                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         May 16, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff-Appellee,                       No. 06-3320
          v.                                             (D . of Kan.)
 SIGIFREDO SAENZ,                               (D.C. No. 05-CR-10245-JTM )

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, B ALDOCK , and TYM KOVICH, Circuit Judges.


      Sigifredo Saenz appeals his conviction on three counts of distributing

methamphetamine and one count of conspiracy to distribute methamphetamine.

He argues that the district court comm itted reversible error by admitting

testimony from a police officer that a non-testifying co-conspirator implicated

Saenz in the conspiracy. This testimony, he claims, violated his rights under the

Confrontation Clause of the Sixth Amendment and was otherwise inadmissible

hearsay.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      W e find no reversible error and AFFIRM the district court.

                                  I. Background

      In October 2005, the Drug Enforcement Administration (DEA) in W ichita,

Kansas was contacted by a cooperating source (CS) and began investigating

possible methamphetamine trafficking activities in the area, specifically north of

W ichita in Newton, Kansas. A DEA task force began conducting drug buys and

surveilling suspected co-conspirators. These initial activities focused police

attention on Saenz’s residence and the Newton Radiator Shop, which appeared to

be the source of the drugs. Jose Lara owned the radiator shop.

      As part of the operation, the CS along with a DEA undercover agent

contacted Howard Richey, the initial target of the investigation, to set up the

purchase of a half-pound of methamphetamine. Richey arranged to involve an

associate, Gabriel Eggleston, in the transaction.

      On November 14, Richey called the CS and informed him he was driving to

“his guy’s house.” Police observed Richey arrive at Saenz’s residence, enter, and

leave a short time later. At this point, Richey called the CS to tell him the

transaction would have to take place later, and Richey returned to his apartment.

Richey left his apartment later that day with Eggleston, and the two returned to

Saenz’s house. The men left Saenz’s house with Richey and Eggleston in one car

and Saenz in another. They all drove to the Newton Radiator Shop and stayed

about twenty minutes. That evening, Richey told the CS by phone that he had the

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drugs but could not weigh them accurately, so they would have to make the

exchange the next day.

      The transaction did not take place on November 15 either. But police

observed Richey meet with Eggleston at Richey’s apartment, and later both met at

Eggleston’s residence and then drove separately to a grocery store in Newton

where they again rendezvoused. M eanwhile, officers stopped Eggleston’s car and

performed a canine drug search. Although the dog gave a positive response,

officers did not find any drugs. Eggleston later said he knew he was being

followed and had dropped the drugs off with Justin Lehrman, another co-

conspirator. Lehrman corroborated Eggleston’s testimony at trial. Also on

November 15, officers executed a search warrant for Saenz’s residence. They

recovered three small bags of methamphetamine, a scale, and several rounds of

ammunition.

      Officers finalized the drug transaction with Eggleston on November 16.

The undercover DEA agent called Eggleston and arranged for him to leave the

drugs on the front passenger seat of a car parked in a W al-M art parking lot.

Officers observed Eggleston and Lehrman leave Eggleston’s apartment and drive

to Lehrman’s house. They observed Eggleston and Lehrman go into the house

and then leave in separate cars and drive to W al-M art. Eggleston and Lehrman

parked and entered the store. Officers recovered the drugs from Lehrman’s car

and then arrested both Eggleston and Lehrman as they left W al-M art. Both men

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agreed to cooperate and gave statements implicating Saenz. Richey was also

arrested on November 16 and later implicated Saenz in the conspiracy.

      Saenz was arrested on November 17. That same day, officers searched the

Newton Radiator Shop. They found aluminum foil containing cocaine and a

plastic bag containing cocaine in a trash can. Officers interviewed the owner,

Jose Lara, and Lara also implicated Saenz.

      Evidence collected during the investigation and surveillance, including

pictures, videotape, and telephone conversations, were all admitted against Saenz

at trial. Furthermore, testimony from Richey, Eggleston, and Lehrman

established Saenz sold methamphetamine to Richey who sold it to other

distributors. Richey testified that Saenz would go to Texas about once a week

and return with methamphetamine. W hen Saenz left town, he would leave the

methamphetamine for Richey at the Newton Radiator Shop.

