United States v. Banaban , 85 F. App'x 395 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 16, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-10061
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSAURO CAMACHO BANABAN; ELISEO CRUZ TOLENTINO; JOSE SALTA
MAGLALANG JR.,
Defendants-Appellants.
__________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-149-6-Y
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendants-Appellants were convicted of using false
attestation in connection with employment in violation of 18 U.S.C.
§ 1546(b)(3). Each was sentenced to time served, two years of
supervised release, and a special assessment of $100. They have
appealed their convictions on several grounds. We find each of
their arguments meritless for the following reasons and accordingly
AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
First, we reject the contentions that the evidence was
insufficient because a reasonable trier of fact could have found,
beyond a reasonable doubt, that the defendants knowingly presented
a false attestation. United States v. Perrien, 274 F.3d 936, 939
(5th Cir. 2001). Further, any argument that venue was improper
was waived when the argument was not asserted at trial. United
States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002).
Second, sufficient proof was put forth evincing defendants’
ability to understand English such that the district court’s
finding that the statements were voluntary, and its admission of
the statements, were proper. United States v. Alvarado, 898 F.2d
987, 991 (5th Cir. 1990).
Third, the district court properly rejected defendants’
challenges under the Vienna Convention on Consular Relations and
the International Covenant on Civil and Political Rights because
neither provision creates individually enforceable rights. See
United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001);
Flores v. S. Peru Copper Corp., 343 F.3d 140, 164 (2d Cir. 2003).
Fourth, the “specialty doctrine” does not preclude the
defendants’ prosecution because the defendants were not “delivered
by any foreign government to an agent of the United States”;
instead, they were present in the United States when arrested and
prosecuted. 18 U.S.C. § 3192 (2003).
Fifth, a hearing should not have been granted and the charges
should not have been dismissed for selective prosecution because
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the defendants’ meager presentation of conclusory allegations and
statistics was insufficient to create a reasonable doubt as to the
constitutionality of prosecution. United States v. Jones, 287 F.3d
325, 333-334 (5th Cir. 2002); United States v. Webster, 162 F.3d
308, 334 (5th Cir. 1998); United States v. Jennings, 724 F.2d 436,
445-46 (5th Cir. 1984).
Sixth, the district court did not abuse its discretion in
refusing to dismiss the charges based on prosecutorial misconduct
because an Assistant United States Attorney is permitted to
“threaten” a defendant with more serious charges or an enhanced
sentence if he does not plead guilty to the charged offense. See
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Further,
allegations that the government instructed a witness not to discuss
the case with defendants outside the presence of a federal agent
are not supported by the record.
Seventh, defendants did not offer any evidence -- i.e.
newspaper articles, television reports, or other media reports --
evincing that the jury pool was prejudicially tainted. Mayola v.
State of Ala., 623 F.2d 992, 997 (5th Cir. 1980). Moreover, the
district court appropriately conducted a thorough voir dire,
ensuring that the jurors could set aside any opinions they had of
the case. United States v. Davis, 583 F.2d 190, 197 (5th Cir.
1978).
Finally, the district court did not abuse its discretion by
admitting the business records of Sharp Aviation because the
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government had laid a proper foundation for admission under the
business records exception to the hearsay rule. FED. R. EVID.
803(6); 2 JOHN WILLIAM STRONG, MCCORMICK ON EVIDENCE § 292 (4th ed. 1992).
For the foregoing reasons, the judgments are AFFIRMED.
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