IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-50937

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE LUIS ROBLES-VERTIZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________ September 16, 1998

Before KING, SMITH, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jose Robles-Vertiz challenges his conviction of illegal

transportation of aliens and for aiding and abetting, in violation

of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18 U.S.C. § 2. We affirm.

I.

Efrain Trejo-Mendieta sought to smuggle his wife and her

friend into the United States from Mexico. He approached RoblesVertiz for help in this venture and secured his agreement. The two2

men traveled to Mexico and hired a guide with expertise in border

crossings. Trejo, his wife, her friend, and the guide waded across

the Rio Grande River to Texas, where they were met by RoblesVertiz. The wife's friend, an illegal alien named Anna Guerrero,

accepted a ride in Robles-Vertiz's car. Trejo drove his wife in a

separate car.

Robles-Vertiz and Trejo were pulled over and arrested by

Border Patrol agents near Bracketville. Robles-Vertiz directed

Guerrero to identify herself to investigators as “Monica MartinezSalazar,” which she did. As Guerrero had no identifying documents

on her at the time of arrest, the initial criminal complaint

against Robles-Vertiz named the smuggled alien as Monica MartinezSalazar. The single-count indictment, however, charged the

following:

That on or about Novemb er 28, 1996, in the Western

District of Texas, Defendants, JOSE LUIS Robles-VertizVERTIZ, AND EFRAIN TREJO-MENDIETA, aided and abetted by

ea ch other, did knowingly and in reckless disregard of

the fact that the hereinafter named alien enter ed and

remained in the United States in viola tion of law,

willfully and unlawfully transported and moved, and

attempted to transport and move, in furtherance of such

vi olation of law, a certain alien, to-wit: MONICA

RAMIREZ-SANCHEZ, in violation of Title 8, United States

Code, Section 1324(a)(1)(A)(ii), and Title 18, United

States Code, Section 2.

Trejo pleaded guilty and testified against Robles-Vertiz. No

evidence was introduced concerning any one named “Monica RamirezSanchez”; the evidence showed that Robles-Vertiz had transported an

alien named Anna Guerrero, also known as Monica Martinez-Salazar.3 II.

Robles-Vertiz points out that the indictment charged him with

transporting an alien named Monica Ramirez-Sanchez, whereas the

evidence at trial showed he had transported a woman named Anna

Guerrero, also known as Monica Martinez-Salazar. He asserts that

this discrepancy amounts to a constr uctive amendment of the

indictment.

A.

Onl y the grand jury can broaden an indictment through

amendment. U

nited States v. Salvatore

, 110 F.3d 1131, 1145 (5th

C ir. 1997). A constructive amendment occurs when the government

changes its theory during trial so as to urge the jury to convict

on a basis broader than that charged in the indict ment, or when

the government is allowed to prove “an essential element of the

crime on an alternative basis permitted by the statute but not

charged in the indictment.” I d

. (quoting United States v.

Slovacek

, 867 F.2d 842, 847 (5th Cir. 1989)). In U nited States v.

Young

, 730 F.2d 221, 223 (5th Cir. 1984), we explained that “[t]he

accepted test is that a constru ctive amendment of the indictment

occurs when the jury is permitted to convict the defendant upon a

factual basis that effectively modifies an essential element of the

crime charged.”4

If, however, the indictment “contained an accurate description

of the crime, and that crime was prosecuted at trial, there is no

constructive amendment .” United States v. Mikolajczyk , 137 F.3d

237, 244 (5th Cir. 1998), petition for cert. filed (Aug. 4, 1998)

(No. 98-5534), and petition for ce rt. filed (Aug. 4, 1998)

(No. 98-5559), and petition fo r cert. filed (Aug. 4, 1998)

(No. 98-5560). We still must determine whether the variance, if

any, was harmless. S ee United States v. Puig-Infante

, 19 F.3d 929,

936 (5th Cir. 1994). In this inquiry, “our concern is that the

indictment notifies a defendant adequately to permit him to prepare

his defense, and does not leave the defendant vulnerable to a later

prosecution because of failure to define the offense with

particularity.” Id . (internal quotation omitted).

B.

In Stirone v. United States

, 361 U.S. 212 (1960), the Court

found a constructive amendment when the indictment alleged that the

defendant had unlawfully interfered with the importation of sand,

but the court instructed the jury that it could base a conviction

on interference with the exportation of steel. The Court explained

that “when only one particular kind of commerce is charged to have

been burdened a conviction must rest on that charge and not

another, even though it be assumed that under an indictment drawn

in general terms a conviction might rest upon a showing that5

co mmerce of one kind or another had been burdened.” I d

. at 218.

In deciding that th i s modification constituted a constructive

amendment, the Court reasoned that the grand jury did not indict

the defendant for the conduct that may have formed the basis for

his conviction; it refused to permit him to be “convicted on a

charge the grand jury never made against him.” Id . at 219.

