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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10932
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00342-JDW-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VENCOT MAREAN MAXWELL,
a.k.a. Timmy Tyron Joseph,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 10, 2013)
Before HULL, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Vencot Marean Maxwell appeals his convictions for making a false
statement in a passport application, making a materially false statement regarding a
matter within the jurisdiction of the United States Department of State, and
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aggravated identity theft. On appeal, Maxwell argues the district court abused its
discretion by admitting as evidence a certified copy of his Jamaican birth
certificate without allowing him to investigate the authenticity of the document.
For the reasons set forth below, we affirm Maxwell’s convictions.
I.
In 2011, a federal grand jury returned a four-count superseding indictment,
charging Maxwell with making a false statement in an application for a passport in
violation of 18 U.S.C. § 1542 (Count One); making a materially false statement
regarding a matter within the jurisdiction of the United States Department of State
in violation of 18 U.S.C. § 1001 (Count Two); knowing possession and use of the
means of identification of another person with intent to commit a crime in violation
of 18 U.S.C. § 1028(a)(7) (Count Three); and aggravated identity theft in violation
of 18 U.S.C. § 1028A(a)(1) (Count Four). Specifically, the indictment alleged that
Maxwell falsely stated in a passport application that: (1) his name was Timmy
Tyron Joseph; (2) he was born on a certain date in the Virgin Islands; (3) he had a
certain Social Security number; and (4) he was a United States citizen.
On the first day of trial, Monday, December 5, 2011, defense counsel
informed the court that, on the previous Friday, the prosecutor had sent him a copy
of Maxwell’s birth certificate from the Jamaican government (“certified copy”).
Defense counsel stated that the government had “done a good and thorough job” of
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trying to provide the defense with this discovery as soon as possible. Nonetheless,
he argued that, even if the late disclosure was not technically a discovery violation,
the defense would be “hard pressed” to prepare for trial. Thus, Maxwell moved to
exclude the birth certificate from evidence. As to prejudice, he argued that the
government’s delay in providing the birth certificate was “especially prejudicial,”
not just under Fed.R.Crim.P. 16, but also under Fed.R.Evid. 902(3). Specifically,
he stated, Rule 902(3) provides that, when there is a foreign document, the defense
must be given a reasonable opportunity to investigate the authenticity and accuracy
of that document.
In response, the government indicated that, on August 2, 2011, it had sent a
copy of the birth certificate (“uncertified copy”) to Maxwell’s counsel. The copy
was not the original certified copy with a seal printed on it. The government had
also requested a certified copy of the birth certificate from the Jamaican
government in August 2011. Defense counsel confirmed that he had received the
discovery, including the uncertified copy of the birth certificate.
Initially, the court denied without prejudice Maxwell’s request to exclude
the birth certificate, finding that the government had acted appropriately in
requesting the birth certificate and it did not appear that Maxwell had suffered any
undue surprise. Further, the court noted that it had not yet seen the original birth
certificate, so the motion was denied without prejudice.
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On the second day of trial, the government presented the certified copy of
Maxwell’s birth certificate that included a raised seal. The court then physically
compared the certified and uncertified birth certificates, and based on its
observations, the court found that the two birth certificates were, in substance,
identical. The documents were simply issued on different dates under the signature
of different representatives of the Jamaican registrar general and deputy keeper of
the records. Thus, Maxwell was aware that the government intended to introduce a
Jamaican birth certificate with his name since August 2011, and there could be no
undue surprise. As a result, the late disclosure did not prevent an adequate
preparation of a defense.
Further, the court explained that, to the extent that Maxwell had argued that,
under Rule 902(3), he was unable to confirm the authenticity of the certification,
his challenge related only to the presumption of authenticity, not to whether the
document was admissible. The court noted that the government had submitted a
final certification by a foreign official and, as such, under Rule 902(3), the
document was self-authenticated. In sum, the court stated,
Having considered the factors, including the reasons for the delay in
producing the document, the extent of prejudice, if any, [that] the
defendant may have suffered because of the delay, and the feasibility
of curing any such prejudice. . . I find that the defendant has not been
unduly surprised by the untimely disclosure, that the government
acted with appropriate and due diligence in attempting to secure this
foreign documentation, that it provided essentially a copy of the birth
certificate as part of Rule 16 discovery in a timely manner, and that
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these two small differences concerning the issue date and the person
who signed the document on behalf of the registrar general of Jamaica
are not material such that the defendant has not been afforded an
adequate opportunity to prepare a defense.
Therefore, the court found that there was no basis to exclude the document and that
the evidence did not deprive Maxwell of a fair trial.
Maxwell proceeded to trial, and the jury found him guilty on all counts. The
court, however, vacated his conviction as to Count Three because it violated his
right against double jeopardy. The court imposed a 30-month total sentence.
II.
We review discovery and evidentiary rulings for abuse of discretion. See
United States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008); United States v.
Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). The district court abuses its
discretion when its decision “rests upon a clearly erroneous fact, an errant
conclusion of law, or an improper application of law to fact.” Baker, 432 F.3d at
1202. Further, we review preserved evidentiary objections for harmless error but,
when a party raises a claim for the first time on appeal, we review for plain error
only. Id. We will not reverse a defendant’s conviction on the basis of a discovery
violation unless it violates that defendant’s substantial rights. United States v.
