United States v. Luis Enrique Valdes , 214 F. App'x 948 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 23, 2007
No. 05-16139 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20298-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ENRIQUE VALDES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 23, 2007)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Luis Enrique Valdes appeals his conviction for conspiracy to possess
cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 846 and
841(a)(1). Valdes makes four arguments on appeal. First, Valdes argues that his
rights under the Confrontation Clause of the Sixth Amendment were violated when
the district court allowed the Government to introduce at trial, over Valdes’s
objection, portions of tape-recorded telephone conversations between Valdes and a
confidential informant whom the Government chose not to call as a witness.
Second, Valdes argues that the Government violated its disclosure obligations
under Giglio v. United States, 405 U.S. 150, 92 S. Ct. 1763 (1972), when it failed
to turn over to him, for use at trial, impeachment evidence regarding the
Government’s confidential informant.1 Third, Valdes argues that the district court
erred in failing to give Valdes’s requested jury instruction regarding his alleged
withdrawal from the drug conspiracy. Finally, Valdes argues that the Government
violated the Equal Protection Clause of the Fourteenth Amendment under Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986),2 when it struck, allegedly on the
basis of race, three Hispanics from the pool of potential jurors. We will address
1
It is unclear whether Valdes is making an independent argument in this appeal based on
an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); but if he is, we
find that any such argument is without merit.
2
The Fourteenth Amendment does not by its terms apply to actions of the federal
government, but the Supreme Court has noted that its “approach to Fifth Amendment equal
protection claims has always been precisely the same as to equal protection claims under the
Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225,
1228 n.2 (1975).
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each argument in turn.
I. Sixth Amendment Confrontation Clause
Valdes argues that his Sixth Amendment rights were violated when the
district court allowed the Government to admit into evidence a confidential
informant’s half of tape-recorded telephone conversations with Valdes without
requiring that the Government call the informant as a witness. Valdes asserts that
the informant’s statements were testimonial hearsay inadmissible under Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
We review the district court’s decision on admissibility of evidence for an
abuse of discretion. United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002).
We review constitutional questions de novo. United States v. Brown, 364 F.3d
1266, 1268 (11th Cir. 2004).
As an evidentiary matter, the district court did not err in admitting the
informant’s recorded statements because they were not hearsay. Hearsay is an out-
of-court statement “offered in evidence to prove the truth of the matter asserted.”
Fed. R. Evid. 801(c). Statements made by Valdes in the tape-recorded
conversations, when presented by the Government, were not hearsay because they
were admissions of a party opponent. Fed. R. Evid. 801(d)(2) (a party’s own
statement offered against him is “not hearsay”). Statements made by the informant
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were not hearsay because they were admitted not to prove the truth of the
informant’s statements but to provide context for Valdes’s half of the telephone
conversations.3 See United States v. Price, 792 F.2d 994, 996 (11th Cir. 1986).
Therefore, the district court did not abuse its discretion in admitting the recorded
conversations.
Because the informant’s statements were not hearsay, and because the
Confrontation Clause “does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted,” Crawford, 541 U.S. at 59
n.9, 124 S. Ct. at 1369 n.9, Valdes’s Sixth Amendment challenge to his conviction
is without merit.4 Stated differently, because the informant’s portions of the
recordings were not admitted to prove the truth of any assertion, there was no Sixth
Amendment violation in this case. See United States v. Tolliver, 454 F.3d 660,
666 (7th Cir. 2006) (rejecting Crawford challenge to introduction of recorded
conversations made by Government informant and offered into evidence for
3
The district court in fact gave a limiting instruction to this effect as follows:
The statements of the confidential source are not being admitted as substantive
evidence. They are not being admitted for the truth of the matter asserted or the
things that the confidential source says. . . . Instead, they are being admitted
solely for the purpose of allowing you to put the statements of the other people in
context.
4
We have no occasion to determine whether the informant’s statements were testimonial
or non-testimonial.
4
purpose of putting defendant’s statements in context; noting that “aside from the
testimonial versus nontestimonial issue, a crucial aspect of Crawford, is that it only
covers hearsay, i.e., out-of-court statements ‘offered in evidence to prove the truth
of the matter asserted’”); see also United States v. Faulkner, 439 F.3d 1221, 1226
(10th Cir. 2006) (“One thing that is clear from Crawford is that the [Confrontation]
Clause has no role unless the challenged out-of-court statement is offered for the
truth of the matter asserted in the statement”).
II. The Government’s Alleged Giglio Violation
Valdes argues that his ability to impeach the confidential informant was
improperly limited. He asserts that, under Giglio v. United States, 405 U.S. 150,
92 S. Ct. 1763 (1972), the Government was required to provide impeachment
information regarding the confidential informant but failed to do so.5
“In order to succeed on a Giglio challenge, the defendant must demonstrate
that the prosecutor knowingly used perjured testimony, or failed to correct what he
5
Valdes further argues (1) that he should have been allowed to question Government
witnesses about the informant’s bias and motivation and (2) that the district court prevented him
from impeaching the informant by ruling that, should Valdes choose to call the informant as a
witness, the informant would not be designated as a hostile witness and thus Valdes could not
ask her leading questions. These arguments are without merit because the informant did not
testify, and “[t]he law is clearly established that one may not introduce evidence to impeach a
witness who does not testify.” United States v. Williams, 954 F.2d 668, 672 (11th Cir. 1992).
We review for abuse of discretion a district court’s decision to limit the scope of a party’s cross
examination, see United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996); we find no abuse
of discretion here.
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subsequently learned was false testimony, and that the falsehood was material.”
