United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 7, 2003
Charles R. Fulbruge III
Clerk
No. 02-41573
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISRAEL CORTEZ, III,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-259-1
--------------------
Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Israel Cortez, III, appeals from his
conviction for transporting illegal aliens within the United States
for financial gain. He argues that (1) his rights under the
Confrontation Clause were violated by testimony adduced from
a Border Patrol agent regarding the aliens’ pick-up location;
(2) the district court abused its discretion by excluding from
evidence the immigration interview files of the 18 deported alien
*
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this opinion should not be published and is not precedent except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.
witnesses; and (3) the pre-trial deportation of those 18 illegal
aliens violated his rights under the Fifth and Sixth Amendments.
We need not determine whether the testimony adduced by
Agent Bustamante violated Cortez’s rights under the Confrontation
Clause, because we find that it was harmless. See United States v.
Edwards, 303 F.3d 606, 623 (5th Cir. 2002), cert. denied, 123 S.
Ct. 1272 (2003). The prosecution’s case against Cortez was strong.
Even absent the contested testimony, the evidence wholly refuted
Cortez’s theory of the case, and defense counsel extensively cross-
examined Bustamante on this issue.
Cortez contends that the district court abused its discretion
in excluding the files of the 18 deported aliens from evidence by
virtue of erroneously applying FED. R. EVID. 803(8)(B). Our review
of the trial transcript, however, reveals that the district court’s
evidentiary ruling was not based on an application of Rule
803(8)(B); rather, it was based on a determination that the
standardized questions asked of the aliens were too generalized for
their answers to be used as contradictory evidence of where
Cortez's trailer had picked up the aliens. And, as Cortez does not
assign error to this ruling by the district court, he has waived
its review. See United States v. Valdiosera-Godinez, 932 F.2d
1093, 1099 (5th Cir. 1991).
As for the pre-trial deportation of the remaining aliens, we
hold that Cortez’s Fifth and Sixth Amendment rights were not
violated, because Cortez has failed to make a plausible showing
2
that their testimony would have been material and favorable to his
defense. See United States v. Perez, 217 F.3d 323, 326 (5th Cir.
2000).
AFFIRMED.
3