           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                                                         [DO NOT PUBLISH]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.
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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




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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


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       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).


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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.


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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




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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


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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)).


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      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.




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