In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3663
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOSE J. URENA,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13‐cr‐297 — Gary Feinerman, Judge.
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ARGUED DECEMBER 5, 2016 — DECIDED DECEMBER 22, 2016
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Before EASTERBROOK and ROVNER, Circuit Judges, and
SHADID, Chief District Court Judge.*
SHADID, Chief District Court Judge. Jose Urena, who was
born in and is a citizen of Mexico, was indicted on one count
of being an alien found in the United States after having been
previously deported, in violation of 8 U.S.C. § 1326(a).
* Of the Central District of Illinois, sitting by designation.
2 No. 15‐3663
The indictment alleged that Urena had been deported and
removed from the United States on March 4, 2011, and that he
was found in Kane County, Illinois on November 26, 2012,
without previously having obtained the express consent of
the Secretary of Homeland Security to be admitted into the
United States. Urena was convicted at a jury trial held in the
Northern District of Illinois and was sentenced to the custody
of the Bureau of Prisons for a period of 100 months, followed
by a three‐year term of supervised release. Urena was also di‐
rected, at the term of his prison sentence, to surrender to an
authorized official of the Homeland Security Department for
a determination on the issue of deportability.
Urena appeals raising two issues. First, Urena appeals the
District Court’s refusal to exclude evidence of Urena’s seven
prior removals under Rule 404(b) of the Federal Rules of Evi‐
dence. Second, Urena appeals the District Court’s denial of
Urena’s Motion for a Mistrial after the prosecution published
to the jury an exhibit that included the fact of Urena’s prior
conviction for “Felony Class 4 Cocaine Possession.” The
Court will address both issues in turn.
Exclusion of evidence pursuant to Rule 404(b) is reviewed
for abuse of discretion. United States v. Curtis, 781 F.3d 904, 907
(7th Cir. 2015).
At trial the government called Erwin Paz, the Immigration
and Customs Enforcement agent who testified as to the con‐
tents of Urena’s ‘A’ file.1 Agent Paz testified that Urena had
received a written warning at the time of his removal from the
1 Individual alien case files (A–files) became the official file for all immi‐
gration records created or consolidated after April 1, 1944. 8 C.F.R. §
103.39.
No. 15‐3663 3
United States on March 4, 2011, and that Urena was not al‐
lowed to reenter the United States without the permission
from the Department of Homeland Security or the Attorney
General. The written warning was admitted at trial as govern‐
ment’s Exhibit 7.
Not having the necessary approval is an element of the of‐
fense. 8 U.S.C. § 1326; see also United States v. Rea‐Beltran, 457
F.3d 695, 702 (7th Cir. 2006), citing United States v. Torres, 383
F.3d 92, 95 (3d Cir. 2004). (Under 8 U.S.C. § 1326(a), “the gov‐
ernment must establish: (1) that the defendant is an alien; (2)
that the defendant was deported or removed in accordance
with a valid deportation order; and (3) that the defendant has
reentered the United States without the permission of the At‐
torney General.”)
On cross examination, defense counsel questioned Agent
Paz whether government’s Exhibit 7 was in English. Agent
Paz answered that the oral statements were communicated to
Urena in English. On redirect, Agent Paz testified he spoke
with Urena in English.
Outside the presence of the jury the government argued
the door had been opened as to Urena’s ability to understand
English and sought introduction of evidence that Urena had
been removed from the United States on seven previous occa‐
sions.
The defense objected to the admission, and instead offered
to stipulate that Urena spoke English. The District Court
found the defense’s proposed solution did not completely
take care of the problem, finding the issue raised as a result of
the defense’s questioning “is not how well Urena understood
4 No. 15‐3663
English. It’s whether he understood that he was not to return
to the United States.”
After a Rule 404(b) analysis the District Court allowed ev‐
idence of Urena’s seven prior removals, finding “the only con‐
ceivable purpose of asking that question was to suggest that
the defendant didn’t know he couldn’t come back,” and fur‐
ther finding “the government was entitled to the curative
steps.”
We agree with the District Court’s analysis.
In United States v. Gomez, 763 F.3d 845 (7th Cir. 2014) (en
banc), the Court clarified the law governing exclusion of other
acts evidence under Rule 404(b). Such evidence is not admis‐
sible to prove character, or propensity to act in a certain way,
but it is admissible for other purposes, including when of‐
fered in a criminal case to prove knowledge. Its relevance for
a proper purpose must be clear through a propensity‐free
chain of reasoning. Gomez, 763 F.3d at 860.
