IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 97-50937 _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE LUIS ROBLES-VERTIZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Western District of Texas _________________________ September 16, 1998
Before KING, SMITH, and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jose Robles-Vertiz challenges his conviction of illegal
transportation of aliens and for aiding and abetting, in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18 U.S.C. § 2. We affirm.
I.
Efrain Trejo-Mendieta sought to smuggle his wife and her
friend into the United States from Mexico. He approached Robles-
Vertiz for help in this venture and secured his agreement. The two men traveled to Mexico and hired a guide with expertise in border
crossings. Trejo, his wife, her friend, and the guide waded across
the Rio Grande River to Texas, where they were met by Robles-
Vertiz. The wife's friend, an illegal alien named Anna Guerrero,
accepted a ride in Robles-Vertiz's car. Trejo drove his wife in a
separate car.
Robles-Vertiz and Trejo were pulled over and arrested by
Border Patrol agents near Bracketville. Robles-Vertiz directed
Guerrero to identify herself to investigators as “Monica Martinez-
Salazar,” which she did. As Guerrero had no identifying documents
on her at the time of arrest, the initial criminal complaint
against Robles-Vertiz named the smuggled alien as Monica Martinez-
Salazar. The single-count indictment, however, charged the
following:
That on or about November 28, 1996, in the Western District of Texas, Defendants, JOSE LUIS Robles-Vertiz- VERTIZ, AND EFRAIN TREJO-MENDIETA, aided and abetted by each other, did knowingly and in reckless disregard of the fact that the hereinafter named alien entered and remained in the United States in violation of law, willfully and unlawfully transported and moved, and attempted to transport and move, in furtherance of such violation of law, a certain alien, to-wit: MONICA RAMIREZ-SANCHEZ, in violation of Title 8, United States Code, Section 1324(a)(1)(A)(ii), and Title 18, United States Code, Section 2.
Trejo pleaded guilty and testified against Robles-Vertiz. No
evidence was introduced concerning anyone named “Monica Ramirez-
Sanchez”; the evidence showed that Robles-Vertiz had transported an
alien named Anna Guerrero, also known as Monica Martinez-Salazar.
2 II.
Robles-Vertiz points out that the indictment charged him with
transporting an alien named Monica Ramirez-Sanchez, whereas the
evidence at trial showed he had transported a woman named Anna
Guerrero, also known as Monica Martinez-Salazar. He asserts that
this discrepancy amounts to a constructive amendment of the
indictment.
A.
Only the grand jury can broaden an indictment through
amendment. United States v. Salvatore, 110 F.3d 1131, 1145 (5th
Cir. 1997). A constructive amendment occurs when the government
changes its theory during trial so as to urge the jury to convict
on a basis broader than that charged in the indictment, or when
the government is allowed to prove “an essential element of the
crime on an alternative basis permitted by the statute but not
charged in the indictment.” Id. (quoting United States v.
Slovacek, 867 F.2d 842, 847 (5th Cir. 1989)). In United States v.
Young, 730 F.2d 221, 223 (5th Cir. 1984), we explained that “[t]he
accepted test is that a constructive amendment of the indictment
occurs when the jury is permitted to convict the defendant upon a
factual basis that effectively modifies an essential element of the
crime charged.”
3 If, however, the indictment “contained an accurate description
of the crime, and that crime was prosecuted at trial, there is no
constructive amendment.” United States v. Mikolajczyk, 137 F.3d
237, 244 (5th Cir. 1998), petition for cert. filed (Aug. 4, 1998)
(No. 98-5534), and petition for cert. filed (Aug. 4, 1998)
(No. 98-5559), and petition for cert. filed (Aug. 4, 1998)
(No. 98-5560). We still must determine whether the variance, if
any, was harmless. See United States v. Puig-Infante, 19 F.3d 929,
936 (5th Cir. 1994). In this inquiry, “our concern is that the
indictment notifies a defendant adequately to permit him to prepare
his defense, and does not leave the defendant vulnerable to a later
prosecution because of failure to define the offense with
particularity.” Id. (internal quotation omitted).
B.
In Stirone v. United States, 361 U.S. 212 (1960), the Court
found a constructive amendment when the indictment alleged that the
defendant had unlawfully interfered with the importation of sand,
but the court instructed the jury that it could base a conviction
on interference with the exportation of steel. The Court explained
that “when only one particular kind of commerce is charged to have
been burdened a conviction must rest on that charge and not
another, even though it be assumed that under an indictment drawn
in general terms a conviction might rest upon a showing that
4 commerce of one kind or another had been burdened.” Id. at 218.
