IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_________________________ No. 05-40309

_________________________ UNITED STATES OF AMERICA, Pl aint iff- Appellee,
versus RUBEN UVALLE-PATRICIO, also known as Ruben Patricio Uvalle, also known as Ruben Patrick Uvalle, also known as Heriberto Uvalle, also known as Heri berto Ovalle, also known as Raul Valle, also known as Jesse Fuentes, al so known as Alfredo Duran, also known as Ruben Uvalle, Defendant-Appellant.

__________________________________________________ Appeal from the United States District Court fo r the Southern District of Texas (No. 5:04-CR-1713)

__________________________________________________ Before SMITH, GARZA, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: In this criminal appeal, the defendant contests his conviction fo r possession of blank immigrat io n permits in violation of 18 U.S.C. § 1546(a). For the reasons that follow, we affirm. I. FACTS AND PROCEEDINGS Ruben Uvalle-Patricio, a U.S. cit izen, was returning to the Unit ed States from Mexico by car. At a border checkpoint, Border Patrol agents interviewed Uvalle-Patricio and the car’s other occupants. An agent walked a dog around the vehicle, and the dog alerted to the driver’s-side door. United States Court of Appeals

Fifth Circuit 

## F I L E D February 12, 2007 Charles R. Fulbruge III Clerk- 2 -

Aft er being referred to secondary inspection, Uvalle-Patricio consented to the search of his trunk. Searching the trunk of Uvalle-Patricio’s car, a Border Patrol agent discovered a blank I-551 fo rm , com

mo nly known as a “green card,” under the spare tire cover. The dog was led around the
car again, and, as before, the dog alerted to the driver’s side door. When the door was opened, the dog alerted to the driver’s-side floorboard. Beneath the carpet and inside an envelope, the Border Patrol agent discovered several false docum ents, including fo rty -three blank I-551 fo rms print ed on fo ur sheets, thirty -three blank soci al security cards print ed on fo ur sheets, and two false Puerto Rican birth certificates. Uvalle-Patricio was arrested on the scene. A grand jury indict ed Uvalle-Patricio fo r possession of blank immigrat io n permits in vio lat io n of 18 U.S.C. § 1546. The indictment provided that Uvalle-Patricio “did knowingly possess blank immigrat io n permits, to wit , fo rty -three (43) I-551, Resident Alien Card, which possession was not authorized by direction of the At t orn ey General or the Commissioner for the Immigration and Natural ization Service, or other proper officer of the United States.” Following the submission of the Government’s case, Uvalle-Patricio moved for a judgment of acquittal, under FED . R. C RIM . P. 29(a). According to Uvalle-Patricio, the provision in 18 U.S.C. § 1546(a) fo rbidding the “possess[ion of ] any blank permit” refers only to genuine immigration docum ents. Because the bl ank immigration documents in his car were false, Uvalle-Patricio contend ed th at he did not violate the statutory provision with which he was charged. The district court denied Uvalle-Patricio’s mo tion. Uvalle-Patricio renewed the Rule 29(a) motion after the jury began deliberations but before the jury returned it s verdict, and the district court, again, denied relief. During trial, Uvalle-Patricio also preserved two evidentiary rulings by the district court. The jury fo und Uvalle-Patricio guilt y of possession of blank immigrat io n permits. The district1 Where a defendant fails to timely renew a Rule 29 mo tion for acquittal, this court

will not vacate a conviction absent a “manifest miscarriage of justice.” U nited States v. Burton , 324 F.3d 768, 770 (5th Cir. 2003) (int ernal quotation om it ted). The record does not reflect that UvallePatricio mo ved fo r a judgment of acqui ttal under Rule 29(c) after the return of the verdict. The Government does not address whether Uvalle-Patricio timely renewed his Rule 29(a) mo tion at tri al. As the result of this appeal is the same regardless of the standard of review, we need not rule on the effect of Uvalle-Patricio’s renewal of the Rule 29 mo tion aft er the jury had deliberated but before the verdict was returned. - 3 - court entered a judgment of conviction and sentenced him to fo rty -six mo nt hs impris onm ent. In addition, the district court ordered Uvalle-Patricio to perform com munit y service, impo sed a threeyear term of superv ised release with special conditions, and assigned a $100 special assessment. Uvalle-Patricio now appeals. II. STANDARD OF REVIEW A Rule 29(a) mo tion fo r a judgment of acquittal is a challenge to the sufficiency of the evidence to sustain a conviction. This court reviews a district court’s denial of a timely mo tion for
a judgment of acquittal de novo. 1 U nited States v. Bellew , 369 F.3d 450, 452 (5th Cir. 2005) (citing United States v. Greer , 137 F.3d 247, 249 (5th Cir. 1998)). “Issues of statutory int erpretation are also reviewed de novo.” U nited Sta tes v. Hanafy , 302 F.3d 485, 487 (5th Cir. 2002) (emphasis
om it ted). When the defendant challenges the sufficiency of the evidence, “the relevant question is whether, aft er viewing the evidence in the light mo st favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyo nd a reasonable doubt.” J ackson
v. Virginia , 443 U.S. 307, 319 (1979). S ee also United States v. Lopez-Urbina , 434 F.3d 750, 757 (5th Cir.) (applying Jackson ), cert. denied , 126 S. Ct. 672 (2005). The appellate court must view the evidence “in the light mo st favorable to the verdict” and assume th at the Government’s evidence- 4 -

