United States v. Ballard , 165 F. App'x 349 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-40538
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO BERNARD BALLARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-658-2
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Antonio Bernard Ballard (Ballard) appeals his jury
conviction for aiding and abetting the transportation of illegal
aliens within the United States by means of a motor vehicle in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
Ballard contends that the evidence at trial was insufficient
to sustain the jury’s verdict. Specifically, he argues that the
Government did not establish that he was the person who assisted
Andrew Green (Green) in transporting the aliens and that he knew
*
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this opinion should not be published and is not precedent except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.
No. 05-40538
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or was in reckless disregard of the fact that the persons in the
trailer were illegal aliens.
Viewing the evidence in the light most favorable to the
verdict, the evidence was sufficient to establish that Ballard
was the person who assisted Green in transporting the aliens and
that he knew or was in reckless disregard of the fact that the
persons in the trailer were illegal aliens. Ballard was a
passenger in the tractor-trailer in which 11 illegal aliens were
found locked without food, water, ventilation, or light. Two of
these aliens, Margarita Llamas-Quintero (Llamas-Quintero) and
Esperanza Ramirez-Orozco (Ramirez-Orozco), testified that they
illegally entered the United States with the aid of smugglers who
were to be paid upon their arrival in Houston. Llamas-Quintero
and Ramirez-Orozco testified that they were loaded into the
trailer at approximately 10:50 p.m. They identified Ballard as
one of the men who helped them get into the trailer. Llamas-
Quintero and Ramirez-Orozco testified that Ballard instructed
them in Spanish to hurry up, cover themselves with blankets, and
not make any noise. Llamas-Quintero also testified that she
overheard Ballard discussing money with Green. Agent January
testified that Ballard admitted understanding Spanish and that he
had taken two years of Spanish in college. The jury was
presented with the inconsistencies in Llamas-Quintero’s and
Ramirez-Orozco’s testimony, as well as the fact that their
identification of Ballard was made after they saw him at the U.S.
No. 05-40538
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Border Patrol Checkpoint station. Nevertheless, the jury found
their testimony credible and chose not to believe Ballard’s
exculpatory testimony. This court will not disturb the jury’s
credibility determination on appeal. See United States v. Wise,
221 F.3d 140, 147 (5th Cir. 2000). Therefore, the evidence was
sufficient to sustain the jury’s verdict. See United States v.
Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002).
For the first time on appeal, Ballard contends that the
Government violated his Fifth Amendment right to due process and
Sixth Amendment right to compulsory process when it failed to
disclose favorable statements made by the non-testifying alien
witnesses and failed to make these witnesses available to the
defense. Because Ballard did not object on this basis in the
district court, this court’s review is for plain error. See
United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en
banc). Under the plain-error standard of review, Ballard bears
the burden of showing that (1) there is an error, (2) the error
is plain, and (3) the error affects substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). If these conditions
are satisfied, this court has the discretion to correct the error
only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted).
Ballard has failed to make a plausible showing that the
testimony of the non-testifying alien witnesses would have been
No. 05-40538
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material, favorable, non-cumulative, and reasonably likely to
affect the jury’s verdict. Jorge Barrientos-Almazan’s
(Barrientos-Almazan) statement was consistent with and cumulative
of the testimony presented by Llamas-Quintero and Ramirez-Orozco.
Although Barrientos-Almazan, Aida Pierda-Gomez (Pierda-Gomez),
and Jorge Martinez-Perez (Martinez-Perez) stated that a Hispanic
male was present, these statements, even if accepted by the jury
as true, prove only that another person was present and are not
inconsistent with Llamas-Quintero’s and Ramirez-Orozco’s
identification of Ballard as one of the men who helped them into
the trailer. See United States v. Villanueva, 408 F.3d 193, 200
(5th Cir. 2005). Further, although Pierda-Gomez and Martinez-
Perez stated that they did not see Ballard, they also did not see
Green despite his having admitted his involvement in the offense.
Therefore, Ballard cannot show plain error. See id. at 200-01;
Olano, 507 U.S. at 732.
Accordingly, the district court’s judgment is AFFIRMED.