United States v. Guerrero-Damian , 241 F. App'x 171 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5240
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ESTEBAN GUERRERO-DAMIAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cr-00255)
Submitted: July 31, 2007 Decided: August 15, 2007
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, David B. Goodhand, Patricia T.
Giles, Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Esteban Guerrero-Damian appeals his conviction for
transporting illegal aliens, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) (2000). On appeal, he argues that there was
insufficient evidence to prove that he transported illegal aliens;
and that the district court erred in permitting a witness to
testify that he overhead a passenger tell the defendant that the
passenger had illegally entered the United States. Finding no
error, we affirm.
Guerrero-Damian argues that there was insufficient
evidence that he knew or acted in reckless disregard of the fact
that the aliens entered or remained in the United States in
violation of the law. This court reviews the district court’s
decision to deny a Fed. R. Crim. P. 29 motion de novo. United
States v. Smith, 451 F.3d 209, 216 (4th Cir.), cert. denied, 127 S.
Ct. 197 (2006). A jury’s verdict must be upheld on appeal if there
is substantial evidence in the record to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942). “[A]n appellate court’s
reversal of a conviction on grounds of insufficient evidence should
be confined to cases where the prosecution’s failure is clear.”
United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984). In
determining whether the evidence in the record is substantial, this
court views the evidence in the light most favorable to the
government, and inquires whether there is evidence that a
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reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(en banc). A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). In evaluating the sufficiency of the
evidence, this court does not review the credibility of the
witnesses and assumes that the jury resolved all contradictions in
the testimony in favor of the government. United States v. Romer,
148 F.3d 359, 364 (4th Cir. 1998).
The elements of a violation of § 1324(a)(1)(A)(ii) are
“(1) the transporting or moving of an alien within the United
States, (2) that the alien was present in violation of law,
(3) that the defendant was aware of the alien’s status, and
(4) that the defendant acted willfully in furtherance of the
alien’s violation of the law.” United States v. Barajas-Chavez,
162 F.3d 1285, 1287 (10th Cir. 1999). Guerrero-Damian does not
contest that he transported aliens who were in the country
illegally, or that he acted to help the aliens remain in the
country illegally. The parties stipulated that all seven
passengers who were stopped in the van in Virginia were illegal.
He takes issue only with the sufficiency of the evidence that he
knew or acted with reckless disregard of the fact that the aliens
were in the country illegally. After reviewing the record, we
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conclude that the evidence was sufficient to sustain
Guerrero-Damian’s conviction.
Next, Guerrero-Damian argues that the district court
erred in admitting the testimony of Government witness Chapeton
Flores that he overheard another passenger who got off the van in
Alabama tell Guerrero-Damian that he was from Mexico and he had
entered the United States illegally because it was hearsay. The
Government argued that the evidence was not hearsay because it was
not being offered for the truth of the matter, but rather for the
effect on the listener. Alternatively, the Government argued that
the statement the passenger made to Guerrero-Damian would
constitute a statement against interest, an exception to the
hearsay rule. The district court overruled Guerrero-Damian’s
objection without explanation. This court reviews evidentiary
rulings for an abuse of discretion. United States v. Cooper, 482
F.3d 658, 662-63 (4th Cir. 2007).
Guerrero-Damian contends that the Government never
demonstrated what effect the conversation would have had on him,
and that therefore the Government was offering the statement for
the truth of the matter to show that he was aware that his
passengers were aliens. A statement offered for a purpose other
than to prove the truth of the assertion contained within the
statement is not inadmissible hearsay. See Fed. R. Evid. 801(c);
United States v. Pratt, 239 F.3d 640, 643-44 (4th Cir. 2001). A
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statement is not hearsay if it is offered to prove knowledge, or
show the effect on the listener or listener’s state of mind.
United States v. Safari, 849 F.2d 891, 894 (4th Cir. 1988).
Guerrero-Damian also disputes that the passenger’s
statement was a statement against interest. Fed. R. Evid.
804(b)(3) provides an exception for statements “tending to expose
the declarant to criminal liability and offered to exculpate the
accused.” Rule 804(b)(3) also provides that “[a] statement tending
to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the
statement.” Fed. R. Evid. 804(b)(3) (emphasis added).
Guerrero-Damian specifically contends that the statement was not
sufficiently trustworthy to be admissible as a statement against
interest, relying on United States v. Bumpass, 60 F.3d 1099,
1101-02 (4th Cir. 1995) (noting a statement is inadmissible under
Rule 804(b) if (1) the speaker is unavailable; (2) the statement is
actually adverse to the speaker’s penal interest; and
(3) “corroborating circumstances clearly indicate the
trustworthiness of the statements”). However, the corroborating
circumstances to establish trustworthiness are only required if the
statement is offered to exculpate the accused. That is not the
case with the passenger’s statement. We find that the district
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court did not err in admitting the disputed statement on either
ground.
We therefore affirm the judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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