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--------------------------------------------------------------------------------
 Case Name:
USA V PENA-GUTIERREZ 
Case Number: Date Filed: 
99-50057 08/11/00 
-------------------------------------------------------------------------------
 FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 99-50057
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CR-98-00564-ANB
RALPH PENA-GUTIERREZ,
                                                     OPINION
Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California
Alan N. Bloch, District Judge, Presiding

Submitted October 13, 1999*
Pasadena, California

Filed August 11, 2000

Before: Sidney R. Thomas, Barry G. Silverman, and Kim
McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw
_________________________________________________________________
COUNSEL

Mayra Garcia, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.

Daniel S. Drosman, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.

_________________________________________________________________

                               9873
OPINION

WARDLAW, Circuit Judge:

Ralph Pena-Gutierrez ("Pena-Gutierrez") seeks reversal of his jury conviction for bringing an illegal alien into the United States, see 8 U.S.C. S 1324(a)(2)(B)(ii), (iii), and transporting illegal aliens within the United States, see id.  S 1324(a)(1)
(A)(ii). We reject Pena-Gutierrez's argument that the government violated his rights under the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment when it deported an illegal alien whose hearsay statement was admitted at trial, Israel Macias-Limon ("Macias-Limon"), because Pena-Gutierrez failed to demonstrate either bad faith by the government or prejudice to his case. Furthermore, although the district court erred by admitting an INS report, itself inadmissible hearsay, which contained additional inadmissible hearsay in the form of Macias-Limon's out-of-court statement, we find the error was harmless. We also reject Pena-Gutierrez's claims of evidentiary error relating to a diagram of the vehicle Pena-Gutierrez drove to the United States/Mexico border because the diagram and accompanying testimony were both relevant and not unduly prejudicial. Nor did the district court err by denying Pena-Gutierrez a role adjustment for being a minor participant in the illegal smuggling activity. We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a), and we affirm.

I.

On two separate days within a two-week period in early 1998, federal agents discovered illegal aliens secreted in various compartments of a car driven by Pena-Gutierrez across the California/Mexico border.

On January 25, 1998, Pena-Gutierrez drove a 1984 Buick station wagon into the United States from Mexico at the San

                               9874


Ysidro, California Port of Entry. U.S. Customs Inspector Ken-
neth Slaughter questioned Pena-Gutierrez at the port of
entry's primary-inspection area. In response to this question-
ing, Pena-Gutierrez stated that he had recently purchased the
Buick. Inspector Slaughter noticed, however, that the name on
the vehicle registration did not match the name on Pena-
Gutierrez's resident-alien card. Inspector Slaughter also found
it suspicious that Pena-Gutierrez had only two keys on his key
ring, because his "experience . . . is when we have two keys
on the vehicle, there's either . . . narcotics or aliens in the
vehicle." Based on these and other observations of Pena-
Gutierrez's demeanor, Inspector Slaughter referred Pena-
Gutierrez to the secondary-inspection lot.

There, U.S. Customs Inspector Barbara Thomas inspected
the Buick. At the rear of the car, she "dropped the tailgate and
then reached inside and pulled down the cover that's over the
wheel well on the side of the car." Inside this side spare-tire
compartment, Inspector Thomas found an Hispanic male,
later identified as Macias-Limon, "kind of crawled up in a lit-
tle ball and . . . all sweaty." Another Immigration officer then
removed Macias-Limon from the compartment, and INS
agents questioned both Pena-Gutierrez and Macias-Limon.

In response to this questioning, Pena-Gutierrez stated that
he did not know that Macias-Limon was hidden in the car,
that he had never seen Macias-Limon before, and that he was
receiving no monetary payment for transporting Macias-
Limon. Macias-Limon stated that he was a citizen and
national of Mexico, that he had been placed in the spare-tire
compartment on a street in Tijuana, Mexico, that he was en
route to Los Angeles to seek employment, and that no money
was to be exchanged for his transport. After completing its
interviews of the two men, the INS declined to prosecute
Pena-Gutierrez. It later released Pena-Gutierrez and deported
Macias-Limon to Mexico.

