* Pursuant to 5TH CIR.R. 47.5, the court has determined that this opinion should not be published and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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40684

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDREA GONZALEZ-PERALES,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:05-CR-2628

Before GARWOOD, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:*

After Andrea Gonzalez-Perales was charged with transporting an illegal

alien for purposes of commercial advantage or private financial gain, in violation

of 8 U.S.C. § 1324, a jury found her guilty of the lesser-included offense of

transporting an illegal alien without commercial advantage or private financial

gain. She appeals her conviction and sentence, challenging several evidentiary

rulings and the jury instruction on the lesser-included offense. For the reasons

discussed below, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

April 11, 2008

Charles R. Fulbruge III

Clerk
No. 06-40684

2

I. Facts

A. Gonzalez-Perales’s November 2005 Arrest for Transporting Three

Illegal Aliens

Border Patrol Agent Fernando Martinez testified at trial as follows. On

November 15, 2005, Andrea Gonzalez-Perales drove three female passengers to

the primary inspection lane of a border patrol checkpoint north of Laredo,Texas.

Agent Martinez conducted an immigration inspection there, inquiring into the

citizenship of the vehicle’s occupants. Gonzalez-Perales, a fluent English

speaker, stated that she was a resident alien. The three passengers claimed in

broken English to be United States citizens. Agent Martinez asked the

passengers in Spanish for the names of their birth hospitals, but the passengers

were unable to answer. Thereafter, he referred the vehicle to the secondaryinspection area, where he and other agents interviewed the passengers and

ultimately determined that they were illegal aliens. Agent Martinez then

arrested Gonzalez-Perales and escorted her and the passengers into the

checkpoint office.

B. Gonzalez-Perales’s Post-Arrest Statements

Agent Martinez and his colleague, Agent Herman Marin, further testified

that upon her arrest, Gonzalez-Perales waived her Miranda rights and agreed

to speak with them. When questioned by Agent Martinez, Gonzalez-Perales first

stated that her passengers were nieces of her friend, Paolo, and that Paolo had

told her that his nieces were in the United States illegally. When questioned by

Agent Marin, however, Gonzalez-Perales claimed no knowledge of her

passengers’ illegal status and denied ever telling Agent Martinez otherwise. 

Gonzalez-Perales explained to Agent Marin that she had come to Laredo

from Austin, Texas, the day before to pick up her divorce papers and to see her

ex-boyfriend. Meanwhile, Paolo had learned that she was in Laredo and had

asked her to take his three nieces to a Wal-Mart in San Antonio, Texas, on her

way back to Austin. Gonzalez-Perales agreed and told Paolo that she was
No. 06-40684

3

staying at the Siesta Motel—a motel that, according to Agent Marin’s trial

testimony, had a reputation as a place where smugglers stash illegal aliens for

subsequent pickup.

The next morning, November 15, the three young women came to

Gonzalez-Perales’s motel room and knocked on the door. Gonzalez-Perales asked

them if they were Paolo’s nieces; they said yes; and she told them to stay in the

room while she left to get them some food.

C. Contreras-Puente’s Testimony

One of the illegal-alien passengers, Fabiola Beatriz Contreras-Puente,

testified at trial that she found a smuggler named Paolo to bring her illegally

from Mexico to the United States, and that her brother in Houston agreed to pay

him $1,000 upon her arrival in San Antonio. On November 14, Paolo drove her

and two other young women to Nuevo Laredo, Tamaulipas, Mexico, from where

they left the next morning with a guide who helped them cross the Rio Grande.

The guide then called someone to drive the young women to a motel. Each

of the women paid the driver $100. Gonzalez-Perales answered their knock at

the motel-room door and asked if they were Paolo’s nieces; they said yes, and

they all departed the motel together.

