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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14529
________________________
D.C. Docket No. 1:15-cr-20865-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTO JONAH SANTOS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 9, 2020)
Before ROSENBAUM, TJOFLAT and HULL, Circuit Judges.
HULL, Circuit Judge:
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After a jury trial, Justo Jonah Santos appeals his convictions for procuring
naturalization unlawfully, in violation of 18 U.S.C. § 1425(a), and misuse of
evidence of an unlawfully issued certificate of naturalization, in violation of 18
U.S.C. § 1423. On appeal, Santos challenges some of the district court’s
evidentiary rulings and also argues that the trial evidence was insufficient to
support his § 1425(a) conviction. After review and with the benefit of oral
argument, we affirm.
I. FACTUAL BACKGROUND
A. Santos’s 2007 Application for Naturalization
A native of the Dominican Republic, defendant Santos became a lawful
permanent resident of the United States in 1982, when he was 12 years old. On
July 27, 2007, Santos, then age 37, applied for naturalization.
To that end, Santos completed a N-400 Application for Naturalization
(hereinafter “Form N-400 Application” or “Application”), which is a standard form
that all individuals must submit to the government to become a naturalized citizen.
In a section titled “Good Moral Character,” Santos certified under penalty of
perjury that he had never been arrested for any reason (Question 16), had never
been charged with committing a crime (Question 17), had never been convicted of
a crime (Question 18), and had never been in jail or prison (Question 21). Santos
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did not provide any information in the section asking for more details about his
prior criminal history, including the “City, State, Country” of any arrest or charge
The Application also required Santos to report the amount of time he spent
outside the United States since becoming a lawful permanent resident in 1982,
specifically, any trips that lasted longer than 24 hours. In response, Santos listed
these six trips to the Dominican Republic and Nicaragua: (1) an 11-day trip to the
Dominican Republic in July 2003; (2) a 2-day trip to the Dominican Republic in
November 2003; (3) an 11-day trip to Nicaragua in 2004; (4) a 3-day trip to the
Dominican Republic in September 2007; (5) a 3-day trip to the Dominican
Republic in April 2007; and (6) a 15-day trip to Nicaragua in June 2007. Notably,
Santos did not report taking any trips before 2003. Santos also did not disclose
that he had previously used any other names or aliases. Santos signed his Form N-
400 Application directly below a certification that its contents were true and
correct.
B. Santos’s 2009 Interview and Re-signing of Form N-400 Application
On January 26, 2009, United States Citizenship and Immigration Services
(“USCIS”) Officer Lucas Barrios interviewed Santos. During the interview,
Officer Barrios annotated in red ink Santos’s Application with handwritten
checkmarks and comments, which included clarifications and corrections to
Santos’s answers. Officer Barrios checked in red ink each of Santos’s answers
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regarding his criminal history and wrote “claims no arrest[,] no offense[,] no DUI”
under Santos’s answers. Officer Barrios also checked in red ink each of Santos’s
answers regarding his history of trips outside the United States and wrote “claims
no other” below the list of trips. Using red ink, Officer Barrios numbered his
corrections to the application 1 through 8 and then signed the Application.
At the end of the interview, Santos again swore and certified under penalty
of perjury that the contents of the Application, including Officer Barrios’s eight
corrections, were true and correct. Santos again signed the Application in black
ink, this time below that second certification.
After the interview, Officer Barrios approved Santos’s Application, and
Santos became a naturalized citizen in February 2009. In March 2009, Santos used
his certificate of naturalization to obtain a U.S. passport.
During the naturalization process, however, Santos failed to disclose in his
Application and interview: (1) that he had a prior conviction for voluntarily killing
a person, (2) that he had traveled to the Dominican Republic in 1986 and stayed
there for over two years, and (3) that he used an alias name while in the Dominican
Republic. Specifically, in November 1986, Santos was involved in killing another
Dominican national named Jose Martinez Tavarez in New York City. Soon
thereafter, in December 1986, Santos left the United States and returned to the
Dominican Republic. In February 1988, Dominican police arrested Santos for
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Martinez’s death. At the time he was arrested, Santos was carrying a false
identification document in the name of “Junior de Jesus Abinader.” Santos then
spent one year in a Dominican prison and was eventually found guilty of
voluntarily killing Martinez, in violation of “Articles 295-321,” and 326 of the
Dominican penal code. In March 1989, Santos was released from prison and, in
April 1989, he returned to the United States.
C. Santos’s December 2015 Statement
After investigating Santos’s criminal records in the Dominican Republic and
his travel history with U.S. Customs and Border Patrol, the Department of
Homeland Security arrested Santos on December 16, 2015 on the immigration-
related charges in this case. On the day of his arrest, Santos provided a sworn
post-Miranda statement to Special Agent Mildred Laboy. Special Agent Laboy
documented Santos’s answers to her questions on a handwritten form entitled
“Record of Sworn Statement in Affidavit Form.” The statement read, in part:
Q. What is your true and complete name?
A. Justo Jonah Santos Abinader
Q. What is your date and place of birth?
A. [redacted month and day] 1970 Santiago, Dominican Republic
...
Q. Have you ever been arrested any where [sic] in the world?
A. Yes.
Q. When and why were you arrested?
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A. 1987 arrested for murder in Puerto Plata, Dominican Republic
Q. Where [sic] you convicted of murder?
A. Yes manslaughter and was given time served – a little over one
year
Q. Have you ever been arrested other than 1987[?]
A. No
Q. When did you become a U.S. citizen?
A. 2009
Q. On your Application for Naturalization form N400, page 8
Section D #15, Have you ever committed a crime or offense for
which you were not arrested and #16, Have you ever been arrested,
cited or detained by any law enforcement officer (including USCIS
or former INS and military officers) for any reason?
A. When I completed my naturalization application, I was under the
mind set [sic] that the question in the application related to the U.S.
Now that you have explained the Questions-I understand and I
should have placed a yes on Questions [sic] #16.
Q. What about Question #17, where it states Have you ever been
charged with committing any crime or offense?
A. Yes, I understand today, I should have said yes to Question 17.
Q. Question #18 on your naturalization, is Have you ever been
convicted of a crime or offense?
A. I should have said yes to Question #18 because I was given
time served for the charge. I don’t want to continue any more
questions.
At the end of the 2015 interview, Santos refused to sign the statement.
D. Indictment and First Jury Trial
In May 2016, a federal grand jury indicted Santos on one count of procuring
citizenship or naturalization unlawfully, in violation of 18 U.S.C. § 1425(a) (Count
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One), and one count of misusing evidence of citizenship or naturalization, in
violation of 18 U.S.C. § 1423 (Count Two). Santos was tried twice.
Prior to Santos’s first trial, the government filed a motion in limine about
Santos’s post-Miranda statement to Special Agent Laboy. The government
planned to elicit testimony from Special Agent Laboy that Santos admitted he was
arrested for murder and convicted of manslaughter in the Dominican Republic in
1987, and that he served over one year in prison. But the government sought to
prevent Santos from eliciting testimony about the rest of Santos’s statement to
Special Agent Laboy. Santos had said as follows: when he completed the
Application, he thought the questions about his criminal history related only to the
United States, but that after Special Agent Laboy explained the questions to him,
he understood that he should have answered yes to those questions.
