United States v. Rosendo Louis

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 25, 2019
• Docket: 18-15213
• Status: Unpublished

Opinion

Case: 18-15213 Date Filed: 10/25/2019 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15213 Non-Argument Calendar ________________________

D.C. Docket No. 1:11-cr-20739-DMM-4

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROSENDO LOUIS,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(October 25, 2019)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-15213 Date Filed: 10/25/2019 Page: 2 of 9

Rosendo Louis appeals the district court’s revocation of his supervised

release. He argues the district court violated his due process rights by admitting

hearsay evidence without first determining its reliability. After careful review, we

affirm.

I.

In October 2011, Louis was charged, in relevant part, with conspiracy to

possess with intent to distribute 500 grams or more of cocaine and 28 grams or

more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(B)(ii), (iii), 846.

Louis pled guilty to the charge. In June 2012, the district court sentenced him to a

57-month term of imprisonment with four years of supervised release. Louis’s

conditions of supervised release were, among other things, that he: (1) could not

commit another federal, state, or local crime; (2) could not associate with any

person engaging in criminal activity; and (3) must notify his probation officer,

within ten days, of any change in employment.

Louis’s supervised release began on October 16, 2014. On July 27, 2018,

Louis’s probation officer filed a “Petition for Warrant or Summons” in district

court, alleging Louis violated the terms of his supervised release. The probation

officer stated Louis was arrested on July 18, 2018 for trafficking 14 grams or more,

but less than 28 grams, of methamphetamines in violation of Fla. Stat.

§ 893.135(1)(f)(1)(a); trafficking 28 grams or more, but less than 200 grams, of

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methamphetamines in violation of Fla. Stat. § 893.135(1)(f)(b); and possessing

marijuana with the intent to sell in violation of Fla. Stat. § 893.13(1)(a)(2). The

probation officer also said Louis associated with a person engaged in criminal

activity and failed to inform her that he was fired from his job. The district court

suspended Louis’s supervised release pending a hearing.

Louis appeared before the district court for his revocation hearing. At the

hearing, the government called Officer Gee Bethancourt, a member of the special

enforcement team that arrested Louis. Officer Bethancourt testified that Louis’s

arrest occurred during a traffic stop. Louis was the passenger in the automobile.

The officers used a K-9 unit to sniff outside of the vehicle. Because the K-9 unit

alerted to potential narcotics, law enforcement searched the vehicle and found

methamphetamines and cocaine.

On cross examination, Officer Bethancourt revealed he was not present

during the traffic stop, did not witness the K-9 sniff, and did not take part in the

search of the automobile. He arrived over an hour after law enforcement

completed the search, and his testimony was based solely on a report completed by

another officer. But Officer Bethancourt testified that he personally put the drugs

obtained from the vehicle into evidence. Louis objected to no portion of Officer

Bethancourt’s testimony.

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The government also called Ryan Nougaret, an FBI agent. Agent Nougaret

testified to several communications between a confidential informant and Louis

about trafficking cocaine. Before Agent Nougaret testified, Louis objected on

relevancy grounds, arguing that none of Agent Nougaret’s communications with

the confidential informant related to Louis’s July 2018 arrest. He said Agent

Nougaret’s testimony concerned communications that predated his arrest and were

therefore “outside the scope of the violations alleged” by Louis’s probation officer.

The district court informed Louis that it would wait until the close of Agent

Nougaret’s testimony to consider his objection.

After hearing Agent Nougaret’s testimony, Louis renewed his objection. He

requested that Agent Nougaret’s testimony “be stricken” because his testimony

concerned incidents occurring before the July 18 traffic stop. The district court

responded that there was “a lot of hearsay” in Agent Nougaret’s testimony, but “it

seem[ed] like it would go to the issue of intent” under Federal Rule of Evidence

404(b). Louis again reiterated that he didn’t “see any relevance” in the

communications with the confidential informant. He also said Agent Nougaret’s

testimony was “just propensity evidence” and he couldn’t “imagine a permissible

404(b) reason.” Louis did not raise a specific hearsay objection at this time. The

district court overruled Louis’s objection to Agent Nougaret’s testimony.

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After the close of evidence, the district court found Louis trafficked

methamphetamines and possessed marijuana with the intent to distribute as

described in the Petition for Warrant or Summons. Further, Louis conceded he

associated with a person engaged in criminal activity and that he failed to inform

his probation officer that he was fired from his job. Because the district court

found Louis violated the terms of his supervised release, it sentenced Louis to 36-

months imprisonment.

After the district court imposed Louis’s sentence, the district court asked

whether Louis “object[ed] to the Court’s findings of fact or the manner in which

[the] sentence was pronounced.” Louis answered, stating “Our position is that the

testimony did not meet the preponderance standard, that it was based almost

entirely on hearsay and without the hearsay, through hearsay, [the government]

wouldn’t have been able to meet the burden at all.” This is Louis’s timely appeal.

