United States v. Joshua Davis ( 2018 )


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  •                 Case: 17-12697   Date Filed: 07/13/2018   Page: 1 of 8
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-12697
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:16-cr-00074-WSD-JFK-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JOSHUA DAVIS,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (July 13, 2018)
    Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.
    PER CURIAM:
    Joshua Davis, a former armored truck driver for Brinks, Inc., appeals his
    convictions and sentences for theft in violation of 18 U.S.C. § 2113(b) and
    possession of stolen funds in violation of 18 U.S.C. § 2113(c). On appeal, he
    Case: 17-12697     Date Filed: 07/13/2018   Page: 2 of 8
    argues that: (1) the district court erred by admitting the out-of-court statements of
    his wife in violation of the Sixth Amendment’s Confrontation Clause; and (2) the
    district court erred in applying a sentencing enhancement for possession of a
    firearm in connection with his offense. After careful review, we affirm.
    We review evidentiary rulings for abuse of discretion, but review challenges
    to the admission of testimonial hearsay statements under the Confrontation Clause
    de novo. United States v. Caraballo, 
    595 F.3d 1214
    , 1226 (11th Cir. 2010). We
    review the district court’s factual findings for clear error, and review de novo its
    application of the law to those facts, including its interpretation and application of
    the U.S. Sentencing Guidelines. United States v. Johnson, 
    694 F.3d 1192
    , 1195
    (11th Cir. 2012). We’ve held that, if the district court has been apprised of an
    issue, considers its merits, and then issues a definitive ruling, it was properly
    preserved. See United States v. Lall, 
    607 F.3d 1277
    , 1290 (11th Cir. 2010).
    First, we are unpersuaded by Davis’s claim that the district court erred by
    admitting the out-of-court statements of his wife, Philicia Morris.        The Sixth
    Amendment guarantees a defendant the right to be confronted with the witnesses
    against him. U.S. Const. amend. VI. The Confrontation Clause prohibits the
    admission of out-of-court statements that are testimonial unless the declarant is
    unavailable and the defendant had a previous opportunity to cross-examine the
    declarant. Crawford v. Washington, 
    541 U.S. 36
    (2004). However, “if a trial court
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    admits a statement, made by an available declarant whom the defendant has not
    had the opportunity to cross-examine, for a purpose other than for the truth of the
    matter asserted, the admissibility of that statement does not violate the
    Confrontation Clause.” United States v. Jiminez, 
    564 F.3d 1280
    , 1287 (11th Cir.
    2009); see also 
    Crawford, 541 U.S. at 59
    n.9 (holding that the Confrontation
    Clause “does not bar the use of testimonial statements for purposes other than
    establishing the truth of the matter asserted”). “Testimonial” means statements
    which are usually solemn declarations made for the purpose of establishing some
    fact. 
    Crawford, 541 U.S. at 51
    . “Hearsay” refers to an out-of-court statement
    offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c).
    We’ve held that statements made by out-of-court witnesses to law
    enforcement may be admitted as non-hearsay if they are relevant to explain the
    course of the official’s 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. Hawkins, 
    905 F.2d 1489
    , 1495 (11th Cir. 1990); United States v.
    Ransfer, 
    749 F.3d 914
    , 925 (11th Cir. 2014). “It is the existence of the statement,
    not its veracity, that provides the explanation, and thus there is no reason to think
    about its admissibility in Confrontation Clause terms.” 
    Jiminez, 564 F.3d at 1287
    .
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    Alleged violations of the Confrontation Clause are subject to harmless error
    review. United States v. Carter, 
    776 F.3d 1309
    , 1328 (11th Cir. 2015). Hearsay
    errors are harmless “if, viewing the proceedings in their entirety, a court
    determines that the error did not affect the verdict, or had but very slight effect.”
    
