United States v. Alejandra Carmona-Ramos

Case: 14-51068 Document: 00513375210 Page: 1 Date Filed: 02/10/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-51068 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, February 10, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
ALEJANDRA ANGELA CARMONA-RAMOS,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-312
Before STEWART, Chief Judge, and KING and HIGGINSON, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Alejandra Angela Carmona-Ramos was convicted
after a jury trial of attempting to transport an illegal alien for financial gain in
violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(B)(i). Carmona-Ramos was
apprehended using a sting operation: border patrol agents caught an illegal
alien crossing the United States border; they seized the alien’s phone; they
then used the phone to set up a rendezvous point with an apparent smuggler;
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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a border patrol agent posed as the illegal alien at the meeting point; and
Carmona-Ramos met the agent at the meeting point and began to lead him to
a bus station. After being apprehended by law enforcement, Carmona-Ramos
confessed to knowingly engaging in a scheme to assist an undocumented alien
for money. Following her conviction, Carmona-Ramos timely appealed the
jury’s verdict and the district court’s rulings on various grounds. For the
reasons explained herein, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of February 3, 2014, Border Patrol Agent Erik Lerch was
on bike patrol in El Paso, Texas, close to the United States-Mexico border.
During his patrol, he received a radio alert that there was an individual trying
to cross the border. 1 When he responded to the area, he saw an individual run
across the Cesar Chavez Border Highway and attempt to jump a fence on the
other side. Agent Lerch detained the man—later identified as Antonio
Allende-Agustin—and questioned him regarding his citizenship and whether
he had documents allowing him to be in the United States. Allende-Agustin
responded that he was a Mexican citizen and that he did not have documents.
Agent Lerch then arrested Allende-Agustin and transported him to the local
border patrol station for processing. Agent Lerch also recovered a cell phone
from Allende-Agustin’s pocket in a search incident to the arrest and turned it
over to another border patrol agent.
Later that night, Border Patrol Agent David Marroquin and his partner
used Allende-Agustin’s cell phone to text someone that planned to meet with
Allende-Agustin. They waited at an apartment building close to where
Allende-Agustin was arrested, but their shift ended before anyone arrived.
1 The district court sustained Carmona-Ramos’ hearsay objection to the contents of
the radio alert. However, Agent Lerch was able to testify that he responded to the area near
the border.
2
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At around midnight, Border Patrol Agents Salvador Del Valle and
Samuel Cardenas took over the operation. Shortly after starting their shift,
they went to the border patrol station to interview the “undocumented alien,”
Allende-Agustin. They also continued to monitor Allende-Agustin’s cell phone
for activity. At 6:44 A.M. the next day, they received a text message on
Allende-Agustin’s cell phone. The text message read, “are you in the same
place?” and was from a number identified as “Cony.” Agents Del Valle and
Cardenas sent a response text message stating, “no I had to move I’m at a
church.” They continued to exchange text messages, and the two agents drove
to the church at the described location. When they arrived, Agent Del Valle
walked to the church and posed as an undocumented alien awaiting an alien
smuggler. The text messages with Cony continued, and amongst other things,
Cony sent a text message stating, “stay there there is a woman there walking.”
After waiting at the church for about five to eight minutes, Agent Del
Valle observed a female walking towards him. The woman—later identified as
Carmona-Ramos—made eye contact with Del Valle and continued to walk
towards him. Carmona-Ramos then gestured with her arm for Agent Del Valle
to come towards her. When Agent Del Valle hesitated, she came closer, and
Agent Del Valle told her that he was in the country illegally and that he was
scared and nervous. She told him not to be afraid or act nervous and to follow
her. She took him by the arm, and he began to follow her. Shortly thereafter,
Carmona-Ramos called someone on her cell phone whom she addressed as
“Concha,” saying, “I’ve got him here. He’s with me.” She then handed the
phone to Agent Del Valle. The woman on the phone identified herself as
Concha to Agent Del Valle and told him to “[f]ollow the lady. Don’t be afraid.
Don’t be nervous. She knows where to take you.” After Carmona-Ramos ended
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the call, she told Agent Del Valle that she was taking him to a bus stop and
that they were going somewhere on the bus.
