USCA11 Case: 19-11889 Date Filed: 02/12/2021 Page: 1 of 21 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 19-11889 D.C. Docket No. 1:18-cr-20885-RNS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JHONY ANTONIO CONTRERAS MARADIAGA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Florida (February 12, 2021) Before WILSON, LAGOA, and HULL, Circuit Judges. LAGOA, Circuit Judge: USCA11 Case: 19-11889 Date Filed: 02/12/2021 Page: 2 of 21 Jhony Antonio Contreras Maradiaga appeals his conviction for use of a fraudulent immigration document, in violation of 18 U.S.C. § 1546(a). On appeal, Maradiaga argues that: (1) his conviction must be vacated because he was charged with and convicted of conduct that does not constitute a crime within the meaning of § 1546(a); (2) the district court’s jury instruction on the elements of a § 1546(a) offense constructively amended the indictment; and (3) comments by the government during closing arguments misled the jury and improperly bolstered a government witness, thereby depriving Maradiaga of a fair trial. After careful review, we find no error and affirm Maradiaga’s conviction. I. FACTUAL AND PROCEDURAL HISTORY To obtain a Florida driver’s license, the Florida Department of Highway Safety and Motor Vehicles (“DHSMV”) requires an applicant to prove his identity and lawful presence in the United States. One of the documents Florida accepts as proof of lawful presence is an order of supervision from the Department of Homeland Security (“DHS”) and Immigration and Customs Enforcement (“ICE”). ICE issues an order of supervision to an alien who has a final order of removal from the United States, but, for a variety of reasons, cannot immediately be removed. ICE, in its discretion, then releases the alien into the community pending removal, subject to certain conditions detailed in the order of supervision. 2 USCA11 Case: 19-11889 Date Filed: 02/12/2021 Page: 3 of 21 On August 30, 2018, Maradiaga went to the DHSMV at the Mall of the Americas in Miami, Florida, to obtain a Florida driver’s license. Maradiaga presented an ICE order of supervision to the license examiner. The examiner rejected Maradiaga’s driver’s license application for an unknown reason. The following day, Maradiaga went to a different DHSMV location and presented the same order of supervision. The license examiner at this location, in Hialeah Gardens, Florida, scanned the order of supervision into the DHSMV system, and issued Maradiaga a Florida driver’s license. On November 9, 2018, a grand jury indicted Maradiaga for a violation of 18 U.S.C. § 1546(a). The one-count indictment charged Maradiaga with knowingly possessing and using “a document prescribed by statute and regulation as evidence of authorized stay in the United States,” specifically an ICE order of supervision, which Maradiaga knew was “forged, counterfeited, altered, and falsely made.” At trial, Officer Jose Arroyo, a deportation officer with ICE, testified that he reviewed the Order of Supervision Maradiaga presented to DHSMV and found that the alien number on the Order of Supervision did not match Maradiaga’s alien number. Officer Arroyo explained ...
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