Ralph Pena-Gutierrez (“Pena-Gutierrez”) seeks reversal of his jury conviction for bringing an illegal alien into the United States, see 8 U.S.C. § 1324(á)(2)(B)(ii), (iii), and transporting illegal aliens within the United States, see id. § 1324(a)(l)(A)(ii). We reject Pena-Gutierrez’s argument that the government violated his rights under the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment when it deported an illegal alien whose hearsay statement was admitted at trial, Israel Macias-Limon (“Macias-Limon”), because Pena-Gutierrez failed to demonstrate either bad faith by the government or prejudice to his case. Furthermore, although the district court erred by admitting an INS report, itself inadmissible hearsay, which contained additional inadmissible hearsay in the form of Macias-Limon’s out-of-court statement, we find the error was harmless. We also reject Pena-Gutierrez’s claims of evidentiary error relating to a diagram of the vehicle Pena-Gutierrez drove to the United States/Mexico border because the diagram and accompanying testimony were both relevant and not unduly prejudicial. Nor did the district court err by denying Pena-Gutierrez a role adjustment for being a minor participant in the illegal smuggling activity. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
I.
On two separate days within a two-week period in early 1998, federal agents discovered illegal aliens secreted in various compartments of a car driven by Pena-Gutierrez across the California/Mexico border.
On January 25, 1998, Pena-Gutierrez drove a 1984 Buick station wagon into the United States from Mexico at the San Ysidro, California Port of Entry. U.S. Customs Inspector Kenneth Slaughter questioned Pena-Gutierrez at the port of entry’s primary-inspection area. In response to this questioning, Pena-Gutierrez stated that he had recently purchased the Buick. Inspector Slaughter noticed, however, that the name on the vehicle registration did not match the name on Pena-Gutierrez’s resident-alien card. Inspector Slaughter also found it suspicious that Pena-Gutierrez had only two keys on his key ring, because his “experience ... is when we have two keys on the vehicle, there’s either ... narcotics or aliens in the vehicle.” Based on these and other observations of Pena-Gutierrez’s demeanor, Inspector Slaughter referred Pena-Gutierrez to the secondary-inspection lot.
There, U.S. Customs Inspector Barbara Thomas inspected the Buick. At the rear of the car, she “dropped the tailgate and then reached inside and pulled down the cover that’s over the wheel well on the side of the car.” Inside this side spare-tire compartment, Inspector Thomas found an Hispanic male, later identified as Macias-Limon, “kind of crawled up in a little ball and ... all sweaty.” Another Immigration officer then removed Macias-Limon from *1084 the compartment, and INS agents questioned both Pena-Gutierrez and Macias-Limon.
In response to this questioning, Pena-Gutierrez stated that he did not know that Macias-Limon was hidden in the car, that he had never seen Macias-Limon before, and that he was receiving no monetary payment for transporting Macias-Limon. Macias-Limon stated that he was a citizen and national of Mexico, that he had been placed in the spare-tire compartment on a street in Tijuana, Mexico, that he was en route to Los Angeles to seek employment, and that no money was to be exchanged for his transport. After completing its interviews of the two men, the INS declined to prosecute Pena-Gutierrez. It later released Pena-Gutierrez and deported Macias-Limon to Mexico.
Just two weeks later, on February 10, 1998, Pena-Gutierrez drove a 1990 Ford Probe to the San Clemente, California border-patrol checkpoint. U.S. Border Patrol Agent Brandon Scott, who was on duty at the time, noticed that the car appeared heavily loaded in the back, and he motioned for Pena-Gutierrez to stop. Pena-Gutierrez did not pull over until his car was approximately ten feet past the spot that Agent Scott had indicated. Once he brought his car to a stop, Agent Scott approached, whereupon Pena-Gutierrez volunteered that he and his visible passenger, Ana Maria Hernandez-Rojas (“Hernandez-Rojas”), were United States citizens on their way to Los Angeles. Agent Scott observed, however, that Pena-Gutierrez spoke rapidly and did not make eye contact, and that Hernandez-Rojas was “sitting really stiff and rigid” and stared “straight ahead.” On that basis, he referred the two to secondary inspection.
