                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 13, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-2296
                                              (D.C. No. 2:03-CR-01143-JAP-2)
 v.
                                                          (D.N.M.)
 ROCIO BARRAZA,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before McCONNELL, HOLLOWAY, and BALDOCK, Circuit Judges.


                                   I. INTRODUCTION

      Defendant-appellant Rocio Barraza appeals her convictions for transporting

and harboring illegal aliens. She asserts that a witness’s out-of-court statement was

admitted at trial in violation of the Confrontation Clause of the Constitution. We

have jurisdiction under 28 U.S.C. § 1291. Because any Confrontation Clause error

was harmless beyond a reasonable doubt, we affirm.




      *
       This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                               II. BACKGROUND

      Ms. Barraza was a passenger in a van stopped at a border checkpoint. Five

people were found hidden in a compartment underneath the van’s back seat. No

narcotics were found.

      Border Patrol Agent Manuel Martinez was present during the stop.           He

testified that one of the five hidden individuals spoke “some English.” None of the

five people had documentation allowing them to be in the United States. Agent

Martinez testified that, in terms of physical documents or material found, there was

no evidence that the individuals were legally present in the United States.

      Further, during Agent Martinez’s testimony, a statement signed by one of the

van compartment’s passengers, Rafael Delgado-Cedillo, was admitted.             The

statement was prepared during an interview with Agent Martinez, and in the

statement Mr. Delgado-Cedillo stated that he was a Mexican citizen that was born

in Mexico.

      Another one of the hidden compartment’s passengers, Francisco Garcia-

Padilla, testified that he was an illegal alien. He explained that when the van was

approaching the border patrol checkpoint he was told to get into the compartment

and to not make any noise. The compartment was “real close” and had “no air.”

      Ms. Barraza was convicted of transporting and harboring Mr. Delgado-Cedillo

and Mr. Garcia-Padilla, illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)

and (iii). She now appeals.

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                                 III. DISCUSSION

      Ms. Barraza argues that the admission of Mr. Delgado-Cedillo’s signed

statement violated her rights under the Constitution’s Confrontation Clause. She

further argues that the admission was not harmless and in its absence she would have

been acquitted on all counts.      The government concedes that the statement’s

admission was error, but asserts that Ms. Barraza failed to properly object to its

admission. We need not decide whether Ms. Barraza properly objected. Assuming

that she objected and that the statement’s admission was error, that error is not

reversible because it was harmless beyond a reasonable doubt.

      The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. C ONST . amend. VI. Confrontation Clause violations

are subject to harmless error analysis. United States v. Chavez, 481 F.3d 1274, 1277

(10th Cir. 2007). The beneficiary of a constitutional error must prove beyond a

reasonable doubt that the error complained of did not contribute to the guilty verdict.

Id. We review the record de novo. Id.

      In assessing harmless error, we look to the context in which the statement was

admitted, how it was used at trial, and how it compares to the properly admitted

evidence. Id. Several factors are helpful in determining whether a Confrontation

Clause violation amounts to harmless error.        Among these factors are (1) the

importance of the testimony in the prosecution’s case, (2) the cumulative nature of

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the testimony, (3) the presence or absence of corroborating or contradictory

testimony, (4) the extent of cross-examination otherwise permitted, and (5) the

overall strength of the prosecution’s case. Id.

      After reviewing the record, we are convinced that any Confrontation Clause

error was harmless beyond a reasonable doubt.          First, Mr. Delgado-Cedillo’s

statement was presented to the jury only once during the trial. Further, the parties

did not refer to the statement during their opening or closing arguments for its

bearing on the question of whether Mr. Delgado-Cedillo was an illegal alien.

      Second, Mr. Delgado-Cedillo’s statement that he was a Mexican citizen born

in Mexico was unessential in proving his or Mr. Garcia-Padilla’s status as an illegal

alien. Even without the statement, the government had a strong case. Mr. Delgado-

Cedillo and Mr. Garcia-Padilla hid in a compartment under the back seat of a van as

that van approached a Border Patrol checkpoint. The compartment was “real close,”

had “no air,” and contained three other people. Only one of the five spoke “some

English.” Mr. Garcia-Padilla admitted that he was an illegal alien. Agent Martinez

testified that, in terms of physical documents or material found, there was no

evidence that the individuals were legally in the United States. Further, no narcotics

were discovered, excluding an alternative reason that Mr. Delgado-Cedillo or Mr.

Garcia-Padilla would have hidden.

      Third, no evidence was admitted that would contradict the proposition that Mr.

Delgado-Cedillo was a Mexican citizen born in Mexico. Therefore, we conclude that

                                         -4-
any Confrontation Clause error in admitting Mr. Delgado-Cedillo’s statement was

harmless beyond a reasonable doubt.

                             IV. CONCLUSION

      We conclude that the admission of Mr. Delgado-Cedillo’s signed statement

was harmless beyond a reasonable doubt. Accordingly, we AFFIRM.


                                                Entered for the Court,


                                                William J. Holloway, Jr.
                                                Circuit Judge




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