Case: 17-13666 Date Filed: 05/24/2018 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13666 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cr-20633-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO GONZALEZ ESCOBAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(May 24, 2018)
Before TJOFLAT, NEWSOM, and EDMONDSON, Circuit Judges. Case: 17-13666 Date Filed: 05/24/2018 Page: 2 of 9
PER CURIAM:
Roberto Gonzalez Escobar appeals his convictions for knowingly presenting
an application for naturalization containing a false statement of material fact, 18
U.S.C. § 1546(a), and for procuring naturalization for himself in a manner contrary
to law, 18 U.S.C. § 1425(a). No reversible error has been shown; we affirm.
Gonzalez Escobar came to the United States from Cuba in 1999. In 2012,
Gonzalez Escobar filed an application for naturalization. That application was
denied because Gonzalez Escobar -- in support of his request for a waiver from
certain English language and U.S. history testing requirements -- had submitted
insufficient documentation of his dementia. Gonzalez Escobar reapplied for
naturalization in 2014, submitting additional documentation supporting his medical
waiver request. The 2014 application was approved, and Gonzalez Escobar
became a naturalized citizen in November 2014.
In his 2012 application, Gonzalez Escobar answered “no” when asked “Have
you ever committed a crime or offense for which you were not arrested?” In his
2014 application, Gonzalez Escobar answered “no” to these questions (1) “Have
you ever committed, assisted in committing, or attempted to commit, a crime or
offense for which you were not arrested?” and (2) “Were you ever involved in any
2 Case: 17-13666 Date Filed: 05/24/2018 Page: 3 of 9
way with : . . . [f]orcing or trying to force, someone to have any kind of sexual
contact or relations?”
In 2015, Gonzalez Escobar pleaded guilty to six counts of lewd and
lascivious conduct against a minor; the pertinent conduct occurred between 2003
and 2006.
The criminal charges underlying this appeal stem from Gonzalez Escobar’s
failure to disclose information about his criminal conduct between 2003 and 2006
in his naturalization applications. The jury found Gonzalez Escobar guilty on both
counts of the indictment. Gonzalez Escobar was sentenced to nine months’
imprisonment for each count (to run concurrently) and to one year supervised
release. In addition, his citizenship was revoked.
I.
On appeal, Gonzalez Escobar first contends the district court abused its
discretion in admitting evidence of his 2015 convictions for lewd and lascivious
molestation of minors. * Gonzalez Escobar contends this evidence was unduly
prejudicial and should have been excluded under Fed. R. Evid. 403.
* Contrary to Gonzalez Escobar’s assertions on appeal, the government introduced evidence pertaining only to Gonzalez Escobar’s convictions based on criminal conduct that occurred
3 Case: 17-13666 Date Filed: 05/24/2018 Page: 4 of 9
We review for abuse-of-discretion a district court’s evidentiary rulings.
United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012). A district court
“may exclude relevant evidence if its probative value is substantially outweighed
by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. We have said, however,
that Rule 403 is “an extraordinary remedy which the district court should invoke
sparingly.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003).
In considering admissibility under Rule 403, we view “the evidence in a
light most favorable to its admission, maximizing its probative value and
minimizing its undue prejudicial impact.” Id. Because “the district court is
uniquely situated to make nuanced judgments on questions that require the careful
balancing of fact-specific concepts like probativeness and prejudice, . . . we are
loathe to disturb the sound exercise of its discretion in these areas.” United States
v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003). Thus, we will find abuse of
discretion only if the district court’s decision to admit evidence over a Rule 403
challenge is “unsupportable.” Id.
The district court abused no discretion in allowing the government to
introduce evidence of Gonzalez Escobar’s 2015 convictions. The evidence showed
not only that Gonzalez Escobar had committed a crime or offense for which he had
between 2003 and 2006. No evidence was admitted at trial about Gonzalez Escobar’s separate conviction for sexual abuse of a minor based on conduct that occurred in 2015 (after Gonzalez Escobar had filed his applications for naturalization).
