### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-10865

ALBERTO SIFUENTES; JESUS RAMIREZ, Plaintiffs - Appellants
v. SALVADOR ABREO; THE CITY OF LITTLEFIELD, TEXAS; LEONEL PONCE, Defendants - Appellees

JESUS RAMIREZ, Plaintiff- Appellant

v. SALVADOR ABREO; THE CITY OF LITTLEFIELD, TEXAS; LEONEL PONCE, Defendants - Appellees

Appeal from the United States District Court f or the Northern District of Texas USDC No. 09-00190 U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D June 21, 2013 Ly l e W . Cay ce Clerk Case: 11-10865 Document: 00512283623 Page: 1 Date Filed: 06/21/2013No. 11-10865

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges. PER CURIAM: * This is a n appeal from a take nothing j udgment in a 42 U.S.C. § 1983 suit. The two Plaintiffs-Appellants, Alb e r t o Sifuentes and J esus Ramirez (“the Plaintiffs”) had prev i o u s l y b e en convicted of murder a nd s entenced t o life in prison in Texas. Ultimately, the Texas Court of Criminal Appeals granted the Plainti ffs habeas relief based upon the claim of ineffective assistance of trial counsel. Thereafter, the Plaintiffs bro u gh t t h i s 42 U.S.C. § 1 983 s uit alleging

seve r al c o n s tit u ti o n al violations against the City of Littlefield, Lamb C ounty and various law e n forcement officials involved in the investigation and prosecution of the murder case. After more than five weeks of t rial, the j ury found for the Defendants on all counts. T he Plaintiffs-Appellants a ppeal, argui n g that the district court erred by allowing t he Defendants’ counsel to question the witnesses in such a way as to attempt to portray the Plaintiffs as “illegal aliens” at the time of their arrests even though they both had lawful permanent resident cards during the t ime relevant to their damages claim for lost earnings. Finding no reversible error, we AFFIRM. I. FACTUAL AND PROCEDURAL HISTORY The instant § 1983 lawsuit was filed in 2009. Ho wever, t he suit stems from a murder t hat occurred on August 6 , 1 9 9 6. At that time, the victim, Evangelina Cruz, w a s w orking at a Jolly Roger convenience store in Littlefield, Texas. Two men robbed the store a nd fatally shot Cruz. Subsequently, Sifuentes and Ramirez were charged with and convicted of Cruz’s murder and sentenced to life imprisonment in two separate trials.

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4. 2 Case: 11-10865 Document: 00512283623 Page: 2 Date Filed: 06/21/2013No. 11-10865

After their convictions were affirmed o n direct a ppeal, t hey pursued state habeas relief, and the s tate trial court ruled that t hey had r e c e ived ineffective assistance and recommended granting the w r i t o n that c l aim. The state trial court did not recommend grantin g relief on their claims o f unconstitutional conduct on the part of the instant Defend a n t s a n d t heir claim of actual i n n o cence. In two very short opinions, the T exas C ourt of C riminal Appeal s gr a nted habeas relief based on trial counsel’s rendering ineffective assistance f o r f ail u r e t o i nv e s tigate alibi witnesses and alternative s uspects; however, it di d n o t reach t he remaining claims. 1 The murder c ase was again presented to a Lamb County grand jury, which d eclined to charge them. Sifuentes and R amirez were released from custody in 2008, after nearly twelve years of incarceration. Sifuentes and Ramirez ( “ t h e Plaintiffs”) filed the instant § 1 983 suit on April 2 7, 2 009, 2 against Texas Ranger Salvador Ab reo, Police Officer Leonel Ponce, and t he City of Littlefield, Texas. 3 The Plaintiffs alleged, among other things, that the D e f

e n d a n t s d enied their right to a fair trial in violation of the Fourteenth Am e n d m e nt a n d wr o n gf u l ly arrested a nd incarcerated them without probable cause in violation of the Fourth a n d F o u r t eenth Amendments. The Plaintiffs al s o a lleged that the City of Littlefield had a policy of employing improper e yewitness identification procedures and f a i l ed t o train or supervise its officers with respect to proper eyewitness identification procedures. Six months prior to trial, the Plaintiffs m oved to exclude any evidence regarding their pre-arrest immigration status o r h istory. The Plaintiffs argued that because they w ere lawful res i d e n ts at the time of their arrests, such

1 Ex p a rte Sif

uentes , N o. AP- 75815, 2008 WL 151087 ( T ex. Crim

. Ap p . Jan. 16, 2008) ; Ex p a rte Ra m i rez , N o. AP- 75816, 2008 WL 151128 ( Tex. Crim

. Ap p . Jan. 16, 2008)

.

2 The com p laints were f iled s ep arately but they were s ubs equently cons olid ated

.

3 The Plaintif

fs als o f iled s uit agains t M ark Yarbrough, the D is trict Attorney f or Lam b County, and Lam b County, Texas

. Thos e D ef end ants are not p arties to this ap p eal. 3 Case: 11-10865 Document: 00512283623 Page: 3 Date Filed: 06/21/2013No. 11-10865

evidence was irrelevant and prejud i c i al. The Defendants opposed t he motion,

a s s e r t ing t hat such evidence was relevant and probative. The district cour t denied the motion. S hortly before trial, Plaintiffs again filed a motion in limine to exclude evidence o f alien status. In that motion, Plaintiffs requested the court to i n struct the Defendants to r efrain from r e feren c i n g th e P l ai ntif f s ’ i mmigration

s t a t u s w i thout first approaching the bench a nd obtaining a ruling from t h e district court outside the presence of t h e jury. Once again, the Defendants opposed the motion, and the district court denied it. At trial, testimony with respect to the Plaintiffs’ illegal immigr ati o n s t at u s

was elicited from the following t hree witnesses: t he P laintiffs ; R a m i r e z and Sifuentes; and Dr. Bradley Ewing, the Plaintiffs’ economist expert witness. 4 Both Plaintiffs testified using an interpreter. Ramirez’s testimony During direct examination o f Ramirez, his attorney elicited that Ramirez

was born in Mexico and that in 1975 he was stopped by i mmigration o fficials and returned to Mexico when he attempted t o enter the United States. Ramirez also testified that h e was a lawful permanent resident of the U nited States and had a permanent resident card. 5 On cross examination, defense counsel asked Rami r e z i f h is green card

was dated December 1, 1 990 because h e r e c e i ved i t “through an amnesty program for peop l e w h o were previously here i l legally.” Ramirez responded “yes.” D efendants’ counsel then inquired w hether his current lawyers assisted

4 Ad d itionally, w e note that, d uring voir d ire, a p otential juror inquired as to the Plaintif f s ’ im m igration s tatus , and Plaintif fs ’ couns el res p ond ed that the Plaintif fs w ere here law f ully.

