Unpublished Disposition, 927 F.2d 612 (9th Cir. 1989)

MEMORANDUM^** 

Jesus Alberto Ramirez appeals his conviction, following a jury trial, for two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). Ramirez claims the district court abused its discretion by allowing the government to introduce inadmissible hearsay testimony. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review for abuse of discretion a district court's ruling to admit evidence over a hearsay objection. United States v. Kirk, 844 F.2d 660, 663 (9th Cir.), cert. denied, 488 U.S. 890 (1988). An erroneous ruling which does not affect substantial rights does not compel reversal. United States v. Sanchez-Lopez, 879 F.2d 541, 555 (9th Cir. 1989) (citing Fed. R. Crim. P. 52(a)). The error is harmless where other evidence sufficiently supports the jury's conclusion. United States v. Cowley, 720 F.2d 1037, 1045 (9th Cir. 1983), cert. denied, 465 U.S. 1029 (1984). In weighing sufficiency challenges, we ask not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its conclusion. United States v. Hernandez, 876 F.2d 774, 780 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989).

Ramirez was arrested by U.S. Border Patrol Agent Michael Douglas on November 10, 1989 just north of the Mexican border as Ramirez drove south on Interstate 5 transporting five illegal aliens. Earlier, Douglas had observed Ramirez heading south alone on the same stretch of highway, and minutes after that, driving north with the five passengers. Douglas followed Ramirez in a marked border patrol car, and activated his siren and lights. Instead of stopping, Ramirez accelerated and turned onto I-5 southbound. Douglas apprehended him at the port of entry.

At trial, Ramirez conceded that he knew his passengers were undocumented aliens. The parties contested whether he intended to transport them north to Los Angeles or south to Tijuana. Two of the passengers testified that Ramirez had come upon them sitting on the ground north of the border with their three children. They told Ramirez they were going to Los Angeles and believed Ramirez had agreed to drive them there. When the border patrol car began following them, Ramirez accelerated and said they were going to Tijuana.

The district court granted the government's motion to admit evidence of Ramirez' conviction three months earlier on a nearly-identical charge to show his intent to commit the later offense pursuant to Fed.R.Evid. 404(b). Over Ramirez' objection, the district court permitted U.S. Border Patrol Agent Edward Harper to testify that the passengers in the earlier case had told him they were en route to Los Angeles.

The government concedes that Harper's account of the aliens' statement was inadmissible hearsay. Federal Rule of Evidence 802 bars the admission of this statement, offered to show that Ramirez had earlier attempted to transport undocumented Mexicans to Los Angeles. Nonetheless, the error was harmless because other evidence proved Ramirez' guilt beyond a reasonable doubt. Ramirez conceded he knew his passengers were Mexican nationals illegally in the United States. His prior conviction, and Douglas' and the passengers' testimony about his behavior on November 10, 1989, reasonably supported the jury's conclusion that he intended to transport the aliens north. Therefore, we hold the error was harmless. See Cowley, 720 F.2d at 1045.

AFFIRMED.