Contreras-Puente further testified that, shortly before the checkpoint,

Gonzalez-Perales asked the young women if they were Paolo’s nieces and they

said yes; but Contreras-Puente then stated that she was not Paolo’s niece but a

friend of the other women. In addition, Gonzalez-Perales twice told the young

women to say that they were United States citizens, but Contreras-Puente, who

does not speak English, was unable to say the words and could not answer the

agent’s questions. When the agent asked Contreras-Puente in Spanish about

her citizenship, she admitted that she was in the United States illegally from

Mexico. She also later testified that all three women were going to a house in

San Antonio and did not have plans to go to Wal-Mart.
No. 06-40684

4

D. Gonzalez-Perales’s Involvement in the October 2005 AlienTransporting Encounter

Customs Officer Martina Ramos testified at trial that on October 5, 2005,

a male driver, with Gonzalez-Perales as the front passenger, drove a minivan to

the primary inspection lane of an international bridge that connects Laredo and

Nuevo Laredo. Officer Ramos asked Gonzalez-Perales about her citizenship, and

she claimed to be a United States citizen. Gonzalez-Perales stated that her two

young, female passengers were her daughters, and each passenger gave Officer

Ramos a birth certificate. Officer Ramos did not believe that the women were

Gonzalez-Perales’s daughters because Gonzalez-Perales’s clean appearance

contrasted with the dirty, muddy appearance of the two young women. Nor did

Officer Ramos believe Gonzalez-Perales’s story that she was bringing her

daughters to the United States for the first time and that the women had been

living with their grandmother in Mexico. Consequently, Officer Ramos referred

the vehicle to the secondary-inspection area.

Officer Ramos then fingerprinted the two young women and ran their

prints in the Customs IDENT/IAFIS computer system, which she testified she

and the other agents use frequently. She further testified about the computer

system as follows:

It’s a system operated by Customs. It’s called IDENT/IAFIS, where

all the apprehensions by Border Patrol, Customs, INS. And all the

people that we prosecute or send back, they have to be fingerprinted

and we have to enroll. So any time the aliens are fingerprinted, all

their record is going to come up there.

The computer check revealed that the two women had been stopped the day

before by Border Patrol for entry without documents. That encounter had been

entered into the computer and the women had been returned to Mexico without

prosecution. After the officers entered the new encounter into the computer

system, they confiscated the birth certificates, sent the two women back to

Mexico, and released Gonzalez-Perales and the driver into the United States.
No. 06-40684

5

The defense did not present any evidence after the government rested its

case.

II. Discussion

Gonzalez-Perales argues that the district court erred by: (1) admitting

testimony regarding her involvement in the October 2005 alien-transporting

encounter because it was hearsay, a violation of the Confrontation Clause, and

a violation of Federal Rule of Evidence 404(b); (2) admitting “guilt by

association” testimony regarding the Siesta Motel’s reputation as a place where

smugglers stash illegal aliens for subsequent pickup; and (3) submitting a

pattern jury instruction on the lesser-included offense.

A. The October 2005 Alien-Transporting Encounter Testimony

1. The Public Records Hearsay Exception

For the firsttime on appeal, Gonzalez-Perales argues that Officer Ramos’s

testimony regarding the October encounter was inadmissible hearsay under

Federal Rule of Evidence 803(8) because the results of the Customs computer

system check involved matters observed by law enforcement in a criminal case.

Attrial, Gonzalez-Perales objected to the admission ofthis testimony solely upon

the grounds of the Confrontation Clause and Federal Rule of Evidence 404(b).

Accordingly, because she now raises an argument that is different from the one

raised in the district court, this Court reviews her hearsay argument for plain

error. See United States v. Jimenez, 256 F.3d 330, 340 (5th Cir. 2001) (“When

a defendant . . . urges a different ground for the objection on appeal than before

the district court, we review for plain error.” (citing United States v. Heath, 970

F.2d 1397, 1407 (5th Cir. 1992))). 

The public records hearsay exception provides that the following is

admissible despite the general prohibition against hearsay:

(8) Public records and reports. Records, reports, statements, or

data compilations, in any form, of public offices or agencies, setting

forth (A) the activities of the office or agency, or (B) matters

observed pursuantto duty imposed by law as to which matters there
No. 06-40684

6

was a duty to report, excluding, however, in criminal cases matters

observed by police officers and other law enforcement personnel, or

(C) in civil actions and proceedings and against the Government in

criminal cases, factual findings resulting from an investigation

made pursuant to authority granted by law, unless the sources of

information or other circumstances indicate a lack of

trustworthiness.

