                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,               No. 11-30367
                Plaintiff-Appellee,
                                           D.C. No
                v.                      2:10-cr-02121-
                                           WFN-1
JOSEPH ANDERSON EVANS, SR.,
             Defendant-Appellant.



UNITED STATES OF AMERICA,               No. 11-30369
                Plaintiff-Appellee,
                                           D.C. No.
                v.                      2:11-cr-02039-
                                           WFN-1
JOSEPH ANDERSON EVANS, SR.,
             Defendant-Appellant.         OPINION


    Appeal from the United States District Court
       for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding

                Argued and Submitted
        February 8, 2013—Seattle, Washington

                Filed August 27, 2013

     Before: Raymond C. Fisher, Ronald M. Gould,
         and Richard A. Paez, Circuit Judges.
2                   UNITED STATES V. EVANS

                     Opinion by Judge Paez;
                     Dissent by Judge Gould


                           SUMMARY*


                          Criminal Law

    The panel vacated convictions in two cases in which the
defendant’s primary defense was that he was a citizen of the
United States and his primary evidence in support of his
defense was a delayed birth certificate issued by the State of
Idaho.

    The panel held that the district court erred in invoking an
inherent “gate-keeping” authority to exclude the birth
certificate pursuant to Fed. R. Evid. 104(a) without relying on
some substantive basis outside of Rule 104(a). The panel
held that the district court erred by concluding that no
reasonable juror could determine that the birth certificate was
“substantively genuine” (Fed. R. Evid. 104(b)), and by
excluding the birth certificate without first assessing under
Fed. R. Evid. 403 its probative value when taken as a true
record of the defendant’s birth. The panel concluded that the
district court’s exclusion of the central piece of the
defendant’s main defense to a critical element of all the
charges in the two cases was a violation of his Fifth
Amendment right to present a defense, and the error was not
harmless.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. EVANS                     3

    Dissenting, Judge Gould would affirm because (1) Rule
104(a) lets the court preliminarily review whether a state
document in the form of a belated birth certificate was
procured by fraud, and illegitimate evidence may be held to
be inadmissible due to its inaccurate nature; (2) the district
court did not abuse its discretion by excluding the birth
certificate under Rule 403; and (3) even if the district court
abused its discretion on evidence rulings, he would not
elevate this to the level of constitutional error and would
conclude that any error was harmless.



                        COUNSEL

Stephen R. Hormel (argued), Hormel Law Office, L.L.C.,
Spokane Valley, Washington, for Defendant-Appellant.

Shawn N. Anderson (argued), Assistant United States
Attorney, and Michael C. Ormsby, United States Attorney,
Yakima, Washington, for Plaintiff-Appellee.


                         OPINION

PAEZ, Circuit Judge:

     In these consolidated appeals, we clarify the limits of a
trial court’s authority under Federal Rules of Evidence 104
and 403 to exclude relevant evidence when the court
questions the credibility of such evidence. In two separate
cases, the government charged defendant Joseph Anderson
Evans, Sr., with being an alien in the United States after
deportation, as well as misrepresenting his identity and
4                 UNITED STATES V. EVANS

citizenship to fraudulently obtain supplemental social security
benefits, acquire food stamps, make a claim of citizenship,
and apply for a passport. Evans’s primary defense to all of
the charges was that he was a citizen of the United States, and
his primary evidence in support of his defense was a delayed
birth certificate issued by the State of Idaho. In a pre-trial
ruling, the district court excluded the birth certificate on the
ground that it was “substantively fraudulent.” The court
made this finding following an evidentiary hearing at which
the government presented evidence that Evans had obtained
the birth certificate by fraudulent misrepresentations and was
not a United States citizen. Evans was subsequently
convicted of all charges in both cases. We hold that the
district court erred in excluding the birth certificate, and that
the exclusion of such significant evidence resulted in a
violation of Evans’s Fifth Amendment due process right to
present a defense. We further hold that the error was not
harmless, and we therefore vacate Evans’s convictions and
remand for new trials.

        I. FACTS AND PROCEDURAL HISTORY

    In April 2010, Evans filed a petition for a delayed birth
certificate in Idaho state district court. See Idaho Code Ann.
§§ 39-267, 39-278. In support of the petition, Evans filed an
affidavit on his own behalf and several affidavits from
witnesses who offered evidence of his place of birth. Evans
also appeared at a non-adversarial hearing where he answered
questions posed by the court. At the close of the hearing, the
judge granted Evans’s petition and ordered the Idaho Bureau
of Vital Records and Health Statistics to issue a delayed birth
certificate to Evans. In May 2010, the Bureau issued a birth
certificate stating that Evans was born in Lapwai, Idaho, on
                 UNITED STATES V. EVANS                     5

the Nez Perce Indian Reservation. Later that month, Evans
applied for a United States passport.

    As a result of discrepancies in Evans’s passport
application, the United States Passport Agency in Seattle
referred Evans’s case to the State Department’s Diplomatic
Security Service, which began an investigation into Evans’s
identity. Later that year, in November 2010, Evans was
indicted on one count of being an alien in the United States
after deportation, in violation of 8 U.S.C. § 1326. A few
months later, in February 2011, he was again indicted, this
time on 42 counts of fraudulently obtaining supplemental
social security benefits, unlawfully acquiring food stamps,
making a false claim of citizenship, and making a false
statement in an application for a passport, in violation of
42 U.S.C. § 1383a(a)(3), 7 U.S.C. § 2024(b), and 18 U.S.C.
§§ 911, 1542. The basis for the fraud and false statements
alleged in the latter indictment were Evans’s alleged
misrepresentations of his identity and citizenship.

    The two cases were assigned to the same district court
judge. Before trial commenced on the § 1326 charge, Evans
notified the court that he intended to introduce his delayed
birth certificate issued by the State of Idaho as proof of his
United States citizenship. The birth certificate was a key
piece of evidence in both cases, because to convict Evans on
any of the counts, the government had to prove beyond a
reasonable doubt that he was not a United States citizen. At
a pre-trial conference, the court questioned the admissibility
of the birth certificate. The court expressed concern about
inconsistencies in the evidence, including inconsistent
information about Evans’s real name and place of birth. The
district judge explained to the parties:
6                    UNITED STATES V. EVANS

         I received a lot of documents on [sic] this
         case. There are a lot of motions filed. And
         all the documents that I’ve reviewed in the
         last half a day or so cause me some real
         concern about going forward with this case at
         this time. Without discussing at all the
         admissibility of any of these documents, on
         their face, just reading them, there is so much
         inconsistent information about this person,
         whether his name is Evans or whether it’s
         Shippentower or whether it’s Ceniceros-
         Mora. . . .

