IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41423
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE OSCAR GOMEZ,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-352-ALL
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September 9, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Oscar Gomez has appealed his sentence and conviction on two counts of transporting
aliens who were in the United States illegally. We AFFIRM.
Gomez contends that the district court abused its discretion by denying his motion for a
mistrial because the Government elicited testimony that he had admitted having transported aliens
previously. This contention lacks merit because Gomez’s statement was admissible against him as
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
an admission by a party, pursuant to FED. R. EVID. 801(d)(2)(A). See United States v. Hutchins, 818
F.2d 322, 328 (5th Cir. 1987).
Gomez contends that the district court reversibly erred by overruling his objection to
testimony of a Border Patrol investigator concerning whether what happened to the aliens in this case
was consistent with smuggling by an organized ring. There was no abuse of discretion in admitting
this testimony because it was helpful and “its relevance [was] not substantially outweighed by the
possibility of unfair prejudice or confusion.” See United States v. Garcia, 86 F.3d 394, 400 (5th Cir.
1996).
Gomez asserts that he was denied his Sixth Amendment right to have compulsory process for
obtaining witnesses by the Government’s deporting five of the seven aliens arrested, without giving
counsel an opportunity to interview them to determine whether they should be called to testify for
the defense. He also states conclusionally that this denied him equal protection and due process,
entitling him to dismissal of the indictment. Gomez is not entitled to relief because he has not shown
that any testimony of the deported aliens would have been favorable to his defense and not merely
cumulative to testimony given at his trial. See United States v. Romero-Cruz, 201 F.3d 374, 377
(5th Cir. 2000).
Gomez contends that the district court reversibly erred by refusing to give the “missing
witness” instruction which he requested, which would be applicable to the five deported aliens. The
ruling was not an abuse of discretion because it appears that the five aliens’ testimony probably would
have been cumulative or corroborative. See United States v. Jennings, 724 F.2d 436, 446 (5th Cir.
1984).
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Gomez contends that the district court erred by enhancing his sentence pursuant to U.S.S.G.
§ 3C1.1, on the ground that he obstructed justice by testifying untruthfully at his trial. The district
court’s finding, by necessary implication, that Gomez perjured himself relative to the intent element
justified the enhancement. See United States v. Odiodio, 244 F.3d 398, 404-05 (5th Cir. 2001).
The district court’s judgment is due to be, and it is hereby, AFFIRMED.
AFFIRMED.
-3-
United States v. Gomez
Combined Opinion