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United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Omar KABILJAGIC, Defendant-Appellant.

Nos. 17-10392, 17-10484

Decided: March 25, 2019

Before: SILER,** TASHIMA, and McKEOWN, Circuit Judges. Matthew Gould Morris, Assistant U.S. Attorney, Amy Schuller Hitchcock, Assistant U.S. Attorney, USSAC - Office of the US Attorney, Sacramento, CA, for Plaintiff-Appellee Timothy Edward Warriner, Attorney, Law Office of Tim Warriner, Sacramento, CA, for Defendant-Appellant


Following a jury trial, Defendant-Appellant Omar Kabiljagic was convicted under 18 U.S.C. § 287 for making false or fraudulent claims to the United States. Kabiljagic appeals his conviction on the grounds that the district court erred when it sustained the government's hearsay objections to certain testimony that Kabiljagic sought to elicit at trial from a government agent. This sought testimony consisted of Kabiljagic's own out-of-court statements. We have jurisdiction under 28 U.S.C. § 1291. Because Kabiljagic did not present to the district court the theory of admissibility that he now advances for the excluded statements, we review for plain error. See Hudspeth v. Comm'r, 914 F.2d 1207, 1215 (9th Cir. 1990) (“When the trial court excludes evidence, failure to make a timely invocation of the grounds for the admission of the evidence renders the issue reviewable only for plain error.” (citations omitted) ). We affirm.

“Relief for plain error is available if there has been (1) error; (2) that was plain; (3) that affected substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008) (citations omitted). Here, even assuming that a non-hearsay ground was available for the admission of the excluded statements, because Kabiljagic testified and thus had the opportunity to testify to the excluded statements, he cannot show that the alleged error was sufficiently prejudicial to have affected the outcome of the district court proceedings, nor that the alleged error “seriously affect[ed] the fairness, integrity or public reputation” of those proceedings. Thus, because Kabiljagic ultimately presented to the jury the relevant information encompassed by the excluded statements when he himself testified at trial, there was no plain error. See United States v. Jordan, 256 F.3d 922, 930 (9th Cir. 2001); see also Cannel, 517 F.3d at 1176.


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