employee file, including Ibisevic’s
resume and employment records, which indicate that
Ibisevic’s primary language is "Bosnian" and his secondary
language is "English." Lowman also authenticated an employ-
ment comprehension test that Ibisevic had passed by answer-
ing thirteen of fourteen questions correctly. On cross-
examination, Lowman conceded that he had no personal
knowledge as to whether the comprehension test was given to
Ibisevic in English or whether he responded in English. Low-
man also acknowledged that an evaluation of Ibisevic in his
personnel file stated that "[o]ther than language barrier, very
good worker," and that another document in the personnel file
stated that Ibisevic needed an English translator for written
information. Finally, Lowman acknowledged that his corpora-
tion employed about one hundred Bosnians, some of whom
"don’t speak very much English" because their job did not
require it.
Pursuant to an immunity agreement, Ibisevic’s mother,
Rahima, also testified during the Government’s case. Rahima
neither speaks nor understands English. Through a Bosnian
interpreter, she testified that she was aware of the money in
her bags and that all of the money belonged to her son. On
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cross-examination, defense counsel attempted to question
Rahima about what Ibisevic said to her after he signed the
CBP form. As she started to explain, the district court sua
sponte halted Rahima’s testimony, characterized the answer
she was about to give as hearsay, and called the lawyers to the
bench.
During the bench conference, defense counsel proffered
Rahima would testify that when customs officials asked the
Ibisevices to step aside, Ibisevic told his mother in Bosnian,
"They are asking me how much the checked luggage cost if
it’s lost." The defense argued that this statement constituted
a present sense impression and so, even if hearsay, was
admissible. The Government objected to the statement both
on hearsay and relevancy grounds. The district court found
the testimony "clearly relevant" but sustained the objection,
ruling that it constituted hearsay and did not fall within the
present sense impression exception to the hearsay rule.
Accordingly, the jury never heard Rahima’s testimony that, at
the time of questioning by CBP agents, Ibisevic told her that
the agents were simply inquiring as to what the checked lug-
gage would cost if it were lost.
B.
In the defense case, Ibisevic himself testified through a
Bosnian interpreter that he was born and raised in Bosnia and
legally entered the United States in 2000. He explained that
when questioned at Dulles, he and his mother had been travel-
ing for some time, having been delayed overnight in the Syra-
cuse airport before arriving at Dulles. Ibisevic related that he
had been unable to sleep because of a bad headache and
because he was depressed due to his father’s death. Although
he had been steadily employed since coming to this country
and became a United States citizen about two years prior to
trial, Ibisevic maintained that he understood only basic
English—that necessary for his job and everyday life. In
response to questions, he acknowledged that he understood
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the meaning of the word "money," but insisted he did not
know the meaning of the word "currency."
Ibisevic testified that he was unaware of any reporting
requirement and could not understand what Officer Zayas said
to him or what the CBP form asked but, based on a friend’s
experience with lost checked luggage, he believed "it might
be . . . they are asking about the value of the luggage." He
signed the CBP form, "and then put on a number, what I
thought would be a value proper to those checked bags."
Ibisevic further testified that immediately after doing so, he
told his mother that he "signed something, what I believe is
for some insurance for our checked luggage. But now they are
showing me to that table, so I probably need to be like
checked out by these officers." He explained, "[t]he reason I
told her this is because I was afraid if I go with the officer,
she is going to continue to go to board the plane, and I had
her boarding pass and I had her passport with me. . . . She
doesn’t speak English. She doesn’t read or write English. I
just wanted her to know she could remain with me."
According to Ibisevic, he only realized that the officers
were inquiring about the amount of money he was carrying
after Officer Zayas began to look in his wallet, at which point
he immediately informed the officers that he was carrying
$40,000. He explained, "If I had known, I would have admit
to him immediately I had money with me. . . . Because it was
my own money, and it is money what [sic] I borrowed from
my sister."
In addition to Ibisevic, the defense called four witnesses, all
of whom testified that Ibisevic’s ability to speak or under-
stand English was limited. A neighbor and former co-worker,
Almir Beganovic, related that he needed to help Ibisevic com-
municate in English both at work and in his personal life.
