                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT

                             ____________________

                                 No. 97-50260
                             ____________________


                        UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                      versus

                            MARTIN HUERTA-SALINAS,

                                                        Defendant-Appellant.



           Appeal from the United States District Court
                 for the Western District of Texas
                         (DR-97-CR-91-ALL)

                         January 30, 1998
Before POLITZ, Chief Judge, GARWOOD, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Martin Huerta-Salinas appeals his conviction for unlawfully

entering the United States, in violation of 8 U.S.C. § 1325(a)(1),

basing   error   on   the    denial    of    his   motion    to   suppress   oral

statements given to a Border Patrol Agent, and on the admission of

testimony regarding immigration records.             We AFFIRM.

                                        I.




     *
          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that this opinion should not be published and is not precedent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.
     On 21 February 1997, United States Border Patrol Agent Ruben

Mestas responded to a remote sensor, located about 20 miles from

the Rio Grande River in a remote area frequently traversed by

illegal aliens when entering this country.    Agent Mestas observed

a group of men, including Huerta-Salinas, walking along a trail,

wearing dirty clothes, and carrying water jugs and knapsacks.    He

also overheard them speaking Spanish, including discussing their

location and the direction in which they needed to continue.

     Agent Mestas confronted the group, identified himself as an

immigration official, and asked where they were from.   As a group,

they answered “from Mexico”.     Agent Mestas then asked where they

had crossed, to which the group responded “through the river”. The

Agent arrested the group, including Huerta-Salinas, and took them

to the border patrol station for processing.

     At the station, Agent Mestas questioned Huerta-Salinas about

his name, age and nationality.     During this questioning, Huerta-

Salinas produced a copy of a temporary resident alien card.    Agent

Mestas continued to question him regarding how and where he entered

the United States, to which Huerta-Salinas responded two or three

times that he had crossed through the river and had not presented

the card at a port of entry.       The Agent then informed Huerta-

Salinas of his Miranda rights, which he invoked by refusing to make

further statements.   See Miranda v. Arizona, 384 U.S. 436 (1966).




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     Agent Mestas forwarded his arrest report to Border Patrol

Agent Paul Martinez, who conducted a Central Index System check on

Huerta-Salinas.    This showed that the temporary resident alien

status had expired in 1990 (approximately seven years earlier), and

that there had been no request for a change to permanent alien

status.

     In March 1997 a bench trial was conducted. Huerta-Salinas was

found guilty and sentenced to six months imprisonment.

                                      II.

     For a conviction under 8 U.S.C. § 1325(a)(1), the Government

must prove an entry, or attempted entry, by an alien into the

United States at any time or place other than as designated by

immigration officers.     Additionally, the Government must prove how

the entry was effected.        United States v. Flores-Peraza, 58 F.3d

164, 168 (5th Cir. 1995), cert. denied, 116 S. Ct. 782 (1996).

     Huerta-Salinas contends the district court erred by refusing

to suppress the statements given to Agent Mestas at the station,

and by admitting the testimony concerning the INS records.

                                      A.

     As for the suppression denial, we review the district court’s

findings   of   fact   under   the    clearly   erroneous   standard;   its

conclusions of law, de novo.         E.g., United States v. Cardenas, 9

F.3d 1139, 1147 (5th Cir. 1993), cert. denied, 511 U.S. 1134

(1994).    In doing so, we view the evidence in the light most


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favorable to the prevailing party.               Id.     We will independently

review the record when, as here, the court entered no factual

findings or legal theory to support its denial.                 United States v.

Yeagin, 927 F.2d 798, 800 (5th Cir. 1991).

     Huerta-Salinas contends that the statements at the station

should have been suppressed because he had not been given his

Miranda warnings.        To this end, he maintains that the questions to

which he responded were not within the routine booking exception to

Miranda.

     But, we begin our analysis at an earlier point in time — the

statements    Huerta-Salinas        gave    in   the    field    when    he    first

encountered Agent Mestas, which are nearly identical to those given

later at the station.       Huerta-Salinas does not, and indeed cannot,

contend that his Miranda rights were violated during that field

encounter.     It is undisputed that Huerta-Salinas was not then in

custody, thus there could be no Miranda violation.                      See, e.g.,

United     States   v.    Pofahl,     990     F.2d     1456,    1487    (5th   Cir.

1993)(“Miranda      requires   that    the    warnings     be   given    prior   to

custodial interrogation.”).

     In the field, when asked “where are you from”, the group,

including Huerta-Salinas, replied “Mexico”.               And, when next asked

where they had crossed, the group, again including Huerta-Salinas,

replied “through the river”.           Huerta-Salinas did not object at

trial to the introduction of these statements.

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      We conclude that these statements (admitting being from

Mexico and entry through the Rio Grande River); the use by Huerta-

Salinas of the copy of his temporary resident alien card, as

discussed infra; and the Agent’s testimony regarding the area where

Huerta-Salinas was found, what he was wearing, and what his group

was overheard saying, were sufficient to establish, beyond a

reasonable doubt, his entering the country in violation of §

1325(a)(1).

