UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 99-51152 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

RUDOLPH ANDREW GONZALES, also known as Andrew Rudolph Gonzales,

Defendant - Appellant.

Appeal from the United States District Court For the Western District of Texas (DR-99-CR-383-FB) August 24, 2000

Before HIGGINBOTHAM, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

Rudolph Andrew Gonzales (“Gonzales”) appeals his conviction

for violating

(a)(1)(A)(iii) and (B)(I). We

affirm.

BACKGROUND

Two Boarder Patrol Agents (“the agents”) were watching for

alien smuggling activity on May 14, 1999 at the Hesles Motel in

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Eagle Pass, Texas. They observed several people coming out of

rooms 25 and 26 wrapped in towels and draping wet clothing over the

balcony railing. They suspected that these people were illegal

aliens because the motel was often used to smuggle aliens and is

close to the boarder.

Soon after observing the activity outside rooms 25 and 26, the

agents saw Gonzales park at the motel and proceed to Room 25. A

few minutes later, Gonzales went to room 26. He then returned to

his car, picked up “something small” and walked back to the rooms.

After he again left the rooms and returned to his car, the agents

followed and stopped Gonzales. They asked Gonzales whom he visited

in rooms 25 and 26. Gonzales replied that he visited no one but

went to the motel to rent a room.

After returning to the hotel, the agents interviewed the room

occupants and discovered that they were illegal aliens from Mexico.

The illegal aliens, Edith Aguilar (“Aguilar”) and Martha Alvarez

(“Alvarez”), told the agents that Gonzales was the “coyote” who

helped them enter the United States. The agents placed Gonzales,

Aguilar and Alvarez under arrest.

A grand jury indicted Gonzales for harboring Aguilar and

Alvarez in violation of

(a)(1)(A)(iii) and (B)(I).

At trial, Aguilar and Alvarez testified that they had falsely

identified Gonzales as the man responsible for their presence in

the United States because they were allegedly threatened and

frightened by the agents. They also claimed that they did not know

2 Gonzales, that he did not come into their room at the Hesles Motel,

and that they did not make any arrangements with him to enter the

United States. A jury convicted Gonzales of harboring Alvarez but

acquitted him of harboring Aguilar.

DISCUSSION

Gonzales first argues that the government failed to prove that

he harbored or attempted to harbor Alvarez. Gonzales contends that

the government was only able to prove that he twice briefly visited

motels rooms occupied by illegal aliens, took something small with

him on one visit, and later denied having been in the rooms.

However, he argues, based on this evidence and the inconsistent

statements by Aguilar and Alvarez, no reasonable fact-finder could

have concluded, beyond a reasonable doubt, that Gonzales had

harbored or attempted to harbor Alvarez.

When reviewing the sufficiency of the evidence, we view the

evidence in the light most favorable to the government and must

determine whether a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt.

United States v. Greer,

(5th Cir. 1998). We

review direct and circumstantial evidence adduced at trial, as well

as all inferences drawn from it, in the light most favorable to the

verdict. United States v. Sanchez,

(5th Cir.

1992). To prove harboring of an illegal alien, the government must

show: (1) that Alvarez was an alien who had entered the United

3 States in violation of the law; (2) Gonzales harbored her in the

United States; and (3) Gonzales knew or acted in reckless disregard

of the fact that the alien entered or remained in the United States

in violation of the law. 8 U.S.C. 1324(a)(1)(A)(iii); United

States v. Esparza,

(5th Cir. 1989).

We conclude that the evidence was sufficient to convict

Gonzales of harboring Alvarez. The jury reasonably inferred that,

based on circumstantial evidence, Gonzales was harboring an illegal

alien. Agents saw persons hanging wet clothes to dry; Gonzales

enter two rooms with illegal aliens inside. The hotel was located

less than a mile from the Rio Grande River and the two rooms in

question were notorious for alien smuggling. Therefore, the

evidence against Gonzales and the inferences the jury drew from it

were sufficient to convict Gonzales.

Gonzales next argues that the admission of Aguilar's and

Alvarez's prior statements - even for the limited purpose of

impeachment - deprived him of a fair trial. At trial, Gonzales

moved to suppress their original statements to the Agents on the

ground that they were involuntary. The district court denied this

motion and admitted the statements for the limited purpose of

impeachment.

We review a district court ruling on the admissibility of the

evidence for abuse of discretion. United States v. Bermea,

(5th Cir. 1994). In general, it is well established

that the “admission at trial of a coerced out-of-court statement

4 from a non-defendant may violate the defendant's right to a fair

trial as guaranteed by the due process clause of the fifth

amendment.” United States v. Merkt,

, 274 (5th Cir.

1985).

We conclude that the district court did not abuse its

discretion by permitting these out-of-court statements to be used

at trial. There is little evidence suggesting that these

statements were involuntary and, as the district court noted, there

are serious questions as to credibility of Aguilar's and Alvarez's

testimony. United States v. Logan,

(5th Cir.

1991) (noting that a district court's task at a suppression hearing

is to evaluate the witnesses' testimony and to judge their

credibility). In addition Rule 607 of the Federal Rules of Evidence

provides that “[t]he credibility of a witness may be attacked by

any party, including the party calling the witness.” This includes

using in court any contradictory out-of-court statements for the

limited purpose of impeaching the witness.

Gonzales also contends that the government improperly relied

on extra-record evidence to bolster the identification testimony of

the agents. At trial, the government argued that Gonzales was the

man “in the green t-shirt” who agents had seen entering motel rooms

occupied by illegal aliens. However, there was no evidence that

the man seen by the agents wore a green t-shirt, or that Gonzales

wore a green t-shirt on the night of his arrest.

We review this claim for plain error because Gonzales did not

5 object to these alleged abuses at trial. United States v.

Gallardo-Trapero,

(5th Cir. 1999). Although the

government concedes that the “green t-shirt” comments may have been

superfluous misstatements by the prosecution, the evidence at trial

thoroughly supported the agents identification of Gonzales. The

agents saw Gonzales park his car, go to the hotel rooms, return to

his car to pick up a package and then return to the hotel rooms.

We conclude that the green t-shirt comment does not amount to plain

error.

For these reasons, we affirm.

AFFIRMED.

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