     Case: 16-40782      Document: 00513908283         Page: 1    Date Filed: 03/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 16-40782                                FILED
                                  Summary Calendar                         March 13, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LORENA GONZALEZ-AGUILAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-767-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Lorena     Gonzalez-Aguilar       appeals     her    conviction    of      knowingly
transporting an undocumented alien within the United States by means of a
motor vehicle. She argues that the district court plainly erred by failing to stop
a United States Border Patrol Agent from reading from his investigative report
at trial. She further argues that the error affected the jury verdict and merits
reversal on appeal.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40782     Document: 00513908283       Page: 2   Date Filed: 03/13/2017


                                   No. 16-40782

      Gonzalez-Aguilar offered no objections to the complained of testimony at
trial. Therefore, as she correctly concedes, review is for plain error. See United
States v. Setser, 568 F.3d 482, 493 (5th Cir. 2009).         To show plain error,
Gonzalez-Aguilar must show a forfeited error that is clear or obvious and that
affects her substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If the appellant makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. An error affects substantial rights if the
error “affected the outcome of the district court proceedings.” Id.
      “Under Federal Rule of Evidence 612, a witness may use a writing to
refresh his or her recollection only if (1) the witness requires refreshment, and
(2) the writing actually refreshes the witness’s memory.” United States v.
Carey, 589 F.3d 187, 190 (5th Cir. 2009) (citations omitted). A witness may not
testify directly from a writing under the guise of Rule 612, and “[c]aution must
be exercised to insure that the document is actually being used for purposes of
refreshing and not for purposes of putting words in the mouth of the witness.”
Id. at 191 (internal quotation marks and citation omitted).
      Even if we assume arguendo that the admission of the testimony from
Agent Munoz’s investigative report was erroneous, Gonzalez-Aguilar has not
demonstrated that she is entitled to reversal on appeal. The information
contained in her sworn statement was sufficient for the jury to infer that she
knew or recklessly disregarded the fact that the person she was transporting
was unlawfully present in the United States. See United States v. Nolasco-
Rosas, 286 F.3d 762, 765 (5th Cir. 2002); United States v. Maltos, 985 F.2d 743,
746 (5th Cir. 1992); United States v. Rubio-Gonzalez, 674 F.2d 1067, 1071-72
(5th Cir. 1982).




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                                       No. 16-40782

      Additionally, she has not shown that the evidence would not have been
admitted anyway.         Agent Munoz previously testified that his memory of
another witness that same day needed to be refreshed. He also testified that
his memory was refreshed by the report of his interview with Gonzalez-Aguilar
and the report reflected information that was “fresher” in his mind than his
testimony at trial. This testimony suggests that, had an objection been made,
he likely would have been able to meet the requirements of Federal Rule of
Evidence 803(5) which would have permitted him to read from his report
(alternatively, he could have given similar testimony after having his
recollection refreshed). See United States v. Marcontino, 590 F.2d 1324, 1330
n. 6 (5th Cir. 1979) (“We think it is not far-fetched to say that [the] notes
constituted, in the language of rule 803(5), ‘(a) memorandum or record
concerning a matter about which a witness once had knowledge but now has
insufficient recollection to enable him to testify fully and accurately, . . . .’”).
Thus, Gonzalez-Aguilar has failed to demonstrate that the error, if any,
affected her substantial rights. See Puckett, 556 U.S. at 135. 1 Accordingly, the
judgment is AFFIRMED.




      1   For these same reasons, we would not exercise our discretion to recognize the error.


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