5 Plaintif

f s ’ couns el stated that he w anted to s how the jury the card , and the d is trict court res p ond ed that it w as “not s ure w hy w e are tak ing the tim e to d o that” becaus e Ram irez “tes tif ied he has got t h e green card

. H e is a p erm anent res id ent. ” Ap p arently d ue to the court’s res p ons e, couns el d id not introd uce the card at that p oint in tim e. 4 Case: 11-10865 Document: 00512283623 Page: 4 Date Filed: 06/21/2013No. 11-10865

him i n o btaining t he card, and Ramirez responded that he “already h ad another

c a rd, but it expired w hile in the penitentiary.” Defendants’ counsel reiterate d that the “Haynes & Boone lawyers helped y ou get [the green card], didn’t they?” Defendants’ counsel further a sked i f h e first met the Haynes & Boone lawyers in 2001 afte r he h ad already been convicted of murder. R amirez answered affirmatively. Defendants’ counsel further inquired as follows: “Now, you say that you had a green card before 2001, but do you have any proof o f that?” Ramirez replied that “I don’t have it with me here but I d o ha v e p r o o f o f the other card.” Defendants’ counsel then a sked whether R a mirez went to prison as

an illegal alien in 1998, and h e responded “No, I still had my other card,” but it expired w hile he was i n p r i s on. Plaintiffs’ counsel objected t o the questioning base d o n its relevance and asserted i t was prejudicial. The district court overruled the objection. Defendants’ counsel then inquired whether the Texas prison s y s tem classified him as an illegal alien, and R amirez responded affirmatively. Defendants’ counsel asked if Ramirez had informed the prison of his green card, and Ramirez responded that “once one enters the penitentiary, one loses all of your rights.” Defense counsel asserted that Ramirez “still didn’t have a green card even

as late as 2008 w hen you got out of p r ison, did you?” Ramirez stated that he “had a card f

rom before I went to p rison. It’s in t h e records from when I paid my taxes every y ear . ” C ounsel r esponded by a sking “you know that some people who are here illegally use false Social Security numbers?” R amirez asked counsel to repeat the question. I n s t e a d of repeating the question, counsel insisted a gain that R amirez “ didn’t have those papers until 2009, did you?” To which Ramirez answer e d : “ H o w w as I going t o have them i f I was in the penitentiary?” Plaintiffs’ counsel again objected as to relevance, stating that he had tried t o introduce the card yesterday. The court stated “we probably need to move on.” Defendants’ counsel asked the court i f i t c o u l d ask another

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question, and the court allowed it. Pointing to Ramirez’s deposition t estimony that he did not have his papers when he was r eleased from p r i s o n in 2008, counsel asked Ramir e z wh e th e r h e k n e w “th at u ntil s o m eb o dy has authorization, unless they are a U.S. citizen, it’s not legal for them to work in the United States. You know that, don’t you?” Ramirez responded “That’s c orrect.” When asked whether it was correct that he “couldn’t get a j ob in 2008 because you didn’ t h a v e those papers,” Ramirez responded affirmatively. Counsel then stated that “although it’s illegal for people who are not U.S. c i tizens or who d o not have proper authorization to work, w e know some people do work illegally. You k now that, don’t you?” Ramirez replied y es. Counsel furthe r s t a t e d that “when somebody is illegal t hat’s working, if they get caught, you und e rstand they h ave to stop working. You understand that, don’t you?” R amirez said yes. Counsel then asked if Ramirez had been “deported three times for illegal entry, haven’t you?” Ramirez replied t hat it happened twice “[m]any years ago.” Counsel then asked Ramirez whether h e understood that “if people are illegal

a n d they get c aught, w hether they are working or not working, t hey c a n b e deported. You u nderstand that. Right?” Ramirez agreed. Counsel once again

a sked Ramirez w h e ther he had been deported the three times h e e n t e r e d illegally, and Ramirez responded that it happened twice in 1975. Counsel then asked whether Ramirez had been arrested for attempting to bring two M exican nationals across t he b order. Plaintiffs’ counsel objected as to relevance, stating that it h ad nothing t o do with w hether Ramirez’s civil rights

were violated. Defendants’ couns e l responded i t was relevant as to damages “because t h i s g e n t l eman has to acknowledge that h e understands that if an illegal person is working in this country, they can be stopped. They can be forced to stop work and be deported and, therefore, not be able to work in this country at any time, and t herefore, it goes to the argument that h e w o u l d have been continually gainfully employed during the period that the jury may find that he

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was a n illegal alien.” Counsel further said it was relevant because R amirez had testified that being in prison f or the murder conviction was a terrible experience and t he jury should consider that Ramirez had been in prison previously when it d e t e r m i n e s d amages. T he court overruled the o bjection, stating t h at Plaintif f s ’ counsel could rehabilitate on redirect examination. Ramirez then agreed that h e ha d b e e n arrested for attempting to bring two

women across the b order, one o f whom w as his w ife. C ounsel then asked Ramirez whether h e s w o r e i n an affidavit to the INS t hat he was married to Conn i e Ramirez, and he said yes. Defense counsel asked whether Connie Ramirez was Ramirez’s wife, and Ramirez said “[n]ot legally.” Ramirez denied lying under oath, again sta t i n g t h a t he was married but not legally. Counsel asked Ramirez about an affidavit given to the INS on J uly 1, 1975 stating that he was born in the United States. Ramirez a dmitted t hat was his signature. Ramirez admitted that he received a six-month prison s entence for attempting to bring the two women across the border. Counsel asked Ramirez whether he had filed i n c o m e t a x returns and Ramirez responded that he filed them from 1990 until 1995, prior to his arrest in 1996. On redirect, Plaintiffs’ counsel offered R a m ir e z ’ s p e r m a n ent resident card, and Defendants’ counsel objected, asserting that the date o n t he document was not the date R amirez became a lawful permanent resident b ecause “[e]verybody who got t heir green card, no matter when they got i t , got it with that date on it through the amnesty program.” Plaintiffs’ counsel responded that R amirez “has been called a n illegal alien.” “[I]t’s been suggested that h e did not have a card, if you will , during the period of time he worked.” Plaintiffs’ counsel further explained Ramirez h as been a “resident since 1990. I t expired when h e was in prison. He could do nothing about it until after that, after prison. All he had to do was simply apply f

o r the card that he has n ow, and for this jury not to be able to hear and see, given the cross-examination,