Just two weeks later, on February 10, 1998, Pena-Gutierrez
drove a 1990 Ford Probe to the San Clemente, California

                               9875


border-patrol checkpoint. U.S. Border Patrol Agent Brandon
Scott, who was on duty at the time, noticed that the car
appeared heavily loaded in the back, and he motioned for
Pena-Gutierrez to stop. Pena-Gutierrez did not pull over until
his car was approximately ten feet past the spot that Agent
Scott had indicated. Once he brought his car to a stop, Agent
Scott approached, whereupon Pena-Gutierrez volunteered that
he and his visible passenger, Ana Maria Hernandez-Rojas
("Hernandez-Rojas"), were United States citizens on their
way to Los Angeles. Agent Scott observed, however, that
Pena-Gutierrez spoke rapidly and did not make eye contact,
and that Hernandez-Rojas was "sitting really stiff and rigid"
and stared "straight ahead." On that basis, he referred the two
to secondary inspection.

At secondary inspection, Pena-Gutierrez answered the
questions of U.S. Border Patrol Agent Claudia Field, stating
that he was a United States citizen but that he had no identifi-
cation with him. Agent Field then asked Pena-Gutierrez if she
could look inside the hatchback of his car. Pena-Gutierrez
consented, left the Ford, inserted a key in the lock of the
hatchback, and turned the key several times without success-
fully opening the hatchback. Meanwhile, another agent had
asked Hernandez-Rojas to identify her citizenship and had
determined that she was a Mexican citizen illegally in the
United States. Upon this determination, the agents immedi-
ately arrested Pena-Gutierrez. Agent Field then opened the
hatchback herself and discovered Alberto Bernal-Hernandez,
Jose Bernal-Hernandez, and Jesus Michel-Lara inside. These
three men stated that they were also Mexican citizens illegally
in the United States.

After completing its investigation, the INS allowed
Hernandez-Rojas and her son, Alberto Bernal-Hernandez, to
return to Mexico voluntarily. The government decided to hold
both Jose Bernal-Hernandez and Jesus Michel-Lara as mate-
rial witnesses.

                               9876


On April 15, 1998, the United States filed a four-count
superseding indictment against Pena-Gutierrez in the South-
ern District of California. Count one charged bringing in an
illegal alien, namely Macias-Limon, for the purpose of com-
mercial advantage or private financial gain, in violation of 8
U.S.C. S 1324(a)(2)(B)(ii). Count two charged Pena-Gutierrez
with bringing in Macias-Limon and failing to bring and pre-
sent him to an appropriate immigration officer, in violation of
8 U.S.C. S 1324(a)(2)(B)(iii). Counts three and four charged
Pena-Gutierrez with transportation of illegal aliens, namely
Jose Bernal-Hernandez and Jesus Michel-Lara, in violation of
8 U.S.C. S 1324(a)(1)(A)(ii).

During the ensuing two-day trial, the district court admitted
into evidence, over Pena-Gutierrez's objection, an INS report
that contained the statement Macias-Limon made to INS
agents on January 25, 1998. Macias-Limon did not appear as
a witness at trial. The district court also admitted over objec-
tion a diagram of the Buick station wagon that Pena-Gutierrez
drove across the border on January 25, along with accompa-
nying testimony by a U.S. Customs inspector. This diagram
demonstrated the location of the car's spare-tire compartment
and how Macias-Limon was concealed inside it.

A jury found Pena-Gutierrez guilty on all four counts of the
indictment, and, after refusing to grant a role adjustment
under section 3B1.2 of the U.S. Sentencing Guidelines, the
district court sentenced Pena-Gutierrez to sixty months in cus-
tody, ordered him to serve three years of supervised release,
and required him to pay a $400.00 penalty assessment. This
appeal followed.

II.

After declining prosecution on the January 25, 1998 inci-
dent, the INS deported Macias-Limon to Mexico. Pena-
Gutierrez contends that, because Macias-Limon was a poten-
tial defense witness, this act violated the Compulsory Process

                               9877


Clause of the Sixth Amendment and the Due Process Clause
of the Fifth Amendment. Because Pena-Gutierrez has demon-
strated neither governmental bad faith nor prejudicial conduct,
we conclude that the district court did not err in denying his
motion to dismiss counts one and two on this basis. 1 See
United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991)
(holding that to establish compulsory process and due process
violations by the deportation of an alien witness,"the defen-
dant must make an initial showing that the Government acted
in bad faith and that this conduct resulted in prejudice to the
defendant's case." (citing United States v. Valenzuela-Bernal,
458 U.S. 858, 873 (1982))).

