United States v. Argentina Barrera-Cervantes , 713 F. App'x 404 ( 2018 )

Case: 16-51364 Document: 00514372994 Page: 1 Date Filed: 03/05/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-51364
Fifth Circuit
FILED
Summary Calendar March 5, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ARGENTINA BARRERA-CERVANTES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-1503-3
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Argentina Barrera-Cervantes was convicted by a jury of conspiracy to
transport illegal aliens and two substantive counts of transporting an illegal
alien. The district court sentenced her to three concurrent 24-month terms of
imprisonment followed by three concurrent three-year terms of supervised
release.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-51364
Now appealing, Barrera-Cervantes argues that her right to
confrontation was violated when the district court declared a material witness
unavailable and admitted his videotaped deposition testimony at her trial. She
contends that, after the witness was returned to Honduras, the Government
made only perfunctory efforts to secure his presence at her trial. The
Government counters that the district court correctly ruled that the material
witness was unavailable and that any error admitting the videotaped
testimony was harmless.
“To hold that a Confrontation Clause violation was harmless, we must
be convinced beyond a reasonable doubt that the error was harmless in light
of the other evidence presented at trial.” United States v. Bedoy, 827 F.3d 495,
511 (5th Cir. 2016) (internal quotation marks and citation omitted). Whether
a confrontation violation is harmless depends upon many factors including “the
importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall strength of
the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
For evidence to be considered cumulative in the context of a confrontation
challenge, “substantial evidence [must] support[ ] the same facts and
inferences as those in the erroneously admitted evidence.” United States v.
Duron-Caldera, 737 F.3d 988, 997 (5th Cir. 2013) (internal quotation marks
and citation omitted).
The videotaped deposition testimony did not undermine Barrera-
Cervantes’s defense. It did not contradict her trial testimony or that of any
other witness. Rather, the videotaped testimony was corroborated at Barrera-
Cervantes’s trial by the other material witness; a codefendant who testified as
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No. 16-51364
a witness for the Government; a codefendant, Barrera-Cervantes’s niece, who
testified as a defense witness; and by Barrera-Cervantes herself. In light of
the other evidence presented at trial, the Government has demonstrated that
any error admitting it was harmless beyond a reasonable doubt. See Bedoy,
827 F.3d at 511; United States v. Tirado-Tirado, 563 F.3d 117, 122, 126 (5th
Cir. 2009).
AFFIRMED.
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