from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:12-cr-00311-AT-JSA-1
WILLIAM PRYOR, and JULIE CARNES, Circuit Judges, and
CORRIGAN, District Judge
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
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.
Serbs organized their own army, the VRS,  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.
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.
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.
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.
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.
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.
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.
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).
Exclusion of Witness Statements
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 ...