[1] To establish that the government acted in bad faith,
Pena-Gutierrez must show either "that the Government
departed from normal deportation procedures" or "that the
Government deported [Macias-Limon] to gain an unfair tacti-
cal advantage over him at trial." Id. at 695. Pena-Gutierrez
has made no showing that the government departed from nor-
mal practice in deporting Macias-Limon. Nor can Pena-
Gutierrez demonstrate that the government deported Macias-
Limon to "gain an unfair tactical advantage over him at trial."
Id.; see also California v. Trombetta, 467 U.S. 479, 488
(1984) (finding no bad faith under the Due Process Clause
when "[t]he record contains no allegation of official animus
. . . or of a conscious effort to suppress exculpatory evi-
dence"). When the government deported Macias-Limon, it
had decided not to prosecute Pena-Gutierrez and had released
him. Therefore, the government could not have been moti-
vated by any perceived tactical advantage at trial. Cf. United
States v. Velarde-Gavarette, 975 F.2d 672, 675-76 (9th Cir.
1992) (upholding a district court's finding that the INS did not
_________________________________________________________________
1 We review de novo the district court's decision to deny Pena-
Gutierrez's motion to dismiss the indictment for failure to retain a witness.
See United States v. Armenta, 69 F.3d 304, 306 (9th Cir. 1995). We
review the district court's underlying findings of fact for clear error. See
id.

                               9878


act in bad faith under Dring when it deported several aliens
after the DEA failed to charge any of the aliens within an
INS-imposed forty-eight hour deadline, although the DEA
later charged two of the aliens who were not deported). We
thus find that Pena-Gutierrez has not made the requisite show-
ing of bad faith.

[2] Pena-Gutierrez has also failed to prove prejudice
because Macias-Limon's proposed testimony, although mate-
rial and possibly favorable, was "merely cumulative to the
testimony of available witnesses." Dring, 930 F.2d at 693-94
(quoting Valenzuela-Bernal, 458 U.S. at 873) (internal quota-
tion marks omitted). According to Pena-Gutierrez, Macias-
Limon would have "stated no money was to be exchanged for
the transport." Because he was charged with bringing in an
alien for profit, this information would have been helpful to
Pena-Gutierrez's case. However, INS Inspector Anita Ander-
son testified to the same point: that Macias-Limon "stated that
no money was to be paid or exchanged for the vehicle trans-
port." See United States v. Tafollo-Cardenas , 897 F.2d 976,
979 (9th Cir. 1990) ("Vega's testimony would have been
`merely cumulative,' and we do not find that there was a rea-
sonable likelihood that hearing the story a third time would
have `affected the judgment of the trier of fact.' ").2
_________________________________________________________________
2 Pena-Gutierrez also advances new facts, arguing that Macias-Limon
might have explained that Pena-Gutierrez did not place him in the van and
was not involved in the smuggling. Pena-Gutierrez advances these facts,
however, without meeting the Supreme Court's well-established proce-
dural prerequisites. In United States v. Valenzuela-Bernal, the Supreme
Court held that when "the criminal defendant . . . advance[s] additional
facts, either consistent with facts already known to the court or accompa-
nied by a reasonable explanation for their inconsistency with such facts,
with a view to persuading the court that the deported witness would have
been material and favorable to his defense," this "explanation of material-
ity . . . should be verified by an oath or affirmation of either the defendant
or his attorney." Valenzuela-Bernal, 458 U.S. at 873. Neither Pena-
Gutierrez nor his attorney ever verified their allegations as to what
Macias-Limon "might have explained" in his testimony, and thus they
failed to demonstrate prejudice.

                               9879


III.

The central question this case presents is one not previously
answered by our court: when the government has the name
and address of a foreign witness, but makes no effort to con-
tact that witness in his native country, is the witness "unavail-
able" under Rule 804(a) of the Federal Rules of Evidence?
We hold that he is not, but we find that the district court's rul-
ing to the contrary was harmless error.