. . . wou l d be awfully darn

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prejudicial to my client.” Defendants’ counse l r e i t e r ated h is position that the date on the card was the same for everyone who received the card pursuant to the amnesty program and suggested that if the court called t he Border Patrol, that would be confirmed. Plaintiffs’ counsel responded that he would accept that if the court would strike all the testimony with r e s p e c t t o Ramirez being an illegal alien. The court then allowed admission of t he card over Defendants’ objection and s uggested t o Defendants’ counsel t hat he might consider calling an immigration official to explain the date on the card in his case-in-chief. Ramirez testif

i e d t hat the document i n question was his permanent resident card and t hat i t provided that he has been a lawful permanent resident since December 1 , 1990. R amirez testified that before he was arrested in 1996, he had a permanent resident card and it expired while h e was in prison. After he was released, he renewed the card. Sifuentes’s testimony On direct examination, Sifuentes testified that he was born in Mexico. At 17 years old, h e ca m e t o t he United States and began working w ith his brother-in-law building pivots in Muleshoe, Texas. Sifuentes has b een a lawful permanent resident since 1993 and has approval to live and work in t he United States. Sifuentes w as 2 3 when he was arrested for the murder of Cruz. When Sifuentes went to jail they t ook h is wallet and personal papers, which were not returned when he was released 12 years later. During a s idebar before the court, P laintiffs’ counsel s tated that Sifuentes had entered the United States illegally in 1991 and became legal in 1993. Thus, counsel a sked that any reference to his i llegal entry be excluded because he was

a lawful resident w hen arrested, and he is a l a w f ul resident t o day. Counsel argued that the “only reason that such an issue would c o me u p would be to inject bias on this jury, a nd we just think it’ s c learly unfairly prejudicial.” Defense counsel responded that it is r elevant “because if they were illegal, they had no

8 Case: 11-10865 Document: 00512283623 Page: 8 Date Filed: 06/21/2013No. 11-10865

legal ability t o w o r k u nder the law” and the “jury can take that into consideration in terms of any claims for lost wages.” T he court ruled that “on the damage issu e s c o ncerning earnings, it’s p robably relevant to pursue that.” Defense counsel objected to the introduction of Sifuentes’ lawful permanent resident card “because it was not produced in discovery.” The court overruled the objection t h e same way it did the defense’s objection to Ramirez’s card, stating that i f “you w a nt to bring in somebody d uring your case-in-chief to explain or impeach that, I’ll let you do it.” Direct examination of Sifuentes continued wit h d efense counsel asking whether he had entered the countr y i l l e gally i n 1991. Sifuentes responded affirmatively. Sifuentes became a legal resident on February 4, 1 993, as shown by h is permanent resident card, which was introduced into evidence. It expires May 11, 2020. During cross examination, defense counsel asked Sifuentes w hether he had contact with the Mexican Co n s u late’s Office, a nd Sifuentes indicated that he did whe n h e was released from prison. Defense counsel then inquired as follows: “In f

act, you had your picture taken for t h e newspaper, a picture of you with a M exican Consulate; i sn’t that true?” Sifuentes responded t hat he did not remember. Defense counsel subsequently i nquired as follows: “ From the time that you c a m e h e r e i l legally i n 1991 up until the time y ou went to prison, you

never filed a ta x r e t u r n reporting any income at all, did you?” Sifuentes responded that he did not remember. Dr. Bradley Ewing’s testimony The Plaintiffs a sked for damages based on, among other things, loss of earnings capacity. The Plaintiffs called Dr. Bradley Ewi n g , a n e c onomics expert, to testify about the P l a i n t iffs’ loss of e arnings capacity while t hey were incarcerated. Dr. Ewing performed an economic loss analysis for the period of the P laintiffs’ incarceration. Dr. Ewing estimated R amirez’s earnings capacity

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loss over the 1 2-year period to be $305,782. Because Sifuentes was a much younger w orker with less experience and with less of a n established work history, Dr

. Ewing used information from t he Bureau of Labor Statistics to calculate his earnings capacity loss, which for the same 12-year period was $214,945. On cross examination, Abreo’s d e fense counsel asked Dr. Ewing whether the earnings calculation took into account that Ramirez “ m a y h ave not been a legal working resident of the United States d uring th e t i m e t h at he was incarcerated?” Dr. Ewing answered yes. When counsel a sked whether Ramirez

was l egally in the United States, Plaintiffs’ counsel objected based on relevance. Defense counsel responded t hat the question went to damages, “whether he’s deported, whether he’s g o i n g t o b e earning o r not.” The district court simply stat e d th e objection was “overruled.” D efense c o unsel continued t o ask questions of the witness regarding whether his calculations considered whether Ramirez “doesn’t get deported.” Ponce’s defense counsel asked Dr. Ewing if h e was “telling the l adies and gentleman of this jury that illegal aliens t hat come into this country work at the

same pay scale as someone who is a legal resident?” Dr. E wing responded that he “presume[d] t hat s ome do and som e don’t. But what I’m telling you is that based u pon earnings capacity, these are the best e stimates tha t an economist

can come up with.” Defense counsel r e sponded: “Then I suggest you p r obably– would you expect– Well, you p robably need to go out here i n S outhwest Lubbock and talk to roofing crews and see which ones have legal workers and which ones have illegal workers and c ompare the estimates that y ou get for the jobs.” Plaintiffs’ counsel objected to this statement as irrelevant a nd argumentative, and the district c ourt sustained the objection. Defense counsel disregarded the court’s ruling and asked Dr. Ewing, “Have you ever done that?” Onc e a g ain Plaintiffs’ c ounsel objected, a nd the court sustained the objection. C ounsel next