After walking together for a short time, a marked border patrol vehicle
approached them. Upon seeing the vehicle, Carmona-Ramos told Agent Del
Valle, “[s]tep back. You don’t know me. Okay? You don’t know me” and
gestured for him to walk behind her. The uniformed driver of the marked
vehicle, Border Patrol Agent James Walker, stopped Carmona-Ramos and
Agent Del Valle and asked them if they had proper documentation to be in the
United States legally. When neither of them could produce documents, Agent
Walker pretended to arrest Agent Del Valle (who continued to pose as an
undocumented alien), arrested Carmona-Ramos, and placed both of them in
the back of his patrol car together. While they were in the back of the patrol
car, Carmona-Ramos told Agent Del Valle to “[e]rase all the messages you have
on the phone. Say that you don’t know me. Don’t tell them the truth.
Remember that I have a child, and I don’t want to get involved in this alien
smuggling scheme.”
Border Patrol Agent Martha Pedregon conducted a pat down search of
Carmona-Ramos during the arrest and seized a cell phone. A forensic analysis
of her phone and Allende-Agustin’s phone showed that there had been no
contact between the two on the phones. However, the number in Allende-
Agustin’s phone for “Cony” matched the number in Carmona-Ramos’ phone for
“Concha.”
After the arrest, Carmona-Ramos was brought to the border patrol
station and read her rights. After waiving her rights, she initially provided a
written statement saying that she was merely showing the person outside the
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church how to get to a bakery that was near the bus station. Agent Del Valle
then entered the room and revealed himself as a border patrol agent.
Later, Border Patrol Agent Brendan McCarthy interviewed Carmona-
Ramos for a sworn statement. In her sworn statement, Carmona-Ramos
admitted that her previous written statement was a lie. She stated that she
worked for Concha smuggling undocumented aliens in the United States, but
this was her first time; she knew Concha paid $60, but she did not know how
much she would be paid; Concha called and told her to go to the church and
pick up the person there; Concha told her that the person was in the United
States illegally; Carmona-Ramos knew that she was assisting an
undocumented alien; and she knew it was illegal to smuggle undocumented
aliens. Carmona-Ramos explained that Concha told her that she “was picking
up a young person that had been out in the cold all night, and [she] was going
to be paid a little money.”
Carmona-Ramos was charged with alien transportation for financial
gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(B)(i). Specifically,
the indictment charged that Carmona-Ramos, “knowing and in reckless
disregard of the fact that a certain alien had come to, entered, and remained
in the United States in violation of law, transported and moved, and attempted
to transport and move such alien within the United States in furtherance of
said violation of law, all done for purpose of commercial advantage and private
financial gain.” Following a two-day trial, Carmona-Ramos was found guilty
by a jury. The district court sentenced her to four years’ probation. She timely
appealed.
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II. DISCUSSION
Carmona-Ramos raises three issues on appeal: (1) she challenges the
sufficiency of the evidence to support her conviction; (2) she argues that the
admission of certain testimony violated her rights under the Sixth
Amendment’s Confrontation Clause; and (3) she claims that a Government
witness provided improper expert testimony regarding the profile of a typical
alien smuggler. We address each issue in turn.
A.
Carmona-Ramos first challenges the sufficiency of the Government’s
evidence to support her conviction. Because Carmona-Ramos preserved the
issue below, we engage in a de novo review to “determine whether a reasonable
jury could find that the evidence establishes the guilt of the defendant beyond
a reasonable doubt.” United States v. Williams, 507 F.3d 905, 908 (5th Cir.
2007). “We view the evidence in the light most favorable to the government
and give the government the benefit of all reasonable inferences and credibility
choices.” Id.
Before delving into the evidence presented at trial, we first address the
primary point of contention between the parties: the elements that the
Government was required to prove to convict Carmona-Ramos. To establish a
violation of 8 U.S.C. § 1324(a)(1)(A)(ii), the Government must prove the
following elements: (1) the defendant transported or attempted to transport
an alien within the United States, (2) the alien was in the United States
illegally, (3) the defendant knew of or recklessly disregarded the fact that the
alien was in the United States illegally, and (4) the defendant acted willfully
in furtherance of the alien’s violation of the law. See 8 U.S.C.
