1District Judge of the Northern District of Texas, sitting by designation.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-20823

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES HASKELL WILLIAMS,

Defendant-Appellant.

 

Appeals from the United States District Court

for the Southern District of Texas

January 9, 1998

Before KING and JONES, Circuit Judges, and KENDALL1, District Judge.

KENDALL, District Judge.

Appellant James Williams appeals his conviction under 8 U.S.C. § 1324(a)(1)(A)(ii) for

transporting illegal aliens within the United States. A jury convicted Williams on five counts of

aiding and abetting the knowing transportation of illegal aliens within the United States. 

Appellant now asserts multiple errors involving the sufficiency of the evidence, admission of

certain testimony, denial of his motion for mistrial and the denial of his motion to dismiss. 

Because this court finds no merit in appellant’s arguments, we AFFIRM the conviction of

appellant.
2

I. FACTUAL BACKGROUND

James Williams is a retired airline pilot from Brownsville, Texas. On August 10, 1995,

Williams landed his single-engine, high-wing Cessna 210 aircraft at RWJ Air Park, a remote

airstrip near Houston. Williams was accompanied on his flight by his housekeeper, Rosalinda

Saenz, and five illegal aliens. Three of the illegal aliens were Mexican nationals and the remaining

two were Dominican Republic nationals.

When he landed his plane, Williams was greeted by Doug Pence, a pilot for the United

States Custom Service in Houston, Texas. Pence had received a telephone call at the Houston

Air Branch explaining that a Customs aircraft was tracking a suspect aircraft heading towards

Houston from the Rio Grande area. Pence was requested to participate in the tracking.

Pence gained visual sight of Williams’ aircraft over Galveston Bay. He continued to

monitor the airplane until it landed at RWJ. Pence met Williams as the two exited their planes and

questioned Williams regarding his passengers. Williams explained that he knew Saenz but failed

to identify the remaining passengers.

Saenz and the five remaining passengers were required to exit the aircraft and present

identification. Saenz produced a Texas identification card. Pence received only Mexican voter

registration cards and what appeared to be a pair of Dominican Republic identification or voter

registration cards from the other passengers. Saenz and the five aliens were taken into custody at

RWJ.

At trial, Williams testified that he sometimes carries paying passengers to supplement his

income. Williams explained that on August 9, 1995, he received a telephone call from an

unidentified Spanish-speaking female concerning a trip to Houston. Williams could not

understand the woman, so he handed the telephone to Saenz. With Saenz translating, Williams

agreed to transport four unidentified people to Houston the next afternoon for a price of $175. 

Williams testified he instructed Saenz to ask if “the people are documented.” Saenz informed him

that she had been told that they were. Saenz accepted Williams invitation to accompany him to
 

2A “coyote” is a person who guides illegal aliens across the Mexican border to the United

States.

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Houston.

Saenz and Williams drove to the airport together the next day. Williams readied his plane

for the trip and went to the airport office to pay for his fuel. When he returned, Saenz and five

passengers were seated inside the plane. Williams testified that he was in a hurry to take off

because of bad weather. As they were taking off, Williams asked Saenz if the aliens had papers. 

Saenz replied that they did. Williams stated that he then turned to the passengers and said the

word “papeles,” which he described was about all the Spanish he knew. According to Williams,

one passenger showed him a card which Williams thought bore the words “resident alien,” and the

other passengers showed him similar identification cards with pictures.

Four of the five illegal aliens testified at trial and told essentially the same story. A

“coyote” transported them across the Rio Grande and took them to a house in the United States

where they spent the night.2 The next day the coyote drove Saenz and two of the Mexicans to an

airport where Saenz took the aliens to a room and instructed them to wait. The coyote returned

to the house and drove the remaining three men to the airport. Saenz later took the men to the

airplane and told them where to sit. Neither Saenz nor Williams asked their passengers what their

names were or whether they had immigration papers.

One of the aliens, Juan José Villar-Sanchez, testified that before Williams left the plane

after landing at RWJ, Williams and Saenz had a conversation in English which Villar could not

understand. Saenz then spoke to them in Spanish and told them to pretend to be asleep. All the

aliens testified that Williams returned to the plane after talking to Pence and spoke to Saenz in

English. Saenz immediately instructed the men that, if questioned, they should say that Saenz and

Williams did not know that they were illegal aliens.