         What really concerns the court is that, without
         making a finding on this, there’s enough
         evidence to indicate that going forward could
         possibly result in fraudulent evidence coming
         into this case in front of the jury.

The court reasoned that if the Idaho court had relied on
inaccurate or false information to find that Evans was born in
Idaho and grant the petition for a delayed birth certificate, the
birth certificate itself would be inaccurate, and it would
therefore be error to admit it. The court concluded that it
should hold an evidentiary hearing under Federal Rule of
Evidence 104 to determine if the birth certificate was
admissible.1 Prior to the hearing, the government filed a pre-
trial Motion to Preclude Admission of Evidence of Birth in
Idaho (“Motion to Preclude Evidence”).


    1
   Evans objected to the hearing. He argued that the birth certificate was
admissible as a certified document of Idaho Vital Records, and that the
only remaining issue was the weight to be accorded to the birth certificate,
which was a question for the jury.
                     UNITED STATES V. EVANS                               7

    At the Rule 104 hearing, the government called three
witnesses.2 First, a special agent from Immigration and
Customs Enforcement testified about his investigation of
Evans’s immigration and criminal history. He testified that
the State Department’s Diplomatic Security Service, which
investigates visa fraud, asked him to review the A-file (i.e.
the immigration file, or “alien registration file”) of a person
named “Ramon Ceniceros-Mora.” The A-file included, inter
alia, two documents titled “record of deportable alien,” a
copy of a sworn statement made to a Border Patrol officer, a
1984 federal judgment of conviction for possession of a false
birth certificate, and a 1990 federal judgment of conviction
for a violation of 8 U.S.C. § 1326.3 The agent testified that he
matched Evans to the file of “Ramon Ceniceros-Mora”
through fingerprint analysis, photographs, witness interviews,
investigation into Evans’s application for a delayed birth
certificate, and review of Evans’s correspondence with the
Idaho Bureau of Vital Statistics. On the basis of the records
in the A-file, the agent testified that he believed Evans was a
native and citizen of Mexico.

    The government’s second witness was a special agent
from the State Department’s Diplomatic Security Service. He
testified that Evans had submitted an application for a United
States passport that contained “fraudulent indicators.” He
and several other agents subsequently visited Evans at his


  2
   Evans did not testify or call any witnesses at the hearing. He instead
renewed his objection to the hearing, arguing that the court could not
invade the province of the jury by assessing the credibility of the evidence
he sought to admit.
  3
    The government also presented the court with various documents from
this A-file as exhibits to its Motion to Preclude Evidence.
8                    UNITED STATES V. EVANS

home to investigate possible visa fraud. During the visit,
Evans identified photos of himself that the special agent had
taken from the A-file. When the agent told Evans that the
photographs were from the file of a person who had been
previously deported to Mexico, however, Evans denied being
a citizen of Mexico or having ever been deported. The agent
also took Evans’s fingerprints and matched them to other
documents in the A-file.

    Finally, the government’s third witness was a historian for
the United States Marine Corps. She testified that she could
find no record of Evans’s alleged military service, did not
recognize the type of certificate allegedly showing Evans’s
graduation from training, and thought his military style of
dress in photographs was very unusual.

    On the basis of the testimony and other evidence
presented at the evidentiary hearing, the district court granted
the government’s Motion to Preclude Evidence.4 The court
cited Federal Rules of Evidence 104(a) and 403 as the bases
for its decision, explaining:

         While neither party questions the validity of
         the Idaho birth certificate on its face, the
         Government has unequivocally shown that the
         Idaho birth certificate is substantively
         fraudulent and that it was obtained through
         fraud of the Defendant. The Court finds that
         all three of the Government’s witnesses were
         credible and that there is no support in the
         record that would allow a reasonable person

 4
   Although the district court’s order referenced “the § 1326 offense,” the
ruling applied to both cases.
                 UNITED STATES V. EVANS                      9

       to determine that the Defendant’s Idaho birth
       certificate is substantively genuine.

       As a gatekeeper, the Court is obligated to
       exclude the Idaho birth certificate under Fed.
       R. Evid. 104 (“[p]reliminary questions
       concerning . . . the admissibility of evidence
       shall be determined by the court”). Under
       Fed. R. Evid. 403, the Idaho birth certificate is
       without probative weight, can only lead to
       undue delay and a possible miscarriage of
       justice.

       Furthermore, excluding the Idaho birth
       certificate does not, as defense counsel
       contends, deprive Defendant of his Sixth
       Amendment Jury trial rights. The Court is not
       making a determination of Defendant’s
       citizenship, but merely a determination of the
       admissibility of the Idaho birth certificate.
       Alienage is an essential element of the § 1326
       offense and the Government is still required to
       carry its burden with respect to that element
       just as it must with the other elements.

(citation omitted).

    The two cases proceeded to trial, with the court beginning
with the trial of the § 1326 charge. During jury deliberations
on that charge, the jury sent the district court a note asking,
“if you are deported are you legally considered an alien?”
The court responded that the answer was contained within the
jury instructions. When the jury could not reach a unanimous
verdict, the court declared a mistrial. At the re-trial of the
10                UNITED STATES V. EVANS

§ 1326 charge, Evans’s primary defense was that he was a
United States citizen, and his primary evidence in support of
that defense was his own testimony. Both of the special
agents from the Rule 104(a) hearing testified again at the re-
trial. This time, the jury returned a verdict of guilty.

    At the trial on the fraud and false statements charges,
Evans again argued that he was a United States citizen. All
three of the government’s witnesses from the Rule 104(a)
hearing testified at this trial, and the jury convicted Evans.

    Evans timely appealed the judgments of convictions in
both cases. On appeal, Evans argues that the exclusion of the
birth certificate deprived him of his Fifth Amendment due
process right to present a defense and his Sixth Amendment
right for a jury to determine every element of the charges
brought against him.