In deciding that this modification constituted a constructive
amendment, the Court reasoned that the grand jury did not indict
the defendant for the conduct that may have formed the basis for
his conviction; it refused to permit him to be “convicted on a
charge the grand jury never made against him.” Id. at 219.
We have found constructive amendments in cases where the
government alleges one theory of the case in the indictment, but
argues another at trial. For example, in United States v. Salinas,
654 F.2d 319 (5th Cir. Unit A Aug. 1981), overruled on other
grounds by United States v. Adamson, 700 F.2d 953 (5th Cir. 1983)
(en banc), we held that an indictment was constructively amended
when it alleged that the defendant had aided and abetted theft by
a certain named bank officer, but the evidence showed that he aided
and abetted theft by a different bank officerSSa person not named
in the indictment. We explained that
the mistake in the particular name of the officer involved is not like a variance in a date or place. The appellant was not formally charged with theft. The indictment said in effect that [the named officer] stole and that the appellant helped. Once it is shown that the named principal did not steal, it begins to look like the appellant was convicted of a crime different from that of which he was accused.
Id. at 324-25 (emphasis in original).
Similarly, in United States v. Adams, 778 F.2d 1117 (5th Cir.
1985), we found a constructive amendment when the indictment
charged the defendant with purchasing a handgun by using a driver's
5 license with a false name, but the jury was permitted to convict on
the basis of using a driver's license with a false residence.
Salinas and Adams illustrate that the government may not obtain an
indictment alleging certain material elements or facts of the
crime, then seek a conviction on the basis of a different set of
elements or facts.
C.
The question is whether the alien's name was an “essential
element” of Robles-Vertiz's offense. Robles-Vertiz says it was:
He likens this case to Salinas, arguing that he too was convicted
of a crime (transporting Anna Guerrero) different from that of
which he was accused (transporting Monica Ramirez-Sanchez). He
also claims that because the government must prove the smugglee's
alien status under 8 U.S.C. § 1324(a)(1)(A)(ii), it follows that
the amendment modified an essential element of the charged offense.
The government counters by arguing that the alien's name was
surplusage: Because the indictment could have charged Robles-
Vertiz with transporting an unnamed alien, the alien's name could
not possibly be an essential element of the offense.1
We agree that the indictment was not constructively amended.
While this case is similar to Salinas in that both indictments
1 See United States v. Robinson, 974 F.2d 575, 578 (5th Cir. 1992) (stating that “when an indictment alleges non-essential facts, the government need not prove them in order to sustain a conviction”).
6 misnamed a key party, here the error was merely one of
transcription. Indeed, there is a common first name, and the
surnames evince a certain phonetic congruity. The government was
not, as in Salinas, arguing a theory different from what it had
alleged in the indictment. The change in names did not reflect a
change in the alleged conduct.
The error in the indictment was analogous to a spelling error:
The government intended to name Anna Guerrero, also known as Monica
Martinez-Salazar, but through a mistake that could have caused
Robles-Vertiz no confusion, nor prejudiced him in any way, the
government erroneously entered her name as Monica Ramirez-Sanchez.2
Were “Monica Ramirez-Sanchez” a person involved in Robles-
Vertiz's smuggling scheme, this would be a different case. That is
because the indictment would have been broadenedSSthe prosecution
could have secured a conviction by proving the smuggling of either
woman. In that circumstance, the government would be prosecuting
a theory that it had not presented to the grand jury.
The key inquiry is whether the defendant was convicted of the
same conduct for which he was indicted. See, e.g., Salinas,
654 F.2d at 324-25. This test is met here. There is no suggestion
that the government's mistake resulted from anything but cacography
or carelessness in transcription. Nor is there indication that the
2 See Mikolajczyk, 137 F.3d at 243 (finding no constructive amendment when “the indictment contained a drafting error that confused and prejudiced no one”).
7 discrepancy enabled the government to obtain an indictment for
conduct different from what it proved.
The error constituted nothing more than a harmless, immaterial
variance that did nothing to prejudice Robles-Vertiz's substantial
rights. As we explained in Robinson, 974 F.2d at 578, a variance
is material when it prejudices substantial rights, either by
surprising the defendant at trial or by exposing him to risk of
double jeopardy. Robles-Vertiz could not have been confused as to
the events that formed the basis for the indictment, nor has he
shown how the error hampered him in preparing a defense. He was
aware of which person the government intended to identify in the
indictment, and of the precise set of facts that formed the basis
of the charge.
III.
Robles-Vertiz contends that the district court wrongly
admitted evidence of his prior conviction for aiding and abetting
the illegal entry of two aliens. We review evidentiary rulings for
abuse of discretion. Snyder v. Trepagnier, 142 F.3d 791, 801
(5th Cir. 1998).
