                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 28, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-2295
          v.                                           (D. New M exico)
 DAV ID LEE TURNER,                               (D.C. No. CR-04-1849-JH)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.




I.    Introduction

      Appellant David Lee Turner w as convicted of possession with intent to

distribute 1000 kilograms or more of marijuana, in violation of 21 U.S.C. §

841(a)(1), (b)(1)(A ). In this appeal, Turner alleges his Sixth Amendment rights

were violated by the admission of testimonial hearsay statements regarding the

weight of the marijuana seized from his truck. Exercising jurisdiction pursuant to




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
28 U.S.C. § 1291, we conclude Turner has not met his burden of demonstrating

plain error and affirm his conviction.

II.   Background

      On July 19, 2004, Turner entered a border patrol checkpoint near

Alamogordo, New M exico. As Border Patrol Agent Eduardo Ortiz questioned

Turner about his citizenship, he detected a strong odor of marijuana in the cab of

Turner’s tractor-trailer rig. Ortiz directed Turner to a secondary inspection area

where Agent M att Carpela ran a drug-detecting dog around the truck. The dog

alerted to the presence of narcotics in the cab area. Carpela searched the cab and

found three duffle bags containing a substance that field-tested as marijuana.

Carpela testified he “was told by other agents” that the marijuana found in the

cab weighed 168 pounds.

      Agent Carpela also physically inspected the inside of Turner’s trailer,

discovering sixteen large, shrink-wrapped boxes which were inconsistent with the

rest of Turner’s load. Ten agents assisted Ortiz and Carpela in removing the

boxes from the trailer and Carpela testified each box was too heavy for one

person to lift. The boxes contained individually wrapped bundles of marijuana

which were weighed by the agents. Carpela was involved in opening the boxes,

placing the bundles on the scale, and restacking the bundles. Carpela testified the

total weight of the marijuana found in the trailer exceeded 1000 kilograms but

admitted on cross-examination that he did not personally calculate the total

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weight. Ortiz, however, testified that sixteen boxes were removed from the

trailer and the total weight of the marijuana in those boxes w as 3532 pounds,

which is more than 1000 kilograms. Turner did not object to the foundation of

Ortiz’s testimony and Ortiz was not cross-examined.

       DEA Agent Amy Billhymer obtained samples of the marijuana found in the

cab and trailer of Turner’s rig and sent those samples to a DEA laboratory. The

samples were analyzed by DEA forensic chemist Allayne Furguson. Relying on

the information recorded on Government Exhibit 15, Furguson testified the

marijuana seized from Turner’s cab weighed 70.7 kilograms and the marijuana

found in the trailer weighed 1344.2 kilograms. Government Exhibit 15 was

admitted into evidence without any objection from Turner and is comprised of

two documents both entitled, “Report of Drug Property Collected, Purchased or

Seized.”

       The jury found Turner guilty of the drug charge and he was sentenced to

121 months’ imprisonment. Turner then filed this appeal, challenging his

conviction.

III.   Discussion

       Turner argues his Sixth Amendment confrontation rights were violated by

the admission of testimonial hearsay offered to prove the weight of the marijuana

seized from his truck. Because Turner did not bring this alleged constitutional

error to the attention of the district court, we review for plain error. United

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States v. Solomon, 399 F.3d 1231, 1237-38 (10th Cir. 2005) (“[W]here a

Confrontation Clause objection is not explicitly made below we will not address

the constitutional issue in the absence of a conclusion that it was plain error for

the district court to fail to raise the constitutional issue sua sponte.” (quotation

omitted)). To meet his burden under the plain error analysis, Turner must show

the district court (1) committed error, (2) that was plain, and (3) affected his

substantial rights. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th

Cir. 2005) (en banc). Even if Turner can meet this burden, this court will not

notice the error unless he can also demonstrate it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotation omitted).

Because Turner is alleging constitutional error, we apply the plain error rule less

rigidly. United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001).

