Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Diego BERNAL-LEON, Defendant-Appellant.

No. 88-5133.

United States Court of Appeals, Ninth Circuit.

Submitted*  March 24, 1989.Decided May 10, 1989.

Before MERRILL, EUGENE A. WRIGHT and BEEZER, Circuit Judges.


MEMORANDUM** 

Diego Bernal-Leon (Bernal) appeals from his conviction on two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). Bernal's sole contention on appeal is that reversal is required because the district court erred in admitting evidence at trial of an allegedly inconsistent statement of a material witness. Defense counsel objected at trial on the ground that the government failed to lay a proper foundation for the admission of the evidence under Fed.R.Evid. 613(b). We affirm.

Agent Mark Spiess, a border patrol officer, testified at trial that he observed two persons attempting to hide in a vehicle traveling near the Mexican border. Spiess stopped the vehicle and the two persons he had observed admitted to being illegal aliens. Spiess testified at trial that Bernal was the driver of the stopped vehicle. Gabriel Mateo-Lagunas (Mateo) was one of the persons in the car at the time it was stopped. Mateo testified as a government witness at trial. During direct examination Mateo testified that prior to trial he was unable to identify in a photo-lineup the driver of the vehicle. Agent Beamish, a border patrol officer, later testified that Mateo earlier had made a photographic identification of Bernal from a six photo lineup which Beamish had presented to Mateo. Defense counsel objected on the ground that the government failed to lay a proper foundation for the admission of Agent Beamish's testimony. The district court overruled the objection. Bernal was convicted and this appeal followed. We review the district court's admission of the testimony under an abuse of discretion standard. United States v. Benny, 786 F.2d 1410, 1419 (9th Cir. 1986).

Bernal correctly points out that the government failed to establish a proper foundation for the admission of Mateo's prior inconsistent statement under Fed.R.Evid. 613(b). Rule 613(b) provides that extrinsic evidence of a prior inconsistent statement by a witness is not admissible to impeach the witness unless "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon...." Rule 613(b)'s foundation requirement is satisfied if the witness is asked if "he made the statement, giving its substance, naming the time, the place, and the person to whom it was made." Wood v. Stihl, 705 F.2d 1101, 1109 (9th Cir. 1983). In this case a proper foundation for Beamish's testimony was not laid because Mateo was not provided an opportunity to explain or deny that he had earlier made a positive photographic identification of Bernal. The testimony was therefore erroneously admitted under Rule 613(b). See Wood, 705 F.2d at 1109.

We will not reverse for violation of an evidentiary rule if the error "was more probably than not harmless.". United States v. Barrett, 703 F.2d 1076, 1081-82 (9th Cir. 1983). At trial Agent Spiess identified Bernal as the driver of the car he had stopped. Agent Lisa Gajowski, who arrived immediately after Agent Spiess stopped the vehicle, also identified Bernal as the person exiting from the vehicle which Spiess had stopped to investigate. We conclude that the evidence identifying Bernal as the driver of the vehicle was overwhelming. Accordingly, we conclude that the erroneous admission of the evidence was harmless and affirm the conviction.1 

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Because we conclude that the Rule 613(b) error was harmless, we need not address the government's alternative arguments supporting admission of Agent Beamish's testimony