United States Court of Appeals
For the First Circuit
No. 04-1749
UNITED STATES,
Appellee,
v.
RICHARD GUERRIER, a/k/a VIGGENS GUERRIER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Jane Elizabeth Lee for appellant.
Mark S. Zuckerman, Assistant U.S. Attorney, with whom Thomas
P. Colantuono, United States Attorney, was on brief for appellee.
November 8, 2005
CAMPBELL, Senior Circuit Judge. Appellant Richard
Guerrier appeals from his conviction and sentence in the United
States District Court for the District of New Hampshire. Guerrier
entered a conditional guilty plea to the charge of unlawful re-
entry after deportation, in violation of 8 U.S.C. §§ 1326(a) and
1326(b). The plea reserved his right to appeal the court's ruling,
in limine, excluding certain evidence. His plea did not waive his
right to appeal sentencing issues. On appeal, he makes two
arguments: first, that the district court erred in ruling that he
could not put before the jury evidence regarding his claim of
derivative United States citizenship, and second, that the district
court wrongly enhanced his sentence as a result of his prior
convictions. As we conclude that neither argument has merit, we
now affirm his conviction and sentence.
I. Background
Guerrier is a citizen of Haiti. On or about May 17,
1999, he was deported to Haiti from the United States. On November
9, 2002, Guerrier was arrested in Manchester, New Hampshire on
state criminal charges. On February 5, 2003, he was indicted by a
federal grand jury on one count of re-entry after deportation, the
crime for which he was convicted and from which conviction he now
appeals. Before the scheduled commencement of his jury trial on
December 29, 2003, the government filed a motion in limine to
exclude evidence of Guerrier's claimed derivative citizenship.
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Guerrier wanted to introduce evidence that his purported biological
father, now deceased, had been a United States citizen and that
Guerrier derived citizenship from him. The government argued that,
because the requirements of two statutory provisions, 8 U.S.C. §§
1401(g) and 1409(a), had not been met, the evidence was irrelevant
to any claim by the defendant that he was not in fact an alien. It
further claimed that such evidence would be potentially misleading
or confusing to the jury.
In order for a child born out of wedlock to acquire
derivative United States citizenship through his United States
citizen father, the child must meet the requirements of both 8
U.S.C. §§ 1401(g) and 1409(a). Section 1409(a) provides that a
child born out of wedlock must show (1) that there was a blood
relationship between the child and the father established by clear
and convincing evidence; (2) that the father had the nationality of
the United States at the time of the child's birth; (3) that the
father, unless deceased, has agreed to provide financial support
for the child until the age of 18; and (4) that, while the child
was under the age of 18 years, the child was legitimated under the
law of the child's residence or domicile, the father acknowledged
paternity in writing under oath, or paternity was established by
adjudication of a competent court. In addition, in the case of a
person born outside the geographical limits of the United States
and its outlying possessions, the child born out of wedlock must
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prove under § 1401(g) as a threshold requirement that the citizen
parent was "physically present in the United States or its outlying
possessions for a period or periods totaling not less than five
years, at least two of which were after attaining the age of
fourteen years."
At the January 6, 2004 hearing on the motion in limine,
the court asked the defendant a series of questions about what the
proffered evidence would show and whether it fulfilled the
requirements set out in §§ 1401(g) and 1409(a). Guerrier responded
that he could satisfy most of the requirements of § 1409(a) but was
unable to satisfy those under § 1409(a)(4), to wit, that while
under 18 he was legitimated under the law of his residence or
domicile or that his paternity was otherwise established. Guerrier
justified his inability to establish the requirements of §
1409(a)(4) on the ground that he was older than 18 when he learned
that his father was a United States citizen. Given this
circumstance, Guerrier argued that it was a violation of due
process for him to have to satisfy any of the requirements of the
fourth element of the statute.
The district judge stated that although Guerrier's due
process argument was original, he did not believe it had merit.
