     Case: 09-40282     Document: 00511042332          Page: 1    Date Filed: 03/04/2010




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

                                                  FILED
                                                                            March 4, 2010

                                       No. 09-40282                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JAMES DEMETRIUS BATTLE

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:08-CR-1015


Before SMITH, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        James Demetrius Battle appeals his convictions on two counts of
transporting illegal aliens by means of a motor vehicle for commercial advantage
and private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). For the
reasons set forth below, we AFFIRM.
                                              I
        Battle was a tractor-trailer driver for Rollins Transport Service (“Rollins
Transport”), a Florida-based trucking company owned by Richard Rollins. As

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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part of their training, Rollins instructed new employees that it was against
company policy as well as a violation of federal guidelines to transport
passengers in the tractor-trailer cab while on duty.
       Shortly after Rollins hired Battle, Rollins assigned him to pick up a freight
load in Laredo, Texas for delivery to Charlotte, North Carolina. While en route,
Battle stopped his tractor-trailer at a border patrol checkpoint manned by
United States Border Patrol Special Agent Oswald Hernandez. A canine alerted
to Battle’s tractor-trailer cab and Battle admitted to Hernandez that he had five
persons in the cab whom he had picked up at a truck stop.                            Hernandez
determined that the individuals in the cab were illegal aliens and arrested
Battle. At the time of his arrest, Battle had $3,500 in cash on his person.
       Battle was charged with two counts of transporting illegal aliens by means
of a motor vehicle for commercial advantage and private financial gain, in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii). A jury found Battle guilty on both
counts. Battle was sentenced to concurrent one year and one day terms on each
count, to be followed by concurrent three-year terms of supervised release.
                                                II
       Battle challenges the sufficiency of the evidence supporting his
convictions. In evaluating a defendant’s argument regarding the sufficiency of
the evidence supporting his conviction, we consider “whether a rational jury,
viewing the evidence in the light most favorable to the prosecution, could have
found the essential elements of the offense beyond a reasonable doubt.” United
States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002).
       To establish a violation of 8 U.S.C. § 1324(a)(1)(A)(ii),1 the Government
must prove that “(1) an alien entered or remained in the United States in


       1
       8 U.S.C. § 1324(a)(1)(B)(i) states that if a violation of § 1324(a)(1)(A)(ii) occurs “for the
purpose of commercial advantage or private financial gain,” the violator shall “be fined . . . ,
imprisoned not more than 10 years, or both.”

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violation of the law, (2) [the defendant] transported the alien within the United
States with intent to further the alien’s unlawful presence, and (3) [the
defendant] knew or recklessly disregarded the fact that the alien was in the
country in violation of the law.” United States v. Nolasco-Rosas, 286 F.3d 762,
765 (5th Cir. 2002). Battle does not dispute that the five aliens in his truck
entered the United States illegally or that he transported all five of them,
including the two named in the indictment, in his tractor-trailer for at least two
hours. The sole issue is whether the Government presented sufficient evidence
to show that Battle either knew or recklessly disregarded the fact that the
individuals he transported were in the country illegally.
      Rollins testified that Battle told him that he believed the people he was
transporting were part of a family whose vehicle had broken down, and he
argues on appeal that the fact he did not attempt to hide their presence in his
vehicle from the border patrol agent shows his lack of knowledge regarding their
immigration status. However, Special Agent Hernandez testified that Battle
stated that there were five other people in the tractor-trailer’s cab only after the
canine at the checkpoint alerted to the cab, prompting Hernandez to ask Battle
if he could take a look inside. This testimony suggests that Battle was not
immediately forthcoming about the presence of the aliens and only revealed
them to Hernandez when he suspected they would be discovered.
      Two of the aliens testified that they crossed the border with the help of a
guide, waited a few days, and were instructed to travel north in a blue tractor-
trailer, identifying Battle’s tractor-trailer as the vehicle they entered. Alien
Pedro Espinoza-Espinoza testified that he was told by his smuggler “[t]hat at the
place there was going to be a blue truck and I was supposed to get in there,” and
that while the smuggler did not say who would be driving the truck, “[h]e just
told me to get in. That there was no problem, that things had been arranged.”
Alien Miguel Ceja-Rodriguez stated that he was the last of the five people to