Santos opposed the motion, arguing that the government was seeking to
admit the incriminating portions and exclude the exculpatory portions of his post-
Miranda statement. Santos contended that the rest of his statement should be
admitted under, inter alia, Federal Rules of Evidence 106 and 611(a) and the rule
of completeness because both portions pertained to the issue of whether Santos
acted knowingly.
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After hearing arguments, the district court granted the government’s motion
in limine, concluding, inter alia, that the exculpatory portion of Santos’s statement
was not necessary to clarify or explain the inculpatory portion.
After a five-day trial, a jury convicted Santos of both counts. The district
court imposed a total 15-month prison sentence, followed by two years of
supervised release. The district court also revoked Santos’s citizenship.
E. First Appeal and Remand
Santos appealed. In light of Maslenjak v. United States, 582 U.S. __, 137
S. Ct. 1918 (2017), the parties jointly moved this Court for summary reversal,
asserting that the district court erred in instructing the jury that the government did
not need to prove that Santos’s false statement was material to his obtaining
naturalization to convict Santos under 18 U.S.C. § 1425(a). A three-judge panel of
this Court agreed, granted the motion for summary reversal, vacated the order
revoking Santos’s citizenship, and remanded for further proceedings.
F. Second Jury Trial
After remand, Santos moved in limine to admit the entirety of his post-
Miranda statement. The government again opposed Santos’s request. After
Santos’s criminal case was transferred to another district court judge, that judge
denied Santos’s motion in limine.
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At trial, the parties stipulated that: (1) in December 1986, Santos left New
York for the Dominican Republic; (2) in February 1988, he was arrested by the
Dominican Republic police; (3) he remained in a Dominican jail until March 3,
1989; (4) he returned to the United States on April 2, 1989; and (5) while in the
Dominican Republic, he “acquired and possessed false identification documents in
the name of Junior de Jesus Abinader” and used that name.
The government introduced, among other exhibits: (1) translated copies of
Santos’s conviction records from the Dominican Republic showing that he was
charged with causing the death of Jose Martinez Tavarez, he was “found guilty of
violating Articles 295-321 of the [Dominican penal code] and 326 of the [penal
code],” and he was sentenced to one year in prison; and (2) translated portions of
the Dominican penal code, including Articles 295, 321 and 326, which the parties
stipulated were in effect in 1989. 1
1
The government introduced translated excerpts of the Dominican penal code, including:
(1) Articles 295 to 300, which cover voluntary homicide (Article 295), homicide with
premeditation or stalking (Article 296), parricide (Article 299), and infanticide (Article 300); and
(2) Articles 319 to 328, which cover involuntary homicide (Articles 319 and 320), and when
homicide is excusable (Articles 321 and 323) and self-defense (Article 328). The government’s
excerpts omitted Articles 301 to 318.
Under Article 295, “He who voluntarily kills another, is guilty of homicide.” Article 321
states, “Homicide, injuries and blows are excusable, if there was a preceding immediate
provocation, threats or severe violence by the offended party.” Article 326 provides that “[w]hen
the circumstance of excuse is proven, the punishment will be reduced” to six months to two
years in prison for a crime warranting a 30-year punishment and to three months to one year in
prison for any other crime.
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Special Agent Laboy testified, describing her 2015 arrest of Santos and his
post-Miranda statements to her. Special Agent Laboy testified, without objection,
that Santos admitted to her that he had been (1) arrested in the Dominican
Republic, (2) charged with murder but convicted of manslaughter, and (3)
sentenced to a little over one year in prison.
USCIS Officer Barrios, who conducted Santos’s naturalization interview,
did not testify at trial. Instead, Natalie Diaz, another USCIS officer with ten years
of experience, including adjudicating over one thousand applications, testified.
Officer Diaz testified generally about the process by which “adjudications officers”
approve or deny naturalization applications. According to Diaz, to obtain
naturalization, an alien files a Form N-400 application, appears for a non-waivable
interview, provides documentation and then, if approved by an adjudications
officer, is naturalized. Once signed, an alien’s Form N-400 becomes part of his
“A-file,” which the immigration authorities use to perform a background check
before conducting the interview. USCIS consults only United States databases for
this process, relying entirely on the applicant to disclose information about foreign
convictions.
During the interview, the adjudications officer places the alien under oath
and reviews the entire Form N-400 application with the alien, marking in red ink
the answers the officer confirms and any changes and corrections the alien makes
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during the interview. According to USCIS policy, the applicants complete the
Form N-400 with black ink and the adjudications officers use red ink during the
interview, so that the officers’ markings are easily distinguishable from those of
the applicants. Adjudications officers are required by the policy to use checkmarks
when they confirm answers and, at the end of the interview, the officers must have
applicants sign the Form N-400 application a second time in blue or black ink and
agree to any changes made by the adjudicators. Per the policy, if an adjudications
officer does not ask an applicant certain questions, the officer is not supposed to
mark that question on the application. The policy does not require an adjudications
officer to confirm answers when the questions clearly do not pertain to the
applicant. Providing false testimony under oath during the interview is ground for
an alien’s ineligibility to naturalize, regardless of whether the lie is about
something material to obtaining naturalization.
Over Santos’s objections based on “hearsay, confrontation, [Rule] 403,”
Officer Diaz was given Santos’s annotated Form N-400 Application and read to
the jury what Officer Barrios had written on it in red ink. Officer Diaz confirmed
that, at the interview, Santos signed the annotated Form N-400 Application,
thereby agreeing and certifying that Officer Barrios’s corrections numbered 1
through 8 were correct. Santos does not dispute that he signed the Form N-400
Application, which looks like this:
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Officer Diaz testified that Officer Barrios’s marks and signature in red ink on the
annotated Form N-400 were consistent with USCIS policy.
While Officer Diaz acknowledged that she did not adjudicate Santos’s Form
N-400 Application, she explained that USCIS’s background check into Santos’s
criminal history yielded no results. Ultimately, because Santos met the
requirements for English reading, writing, civics, physical presence and residence,
and good moral character, Officer Barrios granted his Application for
naturalization in January 2009.
Officer Diaz opined, however, that based on her review of the evidence,
Santos’s N-400 Application would have been denied if USCIS had known about
his criminal history in the Dominican Republic. When an applicant has a prior
foreign conviction, the adjudications officer will look for an equivalent crime
under United States federal law. Officer Diaz determined that the federal
equivalent of Santos’s Dominican conviction was voluntary manslaughter, which
is a crime involving moral turpitude for immigration purposes.
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Office Diaz identified several ways in which Santos’s criminal conviction in
the Dominican Republic rendered him ineligible for naturalization, including that:
(1) Santos’s re-entry into the United States in 1989 was unlawful because he was
convicted of a crime involving moral turpitude while he was outside the country,
which is ground for removal; (2) Santos was convicted of a crime involving moral
turpitude less than five years after he entered the United States, which is also
ground for removal; (3) Santos abandoned his lawful permanent resident status
when he left the United States in 1986, stayed in the Dominican Republic for over
two years, and obtained false identity there, which also made him removable; and
(4) per USCIS policies, Santos’s lies on his Form N-400 Application rendered him
ineligible for naturalization, regardless of whether the lies were material.
