NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 09-3434

____________ UNITED STATES OF AMERICA

v. CESAR CASTRO a/k/a Santos Gonzalez

CESAR CASTRO, Appellant

____________ 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

____________ Submitted Pursuant to Th ird Circuit LAR 34.1(a) November 16, 2010 Before: AMBRO, FISHER and WEIS, Circuit Judges

. (Filed: December 7, 2010 )

____________ OPINION OF THE COURT

____________ FISHER, Circuit Judge

. Appellant Cesar Castro was convicted of one count of aggravated unlawful reentry after deportation, in violati on of 8 U.S.C. §§ 1326(a) an d (b)(2). Castro now appeals2 from the judgment and conviction entered by the District Cour t. 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 na tive 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 cons piring to distribute cocaine, a felony. For this offense, Castro was sentenced to a suspended five-yea r 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 Ca stro from the United St ates back to the Dominican Republic was entered. On Ju ne 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 no r received written approval, as required, before reentering the United Stat es. Additionally, during inte rviews with ICE agents in March and July of 2008, Castro misidentified himself as Santos Gonz ales and stated that3 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 re turned an indictment chargi ng Castro with one count of aggravated unlawful reentry af ter deportation, in violatio n 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-s even months’ imprisonment followed by three years’ supervised release, a fine of $300, a nd a special assessment of $100. On August 18, 2009, Castro filed a timely notice of appeal. On appeal, Castro claims that the District Court abus ed its discretion by allowing the government to introduce evidence of his 2 007 simple assault conviction at his trial. The government contends that the convicti on 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 pursua nt to 28 U.S.C. § 1291. We review the District Court’s decision regarding the admissib ility 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 Gonz ales when he was arrested and convicted in 2007 for si mple assault.4 “must show the district court’s action was ‘arbitr ary, fanciful[,] or cl early unreasonable.’” Stecyk v. Bell Helicopter Textron, Inc. , 295 F.3d 408, 412 (3 d Cir. 2002) (quoting Stich v. United States , 730 F.2d 115, 118 (3d Cir. 1984)).
III. On appeal, Castro claims that the District Court shou ld not have admitted his 2007 conviction for simple assault. 2 Castro contends that th e assault conviction did not contradict any specific fact to which he tes tified, and therefore, was not admissible for impeachment purposes. Furthermore, Cast ro argues that admission of the conviction portrayed him as a “violent career criminal,” resulted in undue prejudice, and misled the jury. In response, the gove rnment asserts that admission of the assault conviction was proper impeachment by contradiction as is pe rmitted under Rule 607 of the Federal Rules of Evidence. Additionally, th e 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 wa s not punishable by more than one year of impr isonment. However, inadmissib ility of the assault conviction under Rule 609(a)(1) is not at issue. As th is 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 (citatio ns 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 addr ess Castro’s Rule 609(a)(1) argument.5 According to Rule 607, “[ t]he credibility of a witne ss 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 im peachment by contradi ction, 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 th at “[i]mpeachment by contradiction is a means of policing the defe ndant’s obligations to speak the truth in response to proper questions.” Id. (citations and internal quota tions omitted). Therefore, “[w]here a defendant testifies on direct ex amination 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 cont radict any specific fact to which he testified is without merit. During his test imony at trial, Castro referred to his 1990 conviction for conspiring to sell cocaine an d 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 assa ult conviction was admi ssible as evidence

3 Rule 403 provides that “[a]lthough rele vant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion6 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 viola tion of law. Therefore, the District Court did not abuse its discretion. Next, Castro argues that the 2007 assa ult conviction is inadmissible under Rule 403. This argument also fails. He asserts th at 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 desira ble, 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 ba lancing 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, an d 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 cumulativ e evidence.” Fed. R. Evid. 403.7 Here, the District Court performed a Ru le 403 analysis and found the probative value of allowing the government to intro duce 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 ex amined the prejudicial effect and concluded that it was minimal because Castro had al ready admitted to one conviction and to a sentence of three years’ probation. Addressing his contention th at he was portrayed as a “violent career criminal,” Castro fails to cite any instance in the re cord where the govern ment referred to or characterized him as a “violent career criminal .” Finally, the District Court’s decision not to include a specific lim iting instruction was reasona ble under the circumstances because Castro never requested a limiting instruction. The District Court’s Rule 403 analysis regarding the admissib ility of the 2007 simple assault conviction was reasonable. Therefore, the District Court did not abuse its discretion. We thus conclude that the District Co urt did not abuse its discretion by allowing the government to impeach Castro with his 2007 conv iction for simple assault.
IV. For the forgoing reasons, we will affi rm the judgment and conviction of the District Court.