is true. L opez-Urbina , 434 F.3d at 757. But the evidence present ed must allow the j ury “t o f ind every element of the of

fense beyo nd a reasonable doubt.” U nited States v. Redd , 355 F.3d 866, 872 (5th Cir. 2003) (internal quotation omitted). III. DISCUSSION A. Possession of false-but-blank immigration documents As he did before the district court, Uvalle-Patricio contends that the 18 U.S.C. § 1546(a) prohibition of the “possess[ion of ] blank permits” refers only to genuine permits , not f alse ones. Section 1546 provides in part:

Who ever kno wingly forges, counterfeits, alters, or falsely makes any . . . [immigrat io n] permit
. . . or . . . possesses . . . any such . . . permit
. . . , knowing it to be fo rged, counterfeited, alt e red, or falsely made . . . ; or Who ever, except under direction of th e Attorney General . .

. know ingly possesses any blank per mit , . . . or makes any print, photograph, or impression in the likeness of any . . . permit . . . , or has in his possession a distinctive paper which has been adopted by the At torney General
. . . fo r the print ing of suc h visas, perm it s, or docum ents; . . . Shall be fined under this t it le o r imprisoned not more than . . . 10 years . . . . 18 U.S.C. § 1546(a) (emphasis added). The first paragraph of § 1546(a) criminalizes possession of forged immigration documents. Cf. United States v. Principe , 203 F.3d 849, 852 (5th Cir. 2000) (“Those acts described in the fir st paragraph revolve around a defendant’s individual procurem ent, possess io n, or use of various fraudulent immigrat io n docum ents.”). Specifically, the first paragraph prohi bit s “knowingly forg[ing], counterfeit[ing], alt er[ing] , or f alsely mak[ing] any immigrant or nonimmigrant . . . permit.” In2 In view of the evidence available to the Government, it appears th at the Government

could have probably prosecuted Uvalle-Patricio under the fir st paragraph; possession of false-butblank immigrat io n docum ents has been prosecuted under the fir st paragraph. S ee, e.g., United States v. Price , 990 F.2d 1264 (9th Cir. 1993) (unpublished). So long as both paragraphs criminalize the conduct, however, the decision of which paragraph to charge is certainly within the Government’s discretion. S ee United States v. Batchelder , 442 U.S. 114, 124 (1979) (“Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s d iscretion.”); U

nited States v. Lawrence , 179 F.3d 343, 348 (5th Cir. 1999) (“We allo w the government discretion to decide which individuals to prosecute, which of fenses to charge, and what measure of punishment to seek.”). - 5 - addition, the statutory provision prohibits the “possess[ion of ]
. . . any such . . . perm

it ,” but only if the defendant possessed the false docum ent “knowing it to be fo rged, counterfeited, alt ered, or falsely made.” 18 U.S.C. § 1546(a). For a conviction under the first paragraph, the Government must prove (1) knowing possession of (2) false docum ents (3) th at are known by the possessor to be false. The second paragraph of § 1546(a), as a whole, criminalizes possession of mat erials th at can be used to produce false immigrat io n docum ents. C f. P rincipe , 203 F.3d at 852 (“The second paragraph concerns a defendant’s procurem ent, possession, or use of mat erials which would enable the defendant to manufacture or provide various fraudulent immigrat io n docum ents to others.”). As is relevant to Uvalle-Patricio’s charge, the second paragraph prohibits “knowingly possess[ing] any blank permit” without authorization by specified government officials. The Government clearly charged Uvalle-Patricio wit h vio lat ing only the second paragraph of § 1546(a). 2 There is no real question that the Government proved the elements that the jury was asked to consider: (1) knowing possession of (2) blank immigration documents (3) without official permission. But there also is no question t hat the docum ents did not derive from an official governmental source. As a result, for Uvalle-Patricio’s conviction to stand, “any blank permit” must include false immigration documents.- 6 -

In their int erpretation of the statute, the parties’ fo cus is limit ed to the paragraph in which the contested language appears; both claim th at the plain language of the statute supports their respective positions. Uvalle-Patricio argues in favor of a restrictive reading of the statute that would limit the of fending conduct to possession of blank docum ents th at were created by th e f ederal Bureau of Engraving and Print ing. The Government urges a broader interpretation and asserts that the unlimit ed language and the disjunctive nature of the statute support an unrestricted int erpretation of “any blank permit.” Based on a reading of the statute’s provisions in context, we agree with t he Government, albeit fo r slight ly different reasons, th at the second paragraph of § 1546(a) fo rbids the possession of blank immigration documents whether the documents be genuine or false.

