United States v. Miroslaw Laguna , 693 F.3d 727 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3469
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M IROSLAW L AGUNA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 342-1—Virginia M. Kendall, Judge.
A RGUED JUNE 7, 2012—D ECIDED A UGUST 14, 2012
Before M ANION, K ANNE, and H AMILTON, Circuit Judges.
K ANNE , Circuit Judge. Following two felony convic-
tions in 2001, an immigration judge ordered Miroslaw
Laguna, a Polish national, removed from the United
States. Among other instructions, the final removal order
required Laguna to obtain a Polish passport. Laguna
refused, and for whatever reason immigration offi-
cials never strictly enforced that requirement. But in
early 2010, immigration officials changed course and
2 No. 11-3469
repeatedly and forcefully warned Laguna about the
consequences of failing to obtain a passport. After he
refused to heed those new warnings, Laguna was
detained and charged with one count of willfully inter-
fering with a final deportation order in violation of
8 U.S.C. § 1253(a)(1)(B) and (C). He was convicted and
sentenced to eighteen months’ imprisonment. On ap-
peal, Laguna argues that the district court improperly
excluded certain exculpatory evidence and deprived
him of his constitutional right to assert a complete de-
fense. Finding no error in the district court’s ruling,
we affirm his conviction.
I. B ACKGROUND
Laguna immigrated to the United States with his
parents in 1967, and for much of that time, he remained
a lawful permanent resident. His immigration status
became complicated in July and August 2001, when he
was convicted of unlawful possession of a stolen motor
vehicle, among other related offenses. Because those
felonies qualified as crimes of moral turpitude under
8 U.S.C. § 1227(a)(2)(A)(ii), an immigration judge
ordered Laguna removed from the United States. To
effectuate the deportation, the removal order required
Laguna to obtain a Polish passport. 1 In June 2004, after
he finished serving his state sentences, Immigration and
1
The parties agree that Polish law requires its citizens to use
a Polish passport when entering and departing Poland. They
also agree that passport applications must be made in person
at the Polish consulate.
No. 11-3469 3
Custom Enforcement (ICE) officers briefly detained
Laguna pursuant to the removal order. But not long
after, ICE released Laguna on an order of supervision,
which, like the removal order, required Laguna to ob-
tain a passport. As part of his supervised release,
Laguna was permitted to work, and he was required
to attend in-person meetings with ICE officers once per
month—although ICE later relaxed this requirement to
once every other month, and eventually, to once per
year (with periodic telephone check-ins). For the dura-
tion of his supervision, officers pestered Laguna about
applying for the passport, but they evidently never pur-
sued the matter with any urgency.
In early 2010, ICE chose to pursue Laguna’s refusal
to obtain a passport. On February 26 and March 2, Depor-
tation Officer Geoffrey Pepple advised Laguna that
he needed to obtain a Polish passport or face conse-
quences for refusing to do so. Laguna initially agreed
and completed the requisite application. The Polish
consulate then confirmed that his passport would
be available on April 21, 2010. Upon learning of his ap-
plication, ICE ordered Laguna to appear at its offices
on April 21 so an officer could accompany him to the
Polish consulate to retrieve the passport. That day,
Laguna appeared as instructed, but he refused three
different times to return to the consulate even after he
was expressly told that his refusal to pick up the
passport violated his removal and supervision orders
and federal law. After officers could not convince him
to pick up the passport, ICE revoked Laguna’s order
of supervision and took him into custody.
4 No. 11-3469
On May 19, 2010, a grand jury returned a one-count
indictment, charging Laguna with willfully interfering
with a final deportation order between April 21 and
April 29, 2010, in violation of 8 U.S.C. § 1253(a)(1)(B)
and (C). Before trial, the government moved to exclude
any evidence suggesting that Laguna had a good-faith
reason for refusing to comply with the removal order.