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asked the witness if he w as “telling the ladies and gentleman o f t his jury that immigration status h a s nothing to d o w ith the pay scale?” P laintiffs objected, and the court overruled i t. Dr. Ewing responded that their immigration “status doesn’t have anything to do with their earnings capacity.” Dr. Ewing explained that “ just because they’re c urrently earning something less for w hatever reason, that does not necessarily represent t heir earnings capacity. T h at represents their expected earnings. I was asked to estimate earnings capacity.” Defense counsel for Lamb County an d M a r k Yarbrough subsequently inquired: “The number you h a v e g i v e n us does not take into consideration whether either of these gentlemen have the lawful right to work in the United State s . Correct?” Dr. Ewing answered: “I believe it does take that into consideration.” Defense counsel later inquired whether Dr. E wing had stated that “people w ho are working illegally or, a s you said, unla w f u l l y , economists think they make the same amount of money as somebody who is w orking legally for the same job?” Plaintiffs’ counsel objected, and the district court overruled it. Defense counsel again a sked whether Dr. Ewing had previously testified that “economists believe that people who are legal make the same amount o f money

as p eople who work that job illegally?” Dr. Ewing responded that that may be

a mischar acterization of h is testimony. Defense counsel then asked: “Your calculations do not take into consideration t h e p o t e ntial of a nybody being deported to Mexico, for example?” Dr. E wing r esponded that such a factor was taken into consideration in the data. Defense counsel then asked whether “for example, over 1 1.7 years, you wou l d say a fellow has a n e arning capacity of $305,782 –that’s his earning capacity regardless of whether he’s in the United States working or he’s in M exico. Right?” Dr. Ew i n g t e s t i f i ed t hat “that’s his

e a r n i ngs capacity.” Defense counsel’s next question w as: “Your calculation of earning c apacity woul d be the same whether Mr. Ramirez was working every day or whether he voluntarily or involuntarily went back to Mexico?” Dr. Ewing

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again responded that that was Ramirez’s earnings c a p a c ity. Defense counsel then asked the cou r t to strike Dr. Ewing’s testimony as not helpful to the jury because the expert admitted its c al c u l ation was not evidence of damages, and the district court denied the request. At the conclusion of the 27- day t rial, the court submitted the case to the jury with instructions t o answer whether the D efendan t s had caused the Plaintiffs to suffer the f ollowing con s t i t u t ional violations: wrongful arrest; unlawful detention; constitutionally unfair criminal tr i al; a policy of not disclosing exculpatory evidence; 6 and a policy of employing improper eyewitness identification procedures. The jury found for the Defendants on al l o f the Plaintiffs’ claims. The district court entered a take nothin g j udgment in favor of the Defendants. The Plaintiffs now appeal. II. ANALYSIS The Pla i n t i f

fs c ontend that the district c ourt violated Rule 403 of the Federal Rules of Evidence b y allowing e v idence of their immigration status because a ny probative value was s ubstantially outweighed by a danger o f unfair prejudice. More s pecifically, the Plaintiffs argue t hat the district court abused its discretion in allowing Defendants’ counsel t o elicit testimony in an attempt to s how t h a t t h e Plaintiffs were “illegal aliens” despite their documentary evidence demonstrating t hey were l a wful permanent residents during the relevant time period. The relevant time period was their incarceration for the murder conviction. The Plaintiffs are seeking damages for, among o ther things, lost earnings during their incarceration.

A. Waived Objection The Defendants contend that the Plaintiffs waived t heir objection because t h e y w e r e t he f

irst to introduce evidence of their own immigration status. As

6 This claim was brought agains t the D ef end ants not bef

ore this Court on ap p eal. 12 Case: 11-10865 Document: 00512283623 Page: 12 Date Filed: 06/21/2013No. 11-10865

previously set forth, six months prior to t rial, Plaintiffs’ counsel filed a motion to exclude evidence of any pre-arrest immigration s tatus or h istory because at the time of t heir arrests and at trial they were lawful r e sidents. The Plaintiffs argued that b ecause they were lawful permanent residents at the time of their arrest in 1996, t h eir p re-ar r e s t i l legal immigration status w as completely irrelevant to the issues and had no bearing on t heir claim for d amages based on 12 years of wrongful i ncarceration. Additionally, they argued that the issue of immigration status is divisive, inflammatory, and extremely pr ej u d i c i al. The Defendants opposed the motion, arguing that such evidence was r elevant and probative. The district court denied the motion. Shortly before trial, Plaintiffs again filed a motion in limine to exclude evidence of their pre-arrest illegal immigration status. In that motion, Plaintiffs requested the court to instruct the D efendants to refrain fr o m r e ferencing the P l ai ntif f s ’ i m m igration status without first a pproaching the bench and obtaining

a r uling from the district c ourt outside the presence of t h e j u r y . Again, the Defendants opposed the motion, and the district court denied it. The Pl a i n t i f

f s assert that because the Defendants had made clear that they considered the Plaintiffs’ immigration status “relevant and probative” and because the district court refused t o e x c l u d e any such evidence, they had “no choice but to p reemptively defend themselves at t rial f rom any false allegations that they were illegal aliens.” D uring trial, both Plaintiffs testified, and on direct examination, P laintiffs’ counsel elicited testimony t hat t h ey were born in Mexico and that, a lthough they ille g a l l y entered the United States, t hey had become lawful permanent residents prior to their arrest in 1996. To support t heir contention that the introduction of evidence regarding the i r immigration status did not waive their objections, P laintiffs rely on this Court’s opinion in Reyes v. Missouri Pacific Railroad Co ., 5 89 F.2d 791, 793 n.2 (5th Cir. 1979). In that c ase, this Court rejected the defendant’s claim that the

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plaintiff waived a ny error by first introducing evidence of prior convictions during direct examination, explaining t h a t t h e plaintiff “h ad n o choice but to elicit this information on direct examina t i on in an effort to ameliorate its prejudicial effect.” Id

. Subsequently, however, t h e S u preme Court held t hat a “ defendant who preemptively in t r o d u c es evidence of a prior conviction on direct examination
may not on appeal claim that the admission of such e vidence was error.” Ohler

v. United States , 5 29 U.S. 753, 760 (2000). In Ohler , the distric t court had granted the government’s motion in limine that sought to use the d e f e n dant’s prior felony conviction as impeac h ment evidence. Id. at 754. In making its determination that the evidentiary objection h ad been w aived, the S upreme Court relied on the general rule that “a party introduci n g evidence cannot complai n o n a p p e a l that the evidence was erroneously admitted.” Id. at 755 ( c i t i ng 1 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 103.14, p . 103-30 ( 2d ed. 2000); 1 J. Strong, M cCormick on Evidence § 55, p . 246 (5th ed. 1999)). Accordingl y , the principle i n Ohler dictates that the P laintiffs’ preemptive introduction of evidence of their illegal immigration status prior to their arrests w aives any challenge to that e vidence. Nonetheless, w e conclude that the Plaintiffs’ i ntroduction of evidence regarding their illegal i mmigration status prior to becoming legal residents does not wa i v e the P laintiffs’ right to challenge defense counsel’s attempt to elicit testimony that they were illegally in the United States aliens” a ftertheir arrests. B. Preservation of Error Ponce, but not Abreo, c o ntends that the Plaintiffs failed to preserve the

error by f

ailing to move for a m istrial or requesting a specific jury instruction to address the i ssue. 7 Thus, Ponce argues that this issue should be reviewed for