The court thought it did not need to reach the due process issue,
however, since Guerrier could not, in any case, meet the separate
requirements of § 1401(g). When asked whether he had evidence to
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satisfy § 1401(g)'s requirement that Guerrier's father was
physically present in the United States or its outlying possessions
for not less than five years, defense counsel replied, "I have no
evidence of that." The court observed that
if there will be no evidence in this case that [the
purported father] was in the United States or its
outlying possessions for a period or periods totaling not
less than five years, at least two of which were after
attaining the age of 14 years, if there's simply a void
in the evidence on that point, given the government's
evidence that you are in fact an alien, I don't see how
you could be entitled to present this defense to the
jury.
The court thereupon granted the government's motion in
limine so as to exclude evidence of derivative citizenship,
stating,
I am going to grant the government's motion to exclude
evidence of derivative citizenship based on your lawyer's
detailed proffer and my rejection of his constitutional
challenge and my finding based on that proffer that there
is going to be no evidence that would permit a jury to
conclude based on the mere fact that your father is a
citizen--was a citizen of the U.S. that you are,
therefore, not an alien. And unless there's some
evidence on that point, it becomes irrelevant that your
father was a citizen of the U.S., and indeed, it may be
confusing or prejudicial to the government to admit
evidence of that irrelevant fact because it might invite
the jury to--or confuse the jury--either invite the jury
to disregard its legal responsibilities or confuse the
jury into thinking that that fact is relevant.
On the afternoon of January 6, 2004, Guerrier entered a conditional
guilty plea, reserving the right to appeal from the court's
decision to exclude evidence of derivative citizenship.
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On May 17, 2004, the court sentenced Guerrier to an
enhanced term of 27 months of imprisonment and three years of
supervised release, taking into account his prior convictions for
aggravated felonies. On May 18, 2005, before Guerrier filed his
notice of appeal with this Court, the district court issued an
arrest warrant for him for violating the terms of his supervised
release. He is charged with leaving New Hampshire without the
permission of his probation officer and failing to report to his
probation officer as required. The government informs us that
Guerrier has yet to be apprehended.
II. Discussion
As a preliminary matter, the government asks us to
dismiss this appeal on the grounds that the defendant has fled and
under the fugitive disentitlement doctrine should not be granted
relief on appeal. While we do not question that that doctrine may
be utilized where appropriate, it is discretionary. Goya Foods,
Inc. v. Unanue-Casal, 275 F.3d 124, 129 (1st Cir. 2001). We choose
not to apply the doctrine in this case, believing it preferable to
reach the merits of Guerrier's appeal. We affirm his conviction
and sentence.
A. The Motion in Limine
Generally, "[w]e review the district court's rulings
admitting or excluding evidence for abuse of discretion." Blinzler
v. Marriott Int'l, 81 F.3d 1148, 1158 (1st Cir. 1996). In
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particular, abuse of discretion is the standard of review for
decisions to exclude evidence on the ground of irrelevancy. See
United States v. Richardson, 421 F.3d 17, 37 (1st Cir. 2005);
Richards v. Relentless, Inc., 341 F.3d 35, 49 (1st Cir. 2003);
United States v. Garcia, 818 F.2d 136, 144 (1st Cir. 1987).
Regarding motions in limine, the rule is the same: "[w]e review
the denial of the motion in limine only for abuse of discretion."
JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 50 (1st Cir.
1999).1
On appeal, Guerrier shifts the grounds of his argument,
asserting that he was, in fact, legitimated under the laws of
Haiti, thus meeting at least one of the requirements of 8 U.S.C.
§1409(a)(4). His legitimation under Haitian law is said to be
shown by a copy of Guerrier's purported Haitian birth certificate.
This document was produced and discussed in the district court at
the hearing on the motion in limine, though never placed in
evidence.