FED. R. EVID. 803(8).

It is well settled that “[c]ustoms . . . officials are ‘law enforcement

personnel’ within the meaning of [this rule].” United States v. Puente, 826 F.2d

1415, 1417 (5th Cir. 1987) (citation omitted). This Circuit makes a distinction,

however, between “law enforcement reports prepared in a routine, nonadversarial setting, and those resulting from the arguably more subjective

endeavor of investigating a crime and evaluating the results of that

investigation.” United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985).

In other words, “documents recording routine, objective observations, made as

part of the everyday function of the preparing official or agency” are admissible

under Rule 803(8)(B), even if the documents are prepared by a police officer or

other law enforcement official. Id. 

Here, the Customs computer information that the passengers had been

returned to Mexico was recorded by Officer Ramos as part of a routine,

administrative procedure in a non-adversarial setting. Officer Ramos testified

that she and the other officers use the Customs computer system frequently to

record encounters with aliens, including the aliens’ fingerprints, whether those

aliens are prosecuted or returned to Mexico. In addition, she testified that the

particular computer check at issue revealed that the two passengers had been

apprehended in the same clothing by Border Patrol for “[e]ntry without

documents” on October 4, 2005, that the encounter was recorded into the

computer system, and that the women were returned to Mexico without

prosecution. 
No. 06-40684

1 What is more, nocomputer records or printouts were even admitted in the instant case; rather, Officer Ramos

simply testified about the information retrieved from the IDENT/IAFIS. In addition, because Officer Ramos never

testified about any statements made by the passengers, there is no hearsay-within-hearsay problem either.

7

Gonzalez-Perales baldly asserts that while our precedent allows for the

admission of public records that “reflect objective facts,” the instant

IDENT/IAFIS records reflect “criminal interrogations and law enforcement

investigative measures.” To the contrary, the repetitive, everyday IDENT/IAFIS

notations are exactly the kind of “mechanically register[ed,] . . . unambiguous

factual matter[s]” that this Circuit has found to be inherently reliable.1 See id.

And “[t]here is no reason to believe that because this information was later

retrieved in connection with litigation, it is less reliable than when first

recorded.” Puente, 826 F.2d at 1418.

Accordingly, Officer Ramos’s testimony regarding the October alientransporting encounter was admissible under the public records hearsay

exception. Gonzalez-Perales has not shown any error, let alone plain error.

2. The Confrontation Clause

Gonzalez-Perales also asserts that the testimony regarding the October

alien-transporting encounter violated the Confrontation Clause. As discussed

above, however, because this evidence meets the public records hearsay

exception, it is not “testimonial” and, therefore, does not implicate the

Confrontation Clause. See United States v. Lopez-Moreno, 420 F.3d 420, 437

(5th Cir. 2005) (noting that computer records that satisfy the public records

hearsay exception are non-testimonial such that the requirements of the

Confrontation Clause do not apply).

3. Federal Rule of Evidence 404(b)

Gonzalez-Perales further contends thatthe prosecutor’s closing argument

was improper because it exceeded the limited purposes for which the testimony

regarding the October encounter was admitted under Federal Rule of Evidence
No. 06-40684

2 Gonzalez-Perales challenges the following three portions of the prosecutor’s closing argument:

(1) . . . What’s important is she was caught a month before trying to smuggle aliens in.

That’s what you can infer that she was doing. Now, if someone has tried to smuggle aliens

across the Rio Grande before and you have three people showing up at your hotel who

wanted a ride and they all had wet pants, what do you think? Do you think they just came

across the river? It’s probably a pretty good chance. And you can look at that piece of

evidence and the circumstance in connection with all the other pieces of evidence.

(2) The way to [ensure that the alien smuggling goes smoothly] is to hire someone

who knows what they’re doing and to make sure they get there. And here’s the defendant.

Does she know what she’s doing? Well, she’s experienced. She did it just one month

before. So, she’d probably be a good person to hire . . . .