7 Ponce als o s tates that the Plaintif f s f ailed to ad d res s the is s ue of im m igration s tatus in their “48- p oint m otion in lim in e . ” Al t h o ugh the Plaintif f s d id not rais e the is s ue in that 14 Case: 11-10865 Document: 00512283623 Page: 14 Date Filed: 06/21/2013No. 11-10865

plain error. If a complaining party does not o bject at trial to t he admission of the evidence, this Court reviews the evidentiary challen g e on appeal only for plain error. See F E D

. R. E V I D

. 103(e); United States ex rel. Small Bus. Admin. v. Commercial Tech., Inc ., 354 F.3d 378, 389 (5th Cir. 2003). 8 Contrary to Ponce’s assertion, the Plaintiffs did request a s p e c i f ic jury instruction regarding t heir lawful p e r m a n ent resident status, and the district court denied i t. 9 In any even t, we reject Ponce’s contention that the P laintiffs’ failure to move f

or a mistrial r e q u ires plain error review. During the trial, P l a intiffs’ counsel repeatedly objected to defense c ounsel’s questions involv i n g Plaintiffs’ illegal immigration status a fter their a rrest. 1 0 Thus, we conclude that the Plaintiffs’ objections s ufficiently preserved the claim. See F E D

. R

. E V I D

. 103(b) (“Once t he court rules definitiv e ly on the record—either before or at trial—a party need n o t r enew an objection o r offer of proof to preserve a claim of error for appeal.”).

C. Merits of the Evidentiary Ruling The Plaintiffs contend t hat the district court erred i n al lowing Defendants’ counsel to elicit testimony in an attempt to show that the Plaintiffs w ere “illegal aliens” even though they were lawful permanent residents d uring the relevant

p a r t i c u l a r m otion, as p revious ly s et f orth, they d id rais e it in tw o other p retrial m otions t o exclud e.

8 U nd er the p lain error s tand ard , this C ourt generally revers es only f or “obvious and
s ubs tantial errors that s erious ly af f ect the f airnes s , integrity, or public rep utation of jud icial p roceed ings .” Reddi n v . Robi nson Prop

. G r. , Ltd. P' shi p , 239 F. 3d 756, 760 ( 5th Cir. 2001)

.

9 The Plaintif

f s reques ted the f

ollow ing ins truction: “As p erm anent legal res id ents , p laintif f s are entitled to bring this action. You m ay not treat them any d if f erently nor d eny them a jus t recovery s im p ly becaus e they are perm anent res id ents rather than citizens of the U nited States

. ”

1 0 Ponce p oints out that Plaintif f s ’ couns el did not object to R am irez’s m ental health record s w hich p rovid e that he is a M exican national. B ecaus e the Plaintif f s f irs t introd uced evid ence d em ons trating they are M exican nationals , any challenge to that evid ence has been
w aived

. O hl er , 529 U

. S. at 755- 58. 15 Case: 11-10865 Document: 00512283623 Page: 15 Date Filed: 06/21/2013No. 11-10865

time period. I n t heir b rief, the Plaintiffs argue t h a t t he questioning was irrelevant and prejudicial. R elevant evidence is defined as evidence h aving any tendency to make the existence of any fact that is of con s e q u e n c e to the determination o f t he action mor e p r o b ab l e or less p robable t han it would be without the evidence. F E D

. R. E V I D

. 401. Rule 403 p rovides that a district court

ma y e xclude evidence, even if relevant, i f its probative value is substantially outweighed by a danger of unfair prej u d i c e . A trial c ourt’s ruling on admissibility under Rule 403's balancing test will not b e overturned on appeal absent a clear abuse of discret i o n . United States v. Adcock , 651 F.2d 338, 343 (5th Cir. Unit B Jul. 1981). At trial, the Plaintiffs objected t o t h e d e f e n se’s line of questioning with respect to their illegal i mmigration status. They argued that because they had become legal residents by t h e time of their arrests, such questioning could only

serve to “inject bias” and be “unfairly prejudicial.” T he district court allowed the questioning, stating that “ I think that on the damage issues c o n c e r ning earnings, it’s probably relevant to pursue that.” At trial, defense c ounsel asked questions insinuating that the P laintiffs were illegal a liens during the cross examination of three w itnesses: the two Plaintiffs, Ramirez and Sifuentes, and Dr. Bradley Ewing, the Plaintiffs’ economist expert witness. At oral argument, Plaintiffs’ counsel conceded t hat whether the Plaintiffs

were illegal aliens (and t hus unauthorized to w ork in t h e United States) at the time of their arrests is releva n t to t he issue o f damages. However, P laintiffs’ counsel contended that the green cards c onclusively proved they b ecame lawful permanent residents p rior to their arrests. Nonetheless, Plaintiffs’ counsel also conceded that defense counsel was entitled to cross examine the Plaintiffs with respect to their green cards. The Plai n t i f

f s rely on Rojas v. Richardson , 703 F.2d 1 86 ( 5th Cir. 1983), to show that comm e n t s about a p arty’s alien status may be h ighly prejudicial

16 Case: 11-10865 Document: 00512283623 Page: 16 Date Filed: 06/21/2013No. 11-10865

and require reversal. In that case, the plaintiff Rojas had brought a negligence suit a gainst Richardson. Id

. at 187. Prior t o t rial, Rojas had f iled a motion in limine, seeking to bar the use of testimony regarding h i s status as an “illegal alien.” Id

. at 188. The district court denied t h e motion. I d

. Although no evidence was admitted during trial r egarding Roja s ’ s i m m i gr ati o n s t at u s, during closing argument, defense counsel referred to him as an “ i llegal alien.” Id

. at 190-91. Because Rojas’ counsel did n ot object to this r emark, this Court r eviewed the issue f

or plain error, opining that “allegations unsupported by th e record that Rojas was an illegal alien might well have a serious and n egative effect on his substantial right to a n impartial jury.” Id