At secondary inspection, Pena-Gutierrez answered the questions of U.S. Border Patrol Agent Claudia Field, stating that he was a United States citizen but that he had no identification with him. Agent Field then asked Pena-Gutierrez if she could look inside the hatchback of his car. Pena-Gutierrez consented, left the Ford, inserted a key in the lock of the hatchback, and turned the key several times without successfully opening the hatchback. Meanwhile, another agent had asked Hernandez-Rojas to identify her citizenship and had determined that she was a Mexican citizen illegally in the United States. Upon this determination, the agents immediately arrested Pena-Gutierrez. Agent Field then opened the hatchback herself and discovered Alberto Bernal-Hernandez, Jose Bernal-Hernandez, and Jesus Michel-Lara inside. These three men stated that they were also Mexican citizens illegally in the United States.
After completing its investigation, the INS allowed Hernandez-Rojas and her son, Alberto Bernal-Hernandez, to return to Mexico voluntarily. The government decided to hold both Jose Bernal-Hernan-dez and Jesus Michel-Lara as material witnesses.
On April 15, 1998, the United States filed a four-count superseding indictment against Pena-Gutierrez in the Southern District of California. Count one charged bringing in an illegal alien, namely Macias-Limon, for the purpose of commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Count two charged Pena-Gutierrez with bringing in Macias-Limon and failing to bring and present him to an appropriate immigration officer, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). Counts three and four charged Pena-Gutierrez with transportation of illegal aliens, namely Jose Bernal-Hernandez and Jesus Michel-Lara, in violation of 8 U.S.C. § 1324(a)(l)(A)(ii).
During the ensuing two-day trial, the district court admitted into evidence, over Pena-Gutierrez’s objection, an INS report that contained the statement Macias-Li-mon made to INS agents on January 25, 1998. Macias-Limon did not appear as a witness at trial. The district court also admitted over objection a diagram of the Buick station wagon that Pena-Gutierrez drove across the border on January 25, along with accompanying testimony by a *1085 U.S. Customs inspector. This diagram demonstrated the location of the car’s spare-tire compartment and how Macias-Limon was concealed inside it.
A jury found Pena-Gutierrez guilty on all four counts of the indictment, and, after refusing to grant a role adjustment under section 3B1.2 of the U.S. Sentencing Guidelines, the district court sentenced Pena-Gutierrez to sixty months in custody, ordered him to serve three years of supervised release, and required him to pay a $400.00 penalty assessment. This appeal followed.
II.
After declining prosecution on the January 25, 1998 incident, the INS deported Macias-Limon to Mexico. Pena-Gutierrez contends that, because MaciasLimon was a potential defense witness, this act violated the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment. Because Pena-Gutierrez has demonstrated neither governmental bad faith nor prejudicial conduct, we conclude that the district court did not err in denying his motion to dismiss counts one and two on this basis.
1
See United States v. Dying,
To establish that the government acted in bad faith, Pena-Gutierrez must show either “that the Government departed from normal deportation procedures” or “that the Government deported [MaciasLimon] to gain an unfair tactical advantage over him at trial.”
Id.
at 695. Pena-Gutierrez has made no showing that the government departed from normal practice in deporting Macias-Limon. Nor can Pena-Gutierrez demonstrate that the government deported Macias-Limon to “gain an unfair tactical advantage over him at trial.”
Id.; see also California v. Trombetta,
Pena-Gutierrez has also failed to prove prejudice because Maeias-Limon’s proposed testimony, although material and possibly favorable, was “merely cumulative to the testimony of available witnesses.”
Dying,
III.
The central question this case presents is one not previously answered by our court: when the government has the name and address of a foreign witness, but makes no effort to contact that witness in his native country, is the witness “unavailable” under Rule 804(a) of the Federal Rules of Evidence? We hold that he is not, but we find that the district court’s ruling to the contrary was harmless error.
