NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-2554

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UNITED STATES OF AMERICA

v.

SUMO DUKULAH, 

Appellant

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On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. No. 2-21-cr-00246-001)

District Judge: Honorable Gerald A. McHugh

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Submitted Under Third Circuit L.A.R. 34.1(a):

September 5, 2024

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Before: JORDAN, HARDIMAN, and PORTER

Circuit Judges.

(Filed: September 5, 2024)

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OPINION∗

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∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PORTER, Circuit Judge.

Sumo Dukulah challenges his jury conviction for lying on his naturalization 

application, arguing that (1) the District Court’s admission of his previous conviction for 

sex offenses into evidence, offered to prove that he committed the offenses of which he 

was convicted, violated the Sixth Amendment’s Confrontation Clause, and (2) the 

evidence at trial was insufficient to support the jury’s verdict. We will affirm.

I

Dukulah, a native of Liberia, applied for naturalization as a United States citizen 

in 2011. In his application, he was asked whether he had “ever committed a crime or 

offense for which [he was] not arrested.” App. 29 (emphasis omitted). He checked a box 

answering “No.” Id. He affirmed the truth of that response during an in-person interview 

with an immigration officer. And at his naturalization ceremony in 2012, before he was 

sworn in as a United States citizen, he again checked a box answering “No” to a similar 

question. App. 32.

In 2013, Dukulah was arrested for raping his wife’s niece. A jury convicted him of

several sex offenses in Pennsylvania state court. The offenses of which Dukulah was 

convicted covered sex acts beginning in 2004, long before Dukulah sought naturalization 

and swore that he had not committed crimes for which he had not been arrested. 

Dukulah’s niece testified at his trial that he had raped her, and his lawyer cross-examined 

her.

In 2021, a federal grand jury indicted Dukulah for one count of “knowingly 

procur[ing]” naturalization “contrary to law” through false statements, 18 U.S.C. 
3

§ 1425(a), and one count of “knowingly . . . procur[ing] . . . naturalization” despite not 

being “entitled thereto” for lack of good moral character. Id. § 1425(b). At trial, the 

government offered a record of Dukulah’s state conviction into evidence, without 

objection, to prove that Dukulah had committed crimes that he did not disclose on his 

naturalization application. The government did not call Dukulah’s niece as a witness at 

this trial. Dukulah testified that he did not commit the crimes of which he was convicted 

in state court, and three other witnesses testified that he is honest and law-abiding. A jury 

convicted Dukulah of both naturalization offenses.

Dukulah appealed.

II

We have jurisdiction under 28 U.S.C. § 1291. Because Dukulah did not object to 

the admission of his state conviction into evidence, we review its admission for plain 

error. See Fed. R. Crim. P. 52(b). Regarding the sufficiency of the evidence, we “view[]

the evidence in the light most favorable to the prosecution” and ask whether “any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

III

A

To succeed on his Confrontation Clause argument, Dukulah must show that the 

District Court’s admission of his state conviction was “(1) ‘error,’ (2) that is ‘plain,’ and 

(3) that ‘affect[s] substantial rights.’” Johnson v. United States, 520 U.S. 461, 467 (1997)

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)) (alteration in original).
4

Dukulah cannot satisfy the second requirement because any Confrontation Clause 

violation is not “clear under current law.” Olano, 507 U.S. at 734.

The Confrontation Clause guarantees Dukulah’s right “to be confronted with the 

witnesses against him.” U.S. Const. amend. VI. The Supreme Court has held that the 

Clause’s protections apply to “testimonial” out-of-court statements. Crawford v. 

Washington, 541 U.S. 36, 51 (2004). If a witness’s statement is testimonial and he does 

“not appear at trial,” it is admissible only if two independent requirements are satisfied: 

“he was unavailable to testify, and the defendant had had a prior opportunity for crossexamination.” Id. at 54.

Dukulah argues that the admission of his state conviction did not satisfy these 

requirements. First, Dukulah describes his state conviction as “testimonial” because it 

was offered to prove that he committed the crimes of which he was convicted. See Kirby 

v. United States, 174 U.S. 47, 55–56 (1899) (applying the Confrontation Clause where a 

co-conspirator’s theft conviction was offered to prove that the defendant received stolen 

property); Davis v. Washington, 547 U.S. 813, 824–25 (2006) (citing Kirby as an 

example where “Confrontation Clause jurisprudence was . . . applied . . . in the 

testimonial context”). Second, Dukulah argues that his state conviction was based on his 

niece’s testimony, but she did not testify at Dukulah’s naturalization trial and the 

government failed to show that she was unavailable. Under Crawford, Dukulah argues 

that “this failure alone precludes admissibility,” regardless of his prior cross-examination 

of his niece in state court. United States v. Causevic, 636 F.3d 998, 1004 (8th Cir. 2011).
5

Unfortunately for Dukulah, neither we nor the Supreme Court has held that the 

Confrontation Clause is violated on similar facts: where the government offers a 

defendant’s prior conviction to prove that the defendant committed the crimes of which 

he was convicted, and the defendant had the opportunity to cross-examine the 

government’s witnesses at the prior trial, but the government does not call those

witnesses to testify again despite their availability. Of course, “lack of precedent alone 

will not [categorically] prevent us from finding plain error.” United States v. Jabateh, 974 

F.3d 281, 299 (3d Cir. 2020) (internal quotation marks and quoted source omitted). But in 

“a matter of first impression” like this, United States v. Benjamin, 711 F.3d 371, 379 (3d 

Cir. 2013), we find plain error only if “‘absolutely clear’ legal norm[s]” compel us to do 

so. Jabateh, 974 F.3d at 299 (quoting United States v. Nwoye, 663 F.3d 460, 466 (D.C. 