“ When int erpreting statutes, we begin with the plain language used by the draft ers. Furthermore, each part or section of a statute should be construed in connection wit h every other part
or section to produce a harmonious whole.” U nited States v. Williams , 400 F.3d 277, 281 n.2 (5th Cir. 2005) (int ernal cit at io n om it ted). Cognizant of these directives, we turn to the statute in question. The language of the statute suggests a broader construction th an th at urged by the defendant. As noted, the second paragraph of § 1546(a) prohibits “knowingly possess[ing] any blank permit.” The use of “any,” which mo difies “blank permit,” § 1546(a), “undercuts the attempt to impose this narrowing construction.” Salinas v. United States , 522 U.S. 52, 56 (1997) (citing United States v. James , 478 U.S. 597, 604–05 & n.5 (1986), and Trainmen v. Baltimore & Ohio R.R. Co. , 331 U.S. 519, 529 (1947)). Moreover, the use of “or” separates the possession of blank documents from the other proscri

bed conduct th at addresses possession of authentic mat erials. S ee 18 U.S.C. § 1546(a) (forbidding “knowingly possess[ing] any blank permit
. . . or [the possession of ] a distinctive paper- 7 -

which has been adopted by t he Attorney General
. . . fo r the print ing of [immigrat io n docum ents]”) (emphasis added). C

f. United States v. Holmes , 822 F.2d 481, 486 (5th Cir. 1987) (emphasizing th at the use of “o r” results in a disjunctive int erpretation). The statute’s use of “or” indicates that several different activit ies are punishable under it , thereby creating distinct categories and suggesting that conduct related to “any blank permit” is distinct from proscri bed conduct related to authentic mat erials. Additionally, while at fir st the use of the term “permit” might appear to suggest a restriction to genuine docum

ents in light of the statute’s u se of the phrase “except under direction of the At torney General,” a lat er part of the statute shows this not to be the case: the broad language “any print , photograph, or impression in t he likeness of any .
. . permit,” indicates th at the statute covers both genuine and false documents. In addition to the statute’s plain language, we must consider the operation of the statute as
a whole and in context wit h other provisions. The first paragraph of the statute prevents individuals from possessing false permits. The second paragraph of the statute prevents individuals from possessing blank permits wit hout authorization from the government. Reading “any blank permits” to include both genuine and false blank docum ents not only com

ports wit h the plain language of the statutory text but al so results in a seamless operation of the statute. Uvalle-Patricio’s reading of the statute, conversely, runs counter to the expansive language Congress used and would also lead to inco ngruent results. By reading “any blank permit” to exclude false-but-blank docum

ents, the possession of th ose docum ents, like th ose Uvalle-Patricio had, would not be a criminal act if the possessor believed them, in error, to be genuine. Such a reading would render conduct—the knowing possession of blank immigration documents—non-criminal simply- 8 -

because the possessor was under the mist aken belief th at the docum ents were genuine. The statute’s construction does not indicate th at this sort of conduct was meant to be excluded from criminal punishment. We will not adopt a reading that leads to such incongruent results. We therefore hold th at “any blank permit” incl udes both genuine and false immigration docum ents. Accordingly, we reject Uvalle-Patricio’s challenges to the denial of his Rule 29 motion and the sufficiency of the evidence. B. Evidentiary challenges Uvalle-Patricio preserved two evidentiary rul ings: First, he asserts that the Border Patrol agent who handled the dog at the checkpoint should not have been admitted as an expert on the lingering effects of odor. Second, he maintains that the admission of a comprehensive compendium of his immigrat io n dealings , called an “A-file,” violated his rights under the Confrontation Clause. But Uvalle-Patricio does not argue, let alone establish, that any harm resulted from these rulings. Even if we were to determ ine t he district court erred in rendering these evidentiary rulings, which we assume but do not hold, Uvalle-Patricio’s failure to establ ish any harm is fat al t o both evidentiary claims. See United States v. Bell , 367 F.3d 452, 468 (5th Cir. 2004) (stating that evidentiary errors th at vio lat e constitutional rights will not result in reversal if harmless beyond a reasonable doubt); United States v. Buc k , 324 F.3d 786, 790 (5th Ci r. 2003) (providing that nonconstitutional errors in the admission of evidence will no t result i n reversal if harmless). In the absence of a showing of any harm, we will not reverse a conviction only on the basis of an erroneous evidentiary ruling. Accordingly, we reject Uvalle-Patricio’s evidentiary claims.

IV. CONCLUSION- 9 -

Finding no reversible error, we AFFIRM.