United States v. Whisenhunt

* 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that this opinion should not be published and is not precedent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
F I L E D
December 5, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-51127
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACK WAYNE WHISENHUNT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. P-02-CR-75-ALL
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jack Wayne Whisenhunt appeals his conviction for one count
of importing an alien for the purpose of sexual exploitation, in
violation of 8 U.S.C. § 1328. He contends that the evidence was
insufficient for the jury to find that he imported the subject
alien because the alien crossed the border from Mexico into the
United States of his own volition. He also contends that the

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No. 02-51127
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district court erred in admitting certain photographs into evidence.
Viewing the evidence as a whole, a reasonable trier of fact
could have found that the evidence established the essential
elements of the alien-importation offense beyond a reasonable
doubt. See United States v. Ortega Reyna, 148 F.3d 540, 543 (5th
Cir. 1998). In particular, the evidence was sufficient to
establish that Whisenhunt directly or indirectly imported the
alien described in count one of the indictment. See 8 U.S.C.
§ 1328.
Although Whisenhunt objected in the district court to the
admission of the photographs because he disputed that they
depicted minors, as charged in the counts of the indictment for
which the photographs were introduced and of which he was
acquitted, he did not object on the basis that admission of the
photographs would prejudice his defense on the alien-importation
charge. Accordingly, this issue is reviewed for plain error
only. Because there is no possibility that the admission of the
photographs affected the outcome of the trial on the alien-
importation charge, Whisenhunt has not shown plain error in the
admission of the photographs. See United States v. Calverley, 37
F.3d 160, 164 (5th Cir. 1994)(en banc).
AFFIRMED.

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