§ 1324(a)(1)(A)(ii); see also United States v. Romero-Cruz, 201 F.3d 374, 378
6
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(5th Cir. 2000); United States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008). 8
U.S.C. § 1324(a)(1)(B)(i) adds the following aggravating factor: the
transportation offense in § 1324(a)(1)(A)(ii) was committed “for the purpose of
commercial advantage or private financial gain.” See 8 U.S.C.
§ 1324(a)(1)(B)(i); see also United States v. Williams, 449 F.3d 635, 646 (5th
Cir. 2006).
At trial, the district court provided the following jury instruction
regarding the elements of the offense, which tracks the statute and the
elements outlined by case law:
First: that an alien had entered or remained in the United States
in violation of the law; and
Second: that the defendant knew or recklessly disregarded the fact
that the alien was in the United States in violation of the law; and
Third: that the defendant transported or moved, or attempted to
transport or move the alien within the United States with intent
to further the alien’s unlawful presence; and
Fourth: that the defendant transported or moved, or attempted to
transport or move the alien within the United States for the
purpose of commercial advantage or private financial gain.
On appeal, the Government argues that it was not required to prove the
first element in the jury charge because it was proceeding under an “attempt”
theory. In its briefing, the Government recites the well-known principle that
factual impossibility is not a defense to an attempt offense. The Government
further notes that at least one other circuit has upheld a conviction under its
construction of the statute. See United States v. Medina-Garcia, 918 F.2d 4, 8
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(1st Cir. 1990). However, the Government did not advance that theory at trial 2
and the jury charge—which the Government agreed to—did not include an
instruction explaining that theory of criminal liability.
In response, Carmona-Ramos argues that the plain language of the
statute suggests that the Government must prove element one even in an
“attempt” case. 3 In particular, she points out that “attempt” only appears in
the second clause of the statutory provision, and it modifies “transport or
move.” She further notes that, unlike the use of “attempt” in Section
1324(a)(1)(A)(ii), the other statutory schemes cited by the Government include
an “attempt” provision that applies to the entire substantive offense. See 18
U.S.C. §§ 2251, 2421–2423; 21 U.S.C. § 846. Carmona-Ramos’ position also
finds support in case law from other circuits. See United States v. Vega, 184 F.
App’x 236, 243–44 (3d Cir. 2006); see also United States v. Flores-Perez, 311 F.
App’x 69, 70 (9th Cir. 2009).
2 The Government began its argument in closing by identifying Allende-Agustin as an
illegal alien—in fact, the Government argued that element one was met because Allende-
Agustin “is an alien who entered the United States who was apprehended by Border Patrol
Agent Lerch.” The Government never argued that the jury could skip element one; instead,
the prosecutor proceeded to present an attempt theory in relation to element three (i.e., the
transportation element). For example, the Government argued: “Ask yourself: What would
have the Defendant’s conduct been if, instead of Agent Del Valle, [Allende-Agustin] was
there? If you believe that she would have done the exact same things that she did on February
4th, if it was the actual undocumented alien who was present at that church instead of Agent
Del Valle, then it’s the Government’s position that you must find her guilty of an attempt to
move an undocumented alien.”
3 Carmona-Ramos’ statutory argument begins with the basic principle that “[t]o
attempt a federal offense is not, of itself, a federal crime, and there is no one general federal
statute proscribing all attempts to commit federal offenses.” United States v. Castro-Trevino,
464 F.3d 536, 541–42 (5th Cir. 2006) (citation and quotation marks omitted) (alteration in
original).
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Regardless, because we hold that the Government presented proof
beyond a reasonable doubt to convict Carmona-Ramos on the actual theory of
the offense presented to the jury, we need not address the validity of the
Government’s construction of an attempt offense under 8 U.S.C.
§ 1324(a)(1)(A)(ii).
