* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 1, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-40538

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO BERNARD BALLARD,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:04-CR-658-2 

--------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

Antonio Bernard Ballard (Ballard) appeals his jury

conviction for aiding and abetting the transportation of illegal

aliens within the United States by means of a motor vehicle in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii). 

Ballard contends that the evidence at trial was insufficient

to sustain the jury’s verdict. Specifically, he argues that the

Government did not establish that he was the person who assisted

Andrew Green (Green) in transporting the aliens and that he knew
No. 05-40538

-2-

or was in reckless disregard of the fact that the persons in the

trailer were illegal aliens.

Viewing the evidence in the light most favorable to the

verdict, the evidence was sufficient to establish that Ballard

was the person who assisted Green in transporting the aliens and

that he knew or was in reckless disregard of the fact that the

persons in the trailer were illegal aliens. Ballard was a

passenger in the tractor-trailer in which 11 illegal aliens were

found locked without food, water, ventilation, or light. Two of

these aliens, Margarita Llamas-Quintero (Llamas-Quintero) and

Esperanza Ramirez-Orozco (Ramirez-Orozco), testified that they

illegally entered the United States with the aid of smugglers who

were to be paid upon their arrival in Houston. Llamas-Quintero

and Ramirez-Orozco testified that they were loaded into the

trailer at approximately 10:50 p.m. They identified Ballard as

one of the men who helped them get into the trailer. LlamasQuintero and Ramirez-Orozco testified that Ballard instructed

them in Spanish to hurry up, cover themselves with blankets, and

not make any noise. Llamas-Quintero also testified that she

overheard Ballard discussing money with Green. Agent January

testified that Ballard admitted understanding Spanish and that he

had taken two years of Spanish in college. The jury was

presented with the inconsistencies in Llamas-Quintero’s and

Ramirez-Orozco’s testimony, as well as the fact that their

identification of Ballard was made after they saw him at the U.S.
No. 05-40538

-3-

Border Patrol Checkpoint station. Nevertheless, the jury found

their testimony credible and chose not to believe Ballard’s

exculpatory testimony. This court will not disturb the jury’s

credibility determination on appeal. See United States v. Wise,

221 F.3d 140, 147 (5th Cir. 2000). Therefore, the evidence was

sufficient to sustain the jury’s verdict. See United States v.

Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002).

For the first time on appeal, Ballard contends that the

Government violated his Fifth Amendment right to due process and

Sixth Amendment right to compulsory process when it failed to

disclose favorable statements made by the non-testifying alien

witnesses and failed to make these witnesses available to the

defense. Because Ballard did not object on this basis in the

district court, this court’s review is for plain error. See

United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en

banc). Under the plain-error standard of review, Ballard bears

the burden of showing that (1) there is an error, (2) the error

is plain, and (3) the error affects substantial rights. United

States v. Olano, 507 U.S. 725, 732 (1993). If these conditions

are satisfied, this court has the discretion to correct the error

only if it “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. (internal quotation

marks and citation omitted).

Ballard has failed to make a plausible showing that the

testimony of the non-testifying alien witnesses would have been
No. 05-40538

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material, favorable, non-cumulative, and reasonably likely to

affect the jury’s verdict. Jorge Barrientos-Almazan’s

(Barrientos-Almazan) statement was consistent with and cumulative

of the testimony presented by Llamas-Quintero and Ramirez-Orozco. 

Although Barrientos-Almazan, Aida Pierda-Gomez (Pierda-Gomez),

and Jorge Martinez-Perez (Martinez-Perez) stated that a Hispanic

male was present, these statements, even if accepted by the jury

as true, prove only that another person was present and are not

inconsistent with Llamas-Quintero’s and Ramirez-Orozco’s

identification of Ballard as one of the men who helped them into

the trailer. See United States v. Villanueva, 408 F.3d 193, 200

(5th Cir. 2005). Further, although Pierda-Gomez and MartinezPerez stated that they did not see Ballard, they also did not see

Green despite his having admitted his involvement in the offense. 

Therefore, Ballard cannot show plain error. See id. at 200-01;

Olano, 507 U.S. at 732.

 Accordingly, the district court’s judgment is AFFIRMED.