In response, Laguna argued that he should be per-
mitted to offer testimony illustrating ICE’s course of
dealings with him over the years because that relation-
ship revealed that Laguna could not have willfully in-
terfered with a final deportation order. In other words,
ICE’s liberalized supervision conditioned Laguna to
believe that he would not be deported. After reserving
judgment on the issue until trial, the district court
ruled that Laguna could elicit testimony suggesting he
was cooperative with law enforcement or that he did
not know the steps he needed to take to obtain a pass-
port. But, the district court prohibited Laguna
from offering evidence showing that he was a good, law-
abiding person, which according to the district court,
skated too closely to jury nullification. After a brief
jury trial, Laguna was convicted and sentenced to
eighteen months’ imprisonment. He filed this timely
appeal after the district court denied his motion for a
new trial.
II. A NALYSIS
Before proceeding to the merits, we pause to consider
whether Laguna’s appeal is moot, see United States v.
No. 11-3469 5
Larson, 417 F.3d 741, 747 (7th Cir. 2005), an argument
neither party brought to our attention. For a live contro-
versy to exist, the defendant must suffer from some
continuing harm or “collateral consequence” of the con-
viction. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Since
Sibron v. New York, 392 U.S. 40, 54-57 (1968), we presume
that all criminal convictions (as opposed to prison disci-
plinary proceedings, for example) entail adverse
collateral consequences. Spencer, 523 U.S. at 10; Diaz v.
Duckworth, 143 F.3d 345, 346 (7th Cir. 1998). With that
in mind, we briefly address mootness because Laguna
does not face many of the same collateral consequences
as other felons. For example, Laguna’s incarceration
and supervised release have both ended. And his con-
viction does not affect his right to vote in federal
elections (he is not a U.S. citizen), nor does it change
his immigration status (he was already removable based
on his 2001 state-court convictions). Nevertheless, this
dispute remains live because Laguna faces a handful
of less obvious consequences, including the possibility
that any future testimony may be impeached, Fed R. Evid.
609, or the possibility that any future federal convic-
tions may subject him to a criminal history upgrade, and
thus, a longer sentence, U.S.S.G. § 4A1.1, among other
potential consequences, see Sibron, 392 U.S. at 55 (stating,
“most criminal convictions . . . entail adverse collateral
legal consequences,” while noting that it did not canvass
all of the possibilities in any detail). The potential for
these collateral consequences is enough for us to deter-
mine that Laguna’s appeal is not moot.
6 No. 11-3469
Even if Laguna’s conviction does not entail any col-
lateral consequences, his appeal falls within “a special
category of disputes that are ‘capable of repetition’ while
‘evading review.’ ” Turner v. Rogers, 131 S. Ct. 2507, 2515
(2011). We apply this exception to the mootness
doctrine when “(1) the challenged action is in its duration
too short to be fully litigated prior to its cessation or
expiration, and (2) there is a reasonable expectation
that the same complaining party will be subjected to
the same action again.” Id. (internal brackets omitted)
(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per
curiam). Laguna’s appeal satisfies both criteria. First,
Laguna was only sentenced to eighteen months’ impris-
onment, which is not enough time for him to have
obtained full judicial review. See, e.g., First Nat’l Bank of
Boston v. Bellotti, 435 U.S. 765, 774 (1978). Second, Laguna
has consistently refused to obtain a passport dating back
to 2004. Like the litigant who faces civil contempt
charges for not making timely child-support payments,
Turner, 131 S. Ct. at 2515, we believe that Laguna’s
refusal to obtain a passport may continue indefinitely,
thus paving the way for additional § 1253(a)(1)(B) charges.
With our jurisdiction secure, we turn to the merits.
Laguna’s sole argument on appeal is that the district
court erred by improperly excluding evidence tending
to show that he never willfully interfered with his re-
moval. We generally review the district court’s deci-
sion to exclude evidence for an abuse of discretion,
United States v. Thornton, 642 F.3d 599, 604 (7th Cir. 2011),
and we will reverse and order a new trial only if the
purported error is not harmless, United States v. Boone,
No. 11-3469 7
628 F.3d 927, 932 (7th Cir. 2010). But, because Laguna
claims that his excluded testimony violated his constitu-
tional right to present a defense, “we review de novo
the question of whether the evidentiary ruling had the
effect of infringing that right while still taking into
account the permissible scope of the district court’s
discretion in evidentiary matters.” United States v. Carter,
410 F.3d 942, 951 (7th Cir. 2005) (internal quotation
marks, brackets, and citations omitted).