We have found constructive amendments in cases where the

government alleges one theory of the case in the indictment, but

argues another at trial. For example, in U nited States v. Salinas

,

654 F.2d 319 (5th Cir. Unit A Aug. 1981), o verruled on other

grounds by United States v. Adamson , 700 F.2d 953 (5th Cir. 1983)

(en banc), we held that an indictment was c onstructively amended

when it alleged that the defendant had aided and abetted theft by

a certain named bank officer, but the evidence showed that he aided

and abet ted theft by a different bank officer S S a person not named

in the indictment. We explained that

the mistake i n the particular name of the officer

involved is not like a variance in a date or place. The

appellant was not formally charged with theft. The

indictment said in effect that [the named officer] stole

and that the appellant helped. Once it is shown that the

named principal did not steal, it begins to look like the

appellant was convicted of a crime different from that of

which he was accused.

Id . at 324-25 (emphasis in original).

Similarly, in United States v. Adams

, 778 F.2d 1117 (5th Cir.

1985), we found a constructive amendment when the indictment

charged the defendant with purchasing a handgun by using a driver's1 See United States v. Robinson

, 974 F.2d 575, 578 (5th Cir. 1992) (stating

that “when an indictment alleges non-essential facts, the go vernment need not

prove them in order to sustain a conviction”).

6 license with a false name, but the jury was permitted to convict on

the basis of using a driver's license with a false residence.

Salinas and Adams illustrate that the government may not obtain an

indictment alleging certain material elements or facts of the

crime, then seek a conviction on the basis of a different set of

elements or facts.

C.

The question is whether the alien's name wa s an “essential

element” of Robles-Vertiz's offense. Robles-Vertiz says it was:

He likens this case to Salinas , arguing that he too was convicted

of a crime (transporting Anna Guerrero) different from that of

which he was accused (transportin g Monica Ramirez-Sanchez). He

also claims that because the government must prove the smugglee's

alien status under 8 U. S.C. § 1324(a)(1)(A)(ii), it follows that

the amendment modified an essential element of the charged offense.

The government counters by arguing that the alien's name was

surplusage: Because the indictment could have charged RoblesVertiz with transporting an unnamed alien, the alien's name could

not possibly be an essential element of the offense. 1

We agree that the indictment was not constructively amended.

While this case is similar to Salinas in that both indictments2 See Mikolajczyk

, 137 F.3d at 243 (finding no constructive amendment when

“the indictment contained a drafting error that confused and prejudiced no one”).

7 misnamed a key party, here the error was merely one of

transcription. Indeed, there is a common first name, and the

surnames evince a certain phonetic congruity. The government was

not, as in Sali nas , arguing a theory different from what it had

alleged in the indictment. The change in names did not reflect a

change in the alleged conduct.

The error in the indictment was analogous to a spelling error:

The government intended to name Anna Guerrero, also known as Monica

Marti nez-Salazar, but through a mistake that could have caused

Robles-Vertiz no confusion, nor prejudiced him in any way, the

government erroneously entered her name as Monica Ramirez-Sanchez. 2

Were “Monica Ramirez-Sanchez” a person involved in RoblesVertiz's smuggling scheme, this would be a different case. That is

because the indictment would have been b roadened SS the prosecution

could have secured a conviction by proving the smuggling of either

woman. In that circumstance, the government would be prosecuting

a theory that it had not presented to the grand jury.

The key inquiry is whether the defendant was convicted of the

same conduct for which he was indicted. S ee, e.g., Salinas

,

654 F.2d at 324-25. This test is met here. There is no suggestion

that the government's mistake resulted from anything but cacography

or carelessness in transcription. Nor is there indication that the8

discrepancy enabled the government to obtain an indictment for

conduct different from what it proved.

The error constituted nothing more than a harmless, immaterial

variance that did nothing to prejudice Robles-Vertiz's substantial

rights. As we explained in Robinson , 974 F.2d at 578, a variance

is material when it prejudices subs tantial rights, either by

surprising the defend ant at trial or by exposing him to risk of

double jeopardy. Robles-Vertiz could not have been confused as to

the events that formed the basis for the ind ictment, nor has he

shown how the error hampered him in preparing a defense. He was

aware of which person the government intended to identify in the

indictment, and of the precise set of facts that formed the basis

of the charge.

III.

Robles-Vertiz contends that the district court wrongly

admitted evidence of his prior conviction for aiding and abetting

the illegal entry of two aliens. We review evidentiary rulings for

abuse of discretion. S nyder v. Trepagnier

, 142 F.3d 791, 801

(5th Cir. 1998).

