                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 AUG 18 1999
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                              No. 98-2252
 v.
                                                        (D.C. No. CR 97-6-JP)
                                                       (District of New Mexico)
 FRANCISCO LOPEZ-GARCIA,

           Defendant - Appellant.




                              ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.



       This case presents the following questions: (1) whether prior incidents in

which a defendant was stopped while transporting illegal aliens are admissible

under Fed. R. Evid. 404(b) to demonstrate lack of mistake in a prosecution for

harboring illegal aliens; 1 (2) whether out-of-court statements are admissible to


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
       1
        We utilize the term “illegal aliens” herein because this term is used in the
indictments and judgment. The statute defines “alien” as any person not a citizen or
national of the United States. 8 U.S.C. § 1101(a)(3). Section 1324(a)(1)(A)(iii), which
appellant violated, prohibits harboring “aliens” who have “entered. . . the United States in
provide evidence of the basis for a subsequent investigation; (3) whether

testimony concerning the intended work destination of illegal aliens constitutes

hearsay; (4) whether statements concerning alienage and manner of entry into the

United States by vehicle passengers are admissible under Fed. R. Evid. 804(b)(3);

and (5) whether these passengers’ statements are sufficiently reliable to satisfy

the requirements of the Confrontation Clause.

       Appellant Francisco Lopez-Garcia was convicted of conspiracy to harbor

illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(v)(I), and harboring illegal aliens, 8

U.S.C. § 1324(a)(1)(A)(iii). Appellant operated a “stash house” in Hatch, New

Mexico, used to hide Mexican workers who were being smuggled into the United

States. Defense counsel suggested in his opening statement that appellant was

unaware that the individuals he housed lacked proper documentation. The district

court subsequently admitted evidence under Fed. R. Evid. 404(b) showing that on

two prior occasions, in October 1995 and July 1996, authorities stopped appellant

while he transported illegal aliens, and that on those occasions also, appellant

denied knowledge of the individuals’ immigration status. The district court

admitted testimony from Border Patrol Agent Ken Dalton regarding statements

made by appellant’s co-conspirator Billie Wade and her passengers during a

checkpoint stop. Finally, the district court admitted testimony by co-conspirator



violation of law.”

                                          -2-
Jose Anival Reyes-Rivera, allegedly relaying statements made to him by illegal

aliens.

      On appeal, appellant challenges these evidentiary decisions. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                         I

      Appellant claims that the district court erroneously admitted evidence of his

prior bad acts. We review a district court’s admission of evidence under Fed. R.

Evid. 404(b) for abuse of discretion. See United States v. Hill, 60 F.3d 672, 676

(10th Cir. 1995). Rule 404(b) provides that “[e]vidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show action

in conformity therewith.” It may be admitted for other purposes, however, such

as to prove “intent,” “knowledge,” or “absence of mistake or accident.” Fed. R.

Evid. 404(b).

      In Hill, 60 F.3d at 676, we identified four factors that must be considered

in determining whether admission of evidence under Rule 404(b) was proper: (1)

whether the evidence was offered for a proper purpose; (2) whether the evidence

was relevant; (3) whether the trial court concluded that the probative value of the

evidence outweighed the prejudicial effect; and (4) whether the trial court gave

the jury proper limiting instructions.

      Applying these factors, we conclude that the district court did not abuse its


                                         -3-
discretion when it admitted evidence of the two vehicle stops. Evidence of the

stops was properly offered to rebut appellant’s claim that he was unaware that his

house guests lacked proper documentation. This evidence was clearly relevant to

the credibility of appellant’s defense. See United States v. Morales-Quinones,

812 F.2d 604, 612 (10th Cir. 1987) (concluding that a defendant’s prior

conviction for transporting illegal aliens is admissible under Rule 404(b) to prove

absence of mistake). 2 The district court specifically determined that the probative

value of this evidence outweighed its prejudicial effect, and it twice instructed the

jury as to the proper use of this evidence. 3 Finally, the two stops occurred within