Cir. 2011)).

Dukulah’s Confrontation Clause argument depends on a premise that does not 

derive from absolutely clear legal norms. It is not absolutely clear that his state jury

conviction qualifies as a “testimonial” hearsay statement under Crawford, which did not 

list prior jury convictions as examples of testimonial statements. 541 U.S. at 68 (listing 

“prior testimony at a preliminary hearing, before a grand jury, or at a former trial” and 

statements made during “police interrogations” as examples, without offering a 

“comprehensive definition of ‘testimonial’”). While the Supreme Court has described 

Kirby as involving a “testimonial context,” Davis, 547 U.S. at 824, Kirby involved 

evidence, other than a jury conviction, that was clearly testimonial—the guilty pleas of 

the defendant’s co-conspirators. 174 U.S. at 49; see Crawford, 541 U.S. at 64 (describing 
6 

a “plea allocution” as “plainly testimonial” (citing United States v. Aguilar, 295 F.3d 

1018, 1021–23 (9th Cir. 2002)). Thus, we do not read Davis to clearly state that a prior 

jury conviction is testimonial. And even if it did, it did so only in dicta. While “we cannot 

lightly ignore the force of Supreme Court dicta,” Morrow v. Balaski, 719 F.3d 160, 169 

(3d Cir. 2013) (en banc) (emphasis omitted), dicta does not constitute an absolutely clear 

legal norm that compels reversal for plain error. See United States v. Salas, 889 F.3d 681, 

687 (10th Cir. 2018) (“We . . . have declined to find plain error where a previous case 

addressed the relevant issue merely in dicta.”). 

Moreover, it would be reasonable for a court to conclude that prior jury 

convictions are not testimonial statements under Crawford. Dukulah argues that his state 

conviction was inadmissible because his niece was available to testify. But to the extent 

that Dukulah’s state conviction was a statement, it was a jury’s statement that Dukulah 

committed sex crimes, not his niece’s statement that he raped her. By Dukulah’s logic, 

the government would be required to show each jury member’s unavailability to testify—

or call each available juror to testify regarding the verdict—for his state conviction to be 

admissible. Crawford, 541 U.S. at 59 (focusing on whether “the declarant is unavailable” 

(emphasis added)). This implication of Dukulah’s argument might conflict with “the 

weight of authority” holding that “a juror cannot impeach his own verdict,” given “the 

public injury which would result if jurors were permitted to testify as to what had 

happened in the jury room.” McDonald v. Pless, 238 U.S. 264, 267 (1915); see also Fed. 

R. Evid. 606(b)(1). 
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Dukulah’s interpretation of the Confrontation Clause—focusing on witness 

unavailability, not juror unavailability—might also prove unworkable in some cases. 

Suppose that instead of rape, a jury convicted Dukulah of participating in a vast sex 

trafficking conspiracy, based on the testimony of hundreds of witnesses. See, e.g., United 

States v. Fahra, 643 F. App’x 480, 483–84 (6th Cir. 2016) (describing a conspiracy trial 

for which the prosecution “named over 200 intended witnesses”). Under Dukulah’s 

interpretation, the Confrontation Clause would require the government to show each 

witness’ unavailability—or call each available witness to testify again—before the prior 

conviction could be admitted to prove that Dukulah had participated in a conspiracy. We 

cannot conclude that the Confrontation Clause plainly requires such a massive drain on 

public resources. 

Given the problems with Dukulah’s interpretation that we have identified, a court 

could adopt it only after “a close interpretative inquiry” accounting for those problems. 

Jabateh, 974 F.3d at 299. As a result, the District Court’s admission of his prior 

conviction into evidence was “not a clear, plain error,” so “we cannot disturb [his] 

conviction.” Id. at 299–300. 

B 

In the alternative, Dukulah argues that even if his prior conviction was admissible, 

the evidence was insufficient to sustain the jury’s verdict. “[O]ur review for sufficiency is 

. . . highly deferential, and we will overturn a verdict only if no reasonable juror could 

accept the evidence as sufficient to support the conclusion of the defendant’s guilt 
8

beyond a reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430–

31 (3d Cir. 2013) (en banc) (internal quotation marks and quoted source omitted). 

We conclude that the jury’s verdict was not “so insupportable as to fall below the 

threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656 (2012). Dukulah 

complains that the prosecution did not proffer evidence other than his prior conviction to 

prove that he committed the crimes of which he was convicted. He argues that, in effect, 

the jury impermissibly gave res judicata effect to his prior conviction. See United States 

v. Pelullo, 14 F.3d 881, 892 (3d Cir. 1994) (declaring it unconstitutional to apply the 

related concept of collateral estoppel against a criminal defendant). But as the 

government notes, neither the District Court nor the prosecution ordered the jury to give 

preclusive effect to the rape conviction. Instead, the jury was asked to weigh the state

conviction for its evidentiary worth, alongside Dukulah’s testimony that he did not 

commit the crimes of which he was convicted. It was not “irrational” for the jury to 

conclude from this evidence that Dukulah committed those crimes, such that he lied on 

his naturalization application and knew himself to be ineligible for naturalization. 

Caraballo-Rodriguez, 726 F.3d at 432. So the jury’s verdict “must be upheld.” Id.

* * *

For these reasons, we will affirm the District Court’s judgment.