On cross-examination, Officer Diaz admitted that she did not know how
long Santos’s naturalization interview lasted, what questions Officer Barrios asked,
or how Santos responded to them. Officer Diaz further admitted that, because she
was not present during the interview, she did not know if Officer Barrios followed
USCIS policy and asked all the questions he checked off. Officer Diaz conceded
that her conclusions about Santos’s eligibility for naturalization were her own
opinion, but they were also “conclusion[s] that a reasonable adjudicator would
have come to.” Officer Diaz agreed that, for immigration purposes, the federal
crime of involuntary manslaughter, unlike voluntary manslaughter, was not
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automatically a crime involving moral turpitude because it required individual
analysis of the actual record of conviction.
In his defense, Santos called an immigration expert, Linda Osberg Braun, a
private immigration attorney who had previously worked for the United States
Immigration and Nationality Service. Braun testified about the procedures, and
some of the pitfalls, of the naturalization application and interview process.
According to Braun, USCIS has information officers who help applicants
during the citizenship process, but the officers are not legally trained and can give
bad advice. In addition, notaries and travel agents, some of whom are operating
scams, often help applicants fill out Form N-400s even though they are not
supposed to do so, and do not sign their names as the preparers at the bottom of the
document. When Braun is reconstructing a client’s travel history for a Form N-
400 application, she uses the client’s passport, if possible, but before September
11, 2001, it was common for stamps to be missing from passports, which made
reconstructing travel difficult. The government, on the other hand, has much better
access to the applicant’s travel history, and, if her client is confronted with an
inaccuracy, they will correct it during the interview. Braun asks her clients about
their criminal history in many different ways because her clients often do not
understand what she is asking and initially do not tell her about past arrests or
convictions.
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In Braun’s experience, there is a range of competence among USCIS
adjudicators. Adjudicators must work hard to handle a certain number of files each
day and hit their goals. Not every adjudications officer goes through every
question during the interview and, in some cases, an adjudicator’s denial of an N-
400 is determined to be incorrect in later appeals.
Contrary to Officer Diaz’s view, Braun testified that USCIS would not have
found Santos to be disqualified from naturalization had the agency known of his
travel to, and criminal history in, the Dominican Republic. Braun opined that
Santos did not abandon his lawful permanent residence status when he went to the
Dominican Republic in 1986 for over two years because he did not form the
subjective intent to do so. Braun stressed that Santos was a minor when he was
arrested in 1988, his parents remained in the United States, and Santos returned
immediately to the United States upon his release from prison and has remained in
the United States since. In Braun’s experience, a juvenile was not considered to
have abandoned his lawful permanent residence status unless his parents’ intent to
abandon their U.S. residency was imputed to him.
Braun also disputed that Santos’s Dominican conviction was for a crime of
moral turpitude. Braun said that it was unclear which statute Santos was convicted
of violating because his conviction records show he was “found guilty of violating
articles 295 through 321,” with a dash separating the two numbers. Those articles
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include crimes due to “ineptitude, recklessness, inadvertence, negligence, or
regulatory noncompliance,” not all of which are crimes involving moral turpitude.
In Braun’s opinion, Article 321 is a self-defense or “excusable offenses” statute,
the violation of which also would not be a crime involving moral turpitude. Braun
said Articles 295 and 321 were inconsistent because one appeared to be a homicide
statute and the other an excusable homicide statute, and defendants could not be
convicted of both in the United States. In short, Braun opined that there was not
enough information in the record to determine if Santos was convicted of a crime
involving moral turpitude or lacked good moral character.
Braun also said that because Santos was a minor when he was convicted, his
conviction could be treated as juvenile delinquency, which would not be a
conviction for immigration purposes. Further, because Santos had not committed
any crimes in the five years prior to his 2007 naturalization application, Braun
believed he would not be permanently disqualified from naturalizing.
On cross-examination, Braun agreed that (1) the notations in red ink on
Santos’s Form N-400 Application were “in accordance with USCIS procedures,”
(2) it was not USCIS’s responsibility to uncover undisclosed foreign convictions,
(3) the USCIS relies upon applicants to truthfully answer questions on the Form N-
400 Application, (4) the applicant has the burden to establish his eligibility for
naturalization and is required to present certified conviction records to meet that
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burden, and (5) if the applicant’s records are not clear or comprehensive, the
applicant’s Form N-400 Application would be denied. 2
After Santos rested, the government recalled Officer Diaz for rebuttal.
Among other things, Officer Diaz testified that Santos’s conviction records
indicated he was found guilty of violating only Articles 295 and 321, despite the
dash between 295 and 321, because otherwise Santos would have been found
guilty of killing his parents, his children, and all the crimes in between.” 3 Officer
Diaz explained that she believed Santos was convicted of voluntarily killing
another, under Article 295, and Article “321 is just a reduced version of that[,] . . .
because there was an excuse, the provocation.” Officer Diaz did not believe that
Article 321 constituted an involuntary homicide statute because Dominican law
has a separate self-defense statute. Officer Diaz concluded the equivalent federal
crime in the United States was voluntary manslaughter because Article 295
pertained to the voluntary killing of another. Officer Diaz said she did not need
more information about Santos’s Dominican Republic convictions to determine he
was convicted of a crime involving moral turpitude.
2
Santos also called Yamil Martin, an investigator for the Federal Public Defender’s
Office, who testified that he went to Officer Barrios’s residence to interview him, but Officer
Barrios would not cooperate and closed the door on the investigator.
3
See supra note 1.
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In addition, Officer Diaz said the fact that Santos was a juvenile when he left
the United States in 1986 did not change her opinion that he abandoned his lawful
permanent residence status because: (1) juveniles, like adults, can abandon their
status; (2) Santos killed the victim in 1986 and, four days later, left the United
States for the Dominican Republic and stayed for over two years; and (3) Santos
acquired false identification and used an alias in the Dominican Republic in order
to remain there undetected. Officer Diaz maintained that she would have
concluded that Santos lacked good moral character to be naturalized because he
omitted information on his Form N-400 Application, as marked by Officer Barrios
and signed under oath by Santos a second time, and the content and substance of
those omissions all related to Santos’s three years in the Dominican Republic and
“the reason was he was in jail for having killed someone.”
The district court denied Santos’s motions for a judgment of acquittal. The
jury found Santos guilty on both counts. The district court imposed concurrent
sentences of time served, plus two years’ supervised release.4 Upon the
government’s motion, the district court revoked Santos’s citizenship as a result of
his convictions.
4
According to the Federal Bureau of Prison’s website, Santos was released from prison
on October 30, 2018, and is currently serving his term of supervised release.