Like many illegal aliens unsuccessfully smuggled into the United States, Macias-Limon was interviewed and then sent home across the border. The government had Macias-Limon’s name and his address in Mexico. It made no attempt to contact him, however, and Macias-Limon did not appear as a witness at trial. Nevertheless, the district court admitted into evidence, over Pena-Gutierrez’s objection, a report that INS Inspector Anita Anderson prepared during her interview with Macias-Limon. This hearsay report contained Macias-Limon’s hearsay statement that he was a citizen and national of Mexico. See Fed.R.Evid. 801(c) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence toprove the truth of the matter asserted.”). Pena-Gutierrez argues (i) that this hearsay-within-hearsay was inadmissible under the Federal Rules of Evidence, see id. 805 (“Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule .... ”); (ii) that its admission violated his rights under the Confrontation Clause of the Sixth Amendment; and (iii) that “[without the hearsay testimony ..., the government could not prove its case.” Applying the appropriate standards of review, 3 we hold that the district court erred in admitting Macias-Limon’s hearsay statement within Inspector Anderson’s hearsay report; we assume, without deciding, that this error constituted a Confrontation Clause violation; and we conclude that the error was harmless beyond a reasonable doubt.
A.
The district court admitted Inspector Anderson’s report under the recorded-recollection exception to the hearsay rule.
See
Fed.R.Evid. 803(5). In
United States v. Orozco,
Rule 803(8) allows the admission of public records “setting forth ... matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.” Fed.R.Evid. 803(8)(B). As we have explained, “[i]n excluding ‘matters observed by ... law enforcement personnel’ from the coverage of the exception,”
Orozco,
In this case, the questioning of Macias-Limon by INS Inspector Anderson took place in the INS Fraud Office soon after authorities stopped Pena-Gutierrez’s car and found Macias-Limon hidden inside, and it took place before the INS decided what, if any, action to take regarding this incident.
See Wilmer,
B.
Even if we were to find the report itself admissible, the statement of the deported witness it contained was inadmissible hearsay.
See Sana v. Hawaiian Cruises, Ltd.,
In
United States v. Winn,
In this case, however, unlike in
Winn,
the government had Macias-Limon’s address in Mexico. In addition, the government asserted no basis for believing that Macias-Limon would not respond to a request to return to the United States to testify. Although “ ‘[g]ood faith’ and ‘reasonableness’ are terms that demand fact-intensive, case-by-case analysis, not rigid rules,”
Christian,
This holding is not inconsistent with our recent decision in
United States v. Olafson. See Olafson,
C.
Pena-Gutierrez argues that the district court’s evidentiary error in admitting Macias-Limon’s hearsay statement within Inspector Anderson’s hearsay report amounted to a violation of the Confrontation Clause of the Sixth Amendment. We need not decide this question, however, because even assuming a Confrontation Clause violation here, we find that the district court’s error was harmless beyond a reasonable doubt.
See United States v. Bowman,
Whether a violation of the Confrontation Clause is harmless beyond a reasonable doubt “depends on a variety of factors, including whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony on material points, the extent of the cross-examination, and of course, the overall strength of the prosecution’s case.”
United States v. Mayfield,
There was sufficient evidence admitted during trial, however, from which the jury could find beyond a reasonable doubt that Macias-Limon was an illegal alien, without the benefit of this hearsay statement. In particular, it is undisputed that the INS removed Macias-Limon from the United States, a sanction reserved for aliens.
See
8 U.S.C. § 1225;
id.
§ 1227;
id.
§ 1252(b)(5);
see also Mathews v. Diaz,
IV.
The district court also admitted into evidence a diagram of the 1984 Buick station wagon that Pena-Gutierrez drove into the United States from Mexico on January 25, 1998. This relatively crude diagram demonstrated how Macias-Limon was hidden inside the car’s spare-tire compartment. Pena-Gutierrez argues that both the diagram and the accompanying testimony by U.S. Customs Inspector Barbara Thomas were irrelevant, see Fed. R.Evid. 401, and accordingly inadmissible, see id. 402. Specifically, he contends that knowledge was the only disputed issue; “[t]he condition of the illegal alien had nothing to do with knowledge”; and, therefore, the diagram depicting MaciasLimon’s condition was not relevant evidence. However, as the advisory committee’s note to Rule 401 of the Federal Rules of Evidence explains,
[t]he fact to which the evidence is directed need not be in dispute.... Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category.
