                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                     October 7, 2003

                                                              Charles R. Fulbruge III
                                                                      Clerk
                             No. 02-41573
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ISRAEL CORTEZ, III,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-259-1
                      --------------------

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant    Israel   Cortez,    III,   appeals    from    his

conviction for transporting illegal aliens within the United States

for financial gain.      He argues that (1) his rights under the

Confrontation   Clause   were   violated   by   testimony   adduced      from

a Border Patrol agent regarding the aliens’ pick-up location;

(2) the district court abused its discretion by excluding from

evidence the immigration interview files of the 18 deported alien




     *
        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this opinion should not be published and is not precedent except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.
witnesses; and (3) the pre-trial deportation of those 18 illegal

aliens violated his rights under the Fifth and Sixth Amendments.

     We   need    not     determine      whether      the       testimony   adduced      by

Agent Bustamante violated Cortez’s rights under the Confrontation

Clause, because we find that it was harmless.                     See United States v.

Edwards, 303 F.3d 606, 623 (5th Cir. 2002), cert. denied, 123 S.

Ct. 1272 (2003). The prosecution’s case against Cortez was strong.

Even absent the contested testimony, the evidence wholly refuted

Cortez’s theory of the case, and defense counsel extensively cross-

examined Bustamante on this issue.

     Cortez contends that the district court abused its discretion

in excluding the files of the 18 deported aliens from evidence by

virtue of erroneously applying FED. R. EVID. 803(8)(B).                        Our review

of the trial transcript, however, reveals that the district court’s

evidentiary      ruling    was    not    based    on       an    application     of    Rule

803(8)(B);    rather,      it    was    based    on    a    determination       that    the

standardized questions asked of the aliens were too generalized for

their answers      to     be    used    as   contradictory          evidence    of    where

Cortez's trailer had picked up the aliens.                      And, as Cortez does not

assign error to this ruling by the district court, he has waived

its review.       See United States v. Valdiosera-Godinez, 932 F.2d

1093, 1099 (5th Cir. 1991).

     As for the pre-trial deportation of the remaining aliens, we

hold that Cortez’s Fifth and Sixth Amendment rights were not

violated, because Cortez has failed to make a plausible showing

                                             2
that their testimony would have been material and favorable to his

defense.    See United States v. Perez, 217 F.3d 323, 326 (5th Cir.

2000).

AFFIRMED.




                                  3
