United States v. Mario R. Fasanelli , 172 F. App'x 313 ( 2006 )


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  •                                                                  [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 04-13840                     MARCH 28, 2006
    ________________________              THOMAS K. KAHN
    CLERK
    D. C. Docket No. 03-14011-CR-KMM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MARIO R. FASANELLI,
    Defendant-Appellant.
    ________________________
    Appeals from the United States District Court
    for the Southern District of Florida
    _________________________
    (March 28, 2006)
    Before BLACK, BARKETT and COX, Circuit Judges.
    PER CURIAM:
    Mario R. Fasanelli appeals his conviction and 120-month sentence, imposed
    following a jury trial, for possession with intent to distribute, and conspiracy to
    possess with intent to distribute, 50 grams or more of a substance containing
    methamphetamine, in violation of 
    18 U.S.C. § 2
     and 
    21 U.S.C. §§ 841
    (a)(1) and
    846. On appeal, Fasanelli raises numerous evidentiary issues and contests the
    sufficiency of the government’s evidence. Fasanelli further argues that his
    sentence is unconstitutional in light of United States v. Booker, 
    543 U.S. 220
    (2005).
    At trial, the key government witness against Fasanelli was John Dyal, who
    had agreed to assist in the case against Fasanelli in hopes of receiving a reduced
    sentence in exchange for his cooperation. Dyal arranged a series of meetings with
    Fasanelli, which eventually included undercover government agents. During one of
    these meetings, Fasanelli introduced the government agents to Justin Bailey and
    Bailey and Fasanelli then agreed to a methamphetamine transaction which Bailey
    consummated. This transaction constitutes the basis of the charges against
    Fasanelli. We address each of the issues on appeal, in turn.
    I. Evidentiary Issues
    Fasanelli first argues that Federal Rule of Evidence 404(b) was violated by
    erroneously admitting Dyal’s testimony that prior to the date of the charged
    conspiracy, he had repeatedly purchased drugs from Fasanelli and knew Fasanelli
    “strictly [as a] drug dealer,” and by erroneously admitting Officer Richard
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    McAfee’s testimony regarding Fasanelli’s prior state arrest and guilty plea to
    charges for the sale of MDMA (“ecstacy”).
    Fasanelli also argues that permitting Agent Mitchell to testify that Fasanelli
    agreed to purchase methamphetamine at a meeting with undercover agents, where
    Mitchell was not present nor otherwise himself heard Fasanelli make any such
    agreement, violated Federal Rule of Evidence 802 and the Sixth Amendment’s
    Confrontation Clause. We review preserved evidentiary objections for an abuse of
    discretion. United States v. Hernandez, 
    921 F.2d 1569
    , 1582 (11th Cir. 1991).
    A. Rule 404(b)
    Rule 404(b) does not permit the admission of “evidence of other crimes,
    wrongs or acts . . . to prove the character of a person in order to show action in
    conformity therewith.” Fed. R. Evid. 404(b). However, the rule provides that such
    evidence “may . . . be admissible for other purposes, such as proof of motive,
    opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
    accident.” 
    Id.
     In United States v. Matthews, 
    431 F.2d 1296
     (11th Cir. 2005), we
    recently made clear that a not guilty plea to a conspiracy charge puts intent at issue,
    unless the defendant “affirmatively takes the issue of intent out of the case.” 
    Id. at 1311
     (internal quotation marks and citations omitted). We find no error in the
    admission of Fasanelli’s July 2000 arrest and plea on unrelated state charges as
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    evidence of intent under Rule 404(b) since Fasanelli had put his intent at issue by
    pleading not guilty. For the same reason, we find no error in the admission of
    Dyal’s statements concerning his prior drug-sales relationship with Fasanelli. The
    district court admitted this evidence on a similar theory: that Fasanelli’s not guilty
    plea placed his intent at issue; that his prior relationship with Fasanelli was relevant
    to prove intent; and that Dyal’s testimony concerning their prior relationship was
    necessary to complete the story of the crime, as it explained why Dyal contacted
    Fasanelli under the agents’ direction.
    B. Hearsay / Confrontation Clause
    Over Fasanelli’s hearsay objection, the district court permitted agent Mark
    Mitchell to testify that he “obtained an understanding” that Fasanelli agreed to sell
    methamphetamine at a meeting with Bailey, Dyal, and undercover agents. Mitchell
    testified that he was not part of that meeting, nor otherwise himself heard Fasanelli
    make any such agreement. The district court admitted the evidence on the theory
    that it was admitted to show the course of the government’s investigation, rather
    than for the truth of the matter asserted. On appeal, Fasanelli challenges the district
    court’s ruling on both hearsay and Confrontation Clause grounds.