Safet Garibovic, who supervised Ibisevic when Ibisevic
worked as a driver for Swift Transportation until shortly
before trial, testified that Ibisevic’s "English was really bad."
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She explained that she spoke to Ibisevic in Bosnian and that
he did not speak or write much English or understand written
messages in English. She recalled instances in which she
would have to call customers on Ibisevic’s behalf. Ibisevic’s
sister, Fatima Velic, testified through a Bosnian interpreter
that Ibisevic’s English was "much worse" than her own; she
also corroborated Ibisevic’s testimony that she had given him
$10,000 to take to Bosnia.
Robert Schaffer, a retired Professor of Education and
Ibisevic’s former English teacher, was the last defense wit-
ness. He testified that Ibisevic attended the professor’s
English classes for several months after Ibisevic came to the
United States. Professor Schaffer explained that he saw
Ibisevic socially in subsequent years and helped him commu-
nicate in English, including assisting him in the purchase of
a home. Regarding Ibisevic’s English proficiency, Professor
Schaffer described it as "poor," and testified that over the
years Ibisevic was "losing language rather than gaining lan-
guage." Professor Schaffer also testified that Ibisevic had
more difficulty understanding English spoken with an accent
and was unlikely to comprehend new concepts that came from
"out of the blue."
C.
After a day-and-one-half of testimony, on the third morning
of trial, the jury began deliberations. Approximately two
hours later, the jury sent a note requesting "the legal definition
of ‘reasonable doubt.’" The district court, in accordance with
our precedent, see, e.g., United States v. Walton, 207 F.3d
694, 698 (4th Cir. 2000) (en banc), provided a proper instruc-
tion nearly identical to that given in the original jury instruc-
tions. Approximately four hours after beginning deliberations,
the jury returned with a verdict of guilty on all three counts.
The district court sentenced Ibisevic to two years of super-
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vised probation and one hundred hours of community service
and ordered that he forfeit $35,000 of the currency.3
Ibisevic moved for a new trial, arguing, inter alia, that the
district court "inappropriately excluded" testimony "essential
to the defense"—namely, the testimony of his mother,
Rahima, that Ibisevic had told her immediately after signing
the CBP form that the officers were asking the insurance
value of the checked luggage. The district court denied the
motion. See United States v. Ibisevic, 761 F. Supp. 2d 326
(E.D. Va. 2010).
The district court concluded it had erred in excluding Rahi-
ma’s testimony, finding the excluded testimony was not hear-
say and, in any event, "likely falls within the exception for
present sense impressions." Id. at 341. However, the court
found that exclusion of the testimony constituted harmless
error because the proffered testimony "hardly stood alone on
the issue of defendant’s state of mind" and the Government
presented "overwhelming" evidence of guilt. Id. at 342-43.
Ibisevic timely noted this appeal of the court’s denial of his
motion for a new trial.4 We review that denial for abuse of
discretion. United States v. Stokes, 261 F.3d 496, 502 (4th Cir.
2001).
II.
A.
The district court properly acknowledged that it erred in
3Upon finding "good cause" to believe $10,000 of the $35,000 belonged
to Ibisevic’s sister, Fatima, the district court ultimately amended the for-
feiture order to only $25,000.
4Because we hold that the district court’s exclusion of Rahima’s testi-
mony constitutes reversible error, we need not reach Ibisevic’s other
claims of error.
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excluding Rahima’s proffered testimony as to what Ibisevic
told her immediately after signing the CBP form. See Ibisevic,
761 F. Supp. 2d at 341.
First, Ibisevic did not proffer the statement "to prove the
truth of the matter asserted," i.e., that he was actually being
asked the value of his checked luggage. Rather, he offered it
"merely to prove that [he] expressed [his] belief" that he was
being asked about the value of his luggage. See Lyons P’ship,
L.P. v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir.
2001) (emphasis omitted). Accordingly, the statement was
"direct evidence" of his "reaction[ ] and not hearsay." See id.
(holding statements of children mistakenly calling a man in a
purple reptilian costume "Barney" were improperly excluded
as hearsay in trademark infringement suit); see also United
States v. Kohan, 806 F.2d 18, 22 (2d Cir. 1986) (holding
statements offered to prove "that they were made and that
[defendant] believed them to be true" were not hearsay).