4 Case: 17-13666 Date Filed: 05/24/2018 Page: 5 of 9
not been arrested before completing his applications -- a fact to which Gonzalez
Escobar stipulated -- but also tended to show that Gonzalez Escobar had
knowledge of the unlawful nature of his conduct. This evidence was probative of
Gonzalez Escobar’s intent and motive to provide knowingly false responses on his
naturalization applications. The significant and memorable nature of Gonzalez
Escobar’s offenses was also probative to rebutting arguments that Gonzalez
Escobar’s dementia and lapsed memory had impeded his ability to answer
truthfully the questions on his naturalization applications.
We reject Gonzalez Escobar’s argument that he should have been allowed
merely to stipulate to the 2015 convictions based on the Supreme Court’s decision
in Old Chief v. United States, 117 S. Ct. 644 (1997). Typically, “the prosecution is
entitled to prove its case by evidence of its own choice,” and “a criminal defendant
may not stipulate or admit his way out of the full evidentiary force of the case as
the Government chooses to present it.” Id. at 653. In Old Chief, the Supreme
Court recognized an exception to the general rule when a defendant offers to
stipulate to the fact of his prior conviction and when the name and nature of the
prior offense might improperly bias the jury. Id. at 647, 655. The Supreme Court,
however, limited expressly its holding “to cases involving proof of felon status.”
Id. at 651 n.7. Because this case is not one involving proof of felon status, the
narrow exception recognized in Old Chief is inapplicable. Cf. United States v.
5 Case: 17-13666 Date Filed: 05/24/2018 Page: 6 of 9
Odeh, 815 F.3d 968, 982 (6th Cir. 2016) (the Old Chief exception is inapplicable
to cases involving a violation of 18 U.S.C. § 1425(a)).
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Case: 17-13666 Date Filed: 05/24/2018 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13666 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cr-20633-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO GONZALEZ ESCOBAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(May 24, 2018)
Before TJOFLAT, NEWSOM, and EDMONDSON, Circuit Judges. Case: 17-13666 Date Filed: 05/24/2018 Page: 2 of 9
PER CURIAM:
Roberto Gonzalez Escobar appeals his convictions for knowingly presenting
an application for naturalization containing a false statement of material fact, 18
U.S.C. § 1546(a), and for procuring naturalization for himself in a manner contrary
to law, 18 U.S.C. § 1425(a). No reversible error has been shown; we affirm.
Gonzalez Escobar came to the United States from Cuba in 1999. In 2012,
Gonzalez Escobar filed an application for naturalization. That application was
denied because Gonzalez Escobar -- in support of his request for a waiver from
certain English language and U.S. history testing requirements -- had submitted
insufficient documentation of his dementia. Gonzalez Escobar reapplied for
naturalization in 2014, submitting additional documentation supporting his medical
waiver request. The 2014 application was approved, and Gonzalez Escobar
became a naturalized citizen in November 2014.
In his 2012 application, Gonzalez Escobar answered “no” when asked “Have
you ever committed a crime or offense for which you were not arrested?” In his
2014 application, Gonzalez Escobar answered “no” to these questions (1) “Have
you ever committed, assisted in committing, or attempted to commit, a crime or
offense for which you were not arrested?” and (2) “Were you ever involved in any
2 Case: 17-13666 Date Filed: 05/24/2018 Page: 3 of 9
way with : . . . [f]orcing or trying to force, someone to have any kind of sexual
contact or relations?”
In 2015, Gonzalez Escobar pleaded guilty to six counts of lewd and
lascivious conduct against a minor; the pertinent conduct occurred between 2003
and 2006.
The criminal charges underlying this appeal stem from Gonzalez Escobar’s
failure to disclose information about his criminal conduct between 2003 and 2006
in his naturalization applications. The jury found Gonzalez Escobar guilty on both
counts of the indictment. Gonzalez Escobar was sentenced to nine months’
imprisonment for each count (to run concurrently) and to one year supervised
release. In addition, his citizenship was revoked.