               II. STANDARD OF REVIEW

    We review de novo the district court’s interpretation of
the Federal Rules of Evidence, United States v. W.R. Grace,
504 F.3d 745, 758–59 (9th Cir. 2007), but we review the
district court’s exclusion of evidence for abuse of discretion,
United States v. Lynch, 437 F.3d 902, 913 (9th Cir. 2006) (en
banc). “We review de novo whether an evidentiary error
rises to the level of a constitutional violation.” United States
v. Pineda-Doval, 614 F.3d 1019, 1032 (9th Cir. 2010). A
constitutional error is harmless if “it appears beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.” United States v. Walters,
309 F.3d 589, 593 (9th Cir. 2002) (internal quotation marks
omitted).
                  UNITED STATES V. EVANS                      11

                      III. DISCUSSION

    The Constitution “guarantees criminal defendants a
meaningful opportunity to present a complete defense.”
United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010)
(internal quotation marks omitted). This right includes “the
right to present the defendant’s version of the facts,”
Washington v. Texas, 388 U.S. 14, 19 (1967), and to “put
before a jury evidence that might influence the determination
of guilt,” Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987); see
also Chambers v. Mississippi, 410 U.S. 284, 294 (1973)
(“The right of an accused in a criminal trial to due process is,
in essence, the right to a fair opportunity to defend against the
State’s accusations.”). We have acknowledged that this right
is not “absolute,” Alcala v. Woodford, 334 F.3d 862, 877 (9th
Cir. 2003), since the “adversary process could not function
effectively without adherence to rules of procedure that
govern the orderly presentation of facts and arguments,”
Taylor v. Illinois, 484 U.S. 400, 410–11 (1988). However,
“‘when evidence is excluded on the basis of an improper
application of the evidentiary rules,’” the danger of a due
process violation is particularly great, since “‘the exclusion
[of the evidence] is unsupported by any legitimate . . .
justification.’” Stever, 603 F.3d at 755 (brackets omitted)
(quoting United States v. Lopez-Alvarez, 970 F.2d 583, 588
(9th Cir. 1992)). We therefore begin our analysis by
considering whether the district court properly applied the
Federal Rules of Evidence. We conclude that it did not.

                               A.

   The district court invoked Rule 104(a) as the source of its
“gate-keeping” authority. Rule 104(a) states that the court
“must decide any preliminary question” of fact or law about
12                   UNITED STATES V. EVANS

three types of issues: whether (1) “a witness is qualified,” (2)
“a privilege exists,” or (3) “evidence is admissible.” Fed. R.
Evid. 104(a); see also Fed. R. Evid. 104(a) advisory
committee notes.5 We have previously considered the trial
court’s gate-keeping function as it applies to the first two
issues, but we have not explicitly considered the scope of the
trial court’s gate-keeping function with regard to the third
issue.6 We conclude that the trial court’s authority to
determine if evidence is admissible pursuant to Rule 104(a)
is necessarily limited by other rules of evidence—most
importantly, Rule 402, which provides that evidence is
admissible so long as (1) it is relevant, and (2) it is not


     5
     “The court must decide any preliminary question about whether a
witness is qualified, a privilege exists, or evidence is admissible. In so
deciding, the court is not bound by evidence rules, except those on
privilege.” Fed. R. Evid. 104(a). The advisory committee notes specify
that the judge may “act as a trier of fact” and may also evaluate evidence
“in terms of a legally set standard.” Fed. R. Evid. 104(a) advisory
committee notes.
 6
    This circuit’s case law is particularly well-developed with regard to a
trial court’s Rule 104(a) authority to decide “whether a witness is
qualified,” an issue that the Supreme Court addressed in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See, e.g., Avila
v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833–34 (9th Cir.), cert.
denied, 132 S. Ct. 120 (2011); United States v. Hermanek, 289 F.3d 1076,
1093 (9th Cir. 2002); United States v. Alatorre, 222 F.3d 1098, 1100–03
(9th Cir. 2000); United States v. Hankey, 203 F.3d 1160, 1167–70 (9th
Cir. 2000); United States v. Cordoba, 194 F.3d 1053, 1056–57 (9th Cir.
1999); Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1123–24 (9th Cir.
1994); United States v. Rincon, 28 F.3d 921, 923 (9th Cir. 1994); United
States v. Amador-Galvan, 9 F.3d 1414, 1417–18 (9th Cir. 1993). We have
also considered the trial court’s authority under Rule 104(a) to determine
whether “a privilege exists.” United States v. de la Jara, 973 F.2d 746,
748–49 (9th Cir. 1992). Cf. United States v. Zolin, 491 U.S. 554, 565–68
(1989).
                  UNITED STATES V. EVANS                     13

otherwise inadmissible under, inter alia, the Federal Rules of
Evidence. Fed. R. Evid. 402 (“Relevant evidence is
admissible unless any of the following provides otherwise:
the United States Constitution; a federal statute; these rules;
or other rules prescribed by the Supreme Court. Irrelevant
evidence is not admissible.”).

     Thus, Rule 104(a) provides the trial court with the
authority to decide questions that might make evidence
inadmissible under some other rule of evidence (or under the
Constitution, a federal statute, or other Supreme Court rules),
but it does not itself provide a substantive basis for excluding
the evidence. See United States v. Brewer, 947 F.2d 404, 409
(9th Cir. 1991) (“Rule 104 . . . is limited to the preliminary
requirements or conditions that must be proved before a
particular rule of evidence may be applied.”). For example,
trial courts can exercise their authority under Rule 104(a) to
determine that a statement was made for the purposes of
medical diagnosis, making it admissible under Rule 803(4),
see United States v. Lukashov, 694 F.3d 1107, 1115 (9th Cir.
2012), cert. denied, 133 S. Ct. 1744 (2013); that a conspiracy
existed, making certain co-conspirator statements admissible
under Rule 801(d)(2)(E), see Bourjaily v. United States,
483 U.S. 171, 175 (1987); and that an agency relationship
existed, making certain statements admissible under Rule
802(d)(2)(D), see Hilao v. Estate of Marcos, 103 F.3d 767,
775–76 (9th Cir. 1996). A trial court may also exercise its
Rule 104(a) authority to determine, inter alia, “the
unavailability of a witness whose former testimony is being
offered” or whether there is “proof of the interest of the
declarant in determining whether the out-of-court statement
threatens that interest.” Brewer, 947 F.2d at 409.
14                   UNITED STATES V. EVANS

    In each of the above scenarios, the trial court uses its Rule
104(a) authority to determine “the existence of a condition,”
which in turn determines “[t]he applicability of a particular
rule of evidence.” Fed. R. Evid. 104(a) advisory committee
notes. We have not previously considered whether a trial
court can exclude evidence pursuant to Rule 104(a) without
relying on some substantive basis outside of Rule 104(a),
such as another rule of evidence, a federal statute, or the
United States Constitution. We now hold that it cannot.7 See
Fed. R. Evid. 402. To the extent that the district court here
invoked an umbrella “gate-keeping” authority to exclude
Evans’s birth certificate so as to avoid a “miscarriage of
justice,” it exceeded the scope of its authority under Rule
104(a).8


