                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1636
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                   Alfredo Valquier

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                              Submitted: May 16, 2019
                               Filed: August 23, 2019
                                   ____________

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
                         ____________

MELLOY, Circuit Judge.

      Defendant Alfredo Valquier (“Valquier”) appeals following his conviction for
conspiring to distribute methamphetamine. He argues the district court1 plainly erred
by admitting statements he made prior to receiving Miranda warnings and by

      1
       The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska.
admitting others’ statements in violation of the Confrontation Clause. We reject his
arguments and affirm the judgment of the district court.

                                          I.

       Officers discovered over thirty-five pounds of methamphetamine during a
traffic stop. The driver of the vehicle, Blanca Avila De Vega, agreed to participate
in a controlled delivery in Omaha. Alejandro Buendia-Ramirez and Valquier’s
brother, Carlos Valquier (“Carlos”), arrived at the delivery location with a bag
containing over $90,000, which they exchanged for a portion of the drugs. Officers
arrested Carlos and Buendia-Ramirez, gave them Miranda warnings, and interviewed
them. Carlos directed officers to a house he claimed to have recently rented and
signed a form consenting to a search of the house. Carlos also indicated that his
brother was involved but did not give the officers Valquier’s name.

       After officers arrived at the rental house, established a perimeter, and began a
search, Valquier arrived at the house. Officers approached Valquier, placed him in
handcuffs, and asked him to sit on the curb. Soon, a federal investigator named
Vincik arrived. Vincik asked Valquier who he was and what he was doing. Valquier
gave Vincik his name and stated he was considering renting the house. Recognizing
Valquier’s last name and believing him to be untruthful regarding his purpose, Vincik
accused Valquier of being involved in the drug sales and coming to the house to
retrieve drugs or money. In response, Valquier “kind of hung his head.” Vincik then
read him his Miranda warnings and placed him in a squad car. The house was mostly
empty, making it obvious that no one was living there. In an empty television
cabinet, however, officers found $19,000. Officers concluded the conspirators were
using the house as a stash house.

     Valquier was charged with conspiring to distribute methamphetamine. He
moved to suppress testimony describing the statements and gestures he made to

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Vincik outside the rental house prior to receiving his Miranda warnings. A magistrate
judge recommended denying the motion, holding that although Valquier was in
custody, the questions Vincik asked did not rise to the level of an interrogation. The
magistrate judge interpreted the questions as akin to permissible and benign requests
for information not related to an investigatory purpose. Valquier failed to object to
the report and recommendation, which the district court subsequently adopted in full.

      At trial, Vincik and other officers testified as did two co-conspirators, Avila De
Vega and Buendia-Ramirez. Valquier renewed his objections as raised in his motion
to suppress. In addition, he objected to many facets of the officers’ and co-
conspirators’ testimony on hearsay or foundation grounds. He asserted no objections
based on the Confrontation Clause.

      An officer described the initial traffic stop, the discovery of the drugs, and the
controlled delivery. Officer Vincik testified next. Over objections, Vincik testified
that Carlos told officers he had rented the house and consented to a search of the
house and that the landlord of the property stated Carlos had rented the house. The
prosecution introduced a signed consent form, and Officer Vincik testified that the
signature on the search consent form was Carlos’s signature even though Vincik had
not witnessed Carlos sign the form. Vincik described Valquier’s pre-Miranda
statements at the rental house and Valquier’s act of “hanging his head” after Vincik
accused him of being involved with drugs. In addition, Vincik explained that all co-
conspirators were arrested with one or more phones, some of which were inexpensive
“burner phones.” Finally, Vincik testified that forensic searches of the phones
revealed that Valquier’s phone had called Buendia-Ramirez’s phone twice before the
controlled delivery and several times shortly after Buendia-Ramirez’s arrest.

      Buendia-Ramirez testified that he came to Nebraska from Mexico believing he
would have work as a painter. He explained that a man in Mexico named El Tio had
paid for him to come to Nebraska. Soon after arriving, he realized there was no

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painting job—Valquier picked him up from the airport, took him to a hotel, and paid
for a room. There, several people, including Valquier and Carlos, began bringing
money to the room. Buendia-Ramirez stated that Valquier and Carlos brought a total
of approximately $15,000–$20,000 in smaller amounts and told him to count and hold
the money. At one point, Valquier and Valquier’s mother took him to the rental
house where he spent a night. Buendia-Ramirez also testified that, at El Tio’s
instruction, Buendia-Ramirez took money to the transaction that ultimately turned out
to be the controlled delivery. Buendia-Ramirez described the $90,000 used for the
transaction as accumulated funds brought to Buendia-Ramiriez by Valquier, Carlos,
their mother, and others.

       Avila De Vega testified that she had delivered drugs to Valquier in Omaha on
a separate occasion prior to the controlled delivery. Another officer, Officer Reisz
also testified. He had been involved in arranging, and was present for, the controlled
delivery. He testified about the controlled delivery and his investigation. Over
objection, he testified that the rental-house landlord had stated that Carlos rented the
house. Also over objection, he testified that he talked to the manager of the hotel
where Valquier had first rented a room for Buendia-Ramirez. The prosecution
introduced a print-out of the room registration that included a copy of Valquier’s
Nebraska driver’s license as provided at check-in.

      The jury convicted Valquier, and Valquier appeals.

                                          II.