       2
         The case of United States v. Temple, 862 F.2d 821 (10th Cir. 1988), does not
mandate a contrary conclusion. In Temple, the district court deemed admissible, in a
defendant’s trial for aiding and abetting the smuggling of illegal aliens, evidence that in
1986 a car registered to the defendant was used to transport illegal aliens and the
defendant retrieved a car from an impoundment lot operated by the INS. On appeal, we
held that the 1986 evidence was too “thin and remote” for admission under Rule 404(b).
Id. at 823. We emphasized the government’s failure at trial or on appeal to articulate any
theory for the admissibility of the two 1986 incidents. See id. at 823; see also United
States v. Biswell, 700 F.2d 1310, 1317 (10th Cir. 1983) (the government must establish
the relevance of proffered bad acts evidence). Nor did the district court in Temple
explain the basis for admitting this evidence. See Temple, 862 F.2d at 823. Within this
context, we concluded that the evidence of the 1986 incidents was more prejudicial than
probative. See id. at 824.
        In this case, the government demonstrated the pertinence of the October 1995 and
July 1996 stops to refute appellant’s claim that he was unaware he was housing illegal
aliens. In addition, the district court made thorough and well-reasoned findings that the
probative value of these stops outweighed their prejudicial effect. Accordingly, Temple
does not bar admission of this evidence.
       3
         We also reject appellant’s argument that the district court elevated its alleged error
to the status of reversible error by referring to these incidents as “evidence of prior
questionable conduct by the defendant” in the jury instructions. We agree with appellees

                                              -4-
one year of the offense with which appellant is charged. See Morales-Quinones,

812 F.2d at 612 (noting relevance of proximity in time to admissibility of prior

acts under Rule 404(b)). We discern no abuse of discretion.

       Nor did the district court abuse its discretion by allowing the government to

present this evidence during its case in chief. Where, as here, defense counsel

indicates during opening argument the intention to use a lack of knowledge

defense, the district court may allow the government to introduce Rule 404(b)

evidence during its case in chief. See Morales-Quinones, 812 F.2d at 611-12.

                                             II

       We turn to appellant’s hearsay claims. Hearsay is an out-of-court statement

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

Statements are not hearsay if they are offered for some purpose other than their

truth. See id. When reviewing a district court’s decision to admit alleged hearsay

evidence, we review for abuse of discretion and accord heightened deference to

the district court, “because the determination of whether certain evidence is

hearsay rests heavily upon the facts of the particular case.” United States v.

Wilson, 107 F.3d 774, 780 (10th Cir. 1997).




that, if anything, “questionable conduct” is less prejudicial language than “bad acts,” and
the court’s oral instruction, viewed in the context of the jury instructions as a whole, did
not unfairly prejudice appellant or inaccurately instruct the jurors. See United States v.
Winchell, 129 F.3d 1093, 1096 (10th Cir. 1997).

                                             -5-
                                         A

      Appellant asserts the district court erred when it admitted testimony by

Border Patrol Agent Ken Dalton recounting conflicting statements made by Billie

Wade and her passengers regarding their destination. “[O]ut of court statements

are not hearsay when offered for the limited purpose of explaining why a

Government investigation was undertaken.” Wilson, 107 F.3d at 780-81 (quoting

United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987)). The conflicting

statements at issue here roused the suspicion of authorities and prompted them to

monitor the movement of Wade’s vehicle. These efforts ultimately led to the

arrest of appellant’s co-conspirator Jose Anival Reyes-Rivera, who testified on

behalf of the prosecution at appellant’s trial. Given that the statements of Wade

and her passengers were clearly relevant to show why authorities undertook their

investigation, see Freeman, 816 F.2d at 563, we discern no abuse of discretion in

the district court’s decision to admit the statements into evidence, see Wilson, 107

F.3d at 780-81.

                                         B

      Appellant claims that the district court also erred when it admitted alleged

hearsay testimony by Jose Anival Reyes-Rivera regarding “statements made by

undocumented aliens as to where the aliens were going to work.” Appellant’s Br.

at 12-13 (citing III R. at 117-18). Our review of the record indicates that Reyes-


                                        -6-
Rivera did not actually relay any statements made to him by the undocumented

aliens regarding their work plans. Reyes-Rivera explained that he had briefly

worked at a T-shirt company where one had gone. He also testified that he took

others to a ranch in the Carolinas to pick watermelons. This testimony could have

been based on Reyes-Rivera’s personal observations, and the record fails to

indicate otherwise. Accordingly, we discern no abuse of discretion.