Second, even if the statement had been hearsay, it was
admissible under the present sense impression exception to
the hearsay rule. Ibisevic made the statement to his mother
immediately after listening to and answering the CBP agents’
questions. See Fed. R. Evid. 803(1) (rendering admissible a
statement "describing or explaining an event or condition,
made while or immediately after the declarant perceived it");
see also Lyons, 243 F.3d at 804.
Thus, the district court clearly erred in excluding Rahima’s
proffered testimony.
B.
Of course, a finding of error does not end the matter. We
must determine whether the error requires reversal or was
harmless. To prove a nonconstitutional error, like this one,
harmless, "the Government must demonstrate that the error
did not have a ‘substantial and injurious effect or influence in
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determining the jury’s verdict.’" United States v. Curbelo, 343
F.3d 273, 278 (4th Cir. 2003) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). An appellate court does not
inquire into whether absent the error "sufficient evidence
existed to convict," but rather whether "we believe it ‘highly
probable that the error did not affect the judgment.’" United
States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994). Thus, we
must be able to "say, with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error." United States v. Byers, 649 F.3d 197, 211 (4th Cir.
2011) (quoting Kotteakos, 328 U.S. at 765).
We have identified three decisive factors in making this
determination: "(1) the centrality of the issue affected by the
error; (2) the steps taken to mitigate the effects of the error;
and (3) the closeness of the case." United States v. Ince, 21
F.3d 576, 583 (4th Cir. 1994). We consider each in turn.
1.
As to the first factor—the centrality of the issue affected by
the error—the excluded testimony clearly did go to the central
issue in the case, i.e., Ibisevic’s intent.
Because the Government had to prove that Ibisevic know-
ingly or intentionally evaded the reporting requirements and
made a false statement, the issue of Ibisevic’s intent was the
central question in the case. As the prosecutor put it during
closing argument, "Ultimately, this case is about lying."
Indeed, Ibisevic’s intent was the only disputed issue in the
case. The parties agreed as to his conduct—that he attempted
to board an international flight with over $40,000 without
reporting that fact. Ibisevic’s defense was that he could not
have knowingly or intentionally committed the charged
crimes because he did not understand the critical questions
about "currency" put to him by the customs agents. Rahima’s
excluded testimony was the sole evidence that directly corrob-
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orated Ibisevic’s own testimony that he believed the customs
agents were asking about the insurance value of his checked
luggage (not the amount of currency in his carry-on bags) and
thus had no knowledge of the currency reporting require-
ments, and so did not intend to violate them.
In maintaining that Rahima’s testimony was not central to
the defense, the Government relies on the district court’s con-
clusion that, although "clearly relevant," Rahima’s testimony
was merely cumulative of other evidence indicating Ibisevic
had difficulty understanding English. But that is simply not
the case. The Government, as did the district court, conflates
the purpose of Rahima’s proffered testimony—to corroborate
Ibisevic’s testimony regarding his state of mind in response to
the questions of the customs agents—with the more general
inquiry as to Ibisevic’s ability to understand English.
Certainly, Ibisevic had the opportunity to, and did, present
witnesses attesting to the more general question. But the dis-
trict court improperly excluded the only testimony corroborat-
ing Ibisevic’s belief that Officer Zayas was asking about the
value of his checked luggage, not the amount of money he
was carrying. The jury could have credited the testimony of
Ibisevic’s witnesses that he generally had poor English skills
yet discounted his stand-alone testimony that he misunder-
stood Officer Zayas in this particular matter. Because Rahi-
ma’s excluded testimony was the only evidence that
corroborated Ibisevic’s claim that he believed he was truth-
fully answering questions as to the value of his checked lug-
gage, her testimony was not cumulative.
The Fifth Circuit has held that the improper exclusion of
testimony strikingly similar to that excluded here could not be
discounted as cumulative or harmless. United States v. Parry,
649 F.2d 292, 296 (5th Cir. 1981). In Parry, as here, the dis-
trict court sua sponte and erroneously excluded certain testi-
mony as hearsay. There, as here, the excluded testimony was
the only evidence that would have corroborated the defen-
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dant’s own testimony of assertedly innocent conduct. And
there, as here, the excluded testimony came from the defen-
dant’s mother.