1
This rule is qualified in appropriate cases, as Chief Judge
Boudin states in Cameron v. Otto Bock Orthopedia Industry, Inc., 43
F.3d 14, 16 (1st Cir. 1994), as follows: "We commonly say that we
review [evidentiary rulings] solely for an abuse of discretion.
This may be a mild overstatement since evidentiary rulings can
sometimes contain buried rulings of law reviewable de novo, or
basic findings of fact subject to clear error review." Such
qualifications are academic here since neither party disagrees that
§ 1401(g) and § 1409(a) are independent or that defendant had no
evidence to satisfy the requirements of § 1401(g).
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In the certificate, Juan Quinones, Guerrier's purported
father, identifies one "Richard" as his illegitimate son, born at
a named hospital in Port-au-Prince on June 17, 1976, to Ms. Marlene
Toureau. Appellant's attorney tells us that this document, under
Haitian law, would suffice to establish Guerrier's legitimation for
purposes of compliance with § 1409(a)(4). Appellant's attorney
explains that, at the time of the hearing on the motion in limine,
no one, including counsel, realized this fact, causing Guerrier's
attorney to concede unnecessarily that his client could not
establish compliance with clause (4).2
In response, the government does not necessarily deny
that the document, assuming it could be properly authenticated and
placed in evidence, might be adequate to establish the father's
legitimation of his illegitimate son. Instead, the government
points out that, even if so, evidence is still lacking of
compliance with § 1401(g)--the threshold requirement that
Guerrier's father be shown to have been physically present in the
United States or its possessions for a period or periods totaling
not less than five years, at least two of them after he attained
the age of 14. As the government points out, the district court
2
Guerrier does not raise on appeal the argument made in the
district court that he is deprived of due process of law if obliged
to adduce evidence of legitimation.
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based its allowance of the motion in limine primarily on the
absence of evidence establishing these facts.
We agree with the government that the district court did
not err in allowing the motion in limine, thereby excluding
Guerrier's derivative citizenship defense. Even were it now
possible, notwithstanding appellant's contrary concession in the
district court, to reopen the issue of whether Guerrier met the
legitimation (or other, alternative) requirements of § 1409(a)(4),
Guerrier has failed to adduce any evidence that his father was
physically present in the United States or its outlying possessions
for not less than five years, with two of them after attaining the
age of 14, so as to meet the threshold requirements of § 1401(g).
While conceding the absence of such evidence, Guerrier's
counsel argues that it made no sense for Guerrier to try to find it
so long as he believed that he was also unable to meet the §
1409(a)(4) requirements. Guerrier, however, had ample time to seek
out proof as to his father's compliance with § 1401(g), and there
is nothing to show, even now, that such evidence exists. His
temporary confusion over the supposed unavailability of evidence on
another point does not excuse the lack of evidence to satisfy §
1401(g). Without such evidence, his derivative citizenship defense
would necessarily fail, and the district court did not abuse its
discretion in allowing the government's motion in limine.
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B. The Sentencing Enhancement
Guerrier did not object at the district court level to
the application of a sentencing enhancement for his prior felony
convictions, so we review the decision for plain error. United
States v. Bezanson-Perkins, 390 F.3d 34, 43 (1st Cir. 2004).
Guerrier argues that the district court erred by applying the
enhancement when the prior convictions had not been found beyond a
reasonable doubt or admitted by the defendant. The district court
did not commit plain error because courts may enhance a sentence
based on prior convictions without violating the Sixth Amendment.
Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998).
United States v. Booker, 125 S. Ct. 738 (2005), did not change this
rule. Id. at 756 ("Any fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to the jury beyond a
reasonable doubt."). "Prior criminal convictions are not facts
that a jury must find beyond a reasonable doubt." United States v.
Lewis, 406 F.3d 11, 21 n.11 (1st Cir. 2005). The district court
therefore did not err in applying a sentencing enhancement for the
defendant's prior convictions.
III. Conclusion
The conviction and sentence are affirmed.
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