Border Patrol agent Martinez testified that, in reviewing
Robles-Vertiz's alien registration file, he uncovered the criminal
complaint and judgment of conviction. Neither document was entered
into evidence. Robles-Vertiz deploys three arguments in
8 challenging the admission of Martinez's testimony: He claims the
testimony was inadmissible hearsay, irrelevant, and unfairly
prejudicial. None of these arguments has merit.
Robles-Vertiz argues that the testimony was inadmissible
hearsay. While acknowledging that judgments of previous
convictions are admissible under FED. R. EVID. 803(22),3 he reasons
that the exception encompasses only the judgment itself and does
not allow the type of testimony hereSSa law enforcement agent's
testifying to the existence of the judgment in the defendant's
file. This, Robles-Vertiz says, is hearsay.
Even if we agree that the agent's testimony does not fall
within this exception, we cannot see how substantial rights were
harmed. Specifically, FED. R. EVID. 103 provides that “[e]rror may
not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected.” This rule
“is not susceptible to mechanical analysis,” and courts must
proceed on a case-by-case basis. Munn v. Algee, 924 F.2d 568, 573
(5th Cir. 1991).
3 The Rule permits admission of:
Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment ....
FED. R. EVID. 803(22).
9 The rule against hearsay “seeks to eliminate the danger that
evidence will lack reliability because faults in the perception,
memory, or narration of the declarant will not be exposed.”
5 J. WEINSTEIN & M. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 802.02[3]
(2d ed. 1998). Robles-Vertiz does not challenge the accuracy of
the agent's testimony that he was, in fact, previously convicted of
aiding and abetting the illegal entry of two aliens. Robles-
Vertiz's argument is not that the testimony was unreliable, but
that it was irrelevant and prejudicial. Accordingly, we cannot see
how the admission of this evidenceSSto the extent it constituted
hearsaySScould amount to reversible error.
Robles-Vertiz says Martinez's testimony should have been
excluded as irrelevant. The government relies on FED. R. EVID.
404(b), which allows admission of other crimes evidence in order to
show the absence of mistake or accident. Robles-Vertiz's defense
was that he believed Guerrero to be a United States citizen; the
evidence of his prior conviction for smuggling aliens was therefore
relevant and admissible to undercut his defense that he made an
honest, good-faith mistake. The testimony spoke directly to
Robles-Vertiz's knowledge and state of mind when he chose to
transport Guerrero. The district court properly admitted it.
10 C.
Robles-Vertiz avers that the evidence was unfairly prejudicial
and should have been excluded under FED. R. EVID. 403. As we have
explained, evidence of Robles-Vertiz's prior conviction illustrated
his mental state in transporting Guerrero; it was probative in that
it suggested the absence of mistake. Accordingly, the probative
value exceeded any possible prejudicial effect and that the
district court did not abuse its discretion in admitting it.
IV.
Robles-Vertiz challenges the denial of his motion for mistrial
following what he says were improper and prejudicial remarks by the
prosecutor during closing argument. The denial of such a motion is
reviewed for abuse of discretion. United States v. Thomas,
120 F.3d 564, 573-74 (5th Cir. 1997), cert. denied, 118 S. Ct. 721
(1998).
Robles-Vertiz targets the following exchange, which occurred
after the prosecutor ridiculed Robles-Vertiz's claim that Guerrero
had duped him with a false birth certificate indicating U.S.
citizenshipSSa birth certificate that was not found at the scene,
nor has ever materialized, despite Robles-Vertiz's claim that
Guerrero deposited the document in his glove compartment:
11 UNITED STATES: Ask yourselves, what happened to that birth certificate he was talking about where he was duped. Ask yourselves that, and demand that he answer it. Because quite frankly that's important becauseSS
DEFENSE: Counsel's attempting to shift the burden of proof, Your Honor. It's improper.
THE COURT: Sustained.
UNITED STATES: Ask yourself where the evidence is. Is the evidence with thoseSS
DEFENSE: Objection. Same objection. He's attempting to shift the burden of proof, Your Honor.
THE COURT: Overruled.
Robles-Vertiz echoes these objections on appeal, complaining that
the prosecutor wrongly shifted the burden of proof to him and
impermissibly commented on his failure to testify.