In Parry, the defendant testified that he thought he was
working with law enforcement when he admittedly served as
a middle-man in a drug sting, and, as in this case, he further
testified that he discussed this belief with his mother. Id. at
294. The Fifth Circuit held that the district court’s error in
excluding the corroborating testimony of Parry’s mother
could not be ruled cumulative or harmless because although
Parry’s "farfetched" story had been "discounted by the jury
when standing alone," that story "may have been believed
when bolstered by his mother’s testimony." Id. at 296. Simi-
larly, while the jury may have found Ibisevic’s contention that
he misunderstood the currency questions to be "farfetched . . .
when standing alone," the jury might have believed this con-
tention "when bolstered by his mother’s testimony." Id.;5 see
also Kohan, 806 F.2d at 22 (remanding for new trial when
improperly excluded testimony "would have corroborated
5Tellingly, the Government does not assert that the Fifth Circuit incor-
rectly held the error in Parry was not harmless. Rather, the Government
attempts to distinguish Parry on two grounds. Neither is persuasive. First,
the Government contends Rahima’s excluded testimony was merely
cumulative while the testimony of Parry’s mother was not. As explained
above, this argument is meritless. Second, the Government maintains that
this case is distinguishable from Parry because of the strength of its evi-
dence against Ibisevic. It is not at all clear, however, that the evidence
offered by the Government against Ibisevic was any stronger than that
offered against Parry. For, the prosecution in Parry "elicited numerous
statements [from] the DEA agents that Parry was not working for the gov-
ernment agents, did not believe that he was working for the agents, and
did not know of the agents’ true identities." 649 F.2d at 295. Indeed, the
Fifth Circuit noted that "[t]he clear implication of the government’s evi-
dence and of its response to Parry’s testimony was that Parry had fabri-
cated his defense of lack of criminal intent." Id. at 295-96. Nevertheless,
the court held the exclusion of the testimony of Parry’s mother was not
harmless because "the excluded testimony was the only available evidence
that could corroborate Parry’s story." Id. at 296.
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[defendant’s] statements to law enforcement officials, thereby
helping to diminish the effect of their self-serving nature").
In sum, the first factor—the centrality of the issue affected
by the error—provides no support for holding the error harm-
less. The issue affected by the error in excluding Rahima’s
testimony—whether Ibisevic understood the "currency ques-
tion" and reporting requirements—clearly constitutes the cen-
tral issue in this case.
2.
With respect to the second factor—mitigation efforts—the
district court took no steps to mitigate the effects of the error.
This is so because at trial the district court failed to acknowl-
edge any existence of an error. See United States v. Nyman,
649 F.2d 208, 212 (4th Cir. 1980) (noting "no steps were
taken to mitigate an error whose existence was not recog-
nized").
This fact, of course, distinguishes this case from many in
which we and other circuits have relied on mitigation efforts
to find an error harmless. See, e.g., United States v. Thomas,
664 F.3d 217, 224 (8th Cir. 2011) (holding harmless govern-
ment’s improper question of witness regarding whether she
had been threatened before testifying when district court sus-
tained defendant’s objection to the question and instructed the
jury to disregard the question); United States v. Barraza, 655
F.3d 375, 381 (5th Cir. 2011) (holding "extraneous informa-
tion stated by a government witness" did not prejudice defen-
dant when district court sustained defendant’s objection to the
testimony and "gave the jury a curative instruction, informing
the jurors to disregard the testimony"); United States v.
Lighty, 616 F.3d 321, 357 (4th Cir. 2010) (holding harmless
improperly admitted prejudicial evidence, in part, because
district court gave "explicit" curative instruction that the jury
could not infer from the evidence the defendant’s propensity
to commit crimes).
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Moreover, the nature of the excluded testimony—
corroborating Ibisevic’s stand-alone account of what he
believed was occurring—may have aggravated the effects of
the error in this case. For, "the jury may well have assumed
that because [Ibisevic] did not ask his mother to confirm the
existence of the critical conversation, the conversation proba-
bly never occurred." Parry, 649 F.2d at 296.
Accordingly, this factor too does not weigh in favor of
finding the error harmless.
3.