Border Patrol agent Martinez testif ied that, in reviewing

Robles-Vertiz's alien registration file, he uncovered the criminal

complaint and judgment of conviction. Neither document was entered

into evid ence. Robles-Vertiz deploys three arguments in3 The Rule permits admission of:

Evidence of a final judgment, entered after a trial or upon a plea

of guilty (but not upon a plea of nolo contendere), adjudging a

perso n guilty of a crime punishable by death or imprisonment in

excess of one year, to prove any fact essential to sustain the

judgment ....

F ED

. R. E VID . 803(22).

9 challenging the admission of Martinez's testimony: He claims the

testimony was inadmissible hearsay, irrelevant, and unfairly

prejudicial. None of these arguments has merit.

A.

Robles-Vertiz argues that the testimony was inadmissible

hearsay. While acknowledging that judgments of previous

convictions are admissible under F ED

. R. E VID

. 803(22), 3 he reasons

that the except ion encompasses only the judgment itself and does

not allow the type of testimony here SS a law enforcement agent's

testifying to the existence of the judgment in the defendant's

file. This, Robles-Vertiz says, is hearsay.

Even if we agree that the agent's testimony does not fall

within this exception, we cannot see ho w substantial rights were

harmed. Specifically, F ED

. R. E VID

. 103 provides that “[e]rror may

not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the par ty is affected.” This rule

“is not susceptible to mechanical analysis,” an d courts must

proceed on a case-by-case basis. M unn v. Algee

, 924 F.2d 568, 573

(5th Cir. 1991).10

The rule against hearsay “seeks to eliminate the danger that

evidence will lack reliability because fa ults in the perception,

memory, or narration of the declarant will not be exposed.”

5 J. W E INSTEIN & M. B ERGER

, W EINSTEIN ' S F EDERAL E VIDENCE § 802.02[3]

(2d ed. 1998). Robles-Vertiz does not challenge the accuracy of

the agent's testimony that he was, in fact, previously convicted of

aiding and abet ting the illegal entry of two aliens. RoblesVertiz's argument is n ot that the testimony was unreliable, b u t

that it was irrelevant and prejudicial. Accordingly, we cannot see

how the admission of this evidence SS to the extent it constitute d

hearsay SS could amount to reversible error.

B.

Robles-Vertiz says Martinez's testimony should have been

excluded as irrelevant. The government relies on F ED

. R. E VID

.

404(b), which allows admission of other crimes evidence in order to

show the absence of mistake or accident. Robles-Vertiz's defense

was that he bel ieved Guerrero to be a United States citizen; the

evidence of his prior conviction for smuggling aliens was therefore

relevant and admissible to undercut his defense that he made an

hones t, good-faith mistake. The testimony spoke directly to

Robles-Vertiz's knowledge and state of mind when he chose to

transport Guerrero. The district court properly admitted it.11 C.

Robles-Vertiz avers that the evidence was unfairly prejudicial

and should have been excluded under F ED

. R. E VID

. 403. As we have

explained, evidence of Robles-Vertiz's prior conviction illustrated

his mental state in transporting Guerrero; it was probative in that

it suggested the absence of mistake. Accordingly, the probative

value exceeded any possible prejudic ial effect and that the

district court did not abuse its discretion in admitting it.

IV.

Robles-Vertiz challenges the denial of his motion for mistrial

following what he says were improper and prejudicial remarks by the

prosecutor during closing argument. The denial of such a motion is

reviewed for abuse of discretion. U nited States v. Thomas

,

120 F.3d 564, 573-74 (5th Cir. 1997), cert. denied

, 118 S. Ct. 721

(1998).

A.

Robles-Vertiz targets the following exchange, which occurred

after the prosecutor ridiculed Robles-Vertiz's claim that Guerrero

had duped h im with a false birth certificate indicating U.S.

citizenship SS a bi rth certificate that was not found at the scene,

nor has ever materialized, despite Robles-Vertiz's clai m that

Guerrero deposited the document in his glove compartment:12

UNITED STATES: Ask yourselves, what happened to that

birth certificate he was talking about where he was

duped. Ask yourselves that, and demand that he answer

it. Because quite frankly that's important because SS

DEFENSE: Counsel's a ttempting to shift the burden of

proof, Your Honor. It's improper.

THE COURT: Sustained.

UNITED STATES: Ask yourself where t he evidence is. Is

the evidence with those SS

DEFENSE: Objection. Same objection. He's attempting to

shift the burden of proof, Your Honor.

THE COURT: Overruled.

Robles-Vertiz echoes these objections on appeal, complaining that

the prosecutor wrongly shifted the burden of proof to him and

impermissibly commented on his failure to testify.