The government cannot shift the burden of proof, United States
v. Bermea, 30 F.3d 1539, 1563 (5th Cir. 1994), nor may a prosecutor
comment on the defendant's failure to take the stand, United States
v. Johnston, 127 F.3d 380, 396 (5th Cir. 1997), cert. denied,
118 S. Ct. 1174 (1998). It is not error, however, “to comment on
the defendant's failure to produce evidence on a phase of the
defense upon which he seeks to rely.” United States v. Mackay,
33 F.3d 489, 496 (5th Cir. 1994).
That is what happened here. Even if we agree that the
prosecutor's first remark somehow suggested Robles-Vertiz bore the
burden of proofSSa strained interpretation, given that the comment
referred to the defense's failure to prove its own theory of the
12 caseSSthe court promptly sustained the defense's objection. As we
noted in United States v. Sylvester, 143 F.3d 923, 930 (5th Cir.
1998), reversal is warranted only when the improper remark had a
“clear effect” on the jurySShardly the case here.
The prosecutor's second remark was similarly innocuous. It
simply highlighted the defense's failure to introduce evidence
supporting Robles-Vertiz's claim of an honest mistake. While a
prosecutor's remarks constitute impermissible commentary on a
defendant's right not to testify if “the prosecutor's manifest
intent was to comment on the defendant's silence or if the
character of the remark was such that the jury would naturally and
necessarily construe it as a comment on the defendant's silence,”
Johnston, 127 F.3d at 396, no juror would have “naturally and
necessarily” construed these remarks in that way in this case.
Robles-Vertiz claims that the prosecutor improperly suggested
that Robles-Vertiz had a reputation as a smuggler of aliens. In
closing argument, the prosecutor stated that “[w]e know that
[Robles-Vertiz's] reputation in the community is that of an
alienSS,” at which point he was interrupted by the defense. The
court sustained the defense's objection on the ground that the
prosecutor was arguing evidence outside the record. The prosecutor
then replied, in front of the jury, that his “recollection was that
13 Mr. Trejo said that he knew his reputation in the community as
someone who could help get people in the country and transport.”
The court denied the defense's motion for a mistrial and instructed
the jury that it should focus solely on the evidence presented by
the witnesses.
Robles-Vertiz argues that he was prejudiced by these remarks
and that his motion for a mistrial was wrongly denied. In
determining whether a prosecutor's remarks constitute reversible
error, we consider the magnitude of the prejudicial effect of the
statements, the efficacy of any cautionary instruction, and the
strength of the evidence of guilt. United States v. Rodriguez,
43 F.3d 117, 124 (5th Cir. 1995) (internal citation omitted).
First, the magnitude of the prejudice, if any, was slight.
The prosecutor's stray remark was met with an objection, which was
sustained. Second, the court immediately issued a cautionary
instruction directing the jury to confine its consideration to
witness testimony. Third, there was strong evidence of guilt.
Robles-Vertiz was caught transporting an illegal alien; his dubious
defenseSSthat he was hoodwinked by GuerreroSSwas undercut by his
failure to produce the elusive birth certificate and by his prior
conviction for smuggling aliens. Accordingly, the remarks were
harmless, and the court did not abuse its discretion in denying a
mistrial.
AFFIRMED.
14 15 ROBERT M. PARKER, Circuit Judge, dissenting:
Jose Robles-Vertiz was convicted of illegal transportation of
aliens. In order to obtain that conviction, the district court
allowed the government to introduce into evidence Robles-Vertiz’s
prior 1996 conviction for illegal transportation of aliens. A
violation of Federal Rule of Evidence 404(b) could not be more
blatant. Rule 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
The majority too easily accepts the government’s assertion that the
evidence was admissible to show the absence of mistake or accident
as allowed under Rule 404(b). According to the government the
prior conviction was relevant and admissible to undercut Robles-
Vertiz’s defense that he believed Guerrero was a United States
citizen and thus spoke directly to intent. I fail to see how a
prior conviction for illegally transporting aliens has any
probative value as to whether Robles-Vertiz believed Guerrero was
a United States citizen. Surely there were other ways to attack
this defense, for example, through Trejo’s testimony. See United
States v. Baldarrama, 566 F.2d 560, 568 (5th Cir. 1978) (holding
that the government must also show a reasonable necessity for the
16 use of a prior conviction because prior crime evidence has a
significant potential for prejudicial effect). Evidence of the
prior conviction showed conformity--nothing more. Admission of
such evidence is not allowed under Rule 404(b).
Additionally, there could not be a more prejudicial piece of
evidence introduced at trial than the prior conviction for the same
offense for which Robles-Vertiz was charged. The majority glosses
over the prejudicial impact of this evidence by concluding that
because the evidence is probative with respect to absence of
mistake, it exceeds any possible prejudicial effect. I cannot
agree. Accordingly, I respectfully dissent.