  7
    The dissent reads Rule 104(a) as giving trial courts the authority to
exclude “illegitimate evidence” without relying on any other rule of
evidence or federal law. Dissent at 28. But Rule 104(a) does not give the
court the authority to exclude “illegitimate evidence.” It gives the court
the authority to “decide any preliminary question about whether . . .
evidence is admissible.” Fed R. Evid. 104(a) (emphasis added). And the
word “admissible,” unlike the word “illegitimate” carries with it the
meaning—and limitations—proscribed elsewhere in the rules of evidence.
See, e.g., Fed. R. Evid. 402 (“Relevant evidence is admissible unless any
of the following provides otherwise . . .” (emphasis added)); see also Fed.
R. Evid. 402 advisory committee notes (“The provisions that all relevant
evidence is admissible, with certain exceptions, and that evidence which
is not relevant is not admissible are a presupposition involved in the very
conception of a rational system of evidence. They constitute the
foundation upon which the structure of admission and exclusion rests.”
(internal quotation marks and citation omitted)).
      8
     We note that unlike the district court’s other stated reason for
excluding Evans’s birth certificate, “undue delay,” the danger of a
“miscarriage of justice” is not one of the grounds upon which a trial court
can exclude evidence pursuant to Rule 403. Thus, we disagree with the
dissent’s conclusion that it is “unnecessary” to discuss the trial court’s
                     UNITED STATES V. EVANS                            15

                                    B.

    Because the trial court must admit evidence that is (1)
relevant, and (2) not inadmissible under, inter alia, some
other rule, Fed. R. Evid. 402, we next consider whether these
conditions are met here. The government argues that the
birth certificate is irrelevant because even if it was “genuine
in form,” it was “not [genuine] in substance.” We disagree.
The fact that the birth certificate was properly issued by the
State of Idaho establishes that it is “of consequence” to an
issue in both cases—Evans’s claim of United States
citizenship—and that it has some “tendency to make [his
alleged citizenship] more . . . probable than it would be
without the evidence.” Fed. R. Evid. 401.9 This establishes
that the birth certificate was relevant to all the counts in both
cases.

    Furthermore, to the extent the district court conditioned
the relevance of the birth certificate upon its “substantive
genuineness,” it erred in its application of Rule 104(b). This
rule provides that where “the relevance of evidence depends
on whether a fact exists, proof must be introduced sufficient
to support a finding that the fact does exist.” Fed. R. Evid.




application of Rule 104(a) separately from its application of Rule 403.
See Dissent at 32 n.2.
  9
    “Evidence is relevant if: (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is
of consequence in determining the action.” Fed. R. Evid. 401 (emphasis
added).
16                   UNITED STATES V. EVANS

104(b).10 If “the foundation evidence is sufficient to support
a finding of fulfillment of the condition . . . the item is
admitted.” Fed. R. Evid. 104(b) advisory committee notes.
Furthermore, if “after all the evidence on the issue is in, pro
and con, the jury could reasonably conclude that fulfillment
of the condition is not established,” the evidence is admitted,
because “the issue is for [the jury].” Id. (emphasis added).
Only if “the evidence is not such as to allow a finding, [does]
the judge withdraw[] the matter from [the jury’s]
consideration.” Id. Of critical importance here, when
“determining whether the [party introducing evidence] has
introduced sufficient evidence to meet Rule 104(b), the trial
court neither weighs credibility nor makes a finding that the
[party] has proved the conditional fact by a preponderance of
the evidence.” Huddleston v. United States, 485 U.S. 681,
690 (1988) (emphasis added). “The court simply examines
all the evidence in the case and decides whether the jury
could reasonably find the conditional fact . . . by a
preponderance of the evidence.” Id.

    Here, although the district court did not specifically cite
to Rule 104(b), its conclusion that no “reasonable person”
could “determine that the Defendant’s Idaho birth certificate
is substantively genuine” draws its language and reasoning
from Rule 104(b). But in reaching the conclusion that no
reasonable person could find that Evans’s birth certificate was
substantively genuine, the district court erroneously weighed

  10
    A trial court may, for example, condition the admission of evidence
on proof that events occurred in a particular location, United States v.
Matta-Ballesteros, 71 F.3d 754, 767–68 (9th Cir. 1995), as amended,
98 F.3d 1100 (9th Cir. 1996); that a particular party was the author of a
document, United States v. Gil, 58 F.3d 1414, 1419 (9th Cir. 1995); or that
a party relied on the advice of a third party, Aceves v. Allstate Ins. Co.,
68 F.3d 1160, 1166 (9th Cir. 1995).
                      UNITED STATES V. EVANS                               17

the credibility of the government’s witnesses against the
credibility of the official state document. Indeed, it expressly
found that “all three of the Government’s witnesses were
credible.” This was error. The fact that the birth certificate
was an official document, issued by the Idaho Bureau of Vital
Records and Health Statistics, provided a sufficient basis
upon which a juror could conclude that the birth certificate
was “substantively genuine.” And to the extent the
Government’s evidence suggests otherwise, the issue boils
down to the credibility of the parties’ conflicting evidence,
which is a question for the jury to decide.11 We therefore
hold that to the extent the district court relied on Rule 104(b)
in excluding the birth certificate, it erred.

                                      C.

    We next turn to the district court’s application of Rule
403. As part of its authority to decide preliminary questions
of law pursuant to Rule 104(a), the trial court may exclude
relevant evidence if “its probative value is substantially
outweighed” by, inter alia, the danger of unfair prejudice,
misleading the jury, or undue delay.12 Fed. R. Evid. 403; see


 11
    The dissent argues that “the district court cannot be said to have made
a credibility determination when Evans presented no evidence at the
hearing to support the document’s integrity.” Dissent at 29. We disagree.
The district court weighed the credibility of the defendant’s evidence, i.e.
the state-issued birth certificate, against the credibility of the government’s
evidence, i.e. the witness testimony presented at the Rule 104 hearing.
  12
    “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403.
18                UNITED STATES V. EVANS

also Hankey, 203 F.3d at 1168 (recognizing that the court’s
Rule 104(a) authority allows it to exclude evidence under
Rule 403). The district court here concluded that Evans’s
birth certificate was inadmissible under Rule 403 because it
was “without probative weight” and could “only lead to
undue delay.” This was legal error. “Weighing probative
value against unfair prejudice under [Rule] 403 means
probative value with respect to a material fact if the evidence
is believed, not the degree the court finds it believable.”
Bowden v. McKenna, 600 F.2d 282, 284–85 (1st Cir. 1979)
(citing 22 C. Wright & K. Graham, Federal Practice &
Procedure: Evidence, § 5214, at 265–66 (1978)) (emphasis
added). The court may not exclude relevant evidence—or, in
this case, assign it no probative value—on the ground that it
does not find the evidence to be credible. See United States
v. Candoli, 870 F.2d 496, 509 (9th Cir. 1989) (“[A] conflict
in the evidence goes to the weight of [the evidence], not to its
admissibility.”).

