NOT PRECEDENTIAL 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 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 

____________ 

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 
2 

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 
3 

 

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. 
4 

 

“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.
5 

 

 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 
6 

 

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. 
7 

 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.