      In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme Court

held the Confrontation Clause of the Sixth Amendment prohibits the admission of

testimonial hearsay unless the declarant is unavailable and the defendant had an

earlier opportunity to cross-examine the declarant. Id. at 68. The Court did not

define testimonial hearsay, but stated the term “applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a former trial; and

to police interrogations.” Id. Interpreting Crawford, this court has held a

“statement is testimonial if a reasonable person in the position of the declarant

would objectively foresee that his statement might be used in the investigation or

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prosecution of a crime.” United States v. Summers, 414 F.3d 1287, 1302 (10th

Cir. 2005). Turner asserts all the Government’s evidence relating to the weight

of the marijuana found in his truck, including the testimony of Ortiz, Carpela, and

Furguson and the information on the weight of the marijuana recorded on the

documents admitted as G overnment Exhibit 15, is testimonial hearsay admitted in

violation of the Confrontation Clause. He further argues the district court’s error

in admitting the testimony was plain because it was contrary to Crawford. See

United States v. Whitney, 229 F.3d 1296, 1309 (10th Cir. 2000).

      The Government concedes both Carpela’s testimony that someone told him

the marijuana in the duffle bags w eighed 168 pounds and the information in

Government Exhibit 15 regarding the weight of the marijuana are hearsay.

However, it disputes Turner’s contention Ortiz’s testimony as to the weight of the

marijuana found in the trailer was hearsay, let alone testimonial hearsay. 1 Ortiz

did not testify he personally weighed the marijuana from the trailer. Carpela,

however, testified Ortiz was present when the boxes were unloaded and further

testified the agents weighed the bundles of marijuana as they removed them from

the boxes. Ortiz testified he helped re-stack the bundles. W hen asked the weight

of the marijuana discovered in the boxes, Ortiz answered, “3,532 pounds.”


      1
        The Government also argues Carpela’s testimony regarding the weight of
the marijuana found in the trailer w as not hearsay. W hile the merits of this
argument are debatable, it is unnecessary to address the issue to resolve this
appeal.

                                         -5-
Turner asserts Ortiz did not have first-hand knowledge of the total weight of the

marijuana but at trial he did not challenge the foundation of Ortiz’s testimony and

Ortiz w as not cross-examined on the issue. “To the extent a lack of foundation in

some answers makes it unclear whether certain testimony was based on personal

knowledge or hearsay, we conclude that admitting such evidence in the absence

of an objection [does] not constitute plain error.” United States v. Nieto, 60 F.3d

1464, 1468 (10th Cir. 1995). Because Turner’s argument has no support in the

record, we conclude the admission of Ortiz’s statement was not error.

         Having concluded it was not plain error to admit Ortiz’s testimony

regarding the w eight of the marijuana found in the trailer, it becomes unnecessary

for us to decide whether the remainder of the challenged evidence is testimonial

hearsay prohibited by Crawford. Even if we assume for purposes of this appeal

that Turner is able to satisfy the first two prongs of the plain-error test as to the

admission of that additional evidence, he cannot meet his burden under the third

prong.

         To satisfy the third prong of the plain-error test, Turner “bears the burden

of establishing the error impacted substantial rights by demonstrating the

outcome of the trial would have been different but for the error.” United States v.

Harlow, 444 F.3d 1255, 1261 (10th Cir. 2006). Accordingly, Turner must show

there is a reasonable probability that, absent the alleged error, the jury would not

have found the w eight of the marijuana exceeded 1000 kilograms. There was,

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however, a significant amount of evidence to support the jury’s finding. In

addition to Ortiz’s uncontroverted testimony that the drugs found in Turner’s

trailer weighed more than 1000 kilograms, the Government introduced

photographs of the sixteen enormous boxes removed from the trailer and the

bundles of marijuana removed from those boxes. In light of this evidence, we

cannot conclude there is a reasonable probability that, absent the alleged

testimonial hearsay, the jury would not have found the marijuana w eighed more

than 1000 kilograms.

IV.   Conclusion

      B ecause Turner cannot satisfy the third prong of the plain error test, we

affirm his conviction.



                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




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