Carmona-Ramos does not challenge the sufficiency of the evidence to
establish elements one 4 and four of the offense, instead arguing that there was
no evidence showing that she (1) knew of or recklessly disregarded Allende-
Agustin’s illegal status (element two), or (2) attempted to transport or move
Allende-Agustin within the United States with intent to further Allende-
Agustin’s unlawful presence (element three). Carmona-Ramos rightly points
out that there is no evidence showing that she previously met Allende-Agustin
or had direct contact with Allende-Agustin. However, her conclusion based on
these points is flawed.
The evidence at trial showed that Concha (the alien smuggler) was in
contact with Allende-Agustin and knew of Allende-Agustin’s status. Concha
then enlisted the help of Carmona-Ramos to meet Allende-Agustin and guide
him to a bus station. Carmona-Ramos may not have known Allende-Agustin’s
name or what he looked like, but when she went to the church and met Agent
Del Valle, her purpose and intent was to meet and help Allende-Agustin.
Further, she knew that the person she was supposed to meet and help—
Allende-Agustin—was an illegal alien. In fact, she specifically confessed that:
4 Carmona-Ramos’ concession regarding whether there is sufficient evidence to
establish Allende-Agustin’s illegal status is largely contingent on the court’s decision
regarding her Sixth Amendment challenge. As we explain infra, there is sufficient evidence
to establish element one of the offense even without the challenged testimony.
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(1) she worked for Concha smuggling undocumented aliens in the United
States; (2) Concha called and told her to go to the church and pick up the person
there; (3) Concha told her that the person was in the United States illegally;
and (4) she knew that she was assisting an undocumented alien.
Of course, Carmona-Ramos did not actually transport Allende-Agustin;
but, as previously discussed, element three of the offense only requires that
she attempted to transport him. Therefore, she is criminally liable because she
would have transported Allende-Agustin “had the attendant circumstances
been as [she] believed them to be.” United States v. Contreras, 950 F.2d 232,
237 (5th Cir.1991). 5
In summary, the evidence at trial established that Carmona-Ramos
knew “that an alien ha[d] come to, entered, or remain[ed] in the United States
in violation of law [and] attempt[ed] to transport or move such alien within the
United States.” See 8 U.S.C. § 1324(a)(1)(A)(ii). Thus, there was sufficient
evidence to support her conviction.
B.
Carmona-Ramos next argues that the district court violated her Sixth
Amendment right to confront witnesses against her by admitting hearsay
5 Although the district court included the word “attempt” in element three of the jury
charge, the Government did not request and the court did not provide an instruction
explaining to the jury the law of attempt. However, because Carmona-Ramos did not object
to the instruction, we apply the plain error standard of review. See United States v. Crow,
164 F.3d 229, 235 (5th Cir. 1999). We find no plain error, as “a miscarriage of justice did not
result from the failure to include ‘attempt’ language in the jury charge and the substantial
evidence supporting the jury’s finding of guilt beyond a reasonable doubt was not overcome.”
Id. at 235–36. The Government clearly articulated an attempt theory as to element three of
the offense, and the evidence—most notably her confession—undoubtedly shows that
Carmona-Ramos was sent by Concha to transport Allende-Agustin, whom Carmona-Ramos
knew to be an illegal alien. We, therefore, need not address whether Carmona-Ramos waived
a challenge to the jury instruction by failing to raise it on appeal.
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evidence consisting of out-of-court statements that Allende-Agustin made to
border patrol agents regarding his alienage. Specifically, Agent Lerch testified
over a Confrontation Clause objection that he detained Allende-Agustin and
questioned him regarding his citizenship and whether he had documents
allowing him to be in the United States; he further testified that Allende-
Agustin responded that he was a Mexican citizen and that he did not have
documents.
“We review Confrontation Clause challenges de novo, subject to harmless
error review.” United States v. Santos, 589 F.3d 759, 762 (5th Cir. 2009)
(citation omitted). “[T]he Confrontation Clause prohibits (1) testimonial out-
of-court statements; (2) made by a person who does not appear at trial; (3)
received against the accused; (4) to establish the truth of the matter asserted;
(5) unless the declarant is unavailable and the defendant had a prior
opportunity to cross examine him.” United States v. Jackson, 636 F.3d 687,
695 (5th Cir. 2011) (alteration in original) (citation omitted); see also Crawford
v. Washington, 541 U.S. 36 (2004).