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II. SANTOS’S FORM N-400 APPLICATION
On appeal, Santos argues that the district court erred in admitting the Form
N-400 Application with Officer Barrios’s marks in red ink because it was hearsay
and not subject to any hearsay exception.5 We refer to the Form N-400
Application with Officer Barrios’s red marks as the “annotated Form N-400”
Application. As explained below, the annotated Form N-400 was (1) admissible
non-hearsay as an adopted admission of a party-opponent under Federal Rule of
Evidence 801, and, (2) alternatively, was properly admitted under the public record
hearsay exception in Federal Rule of Evidence 803.
A. Rule 801(d) Nonhearsay
The Federal Rules of Evidence generally prohibit the admission of hearsay
statements at trial. Fed. R. Evid. 802. “Hearsay is a statement, other than one
made by a declarant while testifying at trial, offered in evidence to prove the truth
of the matter asserted.” United States v. Rivera, 780 F.3d 1084, 1092 (11th Cir.
2015); see Fed. R. Evid. 801(c).
However, Rule 801(d) identifies statements that are “not hearsay” and thus
not prohibited by the hearsay rule. Fed. R. Evid. 801(d). Under Rule
5
This Court reviews a district court’s evidentiary rulings for an abuse of discretion.
United States v. Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009). “An abuse of discretion occurs if
the district court applies an incorrect legal standard or makes findings of fact that are clearly
erroneous.” Id.
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801(d)(2)(A), an opposing party’s own out-of-court statements that are offered
against him are not hearsay. Id. Likewise, under Rule 801(d)(2)(B), a statement is
not hearsay if it is offered against a party and the party manifested that he adopted
the statement or believed it to be true. Fed. R. Evid. 801(d)(2)(B). To be
admissible as an adoptive admission under Rule 801(d)(2)(B), the statement:
(1) “must be such that an innocent defendant would normally be induced to
respond,” and (2) “there must be sufficient foundational facts from which the jury
could infer that the defendant heard, understood, and acquiesced in the statement.”
United States v. Joshi, 896 F.2d 1303, 1311-12 (11th Cir. 1990) (quotation marks
omitted) (concluding defendant’s nod of the head in response to codefendant’s
statement that the defendant was a partner in a drug importation scheme was an
adoptive admission).
The first criterion is particularly relevant when the defendant is alleged to
have acquiesced in another’s statement by his silence. Id.; see, e.g., United States
v. Carter, 760 F.2d 1568, 1579-80 (11th Cir. 1985) (involving defendants who
remained silent in the back seat of a car while the declarant in the front seat made
statements implicating them in a drug smuggling scheme). Where the defendant
has responded affirmatively to the statement, however, the focus is on the second
criterion. Joshi, 896 F.2d at 1311-12 (explaining that because the defendant was
alleged to have responded to the statement by nodding, the first requirement was
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“not at issue here”). Generally, the district court must make a preliminary finding
that the government’s evidence is sufficient to meet these criteria. Id. at 1312.
However, if the district court failed to make the preliminary finding, this Court
may affirm so long as there is sufficient evidence in the record to support a
reasonable jury’s finding that the criteria were satisfied. Id.
Here, Officer Barrios’s red marks on Santos’s annotated Form N-400
Application are nonhearsay under Rule 801(d)(2)(B) as an adopted statement by an
opposing party. The evidence of adoption is much clearer here than in Joshi and
Carter, as Santos’s case did not involve either silence or arguably ambiguous
conduct from which a jury must reasonably infer the defendant’s knowing
acquiescence in the declarant’s statement. Rather, Santos expressly adopted
Officer Barrios’s corrections in red ink on the Form N-400 by, at the end of the
interview, signing Part 13 of the application, swearing or affirming under penalty
of perjury that the annotated Form N-400 with those corrections was “true and
correct to the best of [his] knowledge and belief.”
Notably, Santos never disputed that his signature appears on the annotated
Form N-400 Application and did not raise any objection to the authenticity of that
document. Further, Santos was able to read and write in English, as evidenced by
his passing the reading and writing test Officer Barrios administered. Nothing in
the record suggests Santos did not understand Officer Barrios’s corrections in red
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ink when he signed the Application. Under the circumstances, Santos’s adoption
of Officer Barrios’s corrections in red ink is unequivocal. See United States v.
Garcia, 452 F.3d 36, 39-40 (1st Cir. 2006) (concluding defendant’s signature on an
affidavit swearing that a handwritten statement by an INS officer was “true and
correct” and a “full, true, and correct record of the affiant’s interrogation by the
INS officer” signaled the defendant’s adoption of the handwritten statement);
McQueeney v. Wilmington Trust Co., 779 F.2d 916, 930 (3d Cir. 1985)
(concluding plaintiff’s signature on his Seaman’s Service Records, filled out by
those who employed him, was an “unequivocal adoption” of the documents’
contents for purposes of Rule 801(d)(2)(B)); United States v. Johnson, 529 F.2d
581, 584 (8th Cir. 1976) (concluding an interview statement written by
investigating agent and then read and signed by the defendant was “not hearsay”
under Rule 801(d)(2)(B)).
A reasonable jury could readily conclude from the government’s evidence
that Santos saw, understood, and acquiesced in Officer Barrios’s statements.
Accordingly, the district court did not abuse its discretion in admitting the
annotated Form N-400 Application as nonhearsay under Rule 801(d)(2)(B).
B. Rule 803(8) Public Records Exception
Under the Federal Rules of Evidence, hearsay is also admissible if it falls
into one of the hearsay exceptions. United States v. Baker, 432 F.3d 1189, 1203
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(11th Cir. 2005) (“Hearsay is inadmissible unless the statement is not hearsay as
provided by Rule 801(d) or falls into one of the hearsay exceptions.”). As relevant
here, a public record or statement of a public office is admissible under an
exception to the hearsay rule. Fed. R. Evid. 803(8). In particular, a public record
or statement of a public office is admissible if it, inter alia, sets out: (1) “a matter
observed while under a legal duty to report, but not including, in a criminal case, a
matter observed by law-enforcement personnel,” and (2) the party opposing
admission “does not show that the source of information or other circumstances
indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(A)-(B).
On appeal, Santos does not contend that he has shown that “the source of
information or other circumstances indicate a lack of trustworthiness” under Rule
803(8)(B). Therefore, our analysis addresses only whether the annotated Form N-
400 Application at issue sets out “a matter observed while under a legal duty to
report” under Rule 803(8)(A)(ii).
This Court has not addressed whether an annotated Form N-400
naturalization application falls within the public records exception to the hearsay
rule. We have held, however, that “routinely and mechanically kept [immigration]
records” that are maintained in an alien’s A-file may be admitted into evidence
under the public records exception. United States v. Agustino-Hernandez, 14 F.3d
42, 43 (11th Cir. 1994) (involving portions of alien’s A-file, including warrants of
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deportation, an order to show cause, and a Form I-194 indicating the alien had
previously been warned of the penalties of reentry); see also United States v.
Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010) (involving multiple I-213 Record
of Deportable/Inadmissable Alien forms completed by a Customs and Border
Patrol agent after interviewing aliens).