    Federal Rule of Evidence 801(c) defines hearsay as “a statement, other than
    one made by the declarant while testifying at the trial . . . offered in evidence to
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    prove the truth of the matter asserted.” Hearsay is inadmissible. Fed. R. Evid. 803.
    Hearsay testimony also violates the Confrontation Clause where it is testimonial in
    nature – for example when 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” – unless the declarant is unavailable and the defendant had a prior
    opportunity for cross-examination. Crawford v. Washington, 
    541 U.S. 36
    , 52
    (2004) (internal quotation marks and citation omitted).
    The district court abused its discretion in admitting Mitchell’s testimony.
    Contrary to the district court’s assumption, the record makes clear that Mitchell’s
    testimony could not have been offered to explain the course of the government’s
    investigation. After Mitchell testified that he “obtained an understanding” that
    Fasanelli agreed to the drug sale, the government ended the direct examination. At
    no point did Mitchell explain how his “understanding” of Fasanelli’s agreement to
    the transaction affected or determined the course of the government’s investigation.
    See United States v. Williams, 
    133 F.3d 1048
    , 1051 (7th Cir. 1998) (holding that
    testimony was not admissible for the non-hearsay purpose of explaining the course
    of the government’s investigation where the testimony was in fact unrelated to any
    background or explanation of the investigation); cf. United States v. Hawkins, 
    905 F.2d 1489
    , 1495 (11th Cir. 1990) (testimony regarding postal complaints was
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    admissible non-hearsay where it was necessary to show the progress of the
    government investigation and where the district court limited testimony to the fact
    that there were complaints, without permitting inquiry into the substance of the
    complaints). Indeed, Mitchell’s own testimony indicated that he had limited
    involvement in the government’s investigation and was in the vicinity during the
    Fasanelli meeting only for the protection of the undercover agents. The admission
    of Mitchell’s testimony clearly violated Rule 803 and was an abuse of discretion.
    Because we find error in the admission of the testimony under Rule 803, we need
    not address Fasanelli’s constitutional argument.
    This preserved evidentiary error requires reversal where it works a
    “substantial influence” on the outcome of a case or leaves “grave doubt” as to
    whether it affected the outcome of a case. United States v. Frazier, 
    387 F.3d 1244
    ,
    1266 n.20 (11th Cir. 2004) (en banc). In this case, however, the record compels a
    conclusion that the admission of Mitchell’s testimony concerning Fasanelli’s
    agreement to the drug sale was harmless error. While Mitchell’s testimony was
    inadmissible hearsay, another government witness – detective Robert Pettit – gave
    substantially identical, and admissible, first-hand testimony concerning Fasanelli’s
    agreement to the methamphetamine sale. As the jury ultimately heard Pettit’s
    admissible and more damaging account of his first-hand meeting with Fasanelli,
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    any prejudice resulting from Mitchell’s testimony is negligible. See United States
    v. Balfany, 
    965 F.2d 575
    , 582 (8th Cir. 1992) (holding that erroneous admission of
    hearsay testimony was harmless where essentially the same testimony was given in
    admissible form by another witness); United States v. DeLoach, 
    654 F.2d 763
    , 771
    (D.C. Cir. 1980) (holding that admission of hearsay testimony was harmless where
    the jury heard admissible testimony from three other sources to the same effect).
    II. Sufficiency of the Evidence
    Fasanelli next argues that as to both his possession conviction and conspiracy
    to possess conviction, the jury lacked sufficient evidence to return a guilty verdict.
    Concerning the conspiracy conviction, Fasanelli argues that there was insufficient
    evidence to show any agreement between himself and Bailey, or anyone else, to
    distribute methamphetamine. He focuses in particular on Bailey’s statement that
    Fasanelli had nothing to do with the offense as well as the absence of either
    recorded conversations or drugs seized from Fasanelli’s person or home.
    In reviewing challenges to the sufficiency of the evidence, we draw all
    inferences and credibility choices in the government’s favor, United States v.