To support the theory that his intent evidence was
improperly excluded, Laguna begins by noting that ICE
never punished him for refusing to obtain a passport
from 2004 to early 2010. Instead, ICE actually liberalized
his supervision order despite his noncompliance with
the removal and supervision orders. Laguna then
argues that his liberalized supervision and the sum of
his interactions with ICE over the years conditioned him
to believe that he could not be deported or even dis-
ciplined for future violations. He thus reasoned that
ICE would remain indifferent towards his April 2010
refusal to obtain a passport. This predicted indifference
is the basis for Laguna’s belief that he did not willfully
violate § 1253(a)(1)(B).
Like all criminal defendants, Laguna has the right to
present a defense and offer witness testimony. Holmes
v. South Carolina, 547 U.S. 319, 324 (2006) (Criminal de-
fendants must have “a meaningful opportunity to pre-
sent a complete defense.”). But this right is not abso-
lute. Rather, “judges may exclude marginally rele-
vant evidence and evidence posing an undue risk of
8 No. 11-3469
confusion of the issues without offending a defendant’s
constitutional rights.” United States v. Alayeto, 628 F.3d
917, 922 (7th Cir. 2010). Here, the district court correctly
found that Laguna’s proposed evidence was irrelevant
and would do nothing more than confuse the jury—or
in this case, invite the jury to acquit even if the gov-
ernment satisfied each element of the charged offense.
In other words, the district court found that the pro-
posed evidence risked jury nullification. See, e.g., United
States v. Perez, 86 F.3d 735, 736 (7th Cir. 1996) (“An unrea-
sonable jury verdict, although unreviewable if it is an
acquittal, is lawless, and the defendant has no right to
invite the jury to act lawlessly.”). We agree.
Under § 1253(a)(1)(B) and (C), the government need
only prove two elements: (1) Laguna was an alien
subject to final removal; and (2) Laguna willfully refused
to make timely applications for travel documents or
took action designed to hamper his departure. Here,
Laguna was only indicted for willfully interfering with
his removal order during a brief eight-day period in
2010—April 21-29. The uncontested evidence presented
at trial shows that Laguna knew he was under a valid
removal order and that he refused to travel to the
Polish consulate on April 21 even after he was ex-
plicitly warned about the consequences of failing to
appear. That evidence readily satisfies both elements
of § 1253(a)(1)(B) and (C).
Laguna’s proposed testimony about his relationship
with ICE from 2004 to early 2010 is irrelevant. The
statute only requires proof that Laguna voluntarily and
No. 11-3469 9
intentionally—that is, willfully—refused to obtain a
passport. Any evidence suggesting that some previous
relationship with ICE superseded his statutory obligation
is immaterial and confusing. In other words, Laguna’s
evidence did not negate the government’s assertion that
he (1) knew he was removable, (2) knew he needed to
obtain a passport, and (3) knew his express refusal to
do so contravened his removal order and federal law.
Instead, his evidence only shows that he subjectively
believed that he would not be prosecuted, which is no
defense at all. Such a defense is akin to a defendant
asserting that he knew he violated the law, but he did
not think he would be caught. Aside from being
irrelevant, the evidence also invites jury nullification.
That is, the jury might be compelled to acquit simply
because ICE had been lenient with Laguna in the past or
on the ground that Laguna was a good guy. Laguna
cannot ask the jury to return an unlawful verdict, see
Perez, 86 F.3d at 736, as the district court rightly held.
Finally, Laguna argues that his proposed defense was
the sole legal argument that provided a complete rebut-
tal to his indictment. This is untrue. The district court
expressly provided that Laguna could offer intent
evidence showing that he was cooperative with law
enforcement or that he did not know the steps he
needed to take to obtain a passport. He was also
permitted to argue that he was unaware of the out-
standing removal order. Each line of testimony properly
negates the mens rea element of § 1253(a)(1)(B) and (C)
without approaching jury nullification.
10 No. 11-3469
III. C ONCLUSION
Because we find that the district court did not err
in excluding certain evidence, we A FFIRM Laguna’s con-
viction.
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