                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             OCT 26 2004
                                     TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 04-8050
          v.                                           District of Wyo.
 MANUEL GALLARDO-MORENO,                         (D.C. No. 03-CR-146-ABJ)
 also known as Manual Arturo-Moreno,
 also known as Robert Hernandez

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.           **




      Defendant-Appellant Manuel Gallardo-Moreno was tried and convicted of

re-entering the United States as a previously deported alien in violation of 8

U.S.C. §§ 1326(a) and (b)(2) and falsely representing a social security number in

violation of 42 U.S.C. § 408(a)(7)(B). At trial, Gallardo-Moreno declined to


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
testify because the district court had previously ruled that it would exclude as

irrelevant evidence of where he grew up, where he went to school, and where his

relatives live. He argues on appeal that the district court’s ruling violated his

right to testify on his own behalf. We affirm.

                                     Background

      In July 2003 Gallardo-Moreno was arrested in Wyoming and subsequently

charged with re-entering the United States as a previously deported alien in

violation of 8 U.S.C. §§ 1326(a) and (b)(2) and falsely representing a social

security number in violation of 42 U.S.C. § 408(a)(7)(B). According to a pre-trial

motion filed by the government in limine, Gallardo-Moreno had hoped to testify

as to where he grew up, went to school, and where his family resides. The

government argued that the district court should exclude such testimony as

irrelevant under Fed. R. Evid. 401 and prejudicial under Fed. R. Evid. 403. The

court ruled that such evidence should indeed be excluded.

      At trial, the court advised Gallardo-Moreno that he had a right to testify on

his own behalf. He declined to do so, and was convicted on all counts. He then

filed this timely appeal.

                                       Analysis




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      We review evidentiary rulings for abuse of discretion, United States v.

Gorman, 312 F.3d 1159, 1162 (10th Cir. 2003), and constitutional challenges de

novo. United States v. Sarracino, 340 F.3d 1148, 1158-59 (10th Cir. 2003).

      Defendants have a right under the Fifth and Sixth Amendments to testify on

their own behalf. Rock v. Arkansas, 483 U.S. 44, 51-52 (1987). This does not

mean, however, that the Constitution “prevents a trial judge from imposing any

limits” on a defendant’s testimony. Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986). “On the contrary, trial judges retain wide latitude . . . to impose

reasonable limits . . . based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant.” Id.

      The elements of an 8 U.S.C. § 1326(a) offense are that (1) the defendant is

an alien (2) who was arrested and deported and (3) thereafter was voluntarily and

knowingly in the United States (4) without the permission of the Attorney

General. United States v. Martinez-Morel, 118 F.3d 710, 713 (1997). An 8

U.S.C. § 1326(b)(2) offense requires the government to prove in addition that the

defendant’s removal “was subsequent to a conviction for commission of an

aggravated felony.” The elements of a 42 U.S.C. § 408(a)(7)(B) offense are that

the defendant (1) for any purpose, (2) with intent to deceive, (3) represented a

particular social security account number to be his or another person’s, (4) which


                                          -3-
representation was false. United States v. Darrell, 828 F.2d 644, 647 (10th Cir.

1987). Gallardo-Moreno wanted to introduce evidence that he grew up in

Wyoming, went to school and learned the Pledge of Allegiance in Wyoming, had

lived in Wyoming all his life, learned English in Wyoming, and that his sisters are

American citizens living in Wyoming.

      The district court ruled that such evidence “lack[ed] any real relevance” to

the charged offenses, was “likely to consume substantial time,” and had “some

likelihood to confuse the jury.” We agree that none of the evidence that Gallardo-

Moreno wanted to introduce was relevant to any of the elements of the foregoing

offenses. The district court therefore did not abuse its discretion in granting the

motion in limine.

      We therefore AFFIRM the decision below.

                                               Entered for the Court

                                               Timothy M. Tymkovich
                                               Circuit Judge




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