    Garcia, 
    405 F.3d 1260
    , 1269 (11th Cir. 2005), reversing only where no reasonable
    jury could have found the defendant guilty under any reasonable construction of the
    evidence, United States v. Gonzales, 
    71 F.3d 819
    , 834 (11th Cir. 1996). Under this
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    standard, Fasanelli’s challenge to his conspiracy conviction fails.
    At trial, Dyal testified that (1) he met repeatedly with Fasanelli and, on at
    least one occasion, they discussed an acquaintance of Fasanelli’s who could provide
    Dyal with methamphetamine; (2) Fasanelli identified this acquaintance as Justin
    Bailey and told Dyal that Bailey, the source of methamphetamine, was en route to
    South Florida; (3) Fasanelli and Dyal discussed drug transactions in coded
    language, which Dyal explained to the jury; and (4) Fasanelli told Dyal that if Dyal
    could not purchase the drugs by himself, they could purchase them together.
    Detective Robert Pettit, who acted as an undercover agent in this operation, testified
    that (5) Fasanelli and Bailey agreed to sell the charged narcotics to him; (6)
    Fasanelli informed Pettit of the price of the drugs involved; (7) Fasanelli and Bailey
    discussed the quality of the methamphetamine with Pettit and how best to “cut” it;
    (8) Fasanelli told Pettit that he looked forward to a long business relationship with
    him; (9) when Pettit indicated that he would need the drugs delivered to him,
    Fasanelli told him that Bailey would “bring it up” the next day; and (10) Fasanelli
    told Bailey to put the drugs in a “laser facial” device Fasanelli had bought earlier
    that day. The totality of this evidence is clearly sufficient to support the jury’s
    conviction for the charged conspiracy.
    As to the possession conviction, Fasanelli argues that the government never
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    proved either actual possession of, nor dominion or control over, the
    methamphetamine in question. However, under circuit precedent, Fasanelli may be
    convicted of possession under an aiding and abetting theory provided that the
    government showed that: (1) a substantive offense was committed; (2) Fasanelli
    associated himself with the criminal venture; and (3) Fasanelli had the same
    unlawful intent as the actual perpetrator. United States v. Perez, 
    922 F.2d 782
    , 785-
    86 (11th Cir. 1991). So long as the government proves these elements, it need not
    show that Fasanelli was present at the scene of the crime. 
    Id.
    As discussed above, there was testimony at trial that Fasanelli and Bailey
    agreed with government agents to the methamphetamine sale. Furthermore, trial
    testimony showed that Fasanelli told the agents that the drugs would be concealed
    in a laser-facial machine of his, and that he wanted the laser machine returned.
    When Bailey delivered the drugs, they were packaged inside such a machine. After
    Bailey’s arrest, Dyal telephoned Fasanelli to inquire as to his whereabouts.
    Fasanelli then represented that Bailey was en route to the appointed meeting place.
    This evidence is clearly sufficient to satisfy the elements of possession on an aiding
    and abetting theory.
    III. Sentencing
    Finally, Fasanelli argues that he is entitled to re-sentencing because his
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    sentence involves both constitutional and statutory error under Booker, 
    543 U.S. 220
    , and that the district court erred by failing to find the guidelines
    unconstitutional under Blakely v. Washington, 
    542 U.S. 296
     (2004). The
    superseding indictment had charged Fasanelli with conspiracy to possess
    with intent to distribute 50 grams or more of a mixture and substance containing
    methamphetamine and possession with intent to distribute 50 grams or more of a
    mixture or substance containing methamphetamine. The jury completed a special
    verdict form in which it found that Fasanelli’s offenses had involved 50 grams or
    more of a mixture and substance containing methamphetamine.
    Fasanelli’s presumptive guidelines sentencing range, with a total offense
    level 32 and a criminal history category III, was 151 to 188 months’ imprisonment.
    Fasanelli was, however, also subject to a statutory mandatory minimum sentence of
    ten years’ imprisonment and a statutory maximum sentence of life imprisonment
    under 
    21 U.S.C. § 841
    (b)(1)(A). The district court agreed with Fasanelli’s
    argument that the guidelines enhancement should not be applied and instead
    sentenced Fasanelli to the lesser statutory minimum sentence of 120 months. Thus,
    Fasanelli’s receipt of the ten-year statutory mandatory minimum sentence of
    incarceration negates any possible plain error emanating from the district court’s
    consideration of the guidelines computations applicable to Fasanelli as though they
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    were mandatory.
    AFFIRMED.
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