                             REVISED May 13, 2009

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                     No. 08-50444                          FILED
                                   Summary Calendar                       May 12, 2009

                                                                    Charles R. Fulbruge III
UNITED STATES OF AMERICA                                                    Clerk

                                                  Plaintiff-Appellee

v.

AUGUSTIN CRUZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:07-CR-342-4


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Augustin Cruz appeals his jury-trial conviction for conspiracy to possess
with intent to distribute, and possession with such intent, 100 kilograms or more
of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. The sole issue raised on
appeal is whether the district court erred in excluding from evidence the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 08-50444

Government’s 30 April 2007 motion to dismiss the initial complaint against Cruz
without prejudice.    The motion declared that, in the light of the relevant
evidence then known, the case against Cruz was not “readily provable”.
Additional evidence implicating Cruz in the conspiracy, however, was provided
shortly thereafter by Cruz’ codefendants. This evidence formed the basis of the
superseding indictment against Cruz. Cruz contends the Government’s motion
was admissible as a statement of a party-opponent under Federal Rule of
Evidence 801(d)(2).
      Evidentiary rulings are reviewed for abuse of discretion, subject to
harmless-error analysis. United States v. Cantu, 167 F.3d 198, 203 (5th Cir.
1999). For an evidentiary ruling to constitute reversible error, it must have
substantially prejudiced the defendant’s rights. See United States v. Sanders,
343 F.3d 511, 519 (5th Cir. 2003); FED. R. EVID. 103(a).
      We need not address whether the Government’s motion constitutes an
admissible statement of a party-opponent under Rule 801(d)(2), because Cruz
has failed to maintain, much less demonstrate, that the claimed error affected
the outcome of the proceedings. Moreover, any such contention would not be
supported by the record.
      At trial, the jury heard testimony that the Government did not have
enough evidence in April 2007 to pursue a case against Cruz, which is precisely
what the motion evinces. The motion does not indicate the Government believed
Cruz was innocent but that the case was not “readily provable” as of the date the
motion was filed. Further, the jury heard testimony that the Government
subsequently received additional evidence from codefendants detailing Cruz’
involvement in the case; and, the codefendants testified at trial. As such, even
if the evidentiary ruling was erroneous, Cruz has failed to demonstrate it
affected his substantial rights. Accordingly, any error was harmless. See
Sanders, 343 F.3d at 519.
      AFFIRMED.

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