[3] Like many illegal aliens unsuccessfully smuggled into
the United States, Macias-Limon was interviewed and then
sent home across the border. The government had Macias-
Limon's name and his address in Mexico. It made no attempt
to contact him, however, and Macias-Limon did not appear as
a witness at trial. Nevertheless, the district court admitted into
evidence, over Pena-Gutierrez's objection, a report that INS
Inspector Anita Anderson prepared during her interview with
Macias-Limon. This hearsay report contained Macias-
Limon's hearsay statement that he was a citizen and national
of Mexico. See Fed. R. Evid. 801(c) (" `Hearsay' is a state-
ment, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted."). Pena-Gutierrez argues (i) that this
hearsay-within-hearsay was inadmissible under the Federal
Rules of Evidence, see id. 805 ("Hearsay included within
hearsay is not excluded under the hearsay rule if each part of
the combined statements conforms with an exception to the
hearsay rule . . . ." ); (ii) that its admission violated his rights
under the Confrontation Clause of the Sixth Amendment; and
(iii) that "[w]ithout the hearsay testimony .. . , the govern-
ment could not prove its case." Applying the appropriate stan-
dards of review,3 we hold that the district court erred in
_________________________________________________________________
3 We review de novo whether the district court correctly construed the
hearsay rule, see United States v. Olafson, 203 F.3d 560, 565 (9th Cir.),
amended by 213 F.3d 435 (9th Cir. 2000), and whether the Confrontation
Clause was violated, see United States v. Bowman, 215 F.3d 951, 960 (9th
Cir. 2000). We review for an abuse of discretion the district court's deci-
sion to admit evidence under a hearsay exception, including its decision
that Macias-Limon was unavailable. See Olafson , 203 F.3d at 565-66.

                               9880


admitting Macias-Limon's hearsay statement within Inspector
Anderson's hearsay report; we assume, without deciding, that
this error constituted a Confrontation Clause violation; and we
conclude that the error was harmless beyond a reasonable
doubt.

A.

[4] The district court admitted Inspector Anderson's report
under the recorded-recollection exception to the hearsay rule.
See Fed. R. Evid. 803(5). In United States v. Orozco, 590 F.2d
789 (9th Cir. 1979), however, we held that district courts
should admit such law-enforcement reports, if at all, only
under the public-records exception contained in Federal Rule
of Evidence 803(8). See id. at 793 ("While governmental
functions could be included within the broad definition of
`business' in rule 803(6), such a result is obviated by rule
803(8) . . . ."); see also United States v. Sims, 617 F.2d 1371,
1377 (9th Cir. 1980) (stating that "the plain language of Rule
803(8) makes it abundantly clear that it is the rule which cov-
ers reports made by law enforcement personnel"); Orozco,
590 F.2d at 793 ("The customs inspector is one of the `law
enforcement personnel' included in rule 803(8)."). Therefore,
to decide whether the district court properly admitted this
report, we must consider whether it falls within the public-
records exception. We conclude that it does not.

Rule 803(8) allows the admission of public records "setting
forth . . . matters observed pursuant to duty imposed by law
as to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police officers
and other law enforcement personnel." Fed. R. Evid.
803(8)(B). As we have explained, "[i]n excluding `matters
observed by . . . law enforcement personnel' from the cover-
age of the exception," Orozco, 590 F.2d at 793, Congress "in-
tended to [exclude] observations made by law enforcement
officials at the scene of a crime or the apprehension of the
accused and not `records of routine, nonadversarial matters'

                               9881


made in a nonadversarial setting." United States v. Wilmer,
799 F.2d 495, 501 (9th Cir. 1986) (quoting Orozco, 590 F.2d
at 793); see also Fed. R. Evid. 803(8) advisory committee's
note ("Ostensibly, the reason for this exclusion is that obser-
vations by police officers at the scene of the crime or the
apprehension of the defendant are not as reliable as observa-
tions by public officials in other cases because of the adver-
sarial nature of the confrontation between the police and the
defendant in criminal cases.").

In this case, the questioning of Macias-Limon by INS
Inspector Anderson took place in the INS Fraud Office soon
after authorities stopped Pena-Gutierrez's car and found
Macias-Limon hidden inside, and it took place before the INS
decided what, if any, action to take regarding this incident.
See Wilmer, 799 F.2d at 501. Moreover, Macias-Limon was
not subjected to objective or scientific testing, or even the
standardized administrative questioning asked of everyone at
a border crossing. Inspector Anderson was conducting a crim-
inal interrogation. See Wigglesworth v. Oregon , 49 F.3d 578,
580-81 (9th Cir. 1995) (noting that "the objective results of a
routine test" would be admissible under the public-records
exception while a report "dependent upon some subjective
evaluation" would not); United States v. Hernandez-Rojas,
617 F.2d 533, 535 (9th Cir. 1980) (stating that "the subjective
report made by a law enforcement official in an on-the-scene
investigation . . . lack[s] sufficient guarantees of trustworthi-
ness because [it is] made in an adversary setting [and is]
likely to be used in litigation"). Therefore, we hold that the
district court erred under Federal Rules of Evidence 802 and
803(8) in admitting into evidence "the on-the-scene investiga-
tive report of a crime by a[n INS] officer whose perceptions
might be clouded and untrustworthy." Wilmer , 799 F.2d at
501.

