United States v. Gonzales ( 2000 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-51152
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
RUDOLPH ANDREW GONZALES, also known as Andrew Rudolph Gonzales,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
(DR-99-CR-383-FB)
August 24, 2000
Before HIGGINBOTHAM, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Rudolph Andrew Gonzales (“Gonzales”) appeals his conviction
for violating 8 U.S.C. §§ 1324(a)(1)(A)(iii) and (B)(I). We
affirm.
BACKGROUND
Two Boarder Patrol Agents (“the agents”) were watching for
alien smuggling activity on May 14, 1999 at the Hesles Motel in
1
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opinion should not be published and is not precedent except under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.
Eagle Pass, Texas. They observed several people coming out of
rooms 25 and 26 wrapped in towels and draping wet clothing over the
balcony railing. They suspected that these people were illegal
aliens because the motel was often used to smuggle aliens and is
close to the boarder.
Soon after observing the activity outside rooms 25 and 26, the
agents saw Gonzales park at the motel and proceed to Room 25. A
few minutes later, Gonzales went to room 26. He then returned to
his car, picked up “something small” and walked back to the rooms.
After he again left the rooms and returned to his car, the agents
followed and stopped Gonzales. They asked Gonzales whom he visited
in rooms 25 and 26. Gonzales replied that he visited no one but
went to the motel to rent a room.
After returning to the hotel, the agents interviewed the room
occupants and discovered that they were illegal aliens from Mexico.
The illegal aliens, Edith Aguilar (“Aguilar”) and Martha Alvarez
(“Alvarez”), told the agents that Gonzales was the “coyote” who
helped them enter the United States. The agents placed Gonzales,
Aguilar and Alvarez under arrest.
A grand jury indicted Gonzales for harboring Aguilar and
Alvarez in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii) and (B)(I).
At trial, Aguilar and Alvarez testified that they had falsely
identified Gonzales as the man responsible for their presence in
the United States because they were allegedly threatened and
frightened by the agents. They also claimed that they did not know
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Gonzales, that he did not come into their room at the Hesles Motel,
and that they did not make any arrangements with him to enter the
United States. A jury convicted Gonzales of harboring Alvarez but
acquitted him of harboring Aguilar.
DISCUSSION
Gonzales first argues that the government failed to prove that
he harbored or attempted to harbor Alvarez. Gonzales contends that
the government was only able to prove that he twice briefly visited
motels rooms occupied by illegal aliens, took something small with
him on one visit, and later denied having been in the rooms.
However, he argues, based on this evidence and the inconsistent
statements by Aguilar and Alvarez, no reasonable fact-finder could
have concluded, beyond a reasonable doubt, that Gonzales had
harbored or attempted to harbor Alvarez.
When reviewing the sufficiency of the evidence, we view the
evidence in the light most favorable to the government and must
determine whether a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.
United States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998). We
review direct and circumstantial evidence adduced at trial, as well
as all inferences drawn from it, in the light most favorable to the
verdict. United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.
1992). To prove harboring of an illegal alien, the government must
show: (1) that Alvarez was an alien who had entered the United
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States in violation of the law; (2) Gonzales harbored her in the
United States; and (3) Gonzales knew or acted in reckless disregard
of the fact that the alien entered or remained in the United States
in violation of the law. 8 U.S.C. 1324(a)(1)(A)(iii); United
States v. Esparza, 882 F.2d 143, 145-46 (5th Cir. 1989).
We conclude that the evidence was sufficient to convict
Gonzales of harboring Alvarez. The jury reasonably inferred that,
based on circumstantial evidence, Gonzales was harboring an illegal
alien. Agents saw persons hanging wet clothes to dry; Gonzales
enter two rooms with illegal aliens inside. The hotel was located
less than a mile from the Rio Grande River and the two rooms in
question were notorious for alien smuggling. Therefore, the
evidence against Gonzales and the inferences the jury drew from it
were sufficient to convict Gonzales.
Gonzales next argues that the admission of Aguilar's and
Alvarez's prior statements - even for the limited purpose of
impeachment - deprived him of a fair trial. At trial, Gonzales
moved to suppress their original statements to the Agents on the
ground that they were involuntary. The district court denied this
motion and admitted the statements for the limited purpose of
impeachment.
We review a district court ruling on the admissibility of the
evidence for abuse of discretion. United States v. Bermea, 30 F.3d
1539, 1574 (5th Cir. 1994). In general, it is well established
that the “admission at trial of a coerced out-of-court statement
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from a non-defendant may violate the defendant's right to a fair
trial as guaranteed by the due process clause of the fifth
amendment.” United States v. Merkt, 794 F.2d 266, 274 (5th Cir.
1985).
We conclude that the district court did not abuse its
discretion by permitting these out-of-court statements to be used
at trial. There is little evidence suggesting that these
statements were involuntary and, as the district court noted, there
are serious questions as to credibility of Aguilar's and Alvarez's
testimony. United States v. Logan, 949 F.2d 1370, 1377 (5th Cir.
1991) (noting that a district court's task at a suppression hearing
is to evaluate the witnesses' testimony and to judge their
credibility). In addition Rule 607 of the Federal Rules of Evidence
provides that “[t]he credibility of a witness may be attacked by
any party, including the party calling the witness.” This includes
using in court any contradictory out-of-court statements for the
limited purpose of impeaching the witness.
Gonzales also contends that the government improperly relied
on extra-record evidence to bolster the identification testimony of
the agents. At trial, the government argued that Gonzales was the
man “in the green t-shirt” who agents had seen entering motel rooms
occupied by illegal aliens. However, there was no evidence that
the man seen by the agents wore a green t-shirt, or that Gonzales
wore a green t-shirt on the night of his arrest.
We review this claim for plain error because Gonzales did not
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object to these alleged abuses at trial. United States v.
Gallardo-Trapero, 185 F.3d 307, 321 (5th Cir. 1999). Although the
government concedes that the “green t-shirt” comments may have been
superfluous misstatements by the prosecution, the evidence at trial
thoroughly supported the agents identification of Gonzales. The
agents saw Gonzales park his car, go to the hotel rooms, return to
his car to pick up a package and then return to the hotel rooms.
We conclude that the green t-shirt comment does not amount to plain
error.
For these reasons, we affirm.
AFFIRMED.
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