                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             MAY 21, 2007
                              No. 06-15554                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                D. C. Docket No. 06-00003-CR-FTM-33-DNF

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                   versus

JORGE MARTIN YAC VASQUEZ,

                                                   Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (May 21, 2007)

Before BIRCH, DUBINA and WILSON, Circuit Judges.

PER CURIAM:

     Appellant Jorge Martin Yac Vasquez appeals his conviction and sentence for
transporting illegal aliens for private financial gain, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii). On appeal, Vasquez first argues that the district court erred by

permitting the prosecutor to impeach one of its witnesses, based upon prior

inconsistent oral statements allegedly made the previous week in a holding cell.

Second, Vasquez argues that his Sixth Amendment right to confront adverse

witnesses was violated when the district court allowed the government to elicit

hearsay testimony that he knowingly transported aliens for private financial gain.1

Next, Vasquez argues that the prosecutor made “sarcastic and prejudicial” remarks

regarding the presence of his family in the courtroom. Last, Vasquez argues that

the cumulative effect of constitutional violations, erroneous rulings, and

prosecutorial misconduct, combined to deprive him of his rights to due process and

a fair trial.

                                               I.

        Generally, we review the district court’s evidentiary rulings for abuse of

discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000). Here,

however, the parties dispute whether Vasquez objected to the prosecutor’s

questions regarding why a witness (Roblero-Salas) had changed his story at trial,



        1
         The government admits that the district court should not have permitted the prosecutor
to cross-examine Vasquez regarding statements that passengers had made to the extent that it
referenced witnesses’ statements that had not been admitted into evidence.

                                               2
and, therefore, whether Vasquez preserved his objection to this issue. In this case,

the record shows that Vasquez made one objection at the beginning of the

contested line of questioning, namely, he objected that the prosecutor had asked

Roblero-Salas the same question three or four times. It was not until after this

objection that the prosecutor questioned why Roblero-Salas had changed his story

and used the alleged prior inconsistent statements in those questions. Vasquez did

not object to the prosecutor’s questions thereafter, and did not otherwise say

anything related to his argument on appeal that the prosecutor improperly used the

prior inconsistent statements to impeach the government’s witness. Thus, as the

government argues, Vasquez did not timely object to the prosecutor’s statements in

this regard, and, therefore, we review for plain error. See United States v.

Williams, 445 F.3d 1302, 1307 (11th Cir. 2006).

      “When a party raises a claim of evidentiary error for the first time on appeal,

we review it for plain error only. Likewise, when a defendant does not object at

trial to statements made by the prosecution, we review them under the same plain

error standard.” Id. (citations omitted). Under the plain error standard, Vasquez

must show that: (1) an error occurred; (2) the error was plain; (3) it affected his

substantial rights; and (4) it seriously affected the fairness of the judicial

proceedings. See United States v. Humphrey, 164 F.3d 585, 588 n. 3 (11th



                                            3
Cir.1999). Furthermore, in order for an error to be plain, it must be clear under

current law. See United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000).

“We have also held that where neither the Supreme Court nor this Court has ever

resolved an issue, and other circuits are split on it, there can be no plain error in

regard to that issue.” Id.

      “The credibility of a witness may be attacked by any party, including the

party calling the witness.” Fed.R.Evid. 607. “In examining a witness concerning a

prior statement made by the witness, whether written or not, the statement need not

be shown nor its contents disclosed to the witness at that time, but on request the

same shall be shown or disclosed to opposing counsel.” Fed.R.Evid. 613(a).

Furthermore, the Federal Rules of Evidence do not classify prior inconsistent

statements offered for impeachment purposes as hearsay, because they are not

offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c) &

(d); Wilson v. City of Aliceville, 779 F.2d 631, 636 (11th Cir. 1986). Thus, where

testimony is not offered to prove the truth of out-of-court assertions, but rather to

attack the credibility of testimony given from the stand, such testimony is not

hearsay. See United States v. Garcia, 530 F.2d 650, 654 (5th Cir. 1976).

       In Berger v. United States, 295 U.S. 78, 88-89, 55 S. Ct. 629, 633, 79 L. Ed.

