     Case: 10-40945 Document: 00511505065 Page: 1 Date Filed: 06/10/2011




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

                                                 FILED
                                                                            June 10, 2011
                                     No. 10-40945
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

NURIA ELIZABETH ALBERTO-DE GOMEZ,

                                                   Defendant-Appellant.




                   Appeals from the United States District Court
                        for the Southern District of Texas
                                No. 2:10-CR-288-2




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Nuria Alberto-de Gomez appeals her jury conviction of conspiracy to trans-
port illegal aliens and three counts of aiding and abetting in the transportation

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40945 Document: 00511505065 Page: 2 Date Filed: 06/10/2011

                                   No. 10-40945

of illegal aliens. She argues that the government failed to prove that she know-
ingly and intentionally conspired to transport illegal aliens within the United
States. She asserts that her testimony accounted for her actions during the en-
tire relevant time preceding her arrests and that government witnesses gave
conflicting testimony, which made their testimony less credible.
      Because Alberto-de Gomez moved for judgment of acquittal at the close of
the government’s evidence and renewed the motion after she rested her case, we
“will affirm the district court ‘if a reasonable trier of fact could conclude that the
elements of the offense were established beyond a reasonable doubt.’” United
States v. Percel, 553 F.3d 903, 910 (5th Cir.2008) (citation and alteration omit-
ted). In undertaking that review, we view the evidence in the light most favora-
ble to the verdict and draw all reasonable inferences from the evidence to sup-
port the verdict. Id.
      Using that standard, we conclude that the jury had more than an ample
basis for determining that Alberto-de Gomez knowingly participated in a con-
spiracy with her husband, Juan Gomez, to transport illegal aliens and aided and
abetted in the transportation of the aliens within the United States. See United
States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007); United States v Avila-
Dominguez, 610 F.2d 1266, 1271 (5th Cir. 1980); 8 U.S.C. § 1324(a)(1)(A)(ii). The
testimony of the aliens showed that Alberto-de Gomez and her husband took
steps to alter the aliens’ appearances and to control their responses to agents to
conceal their illegal entry. The jury could have inferred Alberto-de Gomez’s
knowledge of her wrongdoing based on her admission that she was warned in
2008 of the consequences of transporting illegal aliens.
      The jury’s apparent determination that the testimony of the government’s
witnesses was more credible than Alberto-de Gomez’s cannot be reevaluated by
this court and is also supported by the overwhelming evidence in the record.
United States v. Simmons, 470 F.3d 1115, 1120 (5th Cir. 2006). The evidence
was sufficient for a reasonable jury to conclude that the government had estab-

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                                 No. 10-40945

lished the elements of the conspiracy and transportation offenses beyond a rea-
sonable doubt. Percel, 553 F.3d at 910.
      Alberto-de Gomez contends that the district court erroneously denied her
motion for a new trial without considering her proffer that she possessed evi-
dence that her husband would exonerate her of wrongdoing. To be entitled to a
new trial based on newly discovered evidence, Alberto-de Gomez must have dem-
onstrated that the evidence was unknown to her at the time of trial, that the
failure to detect the evidence was not from her lack of diligence, that the evi-
dence was material, and that it would probably produce an acquittal. United
States v. Bowler, 252 F.3d 741, 747 (5th Cir. 2001). Because Alberto-de Gomez
was aware, at the time of trial, that her husband could provide testimony, his
proposed testimony was not new evidence. Nor has she shown that he had
agreed to give up his Fifth Amendment right against self-incrimination if called
to testify. Further, even if he had testified, the jury could have found that his
testimony in favor his wife was biased and did not rebut the consistent material
testimony of the three illegal aliens that overwhelmingly proved guilt. The dis-
trict court did not abuse its discretion in denying the motion for new trial. Id.
      The judgment is AFFIRMED.




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