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IN United States Of America v. Ali F. Elmezayen, AKA Ali F. Elmeza Yen, AKA Ali Fathelelah Elmezayen, AKA Ali Fathellah Elmezayen, AKA Ali Sayed, AKA Ali Fathelehah SayedNo. 21-50057, United States Court of Appeals, Ninth Circuit (January 19, 2023) Ali Elmezayen appealed the district court’s sentence following a jury verdict finding him guilty of four counts of mail fraud under 18 USC § 1341, four counts of wire fraud under 18 USC § 1343, aggravated identity theft under 18 USC § 1028A(a)(1) and four counts of money laundering under 18 USC § 1957.
ACTUAL BACKGROUND
After conviction by a jury, the district court sentenced Elmezayen to 212 years in prison. Elmezayen raised five issues in the appeal that the court got wrong:
- when it failed to implement an adequate voir dire regarding prospective jurors’ experiences of autism and domestic violence,
- when it allowed Detective Cortez to offer impermissible opinion testimony about witness credibility;
- when it excluded hearsay testimony that Elmezay intended to elicit from Dr. Bruno,
- when it admitted the testimony of Sarah Wickes, and
- when it denied a motion to continue the trial so that Elmezay could obtain testimony from his proffered Egyptian witnesses who had been denied visas.
Some of his arguments showed error by the trial court but the errors were irrelevant in the face of overwhelming other evidence of his guilt.
VOIR DIRE
The Ninth Circuit will review a district court’s voir dire for abuse of discretion. To date, the Ninth Circuit has expressly recognized the “strong emotions” exception only in matters involving child sexual abuse, narcotics, and the insanity defense. The district court here first informed the venire (the potential jurors) of the allegations that Elmezay had intentionally killed his sons and had attempted to kill his wife, Ms. Diab, and then specifically questioned those venire persons about their experiences with both autism and domestic violence. .
Because the trial court asked broader questions of the representatives that elicited the information sought by the defense, there was nothing in the record to indicate that the judge’s failure to honor Elmezayen’s request constituted an abuse of discretion.
Opinion Testimony BY THE DETECTIVE
Elmezayen argued that the trial court should have excluded testimony from Detective Cortez, whose statements that he was “seeking the truth” as improper opinion, and that he judged whether a suspect was lying by assessing whether the suspect was “evasive.”[],” “lethargic[ing]” or “rambl[ing].”
The Ninth Circuit concluded that the district court clearly erred in overruling Elmezayen’s objection—regardless of whether the Ninth Circuit analyzed Detective Cortez’s testimony through the lens of expert opinion testimony or improper lay credibility testimony, the failure to exclude opinion testimony was reviewed for an abuse of discretion as was a district court’s admission of lay testimony. Detective Cortez’s recitation of his observations of Elmezayen’s demeanor that Detective Cortez then implied showed that Elmezayen’s lack of credibility impermissibly allowed Detective Cortez to substitute his opinion for that of the fact finder. In any event, Detective Cortez’s testimony was clearly inadmissible. The Ninth Circuit concluded that the district court erred in overruling a timely and proper objection.
However, the Ninth Circuit concluded that the error was harmless because properly admitted evidence elsewhere in the record constituted overwhelming evidence of the defendant’s guilt. In particular, a police report from the accident stated that Elmezayen did not tell police the true number of insurance policies he had, and the admitted evidence included eight fatal accident policies, including their coverage amounts, which policies covered his children.
There is also substantial evidence in the record contradicting Elmezayen’s description of the accident to the detective because the properly admitted evidence was highly persuasive and overwhelmingly pointed to guilt, any error in admitting Detective Cortez’s testimony was harmless.
DENIAL OF CONTINUATION
Elmezayen challenges the district court’s denial of his oral motion to continue the trial so that he could obtain testimony from four proposed Egyptian witnesses. The Ninth Circuit concluded that the denial of a continuance was not an abuse of the trial court’s discretion. Elmezayen was certainly not diligent: the witnesses were Elmezayen’s family members, the defense attorney learned of them almost a year earlier when he began representing Elmezayen, Elmezayen had over three months to obtain a visa from the date the trial was set, and Elmezayen requested a continuance a week after that he knew the visa was denied – in the middle of the trial.
The delay would have inconvenienced the court and jury who granted the request was made after the government had rested and since the requested continuance was indefinite, it was reasonable to conclude that Elmezay would not be able to obtain the testimony in time.
Although the above analysis shows that the trial was not free of error, the record contains overwhelming, unblemished evidence of Elmezayen’s guilt, thus providing more than “fair assurance that the jury was not materially influenced by the errors” in reaching its verdict.
An evil man who killed his children for insurance money to defraud insurance companies could cast doubt on his conviction only to have the Ninth Circuit conclude that even with errors made by the trial judge, the evidence of guilt was overwhelming and upheld the conviction and sentence. He will serve so much of the 212-year prison sentence that it probably won’t expire before he does. He also proved that insurance fraud is a violent crime.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
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Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims management, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims attorney and more than 54 years in the insurance industry. He can be reached at http://www.zalma.com and zalma@zalma.com
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