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                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11097
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:15-cr-00391-MHC-RGV-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ANDRES A. LOPEZ-MARTINEZ,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (March 29, 2018)

Before WILSON, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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      Andres Lopez-Martinez appeals his conviction and sentence for

naturalization fraud. He argues that the district court denied him the right to

present a complete defense and that the prosecutor’s closing argument

inappropriately and incorrectly referred to excluded evidence. Lopez-Martinez

argues these errors warrant a vacation of the judgment and a new trial. After

careful consideration, we affirm.

                                          I.

      Lopez-Martinez originally immigrated to the United States in 1988. He

arrived in Oregon and took on work picking strawberries. His job as an

agricultural worker helped him get legal status as a permanent resident in 1990.

      In 1997 Lopez-Martinez moved in with the Santos family. The Santos had

two daughters under twelve, A.S. and J.S. About two years later, Lopez-Martinez

was investigated by local police for allegedly molesting the Santos girls. Lopez-

Martinez denied the allegations and moved out. He then left the country to visit

his family in Guatemala.

      Lopez-Martinez returned to the United States about three months later, this

time arriving in Canton, Georgia. He stayed in Georgia after he got a job making

more money than he had working two jobs in Oregon. Nearly thirteen years after

the events in Oregon, Lopez-Martinez applied for naturalization. On the

application and in an interview with a government officer, he said that he had


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never “committed an offense for which [he was] not arrested.” Lopez-Martinez

became a United States citizen on December 7, 2012.

      In the meantime, back in 2001, a grand jury in Oregon issued an indictment

charging Lopez-Martinez with a number of crimes. It wasn’t until 2013, however,

that police were able to find Lopez-Martinez in Georgia and arrest him. Lopez-

Martinez was brought back to Oregon for prosecution and faced a prison sentence

of up to 500 months if convicted. He pled guilty to two counts of unlawful sexual

penetration in the first degree and received a 100-month sentence.

      While Lopez-Martinez was serving his state sentence, the federal

government indicted him for naturalization fraud, in violation of 18 U.S.C.

§ 1425(a). The government charged that, based on the Oregon charges and

conviction, Lopez-Martinez knowingly lied when he said he had never committed

a crime for which he was not arrested. Before trial, Lopez-Martinez filed a motion

in limine, asking the district court to exclude evidence of his Oregon guilty plea.

He argued that plea was unconstitutional because it was the product of coercion; it

was not entered into knowingly and voluntarily; and his court-appointed counsel

was constitutionally ineffective during the state proceedings. The district court

reviewed the state record, found the claims had no merit, and denied Lopez-

Martinez’s motion. The government then filed its own motion in limine asking the

court to exclude evidence and prohibit arguments that collaterally attacked the


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validity of Lopez-Martinez’s guilty plea. The court granted the motion. The

upshot was that, at trial, Lopez-Martinez could present evidence and argue he was

in fact innocent of his Oregon convictions but could not challenge his guilty plea

as involuntary or claim he had ineffective assistance of counsel during the Oregon

proceedings.

      At trial, the jury heard testimony from J.S., who said that Lopez-Martinez

sexually molested her “on more than one occasion.” The government also

presented Lopez-Martinez’s plea agreement to the jury. On the stand, Lopez-

Martinez denied he inappropriately touched either of the Santos girls. He testified

he “pled guilty [in Oregon] not because [he] had done that, but because [he] didn’t

have any other option. Because 500 months were kind of 40 years.” He also said,

“I just pled guilty because I was trapped, you know, in this pressure, in this

situation where if I was — where I was going to get 500 months instead of the 100

months.” He testified about the state court’s statements about his possible

sentences and that there would be no immigration consequences after pleading

guilty, and his own lack of understanding about his options and the plea offer due

to not having any advice or recommendation from his lawyer at the time. He also

talked about asking his court-appointed attorney why he needed to sign the plea

agreement and signing it after being told “because you have to.”




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      The jury found Lopez-Martinez guilty of naturalization fraud. This appeal

followed.



                                         II.

      Lopez-Martinez argues that the district court erred when it “prevented him

from explaining that his answer on the [naturalization] application was truthful.”

He claims the court’s order prevented him

      from introducing evidence—both testimony and documents—that he
      was not guilty of the state crime and answered truthfully the
      naturalization application and said he was forced to enter a plea of
      guilty[;] that he received incorrect immigration advice about the effect
      his guilty plea would have on his citizenship[;] and prevented him
      from introducing letters [he] wrote, complaining about the Oregon
      judge and his court-appointed counsel.

