U.S. v. Perez-Robles, PEREZ-ROBLES

• Decision Date: 17 October 1983
• Docket Number: No. 83-1100,PEREZ-ROBLES,83-1100
• Parties: 14 Fed. R. Evid. Serv. 648 UNITED STATES of America, Plaintiff-Appellee, v. Gustavo, a/k/a Juan Sanches Torres and LaRana, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 700

718 F.2d 700

14 Fed. R. Evid. Serv. 648

UNITED STATES of America, Plaintiff-Appellee, v. Gustavo PEREZ-ROBLES, a/k/a Juan Sanches Torres and LaRana,

Defendant-Appellant.

No. 83-1100.

United States Court of Appeals, Fifth Circuit.

Oct. 17, 1983.

Howard Alan Borg, Court appointed, Fort Worth, Tex., for defendant-appellant.

E. Michael Sheehan, Asst. U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, TATE, and JOLLY, Circuit Judges.

TATE, Circuit Judge:

The defendant ("Perez") was convicted on jury trial of five counts of aiding and abetting the transportation of illegal aliens within the United States, 8 U.S.C. Sec. 1324(a)(2), 18 U.S.C. Sec. 2, as well as of one count of illegal re-entry as a previously deported alien, 8 U.S.C. Sec. 1326. On appeal, Perez forcefully contends that the trial court erred in denying his motion for a mistrial when a government-agent witness interjected prejudicial "other-crime" testimony by an unresponsive answer. We affirm, finding no significant possibility that the unresponsive and grossly improper answer of the government agent (which we do not condone) had a substantial impact on the jury, due to the overwhelming evidence of guilt.

The defendant Perez and three other individuals were indicted for illegal transportation of five Mexican aliens within the United States. They were arrested in two cars stopped in Texas, in one of which Perez was riding in the passenger side of the front seat. Perez' attempted defense at trial was that he was one of the aliens being transported, not part of the group that had illegally brought them from within Mexico and were transporting them in the United States.

Four of the aliens being transported testified at trial as government witnesses. ¹ They testified that all five aliens were picked up in Mexico by two men in a pickup truck, one of whom (on the passenger side) was Perez. They were brought to the Rio Grande, where (at least two testified) both Perez and the other man showed them where to cross the river into the United States. They then walked to a road, where they were left, while the defendant Perez went away and returned the next morning with an automobile. Perez then drove with them to meet another automobile, into which two of the aliens transfered, prior to the stop of both cars and the arrest stop for immigration offenses. One of the witness aliens (Placencia) testified that an unidentified contact made by him at the plaza in the Mexican town had told him that Perez could bring him to the United States when they found Perez there.

This evidence was essentially uncontradicted, and we think its overwhelming weight is of Perez' guilt as an active aider and abetter of the illegal transportation of aliens in the United States. We find little merit to Perez' contention that, at most, the proof presented a close case of sufficiency, considering the interest of the Mexican aliens in testifying favorably for the government, and considering that two of them did not testify positively that Perez as well as the other man had guided them across the Rio Grande.

Because of this overwhelming evidence of guilt, we do not find reversible merit to Perez' principal contention on appeal: that the district court erred in denying a mistrial when the government immigration officer, in answer to a question as to what he had done when he went to the jail, testified that, previously to going there, another immigration officer had identified Perez "as a subject he had encountered several times previously as a defendant in other smuggling cases." The district court sustained the defendant's objection to this unresponsive hearsay reply, which improperly injected extraneous offenses into the evidence. The trial judge agreed that, even if the hearsay-reported incidents could be admissible as a closely related extraneous offense, it would be more prejudicial than probative, and he gave strong admonitions to the jury to disregard it. However, he then overruled Perez' motion for a mistrial.

Under somewhat similar circumstances, where likewise an immigration agent improperly injected prejudicial information by an unresponsive answer to a question, we recently reversed a conviction. United States v. Escamilla, 666 F.2d 126 (...