William Faries runs a small aircraft repair and sales business at the RWJ airport. He

testified at trial that as a rule Saenz accompanied Williams on trips when he carried other
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passengers. Faries testified that several times Williams had landed at RWJ carrying Saenz and five

other passengers. The passengers often would remain in the airplane during stops. Faries stated

that on the occasions when Williams’ airplane was overloaded, his passengers appeared to be

Hispanic.

Faries further testified that a car containing two or three Hispanic persons would

sometimes park near the airport for as long as two hours before Williams arrived. When Williams

landed, the car would drive very close to his airplane. The passengers would transfer from the

plane to the car, which would drive away quickly. On other occasions, Hispanic male passengers

would wait in Williams’ airplane for as long as two hours while Williams and Saenz ate and

relaxed inside the airport.

II. DISCUSSION

Williams moved for judgment of acquittal at the end of the government’s case-in-chief and

again at the close of the evidence. Williams asserts that the district court erroneously denied his

motion for judgment of acquittal because no evidence, or, alternatively, insufficient evidence,

existed to establish that Williams actually knew that the aliens he was transporting were illegally in

the United States.

To establish a violation of 8 U.S.C. § 1324(a), the Government must prove (1) that the

defendant transported or moved an alien within the United States, (2) that the alien was present in

violation of law, (3) that the defendant was aware of the alien’s status, and (4) that the defendant

acted wilfully in furtherance of the alien’s violation of the law. United States v. Diaz, 936 F.2d

786, 788 (5th Cir. 1991). The defendant’s knowledge of the alien’s illegal status is an essential

element of the offense. Id.

The standard for evaluating the sufficiency of the evidence is whether, viewing the

evidence in the light most favorable to the government, a rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. United States v. Bell, 678 F.2d

547, 549 (5th Cir. 1982) (en banc), aff’d, 462 U.S. 356 (1983). This court reviews direct and
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circumstantial evidence adduced at trial, as well as all inferences reasonably drawn from it, in the

light most favorable to the verdict. United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.

1992). The jury is solely responsible for determining the weight and credibility of the evidence. 

United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992). The court will not substitute its

own credibility determination for that of the jury. Id. The court looks to whether the trier of fact

made a rational decision, rather than whether it correctly determined the defendant’s guilt or

innocence. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.), cert. denied, 115 S.Ct. 2014

(1995).

The testimony of the aliens and the fact the identification cards described by Williams were

never found was sufficient evidence for a rational jury to have rejected Williams’ explanation as

not credible and to have concluded that he knowingly transported illegal aliens in violation of §

1324. See Sanchez, 961 F.2d at 1173; Martinez, 975 F.2d at 161, Diaz, 936 F.2d at 788. It is the

jury’s responsibility to weigh the credibility of witnesses. That the jury chose not to believe

Williams’ testimony is to Williams’ detriment. However, this court will not assume the jury’s role

on appeal.

Appellant next argues that the district court erred by allowing Faries to testify that

Williams and Saenz had flown into RWJ Airport with Hispanic passengers on prior occasions. At

trial, Williams objected to this testimony on the basis of relevance. On appeal, Williams now

asserts that Faries’ testimony regarding Williams’ previous flights to RWJ should have been

excluded under 404(b). Because Williams failed to assert his 404(b) objection at trial, we will

review this objection for plain error. Fed. R. Evid. 103(d). Reversal for plain error is appropriate

only in extreme circumstances where a miscarriage of justice otherwise would occur. Wilson v.

Waggener, 837 F.2d 220, 222 (5th Cir. 1988). Rule 404(b) prohibits the use of prior bad acts as

proof of the defendant’s character. Fed. R. Evid. 404(b). Prior bad acts or wrongs are

admissible for other purposes such as proof of knowledge or absence of mistake or accident. Id.

Even with a Rule 404(b) objection, Faries’ testimony could have been admitted to prove evidence
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of Williams’ knowledge that the individuals he was transporting in his airplane were illegal aliens,

a fact Williams vehemently denied. Such testimony also could have been admitted to prove that

Williams’ act of transporting illegal aliens was more than a mere mistake or accident. Thus, we

find that the district court’s admission of Faries’ testimony clearly was not plain error.

This court will review Williams’ remaining relevancy arguments under Fed. R. Evid. 403. 

We review the trial judge’s evidentiary rulings for an abuse of discretion. United States v.

