                                                                           F I L E D
                                                               United States Court of Appeals
                 UNITED STATES COURT OF                    APPEALS Tenth Circuit
                                                                         February 2, 2007
                                 TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                            No. 05-2386
 v.
                                                     (D.C. No. CR-05-546 RB)
                                                           (New M exico)
 EDELBERTO H ERNAN DEZ-
 B AU TISTA ,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before O’BRIEN, SE YM OU R, and TYM KOVICH, Circuit Judges.


      Edelberto Hernandez-Bautista appeals his conviction for conspiring to

transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). W e affirm.

      On M arch 6, 2005, dispatch for the United States Border Patrol received a

call from a citizen stating that “he suspected somebody had picked up illegal

aliens . . . on a highway that is adjacent to his property . . . ,” rec., vol. IV at 21,

and that two vehicles might be involved. Agent Lee Brawley went to investigate


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
and noticed two vehicles traveling north, away from the indicated location, with a

space of approximately four to six vehicle-lengths between them. One vehicle

was a Ford M ustang, and the other was a Ford Aerostar van. W hen Agent

Brawley made a U-turn to follow the vehicles, the M ustang sped up and separated

from the van. Agent Brawley called for backup and stopped the van. The

M ustang turned west and was subsequently stopped by Agent Victor Cardoza,

who ascertained that the driver was M r. Hernandez-Bautista.

      Agent Brawley approached the van and noticed its rear seats were missing

and that numerous people lay in the back, one on top of the other. The driver of

the van, M ario Esteves, admitted that he was an undocumented illegal alien, as

were the ten people accompanying him in the van. Agent Braw ley took M r.

Esteves and his passengers into custody and relayed this information to Agent

Cardoza. Agent Cardoza then asked M r. Hernandez-Bautista if he had been

traveling with the van, and M r. Hernandez-Bautista denied any knowledge of the

van, its driver or its passengers. However, he agreed to accompany Agent

Cardoza to the Border Patrol station for further questioning.

      M r. Esteves pled guilty and testified as follows at M r. Hernandez-

Bautista’s trial. He had arranged to transport the aliens from M exico to the

United States and had asked for M r. Hernandez-Bautista’s assistance in moving

them over the border and through the desert. M r. Hernandez-Bautista arranged

for the aliens to stay at one of his homes, showed M r. Esteves where to pick them

                                         -2-
up, and arranged for a third individual to lead them through the desert. M r.

Esteves said he paid M r. Hernandez-Bautista for his assistance and was following

the M ustang when he w as pulled over by the Border Patrol agents.

      Agent Braw ley testified that he examined tire tracks at the location where

M r. Esteves picked up the ten aliens. It had rained during the previous night, and

the tracks were clear and distinct. He also investigated tire tracks at M r.

Hernandez-Bautista’s residence and “found . . . tracks w hich, to [him], looked to

be similar size and tire pattern of van [sic] that the aliens were in.” Id. at 34.

One reason he believed the tire tracks at the pick-up location and those at M r.

Hernandez-Bautista’s residence were made by the same vehicle was the

distinctive pattern of the tracks, which derived from the fact that the van did not

have identical kinds of tires. On cross-examination, Agent Brawley admitted

there was another Ford A erostar van parked at M r. Hernandez-Bautista’s

residence, and he had not taken photographs of the other van’s tires.

      Border Patrol Agent Angela M alpede testified that M r. Hernandez-

Bautista’s cellular phone received a call from M r. Esteves’ cellular phone minutes

before agents stopped their vehicles, and that the call lasted longer than eight

minutes. In addition, the jury listened to video-taped testimony from two of the

illegal aliens apprehended in M r. Esteves’ van. They identified M r. Hernandez-

Bautista as the man w ho ran the house where they stayed after crossing the

border.

                                           -3-
      The jury returned a guilty verdict. M r. Hernandez-Bautista contends the

district court abused its discretion in 1) permitting the use of hearsay evidence; 2)

permitting Agent Brawley to testify regarding the tire tracks; and 3) overruling

his objection to Agent Brawley’s use of the word “conspired” in his testimony.

      Before trial, M r. Hernandez-Bautista filed a motion in limine seeking to

exclude the testimony relating to the tip from the anonymous citizen on the

ground that it constituted inadmissible hearsay. He noted that the “Government

has not disclosed any information about the concerned citizen other than [the

citizen’s] statement.” Rec., vol. I at tab 42. The government argued the citizen

tip did not constitute hearsay because it was not being introduced to prove the

truth of the matter asserted but only to show why agents commenced an

investigation and subsequently stopped the two vehicles. The district court

denied the motion. W e review evidentiary rulings by the trial court for abuse of

discretion. See U nited States v. Cass, 127 F.3d 1218, 1222 (10th Cir. 1997).

      In United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987), we stated

that “out of court statements are not hearsay when offered for the limited purpose

of explaining why a government investigation was undertaken.” The district court

did not abuse its discretion in permitting the agents to testify to the contents of

the citizen tip because this evidence did nothing more than explain why the agents

proceeded to the indicated location and stopped two vehicles. The testimony did

not tie M r. Hernandez-Bautista to the conduct observed by the citizen tipster, and

                                          -4-
we are not persuaded it was prejudicial on this record.