1314 (1935), the Supreme Court reversed a conviction when the prosecutor



                                            4
through questioning and argument implied personal knowledge of additional

evidence. The Berger court noted the government’s unique burden of justice and

heightened responsibility in court:

       The United States Attorney is the representative not of an ordinary
       party to a controversy, but of a sovereignty whose obligation to
       govern impartially is as compelling as its obligation to govern at all
       . . . It is fair to say that the average jury, in a greater or less degree, has
       confidence that these obligations, which so plainly rest upon the
       prosecuting attorney, will be faithfully observed. Consequently,
       improper suggestions, insinuations, and, especially, assertions of
       personal knowledge are apt to carry much weight against the accused
       when they should properly carry none.

Id. at 88.

       Furthermore, “[i]t is clear that a prosecutor must not act as both prosecutor

and witness. This is a part of the general “advocate-witness” rule that counsel

should avoid appearing as both advocate and witness except under extraordinary

circumstances.” United States v. Hosford, 782 F.2d 936, 938 (11th Cir. 1986).

       Here, Vasquez cannot show that the prosecutor’s use of prior oral

inconsistent statements to impeach a government witness was plain error. As

discussed above, the Federal Rules of Evidence permit any party to attack the

credibility of a witness, and use of a witness’s prior oral inconsistent statement is

one way to do so. See Fed.R.Evid. 606, 613(a). We conclude from the record that

the government’s use of Roblero-Salas’s prior inconsistent statements for



                                              5
impeachment was proper since he was a hostile witness whose testimony differed

from his prior statement on relevant issues. Furthermore, Vasquez does not offer

any legal authority to support his assertion that the use of his prior inconsistent

statement was plain error. See Williams, 445 F.3d 1307. Neither does Vasquez

offer any legal authority in support of his assertion that the prosecutor plainly erred

by inquiring whether someone had visited Roblero-Salas to coerce or threaten him

into changing his story in favor of Vasquez. Accordingly, we affirm this issue.

                                                  II.

         While we normally review the admissibility of evidence for abuse of

discretion, Jiminez, 224 F.3d at 1249, and a constitutional claim de novo, United

States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005), cert. denied, 126 S.Ct.

1604 (2006), unpreserved evidentiary and constitutional challenges must satisfy

the plain error test. United States v. Moriarty, 429 F.3d 1012, 1018-19 (11th Cir.

2005).

         The parties disagree as to the proper standard of review. We have held that,

where the defendant at sentencing objected on hearsay grounds, but did not

mention the Confrontation Clause or Crawford 2, it was insufficient to preserve the

objection, and review would be for plain error only. United States v. Chau, 426



         2
             Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 177 (2004).

                                                  6
F.3d 1318, 1321-22 (11th Cir. 2005). Vasquez first objected that the prosecutor

was using hearsay in questioning him. In his second objection, Vasquez did not

mention the Confrontation Clause or Crawford, but said “Judge, they haven’t

called any of these people as witnesses and he . . . .” The prosecutor then

interrupted Vasquez, and the court immediately ruled on the objection.

Nonetheless, Vasquez continued by asking for a mistrial, and, again, he did not

mention the Confrontation Clause or Crawford. Accordingly, Vasquez’s two

objections at trial are insufficient to preserve the constitutional challenge under the

Confrontation Clause, and we will review for plain error.

      Vasquez was charged and convicted of “knowing or in reckless disregard of

the fact that an alien has come to, entered, or remains in the United States in

violation of law, transports, or moves or attempts to transport or move such alien

within the United States by means of transportation or otherwise, in furtherance of

such violation of law.” 8 U.S.C. § 1324(a)(1)(A)(ii).

      The Sixth Amendment provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI. The Confrontation Clause forbids the introduction of

testimonial hearsay evidence at trial, unless: (1) the declarant is unavailable, and

(2) the defendant had a prior opportunity to cross-examine the declarant.



                                           7
Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. Subject to certain exceptions, hearsay

is not admissible at trial. See Fed. R. Evid. 802. Under Federal Rule of Evidence

801, hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c) (emphasis added).

      Nevertheless, we have held that “erroneous admission of evidence does not

warrant reversal if the error had no substantial influence on the outcome and

sufficient evidence uninfected by error supports the verdict.” United States v.