Camargo–Vergara, 57 F.3d 993, 998 (11th Cir.1995). “Substantial prejudice
exists when a defendant is unduly surprised and lacks an adequate opportunity to
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prepare a defense, or if the mistake substantially influences the jury.” Id. at 998-
99.
Rule 16 provides, in relevant part, that the government must, upon the
defendant’s request, allow the defendant to inspect and copy all documents that
“the government intends to use. . . in its case-in-chief at trial.” Fed.R.Crim.P.
16(a)(1)(E). Rule 902 provides, in part, that certain documents are self-
authenticating, which means extrinsic evidence of authenticity is not required
before the document may be admitted into evidence. Fed.R.Evid. 902.
Specifically, Rule 902(3) includes foreign public documents that are executed or
attested in an official capacity by a person who is authorized by the laws of a
foreign country to do so. Fed.R.Evid. 902(3). In order to qualify as self-
authenticating, “[t]he document must be accompanied by a final certification that
certifies the genuineness of the signature and the official position of the signer or
attester.” Id. Finally, if the parties have been given a reasonable opportunity to
investigate the document’s authenticity and accuracy, the court may (1) order that
it be treated as presumptively authentic without a final certification; or (2) allow it
to be evidenced by an attested summary with or without final certification. Id.
As an initial matter, the government argues that we should review
Maxwell’s arguments on appeal only for plain error. However, Maxwell
adequately preserved in the district court both his discovery challenge based on
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Rule 16 and his evidentiary challenge based on Rule 902(3). Specifically, he
argued that: (1) the government violated Rule 16 by failing to provide the defense
with a certified copy of his Jamaican birth certificate in a timely manner; and
(2) the admission of this evidence violated Rule 902(3) because the defense did not
have an opportunity to verify the authenticity of the document. Thus, we review
the district court’s denial of Maxwell’s motion to exclude the certified birth
certificate for an abuse of discretion. See Campa, 529 F.3d at 992; Baker, 432
F.3d at 1202.
The district court did not abuse its discretion by admitting into evidence the
certified copy of Maxwell’s birth certificate because the court applied the correct
legal standards and its findings were supported by the facts in the record. Baker,
432 F.3d at 1202. As to Maxwell’s discovery challenge under Rule 16, the district
court found that the government acted with due diligence in attempting to obtain
the certified birth certificate from the Jamaican government. Moreover, the court
found that the late disclosure of this evidence not did unduly surprise Maxwell or
deprive him of an opportunity to prepare a defense. At trial, Maxwell conceded
that the government had “done a good and thorough job” of attempting to provide
the defense with discovery as soon as possible. Further, he conceded that he had
received an uncertified copy of his birth certificate in August 2011, four months
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prior to trial, and that he knew that the government intended to submit the birth
certificate as evidence.
As to the differences between the certified and uncertified copies, Maxwell
suggested that he was unable to prepare a defense because the two copies had a
different issuance date and the signatures of different Jamaican officials. However,
he does not challenge the district court’s finding that the two birth certificates were
identical with respect to the material identifying information such as his name, date
of birth, mother’s name, physician’s or midwife’s name, and place of birth. Thus,
it appears that, if a defense of challenging the validity of the birth certificate was
available, Maxwell had sufficient notice to pursue such a defense prior to trial by
using the information included on the uncertified copy. As such, the district court
did not abuse its discretion in concluding that any discovery violation resulting
from the government’s late submission of the certified copy did not result in undue
surprise and did not prevent Maxwell from pursuing a defense. See Camargo–
Vergara, 57 F.3d at 998. Although the certified copy that included the raised seal
from the Jamaican government might have carried more weight with the jury,
Maxwell has not established that the late submission of the certified copy violated
his substantial rights. See id.
Finally, Maxwell’s argument based on Rule 902(3) is misplaced. On appeal,
he suggests that, under Rule 902(3), he was entitled to an opportunity to investigate
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the authenticity of his certified Jamaican birth certificate. As discussed above, he
was given such an opportunity because he received a nearly identical copy of the
birth certificate four months prior to trial. Regardless, as noted by the district
court, Maxwell’s Jamaican birth certificate was admissible as a self-authenticating
document under Rule 902(3) because it was accompanied by a final certification
from a Jamaican official. Under Rule 902(3), when a foreign document is not
accompanied by such a certification, a district court may order that the document
be treated as presumptively authentic so long as the parties are given a reasonable
opportunity to investigate the document’s authenticity. See Fed.R.Evid. 902(3)
(emphasis added). In this case, however, the district court did not need to consider
whether such a presumption was appropriate because Maxwell’s certified birth
certificate was accompanied by a final certification from Jamaica’s Director of
Passport Services. Thus, the district court did not abuse its discretion in rejecting
Maxwell’s Rule 902(3) argument because it was relevant only to the presumption
of authenticity, not to the admissibility of the foreign document. See Fed.R.Evid.
902(3).
For the foregoing reasons, we affirm Maxwell’s convictions.
AFFIRMED.
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