United States v. Saldiva-Sandoval

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4938
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERTO SALDIVA-SANDOVAL, a/k/a Jose Edilberto
Hernandez, a/k/a Jose Edilberto Cabre
Hernandez, a/k/a Herman Lainez, a/k/a Jose
Cabrera, a/ka Jose Cabrera Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cr-00306-WLO)
Submitted: October 31, 2007 Decided: November 21, 2007
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Angela H. Miller, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following two mistrials, Roberto Saldiva-Sandoval was
convicted at a third trial of illegal reentry by a previously
deported alien, 18 U.S.C. § 1326(a) (2000), and was sentenced to
fifty-four months in prison. He now appeals his conviction. We
affirm.
I
At trial, Immigration and Customs Enforcement Agent Lewis
Winer testified that an individual known as Jose Edilberto
Hernandez, who operated a small store in Winston-Salem, North
Carolina, applied for a beer license. In connection with that
application, state authorities conducted a routine investigation,
including a fingerprint analysis. As a result of the
investigation, state authorities alerted federal officials, and, on
August 5, 2005, Winer arrested the defendant for illegally
reentering the United States. Winer fingerprinted the defendant,
who insisted his name was Hernandez. A fingerprint expert
testified that the defendant’s prints matched those of an alien who
was deported in 1992 and again in 1993 and who was known then as
Roberto Saldiva-Sandoval or Jose Cabrera. The alien had not
applied for or received permission from the Attorney General or the
Secretary of the Department of Homeland Security to reenter the
United States.
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II
The defendant raises two issues on appeal. First, he contends
that the district court erred when it denied his Fed. R. Crim. P.
29 motion for judgment of acquittal at the first mistrial. There
is, however, no review of the sufficiency of evidence presented at
a prior trial that resulted in a mistrial. See Richardson v.
United States, 468 U.S. 317, 325-26 (1984); United States v.
Julien, 318 F.3d 316, 321 (1st Cir. 2003); United States v.
Coleman, 862 F.2d 455, 460 (3rd Cir. 1989).
The defendant also claims that the district court erred when
it refused to allow into evidence the fact that he possessed a
green card. We review evidentiary rulings for abuse of discretion.
See United States v. Stitt, 250 F.3d 878, 888 (4th Cir. 2001).
Where an objection was raised below, evidentiary rulings are
further subject to harmless error analysis. See United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997). Here, there was no
abuse of discretion. We agree with the United States that defense
counsel opened the door to questioning about the contents of two
official files on the defendant. Such questioning was designed to
dispel any confusion that defense counsel’s questioning might have
left in the jurors’ minds when he inquired about the contents of
only one of the files. In any event, we believe that any error in
excluding the green card was harmless, given the essentially
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undisputed testimony that the defendant’s fingerprints matched
those of an alien who was deported in 1992 and again in 1993.
III
We therefore affirm the conviction. 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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