The way [alien smugglers] do it is not to trick someone into taking your load north

and it’s not to ask for favors. It’s to pay someone who knows what they’re doing, who

knows they’re aliens and who’s experienced and is going to do it right. That’s how you

know that she knows what she’s doing.

(3) . . . She’s a pro. That’s why she’s hired to do this. She did it once before, a month

before. That’s . . . exactly why she was hired. 

. . . You only get your money if the aliens make it to San Antonio. And so if that’s

your goal, who are you going to hire? You’re going to hire someone who knows what

they’re doing and you’re going to hire someone who knowsthey’re aliens and you’re going

to hire someone who’s experienced. You know she’s experienced. You heard evidence of

that.

The third portion wasthe prosecutor’sresponse to defense counsel’s closing argument that the driver had not

given any instructions about what to do or say upon dropping the aliens off at the motel room. It was at that

point—after the prosecutor had already argued the October encounter evidence without objection in his initial closing

and earlier in the rebuttal closing—that defense counsel belatedly objected:

Your Honor, I’d object to this line of argument. It’s inappropriate. That it’s argument to

the jury. It’s not part of the law. That they be given an instruction that it’s supposed to be

considered for a limited purpose only.

As requested, the court instructed the jury as follows:

Ladies and gentleman—your objection is overruled—but let me emphasize that the evidence

submitted to you as to the prior offense was submitted to you for a limited purpose that is defined for

you in the instructions and the law, which you are bound to follow the Court’s instructions for

purpose that the evidence should be considered for.

8

404(b).2 Because Gonzalez-Perales did not timely object, this Court reviews her

claim of improper closing argument for plain error. United States v. Thompson,

482 F.3d 781, 785 (5th Cir. 2007) (“As [the defendant] failed to object timely to

the prosecutor’s comments, we review them for plain error.” (footnote omitted)).

We hold thatthe prosecutor’s closing argument did not violate Rule 404(b).
No. 06-40684

9

First, the prosecutor argued that based on the October encounter testimony

admitted at trial, the jury could “infer” that Gonzalez-Perales “was caught a

month before trying to smuggle aliens in.” The prosecutor argued that the prior

incident established her intent to transport the three alien passengers illegally

in November 2005, her knowledge of how to do so, and her absence of mistake

in doing so—all of which fall within the bounds of Rule 404(b). See United States

v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995) (“[A] prosecutor is not

prohibited from recit[ing] to the jury those inferences and conclusions he wishes

[the jury] to draw from the evidence so long as those inferences are grounded

upon the evidence.” (internal quotation marks and footnote omitted)). 

Second, the prosecutor’s statement regarding Gonzalez-Perales’s

knowledge of alien smuggling constituted a fair response to and explanation of

defense counsel’s closing argument that the driver had not given any

instructions about what to do or say upon dropping the aliens off at the motel.

See United States v. Vaccaro, 115 F.3d 1211, 1217 (5th Cir. 1997) (“‘The

prosecution [is] entitled to make a fair response in rebuttal’ to the arguments of

defense counsel.” (quoting United States v. Williams, 822 F.2d 512, 518 (5th Cir.

1987))). And this Court assumes that the jury was sufficiently competent to

discount the prosecutor’s hyperbolic characterization of Gonzalez-Perales as a

“pro.” See id. at 1216 (“[W]e assume that the jury has the common sense to

discount the hyperbole of an advocate, discounting the force of the argument.”).

Third, as Gonzalez-Perales requested in her belated objection, the district

court instructed the jury to consider the testimony regarding the October

encounter for the limited purposes specified in the jury instructions. The jury

instructions showed that this testimony was admitted for the limited purposes

of showing state of mind, intent, knowledge, plan, preparation for the

commission of a crime, or absence of mistake. As a result, even assuming a risk

of prejudice, the district court’s cautionary instruction effectively mitigated any

potential harm. See Zafiro v. United States, 506 U.S. 534, 540 (1993) (noting
No. 06-40684

3 Given that the evidencewas uncontradicted and unchallenged that Gonzalez-Peralestransported illegal alien

Contreras-Puente, the only issue as to the offense of conviction was Gonzalez-Perales’s knowledge or state of mind at

the time.

