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United States v. Mitrovic

United States Court of Appeals, Eleventh Circuit

May 23, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
MLADEN MITROVIC, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:12-cr-00311-AT-JSA-1

          Before WILLIAM PRYOR, and JULIE CARNES, Circuit Judges, and CORRIGAN, [*] District Judge.

          CORRIGAN, District Judge

         Accused of concealing from immigration authorities his past as a guard at a Serbian prison camp, Defendant Mladen Mitrovic appeals his conviction for unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(b) and 8 U.S.C. § 1451(e). Mitrovic asserts that the district court erred when it prevented him from presenting hearsay statements of foreign witnesses who were unavailable to testify at trial. Additionally, he argues that the district court erred in refusing to take judicial notice of Articles Four and Forty of the Fourth Geneva Convention. Both errors, according to Mitrovic, deprived him of his constitutional right to present a complete defense. With the benefit of briefing and oral argument, we affirm Mitrovic's conviction.


         A. Historical Background

         In the early 1990s, the former Yugoslavia broke apart into its constituent republics, which mostly were divided along ethnic lines. Bosnia and Herzegovina, one such republic, declared independence in March, 1992. Unlike the other republics, Bosnia was not dominated by a single ethnicity and instead was comprised of approximately forty percent Bosniaks, thirty percent Serbs, and twenty percent Croats. These ethnicities were divided by religious affiliations: Bosniaks were Muslim, Serbs were Eastern Orthodox Christian, and Croats were Catholic. Serbian nationalists did not want to be a part of a multi-ethnic state and sought to carve out their own Serbian dominated state-known as Republika Srpska. This area contained the region, and city, of Prijedor.

         The Serbs organized their own army, the VRS, [1] and began ethnic cleansing across the Prejidor region. The VRS was comprised mainly of Serbs, but non-Serbs, such as Mitrovic, could serve to demonstrate their loyalty. Non-Serbs who were not killed were taken prisoner and sent to various prison camps, including one in Trnopolje, approximately ten kilometers from the city of Prejidor. The government contends that Mitrovic was a guard at the Trnopolje camp. Mitrovic argues that he was not a guard, but was conscripted into forced labor during the Bosnian conflict.

         On November 20, 1996, United States immigration officials interviewed Mitrovic regarding his I-590 refugee application. On this application, and reaffirmed during his interview, Mitrovic stated that his only prior military service was as a cook in the Yugoslavian army from 1980 to 1982. Based on his answers, Mitrovic was given refugee status and admitted to the United States.

         Later, Mitrovic applied for United States citizenship and on October 3, 2002, he was approved for naturalization as a U.S. citizen. On his application and in his interview, Mitrovic asserted that he had never persecuted anyone on account of their race, religion, national origin, membership in a particular social group, or political opinion. However, the government contends that because Mitrovic was a guard who beat prisoners at the Trnopolje prison camp, his answers given on both the refugee and naturalization applications were false. He was charged via a superseding indictment on November 18, 2014, pleaded not guilty, and went to trial.

         B. Procedural Background

         Before trial, Mitrovic's defense team travelled to Bosnia and interviewed people who had material information. The witnesses were outside the subpoena power of the United States and refused to voluntarily testify at trial. Thus, after the team returned, Mitrovic filed a motion to depose the individuals he had interviewed pursuant to Federal Rule of Criminal Procedure 15. Mitrovic obtained permission from the Bosnian government to depose the witnesses, and before departing, his counsel called the witnesses who reaffirmed their willingness to be deposed. However, upon the defense team arriving in Bosnia, several witnesses refused to be deposed. Most of the witnesses who refused to be deposed had been in the Trnopolje prison camp for longer than those who were deposed and had originally told Mitrovic's defense team that they never saw Mitrovic as a guard at the camp.

         Upon returning to the United States, Mitrovic filed a motion to allow the investigator who interviewed the recalcitrant witnesses to testify to what the witnesses said during their initial interviews. In the motion, Mitrovic summarized the witnesses' statements: most had been in the camp for an extended period and never saw Mitrovic. Mitrovic argued that the statements should be excepted from the hearsay rule, or, alternatively, should be admissible because not allowing the statements would deprive Mitrovic of his constitutional right to present a complete defense, citing Chambers v. Mississippi, 410 U.S. 284 (1973). The government opposed the motion, and the district court denied it, ruling that the hearsay statements were inadmissible because they did not have the required indicia of reliability.

         At trial, the government called eleven witnesses: seven were prisoners at the Trnopolje prison camp who claimed to have seen Mitrovic as a guard, several of whom claimed that Mitrovic beat prisoners; two were immigration officers who interviewed Mitrovic as part of the refugee and naturalization process; one was the case agent; and one was an expert on the Bosnian conflict. The government also introduced an application by Mitrovic for veteran's benefits for injuries sustained during the Bosnian conflict, and the Bosnian government's approval of that claim. Once the jury had been excused after the conclusion of the government expert's testimony, Mitrovic requested the court take judicial notice of the Geneva Convention to show that the Bosnian government would not have created a document indicating it conscripted individuals into forced labor, so instead it treated such documents as veteran's benefits. The district court refused, stating that the information would confuse the jury.

         During his case, Mitrovic presented five witnesses by deposition who either visited or were prisoners at the camp and never saw Mitrovic there. Unlike many of the witnesses who refused to be deposed, most of these witnesses were only in the camp for short periods. Seven other witnesses testified that they were Mitrovic's neighbors during the time the camp was open. They lived in Prijedor, most saw Mitrovic there often, and never saw him wearing a uniform or carrying a weapon. Additionally, most knew Mitrovic as a Croat Catholic. The defense investigator testified that Mitrovic had identified a number of witnesses in Bosnia who recanted their agreement to be deposed and that Mitrovic lacked the subpoena power to compel them to testify. The jury found Mitrovic guilty.


         Constitutional questions are reviewed de novo and evidentiary rulings are reviewed for an abuse of discretion. United States v. Underwood, 446 F.3d 1340, 1345 (11th Cir. 2006). Additionally, "[a]n erroneous evidentiary ruling will result in reversal only if the resulting error was not harmless." United States v. Frediani, 790 F.3d 1196, 1200 (11th Cir. 2015) (quotations omitted).


         A. Exclusion of Witness Statements

         Relying on Chambers, Mitrovic argues that the district court violated his right to present a complete defense when it refused to admit hearsay statements of recalcitrant witnesses. Mitrovic sought to admit the statements of the ten recalcitrant witnesses through the defense investigator who interviewed them. Each were Muslim prisoners at the Trnopolje camp, many of them for longer than the witnesses who did testify for Mitrovic. Each had stated that they never saw Mitrovic as a guard at the camp. However, according to Mitrovic, these witnesses refused to be deposed because they did not want to be perceived as helping a Serb-doing so might subject them to social disgrace. One such witness is the president of a "survivors club, " and ...

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