Harriston, 329 F.3d 779, 789 (11th Cir. 2003) (quotations omitted) (noting also

that error is harmless “where there is overwhelming evidence of guilt.”).

      In this case, we conclude that despite the prosecutor’s improper use of the

witnesses’ statements in his cross-examination of Vasquez, the record contains

sufficient evidence to support the jury’s verdict. First, evidence shows that

Vasquez transported an alien within the United States. See 8 U.S.C.

§ 1324(a)(1)(A)(ii). Officer Grider testified that he stopped a van driven by

Vasquez on an interstate highway in Florida that held male subjects and their

personal items. Agent Vadasz testified that he found eight men in Vasquez’s van,

and that each of them were illegally present in the United States. Second, the

evidence shows that the eight passengers were in the United States illegally. See 8



                                            8
U.S.C. § 1324(a)(1)(A)(ii). Roblero-Salas testified that he was a passenger in the

van, he was from Guatemala, and he paid someone a fee to help him illegally enter

the United States. Third, the evidence shows that Vasquez knew of the passenger’s

illegal status. See 8 U.S.C. § 1324(a)(1)(A)(ii). Officer Grider testified that at the

stop, Vasquez reported that none of the passengers had green cards, and Vasquez

asked him if he had called the INS. Finally, Vasquez admitted that the passengers

were undocumented illegal aliens, and that he knew that transporting them to work

was illegal. (See R5 at 90-91). Based on this evidence, none of which was subject

to Vasquez’s objections, a jury would have returned the same guilty verdict.

Accordingly, we affirm this issue.

                                          III.

      We review a prosecutorial misconduct claim de novo because it presents a

mixed question of law and fact. United States v. Noriega, 117 F.3d 1206, 1218

(11th Cir. 1997).

      To establish prosecutorial misconduct, “(1) the remarks must be improper,

and (2) the remarks must prejudicially affect the substantial rights of the

defendant.” United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). “A

defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the remarks, the outcome of the trial would have



                                           9
been different.” United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998)

(citation omitted). When the record contains sufficient independent evidence of

guilt, any error is harmless. United States v. Adams, 74 F.3d 1093, 1097-98 (11th

Cir. 1996).

      We conclude from the record that it is unlikely that the prosecutor’s

questions regarding why Vasquez’s children were present at his trial were so

prejudicial such that the outcome of the trial would have been different. See

Wilson, 149 F.3d at 1301. Rather, the prosecutor’s questions regarding the

presence of his children in the courtroom likely would have engendered sympathy

from the jurors. Vasquez does not cite to any legal authority to demonstrate that

such line of questioning is improper or prejudicial. Nonetheless, even if these

comments were inappropriate, reversal is only warranted if the entire trial is so

replete with errors that Vasquez was denied a fair trial. See United States v.

McLain, 823 F.2d 1457, 1462 (11th Cir. 1987). The prosecutor’s remarks with

regard to Vasquez’s children’s presence in the courtroom are too limited to

demonstrate that he was denied a fair trial. Rather, the weight of the evidence

would have led to Vasquez’s conviction regardless of the prosecutor’s questions.

Accordingly, we affirm this issue.

                                         IV.



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      “[T]he cumulative effect of several errors that are harmless by themselves

could so prejudice the defendant’s right to a fair trial that a new trial might be

necessary.” United States v. Preciado-Cordobas, 981 F.2d 1206, 1215 n. 8 (11th

Cir.1993). “In addressing a claim of cumulative error, we must examine the trial

as a whole to determine whether the appellant was afforded a fundamentally fair

trial.” United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997). Where

there is no error or only a single error, there can be no cumulative error. See

United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).

      The record demonstrates that there was no cumulative error in the instant

case. Although Vasquez asserts a number of evidentiary admission errors, and

prosecutorial misconduct, the only error that occurred during the course of

Vasquez’s trial was the prosecutor’s use of the passenger’s hearsay statements.

However, as discussed above, this error cannot be deemed cumulative, which

necessitate a new trial, especially in light of the other evidence implicating

Vasquez. See Waldon, 363 F.3d 1103 at 1110. Accordingly, we affirm this issue.

      For the above-stated reasons, we affirm Vasquez’s conviction and sentence.

      AFFIRMED.




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