United States v. Franco Nicholas Padgett

503 F. App'x 884
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 15, 2013
Docket11-14389
StatusUnpublished

This text of 503 F. App'x 884 (United States v. Franco Nicholas Padgett) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Franco Nicholas Padgett, 503 F. App'x 884 (11th Cir. 2013).

Opinion

PER CURIAM:

Franco Padgett appeals his conviction and 110-month sentence, imposed after being convicted of conspiracy to burglarize a pharmacy of controlled substances in violation of 18 U.S.C. § 2118(d). 1 Padgett presents four arguments on appeal: (1) whether the introduction of hearsay statements by an unidentified informant violated his Confrontation Clause rights, (2) whether the district court committed plain error when it allowed evidence of prior drug dealing, (3) whether the evidence was sufficient to sustain a conviction for conspiracy to commit burglary, and (4) whether his sentence was procedurally unreasonable. We address each argument in turn, and affirm Padgett’s conviction and sentence.

*886 I.

Padgett challenges as hearsay testimony by a police officer that an unidentified source told him Padgett was involved in selling prescription medication, and was known in the community for doing so. Pad-gett claims, for the first time on appeal, that the introduction of this testimony violated Crawford v. Washington, 541 U.S. 86, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and the Confrontation Clause of the Sixth Amendment.

When a party raises a claim of evidentiary error for the first time on appeal, we review it for plain error only. United States v. Turner, 474 F.3d 1265,1275 (11th Cir.2007). Under this standard, Padgett must show (1) an error occurred, (2) the error was plain, (3) the error affected his substantial rights, and (4) the error seriously affected the fairness of the judicial proceedings. See id. at 1276.

The Supreme Court has explained that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 124 S.Ct. at 1369 n. 9. Out-of-court witness statements made to law enforcement officials are admissible as non-hearsay if the statements are relevant to explain the course of subsequent investigative actions, “and the probative value of the evidence’s non-hearsay purpose is not substantially outweighed by the danger of unfair prejudice caused by the impermissible hearsay use of the statement.” United States v. Jiminez, 564 F.3d 1280,1288 (11th Cir.2009). However, testimony from a police officer describing what a confidential source told him, that is relied on by the prosecutor for the truth of the matter asserted, violates the Confrontation Clause. Mason v. Allen, 605 F.3d 1114, 1123 (11th Cir.2010).

In this case, the Government did not use the controverted testimony to establish the truth of the matter asserted. Consequently, the Confrontation Clause not implicated. See Crawford, 124 S.Ct. at 1369 n. 9. The Government used the tips from the source to “explain the course of the officials’ subsequent investigative actions,” and described why the investigation was expanded to include Padgett. See Jiminez, 564 F.3d at 1288. Additionally, the danger of unfair prejudice resulting from the testimony was minimal because the Government presented other testimonial evidence that Padgett had previously distributed illegal drugs. See Fed.R.Evid. 403. For this same reason, Padgett’s substantial rights were not affected even if we assumed plain error.

II.

Padgett next argues the introduction of evidence of prior bad acts through the officer’s testimony without the pre-trial notice required under Federal Rule of Evidence 404 mandates reversal. He claims he would have objected to the testimony if the Government had provided notice. When a party fails to object to a Rule 404(b) issue in the district court, we review for plain error. United States v. Church, 955 F.2d 688, 700 (11th Cir.1992).

Federal Rule of Evidence 404(b) “prohibits evidence of offenses or illegal acts extrinsic to a defendant’s indictment to show the defendant’s bad character.” United States v. Costa, 691 F.2d 1358, 1361 (11th Cir.1982). If the defendant in a criminal prosecution requests it, the prosecution must provide reasonable notice in advance of trial or during trial if the court excuses pretrial notice on good cause shown, “of the general nature of any such [prior bad acts] evidence that the prosecutor intends to offer at trial.” Fed.R.Evid. 404(b)(2).

*887 Assuming Padgett requested notice and triggered the duty of the prosecution to give notice, Padgett cannot establish plain error. Even if Padgett had objected or moved to suppress the statement, it would not have precluded evidence of his drug dealing, as several other witnesses testified that they had previously bought or received drugs from Padgett. Thus, Padgett has not shown an error that affected his substantial rights.

III.

Padgett claims the evidence was insufficient to sustain a conviction for conspiracy to commit burglary. Padgett was convicted under 18 U.S.C. § 2118(d), which a defendant violates “[i]f two or more persons conspire to violate subsection (a) or (b) of this section and one or more of such persons do any overt act to effect the object of the conspiracy.” 18 U.S.C. § 2118(d). Subsection (b) provides that “[w]hoever, without authority, enters or attempts to enter, or remains in, the business premises ... with the intent to steal any material or compound containing any quantity of a controlled substance shall” be fined or imprisoned, or both. 18 U.S.C., § 2118(b).

We review de novo a sufficiency-of-the-evidenee challenge, “viewing the evidence in the light most favorable to the government, and drawing all reasonable factual inferences in favor of the jury’s verdict.” Jiminez, 564 F.3d at 1284. “A conviction must be upheld unless the jury could not have found the defendant guilty under any reasonable construction of the evidence.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir.1999).

“An agreement may be proved by either direct or circumstantial evidence and a common scheme or plan may be inferred from the conduct of the participants or from other circumstances.” United States v.

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Related

United States v. Diaz
190 F.3d 1247 (Eleventh Circuit, 1999)
United States v. Chastain
198 F.3d 1338 (Eleventh Circuit, 1999)
United States v. Trelliny T. Turner
474 F.3d 1265 (Eleventh Circuit, 2007)
United States v. Jiminez
564 F.3d 1280 (Eleventh Circuit, 2009)
Crawford v. Washington
541 U.S. 36 (Supreme Court, 2004)
Iowa v. Tovar
541 U.S. 77 (Supreme Court, 2004)
Mason v. Allen
605 F.3d 1114 (Eleventh Circuit, 2010)
United States v. Rodriguez
627 F.3d 1372 (Eleventh Circuit, 2010)
United States v. Jan Leslie Costa
691 F.2d 1358 (Eleventh Circuit, 1982)
United States v. Frank Church, Carl Louis Coppola
955 F.2d 688 (Eleventh Circuit, 1992)

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503 F. App'x 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-franco-nicholas-padgett-ca11-2013.