                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                          July 18, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


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

               Plaintiff-Appellee,                      No. 05-4280
          v.                                           District of Utah
 RAM ON ENRIQUE CRUZ, also                      (D.C. No. 2:04-CR -669 TS)
 know n as Santiago Avila-Gamez, also
 known as George Ortiz, also known as
 Enrique Ortiz, also known as Jorge
 Ortiz,

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.




      M r. Ramon Enrique Cruz was charged with illegal re-entry of a deported

alien under 8 U.S.C. § 1326. He appeals his conviction on two grounds: alleged

errors in jury instruction No. 19 and admission of testimony by an expert witness


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
m ade during his trial. We have jurisdiction under 28 U.S.C. § 1291, and we

A FFIR M .

                   I. Factual and Procedural Background

       M r. Cruz was arrested for entering the United States after he had been

illegally deported. On September 29, 2004, he w as charged with illegal re-entry

of a deported alien under 8 U.S.C. § 1326. The indictment charged, “[o]n or

about September 8, 2004, . . . Ramon Enrique Cruz, . . . an alien who on or about

June 14, 2000, was excluded, removed and deported from the United States, was

knowingly present and found in the United States.” R. Doc. 1 at 1-2.

      Both parties submitted proposed stipulated jury instructions. M r. Cruz

proposed the final paragraph of Jury Instruction No. 5, which set forth the second

element of the offence as follows: “[t]he indictment charges that the defendant

was removed and deported on or about June 14, 2000 . . . You must be unanimous

in your decision that the defendant was removed or deported on or about that

date.” Appellant’s Br. at 19. On July 13, 2005, the government filed a M otion to

Strike Surplusage and Amend Jury Instructions or Alternatively Amend Jury

Instructions alone. The government requested that an amendment to the

indictment, striking the phrase “on or about June 14, 2000” and replacing it with

the word “previously.” Appellant’s Br. at 8. The government also requested that

the court amend Instruction No. 5 by striking the final paragraph and adding, “If

you find that the defendant was deported from the United States at any time prior

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to September 8, 2004, the element is met.” Appellant’s Br. at 9. M r. Cruz

objected to this proposed amendment.

      The district court granted the government’s motion in part and denied it in

part. The court denied the government’s proposed changes to the indictment.

The court amended the disputed jury instruction to read: “If you find that the

defendant was deported from the United States at any time prior to September 8,

2004, the element is met.” R. Doc. 43 at 2. This instruction was renumbered as

No. 19.

      During trial, the government’s expert witness, Barbara Crane, who

performed the fingerprint identification for the Utah Bureau of Criminal

Identification (“BCI”), testified that she had matched M r. Cruz’s fingerprints w ith

a number of critical deportation records. The training by the FBI requires at least

ten points of congruency to establish a fingerprint identification match. The

training that M s. Crane received from BCI requires at least seven or eight points

of congruency to make a fingerprint match. On one of the deportation records,

the W arrant of Deportation of June 14, 2000, the fingerprint identification match

was made with seven points of congruency. The fingerprint identification

matches with regard to the Administrative Removal Order of September 10, 1999,

and the Record of Sworn Statement from September 8, 2004, were made with

eight points of congruency.

      M r. Cruz was found guilty and sentenced to 21 months in prison.

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      M r. Cruz appeals the following two issues: (1) that the trial court erred

when it changed the jury instructions to read, “defendant was deported at any time

prior to September 8, 2004” rather than, “defendant was excluded from the United

States on or about June 14, 2000;” and (2) the trial court erred in permitting the

government’s fingerprint expert to testify that the fingerprints matched when

fewer points of congruence were used than required by the FBI.

                                 II. Jury Instructions

      M r. Cruz argues that the Fifth and Sixth Amendment were violated by the

modified jury instruction No. 19. He contends that the Fifth Amendment was

violated because the court expanded the offense that was charged in the

indictment by changing the date of removal from “on or about June 14, 2000” to

“any time prior to September 8, 2004.” A ppellant’s Br. 14. According to M r.

Cruz, the change in the jury instructions “expanded the material element of the

date [he] was removed and deported,” because the indictment charges M r. Cruz

with a different date than the jury instructions. Appellant’s Br. 16. He also

contends that the Sixth Amendment was violated because he did not have notice

of the charges against him.

      In order to establish a constitutional violation, M r. Cruz must show that the

jury instructions were a constructive amendment to the indictment because they

“modify an essential element of the [charged] offense or raise the possibility the

defendant was convicted of an offense other than that charged in the indictment.”

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United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002). W e find that

M r. Cruz failed to show that the exact date of deportation is an essential element

of the crime. An alien is guilty of an illegal reentry if he “has been . . . deported .

. . and thereafter . . . is at any time found in, the United States.” 8 U.S.C. §

1326(a). To prove an unlawful entry, the government therefore must prove that

the defendant is (1) an alien, (2) who was previously deported, (3) was thereafter

found in the United States, and (4) did not have permission from the Attorney

General to re-enter. United States v. Anaya, 117 F.3d 447, 449 (10th Cir. 1997).

The language of 8 U.S.C. § 1326(a) requires only that the defendant have been

found at any time in the United States after being deported. M r. Cruz cites no

authority to support his contention that the date of the deportation is essential to

the offense, and we see no reason to depart from the text of the statute. W e

affirm the district court on this issue.

                                  III. Expert Testimony

      M r. Cruz argues M s. Crane’s fingerprint identification evidence was not

reliable, and therefore should not have been admitted.      M r. Cruz failed to object

to M s. Crane’s testimony at trial. The issue is therefore reviewed for plain error.

See United States v. Thody, 978 F.2d 625, 631 (10th Cir. 1992). Reversal is

warranted if there is (1) an error; (2) that is plain; (3) that affects substantial

rights; and (4) that seriously affects the “fairness, integrity or public reputation of

judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993).

                                           -5-
      According to Fed. R. Evid. 702, “a witness qualified as an expert by

knowledge, skill, experience, training, or education, may testify thereto in the

form of an opinion or otherwise, if (1) the testimony is based on sufficient facts

or data, (2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the

case.” Fed. R. Evid. 702. M r. Cruz argues that because M s. Crane followed BCI

standards of matching only seven points of congruency rather than the FBI

standard of matching at least ten points, the evidence is not reliable. He also

argues that BCI has failed to publish any documentation or do any scientific

research that seven or eight points are sufficient to make a fingerprint match.

      M s. Crane stated on direct examination that she has been doing fingerprint

identification for 24 years, has compared 3,336,000 separate impressions, and has

never incorrectly identified a fingerprint match. During trial, the critical exhibits

15-C and 4-A, showing the W arrant of Deportation of June 14, 2000, and

Fingerprint Card of September 17, 2004, displayed the fingerprint identification

being made with seven points of congruence. However, M s. Crane stated that

there were three more points of congruence that were not listed on the chart,

making in total, ten points of congruence, meeting the FBI standard. In light of

M s. Cranes qualifications and her testimony that there were at least ten points of

congruence, the admission of her testimony was not plain error.




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                        IV. Conclusion

     The judgment of the United States District Court for the District of Utah

is AFFIRM ED.

                                            Entered for the Court,

                                            M ichael W . M cConnell
                                            Circuit Judge




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