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Khan v. State

Court of Appeals of Alaska

April 3, 2009

Izaz Elvin KHAN, Appellant,
v.
STATE of Alaska, Appellee.

Page 1037

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.

Page 1038

OPINION

MANNHEIMER, Judge.

Izaz Elvin Khan was convicted of perjury [1] 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 court's denial of his motion for a change of venue, as well as some of the superior court's 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 court's venue ruling because he did not renew his motion following jury selection. We further conclude that the superior court's 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 Khan's 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 Khan's 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, Khan's attorney asked the superior court to move Khan's 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 Khan's right to raise the venue issue again during or after jury selection.

Khan's attorney never renewed the motion for a change of venue, and Khan's trial was held in Unalaska.

Page 1039

Under Alaska law, a criminal defendant's 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 court's denial of Khan's motion to change venue.

The evidence of Khan's earlier false statements to the Department of Labor when applying for ...


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