I.
On appeal, Gonzalez Escobar first contends the district court abused its
discretion in admitting evidence of his 2015 convictions for lewd and lascivious
molestation of minors. * Gonzalez Escobar contends this evidence was unduly
prejudicial and should have been excluded under Fed. R. Evid. 403.
* Contrary to Gonzalez Escobar’s assertions on appeal, the government introduced evidence pertaining only to Gonzalez Escobar’s convictions based on criminal conduct that occurred
3 Case: 17-13666 Date Filed: 05/24/2018 Page: 4 of 9
We review for abuse-of-discretion a district court’s evidentiary rulings.
United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012). A district court
“may exclude relevant evidence if its probative value is substantially outweighed
by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. We have said, however,
that Rule 403 is “an extraordinary remedy which the district court should invoke
sparingly.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003).
In considering admissibility under Rule 403, we view “the evidence in a
light most favorable to its admission, maximizing its probative value and
minimizing its undue prejudicial impact.” Id. Because “the district court is
uniquely situated to make nuanced judgments on questions that require the careful
balancing of fact-specific concepts like probativeness and prejudice, . . . we are
loathe to disturb the sound exercise of its discretion in these areas.” United States
v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003). Thus, we will find abuse of
discretion only if the district court’s decision to admit evidence over a Rule 403
challenge is “unsupportable.” Id.
The district court abused no discretion in allowing the government to
introduce evidence of Gonzalez Escobar’s 2015 convictions. The evidence showed
not only that Gonzalez Escobar had committed a crime or offense for which he had
between 2003 and 2006. No evidence was admitted at trial about Gonzalez Escobar’s separate conviction for sexual abuse of a minor based on conduct that occurred in 2015 (after Gonzalez Escobar had filed his applications for naturalization).
4 Case: 17-13666 Date Filed: 05/24/2018 Page: 5 of 9
not been arrested before completing his applications -- a fact to which Gonzalez
Escobar stipulated -- but also tended to show that Gonzalez Escobar had
knowledge of the unlawful nature of his conduct. This evidence was probative of
Gonzalez Escobar’s intent and motive to provide knowingly false responses on his
naturalization applications. The significant and memorable nature of Gonzalez
Escobar’s offenses was also probative to rebutting arguments that Gonzalez
Escobar’s dementia and lapsed memory had impeded his ability to answer
truthfully the questions on his naturalization applications.
We reject Gonzalez Escobar’s argument that he should have been allowed
merely to stipulate to the 2015 convictions based on the Supreme Court’s decision
in Old Chief v. United States, 117 S. Ct. 644 (1997). Typically, “the prosecution is
entitled to prove its case by evidence of its own choice,” and “a criminal defendant
may not stipulate or admit his way out of the full evidentiary force of the case as
the Government chooses to present it.” Id. at 653. In Old Chief, the Supreme
Court recognized an exception to the general rule when a defendant offers to
stipulate to the fact of his prior conviction and when the name and nature of the
prior offense might improperly bias the jury. Id. at 647, 655. The Supreme Court,
however, limited expressly its holding “to cases involving proof of felon status.”
Id. at 651 n.7. Because this case is not one involving proof of felon status, the
narrow exception recognized in Old Chief is inapplicable. Cf. United States v.
5 Case: 17-13666 Date Filed: 05/24/2018 Page: 6 of 9
Odeh, 815 F.3d 968, 982 (6th Cir. 2016) (the Old Chief exception is inapplicable
to cases involving a violation of 18 U.S.C. § 1425(a)).