4 On direct examination, Officer Marin testified about the Siesta Motel’s reputation as follows:

Q. . . . And based on your experience in that four years and seven months as a Border Patrol

officer, have you come to learn if there’s any particular reputation of the Siesta Motel?

A. Yes, sir.

Q. What is that reputation?

A. It’s a place where they stash a lot of illegal aliens.

Q. Who is “they”?

A. The smugglers. Usually the smugglers put illegal aliens in that motel to then go later on

and pick them up.

10

that a potential risk of prejudice can be cured with proper instructions, and that

“juries are presumed to follow their instructions” (internal quotation marks and

citation omitted)); see also United States v. Levine, 80 F.3d 129, 136 (5th Cir.

1996) (holding that the district court’s curative instructions minimized any

prejudice arising from the prosecutor’s closing argument).

Accordingly, the prosecutor’s closing argument regarding the October

encounter did not violate Rule 404(b). Gonzalez-Perales has failed to show any

error, much less plain error.3

B. Testimony Regarding the Siesta Motel’s Reputation

At trial, Gonzalez-Perales objected to testimony regarding the Siesta

Motel’s reputation as a place where smugglers stash illegal aliens for subsequent

pickup on the grounds of relevancy and undue prejudice. She argues that this

evidence allowed the jury to find her “guilty by association” with the motel.4 We

review the district court’s evidentiary ruling for abuse of discretion. United

States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir. 2002) (citation omitted).

Our precedent is well settled that the Government may “not attempt to

prove a defendant’s guilt by showing that she associates with ‘unsavory

characters.’” United States v. Polasek, 162 F.3d 878, 884 (5th Cir. 1998) (citation
No. 06-40684

11

omitted). The Government correctly argues that this precedent involves guilt by

association with particular people rather than with a particular place. Even

assuming arguendo, however, that this precedent should be applied in the

context of a place rather than a person, and that therefore it was error to admit

the testimony regarding the Siesta Motel’s reputation for alien smuggling, any

such error was harmless. See Gutierrez-Farias, 294 F.3d at 663 (“Although we

find that the district court abused its discretion by permitting the challenged

portion of [the agent’s] testimony, we nonetheless affirm [the defendant’s]

conviction because the error was harmless.”). The testimony comprised a small

part of an otherwise strong case given Gonzalez-Perales’s inconsistent responses

to the agents regarding her knowledge ofthe passengers’ illegal-alien status,the

Rule 404(b) evidence of her involvement in the October encounter, and, most of

all, Contreras-Puente’s testimony regarding Gonzalez-Perales’s role in the

smuggling scheme. See id.(holding thatthe district court’s erroneous admission

of challenged testimony was harmless in part because “the statements made by

[the agent] constituted only a small portion of an otherwise strong case”(citation

omitted)).

Accordingly, the district court’s admission of the testimony regarding the

Siesta Motel’s reputation was, at most, harmless error.

C. The Pattern Jury Instruction On the Lesser-Included Offense

In the district court, Gonzalez-Perales objected to submission of

instructions for both alien transporting for financial gain and simple alien

transporting and argued for submission of only the lesser offense. She did not

object, however, that this Circuit’s pattern jury instruction on lesser-included

offenses was erroneous. Accordingly, we review her argument for plain error.

See United States v. Daniels, 281 F.3d 168, 183 (5th Cir. 2002) (“When a

defendant has failed to properly preserve an issue for appeal,this court will only

review it for plain error.” (citing United States v. Caucci, 635 F.2d 441, 447 (5th

Cir. 1981))).
No. 06-40684

5 The district court instructed the jury on the elements of the greater offense of alien transporting for financial

gain as follows:

For you to find the defendant guilty of this crime, you must first be convinced that the

government has proven each of the following beyond a reasonable doubt:

First: That an alien had entered or remained in the United States in violation of law;

Second: The defendant knew or recklessly disregarded the fact that the alien was in the

United States in violation of law;

Third: That the defendant transported the alien within the United States with the intent to

further the alien’s unlawful presence; and

Fourth: That the offense was committed for the purpose of commercial advantage or private

gain.