United States v. Vallejo, 297 F.3d 1154, 1163-64 (11th Cir. 2002) (internal
quotation marks omitted). Under Giglio, the Government is required to turn over
to a criminal defendant any impeachment evidence that is likely to cast doubt on
the reliability of a witness whose testimony may be determinative of guilt or
innocence. United States v. Jordan, 316 F.3d 1215, 1226 n.16, 1253 (11th Cir.
2003).
In this case, the Government had no Giglio obligation with regard to the
confidential informant. Giglio requires the Government to provide impeachment
information about testifying witnesses, and the informant did not testify as a
witness at trial. See Jordan, 316 F.3d at 1226 n.16, 1253; see also Smith v. Kemp,
715 F.2d 1459, 1467 (11th Cir. 1983). The Government’s refusal to disclose to
Valdes impeachment evidence regarding its confidential informant did not violate
Giglio.6
III. The Jury Instruction
Valdes argues that the district court erred in refusing to give a jury
6
We have thoroughly examined the transcripts of the tape-recorded conversations that
were introduced at trial and conclude that the statements made by the confidential informant
have little or no probative value in this case. Rather, it is Valdes’s own statements on the tapes,
apart from anything said by the confidential informant, that clearly demonstrate his participation
in arranging the drug transaction that was to be carried out on March 3, 2005.
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instruction on Valdes’s alleged withdrawal from the drug conspiracy. Valdes says
that he was entitled to have the district court give any jury instruction for any
theory of defense supported by the evidence, and that the basis for his requested
withdrawal instruction was that he withdrew from the conspiracy when he called
off the cocaine sale during a telephone conversation with the confidential
informant.
We review “a district court’s refusal to give a jury instruction requested by
the defense for an abuse of discretion.” United States v. Dulcio, 441 F.3d 1269,
1275 (11th Cir. 2006). “For the denial of a requested jury instruction to be
reversible error a defendant must show that the instruction: (1) was a correct
statement of the law; (2) was not adequately covered in the instructions given to
the jury; (3) concerned an issue so substantive that its omission impaired the
accused's ability to present a defense; and (4) dealt with an issue properly before
the jury.” Id. (internal quotation marks omitted).
Unlike criminal conspiracy generally, a conspiracy to commit a drug crime
prohibited by 21 U.S.C. § 846 does not require for completion the carrying out of
an overt act in furtherance of the underlying drug crime. United States v. Garcia,
655 F.2d 59, 62 (5th Cir. Unit B 1981).7 Valdes’s proposed jury instruction on
7
Decisions by a Unit B panel of the former Fifth Circuit are binding precedent in the
Eleventh Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
7
withdrawal stated that the conspiracy would not become complete until an overt act
in furtherance of the underlying drug crime was committed. Valdes wanted to
argue to the jury that he could have withdrawn from the putative conspiracy at any
time before an overt act was committed and that he did in fact withdraw from the
conspiracy before the drug transaction was complete. The jury instruction
proposed by Valdes, however, was not a correct statement of the law regarding the
type of conspiracy with which he was charged, and, therefore, the district court did
not err in refusing to give it. See Dulcio, 441 F.3d at 1275.
IV. The Batson Challenge
Valdes, a Hispanic male, argues that the Government violated Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), by using three of its four
peremptory challenges to strike other Hispanic males from the pool of potential
jurors. Valdes asserts that the use of those strikes in that manner constitutes a
prima facie case of discrimination and that the Government’s proffered race-
neutral reasons were pretextual.
We review the district court’s resolution of a Batson challenge with great
deference. United States v. Allen-Brown, 243 F.3d 1293, 1296 (11th Cir. 2001).
“A district court’s finding as to why a juror is excused is an issue of fact, and as
such, it will not be disturbed on appeal ‘unless it is clearly erroneous or appears to
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have been guided by improper principles of law.’” Id. at 1297.
“The Batson three-step procedure for evaluating an objection to a
peremptory challenge is as follows: (1) the objector must make a prima facie
showing that the peremptory challenge is exercised on the basis of race; (2) the
burden then shifts to the challenger to articulate a race-neutral explanation for
striking the jurors in question; and (3) the trial court must determine whether the
objector has carried its burden of proving purposeful discrimination.” Id.
Valdes raised his Batson objection in response to the striking of a third
Hispanic male juror from the jury pool. The district court did not clearly err in
determining that the Government’s race-neutral explanation for striking this juror
was legitimate and that Valdes had not carried his burden of demonstrating
purposeful discrimination. The reasons proffered by the Government were that the
juror was an attorney from another country and knew Valdes’s attorney. Although
the juror in question was the third Hispanic male the Government had stricken
from the jury pool, the Government had left on the jury at least three other
Hispanics. See United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995)
(“Although the presence of [Hispanic] jurors [on the empaneled jury] does not
dispose of an allegation of race-based peremptory challenges, it is a significant
factor tending to prove the paucity of the [discrimination] claim”). Valdes
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presented no argument to the district court as to why the Government’s proffered
reasons might be insufficient or pretextual, and the district court accepted the
Government’s proffered reasons, thus determining that Valdes had failed to carry
his burden of demonstrating that the Government’s use of its peremptory strike
was racially discriminatory. This finding was not clearly erroneous.
As Valdes did not request separate explanations for the Government’s
challenges to the first two Hispanic males struck from the jury, any Batson
objection to their exclusion was waived. See United States v. Cashwell, 950 F.2d
699, 704 (11th Cir. 1992).
Upon careful consideration of the parties’ briefs and a thorough review of
the record, we find no reversible error. Accordingly, Valdes’s conviction is
AFFIRMED.
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