Four of the five Jackson elements are uncontested by the parties:
Allende-Agustin’s out-of-court statements were testimonial under Crawford
because they were made during custodial questioning and under
circumstances that a speaker would have reasonably interpreted as potentially
relevant to a later prosecution; Allende-Agustin did not appear at trial;
Allende-Agustin’s statements were used at trial against Carmona-Ramos; and
Carmona-Ramos did not have a prior opportunity to cross-examine Allende-
Agustin. Thus, there are only two remaining points of contention: (1) whether
Allende-Agustin’s out-of-court statements were offered for the truth of the
matter asserted; and (2) even if admitting Allende-Agustin’s statements was a
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Confrontation Clause violation, whether that violation constitutes harmless
error.
As an initial matter, Allende-Agustin’s out-of-court statements were
hearsay evidence, as they were clearly introduced for the truth of the matter
asserted. During closing arguments, the prosecution explained that the first
element of the offense requires that “an alien had to have entered or remained
in the United States.” The prosecution went on to argue: “we know that there
was an alien, we know that he entered the United States, and we know that
the person was [Allende-Agustin].” Allende-Agustin’s statements regarding
his alienage directly supported that assertion to the jury. Thus, the district
court erred in admitting the challenged hearsay testimony; however, as we
explain below, we conclude that the district court’s error was harmless.
“A defendant convicted on the basis of constitutionally inadmissible
Confrontation Clause evidence is entitled to a new trial unless it was harmless
in that there was no reasonable possibility that the evidence complained of
might have contributed to the conviction.” Jackson, 636 F.3d at 697 (quotation
marks, citation, and alteration omitted). “The government bears the burden of
establishing the error is harmless beyond a reasonable doubt.” Id. (citation
omitted). When determining whether a Sixth Amendment Confrontation
Clause violation is harmless, we consider, amongst other things, “the presence
or absence of evidence corroborating or contradicting the testimony of the
witness on material points, . . . and of course, the overall strength of the
prosecution’s case.” United States v. Duron-Caldera, 737 F.3d 988, 996 (5th
Cir. 2013) (citation omitted).
Here, there was strong evidence corroborating the challenged testimony
that Allende-Agustin had illegally entered or remained in the United States.
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First, Carmona-Ramos confessed that she knew the individual she was sent to
transport—Allende-Agustin—was an illegal alien; she also confessed that she
was in the alien-smuggling business with Concha and that she was involved in
an alien-smuggling scheme on the day she was arrested. Second, the
circumstances of Allende-Agustin’s arrest suggest that Allende-Agustin had
illegally entered the United States: Agent Lerch responded to a call close to
the United States-Mexico border; he then saw Allende-Agustin run across a
highway close to the border—a highway with no pedestrian walkways—and
attempt to jump a fence on the other side; and Allende-Agustin was
apprehended and taken to the border patrol station. Finally, the nature of the
subsequent sting operation and other testimony by border patrol agents
strongly suggests Allende-Agustin’s illegal alienage: after he was
apprehended, border patrol agents used Allende-Agustin’s phone to
communicate with Concha, a woman that Carmona-Ramos admitted was an
alien smuggler; Agent Del Valle testified that, before he initiated the sting
operation, he went to the border patrol station to interview the “undocumented
alien,” Allende-Agustin; and Agent Cardenas testified that, during the sting
operation, he received a text message on Allende-Agustin’s cell phone—“the
phone that [he] seized from the subject that had illegally entered.” 6
Of course, the prosecution’s case was also otherwise very strong, as it
was supported by evidence of Carmona-Ramos’ confession, her statements to
6 Although not under harmless error analysis, we have sustained convictions under 8
U.S.C. § 1324(a) with similar evidence of an alien’s illegal status. See United States v.
DeLeon, 484 F. App’x 920, 927–28 (5th Cir. 2012).
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law enforcement, her conduct on the day she was apprehended, and the overall
nature of the sting operation.
Accordingly, we conclude that the admission of the challenged testimony
does not constitute reversible error.
C.