                                         C

      Appellant further argues that the district court erred when it admitted,

under Fed. R. Evid. 804(b)(3), testimony by Border Patrol Agent Ramiro Garcia

and by James Gimler, the Sheriff’s Investigator for Dona Ana County, New

Mexico, that passengers at the October 1995 and July 1996 stops admitted their

illegal status. Rule 804(b)(3) allows an exception to the general hearsay

prohibition for “statements against interest.”

      To establish the admissibility of a statement against interest, the proponent

must show that: (1) the declarant is unavailable; (2) the declarant’s statement is

sufficiently inculpatory that a reasonable person in declarant’s position would not

have made it unless he or she believed it to be true; and (3) sufficient

corroborating evidence exists to establish the trustworthiness of the statement.

See United States v. Porter, 881 F.2d 878, 883 (10th Cir. 1989).

      In light of these factors, the district court did not abuse its discretion when


                                         -7-
it admitted the challenged testimony. First, the district court reasonably found the

declarants, who apparently were returned to Mexico years previously, to be

unavailable. See Fed. R. Evid. 804(a)(5). While the prosecution must make a

good faith effort to produce a witness before that witness will be deemed

unavailable, “[t]he law does not require the doing of a futile act.” Ohio v.

Roberts, 448 U.S. 56, 74 (1980); see also United States v. Winn, 767 F.2d 527,

530 (9th Cir. 1985) (concluding that illegal aliens previously returned to Mexico

were unavailable). Second, because declarants’ admission of their status

subjected them to criminal liability under 8 U.S.C. § 1325, it is unlikely that these

individuals would make such statements unless they were true. Third, the

circumstances surrounding these declarations corroborate the reliability of the

statements. The declarants were stopped in southern New Mexico, while

traveling in vehicles packed with adult men. Agent Garcia specifically indicated

that the declarants at the October 1995 stop were returned to Mexico. Appellant

himself conceded that his passengers at the July 1996 stop were illegal aliens.

The district court committed no abuse of discretion when it admitted the

challenged testimony.

                                         III

      Appellant asserts that admission of Agent Garcia’s testimony relaying

admissions by passengers during the October 1995 stop violated his Sixth


                                         -8-
Amendment right to Confrontation. 4 The Confrontation Clause of the Sixth

Amendment dictates that in a criminal prosecution, the accused has a right “to be

confronted with the witnesses against him.” U.S. Const. amend. VI. “[W]hen

deciding whether the admission of a declarant’s out-of-court statements violates

the Confrontation Clause, [we] independently review whether the government’s

proffered guarantees of trustworthiness satisfy the demands of the Clause.” Lilly

v. Virginia, 119 S.Ct. 1887, 1900 (1999). 5

                                           A

      In light of the Supreme Court’s conclusion that “accomplices’ confessions

that inculpate a criminal defendant,” see Fed. R. Evid. 804(b)(3), do not fall

within a firmly rooted exception to the hearsay rule, Lilly, 119 S.Ct. at 1899, we

evaluate the admissibility of declarants’ statements with reference to the test set

forth in Ohio v. Roberts, 448 U.S. 56, 66 (1980). Under Roberts, a statement that

      4
        We address the Confrontation Clause issue separately from our preceding
discussion of admissibility under Rule 804(b)(3) because the two standards are not
coterminous; a statement can be admissible under the hearsay rule but not the
Confrontation Clause. See California v. Green, 399 U.S. 149, 155-56 (1970). Moreover,
we consider appellant’s Confrontation Clause challenge only with respect to the October
1995 stop because this is the stop with respect to which appellant raised a specific
Confrontation Clause challenge at trial. See United States v. Rodriguez-Garcia, 983 F.2d
1563, 1572 (10th Cir. 1993).
      5
        To the extent the government argues that declarants’ statements are admissible
under the exception for statements by co-conspirators, see Fed. R. Evid. 801(d)(2)(E);
Bourjaily v. United States, 483 U.S. 171, 183 (1987), we conclude that declarants’
statements cannot reasonably be deemed made “in furtherance of” the smuggling
conspiracy, and thus do not fall within that exception.

