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This order is not binding precedent, except under the doctrines of law of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
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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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