       Valquier neither objected to the report and recommendation nor raised any
Confrontation Clause objections at trial. As such, he asserts that our review is for
plain error. Before the court will exercise its discretion to provide relief under plain
error review, there must be an error that is “clear or . . . obvious” and “affec[ts]
substantial rights.” United States v Olano, 507 U.S. 725, 734 (1993) (internal

                                          -4-
quotation marks and citations omitted). “[I]n the ordinary case,” an error affects a
defendant’s substantial rights if the defendant can “show a reasonable probability
that, but for the error, the outcome of the proceeding would have been different.”
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotation
marks and citation omitted).2

       Valquier first argues the district court erred by failing to suppress Officer
Vincik’s testimony describing Valquier’s pre-Miranda statements and actions.
“Miranda warnings are required when a suspect is interrogated while in custody.”
United States v. Aldridge, 664 F.3d 705, 711 (8th Cir. 2011). The government
concedes Valquier was in custody when seated on the curb in handcuffs. Because
Officer Vincik did not merely ask Valquier his name, but questioned him as to his
purpose based on information Vincik had previously developed, we assume for the
sake of our analysis that Officer Vincik interrogated Valquier. See United States v.
Cowan, 674 F.3d 947, 958 (8th Cir. 2012) (“A question is an interrogation if it is
reasonably likely to elicit incriminating information. Interrogation does not include
request[s] for routine information necessary for basic identification purposes.”
(alteration in original) (internal quotation marks and citations omitted)). We therefore
assume it was error to allow Officer Vincik to testify regarding Valquier’s false
explanation for his presence and his eventual hanging of his head in an apparent show
of defeat at having been caught.

      We need not opine as to whether any such error was clear or obvious because
the admission of this testimony did not affect Valquier’s substantial rights. Through


      2
        Valquier could have argued for de novo review of legal conclusions regarding
the Miranda rule, but any error would be harmless in any event. See United States v.
West, 589 F.3d 936, 938 (8th Cir. 2009) (“[B]ecause Mr. West did not object to the
magistrate’s findings of fact we review them for plain error only. But we subject the
district court’s legal conclusions to de novo review regardless of whether objections
are filed.” (citation omitted)).

                                          -5-
other testimony and evidence, the jury learned that Valquier arrived at the rental
house shortly after the controlled delivery and that his phone had placed several calls
to Buendia-Ramirez’s phone close in time to the controlled delivery. The jury also
learned that officers found $19,000 at the rental house, but little else, demonstrating
clearly that it was, in fact, a stash house. Co-conspirator testimony was particularly
damaging. Avila De Vega testified that she had delivered drugs to Valquier in
Omaha on a prior occasion. Buendia-Ramirez testified that, prior to the day of the
controlled delivery, Valquier had picked him up from the airport, rented him a hotel
room, and repeatedly delivered cash to him at that hotel room, some of which was
later used in the controlled delivery. Buendia-Ramirez also testified that Valquier
had taken him to the rental house to stay for a night. Given this other evidence, we
find no “reasonable probability that, but for the error, the outcome of the proceeding
would have been different” had the jury not heard Vincik’s testimony describing the
pre-Miranda statements. Molina-Martinez, 136 S. Ct. at 1343.

       Valquier next argues several alleged Confrontation Clause violations merit
reversal. Although he lodged hearsay and foundation objections at trial, he limits his
argument on appeal to the Confrontation Clause. His arguments, however are not
entirely clear and he does not fully explain his theory of how any alleged violations
affected his substantial rights. Valquier appears to challenge Officer Vincik’s
testimony that: (1) Carlos claimed to have rented the house, (2) Carlos consented to
the search of the house, (3) Carlos signed the consent form, (4) Carlos led officers to
the house, and (5) the landlord stated Carlos rented the house. Valquier also appears
to challenge Officer Reisz’s testimony that: (1) the landlord stated Carlos rented the
house, (2) the hotel manager printed out a form showing Valquier’s driver’s license
in response to questions about the room rented for Buendia-Ramirez, and (3)
Buendia-Ramirez stated he stayed at the hotel.

     “As made clear in Crawford[v. Washington, 541 U.S. 36, 51 (2004)], the
Confrontation Clause applies only to testimonial hearsay statements.” United States

                                         -6-
v. Holmes, 620 F.3d 836, 841 (8th Cir. 2010). The government argues Officer
Vincik’s description of Carlos’s statements concerning the rental house was offered
to describe the path of the investigation—why and how the investigation moved from
the site of the controlled delivery to the purported stash house. The Confrontation
Clause is not violated by the introduction of out-of-court statements by persons not
present for trial if the out-of-court statements are not offered for the truth of the
matter asserted. See Crawford, 541 U.S. at 59 n.9 (“The Clause also does not bar the
use of testimonial statements for purposes other than establishing the truth of the
matter asserted.”). Regardless, even if we were inclined to view Officer Vincik’s
testimony concerning Carlos, the rental house, and the landlord as statements offered
for the truth of the matters asserted therein, no such statements affected Valquier’s
substantial rights. The purpose of the rental house was obvious based on its contents,
Buendia-Ramirez’s testimony, and the path of the investigation. Any possible
inferences or conclusions based on the truth of the matters asserted in the statements
officer Vincik described were cumulative and posed no reasonable probability of
altering the outcome of the trial. We reach the same conclusion as to any possible
error in the admission of Officer Reisz’s testimony regarding the landlord, the hotel
manager, and Buendia-Ramirez.

        Finally, even if we were to reach the final prong of the plain error analysis,
nothing about the asserted evidentiary errors would merit relief. Relief pursuant to
plain error review, after all, is “permissive, not mandatory,” Olano, 507 U.S. at 735,
and we “should correct a plain forfeited error affecting substantial rights if the error
seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,”
id. at 736 (alteration in original) (internal quotation marks and citations omitted). No
such concerns are present in this case.

       We affirm the judgment of the district court.
                       ______________________________



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