                                           -9-
falls outside a firmly rooted exception to the hearsay rule is admissible if it

possesses “particularlized guarantees of trustworthiness” such that adversarial

testing would add little to the statement’s reliability. Id. at 66. In deciding

whether a statement has the requisite guarantees of trustworthiness, we consider

the following factors set forth in Dutton v. Evans, 400 U.S. 74, 88-89 (1970): (1)

whether the statement contains an “express assertion of past fact”; (2) whether the

declarant has personal knowledge of the facts asserted; (3) whether there was a

possibility of faulty recollection; and (4) whether the circumstances suggest the

declarant had a reason to misrepresent the facts asserted. See Bourjaily v. United

States, 483 U.S. 171, 183 (1987).

      Applying these factors, we conclude that these declarants’ statements are

sufficiently reliable to comport with Confrontation Clause requirements. While

declarants’ statements concerning their lack of authorization to be in this country

are assertions of fact, they concern matters with respect to which the declarants

have personal knowledge. There is little risk that declarants would have faulty

recollections of their status. Given the circumstances in which declarants made

their statements, declarants are unlikely to have misrepresented their status as

illegal aliens. While it is conceivable that these passengers could have been

United States citizens or documented immigrants who were engaged in illegal acts

and who misrepresented themselves to evade prosecution, we find it highly


                                          -10-
unlikely that all seven of these adult male passengers—who, as noted above, were

packed into one vehicle that was stopped by a border patrol agent south of Hatch,

New Mexico—were engaged in such misrepresentation. Unlike the statement at

issue in Lilly, which exculpated the declarant to the exact extent that it inculpated

his codefendant, the passengers’ statements were not self-evidently exculpatory,

and they inculpated appellant only indirectly. See Lilly, 119 S.Ct. at 1898 n.2

(citing Dutton, 400 U.S. at 86-89). Nor is there any indication that declarants’

statements were “obtained for the purpose of creating evidence that would be

useful at a future trial.” Lilly, 119 S.Ct. 1894.

      Despite the presumption of unreliability that attaches to accomplice

confessions that spread blame, see id. at 1900, these out-of-court statements are

sufficiently reliable to comport with the requirements of the Confrontation

Clause. See United States v. Winn, 767 F.2d 527 (9th Cir. 1985) (concluding that

statements by illegal aliens to border patrol agents concerning the declarants’

alienage and manner of entry into the United States were sufficiently trustworthy

to be properly admitted against an alleged alien smuggler over his Confrontation

Clause objections).

                                           B

      Even were we to conclude that the admission of these statements violated

appellant’s right to confrontation, this error would have been harmless beyond a


                                          -11-
reasonable doubt given the overwhelming evidence of appellant’s guilt. See

Harrington v. California, 395 U.S. 250, 254 (1969). The government presented

ample, untainted evidence of appellant’s guilt. Appellant himself indicated that

during a prior videotaped statement, he had admitted that in May 1996, a group of

illegal aliens stayed at his house while he was present, and he knew them to be

illegal. Appellant also indicated, albeit inconsistently with the above, that in May

1996, after he learned that Luis Hernandez hid illegal aliens at his house, he

sought payment for harboring those individuals. Co-conspirator Reyes-Rivera

testified that he stopped at appellant’s house in May 1996 while transporting

approximately nineteen smuggled workers to the eastern United States, that

appellant was aware of their status, and that Luis Hernandez routinely hid illegal

aliens at appellant’s house. Finally, Pedro Acosta-Esquival testified that he,

along with other illegal aliens, once stayed at appellant’s home for three to four

days while trying to reach Florida. Given this evidence of appellant’s guilt, we

conclude that any injury to appellant’s confrontation rights was harmless beyond a

reasonable doubt.

      AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge

                                        -12-