    We find three cases from our sister circuits to be
instructive. First, in Blake v. Pellegrino, the district court
granted the defendant’s motion to strike the cause of death
from the plaintiff’s death certificate, explaining that it did not
believe the plaintiff had died in the manner so described.
329 F.3d 43, 45 (1st Cir. 2003). The First Circuit held that
this was error. Id. at 49. The court concluded that “a judge,
presiding over a jury trial, may [not] rule on the admissibility
of evidence based upon his view of the persuasiveness of that
evidence,” since the jury, not the judge, was “the ultimate
arbiter of the persuasiveness of the proof.” Id. at 47 (internal
quotation marks omitted). The court considered and rejected
the possibility that the trial court had acted pursuant to its
authority under Rule 104(a):
                  UNITED STATES V. EVANS                     19

       Rule 104(a) is inapposite here, for no
       foundational facts were in issue. Virtually by
       definition, foundational facts are those facts
       upon which the admissibility of evidence
       rests. Those facts include matters such as the
       genuineness of a document or statement, the
       maker’s personal knowledge, and the like. In
       this instance, those facts (e.g., the authenticity
       of the death certificate and the authority of
       the medical examiner to sign it) were never in
       dispute. The district court’s problem did not
       go to any foundational fact, but, rather, to the
       very core of the evidence: its persuasiveness.
       Where, as here, a piece of evidence rests upon
       a proper foundation, Rule 104(a) does not
       permit a trial judge to usurp the jury’s
       function and exclude the evidence based on
       the judge’s determination that it lacks
       persuasive force.

Id. at 48 (emphasis added) (citations omitted). We are
persuaded by the court’s reasoning. The district court here,
as in Blake, did not dispute that Evans’s birth certificate was
properly issued by the State of Idaho, making it facially valid.
Rather, the court questioned whether the event that the
certificate allegedly documented—in Blake, the decedent’s
alleged death by asphyxia; here, Evans’s alleged birth in
Idaho—had actually occurred in the way stated on the
certificate. We agree with the First Circuit that this is a
question of fact that should be decided by a jury, not a trial
judge. We therefore adopt the First Circuit’s rule that “a trial
judge [may not] refuse to admit evidence simply because he
does not believe the truth of the proposition that the evidence
asserts.” Id. at 47.
20                UNITED STATES V. EVANS

     We find further support for adopting the First Circuit’s
rule in Ballou v. Henri Studios, Inc., 656 F.2d 1147 (5th Cir.
1981). In Ballou, the plaintiffs filed a motion to exclude a
blood alcohol test indicating that the decedent was intoxicated
at the time of his car accident with the defendant. Id. at 1149.
The trial court held a pre-trial hearing at which several
witnesses testified; it then granted the motion, explaining that
the test lacked “credibility” in light of certain witness
testimony. Id. at 1151–52. The Fifth Circuit reversed,
concluding that “the court’s decision to believe Mrs.
Eisenhower’s testimony rather than the results of the blood
alcohol test constituted a credibility choice which should
properly have been reserved for the jury.” Id. at 1154. The
court went on to explain that the district court had mis-
applied the Rule 403 balancing test by assigning “little or no
probative value” to the test results when it excluded them:

       Rather than discounting the probative value of
       the test results on the basis of its perception of
       the degree to which the evidence was worthy
       of belief, the district court should have
       determined the probative value of the test
       results if true, and weighed that probative
       value against the danger of unfair prejudice,
       leaving to the jury the difficult choice of
       whether to credit the evidence.

Id.; see also id. (“Rule 403 does not permit exclusion of
evidence because the judge does not find it credible.”
(internal quotation marks omitted)). The district court here,
like the trial court in Ballou, erred by assigning no probative
weight to the birth certificate. It should have determined the
probative value of the birth certificate if taken as a true
                 UNITED STATES V. EVANS                    21

record of Evans’s birth, and then weighed it against the other
Rule 403 factors.

    Finally, we find additional guidance in the Fourth
Circuit’s decision in Rainey v. Conerly, 973 F.2d 321 (4th
Cir. 1992). In Rainey, the trial court sua sponte excluded a
prisoner’s contemporaneous written account of an altercation
with a prison guard “because it was dated December 3, 1988,
yet purported to describe events that occurred on December
3 through December 5, 1988,” and therefore was “not
reliable.” Id. at 326. The Fourth Circuit held that this was
error. The court concluded:

       [W]hile the trial court may exclude relevant
       evidence under Federal Rule of Evidence 403
       for certain reasons, the basis advanced by the
       trial court in this case, that the document was
       ‘not reliable,’ is not a proper ground. Issues
       of credibility are to be resolved by the jury,
       not the trial court, and in this case the jury
       should have been trusted to accord the
       evidence the proper weight in light of any date
       discrepancy.

Id. (citation and footnote omitted). Here, as in Rainey, the
trial court relied in part on an improper ground for excluding
the birth certificate under Rule 403, i.e. the danger of a
“miscarriage of justice.” This was error. It should have
instead trusted the jury to consider discrepancies between the
information contained in the birth certificate and the
22                    UNITED STATES V. EVANS

government’s evidence and accord the proper weight to
each.13

                                     D.

    The final question, with respect to the district court’s
evidentiary rulings, is whether the probative value of the birth
certificate—if found credible by the jury—is substantially
outweighed by the potential for undue delay, or any other
factor in the Rule 403 balancing test. We conclude that it is
not. The birth certificate’s probative value, if found to be a
credible record of Evans’s birth, is very high: every charge

  13
     Several other circuits, as well as several legal commentators, have
reached similar conclusions. See In re Air Disaster at Lockerbie Scotland
on Dec. 21, 1988, 37 F.3d 804, 839 (2d Cir. 1994) (Van Graafeiland, J.,
dissenting) (“Credibility and believability are for the jury, not the judge.”),
abrogated in part on other grounds by Zicherman v. Korean Air Lines
Co., 516 U.S. 217 (1996); W. Indus., Inc. v. Newcor Canada Ltd.,
739 F.2d 1198, 1202 (7th Cir. 1984) (“[A] judge in our system does not
have the right to prevent evidence from getting to the jury merely because
he does not think it deserves to be given much weight.”); 22A Kenneth W.
Graham, Jr., Federal Practice and Procedure § 5214 (2d ed. 2013) (“[I]t
seems relatively clear that in the weighing process under Rule 403 the
judge cannot consider the credibility of witnesses. In the first place,
credibility is a question for the jury; to permit the judge to exclude
evidence on the ground that he thinks it incredible would be a remarkable
innovation and may even be a violation of the right of trial by jury. . . .
Rule 403 presupposes that the judge can determine the admissibility by
assessing logical inferences at the time it is offered. If the judge were
supposed to assess credibility as well it is difficult to see how this could
be done without first hearing nearly the entire trial.” (footnotes omitted));
Edward J. Imwinkelried, The Meaning of Probative Value and Prejudice
in Federal Rule of Evidence 403: Can Rule 403 Be Used to Resurrect the
Common Law of Evidence?, 41 Vand. L. Rev. 879, 886 (1988) (“Leading
law review commentators and treatise writers have concluded that a judge
may not consider the credibility of the source of the evidence in gauging
probative value under rule 403.” (footnotes omitted)).
                   UNITED STATES V. EVANS                          23