     Accordingly, we need not decide whether the station-statements

were in violation of Miranda.   Even assuming they were, such error

is harmless.   “It is well settled that the admission of statements

obtained in violation of Miranda may constitute harmless error.”

United States v. Ackerman, 704 F.2d 1344, 1349 (5th Cir. 1983);

Null v. Wainwright, 508 F.2d 340, 343 (5th Cir.), cert. denied, 421

U.S. 970 (1975).

     In making such an evaluation, we must

          “review the facts of the case and the evidence
          adduced at trial” to determine the effect of
          the unlawfully admitted evidence “upon the
          other evidence adduced at trial and upon the
          conduct of the defense.” A court must then
          decide whether, absent the so-determined
          unconstitutional effect, the evidence remains
          not only sufficient to support the verdict but
          so overwhelming as to establish the guilt of
          the accused beyond a reasonable doubt.




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Ackerman, 704 F.2d at 1349-50, (quoting Harryman v. Estelle, 616

F.2d 870, 876 (5th Cir.)(en banc), cert. denied, 449 U.S. 860

(1980)).

     The station-statements are nearly identical to those in the

field. Ignoring the station-statements, the other evidence against

Huerta-Salinas was so overwhelming as to establish unlawful entry

beyond a reasonable doubt.

                                 B.

     As noted, for § 1325(a)(1) purposes, the unlawful entry must

be by an alien.   As reflected by the evidence discussed in part II.

A., such status was proved sufficiently.       This notwithstanding,

Huerta-Salinas contends that the district court erred in admitting

testimony about information obtained from INS records, because it

was not admissible under an exception to the hearsay rule.

     Huerta-Salinas asserts that this information was used to prove

that his legal resident status had expired at the time of his

arrest.    He contends also that it was improperly used to show the

absence of information — that he had failed to request permanent

resident alien status.

     In the field, Huerta-Salinas’ group stated they were from

Mexico.    And, at the station, in response to questioning about his

name, age, and nationality, Huerta-Salinas produced a copy of his

temporary resident alien card. (Agent Mestas did not testify as to

an expiration date on the card.)        The Agent reacted to this by


                                - 6 -
asking Huerta-Salinas where he had crossed and whether he had

presented the card at a port of entry. Huerta-Salinas replied that

he had crossed through the river and had not so presented the card.

(As noted, admission of these statements was harmless error.)             At

that point Huerta-Salinas was given his Miranda warnings and

refused to make any more statements.

     Agent Martinez testified that he conducted a Central Index

System check on Huerta-Salinas after receiving the arrest report;

and that this revealed that Huerta-Salinas’ temporary resident

alien status had expired in 1990 (approximately seven years before

his arrest), and that he had never sought permanent resident alien

status.   Huerta-Salinas objected, asserting that the testimony,

inter alia, was hearsay.

     We review evidentiary rulings only for abuse of discretion.

E.g., United States v. Dickey, 102 F.3d 157, 163 (5th Cir. 1996).

Moreover, we are reviewing a bench trial.             “[T]he prejudicial

impact of   erroneously    admitted   evidence   in   a   bench   trial   is

presumed to be substantially less than it might have been in a jury

trial.” Cardenas, 9 F.3d at 1156.      “‘[A] judge, sitting as a trier

of fact, is presumed to have rested his verdict only on the

admissible evidence before him and to have disregarded that which

is inadmissible.’” Id. (quoting Government of the Canal Zone v.

Jimenez G., 580 F.2d 897, 898 (5th Cir.), cert. denied, 439 U.S.




                                 - 7 -
990 (1978)); United States v. Hughes, 542 F.2d 246, 248-49 (5th

Cir. 1976).

     As discussed supra, “any error the judge makes in admitting

evidence is thus harmless if there exists other admissible evidence

sufficient to support the conviction.”    Cardenas, 9 F.3d at 1156;

United States v. Impson, 562 F.2d 970, 971 (5th Cir. 1977), cert.

denied 434 U.S. 1050 (1978).   And, as reflected in part II. A., we

need not decide whether the testimony concerning the INS records

constitutes inadmissible hearsay.      Even assuming error, it was

harmless.

     For example, at the station, apparently in an effort, at least

in part, to prove that he was not an alien, Huerta-Salinas produced

the copy of his temporary resident alien card.    And, as discussed

above, there was other admissible evidence along this line.       As

another example, in the field, Huerta-Salinas in effect admitted

his alien status by his statement that he was from Mexico.       Cf.,

United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir.

1984).   Again, in sum, even ignoring the testimony about the

records-check, there was more than sufficient evidence to support

the conviction.

                               III.

     For the foregoing reasons, the judgment is

                                                     AFFIRMED.




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