The government cannot shift the burden of proof, United States

v. Bermea

, 30 F.3d 1539, 1563 (5th Cir. 1994), nor may a prosecutor

comment on the defendant's failure to take the stand, United States

v. Johnston

, 127 F.3d 380, 396 (5th Cir. 1997), cert. denied

,

118 S. Ct. 1174 (1998). It is not error, however, “to comment on

the defendant's failure to produce evidence on a phase of the

defense upon which he seeks to rely.” U nited States v . Mackay

,

33 F.3d 489, 496 (5th Cir. 1994).

That is what happened here. Even if we agree that the

prosecutor's first remark somehow suggested Robles-Vertiz bore the

burden of proof SS a strained interpretation, given that the comment

referred to the defense's failure t o prove its own theory of the13

case SS the court promptly sustained the defense's objection. As we

noted in United States v. Sylvester

, 143 F.3 d 923, 930 (5th Cir.

1998), reversal is warranted only when the improper remark had a

“clear effect” on the jury SS hardly the case here.

The pro secutor's second remark was similarly innocuous. It

simply highlighted the defense's failure to introduce evidence

supporting Robles-Ver tiz's claim of an honest mistake. While a

prosecutor's remarks constitute impermissible commentary on a

defen dant's right not to testify if “the prosecutor's manifest

intent was to comment on the defendant's silence or if the

character of the remark was such that the jury would naturally and

necessarily construe it as a comment on the defendant's silence,”

Johnston

, 127 F.3d at 396, no juror would have “naturally and

necessarily” construed these remarks in that way in this case.

B.

Robles-Vertiz claims that the prosecutor improperly suggested

that Robles-Vertiz ha d a reputation as a smuggler of aliens. In

closing argument, the prosecutor stated that “[w]e know that

[Robles-Ve rtiz's] reputation in the community is that of an

alien SS ,” at which point he was interrupted by the defense. The

court sustained the defense's objection on the ground that the

prosecutor was arguing evidence outside the record. The prosecutor

then replied, in front of the jury, that his “recollection was that14

Mr. Trejo said that he knew his reputation in the community as

someone who could help get people in the country and transport.”

The court denied the defense's motion for a mistrial and instructed

the jury that it should focus solely on the evidence presented by

the witnesses.

Robles-Vertiz argues that he was prejudiced by these remarks

and that his motion for a mistrial was wrongly denied. In

determining whether a prosecutor's remarks constitute reversible

error, we consider the magnitude of the prejudicial effect of the

statements, the ef ficacy of any cautionary instruction, and the

strength of the evidence of guilt. U nited States v. Rodriguez

,

43 F.3d 117, 124 (5th Cir. 1995) (internal citation omitted).

Fir st, the magnitude of the prejudice, if any, was slight.

The prosecutor's stray remark was met with an objection, which was

sustained. Second, the court immediately issued a cautionary

ins truction directing the jury to confine its consideration to

witness testimony. Third, there was strong evidence of guilt.

Robles-Vertiz was caught transporting an illegal alien; his dubious

defense SS that he was hoodwinked by Guerrero SS was undercut by his

failure to produce the elusive birth certificate and by his prior

conviction for smuggling aliens. Accordingly, the remarks were

harmless, and the court did not abuse its discretion in denying a

mistrial.

AFFIRMED.1516

ROBERT M. PARKER, Circuit Judge, dissenting:

Jose Robles-Vertiz was convicted of illegal transportation of

aliens. In order to obtain that conviction, the district court

allowed the government to introduce into evidence Robles-Vertiz’s

prior 1996 conviction for illegal transportation of aliens. A

violation of Federal Rule of Evidence 404(b) could not be more

blatant. Rule 404(b) provides in pertinent part:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive,

oppor tunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident . . . .

The majority too easily accepts the government’s assertion that the

evidence was admissible to show the absence of mistake or accident

as allowed under Rule 404(b). According to the government the

prior conviction was relevant a nd admissible to undercut RoblesVertiz’s defense that he believed Guerrero was a United States

citizen and thus spoke dire ctly to intent. I fail to see how a

prior conviction for illegally transporting aliens has any

probative value as to whether Robles-Vertiz believed Guerrero was

a United States citizen. Surely there were other ways to attack

this defense, for example, through Trejo’s testimony. See United

States v. Baldarrama

, 566 F.2d 560, 568 (5th Cir. 1978) (holding

that the government must also show a reasonable necessity for the17

use of a prior conviction because prior crime evidence has a

significant potential for prejudicial effect). Evidence of the

prior conviction showed conformi ty--nothing more. Admission of

such evidence is not allowed under Rule 404(b).

Additionally, there could not be a more prejudicial piece of

evidence introduced at trial than the prior conviction for the same

offense for which Robles-Vertiz was charged. The majority glosses

over the prejudicial impact of this evidence by concluding that

because the evidence is probative with respect to absence of

mistake, it exceeds any possible prejudicial effect. I cannot

agree. Accordingly, I respectfully dissent.