The final factor—the closeness of the case—is "the single
most important factor in a nonconstitutional harmless-error
inquiry." Ince, 21 F.3d at 584 (internal quotation marks omit-
ted).
In addition to pointing to the witnesses who testified on his
behalf, Ibisevic argues that the jury’s deliberations indicate
that the jury in this particular case considered the case to be
close. He points out that, even absent his mother’s corroborat-
ing testimony, the jury deliberated for four hours on a single-
issue case. Moreover, in the midst of those deliberations, the
jury sent a note to the district court requesting a definition of
"reasonable doubt," further suggesting that the jury did indeed
experience difficulty in reaching a verdict. The Government
assigns no significance to these facts. Indeed, the Government
virtually ignores them—mentioning the four-hour jury delib-
eration only in passing and the jury’s request for additional
instruction not at all. The Government instead maintains that
Rahima’s excluded testimony could not have had a substantial
effect on the outcome because Ibisevic’s own testimony was
not credible and because the Government put on "overwhelm-
ing" evidence of guilt.
a.
As to the first point, Ibisevic’s credibility, the Government
seizes on the district court’s observation in denying the
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motion for a new trial that the testimony from Ibisevic that
Rahima would have corroborated was "actually undermined
by the record as a whole." Ibisevic, 761 F. Supp. 2d at 343
n.73. The district court believed Ibisevic’s testimony was not
credible because the court found it "difficult to understand
why defendant would state that his luggage was worth $5,000
given it contained over $30,000." Id. at 342.
The Government’s reliance on the district court’s "dif-
ficult[y]" is misplaced because that "difficult[y]" arose from
a misunderstanding of the evidence at trial. What Ibisevic
actually stated at trial, and what Rahima was prepared to cor-
roborate, is that he answered "$5,000" because he believed he
was being asked about the insurance value of his "checked
luggage." The Government presented no evidence that the
officers found any additional currency in the Ibisevices’
checked luggage; rather, the Government found the additional
money in carry-on bags. Thus, that Ibisevic valued his
checked luggage at $5,000 is not in any way "undermined" by
the fact that roughly $35,000 was found in the carry-on items
that Ibisevic had not checked.
The Government also relies on the district court’s observa-
tion in denying a new trial that Ibisevic’s testimony lacked
credibility because he "just happened to report a value for his
luggage that was equivalent to the exact amount of currency
he had on his person when he was being questioned." Id. at
342-43. This observation is accurate, albeit slightly exagger-
ated: the evidence showed that Ibisevic’s asserted insurance
claim ($5,000) was not "the exact amount" but slightly less
than the $5,031 found on his person. But just as the jury may
have concluded, as the district court did, that this circumstan-
tial evidence cast doubt on Ibisevic’s credibility, so it might
have concluded (if permitted to do so) that Rahima’s testi-
mony had the opposite effect of "lend[ing] plausibility to an
otherwise incredible yarn." United States v. Lis, 120 F.3d 28,
31 (4th Cir. 1997) (finding exclusion of evidence corroborat-
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ing defendant’s testimony was not harmless error); see also
Parry, 649 F.2d at 296.
b.
As to the Government’s second point, the asserted strength
of its case, the Government contends, and the district court
held in denying a new trial, that the prosecution presented
"overwhelming" evidence "concerning the defendant’s mens
rea—i.e., whether he understood the officers’ questions."
Appellee’s Br. at 20. The Government points to the testimony
of Officers Zayas and Rodeheaver and Agent Hilario that
Ibisevic was able to "understand English and the instructions
being given to him the day he was intercepted." Id. at 23.
We agree that the Government put on a good deal of evi-
dence that Ibisevic could understand English. However, to
convict him, the Government had to prove beyond a reason-
able doubt that Ibisevic actually understood the questions put
to him by the customs agents and so knowingly or intention-
ally committed the alleged crimes, not that he generally
understood English well enough so that he should have under-
stood those questions. As to Ibisevic’s state of mind, the Gov-
ernment presented no direct evidence of his intent to commit
the alleged acts. Nor did the Government offer any evidence
as to why Ibisevic would intentionally evade the reporting
requirements, given that he legally possessed the money and
no law or regulation prohibited him from transporting it out
of the country as long as he complied with those require-
ments.