    Id. (quotation omitted).
    In other words, harmless error occurs where it is clear
    beyond a reasonable doubt that the error complained of did not contribute to the
    verdict obtained. 
    Id. Further, a
    jury is free to disbelieve a defendant’s testimony
    and consider it substantive evidence of his guilt. United States v. Rivera, 
    780 F.3d 1084
    , 1098 (11th Cir. 2015).
    Reviewing the issue de novo, 1 we conclude that the district court did not err
    in admitting Morris’s statements. According to the evidence admitted at trial, the
    theft occurred on the evening of October 15, 2015, when Davis’s Brinks truck had
    run out of gas after a full day of servicing ATMs. While he and his co-worker,
    Naheem Carrington, waited for a tow truck, Morris (Davis’s then-girlfriend and
    later, wife) had arrived to get them food, and Davis had taken a black bag into
    Morris’s car and left. A bystander had seen Davis and called police, and upon their
    arrival, Carrington called Davis to return to the truck and mentioned money and a
    black bag. When Davis returned, the police searched Davis’s black bag and found
    1
    While the government argues that Davis failed to preserve his Confrontation Clause
    challenge below because he only objected to his wife’s testimony on hearsay grounds, the district
    court preserved the issue by delivering a definitive decision. 
    Lall, 607 F.3d at 1290
    .
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    only his employee firearm. After money was discovered missing from the ATMs
    and an investigation ensued, Davis initially denied to law enforcement officers that
    he had stolen anything. Morris was later interviewed, and she admitted that on the
    night in question, she had overheard Carrington mention a black bag on the phone,
    and in response to her questions, Davis had admitted to her that he had brought
    money into her car, she had “freaked out,” she had told Davis to get the money out
    of her car, and Davis had stuffed the money into a pink bag and threw it out the
    window. Then, in a follow-up interview, Davis admitted that he had stolen money
    that evening, had dumped most of it out of Morris’s car and into a vacant lot, and
    had returned to the lot but was unable to recover the money. Davis also admitted
    that he had taken some money from the bag before he threw it, and eventually gave
    to police $3,200 in $20 bills he had stored in his closet. On direct examination at
    trial, however, Davis denied taking any money from the ATMs in an unauthorized
    manner. On cross-examination, Davis conceded that the money he had returned to
    the FBI contained only $20 bills, but he argued that the money had come from
    side-jobs. An agent testified the bills were consistent with what would be issued
    from an ATM in that they were not crumpled or folded.
    On this record, Morris’s statements to law enforcement were not hearsay
    admitted in violation of the Confrontation Clause because the government did not
    introduce her statements to prove the truth of the matter asserted. Jiminez, 564
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    of 8 F.3d at 1287
    . Rather, they were admitted for the limited purpose of explaining
    subsequent events. For example, Morris’s command that Davis get the stolen
    money out of her car explained why he looked for somewhere to throw the money
    while she was driving and why he threw the money out the window.              They
    clarified why Davis did not have money in his bag when police searched it and the
    car after he returned to the Brinks truck. They also explained why, after Morris
    told law enforcement details about the theft, officers re-interviewed Davis and why
    he changed his story. So while Morris’s statements inculpated Davis in the theft,
    they did not amount to hearsay because it did not matter whether those facts were
    true. And because they were not hearsay, the district court was allowed to weigh
    the danger of unfair prejudice against the probative value of the statements’ non-
    hearsay purpose, and acted well within its discretion in admitting the statements.
    
    Hawkins, 905 F.2d at 1495
    ; 
    Ransfer, 749 F.3d at 925
    .
    Further, even if the court did err, the error was harmless beyond a reasonable
    doubt. 
    Carter, 776 F.3d at 1328
    . The government introduced a substantial amount
    of evidence showing that Davis had stolen the money, including his previous
    admissions to law enforcement that he had stolen the money and returned some of
    it to them, as well as video recordings of Davis servicing the shorted ATMs on the
    day they were robbed, an eyewitness account of Davis removing a black bag from
    his Brinks truck and placing it into Morris’s car, Davis’s admission on the stand
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    that he had given $20 bills to law enforcement, and testimony that the bills were
    consistent with ATM money. Moreover, Davis denied taking the money on the
    stand, and the jury chose to disbelieve his testimony and may have determined that
    it was substantive evidence of his guilt. 
    Rivera, 780 F.3d at 1098
    . In light of this
    evidence, we conclude that it is clear beyond a reasonable doubt that the
    introduction of Morris’s statements did not contribute to Davis’s guilty verdict.
    
    Carter, 776 F.3d at 1328
    . The error, if any, was harmless.
    We likewise reject Davis’s claim that the district court erred in imposing a
    sentencing enhancement.     The Sentencing Guidelines provide for a two-level
    offense increase if a defendant possessed a dangerous weapon, such as a firearm, in
    connection with his offense of conviction. U.S.S.G. § 2B1.1(b)(15)(B). We’ve
    held, in certain cases, that mere possession of a firearm during the commission of
    an offense can be sufficient to apply a sentencing enhancement. United States v.
    Jackson, 
    276 F.3d 1231
    , 1234 (11th Cir. 2001) (holding that it would be reasonable
    to apply a sentencing enhancement for mere possession “where it is reasonable to
    assume that a defendant possesses a firearm, even without using it, to prevent the
    theft of counterfeit currency in his possession”). We look at the circumstances
    surrounding the offense and firearm possession to assess whether it is reasonable to
    infer that the firearm might be used during an offense. See United States v.
    McClain, 
    252 F.3d 1279
    , 1288 (11th Cir. 2001).
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    In this case, the district court did not err in applying the enhancement nor did
    it clearly err in finding that Davis had possessed a firearm in connection with his
    offense. Although Davis never used the weapon during the theft, and was required
    to wear it as part of his uniform, the district court could and did reasonably infer
    that Davis might have used it if defending the money he had stolen had become
    necessary at some point. 
    McClain, 252 F.3d at 1288
    . The fact that Davis took the
    gun with him and placed it in the bag containing his stolen money when Morris
    picked him up further supports the inference that he carried the weapon in order to
    protect the money, because he would have been able to access it if the need had
    arisen, and he was no longer on the job at that point. 
    Jackson, 276 F.3d at 1234
    .
    Finally, the plain language of § 2B1.1 suggests that all that is required is that the
    firearm be possessed in connection with the offense, and it is undisputed that Davis
    had his gun with him all throughout the period in which he robbed the ATMs and
    then carried the money away. U.S.S.G. § 2B1.1(b)(15)(B). Accordingly, we
    affirm.
    AFFIRMED.
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