Carmona-Ramos’ final challenge on appeal involves what she describes
as improper alien-smuggler-profile testimony. We review a district court’s
evidentiary rulings for abuse of discretion, subject to harmless error review.
See United States v. Yanez Sosa, 513 F.3d 194, 200–01 (5th Cir. 2008).
Although the circumstances surrounding the introduction of this testimony are
problematic, any error by the district court in admitting the testimony was
harmless.
The challenged testimony took place during the re-direct examination of
Agent Del Valle. The Government began its questioning by asking Agent Del
Valle if he had “participated in other similar operations as this one.” Agent
Del Valle answered, “Yes.” The Government then asked a series of questions
regarding how alien smugglers typically act, including whether “it is common
for smugglers to be reassuring” and “to try to give agents posing as aliens
confidence that everything . . . is going to be okay?” Agent Del Valle responded,
“Yes” to these questions. Later, the Government asked Agent Del Valle if he
“had any reason to doubt that it was Ms. Carmona who approached you that
morning as a smuggler,” to which he responded, “No.”
We begin by noting that Agent Del Valle’s statements were not proper
lay opinion testimony, as they were based on specialized knowledge. See Fed.
R. Evid. 701, 702; see also United States v. Riddle, 103 F.3d 423, 428 (5th Cir.
1997) (stating that “a lay opinion must be based on personal perception, [and]
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must be one that a normal person would form from those perceptions”
(quotation marks and citation omitted)). 7
On appeal, the Government does not assert that the statements were
proper lay opinion testimony, instead arguing that it introduced the challenged
testimony as an expert opinion. Tellingly, the Government did not notice any
expert witnesses, did not attempt to qualify Agent Del Valle as an expert, and
explicitly represented to the district court that it would not be introducing
expert testimony. See United States v. Lopez-Moreno, 420 F.3d 420, 438–40
(5th Cir. 2005) (King, C.J., concurring) (collecting cases) (outlining the problem
with border patrol agents providing expert opinions based on specialized
knowledge while testifying as lay witnesses); see also United States v.
Whittington, 269 F. App’x 388, 408 (5th Cir. 2008) (finding error where a
government agent provided expert testimony without the district court
qualifying him as an expert at trial).
Despite the Government’s shifting theory of admissibility, we conclude
that any error in admitting the challenged testimony was harmless. The crux
of Agent Del Valle’s testimony was that Carmona-Ramos’ conduct on the day
of the sting operation was consistent with the behavior of someone engaged in
the business of alien smuggling. However, Carmona-Ramos explicitly and
unambiguously confessed to working for Concha smuggling undocumented
aliens in the United States for money. In addition, prior to her confession, she
told Agent Del Valle—while he was still undercover—to lie to law enforcement
7 We have previously held that government agents may provide lay testimony using
some specialized knowledge if the testimony was “based on first-hand observations in a
specific investigation.” United States v. El-Mezain, 664 F.3d 467, 514 (5th Cir. 2011).
However, Agent Del Valle’s testimony was based on his experience with “similar operations,”
not this specific case.
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for her because she did not “want to get involved in this alien smuggling
scheme.” These statements, together with her conduct, clearly established that
she was working as an alien smuggler on the day that she was apprehended,
independent of Agent Del Valle’s testimony on re-direct examination.
Therefore, we hold that Carmona-Ramos’ challenge to Agent Del Valle’s
testimony does not constitute reversible error. See United States v. Mendoza-
Medina, 346 F.3d 121, 129 (5th Cir. 2003) (holding admission of improper
expert testimony harmless, where defendant confessed to the offense and the
confession was corroborated by other evidence); United States v. Ballard, 586
F.2d 1060, 1062 (5th Cir. 1978) (holding error in admission of hearsay
testimony harmless “in view of appellant’s confession and the other
overwhelming evidence of her guilt”).
III. CONCLUSION
In short, the Government’s case was not error free. Nonetheless, no
single error or cumulation of errors warrants reversal of the conviction.
Carmona-Ramos confessed to the essential elements of the offense; her
confession was unambiguous and unassailed; and her confession was
corroborated by other evidence, including her conduct on the day she was
apprehended. We therefore AFFIRM Carmona-Ramos’ conviction.
16