in the two indictments required the government to prove that
Evans was either an alien or not a citizen of the United States,
his main defense at both trials was that he was a United States
citizen, and the birth certificate was his primary evidence of
citizenship. See United States v. Wiggan, 700 F.3d 1204,
1213 (9th Cir. 2012) (“[A] decision regarding probative value
must be influenced by the availability of other sources of
evidence on the point in question.”). Furthermore, the danger
of “undue delay”—the only proper Rule 403 factor that the
district court cited—was low, especially since the
government’s witnesses from the Rule 104(a) pre-trial
hearing testified again at both of the trials. Although the
government argues that it would have had to “conduct a
separate presentation during rebuttal, following the
Defendant’s offering [the birth certificate] in his case-in-
chief,” such a burden does not rise to the level of an “undue
delay” in this case, nor does it outweigh the probative value
of the birth certificate to the central issue in both cases.

    The government also argues that three additional Rule
403 factors—unfair prejudice to the government, confusion
of the issues, and misleading the jury—substantially outweigh
the probative value of the birth certificate. We disagree.14 If
the birth certificate had been admitted, the government could
have put forth evidence that it was fraudulently obtained by
Evans, as it did at the Rule 104(a) hearing; it could have also
introduced evidence detailing the procedures for obtaining a
delayed certificate of birth in Idaho. See Mah Toi v.
Brownell, 219 F.2d 642, 644 (9th Cir. 1955) (concluding that


  14
      The government does not cite to the remaining Rule 403, factors,
“wasting time” and “needlessly presenting cumulative evidence.” In any
case, these two factors carry minimal weight in the Rule 403 balancing
test here for the same reason as “undue delay.”
24                UNITED STATES V. EVANS

the “general” rule is that “‘[o]fficial (birth) certificates are
prima facie, but not conclusive, evidence of the facts stated
therein’” (quoting 32 C.J.S. Evidence § 766(b))). We fail to
see how such an approach would have been prejudicial to the
government. To alleviate any concern that the jury might
give undue weight to a single item of evidence, the court
could have given a cautionary instruction. See United States
v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004) (“Any danger
that the jury would have given undue weight to the [evidence]
could have been dealt with by a cautionary instruction.”).

     Admission of the birth certificate also would have posed
a low risk of confusing or misleading the jury. Although the
birth certificate would have increased the chances that the
jury would acquit Evans, such a result could not be attributed
to the jury being confused or misled; to find otherwise would
be to pre-judge the “correct” outcome of the trial before it
occurs. See, e.g., United States v. Crosby, 75 F.3d 1343,
1349 (9th Cir. 1996) (“‘[I]f the evidence [that someone else
committed the crime] is in truth calculated to cause the jury
to doubt, the court should not attempt to decide for the jury
that this doubt is purely speculative and fantastic but should
afford the accused every opportunity to create that doubt.’”
(quoting 1A John Henry Wigmore, Evidence in Trials at
Common Law § 139 (Tillers rev. ed. 1983)) (alterations in
original)). It is the jury, not the trial judge, that must decide
how much weight to give to Evans’s delayed birth certificate
in light of the government’s evidence suggesting that the birth
certificate is fraudulent and that Evans is not a United States
citizen. We therefore conclude that it was an abuse of
discretion for the district court to exclude Evans’s delayed
birth certificate under Rule 403.
                    UNITED STATES V. EVANS                           25

                                  E.

    We next consider whether the exclusion of the birth
certificate rose to the level of a constitutional violation. We
hold that it did.15 “The Ninth Circuit has found . . . violations
[of the constitutional right to present a defense] where the
district court incorrectly excluded evidence that was
necessary for the defendant to refute a critical element of the
prosecution’s case.” Pineda-Doval, 614 F.3d at 1033. Thus,
in Pineda-Doval, we held that it was constitutional error to
exclude evidence of particular Border Patrol policies where
the “only real factual dispute . . . was whether [the
defendant’s] driving caused the ten charged deaths,” id. at
1032, evidence of the policies “went to the question of
whether [the agent’s] conduct constituted a superseding cause
of the accident,” id., and exclusion of the evidence
“effectively denied the defendant the only argument that he
had,” id. at 1033.

    Likewise, in Stever, we held that it was constitutional
error to exclude “the sole evidence” tending to show that a
drug trafficking organization may have trespassed on the
defendant’s land, where “a major part of the attempted
defense” was that the defendant was not involved in growing
the marijuana discovered on his land. 603 F.3d at 757




  15
      Because we find that the exclusion of the birth certificate was a
violation of Evans’s Fifth Amendment right to present a defense, we do
not address his additional argument that it was a violation of his Sixth
Amendment right to have a jury determine the elements of the charges
brought against him.
26                   UNITED STATES V. EVANS

(internal quotations marks omitted).16 Here, as in Stever, the
excluded birth certificate was (1) the main piece of evidence,
(2) for the defendant’s main defense, to (3) a critical element
of the government’s case. On this ground, we conclude that
the exclusion of the birth certificate amounted to a
deprivation of Evans’s due process right to present a defense.
See United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir.
2013) (“To be sure, the Constitution protects a criminal
defendant’s right to argue a point that goes to the heart of his
defense.”).