Lopez-Martinez argues this denied him the constitutional guarantee of “a

meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476

U.S. 683, 690, 106 S. Ct. 2142, 2146 (1986) (quotation omitted).

      We review de novo constitutional questions of law. United States v.

Underwood, 446 F.3d 1340, 1345 (11th Cir. 2006). A district court’s rulings on

the admissibility of evidence are reviewed for abuse of discretion. Id.

      The Sixth Amendment guarantees criminal defendants the right to have

“compulsory process for obtaining witnesses in his favor.” U.S. Const. amend. VI.

This right, and due process generally, requires that a defendant “have an


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opportunity to be heard” and “to offer evidence of his own.” Specht v. Patterson,

386 U.S. 605, 610, 87 S. Ct. 1209, 1212 (1967); United States v. Hurn, 368 F.3d

1359, 1362 (11th Cir. 2004). Generally, a defendant must be allowed to present

evidence “directly pertaining to any of the actual elements of the charged offense

or an affirmative defense”; “pertaining to collateral matters that, through a

reasonable chain of inferences, could make the existence of one or more of the

elements of the charged offense or an affirmative defense more or less certain”;

“that could have a substantial impact on the credibility of an important government

witness”; or “tends to place the story presented by the prosecution in a significantly

different light, such that a reasonable jury might receive it differently.” Hurn, 368

F.3d at 1363 (footnotes omitted).

       However, even if a district court erroneously excluded evidence, we will not

reverse if the “error was harmless beyond a reasonable doubt.” Id. at 1362–63

(quotation omitted). When a defendant gets the “essence of the desired [evidence]

before the jury,” his compulsory due process rights have not been prejudiced.

United States v. Buckley, 586 F.2d 498, 503 (5th Cir. 1978). 1

       In this case, we need not decide whether the district court’s exclusion of

Lopez-Martinez’s evidence challenging the validity of his guilty plea violated his

       1
          In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.

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right to present a complete defense because any error was harmless beyond a

reasonable doubt. Lopez-Martinez sought to tell the jury that he pled guilty not

because he committed the crimes, but for other, unrelated reasons. He did exactly

that, repeatedly telling the jury he did not plead guilty because he committed the

crimes but because he felt “pressure” and “trapped.” He also told the jury that he

did not understand his options or his possible sentences; that the state court told

him there wouldn’t be any immigration consequences of his guilty plea; and that he

signed the plea agreement only after his lawyer told him he had to. Lopez-

Martinez thus got the “essence of the desired [evidence] before the jury.” See id.

(determining a defendant’s compulsory due process rights were not prejudiced by

his inability to question certain witnesses because other witnesses testified on those

facts). On this record, any possible constitutional error in the district court’s ruling

was harmless beyond a reasonable doubt. See Hurn, 368 F.3d at 1362–63.

                                          III.

      Lopez-Martinez also argues his due process rights were violated by the

government’s misconduct during closing arguments. He argues the prosecutor

misled the jury when she argued that he pled guilty of his “own free will.”

      “To find prosecutorial misconduct, a two-element test must be met: (1) the

remarks must be improper, and (2) the remarks must prejudicially affect the

substantial rights of the defendant.” United States v. Wilson, 149 F.3d 1298, 1301


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(11th Cir. 1998) (quotation omitted). If “the prosecutor’s remarks were ‘invited,’

and did no more than respond substantially in order to ‘right the scale,’ such

comments would not warrant reversing a conviction.” United States v. Young, 470

U.S. 1, 12–13, 105 S. Ct. 1038, 1045 (1985).

       Assuming the prosecutor’s remark was improper because it impermissibly

took advantage of the district court’s order excluding defense evidence and

arguments challenging the guilty plea, the prosecutor’s remarks were invited.

During closing arguments, defense counsel effectively argued to the jury that

Lopez-Martinez did not freely plead guilty, which was also in violation of the

district court’s order:

      [W]hat [Lopez-Martinez] knows is if I don’t want to die in an Oregon
      prison, here is what I have to say. I have to say yes to these questions.
      I have to say I’m satisfied with my lawyer. I have to say I did it.
      Even though he didn’t.

Only after defense counsel finished did the prosecutor make the challenged

statement:

      So, look at the evidence. Who’s telling the truth? [J.S.]; or Mr.
      Lopez? And if Mr. Lopez, which Mr. Lopez? The 2014 Mr. Lopez
      who stood in court and said I committed these crimes and I’m
      changing my plea, of my own free will? Or the Mr. Lopez today who
      doesn’t want to lose his citizenship.

Taken in context, the government’s lone remark “did no more than respond

substantially in order to ‘right the scale,’” and thus does not warrant reversal. See

id.
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AFFIRMED.




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