. at 190. This Court opined that “by introducing irrelevant and unproven a llegations that Rojas was a n il l e g al alien, the defense clearly was appealing t o the prejudice and bias of members of the jury on the basis o f national origin.” Id

. at 1 91. Although admitting evidence of R oj a s ’ s Mexican citizenship was necessary to establish diversity jurisdiction, “his status as an ‘illegal’ alien was completely irrelevant to t he negligence claims the jury was to evaluate.” Id

. Ultimately, this Court held that “the obvious and blata n t appeal in this case to racial and e thnic prejudice is plain error.” Id

. at 192. Thus, this Court reversed the district court’s judgment and ordered a new trial. Id

. However, on rehearing, Defendant Richardson s u ppl e m e n ted the record with a tran s c r i p t of t he v oir dire proceedings, which “ made clear that it was made known to the p rospective jurors at that t ime that plaintiff, Rojas, was an ‘illegal alien.’” Rojas v. Richardson , 713 F.2d 1 16, 117 (5th Cir. 1983). Although the Court on rehearing c ontinued to find counsel’s rem a rks h ighly prejudicial and a blatant appeal to b ias, i n li ght of the revelation that the jury had knowledge of Rojas’s illegal s tatus throughout the trial, it could not find that the argument was so prejudicial as to constitute plain error. Id

. at 118. The Court

17 Case: 11-10865 Document: 00512283623 Page: 17 Date Filed: 06/21/2013No. 11-10865

then granted the motion for r ehearing and a ffirm e d the district court’s judgment. Id. Here, the Plaintiffs urge this Court to l i k e w i s e find defense counsel’s admission of evidence of illegal immigration status highly prejudicial and an abuse of discretion. Th e initial opinion in Rojas stands for the proposition that c ounsel’s closing remarks referring to the plaintiff as an “illegal a lien” rose to the level of plain er r o r because they were “unsupported by the record” and “completely irrelevant to the negligence claims.” 703 F.2d at 190, 191. The opinion on rehearing explains that because the jury had b een aware of Rojas’s illegal status throughout the trial, the Court could not find the attorney’s remark r o se to the level of plain error. Roj a s , 713 F.2d at 117-18. Here, the Plaintiffs are not bringing a n i m p r o per closing argument claim; instead, they raise a claim of evidenti a ry e rr o r under Rule 4 03. More importantly, u nlike Rojas , in the instant
case, t he Plaintiffs’ legal status h as been conceded to be relevant to their claim for damages f

or l oss of earning capacity while incarcerated. Thus, although Rojas i n forms us that the use o f the term “illegal alien” can b e highly prejudicial, we do not find Ro

jascontrolling in the instant case. 1. Questioning of Ramirez and Sifuentes The Plai n tiffs both testified that although t hey had initially entered the United States illegally, t hey had become l awful p ermanent residents prior to their arrests for murder in 1996. Over the Defendants’ objection at t r i a l , t h e Plaintiffs introduced i nto evidence their lawful permanent resident ca r d s . Ramirez obtained h is card pursuant to an amnesty program, a nd t h e c a rd provides that it became effective on Dec. 1, 1990. Sifuentes’s card provides that it became effective February 4, 1993. The Defendants have repeatedly disputed whether R amirez had obtained legal status b y the time o f his arrest b ecause he had obtained his card through

an amnesty program. Before the trial court, Defendants asserted that Ramirez

18 Case: 11-10865 Document: 00512283623 Page: 18 Date Filed: 06/21/2013No. 11-10865

had received h is green card during an amnesty program a nd that all green cards received under that program had the sam e d a t e , D e cember 1, 1990. Thus, the Defendants argued the card did not p r o v e t h at R amirez had become a lawful permanent resident o n that date. In their brief, Plaintif f s cite the amnesty program statute that R amirez used t o obtain his green car d. See 8 U.S.C. § 1160. Ramirez obtained h i s card through th e S p e c ial Agricultural Workers Program, an amnesty program that Congress created as part of the I mmigration Reform and Control Act of 1986. Under certain circums t a n ces, the program provided that an alien who h ad been admitted for t emporary residence would be admitted as a permanent r esident if he applied by November 30, 1988. 8 U.S.C. § 1160(a)(1)(A); Ortiz v. Meissner , 179 F.3d 718, 720 ( 9th Cir. 1999). T he statute further provided that the adjustment would occur two years a fter the later of the following events: ( 1) the date the a lien was granted temporary resident status

or (2) the last day of the application period. 8 U.S.C. § 1160(a)(2)(B). Based on the dates and deadlines in the amnesty statute, the Defendants’ c ontention that Ramirez would not h ave had his permanent lawful resident card by the time he

was arrested i n 1996 seems rather im p l a u s i b le. 1 1 However, it is not apparent from the t ranscript that the p a r t i e s w e re aware of this particular amnesty statute and its timeline. 1 2 At trial and o n a ppeal, defense cou n s e l h a s a r gued that the Plaintiffs’ testimony demonstrated that they did not p rocure t h eir green cards until after their current counsel began assisting them in 2 001, which would have been long

1 1 O bvious ly, the D ef

end ants ’ contention regard ing the am nes ty s tatute d oes not ap p ly to Sif uentes becaus e he d id not obtain his card through the am nes ty p rogram
.

1 2 D ef ens e couns el elicited tes tim ony from Ram irez that the Texas p ris on s ys tem clas s if ied him as an illegal alien. Although w e d o not find it im p rop er to ques tion him about his clas s if

ication in p ris on, w e note that it is the f ed eral governm ent, not the State of Texas , that d eterm ines a f

oreign national’s im m igration s tatus

.

19 Case: 11-10865 Document: 00512283623 Page: 19 Date Filed: 06/21/2013No. 11-10865

after their arres t f

o r the murder in 1996. Our review of the record d oes not support d efense counsel’s interpretation of the Plaintiffs’ t estimony. Although the Plaintiffs’ t estimony through their interpreter is not crystal clear, a fair reading of their testimony is that their current counsel assisted t he Plaintiffs in renewing their green cards after the initial c ards had expired 1 3 while they were in p r i s o n. Ramirez testified that he “already h ad a nother card, but it expired while i n the penitentia r y” a n d that his current l awyers helped him obtain the card that he had at t he instant trial. Sifuentes testified that h e became a lawful permanent resident in 1993 and t hat his current lawyers helped him obtain the permanent resident card that was submitted at trial. Further, the Defendants’ contention that current c ounsel assisted Ramirez in o btaining his card pursuant t o the a mnesty program a ppears untenable because the amnesty applicati o n deadline was in 1988, and current counsel began representing Ramirez in 2001.

