United States v. Perez-Gomez ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT September 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-50494
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACOBO PEREZ-GOMEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(P-02-CR-323-1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Jacobo Perez-Gomez appeals his conviction for transporting
illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
(Perez’ motion for leave to file a supplemental brief is GRANTED.)
Perez contends that the district court’s admission of the
videotaped deposition of Pedro Luna Cebreros (taken prior to his
deportation) violated the Confrontation Clause under the Sixth
Amendment because the Government failed to make a good faith effort
to procure Luna’s presence at trial. Perez also contends that
*
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this opinion should not be published and is not precedent except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.
Luna’s videotaped testimony was the only direct evidence that he
knew any of the passengers were illegal aliens; and, thus, the
error was not harmless.
We need not decide whether the admission of the videotaped
testimony violated the Confrontation Clause. See United States v.
Aguilar-Tamayo, 300 F.3d 562, 565-66 (5th Cir. 2002). Apart from
the videotape, the jury heard evidence: that Perez-Gomez hesitated
before falsely telling a Border Patrol Agent that he was alone in
his truck; that Perez-Gomez got out of the truck to keep another
Agent from getting close to the truck; that there were seven
illegal aliens in the sleeper portion of the truck; and that one of
the aliens heard the driver (or someone on the driver’s side)
instruct the aliens to close the curtains to the sleeper
compartment and that if they were caught the aliens should say they
had asked for a ride. There was also evidence connecting Perez-
Gomez with a scheme of alien trafficking for pecuniary gain.
Because the circumstantial evidence strongly supported an
inference that Perez knew that the passengers were illegal aliens
and he was afforded an opportunity to cross-examine Luna at her
deposition, any error was harmless beyond a reasonable doubt. See
id. at 566-67.
In his supplemental brief, Perez challenges his sentence,
relying on Blakely v. Washington, 124 S. Ct. 2531 (2004), but
concedes the issue is foreclosed by our decision in United States
2
v. Pineiro, No. 03-30437, 2004 WL 1543170 (5th Cir. 12 July 2004).
Accordingly, he raises the issue only to preserve it for possible
review by the Supreme Court.
AFFIRMED
3