In concluding that the admission of several Form I-213s did not violate the
rules of evidence, the Carballo Court emphasized that: (1) the information recorded
on the Form I-213s was “routine biographical information”; (2) the Form I-213s
were “routinely completed by Customs and Border Patrol agents in the course of
their non-adversarial duties, not in the course of preparation for a criminal
prosecution”; (3) the agents collected the information “from all aliens upon
entering the United States” and filled out the Form I-213 “for all aliens who are
unable to produce documentation showing that they have lawfully entered the
United States”; and (4) “the I-213 forms are routinely prepared and became a
permanent part of an alien’s A-File.” Id. at 1226.6
6
The first page of Form I-213 covers personal information, including: (1) the alien’s full
name, (2) country of citizenship, (3) passport number and country of issue, (4) U.S. address;
(5) date, place, time and manner of last entry and the location where passenger boarded; (6) date
and place of birth, (7) visa or social security number, and date of issuance; (8) sex, complexion,
and color of hair and eyes, (9) height and weight, (10) occupation, (11) scars and marks,
(12) FBI number, (13) marital status, (14) details of apprehension, including method, location,
date, and time, (15) status at entry and status when found, (16) length of time illegally in the
United States, (17) immigration record, (18) criminal record, (19) name, address and nationality
of spouse, (20) number and nationality of minor children, (21) name, nationality and address of
father and mother, (22) monies due/property in the United States not in the alien’s immediate
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Using similar reasoning, the First Circuit concluded that Immigration Form
445, similar to Form N-400 but used later in the naturalization process, falls within
Rule 803(8)’s public records exception. United States v. Phoeun Lang, 672 F.3d
17, 23-25 (1st Cir. 2012). An approved naturalization applicant must complete a
Form N-445 after his interview, but before his naturalization ceremony. Id. at 20,
22. Form N-445 asks a series of questions, including whether the applicant has
been arrested, charged, or convicted of a crime, to confirm the applicant’s
continuing good moral character between the naturalization interview and the
naturalization ceremony. Id. at 20. As with the Form N-400 application, a USCIS
officer “must verbally verify with the applicant the accuracy of the applicant’s
written answers,” making red checkmarks on the form per USCIS’s policy, and the
annotated Form N-445 is kept in the applicant’s A-file. Id. at 22.
In Lang, before the First Circuit, the defendant argued that the USCIS
officer who interviewed him and marked his Form N-445 was a “law enforcement
officer” and therefore his annotations fell within the “law enforcement exception”
in Rule 803(8), “which precludes admission of public records in criminal cases for
matters observed by police officers and other law enforcement personnel.” Id. at
24. The First Circuit assumed, without deciding, that the USCIS officer was a law
possession, (23) name and address of current or last U.S. employer, and (24) type of
employment, salary, and dates of employment.
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enforcement officer but concluded that the law enforcement exception nonetheless
did not apply because the “case concerns the introduction of documents related to
an administrative proceeding for purposes of determining qualifications for
naturalization,” not a criminal proceeding. Id. As such, the Form N-445 is not
created primarily for use in court, but rather for the administration of the agency’s
affairs. Id. at 24-25.
The First Circuit in Lang also rejected the notion that the Form N-445 was
“produced in an ‘adversarial setting’” that would render the USCIS officer’s
observations unreliable, instead concluding that “form N-445 is ‘ministerial, non-
adversarial information.’” Id. at 25. While acknowledging that “criminal charges
can result, if as is the case here, false evidence is elicited on the form,” the First
Circuit determined that “criminal charges are not the primary purpose of the
administrative proceedings surrounding an application for naturalization.” Id.
Here, in light of our own precedent addressing other immigration forms kept
in an alien’s A-file and the First Circuit’s persuasive reasoning as to Form N-445,
we conclude that Santos’s annotated Form N-400 Application falls within Rule
803(8)’s public records exception to the hearsay rule. Like the Form I-213 in
Caraballo and the Form I-194 and warrants of deportation in Agustino-Hernandez,
a Form N-400 is part of an alien’s A-file. All applicants for naturalization must
participate in an interview under oath with an USCIS adjudicator to be naturalized.
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And, during the naturalization interview, the adjudicator, in accordance with
USCIS policy and training, reviews the information in the Form N-400 with the
applicant, placing a checkmark next to each confirmed answer and noting any
corrections using red ink. At the conclusion of the interview, every applicant must
again sign the annotated Form N-400 application in either blue or black ink,
certifying under penalty of perjury the accuracy of its contents, including the
adjudicator’s notations in red ink.7
In other words, USCIS adjudicators routinely complete N-400 forms during
the course of their non-adversarial duties of processing applications for
naturalization. While a Form N-400 may be introduced in a criminal prosecution,
as Santos’s application was here, that is not the form’s primary purpose. Rather,
the primary purpose of the Form N-400 is to aid USCIS in obtaining and verifying
the ministerial information the agency needs to administer the naturalization
process.
Santos argues that completion of the Form N-400 application during the
naturalization interview cannot be “routine and mechanical” for purposes of Rule
803(8) because “[e]ach interview differs based upon the individual applicant and
7
Both Officer Diaz and defense expert Braun testified that Officer Barrios annotated
Santos’s Form N-400 and had Santos sign the form again in compliance with USCIS’s policy.
Santos has never questioned the authenticity of the annotated Form N-400 Application
introduced into evidence in his case.
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adjudicator,” which will result in different notations on the form. The fact that
each applicant may provide different information to an officer during an interview
does not make the process of completing the form non-routine. If that were so, this
Court would not have concluded in Caraballo that a Form I-213, which also is
completed by an immigration officer based on an interview, is a “routinely and
mechanically kept” immigration record for purposes of Rule 803(8). See
Caraballo, 595 F.3d at 1226. What matters here is that, in all naturalization
interviews, USCIS adjudicators follow the same standard procedure of placing a
checkmark in red ink next to each verified answer and noting in red ink any
corrections the applicant makes to an answer and then having the applicant sign the
application swearing under penalty of perjury that the contents of the Form N-400
with the adjudicator’s corrections in red ink is true and correct.
Having determined that Santos’s annotated Form N-400 Application was
properly admitted, we turn to Santos’s alternative argument that the form’s
admission violated his Sixth Amendment right to confront Officer Barrios.
C. Confrontation Clause Claim
The Sixth Amendment protects a criminal defendant’s right to confront the
witnesses against him. U.S. Const. amend VI. In Crawford v. Washington, the
Supreme Court held that the Sixth Amendment prohibits the introduction of out-of-
court testimonial statements unless the declarant is unavailable to testify, and the
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defendant had a prior opportunity to cross-examine the declarant. Crawford, 541
U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). In Crawford, the Supreme Court
“declined to define what a ‘testimonial’ statement is” but “observe[d] generally
that business records are ‘statements that by their nature were not testimonial.’”
