United States of America, Plaintiff-appellee, v. Santos Morales-macias, Defendant-appellant, 855 F.2d 693 (10th Cir. 1988)

William D. Fry, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

William L. Lutz, U.S. Atty., David N. Williams, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Before ANDERSON, Circuit Judge, BARRETT, Senior Circuit Judge, and DUMBAULD^* , Senior District Judge.

DUMBAULD, Senior District Judge.

Appellant Santos Morales-Macias was convicted pursuant to a jury verdict on two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B)¹  supplemented by the aiding and abetting provision of 18 U.S.C. § 2. He was sentenced²  to two years on Count I, and one year concurrently on Count II. Appellant contends that an out-of-court statement was erroneously admitted at trial in violation of Rule 802³  of the Federal Rules of Evidence and of the confrontation clause of the Sixth Amendment.⁴  We affirm.

Appellant and his wife (she was driving, he was in the front passenger seat) were transporting two men in the back seat of her 1973 Plymouth from El Paso, Texas, en route to Albuquerque, New Mexico, when they were stopped at a checkpoint near Las Cruces, New Mexico.⁵  Appellant then and there admitted to border patrol agent Dale Morrison that he knew the men were illegal aliens and that he was giving them a ride to Albuquerque, New Mexico.⁶ 

The men in the back seat were later identified as Juan Esequiel Almeda-Chavirra and his nephew Jose Maria Ortiz-Almeda.⁷  Both were citizens of Mexico.⁸ 

Illegal passenger No. 1 (the uncle) was a witness for the government. According to his testimony he was a Mexican national from Chihuahua, Mexico, and decided to visit a relative in Albuquerque, New Mexico. At Juarez, Mexico, he attempted to obtain a travel permit at the United States consulate there, but it was closed. He then telephoned his brother Oscar in Albuquerque to find "a person who could take us." His brother instructed him to go to a bar⁹  in El Paso, Texas to meet a man who for $500 would take him and his nephew to Albuquerque.¹⁰  Accordingly the two Mexicans crossed the river and "sneaked in" to the United States illegally.¹¹  At the El Retiro bar the uncle met appellant and his wife. He paid $50 to appellant and his wife at the bar, and proceeded with them and his nephew in the automobile en route for Albuquerque until stopped at the checkpoint.¹² 

On cross-examination appellant's counsel undertook to show that the witness (the uncle) had no personal knowledge of the conversations between his brother Oscar and the appellant other than what Oscar told him. The response of the witness, when finally given (and which the trial court refused to strike) was: "He told us that there was a person who wanted us to pay him two hundred dollars a piece."¹³  As previously mentioned, appellant's guilt is plainly established by his own confession,¹⁴  and if the statement was erroneously received the error was harmless. It was irrelevant to the issue of appellant's guilt or innocence, even if it were received for its truth and believed by the jury.¹⁵ 

It is an elementary rule of the law of evidence (and carried forward in Rule 801(c) F.R.E.) that to constitute hearsay subject to exclusion an out-of-court statement must be "offered in evidence to prove the truth of the matter asserted."

But, quite apart from its irrelevance to the issue of guilt or innocence, the background testimony of illegal passenger No. 1 relating to his conversations with his brother Oscar was clearly of the same sort as the routine testimony of police officers in personal injury cases that "acting upon information received, I proceeded to milepost 257 and observed two damaged automobiles in contact with each other." The telephone call to police headquarters is merely the circumstance that triggers the officer's investigative activity. It is not offered for the truth of its contents. It does not prove the occurrence of the collision on the highway; it might have been a prankster's joke, but it set in motion the chain of events which led to the officer's observation of the scene of the collision.

Similarly, whatever discussion appellant had with the uncle's brother regarding the terms upon which appellant was willing to transport the illegal alien passengers to Albuquerque was simply a preliminary circumstance explaining why the uncle went to the El Retiro tavern and there met appellant and rode in the Plymouth until stopped at the checkpoint.

The uncle's statement (elicited by appellant's counsel on cross-examination) was thus not hearsay, and there was no error in the District Judge's ruling that it should not be excluded as hearsay. There was no violation of Rule 802.

Likewise there is no merit in appellant's contention that receipt of the statement violated the Sixth Amendment. As explained in Bourjaily v. U.S., --- U.S. ----, 107 S. Ct. 2775, 2782, 97 L. Ed. 2d 144 (1987), the hearsay rules and the confrontation clause stem from the same roots and are designed to protect similar values; and hence statements found to be admissible under the rules of evidence are also per se unobjectionable under the confrontation clause. No additional analysis is required to hold that reception of the challenged statement is in conformity with the Sixth Amendment once we have determined, as has been done hereinabove, that it is not excludable as hearsay under the rules of evidence.

For the foregoing reasons, the judgment of the District Court is

AFFIRMED.