2. Questioning of Plaintiffs’ Expert Witness Dr. Ewing During Dr. Ewing’s cross examination, defense counsel asked whether his earnings calculation for t he Plaintiffs took i nto consideration that they may not have been legal residents at the time o f their incarce r a t i o n . Defense counsel further inquired whether illegal aliens a r e p aid on the same scale as legal residents. D r. E wing explained that immigration status has n othing to do with earnings capacity. Defense coun s e l a l s o inquired whether the earnings calculation took i nto account that the Plaintiffs could be deported. Dr. Ewing responded that the analysis did take into consideration this factor.

1 3 R elying on a U nited States D ep artm ent of Jus tice online p res s releas e, the Plaintif f s exp lain that, although a green card m ay exp ire, the legal s tatus of the alien d oes not. Brief at 28 & n. 3 (citing U. S. D ep t. of Jus tice, Im m igration and N aturalization Service, Q ues tions and Ans w ers , a v ai la bl e a t http : //us cis

. gov/f iles /p res s releas e/ GreenCard Renew al_110702. p d f (las t acces sed Jun. 5, 2013) ( “Q

. Will I los e m y p erm anent res id ent s tatus if I d o n o t renew m y G reen Card ? A. N o, you w ill not los e your p erm anent res id ent s tatus if you d o not renew your G reen Card

—p erm anent res id ent s tatus w ill not exp ire or change. ”) )

. 20 Case: 11-10865 Document: 00512283623 Page: 20 Date Filed: 06/21/2013No. 11-10865

As previously set forth, at oral argument, Plaintiffs’ counsel conceded that whether the Plaintiffs were illegal aliens ( and thus unauthorized to work in the United States) at t he t ime of the i r a r rests is r elevant to t he issue of damages. Although the cross examination of Dr. Ewing was somewhat repetitive with respect to this issue , t hat o ccurred in p art b ecause there were three defense attorneys that questioned Dr. E wing. 1 4 I t also appears that the question s regarding p ossible deportation are relevant to damages because lawful permanent residents can be deported. Assuming arguendo that the district court erred in allowing the continued questioning of these three w itnesses with respect t o the Plaintiffs’ “illegal” immigration status at the t ime of their arrests, we turn to whether the error was harmless. Price v . R o s i e k Constr. Co ., 509 F.3d 704, 707 (5th Cir. 2007). The “evidentiary ruling will be a ffirmed unl e s s th e di s t rict court abused i ts discretion and a substantial right of t he complaining party was affected.” Id

. (citation and internal quo t a t i o n m arks omitted) (emphasis added); see F E D

. R. E V I D

. 103(a) (requiring that the “e r r o r a f f ects a substantial right of the party”). “An error does not affect substantial rights if the c ourt i s sure, after reviewing the entire record, t hat the error did not influence the jury or had b ut a very s l i ght effect on its verdict.” Id

. at 707-08 (citation and internal quotation marks omitted). We begin by noting that the Plaintiffs have o nly preserved their challenge to any testimony t hat was e licited r egarding the Plaintiffs’ i llegal i mmigration status a t the time of their arrests and subsequent incarcerations. As previously explained, any challenge to the testimony r ega r d i n g their illegal i mmigration status prior to that time has been waived.

1 4 We note that the d is trict court s us tained the Plaintif f’s objection to d ef

ens e couns el’s
s ugges tion to D r. E w ing that he “talk to roof ing crew s ” to d eterm ine the dif ference in p ay f

or illegal and legal res id ents

. 21 Case: 11-10865 Document: 00512283623 Page: 21 Date Filed: 06/21/2013No. 11-10865

With respect t o R amirez, our conclusion after r e v iewing the evidence is that his testimony regarding his illegal status prior to his arrest i s m uch more damaging than any testimony elicited rega r d ing his post-arrest status. For example, during defense counsel’s cross examination of Ramirez r egarding his pre-arrest immigration status, he admitted that when he was illegally in the United States, he had lied in an affidavit submitted to the INS, claiming that he had been born in the U nited S tates. Ramirez a dmitted that h e had been sent to prison for bringing two women across t he border when he was an illegal alien. Ramirez further admitted t h at h e had represented under oath that one of the

w o m e n w a s his wife, but t hat they were not legally m arried. Ramirez also admitted that h e had been deported twice for illegally entering the United States. On the other hand, Ramirez’s testimony on cross e x a m i n ation with respect to the r e levant time peri o d w a s not v ery p rejudicial. For e xample, when Ram i r e z was asked w hether he went to p rison in 1998 a s an illegal alien, Ramirez responded: “No, I still had m y o ther card.” Although defense counsel attempted to elicit testimony that Ramirez was in the United States illegally at the time of his a r r e s t and incarceration, the record reveals that Ramirez consistently testified that he h a d h i s card at the time of his arrest, it expired while he was incarcerated, and he renewed it o n ce h e was released. In any event, to the extent that t he Plaintiffs a re relying o n defense counsel’s remarks,

we note the district court instructed the j ury that the a ttorney’s comments d o not constitute evidence. 1 5 With respect to Sifuentes , there was little testimony elicited from him regarding his immigration status. On dir e c t e xamination, Sifuentes testified that h e e ntered the c ountry illegally in 1991 and became a legal resident in

1 5 T he court ins tructed the jury as f ollow s : “Rem em ber that any s tatem ents , objections , or argum ents m ad e by the law yers are not evid ence in the cas e. ” 22 Case: 11-10865 Document: 00512283623 Page: 22 Date Filed: 06/21/2013No. 11-10865