                               9882


B.

[5] Even if we were to find the report itself admissible, the
statement of the deported witness it contained was inadmissi-
ble hearsay. See Sana v. Hawaiian Cruises, Ltd. , 181 F.3d
1041, 1045 (9th Cir. 1999) (stating that for hearsay-within-
hearsay to be admissible, "each layer of hearsay must satisfy
an exception to the hearsay rule"). The district court admitted
this statement after finding Macias-Limon "unavailable"
under Rule 804(a)(5) of the Federal Rules of Evidence, see
Fed. R. Evid. 804(a)(5), and although the district court did not
specify which exception the statement satisfied under Rule
804(b), see id. 804(b) (listing the types of hearsay that "are
not excluded by the hearsay rule if the declarant is unavailable
as a witness"), we have previously noted that a declarant's
"statement to immigration officers regarding his citizenship
and alienage was . . . admissible under the hearsay exceptions
for statements against interest and statements of personal or
family history," United States v. Olafson, 203 F.3d 560, 565-
66 (9th Cir.), amended by 213 F.3d 435 (9th Cir. 2000); see
also Fed. R. Evid. 804(b)(3) (statement-against-interest hear-
say exception); id. 804(b)(4) (statement-of-personal-or-
family-history hearsay exception).4 Contrary to the district
court's finding, we hold that Macias-Limon was not "unavail-
able" within the meaning of Rule 804(a)(5). See id. 804(a)(5)
(" `Unavailability as a witness' includes situations in which
the declarant . . . is absent from the hearing and the proponent
of a statement has been unable to procure the declarant's
attendance (or in the case of a hearsay exception under subdi-
vision (b)(2), (3), or (4), the declarant's attendance or testi-
mony) by process or other reasonable means."). Therefore, we
conclude that the district court erred in admitting Macias-
Limon's hearsay statement.5
_________________________________________________________________
4 Pena-Gutierrez does not challenge the admissibility of Macias-Limon's
statement under Rule 804(b).
5 Nor was Macias-Limon's statement admissible under any of the excep-
tions listed in Federal Rule of Evidence 803, which would apply "even
though the declarant is available as a witness," Fed. R. Evid. 803. See
United States v. Becerra, 992 F.2d 960, 965 (9th Cir. 1993) ("We may
affirm on any ground fairly supported by the record. " (quoting United
States v. Telnik, Inc., 910 F.2d 598, 600 n.1 (9th Cir. 1990) (internal quo-
tation marks omitted)).

                               9883


In United States v. Winn, 767 F.2d 527 (9th Cir. 1985), we
faced this very issue: under what circumstances are Mexican
citizens who have been deported by federal agents for ille-
gally entering the country "unavailable" under Rule 804(a)?
We held in Winn that "[a] witness is not `unavailable' unless
the prosecutor makes a good faith effort to obtain the wit-
ness's presence." Id. at 530; accord Olafson, 203 F.3d at 565;
Christian v. Rhode, 41 F.3d 461, 467 (9th Cir. 1994). "But
`[t]he law does not require the doing of a futile act,' and the
extent of the efforts the prosecutor must make is a question
of reasonableness." Winn, 767 F.2d at 530 (quoting Ohio v.
Roberts, 448 U.S. 56, 74 (1980)) (alteration in original);
accord Olafson, 203 F.3d at 565; see also Christian, 41 F.3d
at 467 ("The lengths to which a prosecutor must go to estab-
lish good faith is a question of reasonableness."). As we stated
in Winn, when the government has "no addresses or any other
information that would help locate" the deported aliens, "it
[i]s reasonable for the government to make no effort to find
the . . . aliens." Winn, 767 F.2d at 530.

[6] In this case, however, unlike in Winn, the government
had Macias-Limon's address in Mexico. In addition, the gov-
ernment asserted no basis for believing that Macias-Limon
would not respond to a request to return to the United States
to testify. Although " `[g]ood faith' and `reasonableness' are
terms that demand fact-intensive, case-by-case analysis, not
rigid rules," Christian, 41 F.3d at 467, the government's fail-
ure to make any effort to contact Macias-Limon when it had
his address in hand was per se unreasonable.