Moreover, although Gonzalez Escobar indicated he would stipulate to his
2015 convictions, he also objected that the 2015 criminal judgment could not be
tied to him in the absence of fingerprint evidence. Because it appeared that
Gonzalez Escobar was attempting to challenge the fact of his 2015 criminal
convictions, the district court abused no discretion in allowing testimony from
witnesses identifying Gonzalez Escobar as the defendant in the 2015 criminal
proceedings.
On this record, we cannot say that the risk of unfair prejudice outweighed
the probative value of the evidence or say that the district court’s evidentiary ruling
was “unsupportable.” The district court abused no discretion in allowing the
government to introduce evidence of Gonzalez Escobar’s 2015 convictions.
II.
Gonzalez Escobar also argues that the district court erred in instructing the
jury that -- for purposes of convicting under section 1425(a) -- the jury need not
find that the false statement was “material” to Gonzalez Escobar’s eligibility for
6 Case: 17-13666 Date Filed: 05/24/2018 Page: 7 of 9
naturalization. Gonzalez Escobar relies on the Supreme Court’s decision in
Maslenjak v. United States, 137 S. Ct. 1918 (2017).
Gonzalez Escobar did not object to the jury instructions in the district court.
So, we review only for plain error. See United States v. Felts, 579 F.3d 1341,
1343-44 (11th Cir. 2009). Under this standard, Gonzalez Escobar must show that
there is (1) error, (2) that is plain, and (3) that affects his substantial rights. Id. at
1344.
In the light of the Supreme Court’s decision in Maslenjak -- which
concluded that materiality is an element of a section 1425(a) offense -- the parties
do not dispute that Gonzalez Escobar demonstrated “error” that was “plain” under
current law. See 137 S. Ct. at 1923, 1925. Although the law was not established
when Gonzalez Escobar was tried, “it is enough that an error be ‘plain’ at the time
of appellate consideration.” See Johnson v. United States, 520 U.S. 461, 468
(1997).
About the third element of plain error, a defendant’s substantial rights are
affected when there is a reasonable probability that, but for the error, the outcome
of the district court proceedings would have been different. United States v.
Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). The defendant bears the burden
of showing prejudice. Id. Where the effect of an error is uncertain or
indeterminate, the defendant has not satisfied his burden of showing that the error
7 Case: 17-13666 Date Filed: 05/24/2018 Page: 8 of 9
actually affected his substantial rights. Id. at 1299-1300 (citing Jones v. United
States, 527 U.S. 373, 394-95 (1999)).
Gonzalez Escobar has failed to show a reasonable probability that, but for
the erroneous jury instruction, the jury would have found him not guilty. Gonzalez
Escobar’s false statements pertained directly to his good moral character: an issue
material to his eligibility for naturalization. See Maslenjak, 137 S. Ct. at 1928-29
(a lie that goes to an applicant’s good moral character is material: “when the
defendant misrepresents facts that the law deems incompatible with citizenship, her
lie must have played a role in her naturalization.”). Evidence presented at trial
demonstrated that Gonzalez Escobar would not have been deemed to be of good
moral character had the immigration adjudicator known of Gonzalez Escobar’s sex
offenses committed between 2003 and 2006. Evidence at trial also demonstrated
that, by denying his criminal conduct, Gonzalez Escobar cut off “an important line
of questioning” that would have led the reviewing officer to further investigate
Gonzalez Escobar’s conduct. See id. at 1929 (materiality may also be shown under
an “investigation-based theory” if (1) “the mispresented fact was sufficiently
relevant to one or another naturalization criterion that it would have prompted
reasonable officials . . . to undertake further investigation” and (2) that
“investigation would predictably have disclosed some legal disqualification.”
(quotations omitted)).
8 Case: 17-13666 Date Filed: 05/24/2018 Page: 9 of 9
Given the record evidence supporting a finding that Gonzalez Escobar’s
false statement was material to his eligibility for naturalization, Gonzalez Escobar
has shown no reasonable probability that -- had the court instructed the jury
properly -- he would not have been found guilty. See Rodriguez, 398 F.3d at 1301.
AFFIRMED.