                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUN 13 2003
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 02-6254
          v.                                      (D.C. No. CR-01-0201-T)
 CARLOS ROMERO-ROJO, also                             (W.D. Oklahoma)
 known as Jose Ruiz-Lopez, also
 known as Carlos Leal-Romero, also
 known as Claudio Ceniceros-Peralta,
 also known as Miguel Ramirez,

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before EBEL , HENRY , and HARTZ , Circuit Judges.


      Defendant Carlos Romero-Rojo appeals his conviction for illegal reentry of

a deported alien in violation of 8 U.S.C. § 1326. Defense counsel has filed an

Anders brief indicating his belief that the record contains no non-frivolous issues


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.   This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
for appeal, and moves for leave to withdraw as counsel. See Anders v. California,

386 U.S. 738, 744 (1967). Consistent with the procedure set forth in Anders,

Defendant has filed a pro se supplemental brief arguing that his conviction must

be reversed because (1) the district court admitted a prejudicial photograph of

Defendant, and (2) the government presented “tampered and altered” documents

at trial. We ordered defense counsel to submit a brief addressing Defendant’s

contentions. Counsel has submitted a wholly inadequate brief, reiterating his

belief that the appeal is frivolous. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm Defendant’s conviction and grant counsel’s motion to

withdraw.

      Defendant first challenges the district court’s decision to admit an

enlargement of a “mug shot” photograph of Defendant in which he is holding a

placard that reads “California State Prison.” He argues that the photograph was

admitted in violation of Fed. R. Evid. 404(b), which “prohibits the government

from offering evidence of other crimes, wrongs, or acts to demonstrate the bad

character, moral turpitude, or criminal disposition of a defendant to prove he

acted in conformity with the prior acts or events.” United States v. Roberts, 185

F.3d 1125, 1141 (10th Cir. 1999).

      The mug shot was part of Defendant’s Alien Registration File (“A-file”)

maintained by the Immigration and Naturalization Service. The district court


                                         -2-
admitted the mug shot over defense counsel’s objection, for the limited purpose

of identifying Defendant as the subject of the A-file. The court informed the jury

of this limited purpose, and instructed it to disregard the writing on the

photograph (presumably, the words “California State Prison”). In addition to the

mug shot, the court admitted other documents from the A-file which tended to

establish Defendant’s identity (and whose admission Defendant does not

challenge on appeal), including two additional photographs of Defendant, and a

card containing fingerprints identified at trial to be the fingerprints of Defendant.

      “We review a decision to admit evidence under Fed. R. Evid. 404(b) for

abuse of discretion.” Id. If the admission of evidence under the Rule is

erroneous, however, we will not disturb Defendant’s conviction if the error is

harmless. United States v. Bornfield, 145 F.3d 1123, 1131 (10th Cir. 1998).

Evidence may properly be admitted under Rule 404(b) if four conditions are

satisfied: “(1) the evidence was offered for a proper purpose under Fed. R. Evid.

404(b); (2) the evidence was relevant under Fed. R. Evid. 401; (3) the probative

value of the evidence was not substantially outweighed by its potential for unfair

prejudice under Fed. R. Evid. 403; and (4) the district court, upon request,

instructed the jury pursuant to Fed. R. Evid. 105 to consider the evidence only for

the purpose for which it was admitted.” United States v. Becker, 230 F.3d 1224,

1232 (10th Cir. 2000).


                                          -3-
      We have grave doubts about the admissibility of the photograph.

Specifically, we are concerned about whether the third Becker factor—whether

“the probative value of the evidence was not substantially outweighed by its

potential for unfair prejudice”—was satisfied in this case. The admission of a

defendant’s mug shot carries with it a particularly acute danger of unfair

prejudice, because it can “unmistakably convey to the jury the information that

[the] defendant is a convicted criminal . . . .” United States v. Taylor, 605 F.2d

1177, 1179 (10th Cir. 1979) (distinguishing the evidence at issue in that case from

the prejudice inherent in the admission of a mug shot); see also, e.g.,

United States v. Hines, 955 F.2d 1449, 1455 (11th Cir. 1992) (“[M]ugshots carry

a clear implication of criminal activity that breaches the rule against admitting

evidence of the defendant’s bad character or previous brushes with the law.”). In

light of this potential for unfair prejudice, the mug shot needed to be particularly

probative for its admission to have been proper. But the probative value of the

mug shot was minuscule, given the purpose for which it was admitted

(identification of Defendant) and the other evidence admitted from the A-file that

clearly established Defendant’s identity—in particular, Defendant’s fingerprints.

See Old Chief v. United States, 519 U.S. 172, 184 (1997) (whether the danger of

unfair prejudice outweighs the probative value of a piece of evidence must be

made “in view of the availability of other means of proof” (internal quotation

marks omitted)).

                                         -4-
      Nevertheless, we need not resolve the admissibility issue, because we

conclude that any error was harmless. “An erroneous admission of evidence is

harmless unless it had a substantial influence on the outcome or leaves one in

grave doubt as to whether it had such effect.” Bornfield, 145 F.3d at 1131

(internal quotation marks omitted). Here, the evidence of guilt was

overwhelming. To obtain a conviction under 8 U.S.C. § 1326 for illegal reentry

after deportation, the government needed to prove only that Defendant “(1) is an

alien; (2) was previously arrested and deported; (3) was thereafter found in the

United States; and (4) lacked the permission of the Attorney General.”

United States v. Anaya, 117 F.3d 447, 449 (10th Cir. 1997). As stated,

Defendant’s fingerprints linked him to the A-file. And the A-file contained

documents, explained by government witnesses at trial, that incontrovertibly

established each of the elements necessary to convict Defendant under § 1326.

These included (1) a 1996 deportation order in Defendant’s name; (2) a “Warrant

of Removal/Deportation” indicating that Defendant had, in fact, been deported;

(3) a document stating that Defendant had not sought permission from the

Attorney General to reenter the United States; and (4) a document, apparently

signed by Defendant during a meeting with an immigration official, in which

Defendant admitted to being in the country illegally and requested to be returned

to his home country as quickly as possible. In light of this overwhelming

evidence, we conclude that the mug shot did not have a “substantial influence on

                                         -5-
the outcome” nor would a reasonable person have “grave doubt as to whether it

had [a substantial] effect” on the trial. Bornfield, 145 F.3d at 1131; see

United States v. Hardwell, 80 F.3d 1471, 1491 (10th Cir. 1996) (“[B]ecause the

evidence against [the defendant] was overwhelming . . . , if admission of this

challenged Rule 404(b) evidence was error, it was harmless error.”).

      Defendant’s final complaint is that the government presented “tampered

and altered” documents at trial. The basis for this claim is not entirely clear.

Moreover, because Defendant did not object at trial to the validity of the

documents, our review is for plain error. See United States v. Castorena-Jaime,

285 F.3d 916, 926 (10th Cir. 2002). Whether the documents had been tampered

with or altered is a factual dispute which does not rise to the level of plain error.

See id. at 926-27 (“This court has held repeatedly that factual disputes not

brought to the attention of the court do not rise to the level of plain error.”

(internal quotation marks omitted)).

      Accordingly, we AFFIRM the judgment of the district court and GRANT

counsel’s motion to withdraw. The clerk of the court is hereby directed to issue

an order requiring appellant’s counsel, Rand C. Eddy, to show cause why he

should not be removed from the roster of attorneys eligible for appointment as

court-appointed counsel.

                                         ENTERED FOR THE COURT

                                         Harris L Hartz
                                         Circuit Judge

                                           -6-