      To the extent M r. Hernandez-Bautista claims his right to confront the

citizen tipster was denied w hen the government refused to reveal the tipster’s

identity, he has failed to show that this information “might be relevant to [his]

case and [that] justice would be best served by disclosure.” Id. at 562. “M ere

speculation about the usefulness of an informant’s testimony is not sufficient to

warrant disclosure” of an informant’s identity. United States v. Brantley, 986

F.2d 379, 383 (10th Cir. 1993) (citation and internal quotes omitted).

Accordingly, the district court did not abuse its discretion in failing to compel the

government to disclose the identity of the tipster.

      Next, M r. Hernandez-Bautista asserts the district court abused its discretion

when it denied his motion in limine seeking to bar Agent Brawley “from

testifying regarding tire tracks or patterns,” arguing he was not qualified to

provide such testimony. Rec., vol. I at tab 45. At trial, the government

contended Agent Brawley would not testify as an expert but would only provide a

lay opinion based on his observations. The district court held:

      [i]f the agent establishes a foundation that he looked at these
      particular tire tracks, made observations about them, the patterns that
      they presented, and that he saw a similar pattern produced by a tire
      on the vehicle that [M r. Esteves] had been driving, I don’t think you
      have to be an expert to say – to testify about consecutive
      observations and any determination you made about them. It is
      subject to cross examination. And he didn’t take any pictures and, I
      mean, you may be able to do some damage there, but I don’t believe
      you have to be qualified as an expert to say, ‘I made two

                                          -5-
      observations and they look the same to me . . .’ I simply don’t think
      expert qualification is necessary to do just that.

Rec., vol. III at 20-21.

      In support of his claim on appeal, M r. Hernandez-Bautista points to several

cases in various circuits involving tire tread testimony rendered by experts. See

United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2001); Gonzales v. M cKune,

247 F.3d 1066, 1070 (10th Cir. 2001); United States v. Johnson, 219 F.3d 349,

358 (4th Cir. 2000); United States v. Hughes, 211 F.3d 676, 687 (1st Cir. 2000);

United States v. Parrott, 434 F.2d 294, 296 (10th Cir. 1970); Bartlett v. United

States, 232 F.2d 135, 141 (5th Cir. 1956). None of these opinions, however,

stands for the proposition that a witness not certified as an expert is barred from

testifying as to his observations regarding tire tracks and tire tread patterns.

      Federal Rule of Evidence 701 states that when a

      witness is not testifying as an expert, the witness’ testimony in the
      form of opinions or inferences is limited to those opinions or
      inferences which are (a) rationally based on the perception of the
      witness, (b) helpful to a clear understanding of the witness’
      testimony or the determination of a fact in issue, and (c) not based on
      scientific, technical, or other specialized knowledge within the scope
      of Rule 702.

M r. Hernandez-Bautista does not claim that Agent Brawley’s testimony exceeded

any of these enumerated limitations. Instead, he merely states that Agent Brawley

is not an expert and that his “testimony was not rationally based and not helpful,

and was prejudicial . . .” Aplt. Br. at 35.



                                          -6-
      The government never sought to introduce Agent Brawley’s testimony as

that of an expert. As long as his testimony remained within the limitations of

Rule 701, the trial court did not abuse its discretion in permitting him to testify to

his observations regarding the tire tracks. M r. Hernandez-Bautista did not

establish that Agent Brawley’s testimony involved scientific, technical or other

specialized knowledge barring its admission under Rule 701. Accordingly, the

district court did not abuse its discretion in denying the motion in limine.

      Even were we to conclude the district court erred in permitting Agent

Brawley to testify on the tire track evidence, we would hold the error to be

harmless in light of other evidence introduced at trial, namely M r. Esteves’

testimony regarding the agreements and arrangements he had made w ith M r.

Hernandez-Bautista. See United States v. Dulcio, 441 F.3d 1269, 1275 (11th Cir.

2006) (applying harmless error review to challenges involving the erroneous

admission of lay opinion testimony).

      Finally, M r. Hernandez-Bautista claims Agent Braw ley’s use of the w ord

“conspired” in his testimony constituted an improper legal conclusion and the

district court abused its discretion in overruling M r. Hernandez-Bautista’s

objection. The testimony M r. Hernandez-Bautista challenges w as elicited in

response to the prosecutor’s questioning of Agent Brawley regarding what

transpired when he asked M r. Esteves about M r. Hernandez-Bautista. Agent

Brawley testified that M r. Esteves

                                          -7-
      admitted that he . . . had known [M r. Hernandez-Bautista] for several
      years; that he was actually working for him – or w orking with him . .
      . He made arrangements in M exico with him to help transport these
      people – or guide these people in the United States, and that they
      conspired together to move these aliens . . .”

Rec., vol. IV at 26. The district court overruled the objection to this testimony,

stating it did not “believe [Agent Brawley] to be stating a legal conclusion.” Id.

at 27. W e agree. Agent Brawley clearly used the term as a synonym for “agreed”

and not as a legal term of art. M oreover, unlike one of the opinions cited by M r.

Hernandez-Bautista, United States v. Espino, 32 F.3d 253, 257 (7th Cir. 1994),

Agent Brawley’s use of the word “conspired” was not purposefully elicited by the

government to improperly influence or confuse the jury. The district court did

not abuse its discretion when it overruled the objection.

      For the aforementioned reasons, we AFFIRM M r. Hernandez-Bautista’s

conviction.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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