1993, a s evidenced by his permanent resident card. During cross examination, Sifuentes testified t h a t he had contact with the M exican Consulate’s Office following his release from prison. Of course, the jury was already aware that Sifuentes was a Mexican n ational f rom his direct testimo n y . When asked on

cross examination whether he had f iled a tax ret u r n from the time he entered t h e U n i t e d States illegally in 1991 until he was sent to prison, Sifuente s responded that he did not remember. Although t h e r e w as l ittle prejudicial testimony regarding h is illegal immigration status, defense c ounsel was able to elicit highly prejudicial testimony from Sifuentes in which he admitted pleading guilty to assaulting his gi r l friend. Defense counsel was also able to introduce evidence that Sifuentes had taken a p o l y g r a ph test that indicated deception when he was questioned whether he was present when the murder victim was shot. This evidence is not challenged on appeal and is clearly prejudicial. With respect to Dr. Ew i n g, although defense c o unsel asked questions regarding whether t he Plaintiffs’ immigration status would affect the earnings capacity analysis, no new prejudicial e vi d e n c e was elicited. Our conclusion is supported by P l a i n t i f fs’ counsel’s response at o ral argument to this Court’s inquiry w ith respect to what constituted t he most damaging testimony elicited at trial. Counsel pointed to D r. E wing’s testimony that he was not an attorney and did not know whether the Plaintiffs had legal resident status. Moreover, our review of the record does n ot persuade us that t he Plaintiffs made a strong case i n support of their claims of constitutional violations. 1 6 For example, one of the Plaintiffs’ claims is that they were arrested without probable

1 6 We d is agree w ith Pl a intif f s ’ contention that they m ad e a s trong s how ing on their cons titutional claim s . We note that the Plaintif fs ’ b r i ef m ak es no argum ent regard ing the
s trength of their c l a i m t h a t the City of Littlef ield had a p olicy of em ploying im p rop er eyew itnes s id entif

ication p roced ures . I n any event, the record d oes not s up p ort a f ind ing that there w as a p ers is tent p olicy or p ractice that w as m aintained w ith d eliberate ind if f erence w ith res p ect to eyew itnes s id entif ication p roced ures .

23 Case: 11-10865 Document: 00512283623 Page: 23 Date Filed: 06/21/2013No. 11-10865

cause. Contrary t o the Plaintiffs’ assertion, t he evidence demonstrated probable

cause to arrest t he m . L e s s than a n h our after the m urder, a police officer stopped the Plaintiffs i n their vehicle a few miles from the crime scene at about 3 o’clock in the morning because t h e o f f i cer thought their vehicle m atched the description given by the dying murder victim. T he o fficer let them go after stopping them. Subsequently, Ayala identified a p h otograph of Sifuentes, stating that he was at the m u rder scene a few moments before the victim was shot. Also, J anie Ramirez 1 7 made an uns o l i cited call to the p olice s tating that Sifuentes matched the description of the murder suspect and had been at her home in Littlefield a round m i d night the n i ght of the murder. F urther, while being questioned about the robbery/murder, Ramirez asked the p olice why they thought he would steal $ 300 or $400 when h e had a job. The evidence demonstrated t h at the robbers h a d t aken nearly $300 from the store. Knowledge of these facts support the d etermination that t here was probable cause to arrest the Plaintiffs. A d diti o n al ly , al th o u gh th e P l ai ntif f s c l ai m ed that Defendant Texas R a n g e r Abreo falsified his investigation report, at trial Abreo e x p l a i ned that he mistakenly a ttributed other witnesses’ s tatements at the crime s cene to Officer Thompson. H owever, t he evidence showed that the witnesses did indeed make the statements contained in Abreo’s report. I n other words, the mistake Abreo made was in his representation of who h ad m ade that statement. The Plaintiffs also claimed that the t estimony of Mary Davila Wood a t their criminal trial was coerced. Wood’s testimony at the trial in the instant suit d o es not support the Plaintiffs’ claim of c oercion. Wood testified that Abreo never asked her to lie and that she has always t o l d l a w enforcement officers the t ruth about what happened on the night of the murder. Further, we note that, consistent with her

1 7 She is not related to the Plaintif f R am irez. 24 Case: 11-10865 Document: 00512283623 Page: 24 Date Filed: 06/21/2013No. 11-10865

testimony at t he criminal trial, Wood’s t estimony during t he instant trial placed the Plaintiffs a t the s cene of the murd e r o n the night in question. 1 8 The Plaintiffs also relied on a memo written by the prosecutor stating that Abreo had lied to him in order to have him file the case; however, at the instant trial, the prosecutor explained that although he initially believed that Abreo lied about a witness’s statement, after he read the transcript of the s tatement, h e no longer belie v e d t hat Abreo had l ied to him. The Plaintiffs also claimed that the eyewitness identification procedure rendered their c r i m inal t rial unfair. However, in the criminal t r i a l , t h e jury w as made aware of the identification procedure used by the police. After reviewing the entire record, we do not believe the Plaintiffs carried their burden of proving that their constitutional rights w ere viol a t e d during their criminal proceedings. We note that, in a post-judgment ruling, the district judge, who presided over this 27-day trial, o pined as follows: “Plaintiffs initiated this case by suing almost everyone remotely i nvolved in t he u nderlying c riminal investigation and trials and asserted numerous claims that were either tenuous at best or even fanciful in l ight of established c ivil rights law.” We further note that d efense counsel made no mention of t he Plaintiffs’ illegal i mmigration status during closing arguments. United States v . Farias-Farias , 925 F.2d 805, 812 ( 5th Cir. 1991) (concluding that any error i n admitting the e v i d e n c e was harmless afte r n o t i ng, among other things, that opposing counsel did not

m e n t i o n t h e challenged evidence in closing argument). In sum, in view of the

more prejudicial evidence that is ei t h e r w aived o r not challenged and the weakness of the Plaintiffs’ c ase, we d o not b elieve that t he challenged evidence affected the Plaintiffs’ substantial rights. Accor d ingly, we are persuaded that

1 8 We, of cours e, exp res s no op in i o n w i t h r e s p ect to the innocence or guilt of the Plaintif f s as that is not bef

ore us on ap p eal. 25 Case: 11-10865 Document: 00512283623 Page: 25 Date Filed: 06/21/2013No. 11-10865

any error “had but a very slight effect on [the jury’s] verdict.” Price , 509 F.3d at 708. That said, we feel compelled to express our disapproval of defense counsel’s cross-examination of the w i t n e sses with respect to whether the Plaintiffs were legal residents at the time o f t h eir a rrest even after the P laintiffs’ lawful p e rmanen t r e s i dent cards had been admitted into evidence. It appears that counsel proceeded with t his line of questioning in an a ttempt to mislead the jurors regarding the Plaintiffs’ immigration status. Nonetheless, as explained above, our review of the record convinces us that any error that was not waived was harmless. III. CONCLUSION For all the above reasons, the district court’s judgment is AFFIRMED.

26 Case: 11-10865 Document: 00512283623 Page: 26 Date Filed: 06/21/2013