If the proponent satisfies the initial burden, the District
Court must then undertake an analysis under Rule 403 of the
Federal Rules of Evidence to determine whether the probative
value of the evidence is substantially outweighed by the risk
of unfair prejudice, taking into account the extent to which the
non‐propensity purpose is actually at issue in the case.
Here, the District Court first found a specific non‐propen‐
sity purpose for the evidence of prior removals sought to be
introduced by the government. Given the cross‐examination
question from defense counsel, the District Court could
properly conclude the defense would include “the fact that
[Urena] kept coming back must mean that he didn’t under‐
No. 15‐3663 5
stand that he wasn’t supposed to come back, because if he un‐
derstood that he wasn’t supposed to come back, he wouldn’t
have come back all those times.” Parenthetically, while
knowledge is not an element of the offense, defense counsel
attempted to raise the issue to at least offer some defense to
an otherwise overwhelming case. See, e.g., United States v.
Carlos‐Colmenares, 253 F.3d 276, 278 (7th Cir. 2001) (“The stat‐
ute is limited to persons who have previously been deported
from the United States. They are persons who were in this
country illegally, and obviously knew it when they were de‐
ported.”). The proffered evidence was correctly deemed pro‐
bative of Urena’s knowledge that he could not lawfully
reenter the United States without permission. The District
Court then found the probative value of the evidence did not
depend on a propensity inference. Urena’s repeated prior re‐
movals following reentry established his knowledge.
Finally, the District Court conducted an appropriate Rule
403 analysis, finding the question on cross raised the issue of
whether Urena understood the warning he was given at the
time of his removal on March 4, 2011. The District Court spe‐
cifically concluded “[t]he reason that the evidence is not un‐
fairly prejudicial is because of the seed that is now planted in
the jury’s mind regarding [Urena] being given this warning in
English.” It was not “unfair” when the issue was raised by
defense counsel as part of his trial strategy.
Next we turn to government’s Exhibit 18, and the prior
conviction for possession of cocaine.
As part of the testimony of Agent Paz, the government
presented Exhibit 18, “Record of Sworn Statement of Urena,”
dated February 3, 2004. The document contains four pages of
form questions and handwritten answers by Urena created
6 No. 15‐3663
during his 2004 interview. The questions were presented on
the form in both English and Spanish.
Question 13 on page 3 of the document asked whether
Urena had been convicted of a serious criminal offense. The
handwritten answer to the question was “Felony Class 4 Co‐
caine Possession.”
During the questioning the defense appropriately re‐
quested a sidebar. At the sidebar the defense counsel argued
the admission of such evidence was “wildly” prejudicial. The
defense then moved for a mistrial. The government re‐
sponded that the exhibit was already in evidence and argued
the purpose of the exhibit was to show that Urena was inter‐
viewed and understood the questions being asked.
Defendant argues here that the failure of the government
to redact before publishing the exhibit constitutes “unfair
prejudice,” and suggests the “prosecution felt such unfairly
prejudicial irrelevant evidence was necessary to sway the jury
to obtain the desired verdict. Otherwise there is no reason for
its interjection.” The government responds that the District
Court attributed no such motive to the government and ar‐
gues here that the jury’s exposure to inadmissible information
can be harmless if the properly admitted evidence of guilt is
so overwhelming. United States v. Harmon, 721 F.3d 877, 888
(7th Cir. 2013).
Under the circumstances found here, in spite of the gov‐
ernment’s attempt to admit what is clearly inadmissible evi‐
dence, the District Court properly denied the motion for a
mistrial. The District Court was in the best position to find the
jury’s attention had not been drawn to the third page of the
document. The District Court reasoned that because the court
No. 15‐3663 7
itself had not noticed the information until it was brought to
its attention, it doubted the jury had either. The District Court
also commented the document was only presented for a short
period of time. The District Court then properly ordered ques‐
tion 13 redacted from the Exhibit. The likelihood of an error
resulting in an unfair trial is reduced when the district court
acts promptly to prevent further damage, and the prosecution
is prevented from further reliance on the erroneously admit‐
ted information. Greer v. Miller, 483 U.S. 756, 764–766 (1987).
The District Court’s prompt and corrective action prevented
an unfair trial.
AFFIRMED
United States v. Jose Urena
Combined Opinion