IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50344 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSÉ LUIS GOMEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. P-99-CR-308-1 -------------------- February 13, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

José Luis Gomez challenges his conviction on three counts of

transporting an illegal alien for financial gain, in violation of

. He asserts that the district court erred in

admitting at trial the deposition testimony of the illegal aliens

on the ground that the translator provided at the deposition was

not certified and translated the testimony incorrectly. Gomez

has not demonstrated that the district court abused its

discretion in determining that the objection was waived due to

the lack of a contemporaneous objection. See Fed. R. Crim. P.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50344 -2-

15(f); United States v. White,

(5th Cir. 2000).

Moreover, Gomez has not demonstrated any errors actually made by

the translator and has thus failed to show that the district

court’s alternative determination that there was no proof of any

such errors was an abuse of discretion. See White,

.

Gomez additionally argues, for the first time on appeal,

that the deposition tapes should have been excluded because

immediately before the depositions were taken, a superseding

indictment issued, adding the new element that he had transported

the aliens for personal profit. He asserts that there is no

proof that he was aware of the new indictment and that the issue

of payment was therefore ignored during the depositions.

Gomez has not affirmatively asserted that he did not have

notice of the superseding indictment, which issued five days

prior to the taking of the depositions, and he has thus failed to

demonstrate any error, plain or otherwise, in connection with

their admission based on the issuance of the superseding

indictment. See United States v. Meshack,

(5th

Cir. 2000), cert. denied,

(2001). Moreover, he

does not state what questions, if any, he would have asked or

asked differently had he known of the superseding indictment, and

he thus fails to show that his substantial rights or the fairness

of the proceedings were affected. See

Gomez’s appeal is wholly without arguable merit and is

frivolous. See Howard v. King,

, 220 (5th Cir. No. 00-50344 -3-

1993). Accordingly, the appeal is DISMISSED. See id.; 5th Cir.

R. 42.2.

APPEAL DISMISSED.