The court later submitted this circuit’s pattern jury instruction on lesser-included offenses:

We have just talked about what the government has to prove for you to convict the

defendant of the crime charged in the indictment, transportation of illegal aliens for commercial

advantage or private financial gain bymeans of a motor vehicle. Your first task is to decide whether

the government has proved beyond a reasonable doubt that the defendant committed that crime. If

your verdict on that is guilty, you are finished. But if your verdict is not guilty, or if after all

reasonable efforts you are unable to reach a verdict, you should go on to consider whether the

defendant is guilty of transportation of illegal aliens by means of a motor vehicle. You should find

the defendant guilty of transportation of illegal aliens bymeans of a motor vehicle if the government

has proved beyond a reasonable doubt that the defendant did everything we discussed before except

that it did not prove that the defendant committed the offense for commercial advantage or private

financial gain.

The court also instructed the juryon the first three elements of alien transporting recited above, and submitted a verdict

form that tracked the jury instructions. 

During the deliberations, the court advised the parties of a jury note that the jury was deadlocked on the first

question, but had reached a verdict on the second question, and that the jury wanted to know whether it had to decide

the first question. The court instructed the jury to return to the jury room and make sure that it was unable to reach

a verdict on the first question, and if so, then to answer the second question. The jurors returned a verdict of guilty

of simple alien transporting. 

12

Gonzalez-Perales contends that the district court should not have

submitted the pattern jury instruction on lesser-included offenses because it

allows for consideration of the lesser offense if after “reasonable efforts”the jury

cannot agree on the greater offense.5Instead, she argues, the court should have

submitted an “acquittal-first” instruction, which requires the jury to

unanimously agree to acquit on the greater offense before considering the lesser

offense. She relies on United States v. Williams, 449 F.3d 635 (5th Cir. 2006),

which she claims “firmly placed [this Court] in the ‘acquittal first’ camp.” 
No. 06-40684

13

Gonzalez-Perales is correct that Williams quotes with approval the

proposition that“‘[w]hen a greater and lesser offense are charged to the jury,the

proper course is to tell the jury to consider first the greater offense, and to move

on to consideration of the lesser offense only if they have some reasonable doubt

as to the guilt ofthe greater offense.’” Id. at 641 (quoting Fuller v. United States,

407 F.2d 1199, 1227 (D.C. Cir. 1968) (en banc)). Williams did so, however, not

to address the propriety of a “reasonable-efforts” instruction versus an

“acquittal-first” instruction, but rather to explain that the district court there

had reversed the order of consideration of greater and lesser offenses by

improperly instructing the jury to consider the lesser offense first and then the

greater offense. See id. Even then, the reason that Williams vacated the

defendant’s conviction was not because of this erroneous ordering but because

the district court entered a judgment of guilty on the greater offense despite the

fact that the jury did not unanimously agree to every element of that offense.

See id. at 647-49. Williams, therefore, does not apply.

Although Gonzalez-Perales cites several cases from other jurisdictions that

use the “acquittal-first” instruction instead of the “reasonable-efforts”

instruction, she has not pointed to any case from this Circuitthatinvalidates the

longstanding pattern jury instruction at issue. In addition, although she

contends that she should have been given the choice between the two types of

instructions, she never requested that the district court submit anything other

than this Circuit’s “reasonable-efforts” pattern jury instruction. See United

States v. Tsanas, 572 F.2d 340, 346-47 (2d Cir. 1978) (holding that neither the

acquittal-first instruction nor the reasonable-efforts instruction is “wrong as a

matter of law. The court may give the one that it prefers if the defendant

expresses no choice,” and that, as a result, defense counsel’s failure to request

the instruction advocated on appeal did not amount to plain error).

Accordingly,the district court did not plainly err in submitting the pattern

jury instruction on the lesser-included offense.
No. 06-40684

14

III. Conclusion

Finding no reversible error in the district court’s rulings, we AFFIRM.