     Case: 18-40223      Document: 00514893043         Page: 1    Date Filed: 03/28/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                    No. 18-40223
                                                                                 FILED
                                                                           March 28, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROGELIO RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-658-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       A jury convicted Rogelio Rodriguez of being present in the United States
illegally after previous deportation. The Government’s evidence included the
circumstances of Rodriguez’s arrest, his admission to Border Patrol agents that
he is a Mexican citizen, and his record of prior deportations.                     Rodriguez
presented no evidence but sought to introduce an immigration attorney as an
expert witness to explain to the jury how immigration proceedings work and


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-40223

to testify that sometimes individuals do not know they are U.S. citizens and
are erroneously deported. The district court excluded the attorney’s testimony
as irrelevant and because it would not assist the jury given the lack of any
evidence that Rodriguez is a U.S. citizen and had been erroneously deported.
Rodriguez argues that exclusion of the attorney’s testimony violated his right
to present a complete defense.
      “[T]he Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683,
690 (1986). However, the Constitution also “permits judges to exclude evidence
that is . . . only marginally relevant or poses an undue risk of . . . confusion of
the issues.” Holmes v. South Carolina, 547 U.S. 319, 326-27 (2006) (internal
quotation and citations omitted). To prove a violation of the right to present a
complete defense, a defendant must show “the excluded evidence is
indispensable to the theory of defense, and the district court fail[ed] to provide
a rational justification for its exclusion.” United States v. Kurht, 788 F.3d 403,
421 (5th Cir. 2016) (internal quotation and citations omitted).
      Neither prong is met here. The attorney’s proposed testimony did not
relate to Rodriguez’s status and would not have refuted or raised questions
about the Government’s evidence. Thus, it was not indispensable. See id. at
422. Moreover, the district court’s justification for excluding the testimony was
rational. Due to the lack of a factual connection, the testimony was irrelevant
and not “sufficiently tied to the facts of the case that it [would] aid the jury in
resolving a factual dispute.” Id. at 420 (quoting United States v. Tucker, 345
F.3d 320, 327 (5th Cir. 2003)); see also FED. R. EVID. 401, 702. The district
court did not abuse its discretion in excluding the attorney’s testimony. See
Tucker, 345 F.3d at 332 (affirming the exclusion of expert testimony that the
district court ruled was not helpful to the jury because it was not relevant to



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                                 No. 18-40223

the facts); see also United States v. Flores-Martinez, 677 F.3d 699, 709 n.5, 712
(5th Cir. 2012) (finding no abuse of discretion in excluding defendant’s
testimony because a “defendant has no right to present irrelevant testimony”).
      Rodriguez also challenges the district court’s instructions to the jury.
However, Rodriguez presented no evidence that he was entitled to his
requested instructions. See United States v. Mata, 491 F.3d 237, 241 (5th Cir.
2007); see also United States v. Valdez-Lopez, 444 F. App’x 829, 833 (5th Cir.
2011) (finding no abuse of discretion in district court’s refusal to instruct the
jury on derivative citizenship because defendant “presented no evidence
whatsoever” that he was entitled to this defense). The district court did not
abuse its discretion in giving this Court’s pattern jury instruction. See United
States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009).
      AFFIRMED.




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