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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12434
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00138-TWT-CMS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR AGUIRRE-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 14, 2019)
Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.
PER CURIAM:
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Victor Aguirre-Rodriguez appeals his convictions after a jury trial for
conspiracy to possess with intent to distribute methamphetamine, in violation of
21
U.S.C. §§ 841(b)(1)(A)(viii) and 846, and aiding and abetting possession with
intent to distribute, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). He
contends that the district court erred by not allowing him to present to the jury two
letters and a photograph that he says would have rebutted the government’s
portrayal of him as a high-level drug trafficker and supported his theory that the
government prosecuted the wrong “Victor.” The letters were from his former
employers in Nayarit, Mexico, and purported to show that he worked as a tortilla
maker and hotel bellhop during the time of the alleged conspiracy; the photograph
was a picture of him in a bellhop uniform. The letter from the tortilla factory
owner was notarized by an attorney in Mexico, while the other letter and the
photograph were not sworn to or notarized at all. The district court sustained the
government’s hearsay objection and rejected Aguirre-Rodriguez’s argument that
the letters and photograph should be admitted as foreign records of regularly
conducted activity under
18 U.S.C. § 3505.
Aguirre-Rodriguez contends that the district court abused its discretion by
not admitting the evidence and that his constitutional right to assert a complete
defense was thereby violated. We review for an abuse of discretion the district
court’s evidentiary ruling, and we review de novo whether the district court
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deprived Aguirre-Rodriguez of his constitutional right to present a complete
defense. See United States v. Mitrovic,
890 F.3d 1217, 1220 (11th Cir. 2018).
“We have explained that it is axiomatic that a defendant’s right to present a full
defense does not entitle him to place before the jury irrelevant or otherwise
inadmissible evidence.” United States v. Rushin,
844 F.3d 933, 941 (11th Cir.
2016) (quotation marks omitted).
18 U.S.C. § 3505, the provision on which Aguirre-Rodriguez relies, allows
the admission of a “foreign record of regularly conducted activity,” which is
defined as “a memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, maintained in a foreign country.”
Id. § 3505(c)(1). In order for such a record to be admissible, the statute requires a
“foreign certification” that (A) the “record was made, at or near the time of the
occurrence of the matters set forth, by (or from information transmitted by) a
person with knowledge of those matters”; (B) the “record was kept in the course of
a regularly conducted business activity”; and (C) “the business activity made such
a record as a regular practice.” Id. § 3505(a)(1)(A)–(C). A “foreign certification”
is “a written declaration made and signed in a foreign country by the custodian of a
foreign record of regularly conducted activity or another qualified person that, if
falsely made, would subject the maker to criminal penalty under the laws of that
country.” Id. § 3505(c)(2). Because Congress designed the statute to track the
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business records exception to hearsay in Federal Rule of Evidence 803(6), we
interpret § 3505 “in the same manner as the comparable language in Rule 803(6) is
interpreted.” United States v. Ross,
33 F.3d 1507, 1515 (11th Cir. 1994)
(quotation marks omitted).
Aguirre-Rodriguez asserts that the sworn letter from his former employer
stating that he worked as a tortilla maker from 2009 through 2015 constituted a
foreign record of regularly conducted activity under § 3505(a).1 That letter
included a copy of the factory owner’s photo identification and was notarized by
an attorney in Mexico. According to Aguirre-Rodriguez, because notaries in
Mexico are subject to more stringent requirements than are notaries in the United
States, the letter “was the substantial equivalent of the certification and
authentication requirements of
18 U.S.C. § 3505” and should have been admitted.
We disagree. No matter the additional credentialing of the Mexican notary
public, his sign off does not do away with the requirements of § 3505(a)(1) that a
foreign certification attest that the record was “kept in the course of a regularly
conducted business activity” and that “the business activity made such a record as
a regular practice.” See
18 U.S.C. § 3505(a)(1)(B), (C). Even if we view the letter
1
Aguirre-Rodriguez argued at trial that the unsworn letter and photograph attesting to
his employment as a bellhop were also admissible, but he does not repeat these arguments on
appeal except in passing. “Passing references to issues are insufficient to raise a claim for
appeal,” so we deem those arguments abandoned. See Lapaix v. U.S. Att’y Gen.,
605 F.3d 1138,
1145 (11th Cir. 2010).
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as both a business record and a certification rolled into one, there is still nothing in
the letter that certifies that it was kept in the course of a regularly conducted
business activity or that such an activity made the creation of similar letters a
regular practice. See
id.
It is more natural, of course, to view the letter only as a deficient foreign
certification and not also as the record itself. Section 3505 was intended to create a
“simple, inexpensive substitute for the cumbersome and expensive procedures” of
Rule 803(6). Ross,
33 F.3d at 1515 (quotation marks omitted). That Rule requires
that a record custodian testify in court about the creation and maintenance of the
business record. Fed. R. Evid. 803(6). The foreign certification process of § 3505
stands in for the need for live testimony, but it does not lessen the requirements of
the custodian’s certification or that there actually be a record about which the
custodian is testifying. See Ross,
33 F.3d at 1515.
Aguirre-Rodriguez concedes that the letter might not be admissible under
Rule 803(6) for this reason, but argues that § 3505 is broader than Rule 803(6) and
that the letter “fits well within the broad definition of a memorandum or a report as
set forth in
18 U.S.C. § 3505(c)(1).” The problem for Aguirre-Rodriguez, though,
is not that a letter can never be a business record under § 3505 (or Rule 803(6), for
that matter). It is that he did not show that this letter was such a record.
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We also conclude that even if the district court erred, any error was harmless
because the exclusion did not affect Aguirre-Rodriguez’s substantial rights. See
United States v. Langford,
647 F.3d 1309, 1323 (11th Cir. 2011); United States v.
Caldwell,
776 F.2d 989, 1003 (11th Cir. 1985) (“The harmless error doctrine
operates in the realm of the admissibility of evidence, and where the trial judge
erroneously excluded evidence, we must first determine what the evidence would
have been and then determine whether the trier of fact would have found the
defendant guilty beyond a reasonable doubt with the additional evidence
inserted.”) (quotation marks omitted). At trial the government played numerous
recorded phone conversations where a person named Victor used a cell phone in
Nayarit, Mexico, to talk with Aguirre-Rodriguez’s former prison cellmate about
arranging a methamphetamine transaction in Atlanta. The former cellmate testified
that the person on the phone was Victor Aguirre-Rodriguez. A translator also
testified that the voice from those recordings matched the voice heard on recorded
phone calls that were made using Aguirre-Rodriguez’s personal identification
number when he was in prison. In light of this evidence identifying Aguirre-
Rodriguez as the “Victor” on the cell phone calls, we are “convinced beyond any
reasonable doubt that the exclusion of [the notarized letter] would not have altered
the jury’s verdict.”
Id. This is another reason Aguirre-Rodriguez’s constitutional
claim that he was unable to present a complete defense fails. See United States v.
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Hurn,
368 F.3d 1359, 1367 (11th Cir. 2004) (“[E]vidence introduced to ‘complete’
a potentially misleading story offered by the government is pertinent only when it
might color a jury’s assessment of the material facts of the case.”).
AFFIRMED.
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