Caraballo, 595 F.3d at 1227 (quoting Crawford, 541 U.S. at 52, 56, 124 S. Ct. at
1354) (citations omitted). The Crawford Court, although unwilling to provide a
comprehensive definition, identified the “core class” of testimonial statements to
include extrajudicial statements contained in formalized testimonial materials,
“such as affidavits, depositions, prior testimony, or confessions,” as well as
“statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a
later trial.” Id. at 51-52, 124 S. Ct. at 1364 (quotation marks omitted). 8
Since Crawford, the Supreme Court has distinguished between
nontestimonial and testimonial statements by focusing on “the primary purpose” of
the questioning that elicited the out-of-court statement, as follows:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
8
This Court reviews “de novo the question of whether hearsay statements are testimonial
for purposes of the Confrontation Clause.” United States v. Lamons, 532 F.3d 1251, 1261 n.15
(11th Cir. 2008).
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establish or prove past events potentially relevant to later criminal
prosecution.
Davis v. Washington, 547 U.S. 813, 822, 828, 126 S. Ct. 2266, 2273-74, 2277
(2006) (emphasis added) (concluding that victim’s statements in response to a 911
operator’s questions were nontestimonial because the purpose of the questions was
to resolve an ongoing emergency); see also Melendez-Diaz v. Massachusetts, 557
U.S. 305, 321-24, 129 S. Ct. 2527, 2538-39 (2009) (concluding that a forensic
analyst’s sworn certificates given to police showing the results of drug testing were
testimonial statements because the sole purpose of the certificates was to provide
evidence to be used at trial). In Davis, the Supreme Court further clarified that a
nontestimonial statement, “while subject to traditional limitations upon hearsay
evidence, is not subject to the Confrontation Clause.” Davis, 547 U.S. at 821, 126
S. Ct. at 2273.
In Caraballo, this Court applied the “primary purpose” analysis of Crawford,
Davis, and Melendez-Diaz and determined that the biographical information in I-
213 forms was nontestimonial and thus not barred by the Confrontation Clause.
595 F.3d at 1219, 1226-29. The Caraballo Court emphasized that Form I-213
recorded “basic biographical information,” that Customs and Border Patrol agents
“routinely requested from every alien entering the United States” during an
interview in order to administer immigration laws and policies, and that the form
was “primarily used as a record by the INS for the purpose of tracking the entry of
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aliens into the United States.” Id. at 1228-29. The Court explained that “[i]t is of
little moment that an incidental or secondary use of the interviews underlying the I-
213 forms actually furthered a prosecution.” Id. at 1229; see also United States v.
Cantellano, 430 F.3d 1142, 1145 (11th Cir. 2005) (concluding that a deportation
warrant is nontestimonial in nature and not subject to confrontation, because it “is
recorded routinely and not in preparation for a criminal trial. It records facts about
where, when, and how a deportee left the country”).
Likewise, the First Circuit, in Lang, determined that a Form N-445,
annotated by an adjudications officer, was nontestimonial and thus not subject to
the Confrontation Clause either. 672 F.3d at 22-23. The First Circuit stressed that
that the “N-445 form, like all others similarly generated,” was “a non-testimonial
public record produced as a matter of administrative routine, for the primary
purpose of determining [the applicant’s] eligibility for naturalization.” Id.
Here, we conclude that Santos’s annotated Form N-400 Application, like the
annotated Form N-445 in Lang, is a “nontestimonial public record produced as a
matter of administrative routine” and “for the primary purpose of determining
[Santos’s] eligibility for naturalization.” See id. at 22. That is, the circumstances
of the naturalization interview objectively indicate that the primary purpose of the
interview is to review the Form N-400 with the applicant and verify the applicant’s
answers so that a determination can be made as to the applicant’s eligibility for
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naturalization. See Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74. Indeed, all
naturalization applicants are required complete and sign a Form N-400
Application, attend a naturalization interview, and then USCIS adjudications
officers perform the same verification process consistent with USCIS’s protocol in
every naturalization interview. USCIS officers are not conducting the interviews
because they suspect the applicants of crimes and are not making the red marks on
the Form N-400s for later criminal prosecution.9
Because Officer Barrios’s red marks in Santos’s annotated Form N-400
Application are not testimonial, they are not governed by Crawford, and their
admission cannot violate the Confrontation Clause. See Davis, 547 U.S. at 821,
126 S. Ct. at 2273 (stating that the Confrontation Clause does not apply to non-
testimonial hearsay).10
9
Santos cites United States v. Charles, 722 F.3d 1319 (11th Cir. 2013), but that decision
has no application here. In Charles, we concluded that an interpreter’s translation of the
defendant’s statements during an interrogation by a U.S. Customs and Border Patrol agent were
testimonial, and we noted that the defendant was detained and suspected of a crime. 722 F.3d at
1323-24. Because the interpreter’s statements were testimonial, the defendant had a Sixth
Amendment right to confront the interpreter. Id. at 1325. In contrast, there was no interpreter
present during Santos’s naturalization interview, and Officer Barrios’s red marks on Santos’s
Form N-400 Application reflect Santos’s responses made in English.
10
As a separate and independent basis for affirmance, even assuming arguendo that
Officer Barrios’s red marks (making corrections based on Santos’s responses) were testimonial,
Santos adopted them as true and correct, which eliminates any Confrontation Clause problem.
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III. SANTOS’S POST-MIRANDA STATEMENT
Santos argues that the district court abused its discretion and misapplied the
rule of completeness when it permitted the government to elicit testimony from
Special Agent Laboy about the inculpatory portion of Santos’s post-Miranda
statement to her but prohibited Santos from eliciting further testimony about the
exculpatory portion of his statement.
Under the common law rule of completeness, an opponent against whom a
part of an utterance is admitted may complement it by submitting the remainder, in
order to give the jury a complete understanding of the “total tenor and effect of the
utterance.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72, 109 S. Ct. 439,
451 (1988) (quotation marks omitted). As partially codified in Federal Rule of
Evidence 106, the rule states: “If a party introduces all or part of a writing or
recorded statement, an adverse party may require the introduction, at that time, of
any other part—or any other writing or recorded statement—that in fairness ought
to be considered at the same time.” Fed. R. Evid. 106. Rule 106 “does not
automatically make the entire document admissible” once one portion has been
introduced. United States v. Pendas-Martinez, 845 F.2d 938, 944 (11th Cir. 1988).
Rather, Rule 106 “permits introduction only of additional material that is relevant
and is necessary to qualify, explain, or place into context the portion already
introduced.” United States v. Simms, 385 F.3d 1347, 1359 (11th Cir. 2004)
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(quotation marks omitted). Although Rule 106 on its face applies only to written
or recorded statements, this Court has extended the rule to the exculpatory portions
of a criminal defendant’s post-arrest oral statements. See United States v. Range,
94 F.3d 614, 620-21 (11th Cir. 1996).
Here, we conclude that the later exculpatory part of Santos’s statement does
not explain or clarify the earlier inculpatory part. In the first part, Santos admitted
to Special Agent Laboy in 2015 that he was arrested, convicted, and imprisoned for
manslaughter in the Dominican Republic in the 1980s. This admission proved the
fact of Santos’s prior conviction. That is a separate and different topic from why
Santos failed to mention his criminal history both on his Form N-400 Application
in 2007 and during his naturalization interview in 2009.