Fortenberry, 919 F.2d 923, 925 (5th Cir. 1990). Relevant evidence may be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury.” Id. This court will not disturb the district court’s determination

that evidence is relevant “absent a substantial abuse of discretion.” Id. Although relevant

evidence is inherently prejudicial, the exclusion of such evidence under Rule 403 is allowed only

when it is unfair prejudice, substantially outweighing probative value. United States v. Pace, 10

F.3d 1106, 1115-16 (5th Cir. 1993) (emphasis added).

Faries’ testimony regarding Williams’ previous trips to RWJ was relevant to and highly

probative of the issue of Williams’ knowledge of the aliens’ status, an essential element of the

government’s case-in-chief. Evidence of numerous trips to RWJ with an airplane full to capacity

with Hispanic passengers is probative and not unfairly prejudicial. This is especially so when

viewed against the backdrop of the methods by which they de-planed and their staying on board

during two hour “layovers.” Williams attempted to rebut Faries’ testimony by testifying that he

often flew a Hispanic friend and his family into RWJ airport. Williams also stated that he flew

into RWJ airport with his Hispanic girlfriend. The jury was capable of determining the weight and

credibility to give this conflicting testimony. As we previously stated, this court will not supplant

the decision of the jury. We find the trial judge did not abuse his discretion or commit plain error

in admitting Faries’ testimony, in the face of either a relevancy objection at trial or a Fed. R. Evid.

404(b) complaint for the first time on appeal.

 Williams also argues that the district court should not have admitted evidence of Saenz’s
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prior arrests by the INS. The district court allowed Bill Burkland, a special agent with the United

States Immigration Service, to testify that Saenz was arrested the night of August 10, 1995

because Saenz stated that she had two prior experiences with law enforcement, and Burkland

wanted an opportunity to find out the details surrounding those incidences. This testimony was

allowed after defense counsel suggested on cross-examination that Saenz was arrested because

she was Hispanic. The court immediately instructed the jury “that as to this last bit of testimony

that the only purpose I’m admitting it is as to the reason why Ms. Saenz was detained and

arrested that evening in contrast as to why Mr. Williams was let go that evening without being

detained. It’s not to be considered as to Mr. Williams.” The trial court did not allow testimony

regarding the details of those two experiences. Williams urges that Burkland’s testimony was

highly prejudicial to him. We are unmoved. Moreover, any prejudice to Williams that may have

arisen from this testimony was cured by the limiting instruction to the jury.

Williams contends that the trial court erroneously denied his motion for mistrial because

the Government was tardy in disclosing evidence which allegedly contradicted Villar’s testimony

that, while the passengers were being question by law enforcement agents, Saenz slipped Villar

$500 when she handed him a Coca Cola can. The evidence in question consisted of the

investigative notes of special agent Ismael Valentin, which reflected that Luiz Alberto Rosario

Prado, the one alien who did not testify at trial, stated to Valentin during questioning that he had

received $500 and a Coke. Williams argues that the evidence should have been disclosed prior to

trial under Brady v. Maryland, 373 U.S. 83, 87 (1963). 

This court will reverse a district court’s refusal to grant a mistrial only for an abuse of

discretion.” United States v. Limones, 8 F.3d 1004, 1007 (5th Cir. 1993). To establish a Brady

violation, the defendant must show that the prosecution suppressed material evidence favorable to

the accused. United States v. Neal, 27 F.3d 1035, 1050 (5th Cir. 1994). Because the government

produced the allegedly inconsistent statement during the trial, the evidence was not suppressed. 

Neal, 27 F.3d at 1050; United States v. McKinney, 758 F.2d 1036, 1049-50 (5th Cir. 1985).
 

3United States v. Ursery, 116 S.Ct. 2135, 2147-49 (1996).

 

4Compare 8 U.S.C. § 1324(b) with 21 U.S.C. § 881(d) and 18 U.S.C. § 981(d).

8

Under these circumstances, the court looks to whether Williams was prejudiced by the tardy

disclosure. Neal, 27 F.3d at 1050.

The trial court denied William’s motion for a mistrial, but it offered to grant a continuance

so that the defense could review its strategy and examine additional witnesses in connection with

the newly disclosed evidence. Because Williams elected to proceed with the trial without taking

advantage of the court’s offer, he has waived any prejudice caused by the tardily disclosed

information. The trial court did not abuse its discretion by denying a mistrial. Neal, 27 F.3d at

1050; Limones, 8 F.3d at 1007.

