United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 26, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50249
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO DAVID BALDERAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(DR-02-CR-113-1-WWJ)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Gilberto David Balderas appeals his jury trial convictions for
two counts of harboring illegal aliens (8 U.S.C. §
1324(a)(1)(A)(iii)) and for one count of conspiracy to harbor
illegal aliens (8 U.S.C. § 1324(a)(1)(A)(v)(I)). Balderas contends
that the evidence was insufficient to support his convictions
because it proved, at most, that he provided illegal aliens with
temporary shelter. Because Balderas did not move for a judgment of
acquittal at the close of the evidence, our review is limited to
*
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this opinion should not be published and is not precedent except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.
determining whether there was a “manifest miscarriage of justice”.
See United States v. Johnson, 87 F.3d 133, 136 (5th Cir. 1996),
cert. denied, 520 U.S. 1192 (1997).
An individual violates 8 U.S.C. § 1324(a)(1)(A)(iii) if he
knowingly “conceals, harbors, or shields from detection” an illegal
alien. Because affording shelter to an illegal alien is conduct
which by its nature tends to substantially facilitate the alien’s
remaining in the United States illegally, providing shelter to
illegal aliens constitutes harboring illegal aliens under 8 U.S.C.
§ 1324(a)(1)(A)(iii). See United States v. Cantu, 557 F.2d 1173,
1180 (5th Cir. 1977), cert. denied, 434 U.S. 1063 (1978); see also
United States v. Acosta De Evans, 531 F.2d 428, 430 (9th Cir.),
cert. denied, 429 U.S. 836 (1976); United States v. Lopez, 521 F.2d
437, 440 (2d Cir.), cert. denied, 423 U.S. 995 (1975).
There was no manifest miscarriage of justice, because the
record is not “devoid of evidence” pointing to Balderas’ guilt nor
is the evidence so tenuous that Balderas’ convictions are shocking.
See United States v. Laury, 49 F.3d 145, 151 (5th Cir.), cert.
denied, 516 U.S. 857 (1995). For example, there was evidence that:
next to Balderas’ residence was a red light that could function as
a signal to aliens; Balderas’ wife let a group of aliens into their
home; she informed Balderas that there were illegal aliens staying
there; and he told her he did not care.
AFFIRMED
2