                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         June 7, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 05-50552
                              Summary Calendar




UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JAIME OYORZAVAL-VERA,

                                           Defendant-Appellant.



                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                          No. 3:04-CR-1976-2
                         --------------------




Before SMITH, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

      Jaime Oyorzaval-Vera challenges his conviction by a jury of

conspiracy to possess with intent to distribute and possession with

intent to distribute 100 kilograms or more of marihuana.                 He was

sentenced to concurrent terms of 60 months of imprisonment and four

years of supervised release.


      *
        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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
     Oyorzaval-Vera contends that the district court’s refusal to

admit, pursuant to FED. R. EVID. 804(b)(1) and (3), his unavailable

co-defendant’s plea hearing testimony was error that was not harm-

less.   Oyorzaval-Vera asserts that the testimony was exculpatory;

the testimony was reliable because it was given under oath and un-

der penalty of perjury; and the testimony was corroborated by other

trial evidence.   He contends that the government had a similar mo-

tive and opportunity to develop the testimony at the co-defendant’s

plea hearing.

     We review an issue concerning “the admissibility of evidence

for abuse of discretion.”     United States v. Vega, 221 F.3d 789,

803-04 (5th Cir. 2000).     If an abuse of discretion is found, the

error is reviewed for harmlessness.     United States v. Skipper, 74

F.3d 608, 612 (5th Cir. 1996).

     The government’s motive to develop the co-defendant’s testi-

mony at the plea hearing was not similar to its motive at Oyorza-

val-Vera’s trial.   See United States v. Atkins, 618 F.2d 366, 373

(5th Cir. 1980); see also United States v. Jackson, 335 F.3d 170,

176-79 (2d Cir. 2003).     Accordingly, the testimony was not admis-

sible under FED. R. EVID. 804(b)(1).   Even if the refusal to admit

the testimony under rule 804(b)(1) was error, the error was harm-

less in light of the evidence of Oyorzaval-Vera’s guilt.         See

Skipper, 74 F.3d at 612.

     Oyorzaval-Vera does not identify specific testimony and cir-

cumstances that corroborate his co-defendant’s plea hearing testi-

                                   2
mony and that clearly indicate its trustworthiness.      Indeed, the

testimony provided by Border Patrol agents does not only fail to

corroborate Oyorzaval’s co-defendant’s plea hearing testimony, the

agents’ testimony directly contradicts the plea hearing testimony.

Accordingly, there are no corroborating circumstances that plainly

indicate the trustworthiness of the co-defendant’s testimony, and

the district court did not abuse its discretion by refusing to

admit it.   See Vega, 221 F.3d at 803.

     Oyorzaval-Vera contends that the refusal to admit his co-de-

fendant’s testimony deprived him of his constitutional right to

compulsory process.    An accused’s right to compulsory process is

not “an unfettered right to offer testimony that is incompetent,

privileged or otherwise inadmissible under standard rules of evi-

dence.” United States v. Walker, 410 F.3d 754, 758 (5th Cir.) (in-

ternal quotations and citation omitted), cert. denied, 126 S. Ct.

633 (2005).   The Sixth Amendment right of compulsory process must

yield to a witness’s Fifth Amendment privilege against self-incrim-

ination.    United States v. Follin, 979 F.2d 369, 374 (5th Cir.

1992).

     The plea hearing testimony was not admissible under FED. R.

EVID. 804(b)(1) or (3). Further, Oyorzaval-Vera exercised his right

to compulsory process, and his co-defendant invoked his right

against self-incrimination without interference from the government

or the district court.    Oyorzaval-Vera’s compulsory process rights

were thus exhausted.     See United States v. Griffin, 66 F.3d 68, 70

                                   3
(5th Cir. 1995).

     The judgment is AFFIRMED.




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