Id.
401 advisory committee’s note;
see also Old Chief v. United States,
In addition, to convict Pena-Gutierrez on counts one and two, the government had to prove that Macias-Limon was an illegal alien.
See
8 U.S.C. § 1324(a)(2)(B)(ii), (iii). A diagram, along with explanatory testimony, demonstrating Macias-Limon’s location in the spare-tire compartment of Pena-Gutierrez’s Buick was certainly “a step on one evidentiary route to [this] ultimate fact.”
Old Chief,
Pena-Gutierrez also argues that the admission of the diagram and accompanying testimony violated Federal Rule of Evidence 403. He asserts that the district court erred in failing to perform an explicit balancing test and that the evidence’s “probative value is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. These arguments are without merit.
We do not require explicit balancing on the record when the district
*1091
court rules on a Rule 403 objection.
See United States v. Robertson,
Moreover, considering the nature of evidence we have found unduly prejudicial in the past, the non-graphic diagram of a Buick station wagon and its companion testimony simply were not of a nature likely to unfairly prejudice the jury against Pena-Gutierrez.
See, e.g., United States v. Brady,
V.
Finally, Pena-Gutierrez challenges the sentence imposed by the district court. He argues that he was a minor participant in the alien-smuggling operation, and that the district court therefore erred under section 3B1.2 of the U.S. Sentencing Guidelines by not decreasing his offense level by two levels.
See
U.S.S.G. § 3B1.2(b) (1998) (“If the defendant was a minor participant in any criminal activity, decrease [the offense level] by 2 levels.”). “[T]his court has consistently stated that a downward adjustment under section 3B1.2 is to be used infrequently and only in exceptional circumstances.”
United States v. Hernandez-Franco,
“The Guidelines define a ‘minor participant’ as ‘any participant who is less culpable than most other participants, but whose role could not be described as minimal.’ ” Id. (quoting U.S.S.G. § 3B1.2, comment, (n.3) (1998)). “We have interpreted this definition to mean that a minor role adjustment is warranted only if the defendant is ‘substantially’ less culpable than his co-participants.” Id. at 1089. Moreover, “[t]he decision whether to apply a minor role adjustment ‘involves a determination that is heavily dependent upon the facts of the particular case.’ ” Id. (quoting U.S.S.G. § 3B1.2, comment, (backg’d.)).
Pena-Gutierrez did not simply provide the means of transportation. Rather, he was convicted of smuggling illegal aliens into the United States on two separate occasions within a sixteen-day period, and of receiving compensation for his services.
See Davis,
VI.
For the foregoing reasons, Pena-Gutierrez’s conviction and sentence are AFFIRMED.
Notes
. We review de novo the district court's decision to deny Pena-Gutierrez's motion to dismiss the indictment for failure to retain a witness.
See United States v. Armenia,
. Pena-Gutierrez also advances new facts, arguing that Macias-Limon might have explained that Pena-Gutierrez did not place him in the van ’and was not involved in the smuggling. Pena-Gutierrez advances these facts, however, without meeting the Supreme Court's well-established procedural prerequisites. In
United States v. Valenzuela-Bernal,
the Supreme Court held that when “the criminal defendant ... advance[s] additional facts, either consistent with facts already known to the court or accompanied by a reasonable explanation for their inconsistency with such facts, with a view to persuading the court that the deported witness would have been material and favorable to his defense,” this “explanation of materiality ... should be verified by an oath or affirmation of either the defendant or his attorney.”
Valenzuela-Bernal,
. We review de novo whether the district court correctly construed the hearsay rule,
see United States v. Olafson,
. Pena-Gutierrez does not challenge the admissibility of Macias-Limon's statement under Rule 804(b).
. Nor was Macias-Limon's statement admissible under any of the exceptions listed in Federal Rule of Evidence 803, which would apply “even though the declarant is available as a witness,” Fed.R.Evid. 803.
See United States v. Becerra,