    Having found a violation of the right to present a defense,
“we must reverse the guilty verdict unless the government
convinces us the error was harmless beyond a reasonable
doubt.” United States v. Leal-Del Carmen, 697 F.3d 964, 975
(9th Cir. 2012). The government has not met this high
burden. Its sole argument is that any error was harmless
“given the overwhelming volume and substance of the
government’s evidence in support of the Defendant’s
alienage.” But we are not persuaded beyond a reasonable
doubt that the jury would have believed this evidence rather
than believing that Evans was a United States citizen, as
suggested by his state-issued birth certificate. The question
of Evans’s alienage or citizenship was “at the very heart” of
the two cases, and his birth certificate was “the most
important evidence that the defense could present on that
topic.” Wiggan, 700 F.3d at 1215 (holding that it was an

 16
    See also Boulware, 384 F.3d at 808 (finding a due process violation
where “the state-court judgment [that had been excluded] was crucial to
Boulware’s defense on the tax counts, and the judgment directly
contradicted the government’s theory of the case”); United States v.
Whitman, 771 F.2d 1348, 1351 (9th Cir. 1985) (finding a due process
violation where the district court did not allow the defendant to rebut the
government’s evidence of motive).
                  UNITED STATES V. EVANS                     27

abuse of discretion, and not harmless, to admit grand juror
testimony). We do not know the effect that the birth
certificate would have had on the outcome of the trial,
including whether it would have affected the jurors’
assessment of Evans’s own testimony or the testimony of any
other witnesses. Indeed, the first jury to hear Evans’s § 1326
case could not reach a verdict, resulting in a mistrial. We
also find it significant that Evans exercised his right not to
testify in the case that resulted in a mistrial; we decline to
speculate on whether he would have exercised this right in the
subsequent two trials—or otherwise changed his trial
strategy—had the birth certificate been admitted. We are
therefore not convinced beyond a reasonable doubt that the
exclusion of the birth certificate was harmless.

                     IV. CONCLUSION

     We conclude that the district court erred in invoking an
inherent “gate-keeping” authority to exclude the birth
certificate pursuant to Rule 104(a) without relying on some
substantive basis outside of Rule 104(a). The court further
erred by concluding that no reasonable juror could determine
that the birth certificate was “substantively genuine,” see Fed.
R. Evid. 104(b), and by excluding the birth certificate
pursuant to Rule 403 without first assessing its probative
value when taken as a true record of Evans’s birth.
Furthermore, the district court’s exclusion of the central piece
of evidence for Evans’s main defense to a critical element of
all the charges in the two cases was a violation of Evans’s
Fifth Amendment right to present a defense, and the error was
not harmless.
28               UNITED STATES V. EVANS

   For all of the above reasons, we vacate the conviction in
No. 11-30367 and all the convictions in No. 11-30369 and
remand for a retrial of all charges in both cases.

     VACATED AND REMANDED.



GOULD, Circuit Judge, dissenting:

    I take a different view and would affirm the district court
for three reasons.

    First, Federal Rule of Evidence 104(a) literally permits a
district court to perform a threshold review of the
admissibility of evidence. Even if Rule 104(a) is limited to
the “preliminary requirements or conditions that must be
proved before a particular rule of evidence may be applied,”
United States v. Brewer, 947 F.2d 404, 409 (9th Cir. 1991),
that does not prevent the court from excluding illegitimate
evidence when excluding such evidence is the very reason
rules of evidence exist. I have no problem reaching the firm
conclusion that illegitimate evidence may permissibly be held
to be inadmissible due to its inaccurate nature. We should
make that our precedential point, rather than the approach
favored by the majority.

    I illustrate with a thought experiment or hypothetical.
Let’s say that an organized-crime czar is charged in a serious
case and wants to present “exculpatory” evidence. But the
prosecution has independent evidence that the defense
evidence is as phony as a $3 bill. It might be fraudulently
obtained (such as the legitimate document here that was
procured by fraudulent means). Or it might be the product of
                 UNITED STATES V. EVANS                     29

extortion (such as through a threat like “I will kill your
children if you don’t give me an alibi”). Or it might be the
product of bribery (such as a promise to pay a large sum for
favorable evidence). In each case, the majority’s rule would
appear to require the phony evidence to be admitted before
the jury, while merely letting the prosecution present
responsive evidence to the jury showing that it was procured
by fraud, extortion, or bribery. That would require mini-trials
within the trial, would be potentially confusing to a jury, and
is not literally required by Rule 104.

     The majority agrees that the court can condition relevance
on validity. But it concludes that in making “a preliminary
determination whether the foundation evidence is sufficient
to support a finding of fulfillment of the condition,” Fed. R.
Evid. 104(b) advisory committee’s note, a court may not
consider the underlying substance and process that led to the
issuance of a document because doing so would amount to an
improper credibility determination. Applying this rationale
in the present case, the majority concludes that “the district
court erroneously weighed the credibility of the government’s
witnesses against the credibility of the official state
document.” But the existence of the document does not at all
bear on the question of whether it was procured by fraud.
And the district court cannot be said to have made a
credibility determination when Evans presented no evidence
at the hearing to support the document’s integrity. Adopting
the rule of the majority permits a party’s old lies to insulate
new ones from challenge outside the jury’s presence.

   Here are the facts: To gain the delayed birth certificate,
Evans offered an affidavit and testimony asserting that he was
born in Idaho and was a former member of the U.S. Marine
Corps. He said under oath that he was “active in the Vietnam
30                   UNITED STATES V. EVANS

[W]ar, from 1969 through 1975” and had twelve years of
combat duty where he earned a purple heart. He said that
when he came back to the United States, he “donated [his]
next eight years of service [in the Marine Corps] for free”
until he retired. On this evidence, the Idaho judge granted the
delayed birth certificate in the non-adversarial state
proceeding and thanked Evans for his military service.

    In the federal criminal proceeding, the district court
excluded the Idaho birth certificate. It reached this correct
decision after hearing extensive evidence that Evans was not
a U.S. citizen and never served in the military, let alone in a
war zone.1 Based on this evidence and without any evidence
presented by Evans, the court fairly concluded:

         While neither party questions the validity of
         the Idaho birth certificate on its face, the

     1
      The official military historian testified that she could not verify
Evans’s service at all and “found nothing” even after searching casualty
cards of those who were injured, the master locator containing the names
of all marines, the pay entry base containing the dates that marines entered
the service, and the lineal list for commissioned officers. She found no
service number for Evans and stated that documents provided by Evans to
support his claims of military service were not official documents and
were instead “homemade” and “look like somebody made it for
them—created it for themselves.” Pictures of Evans in military uniform
did not observe the dress code and the pictures reflected a rank of Staff
Sergeant, even though Evans claimed to be an officer. The historian also
stated that Evans could not have been “retired” from the Marine Corps
because he did not allege a sufficient period of service for retirement.
And finally, she said that Evans could not have served twelve years of
active duty in Vietnam through 1975 because (1) “Marine Corps
participation drew down and ended as a large scale operation” in 1971 and
(2) the “[t]ypical tour for a Vietnam Marine was 13 months,” so twelve
years of service does not seem possible. Why should a judge require the
jury to wade through all this?
                 UNITED STATES V. EVANS                     31

       Government has unequivocally shown that the
       Idaho birth certificate is substantively
       fraudulent and that it was obtained through
       fraud of the Defendant. The [c]ourt finds that
       all three of the Government’s witnesses were
       credible and that there is no support in the
       record that would allow a reasonable person
       to determine that the Defendant’s Idaho birth
       certificate is substantively genuine.