We recognize that the government did not necessarily need this admission to
prove Santos’s criminal history given that the government introduced Santos’s
actual criminal records from the Dominican Republic.11 That, however,
underscores why the rest of the statement was about a separate topic and was not
necessary to explain or clarify the earlier inculpatory part. We thus cannot say that
the district court abused its discretion in admitting the first part of Santos’s
statement and excluding the rest.
11
The only additional information in the admission is that Santos was charged with
“murder” but ultimately convicted of only “manslaughter.” The criminal records do not use this
terminology.
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IV. SUFFICIENCY OF THE EVIDENCE AS TO COUNT ONE
On appeal, Santos challenges the sufficiency of the evidence as to only his
conviction on Count One, unlawfully procuring naturalization, in violation of 18
U.S.C. § 1425(a).12 A person violates § 1425(a) when he “knowingly procures or
attempts to procure, contrary to law, the naturalization of any person, or
documentary or other evidence of naturalization or of citizenship.” 18 U.S.C.
§ 1425(a). When a naturalized citizen is convicted under § 1425(a), his citizenship
is automatically revoked. 8 U.S.C. § 1451(e); see Maslenjak, 582 U.S. at __, 137
S. Ct. at 1923. The word “procures” in the statute means “obtains,” and the phrase
“contrary to law” “specifies how a person must procure naturalization so as to run
afoul of the statute: in contravention of the law—or, in a word, illegally.” Id. at __,
137 U.S. at 1924-25.
In Maslenjak, the Supreme Court held that § 1425(a)’s “contrary to law”
element requires not only that the defendant committed some illegal act in the
course of procuring naturalization, but that the defendant’s illegal act “played some
role in” the acquisition of naturalization. Id. at __, 137 S. Ct. at 1923, 1925. When
the government claims that the defendant procured naturalization illegally by
12
This Court reviews de novo challenges to the sufficiency of the evidence. United States
v. Wilchcombe, 838 F.3d 1179, 1188 (11th Cir. 2016). “The evidence, viewed in the light most
favorable to the government, must be such that a reasonable trier of fact could find that the
evidence established guilt beyond a reasonable doubt.” Id. (quotation marks omitted). When the
government relied upon circumstantial evidence, reasonable inferences, but not speculation, will
support the conviction. United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015).
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making a false statement under oath in a naturalization proceeding, in violation of
18 U.S.C. § 1015(1), 13 the government must “demonstrate[e] that the defendant
lied about facts that would have mattered to an immigration official, because they
would have justified denying naturalization or would predictably have led to other
facts warranting that result.” Id. at __, 137 S. Ct. at 1923. In other words, the
materiality of the false statement is an element of the offense. See id. at __, 137 S.
Ct. at 1923-24. Under Maslenjak, a person violates § 1425(a) if he: (1) knowingly
makes; (2) a false statement under oath in a naturalization proceeding (in violation
of § 1015(1)); (3) that “played some role in” (i.e., was material to); (4) the person’s
procuring naturalization. See id. at __, 137 S. Ct. at 1926-27.
Here, as in Maslenjak, the government’s theory was that Santos procured
naturalization “contrary to law” by knowingly making false statements in his Form
N-400 Application. While Santos does not dispute that he procured naturalization
and that, in doing so, he made false statements under oath in his Form N-400, he
nevertheless argues that the government’s trial evidence was insufficient to prove
beyond a reasonable doubt: (1) that he knowingly made these false statements, or
(2) that his false statements were “material” to his procuring naturalization. We
address each argument in turn.
13
A person violates § 1015(a), when he “knowingly makes any false statement under
oath, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the
United States relating to naturalization, citizenship, or registry of aliens.” 18 U.S.C. § 1015(a).
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A. Mens Rea Element – Knowingly Made
Here, the nature of the false statements themselves strongly indicates they
were knowingly made. Indeed, Santos does not dispute that in his Form N-400
Application, he falsely stated: (1) in Part 1C, that he had not used another name,
when in fact he had used the name Junior de Jesus Abinader and obtained a false
identification card in that name in the Dominican Republic; (2) in Part 7C, that he
had not taken any trips outside the United States before 2003, when in fact he had
travelled to the Dominican Republic in December 1986 and had not returned to the
United States until April 1989; and (3) in Part 10D, that he had never been arrested
(Question 16), charged with committing a crime (Question 17), convicted of a
crime (Question 18), and been in jail or prison (Question 21), when in fact he had
been arrested, charged, and convicted of voluntarily killing Jose Martinez Tavarez
in the Dominican Republic in 1988 and had served one year in prison. The facts
Santos omitted are not minor details, and all are connected to this one episode in
Santos’s life when he killed Jose Martinez Tavarez. These are not the kind of facts
a person could easily forget, but they are the kind of facts an applicant for
naturalization might worry would imperil his application.
In fact, the government presented evidence that Santos himself twice signed
the Form N-400 Application with these false statements in it. Santos signed in Part
11 of the Form N-400 on July 26, 2007, when he submitted the application and
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then in Part 13 on January 26, 2009, when Officer Barrios conducted his
naturalization interview. Each time, Santos swore or affirmed under penalty of
perjury that the contents of the Form N-400 containing these false statements was
true and correct. Further, a reasonable jury could readily conclude Santos himself
prepared the Form N-400 Application because Santos does not deny signing it and
the Application did not identify (in Part 12) any other person who prepared the
form on Santos’s behalf.
No evidence was presented at trial to suggest Santos did not understand the
questions or answers in the Form N-400 when he filled it out or each time he
signed it. At a minimum, absent some other evidence, the jury could reasonably
infer that Santos was fully aware of his own travel history, criminal history, and
use of an alias in the Dominican Republic, when he filled out and signed his Form
N-400 application. Moreover, because the Form N-400 asked for the “Country” of
any arrests and charges, the jury reasonably could have rejected the idea that
Santos did not know he needed to report his foreign criminal history. In addition,
even if Santos omitted his foreign criminal history because he thought the form did
not ask for it, that does not explain why Santos also omitted his travel to and from,
and multi-year stay in, the Dominican Republic or the alias he used while in the
Dominican Republic. The fact that the other two omitted pieces of information are
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connected to his undisclosed criminal history supports a reasonable inference that
all three omissions were intentional.
All of these circumstances together are more than sufficient to support a
jury’s finding that Santos knowingly made the false statements in his Form N-400
Application.
B. Materiality Element
As to materiality, under Maslenjak, the government must show a “means-
end connection” or “causal influence,” between the defendant’s false statement
made under oath and his naturalization. Id. at __, 137 S. Ct. at 1923, 1925-27.
This is an objective inquiry focusing on whether “knowledge of the real facts
would have affected a reasonable government official properly applying
naturalization law.” Id. at __, __, 137 S. Ct. at 1923, 1928.
The Supreme Court set forth two ways this causal link could be shown.
