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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11097
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00391-MHC-RGV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES A. LOPEZ-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(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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