United States v. Cesar Castro

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3434
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UNITED STATES OF AMERICA
v.
CESAR CASTRO
a/k/a Santos Gonzalez
CESAR CASTRO,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-08-cr-00478-001)
District Judge: Honorable James Knoll Gardner
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Submitted Pursuant to Third Circuit LAR 34.1(a)
November 16, 2010
Before: AMBRO, FISHER and WEIS, Circuit Judges.
(Filed: December 7, 2010 )
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Appellant Cesar Castro was convicted of one count of aggravated unlawful reentry
after deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Castro now appeals
from the judgment and conviction entered by the District Court. For the reasons stated
below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On or about April 1985, Castro, a native citizen of the Dominican Republic,
acquired an immigrant visa and subsequently became a lawful permanent resident of the
United States. On March 29, 1990, Castro was convicted in the Circuit Court for
Baltimore City, Maryland, for conspiring to distribute cocaine, a felony. For this offense,
Castro was sentenced to a suspended five-year term of imprisonment and five years of
probation. As a result of this conviction, formal removal proceedings began and, on or
about May 17, 1990, an order to deport Castro from the United States back to the
Dominican Republic was entered. On June 14, 1990, Castro was deported to the
Dominican Republic.
In March 2008, Castro was discovered living in Allentown, Pennsylvania.
However, Castro had neither applied for nor received written approval, as required,
before reentering the United States. Additionally, during interviews with ICE agents in
March and July of 2008, Castro misidentified himself as Santos Gonzales and stated that
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he was from Puerto Rico. 1 After a fingerprint comparison and analysis, ICE agents
confirmed that his true identity was Cesar Castro.
On August 14, 2008, in the United States District Court for the Eastern District of
Pennsylvania, a grand jury returned an indictment charging Castro with one count of
aggravated unlawful reentry after deportation, in violation of 18 U.S.C. §§ 1326(a) and
(b)(2). A jury trial was held resulting in a guilty verdict. On August 11, 2009, the
District Court sentenced Castro to thirty-seven months’ imprisonment followed by three
years’ supervised release, a fine of $300, and a special assessment of $100. On August
18, 2009, Castro filed a timely notice of appeal.
On appeal, Castro claims that the District Court abused its discretion by allowing
the government to introduce evidence of his 2007 simple assault conviction at his trial.
The government contends that the conviction was properly introduced as impeachment
evidence.
II.
The District Court exercised subject matter jurisdiction pursuant to 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review the
District Court’s decision regarding the admissibility of evidence for abuse of discretion.
United States v. Gilmore, 553 F.3d 266, 271 (3d Cir. 2009) (citing United States v.
Mornan, 413 F.3d 372, 377 (3d Cir. 2005)). To prove an abuse of discretion, a party
1
Castro also used the alias Santos Gonzales when he was arrested and convicted
in 2007 for simple assault.
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“must show the district court’s action was ‘arbitrary, fanciful[,] or clearly unreasonable.’”
Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002) (quoting Stich v.
United States, 730 F.2d 115, 118 (3d Cir. 1984)).
III.
On appeal, Castro claims that the District Court should not have admitted his 2007
conviction for simple assault. 2 Castro contends that the assault conviction did not
contradict any specific fact to which he testified, and therefore, was not admissible for
impeachment purposes. Furthermore, Castro argues that admission of the conviction
portrayed him as a “violent career criminal,” resulted in undue prejudice, and misled the
jury. In response, the government asserts that admission of the assault conviction was
proper impeachment by contradiction as is permitted under Rule 607 of the Federal Rules
of Evidence. Additionally, the government argues that the probative value of the 2007
simple assault conviction was not substantially outweighed by the danger of unfair
prejudice and is thus admissible under Rule 403 of the Federal Rules of Evidence.
2
In his brief, Castro also contends that the assault conviction was not admissible
under Rule 609(a)(1) of the Federal Rules of Evidence because it was not punishable by
more than one year of imprisonment. However, inadmissibility of the assault conviction
under Rule 609(a)(1) is not at issue. As this Court has previously expressed, “Rule 609
controls the use of prior felony convictions to impeach a witness’s general character for
truthfulness, but impeachment by contradiction concerns the use of evidence to impeach
a witness’ specific testimony.” Gilmore, 553 F.3d 266, 272 (citations omitted). In this
case, the assault conviction was introduced to impeach the specific testimony of Castro
under Rules 607 and 403. Therefore, we will not address Castro’s Rule 609(a)(1)
argument.