II.

We must first decide the standard of review. Louis argues this Court should

review his hearsay challenge under a harmless error standard because he raised a

hearsay objection to the testimony of Officer Bethancourt and Agent Nougaret.

The government says Louis failed to raise a contemporaneous challenge and, as a

result, we should review the district court’s evidentiary ruling for plain error.

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For preserved challenges, we review the district court’s evidentiary rulings

for an abuse of discretion. United States v. Smith, 459 F.3d 1276, 1295 (11th Cir.

2006). Under this standard and if we find the district court made an erroneous

evidentiary ruling, we assess whether the error was harmless. United States v.

Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005). An error is harmless unless it

substantially influences “the outcome of a case or [leaves] grave doubt as to

whether [the error] affected the outcome of the case.” Id. (quotation marks

omitted).

But if a defendant fails to preserve his objection to an evidentiary ruling by

contemporaneously objecting, “our review is only for plain error.” United States v.

Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). “Plain error occurs where (1) there

is an error; (2) that is plain or obvious; (3) affecting the defendant’s substantial

rights in that it was prejudicial and not harmless; and (4) that seriously affects the

fairness, integrity or public reputation of the judicial proceedings.” United States

v. Hall, 314 F.3d 565, 566 (11th Cir. 2002). “A plain error is an error that is

obvious and is clear under current law.” United States v. Lange, 862 F.3d 1290,

1296 (11th Cir. 2017) (quotation marks omitted). An error cannot be plain where

no precedent from this Court or the Supreme Court has directly resolved the issue

in the defendant’s favor. See id.

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Louis’s hearsay objection was not made contemporaneous with Officer

Bethancourt’s testimony. See United States v. Turner, 474 F.3d 1265, 1276 (11th

Cir. 2007) (holding that an objection was not contemporaneous where the

defendant “had ample opportunity to lodge [the] objection during the two direct

examinations at issue but did not”). Louis made no objection to Officer

Bethancourt’s hearsay statements at the time he testified. Louis did raise an

objection when Agent Nougaret testified, but his objection went to relevance, not

hearsay. It was only after the district court sentenced Louis that he first raised a

hearsay argument.

An evidentiary objection made after the district court rendered its decision is

not contemporaneous under this Court’s precedent. See Turner, 474 F.3d at 1276;

see also United States v. Margarita Garcia, 906 F.3d 1255, 1267 (11th Cir. 2018)

(explaining that the contemporaneous objection rule “aims to provide the district

court with an opportunity to prevent or correct error”). As a result, we must review

the district court’s admission of Officer Bethancourt’s and Agent Nougaret’s

hearsay statements for plain error. See United States v. Siddiqui, 235 F.3d 1318,

1322 (11th Cir. 2000) (“In the absence of a contemporaneous objection, hearsay

claims are reviewed under the plain error doctrine.”)

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III.

Louis argues the district court erred by failing to engage in the balancing test

described in United States v. Frazier, 26 F.3d 110 (11th Cir. 1994). In Frazier, this

Court held that “[a]lthough the Federal Rules of Evidence do not apply in

supervised release revocation hearings, the admissibility of hearsay is not

automatic.” Id. at 114. Defendants in revocation proceedings “are entitled to

certain minimal due process requirements,” including “the right to confront and

cross-examine adverse witnesses.” Id. In deciding to admit hearsay evidence in

revocation hearings, the district court must therefore “balance the defendant’s right

to confront adverse witnesses against the grounds asserted by the government for

denying confrontation.” Id. The district court also must determine that the hearsay

is reliable. Id.

The district court did not plainly err in admitting Officer Bethancourt’s and

Agent Nougaret’s hearsay testimony without sua sponte conducting a Frazier

inquiry. See Lange, 862 F.3d at 1296 (holding that for a plain error, there must be

precedent from the Supreme Court or this Court directly solving the issue). In

Frazier, this Court did not resolve the issue of whether a district court must conduct

the balancing test hearsay testimony where no party requested it. See 26 F.3d at

114. Frazier addressed a defendant who raised a contemporaneous hearsay

objection, and this Court held that the district court erred by entirely failing to

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assess the reliability of the hearsay testimony and the government’s cause for not

producing the witness. Id. Frazier’s decision did not address whether a district

court is required to undertake the same analysis when a defendant fails to raise a

contemporaneous hearsay objection, or when the district court recognizes a hearsay

issue sua sponte. Indeed, Louis concedes that “[n]either this Court nor the

Supreme Court require a district court to conduct a sua sponte analysis under

Frazier.” Because this Court’s precedent does not expressly require a Frazier

inquiry absent contemporaneous objection, the district court did not plainly err

when it failed to do so. See Lange, 862 F.3d at 1296.

AFFIRMED.