Next, Williams complains that the trial court erred by denying his motion to dismiss the

indictment on grounds of double jeopardy because of the prior forfeiture of his aircraft under 8

U.S.C. § 1324(b). Williams acknowledges that the Supreme Court has determined that civil in

rem forfeitures pursuant to 21 U.S.C. § 881(d) and 18 U.S.C. § 981(d) do not constitute

punishment within the meaning of the Double Jeopardy Clause,3 but he urges the court to find that

the forfeiture provisions of § 1324(b) are punitive.

To determine whether a forfeiture proceeding is punitive for double jeopardy purposes,

the court looks to whether Congress intended the forfeiture proceeding to be civil or criminal and

to whether the forfeiture proceedings are in fact so punitive that they “may not legitimately be

viewed as civil in nature, despite Congress’ intent.” Ursery, 116 S.Ct. at 2147 (internal quotation

and citation omitted). The forfeiture provisions of § 1324(b) are analogous to the provisions

contained in §§ 881(d) and 981(d), which the Supreme Court determined not to be punitive. Like

§§ 881(d) and 981(d), § 1324 provides for proceedings in rem; incorporates the procedural

mechanisms for forfeitures contained in the customs laws; provides that, once the government has

shown probable cause for the seizure, the burden of proof lies with the claimant; and serves the

nonpunitive goal of forfeiting only property used to commit a federal violation.4 Because we are
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unpersuaded that § 1324(b) is punitive, Williams’ double jeopardy argument necessarily fails.

Finally, Williams argues that the district court erred by refusing to give Williams’

requested jury instruction requiring the jury to find specific knowledge on the part of Williams to

convict him. Williams contends that the instruction given by the district court did not require

proof beyond a reasonable doubt that he was aware that the aliens were illegally in the United

States and that he intended to transport them in furtherance of their illegal presence.

This court reviews the district court’s refusal to give a requested jury instruction for abuse

of discretion. United States v. Branch, 91 F.3d 699, 711 (5th Cir. 1996), cert. denied, 117 S.Ct.

1466, 1467 (1997). This court may reverse only if the requested instruction is substantially

correct; was not substantially covered in the charge as a whole; and if the omission of the

requested instruction “seriously impaired the defendant’s ability to present a given defense.” 

United States v. Tannehill, 49 F.3d 1049, 1057-58 (5th Cir.) (quotations and citation omitted),

cert. denied, 116 S.Ct. 167 (1995). The district court is given substantial latitude in formulating

the jury charge. United States v. Pettigrew, 77 F.3d 1500, 1510 (5th Cir. 1996).

Williams requested that the jury be instructed: “In order to convict the defendant under

this section, the government must prove as to each count beyond a reasonable doubt that the

defendant actually knew the alien in question was in the United States in violation of law and that

the defendant intended to act in furtherance of the alien’s unlawful presence in the United States.”

The charge given by the district court stated:

Title 8, United States Code, Section 1324(a)(1)(A)(ii), makes it a crime for

anyone to transport an alien, knowing that the alien is here illegally, and in

furtherance of the alien’s violation of law.

For you to find any of the defendants guilty of this crime, you must be

convinced that the government has proved each of the following beyond a

reasonable doubt:

First: That the defendant transported an alien within the United States with

the intent to further the alien’s unlawful presence;

Second: That the alien had entered or remained in the United States in

violation of law; and
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Third: That the defendant knew the alien was in the United States in

violation of law.

. . .

In order for transportation to be in furtherance of an alien’s unlawful

presence, there must be a direct and substantial relationship between the

defendant’s act of transportation and its furtherance of the alien’s presence in the

United States. In other words, the act of transportation must not be merely

incidental to a furtherance of the alien’s violation of the law.

The charge given by the district court is substantially the same as both the 1997 Fifth

Circuit Pattern Jury Instruction 2.03 and as that requested by Williams. Williams has not

identified any element missing from the charge which impaired his ability to present a defense. 

Thus, he has failed to show that the district court abused its discretion by refusing to charge the

jury as he requested. Branch, 91 F.3d at 711; Tannehill, 49 F.3d at 1057-58.

Accordingly, we AFFIRM the conviction of appellant.