United States v. Gabriel Florez

516 F. App'x 777
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 9, 2013
Docket11-12232
StatusUnpublished

This text of 516 F. App'x 777 (United States v. Gabriel Florez) 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. Gabriel Florez, 516 F. App'x 777 (11th Cir. 2013).

Opinions

PER CURIAM:

Gabriel Florez (Gabriel) appeals his convictions and total sentence for one count of [780]*780conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 846; and two counts of money laundering, in violation of 18 U.S.C. § 1956(a)(3). Gabriel presents nine issues on appeal, both directly and by adopting relevant portions of his codefen-dant Raymond Florez’s1 brief, which are addressed below. After review, we affirm Gabriel’s convictions and sentence.

I.

Gabriel contends the Government used impermissible hearsay to prove he conspired to possess with intent to distribute cocaine and marijuana. He specifically challenges the testimony of DEA Special Robert Livingston, asserting Livingston’s testimony regarding the following was hearsay: (1) what others involved in the drug trade had told him about Gabriel; (2) telephone and bank records connecting Gabriel to a drug courier who was arrested in Texas; and (3) the facts surrounding investigations into the arrests of drug couriers in Texas and Ohio. Gabriel contends despite the district court’s determination the testimony was to provide background and show the course of law enforcement’s investigation into him, it was used for the truth of the matter asserted, as demonstrated by the Government’s reliance on the evidence of the investigations into the drug couriers and Gabriel’s connection to them in its closing argument as substantive evidence of Gabriel’s guilt. He asserts that the hearsay was testimonial and violated his right to confront witnesses.

Ordinarily, we review evidentiary rulings for an abuse of discretion and review de novo the question of whether hearsay statements are testimonial for purposes of the Confrontation Clause. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir.2010). However, where a defendant fails to preserve an evidentiary ruling by contemporaneously objecting, we review for plain error only. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir.2007); see United States v. Jiminez, 564 F.3d 1280, 1286 (11th Cir.2009) (reviewing Confrontation Clause challenge for plain error). “To demonstrate plain error, the defendant must show that there is (1) error, (2) that is plain and (3) that affects substantial rights.” Turner, 474 F.3d at 1276 (quotations omitted). If all three conditions are met, we may then exercise our “discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotations omitted). “Errors ... affect a substantial right of a party if they have a substantial influence on the outcome of a case or leave grave doubt as to whether they affected the outcome of a case.” Id. (quotations omitted).

A. Statements by others in the drug trade

We have long recognized that:

statements by out of court witnesses to law enforcement officials may be admitted as non-hearsay if they are relevant to explain the course of the officials’ 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.

Jiminez, 564 F.3d at 1288 (quotations and alteration omitted). The Confrontation Clause of the Sixth Amendment prohibits the admission of certain forms of hearsay, [781]*781specifically testimonial, out-of-court statements, unless the declarant is unavailable and the defendant had a previous opportunity to cross-examine the declarant. Id. at 1286 (citing Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Id. at 1287 (quoting Fed. R.Evid. 801(c)). Hearsay is considered testimonial if it is “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” United States v. Baker, 432 F.3d 1189, 1203 (11th Cir.2005) (quotations omitted). The Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Jiminez, 564 F.3d at 1287.

No error, plain or otherwise,2 occurred with respect to Livingston’s testimony as to what others involved in the drug trade told him regarding Gabriel. These statements were not admitted for the truth of the matter asserted, but were to show the course of subsequent investigative action. Thus, the Confrontation Clause was not implicated. See id. Further, Mark Terrell, Hugh McCullough, and others involved in the McCullough drug conspiracy testified later during the trial regarding their statements about the Flo-rezes to law enforcement, and thus, there was minimal unfair prejudice to Gabriel by any impermissible hearsay use of the statements.

B. Telephone and bank records

Generally, business records are “by their nature [] not testimonial” hearsay. Crawford, 541 U.S. at 56, 124 S.Ct. 1354. We have held documents which are routinely recorded for a purpose other than preparation for a criminal trial are non-testimonial for purposes of the Sixth Amendment. See Caraballo, 595 F.3d at 1228-29 (holding an immigration form, used for “routine, objective cataloging of unambiguous biographical matters,” was not testimonial because it was primarily used to track the entry of aliens into the United States, and it was “of little moment that an incidental or secondary use of the interviews underlying the [ ] forms actually furthered a prosecution”).

Because no objection was made to this testimony, the record is unclear as to why the court initially admitted the telephone and bank records testimony. See Jiminez, 564 F.3d at 1288-89 (stating we will uphold the admission of testimony if it is admissible on other, non-stated grounds apparent from the record). However, the prosecutor did later rely on this evidence in his closing arguments as substantive evidence of Gabriel’s guilt, for the truth of the matter asserted, and the records were never introduced at trial. The records would have been admissible as an exception against hearsay under Federal Rule of Evidence 803(6)(B), but there is no hearsay exception for testimony about records not in evidence. Thus, it appears that an error that was plain occurred with respect to the admission of the challenged portions of Livingston’s testimony.

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Bluebook (online)
516 F. App'x 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gabriel-florez-ca11-2013.