Under the first way, which we will refer to as the disqualifying-fact theory, the real
facts “are themselves disqualifying” such that “the official would have promptly
denied [the] application” for citizenship had they been known. Id. at __, 137 S. Ct.
at 1928. Under this approach, “there is an obvious causal link between the
defendant’s lie and [his] procurement of citizenship.” Id. As examples, the
Supreme Court cited an applicant who does not disclose travel history disrupting
the period of physical presence in the United States or who lies about having a
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conviction for an aggravated felony and thus fails to establish good moral
character, both of which are statutorily required, objective legal criteria for
citizenship. Id. at __, 137 S. Ct. at 1928-29 (“[W]hen the defendant misrepresents
facts that the law deems incompatible with citizenship, her lie must have played a
role in her naturalization.”).
Under the second way, called the “investigation-based theory,” the real facts,
while not themselves disqualifying, “could have led” immigration officials to
discover other disqualifying facts that would have justified denying the citizenship
application. Id. at __, 137 S. Ct. at 1929 (quotation marks omitted). When relying
on the investigation-based theory, the government “must make a two-part
showing”: (1) “that the misrepresented fact was sufficiently relevant to one or
another naturalization criterion that it would have prompted reasonable officials,
seeking only evidence concerning citizenship qualifications, to undertake further
investigation”; and (2) “that the investigation would predictably,” but not
definitively, “have disclosed some legal disqualification.” Id. (quotation marks
omitted). However, even if the government meets this burden, the defendant
retains a complete defense to § 1425(a) by showing qualification for citizenship.
Id. at __, 137 S. Ct. at 1930.
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Here, although the government relied on both methods to prove the
materiality of Santos’s false statements to his eligibility for naturalization, either
method is sufficient to sustain Santos’s conviction.
C. Disqualifying-Fact Theory
Officer Diaz testified that a reasonable USCIS adjudications officer,
knowing the real facts, would have deemed Santos ineligible for citizenship and
denied his naturalization application. In that regard, to be statutorily eligible for
naturalization, a person must have been “lawfully admitted for permanent
residence in the United States.” 8 U.S.C. § 1427(a). Officer Diaz offered three
different reasons why Santos would have been deemed not “lawfully admitted” at
the time of his application. First, when Santos reentered the United States in 1989,
he had been convicted of a crime involving moral turpitude, which rendered him
removable under 8 U.S.C. §§ 1182(a)(2)(A)(i)(I) and 1229a(e)(2). In addition,
because Santos committed a crime involving moral turpitude in 1986, within five
years of his original admission to the United States in 1982, he also was removable
under 8 U.S.C. §§ 1227(a)(2)(A)(i) and 1229a(e)(2). Finally, Santos was not
“lawfully admitted” in 1989 because Santos had abandoned his lawful permanent
residence status when he left the United States and lived in the Dominican
Republic for over two years using an alias, which made him removable under 8
U.S.C. § 1101(a)(13)(C)(i).
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According to Officer Diaz, another ground for denying Santos naturalization
was that he lacked “good moral character.” To be statutorily eligible for
naturalization, a person must have been, and still be, “a person of good moral
character.” 8 U.S.C. § 1427(a). An applicant lacks good moral character if he
gives “false testimony for the purpose of obtaining” naturalization. 8 U.S.C.
§ 1101(f)(6). Officer Diaz opined that Santos would have been deemed lacking in
good moral character because he provided false oral testimony about his travel,
criminal history, and use of an alias during his naturalization interview with
Officer Barrios.
D. Investigation-Based Theory
As for the alternative investigation-based theory, Officer Diaz testified that
USCIS relies on the naturalization applicant to report his foreign criminal history
in the Form N-400 and that disclosure of a prior conviction can lead to further
investigation. Officer Diaz said that if Santos had answered “yes” instead of “no”
to any of the Form N-400 questions about his criminal history, the adjudications
officer would have investigated the nature and disposition of his crime, including
asking Santos for documents relating to his criminal proceedings. In other words,
Santos’s proper disclosure of his prior arrest, conviction, or one-year sentence in
the Dominican Republic for voluntarily killing Jose Martinez Tavarez would have
prompted a reasonable USCIS adjudicator to investigate further and that
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investigation predictably would have uncovered one or more legal disqualifications
from naturalization. By failing to disclose on his Form N-400 his criminal history
and the almost three years he spent in the Dominican Republic, Santos cut off
important lines of questioning that would have led a USCIS adjudications officer
to investigate his past criminal conduct and lawful permanent residence status.
To be sure, Santos presented expert testimony from Braun disputing many of
Officer Diaz’s opinions, such as whether a USCIS officer would have considered
Santos’s conviction in the Dominican Republic to be a crime involving moral
turpitude or would have deemed Santos to have abandoned his lawful permanent
resident status by staying in the Dominican Republic under an alias for several
years. However, the jury was free to credit Officer Diaz’s testimony over Braun’s
testimony on these points.14 See, e.g., United States v. Feliciano, 761 F.3d 1202,
1206 (11th Cir. 2014); United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir.
1999); United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997).
Further, under Maslenjak, the government did not need to prove beyond a
reasonable doubt that Santos’s Dominican conviction qualified as a crime of moral
14
We reject Santos’s argument that the “plain letter language” of Santos’s Dominican
records “clearly contradicted” Officer Diaz’s testimony that Santos’s conviction for “excusable
homicide” equated to a federal conviction for voluntary manslaughter, which is categorically a
crime involving moral turpitude. Santos interprets the hyphen in “Article 295-321” to mean 295
through 321 and thus any of the offenses in those 26 sections. However, Officer Diaz’s
interpretation of Santos’s records of conviction—that the hyphen did not mean 295 through 321,
but rather 295 and 321, and therefore Santos was convicted of excusable homicide—is a
reasonable one, and the jury obviously agreed with her.
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turpitude. Rather, the government had to prove beyond a reasonable doubt that a
reasonable USCIS officer adjudicating Santos’s Form N-400 Application, knowing
about Santos’s Dominican conviction, would have denied the Application.
Notably, even Santos’s own expert testified that if an applicant for naturalization
failed to provide criminal records clearly showing that the conviction was not
disqualifying, the USCIS would deny the application because the burden is on the
applicant to establish his eligibility for naturalization. Thus, if Santos had checked
“yes” to any of the questions in the criminal history portion of the Form N-400
Application and then produced the Dominican records of conviction at the officer’s
request, the officer would have denied Santos’s application because those records,
according to Santos’s own expert, were ambiguous and Santos could not establish
his eligibility for naturalization.
Based on Officer Diaz’s testimony and the other evidence presented at trial,
including Santos’s signed Form N-400 Application and his criminal records from
the Dominican Republic, the jury could have found beyond a reasonable doubt that
a reasonable USCIS officer, possessing the true facts, either would have denied
Santos’s application outright, or would have investigated further and then denied
his application, on one or more grounds of ineligibility. See United States v.
Friske, 640 F.3d 1288, 1291 (11th Cir. 2011) (“A jury’s verdict cannot be
overturned if any reasonable construction of the evidence would have allowed the
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jury to find the defendant guilty beyond a reasonable doubt.” (quotation marks
omitted)).
Accordingly, we conclude the government presented sufficient evidence to
support the jury’s guilty verdict on Count 1.
V. CONCLUSION
For all these reasons, we affirm Santos’s convictions and sentence.
AFFIRMED.
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