United States v. Jefferson

Case: 22-40192 Document: 00516763820 Page: 1 Date Filed: 05/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-40192 May 25, 2023
Summary Calendar
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Kevin Michael Jefferson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:20-CR-1921-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
On October 7, 2020, during a commercial inspection of the vehicle at
the United States Border Patrol checkpoint north of Laredo, Texas, United
States Border Patrol agents discovered approximately 100 illegal aliens in the
back of the tractor-trailer truck driven by Kevin Michael Jefferson. Jefferson
was convicted by a jury of one count of conspiring to transport an illegal alien
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-40192
within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(I);
he was sentenced within the guidelines range to 100 months of imprisonment
and three years of supervised release. He raises two challenges on appeal,
arguing that the evidence was insufficient to support his conviction and that
the district court erred by admitting certain extrinsic evidence under Federal
Rule of Evidence 404(b).
With respect to his sufficiency challenge, Jefferson’s sole argument is
that the Government failed to prove that he agreed with another person to
commit the offense. Because he preserved his challenge to the sufficiency of
the evidence by moving for a judgment of acquittal based on insufficient
evidence at the close of the Government’s case, which was the close of all
evidence, his claim is reviewed de novo. See United States v. Suarez, 879 F.3d
626, 630 (5th Cir. 2018); Fed. R. Crim. P. 29. On de novo review, we
determine whether “after viewing the evidence and all reasonable inferences
in the light most favorable to the [Government], any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014)
(en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in
original). The question on appeal is not whether the jury’s verdict was
correct but whether it was rational. United States v. Lopez-Urbina, 434 F.3d
750, 757 (5th Cir. 2005).
The jury’s verdict was rational. There was testimony by an
eyewitness, corroborated by cellphone video, that Jefferson spoke with a
driver who dropped off an alien who then boarded the trailer; testimony by a
witness that he and Jefferson were recruited by the same individual to
transport illegal aliens; and testimony by one of the aliens found on the trailer
that he was brought to the trailer by smugglers and witnessed Jefferson close
the trailer door. From this evidence, the jury could have reasonably inferred
that Jefferson knowingly agreed, either expressly or tacitly, with one or more
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other people to transport illegal aliens within the United States. See
§ 1324(a)(1)(A)(v)(I); Vargas-Ocampo, 747 F.3d at 301-02. Jefferson’s
“presence, association, and concerted action with others” involved in alien
smuggling, when viewed in the light most favorable to the Government, was
sufficient to establish the conspiracy element. United States v. Jimenez-
Elvirez, 862 F.3d 527, 533-34 (5th Cir. 2017).
As for Jefferson’s challenge to the admission of certain extrinsic
evidence—testimony by a Border Patrol Agent regarding a September 19,
2020, incident, during which the agent found 11 undocumented aliens hiding
in the trailer compartment of a truck, and Jefferson present in the cab
compartment of the same truck—we review the district court’s evidentiary
ruling for abuse of discretion, subject to harmless-error analysis. See United
States v. Girod, 646 F.3d 304, 318 (5th Cir. 2011). Evidence of extrinsic acts
is admissible under Rule 404(b) only if it is relevant to an issue other than the
defendant’s character and it possesses probative value that is not
substantially outweighed by undue prejudice. See United States v. Beechum,
582 F.2d 898, 911 (5th Cir. 1978) (en banc); Fed. R. Evid. 404(b).
However, as a threshold matter, because evidence of a prior bad act is only
conditionally relevant under Federal Rule of Evidence 104(b), we must first
“ascertain whether the jury was presented with sufficient evidence that the
putative bad act actually occurred.” United States v. Gutierrez-Mendez, 752
F.3d 418, 423 (5th Cir. 2014).
Jefferson challenges the relevancy of the evidence under Federal Rule
of Evidence 104(b), without addressing the relevancy of the evidence under
Rule 404(b). Even assuming that the evidence was erroneously admitted,
given that there is ample evidence supporting Jefferson’s guilt and that the
error does not appear to have substantially influenced the jury’s verdict, any
error was harmless. See United States v. Flores, 640 F.3d 638, 643 (5th Cir.
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2011); United States v. Girod, 646 F.3d 304, 318 (5th Cir. 2011). The
judgment of the district court is AFFIRMED.
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