[7] This holding is not inconsistent with our recent decision
in United States v. Olafson. See Olafson , 203 F.3d at 566
(holding that the district court did not abuse its discretion in
finding that a deported alien was "unavailable " under Winn
because he was "inadvertently returned to Mexico,. . . beyond
the subpoena power of the district court, and failed to respond
to efforts to persuade [him] to return to the United States to
testify"). In Olafson, we did not reach the issue we resolve

                               9884


here, because although the record was unclear as to whether
the government had made any attempt to contact a deported
witness deemed "unavailable," it was unnecessary to resolve
this issue to decide Olafson's appeal. See id.  at 566 n.2; cf.
United States v. Medjuck, 156 F.3d 916, 920 (9th Cir. 1998)
("Here, the Canadian witnesses were unavailable for trial
because they were beyond the subpoena power of the United
States and refused voluntarily to attend."), cert. denied, 527
U.S. 1006 (1999); Christian, 41 F.3d at 467 (finding that the
prosecution's efforts were reasonable and that witnesses were
"unavailable" under Rule 804 when "the prosecution asked
the witnesses if they would come to the United States to tes-
tify at trial," and "they refused"); United States v. Sines, 761
F.2d 1434, 1441 (9th Cir. 1985) (finding that a witness was
"unavailable" under Rule 804 when, "after a series of contacts
through various diplomatic channels, the Thai government
had clearly indicated its unwillingness to permit[the witness]
to leave Thailand to testify"). Under the circumstances of this
case, we hold that the district court abused its discretion when
it found that Macias-Limon was "unavailable" for purposes of
Rule 804(a).

C.

Pena-Gutierrez argues that the district court's evidentiary
error in admitting Macias-Limon's hearsay statement within
Inspector Anderson's hearsay report amounted to a violation
of the Confrontation Clause of the Sixth Amendment. We
need not decide this question, however, because even assum-
ing a Confrontation Clause violation here, we find that the
district court's error was harmless beyond a reasonable doubt.
See United States v. Bowman, 215 F.3d 951, 961 (9th Cir.
2000) (noting that "[e]vidence erroneously admitted in viola-
tion of the Confrontation Clause must be shown harmless
beyond a reasonable doubt"); United States v. Magana-
Olvera, 917 F.2d 401, 409 (9th Cir. 1990) (holding that for
Confrontation Clause violations, "[r]eversal is not required if

                               9885


`the error was harmless beyond a reasonable doubt.' " (quot-
ing Toolate v. Borg, 828 F.2d 571, 575 (9th Cir. 1987))).

Whether a violation of the Confrontation Clause is harm-
less beyond a reasonable doubt "depends on a variety of fac-
tors, including whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradict-
ing the testimony on material points, the extent of the cross-
examination, and of course, the overall strength of the prose-
cution's case." United States v. Mayfield, 189 F.3d 895, 906
(9th Cir. 1999) (quoting United States v. Peterson, 140 F.3d
819, 822 (9th Cir. 1998)) (internal quotation marks omitted).
As Pena-Gutierrez concedes, the only relevant evidence sup-
plied by this inadmissible hearsay was Macias-Limon's con-
cession of his Mexican citizenship. That is, for the
government to convict Pena-Gutierrez on counts one and two
of the indictment, it had to prove, inter alia , that Macias-
Limon was an illegal alien, see 8 U.S.C.S 1324(a)(2)(B)(ii),
(iii), and Macias-Limon's own statement that he was a citizen
and national of Mexico certainly made the fact of his illegal
alienage "more probable . . . than it would be without the evi-
dence," Fed. R. Evid. 401.