Of course, we do not fault the Government for the circum-
stantial nature of its case; often there are precious few ave-
nues for proving a criminal defendant’s intent. For this
reason, the Government can base its case on circumstantial
evidence. See United States v. Harvey, 532 F.3d 326, 334 (4th
Cir. 2008). The fact remains, however, that the Government
was charged with proving Ibisevic acted knowingly or inten-
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tionally when he failed to report accurately the amount of cur-
rency he was carrying. See 18 U.S.C. § 1001(a); 31 U.S.C.
§§ 5316(a), 5324(c), 5332(a)(1). And, as we discussed above,
Rahima’s excluded testimony—directly corroborating
Ibisevic’s claim that he misunderstood Officer Zayas to be
asking about the insurance value of his checked luggage—
went to the heart of that inquiry. Had the jury heard and cred-
ited Rahima’s testimony, the Government would have had a
harder case to make. See Lis, 120 F.3d at 31 (noting that if
improperly-excluded corroborating evidence "[was] believed,
the government [would be] left without a ‘smoking gun,’ and
its circumstantial case becomes significantly weaker").
Moreover, the strength of the Government’s case does not,
in itself, resolve the "closeness" question. The closeness
inquiry "involves assessing whether the . . . evidence is not
only sufficient to convict, but whether it is sufficiently power-
ful in relation" to the excluded testimony to ensure the error
did not affect the outcome. Ince, 21 F.3d at 584.
For example, in United States v. Nyman, 649 F.2d 208 (4th
Cir. 1980), the Government presented strong direct evidence
of guilt: five eye-witnesses identified the defendant as the per-
son responsible for the criminal acts. Id. at 209-10. But
weighing that evidence in relation to the excluded evidence—
the testimony of a law student assisting the defense that two
of these eye-witnesses failed to recognize the defendant on
the morning of trial—we held that the improper exclusion was
not harmless. Id. at 212.
We did not ground our holding in Nyman on our own
assessment that the evidence offered by the Government was
insufficient to sustain the conviction. Nor did we conclude, or
even suggest, that the Government’s evidence was not signifi-
cantly stronger than the defense evidence that had been
improperly excluded. Rather, despite the strength of the Gov-
ernment’s evidence we noted that the jury’s five-hour deliber-
ation in a "narrow, single-issue case" indicated that the jury
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that heard the evidence apparently found the case a close one.
649 F.2d at 212. For this reason, we held the erroneous exclu-
sion of defense evidence could not be found harmless,
explaining that the judgment of "this particular jury in the par-
ticular circumstances of this trial" may "well have been
swayed by the excluded testimony." Id.
Here, too, the Government’s argument that the asserted
strength of its case compels a finding that the case was not a
close one runs headlong into the inescapable conclusion that
the particular jury that heard the evidence apparently did
regard the case as close. For the jury deliberated for four
hours in a "narrow, single-issue case," id., and requested an
additional instruction before rendering a verdict. Regardless
of "whether we—reading a cold appellate record—would con-
sider the question of guilt a close one," id., we simply cannot
ignore these facts. Under these circumstances, Rahima’s
"clearly relevant" excluded testimony "could have been of
decisive importance in tipping the balance," id., as it would
have been the only corroborating evidence going to the cen-
tral and only contested issue in the case—Ibisevic’s intent. In
short, the Government has failed to demonstrate that the
alleged strength of its circumstantial case and assertedly
incredible nature of Ibisevic’s testimony compel a finding that
the case was not close in the view of "this particular jury in
the particular circumstances of this trial." Id.
Accordingly, the final and most important factor—the
closeness of the case—also does not weigh in favor of finding
the error harmless.
* * *
In sum, given the centrality of the issue affected by the
excluded testimony, the absence of any mitigation (and possi-
ble aggravation) of the error’s effects, and what we can only
perceive as the relative closeness of the case in view of "this
particular jury," id., we "cannot say, with fair assurance, . . .
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that the judgment was not substantially swayed by the error."
Kotteakos, 328 U.S. at 765. Accordingly, we must vacate the
judgment of the district court, and remand the case for further
proceedings consistent with this opinion.
III.
For the reasons set forth above, we vacate the judgment of
the district court and remand the case for further proceedings
consistent with this opinion.
VACATED AND REMANDED
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