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According to Rule 607, “[t]he credibility of a witness may be attacked by any
party, including the party calling the witness.” Fed. R. Evid. 607. Indeed, “Rule 607 of
the Federal Rules of Evidence authorizes impeachment by contradiction, and Rule 403
governs its application.” 3 Gilmore, 553 F.3d at 271 (citing United States v. Greenidge,
495 F.3d 85, 99 (3d Cir. 2007)). Previously, we have explained that “[i]mpeachment by
contradiction is a means of policing the defendant’s obligations to speak the truth in
response to proper questions.” Id. (citations and internal quotations omitted). Therefore,
“[w]here a defendant testifies on direct examination regarding a specific fact, the
prosecution may prove on cross-examination that the defendant lied as to that fact.” Id.(citations and internal quotations omitted).
Castro’s contention that the 2007 simple assault conviction is not admissible for
impeachment purposes because it does not contradict any specific fact to which he
testified is without merit. During his testimony at trial, Castro referred to his 1990
conviction for conspiring to sell cocaine and described it as “an agreement that was
reached. They did not find me guilty. There was no trial. That was the only error in my
life, that I was in the wrong place at the wrong time.” (App. 356) (emphasis added). The
District Court determined that this testimony was tantamount to Castro testifying that the
1990 conviction was his sole conviction. Because this testimony was not truthful, the
District Court concluded the 2007 simple assault conviction was admissible as evidence
3
Rule 403 provides that “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
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to impeach Castro’s testimony. In this case, evidence of the 2007 simple assault
conviction contradicted a specific fact Castro testified about – that the 1990 conviction
for conspiring to sell cocaine was his only violation of law. Therefore, the District Court
did not abuse its discretion.
Next, Castro argues that the 2007 assault conviction is inadmissible under Rule
403. This argument also fails. He asserts that the probative value of the 2007 conviction
was substantially outweighed by the dangers of unfair prejudice and misleading the jury.
Specifically, Castro claims that the jury was misled by the government’s portrayal of him
as a “violent career criminal” and the District Court’s failure to give a limiting instruction
regarding the 2007 conviction. Castro alleges that this resulted in undue prejudice. We
note that “‘[i]f judicial restraint is ever desirable, it is when a Rule 403 analysis of a trial
court is reviewed by an appellate tribunal.’” United States v. Balter, 91 F.3d 427, 442
(3d Cir. 1996) (quoting United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988), cert.
denied, 488 U.S. 910 (1988)). “Rule 403 is a balancing test, and ‘[l]ike any balancing
test, the Rule 403 standard is inexact, requiring sensitivity on the part of the trial court to
the subtleties of the particular situation, and considerable deference on the part of the
reviewing court to the hands-on judgment of the trial judge.’” United States v. Vosburgh,
602 F.3d 512, 537 (3d Cir. 2010) (quoting United States v. Guerrero, 803 F.2d 783, 785
(3d Cir. 1986)).
or needless presentation of cumulative evidence.” Fed. R. Evid. 403.
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Here, the District Court performed a Rule 403 analysis and found the probative
value of allowing the government to introduce the conviction outweighed the prejudicial
effect. First, the District Court weighed the probative value and explained that if the
conviction was not admissible, then Castro would be able to lie to the jury without
repercussions. Second, the District Court examined the prejudicial effect and concluded
that it was minimal because Castro had already admitted to one conviction and to a
sentence of three years’ probation.
Addressing his contention that he was portrayed as a “violent career criminal,”
Castro fails to cite any instance in the record where the government referred to or
characterized him as a “violent career criminal.” Finally, the District Court’s decision
not to include a specific limiting instruction was reasonable under the circumstances
because Castro never requested a limiting instruction. The District Court’s Rule 403
analysis regarding the admissibility of the 2007 simple assault conviction was reasonable.
Therefore, the District Court did not abuse its discretion.
We thus conclude that the District Court did not abuse its discretion by allowing
the government to impeach Castro with his 2007 conviction for simple assault.
IV.
For the forgoing reasons, we will affirm the judgment and conviction of the
District Court.
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