[8] There was sufficient evidence admitted during trial,
however, from which the jury could find beyond a reasonable
doubt that Macias-Limon was an illegal alien, without the
benefit of this hearsay statement. In particular, it is undisputed
that the INS removed Macias-Limon from the United States,
a sanction reserved for aliens. See 8 U.S.C.S 1225; id.
S 1227; id. S 1252(b)(5); see also Mathews v. Diaz, 426 U.S.
67, 80 (1976) ("The exclusion of aliens and the reservation of
the power to deport have no permissible counterpart in the
Federal Government's power to regulate the conduct of its
own citizenry." (footnotes omitted)); Ng Fung Ho v. White,
259 U.S. 276, 284 (1922) ("Jurisdiction in the executive to
order deportation exists only if the person arrested is an
alien."). Furthermore, the government offered uncontroverted
evidence that Macias-Limon was without immigration papers

                               9886


and was transported across the international border in the
spare-tire compartment of Pena-Gutierrez's car,"kind of
crawled up in a little ball and . . . all sweaty. " If Macias-
Limon had been a citizen of the United States or otherwise
legally entering the country, he would not have been required
to go through such contortions to cross the border. See Winn,
767 F.2d at 530. Finally, just over two weeks after being
caught transporting Macias-Limon into the United States, fed-
eral agents again stopped Pena-Gutierrez near the California/
Mexico border, and one of the men concealed in the car dur-
ing this second incident testified at trial that he was a Mexican
citizen. See Fed. R. Evid. 404(b); United States v. Ayers, 924
F.2d 1468, 1473 (9th Cir. 1991) ("While most of the cases
addressing other acts evidence, admitted pursuant to Rule
404(b), involve prior crimes or acts of misconduct, it is clear
that evidence of subsequent crimes or acts of misconduct is
admissible if it is relevant to an issue at trial."). Thus, because
from the properly admitted evidence "a jury could confidently
conclude that" Macias-Limon was an illegal alien, we hold
that the district court's error was harmless beyond a reason-
able doubt. Magana-Olvera, 917 F.2d at 409.

IV.

The district court also admitted into evidence a diagram of
the 1984 Buick station wagon that Pena-Gutierrez drove into
the United States from Mexico on January 25, 1998. This rel-
atively crude diagram demonstrated how Macias-Limon was
hidden inside the car's spare-tire compartment. Pena-
Gutierrez argues that both the diagram and the accompanying
testimony by U.S. Customs Inspector Barbara Thomas were
irrelevant, see Fed. R. Evid. 401, and accordingly inadmissi-
ble, see id. 402. Specifically, he contends that knowledge was
the only disputed issue; "[t]he condition of the illegal alien
had nothing to do with knowledge"; and, therefore, the dia-
gram depicting Macias-Limon's condition was not relevant
evidence. However, as the advisory committee's note to Rule
401 of the Federal Rules of Evidence explains,

                               9887


      [t]he fact to which the evidence is directed need not
      be in dispute. . . . Evidence which is essentially
      background in nature can scarcely be said to involve
      disputed matter, yet it is universally offered and
      admitted as an aid to understanding. Charts, photo-
      graphs, views of real estate, murder weapons, and
      many other items of evidence fall in this category.

Id. 401 advisory committee's note; see also Old Chief v.
United States, 519 U.S. 172, 179 (1997) (endorsing strongly
this aspect of the advisory committee's note).

[9] In addition, to convict Pena-Gutierrez on counts one
and two, the government had to prove that Macias-Limon was
an illegal alien. See 8 U.S.C. S 1324(a)(2)(B)(ii), (iii). A dia-
gram, along with explanatory testimony, demonstrating
Macias-Limon's location in the spare-tire compartment of
Pena-Gutierrez's Buick was certainly "a step on one evidenti-
ary route to [this] ultimate fact." Old Chief, 519 U.S. at 179;
cf. United States v. Soto-Camacho, 58 F.3d 408, 412 (9th Cir.
1995) (holding that Border Patrol agents had reasonable sus-
picion for a border search when, inter alia, the agents thought
that an illegal alien could have been concealed in the rear
spare-tire compartment). Therefore, the district did not abuse
its discretion in finding this evidence relevant.

Pena-Gutierrez also argues that the admission of the dia-
gram and accompanying testimony violated Federal Rule of
Evidence 403. He asserts that the district court erred in failing
to perform an explicit balancing test and that the evidence's
"probative value is substantially outweighed by the danger of
unfair prejudice." Fed. R. Evid. 403. These arguments are
without merit.

[10] We do not require explicit balancing on the record
when the district court rules on a Rule 403 objection. See
United States v. Robertson, 15 F.3d 862, 873 (9th Cir. 1994),
rev'd on other grounds, 514 U.S. 669 (1995), opinion rein-

                               9888


stated in relevant part, 73 F.3d 249 (9th Cir. 1996); United
States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir.
1992). Because Pena-Gutierrez argued before the district
court that admission of the diagram and Inspector Thomas's
accompanying testimony would be unduly prejudicial, as in
Robertson, we find that "the district court implicitly engaged
in the requisite balancing, even though it did not explicitly
state that it was doing so on the record." Robertson, 15 F.3d
at 873.