    The majority argues that the court impermissibly made a
credibility determination, but as I have explained, this
principle should not be applied when all the evidence was on
the Government’s side and Evans had no witnesses testify at
the evidentiary hearing. The district court’s rationale quoted
above is equivalent to saying that no reasonable jury could
determine that the birth certificate was not tainted by fraud.
I conclude that the district court made a correct and
discerning judgment. There is nothing on the side of non-
fraud here, and the district court’s decision excluding the
evidence was correct.

     “Fraud” is “an instance or act of trickery or deceit
esp[ecially] when involving misrepresentation.” Webster’s
Third New International Dictionary 904 (3d ed. 1993). To
tell a lie is to “make an untrue statement with an intent to
deceive” or to “create a false or misleading impression.” Id.
at 1305. Lying is a form a fraud. And to determine whether
fraud exists, substance and process must be examined. Under
the majority rule, the district court could not perform such an
examination and evidence procured by fraud would be
admissible, leaving it to the jury to sort things out. To my
thinking, there is no evidence error at all in excluding
32                   UNITED STATES V. EVANS

fraudulently obtained evidence. I would conclude that
Federal Rule of Evidence 104(a) lets the court preliminarily
review whether a state document in the form of a belated
birth certificate was procured by fraud. That is one reason to
affirm the district court.

    Second, even if Rule 104(a) should be limited as stated by
the majority, Federal Rule of Evidence 403, relied upon by
the district court in its Rule 104 decision, gives the district
court broad power to exclude evidence if its probative value
is substantially outweighed by a danger of “unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”2
All the valid evidence presented to the state in the non-
adversarial proceeding for the birth certificate could have
been presented in Evans’s criminal trial. I would have
thought that introducing a fraudulent document would be
wasting the jury’s time and confusing the issues. It was
reasonable for the district court to exclude the delayed birth
certificate under Rule 403. See Old Chief v. United States,
519 U.S. 172, 184–85 (1997) (performing a Rule 403 analysis
requires the court to consider the probative value and
prejudice associated with the admission of evidence alongside
the probative value and prejudice associated with similar
evidentiary alternatives). And our case law confirms that
excluding an evidentiary exhibit under Rule 403 is
permissible where the relevance of the document is

 2
   Unlike the majority, I read the district court’s order as relying on Rule
104(a) and Rule 403 conjunctively instead of independently, in part
because the district court characterized its own actions as being similar to
when a court determines whether proffered scientific expert testimony or
co-conspirator statements are admissible under the rules of evidence.
Because of this, the majority’s discussion of Rule 104(a) as if standing
alone is unnecessary.
                     UNITED STATES V. EVANS                             33

predicated on a disputed factual hypothesis. Baker v. Delta
Air Lines, Inc., 6 F.3d 632, 643 (9th Cir. 1993). The standard
for abuse of discretion under United States v. Hinkson,
585 F.3d 1247 (9th Cir. 2009) (en banc), prevents us from
reversing an evidence ruling if it is not “illogical, implausible,
or without support in inferences that may be drawn from the
facts in the record.” See United States v. Redlightning,
624 F.3d 1090, 1110 (9th Cir. 2010) (citing Hinkson,
585 F.3d at 1261). Here, the district court’s decision is
logical and is supported by evidence that the certificate was
gained by fraudulent documents and false testimony. Undue
delay was likely to result from the certificate’s admission.
There was no abuse of discretion in applying Federal Rule of
Evidence 403. That is a second reason to affirm the district
court.

    Third, even if the district court abused its broad discretion
on evidence rulings despite the sound grounds for the
fraudulent birth certificate’s exclusion, I would not elevate
this to the level of constitutional error and instead would
conclude that any error was harmless.3 See United States v.
Pridgen, 518 F.3d 87, 91–92 (1st Cir. 2008) (stating the
harmless-error standard). Evans cannot claim that exclusion
of the delayed birth certificate blocked his defense because
the court let him give testimony and offer valid documents




   3
     The panel majority also should not have reached the question of
whether the exclusion of the birth certificate violated Evans’s right to
present a defense under the Fifth Amendment because Evans did not brief
that argument before the district court, and the court did not address that
issue in the challenged order. See Trigueros v. Adams, 658 F.3d 983, 988
(9th Cir. 2011) (“Ordinarily, arguments not raised before the district court
are waived on appeal.”).
34               UNITED STATES V. EVANS

supporting his claim of citizenship. See United States v.
Stever, 603 F.3d 747, 755–57 (9th Cir. 2010) (holding that
there was constitutional error where “the sole evidence” on a
major issue was erroneously excluded); see also United States
v. Pineda-Doval, 614 F.3d 1019, 1032–33 (9th Cir. 2010)
(holding that there was constitutional error where a total
exclusion of evidence wholly “denied the defendant the only
argument that he had”). The ruling, even if assumed to be
incorrect, did not create fundamental unfairness and a
resulting due-process violation in the criminal trial. See
United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir. 2013)
(holding that there was non-constitutional error). Because the
error was not constitutional, reversal is improper so long as
“it is more probable than not that the error did not materially
affect the verdict.” See United States v. Wiggan, 700 F.3d
1204, 1215 (9th Cir. 2012) (quoting Boyd v. City & Cnty. of
S.F., 576 F.3d 938, 949 (9th Cir. 2009)). Here Evans chose
not to present much of the evidence offered in state court to
obtain the delayed birth certificate. And the Government
presented overwhelming evidence, including several finger-
print matches and photographic matches to an active
immigration file and testimony from Evans’s sister
identifying him as Roman Ceniceros-Mora who was born in
Mexico. Evans’s testimony also revealed that he had
previously committed birth-certificate fraud, that he had
physical injuries consistent with those of Ceniceros-Mora,
and that he had previously signed statements using Ceniceros-
Mora’s name. The arresting officer also stated that after
Evans was given his Miranda warnings, he admitted to
having been deported before and said, “[T]ime will tell; I will
be back; I will be back.” The challenged ruling, if error, was
                    UNITED STATES V. EVANS                            35

harmless on all the evidence.4 That is a third reason to affirm
the district court.

   Hence I respectfully dissent and would affirm the district
court.




 4
    Even if I assume there was constitutional error, I would conclude that
it was harmless beyond a reasonable doubt under the standard of Chapman
v. California, 386 U.S. 18, 23–24 (1967).