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enter the cab and that he did not know any of the other aliens, in contrast to
Battle’s contention that the people in his cab))four men and one woman, all
adults))were a “family.” None of the aliens possessed any luggage, and Ceja-
Rodriguez testified that two of the aliens appeared dirty and smelled bad, which
suggests adverse travel conditions in line with an illegal border crossing.
Notably, the aliens entered the cab while it was unattended at the truck stop;
Battle did not return to the cab until all five aliens were in his vehicle. A jury
could have reasonably believed that this was a pre-arranged situation.
“Circumstantial evidence alone can establish a defendant’s knowledge or
reckless disregard that the people harbored are illegally in the country.” United
States v. De Jesus-Batres, 410 F.3d 154, 161 (5th Cir. 2005). Thus, given this
evidence, a reasonable jury could have concluded that Battle knew or recklessly
disregarded the fact that his five passengers were aliens in the United States
illegally.
       Battle also possessed $3,500 in cash at the time of his arrest. As a Rollins
Transport employee, Battle received a prepaid card with which he could
purchase fuel and receive cash advances for job-related expenses. Battle only
used his card for $50 cash advances twice while en route to Texas. These
transactions, totaling $100, do not account for the $3,500 in Battle’s possession
when he was arrested.       Battle contends that he earned $5,687.56 over the
course of his employment with Rollins Transport, but this argument presumes
that Battle did not spend any of those earnings on other expenses during the
two-month period he was employed with Rollins Transport. Moreover, Battle
had attempted to borrow $800 from Rollins shortly before leaving for Texas.
This request would tend to indicate that, at the time he requested the loan,
Battle had less than $800 available to him, despite possessing over four times
that amount in cash at the time of his arrest three days later. This financial



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discrepancy is sufficient evidence for a reasonable jury to believe that Battle
transported the aliens for commercial advantage and private financial gain.
                                       III
      Battle objects to the admission of Government Exhibits 9 and 10 at trial,
arguing that the Government did not offer the proper evidentiary predicate for
their admission. We review evidentiary rulings for an abuse of discretion.
United States v. Clark, 577 F.3d 273, 287 (5th Cir. 2009).
      Federal Rule of Evidence 803(6) permits records kept in the course of a
regularly conducted business activity to be admitted as evidence. At trial, the
district court admitted Government Exhibits 9 and 10, copies of consecutive
weekly invoices that Transportation Clearinghouse, Inc. (“TCH”) sent to Rollins
Transport, to show the fuel and cash advance charges associated with the TCH
card issued to Battle. As records-keeper for Rollins Transport, Rollins stated
that his company maintained a prepaid account with TCH and that each driver
had a prepaid card for use at truck stops for fuel or cash advances. Each driver’s
card had a unique personal identification number, and Rollins Transport
received a weekly bill of each driver’s individual transactions from TCH.
      Battle argues that these exhibits were kept in the course of TCH’s
business rather than Rollins Transport’s business, and therefore were
inadmissible without authentication by a TCH records custodian or other proper
evidentiary foundation. The Government, however, is permitted to introduce
records prepared by TCH as Rollins Transport’s business records because these
records were relied upon and used by Rollins in the ordinary course of its
business. See, e.g., United States v. Ullrich, 580 F.2d 765, 771–72 (5th Cir. 1978)
(finding records admissible under F ED. R. E VID. 803(6) that an owner of a
business had incorporated into its records from records of an independent
business); see also United States v. Doe, 960 F.2d 221, 222–23 (1st Cir. 1992)
(same).

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      Battle points to United States v. Ismoila, 100 F.3d 380 (5th Cir. 1996), to
support his argument that without testimony from a TCH records custodian,
Exhibits 9 and 10 are inadmissible. However, in Ismoila, we found statements
made by credit cardholders to their bank regarding stolen cards inadmissible
under F ED. R. E VID. 803(6) because “it is not the regular course of business for
credit cardholders to fill out affidavits or otherwise give information to their
banks regarding stolen credit cards.” Id. at 392. The Ismoila court rejected
these hearsay statements as outside the normal scope of business for the
companies generating the documents. Id.
      Conversely, the Exhibits at issue here were “integrated into the records”
of Rollins Transport as “records transmitted by persons with knowledge and
then confirmed and used in the regular course of . . . business.” Ullrich, 580 F.2d
at 771–72. Battle contends that Rollins had an “ax to grind” against him and
that therefore Rollins’ credibility was in question with regard to whether these
were properly kept business records admissible under F ED. R. E VID. 803(6).
However, this argument attacks the weight the jury gives to the evidence, not
its admissibility. The district court properly admitted Exhibits 9 and 10 as
business record exceptions pursuant to F ED. R. E VID. 803(6).
                                        IV
      For the foregoing reasons, we AFFIRM.




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