Moreover, considering the nature of evidence we have
found unduly prejudicial in the past, the non-graphic diagram
of a Buick station wagon and its companion testimony simply
were not of a nature likely to unfairly prejudice the jury
against Pena-Gutierrez. See, e.g., United States v. Brady, 579
F.2d 1121, 1129 (9th Cir. 1978) (noting that a crime-scene
"photograph is inadmissible only when the picture is of such
gruesome and horrifying nature that its probative value is out-
weighed by the danger of inflaming the jury"); see also
United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995)
("Rule 403 . . is `an extraordinary remedy to be used spar-
ingly because it permits the trial court to exclude otherwise
relevant evidence.' "). Therefore, we hold that the district
court did not abuse its discretion under Rule 403 by admitting
into evidence this diagram and Inspector Thomas's explana-
tory testimony.

V.

Finally, Pena-Gutierrez challenges the sentence imposed by
the district court. He argues that he was a minor participant
in the alien-smuggling operation, and that the district court
therefore erred under section 3B1.2 of the U.S. Sentencing
Guidelines by not decreasing his offense level by two levels.
See U.S.S.G. S 3B1.2(b) (1998) ("If the defendant was a
minor participant in any criminal activity, decrease[the
offense level] by 2 levels."). "[T]his court has consistently
stated that a downward adjustment under section 3B1.2 is to

                               9889


be used infrequently and only in exceptional circumstances."
United States v. Hernandez-Franco, 189 F.3d 1151, 1160 (9th
Cir. 1999) (quoting United States v. Davis, 36 F.3d 1424,
1436 (9th Cir. 1994)) (internal quotation marks omitted), cert.
denied, 120 S. Ct. 2203 (2000). "The defendant has the bur-
den of proving by a preponderance of the evidence that he is
entitled to a downward adjustment based on his role in the
offense." United States v. Ladum, 141 F.3d 1328, 1348 (9th
Cir. 1998). The district court's determination that the defen-
dant was not a minor participant in the offense is a factual
determination that we review for clear error. See United States
v. Duran, 189 F.3d 1071, 1088 (9th Cir. 1999), cert. denied,
120 S. Ct. 1706 (2000).

[11] "The Guidelines define a `minor participant' as `any
participant who is less culpable than most other participants,
but whose role could not be described as minimal.' " Id.
(quoting U.S.S.G. S 3B1.2, comment. (n.3) (1998)). "We have
interpreted this definition to mean that a minor role adjust-
ment is warranted only if the defendant is `substantially' less
culpable than his co-participants." Id. at 1089. Moreover,
"[t]he decision whether to apply a minor role adjustment
`involves a determination that is heavily dependent upon the
facts of the particular case.' " Id. (quoting U.S.S.G. S 3B1.2,
comment. (backg'd.)).

[12] Pena-Gutierrez did not simply provide the means of
transportation. Rather, he was convicted of smuggling illegal
aliens into the United States on two separate occasions within
a sixteen-day period, and of receiving compensation for his
services. See Davis, 36 F.3d at 1436-37 ("[W]e have denied
downward adjustments to defendants who were couriers
where some additional factor showing that they were not a
minor or minimal participant existed."); United States v.
Pinkney, 15 F.3d 825, 828 (9th Cir. 1994) (finding that the
defendant was not a minor participant when he "drove the get-
away car, transported the checks to his home, and intended to
benefit from cashing them"). As the district court found,

                               9890


Pena-Gutierrez "provided a vital link in the[alien-smuggling]
operation." See Duran, 189 F.3d at 1089 (affirming a district
court's finding that a defendant "was not a minor participant
because his participation `was integral to the successful com-
pletion of the drug transaction.' "). Furthermore, "the mere
fact that [Pena-Gutierrez] was to transport the aliens north
does not entitle him to a minor role adjustment. " Hernandez-
Franco, 189 F.3d at 1160. Therefore, we find that the district
court did not clearly err when it found that Pena-Gutierrez
was not entitled to a two-level downward adjustment for
being a minor participant in the offense.

VI.

For the foregoing reasons, Pena-Gutierrez's conviction and
sentence are AFFIRMED.

                               9891


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