      Casey W atkins, a narcotics officer for the N ewton Police Department, also

testified at trial about the officers’ search of the radiator shop. On cross

examination, defense counsel asked W atkins a number of questions focusing on

the responsibility of Jose Lara for the drugs found at the shop. On redirect

examination, the following exchange took place between the prosecutor and

W atkins regarding the information provided by Jose Lara:

      [PROSECUTOR]: Did he implicate anyone in this investigation?
      [DEFENSE COUNSEL]: I object. Calls for hearsay.
      [PROSECUTOR]: He opened the door, Your Honor.

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      THE COURT: It’s overruled.
      [D EFENSE COUNSEL]: Your Honor --
      THE COURT: No, M r. Gradert. It’s overruled. He can answer the
      question.
      [PROSECUTOR]: Did he implicate anyone in this investigation?
      [W ATKINS]: Yes, ma’am.
      [PROSECUTOR]: W ho?
      [W ATKINS]: Sigifredo Saenz.

R. Vol. V at 356.

      Jose Lara did not testify at the trial.

                                    II. Discussion

      Saenz argues the W atkins testimony implicating him in the conspiracy

should not have been admitted into evidence, under two theories. First, the

testimony violated his right under the Confrontation Clause of the Sixth

Amendment to be confronted by the witnesses against him, and, second, the

testimony is inadmissible hearsay.

      A. Confrontation C lause

      Under the Sixth Amendment, a criminal defendant has the right “to be

confronted with the witnesses against him.” U.S. Const. amend. VI. The

Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004),

created a new standard for the admissibility of hearsay evidence that implicates

the C onfrontation Clause. Under Crawford, “testimonial” out-of-court statem ents

are barred at trial unless the declarant is unavailable and the defendant had a prior

opportunity to cross-examine the declarant about those statements. Id. at 67.



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      Though the Supreme Court has not yet defined the outer limits of

“testimonial” statements, in Crawford it included as testimonial hearsay

“[s]tatements taken by police officers in the course of interrogations.” Id. at 52.

And we have clarified that 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 prosecution of a crime.” United States v. Summers,

414 F.3d 1287, 1302 (10th Cir. 2005).

      The government does not argue that Lara’s statements implicating Saenz

were not testimonial, so we assume that Crawford applies for purposes of this

discussion. Nor does the government argue that Lara was unavailable to testify or

that Saenz had an opportunity to cross-examine him. But even assuming an error

occurred under Crawford when the district court admitted the testimony, we still

must assess the effect of the evidence on Saenz’s conviction.

      Saenz concedes that he did not object to the testimony on Confrontation

Clause grounds at trial. W here a defendant fails to explicitly object on

Confrontation Clause grounds, we review the constitutional issue for plain error.

United States v. Solomon, 399 F.3d 1231, 1237–38 (10th Cir. 2005) (holding

hearsay objection does not encompass Confrontation Clause objection).

Nevertheless, because Saenz alleges constitutional error and his counsel mitigated

the failure to object on Confrontation Clause grounds by objecting on related

hearsay grounds, we will apply the plain error rule less rigidly and closely

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scrutinize the record. See United States v. M agallanez, 408 F.3d 672, 683 (10th

Cir. 2005); United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir. 1991).

      “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403

F.3d 727, 732 (10th Cir. 2005) (internal quotations omitted). Generally, an error

affects substantial rights only if it “affected the outcome of the district court

proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993) (discussing the

plain error standard in Fed. R. Crim. P. 52(b)); United States v. Portillo-Vega,

478 F.3d 1194, 1202 (10th Cir. 2007) (quoting Gonzalez-Huerta, 403 F.3d at

732–33 (10th Cir. 2005)). And even when a plain error affects the outcome of a

trial, under the fourth element the defendant still bears the burden of showing that

an exercise of our discretion is necessary to correct the error because of its

serious effect on the integrity of the proceedings. United States v. Dazey, 403

F.3d 1147, 1178 (10th Cir. 2005).

      Saenz contends that W atkins’s testimony affected his substantial rights and

seriously affected the fairness, integrity, and public reputation of the proceedings

against him. W e disagree.

      As to the substantial rights prong, the government offered ample evidence

to convict Saenz even without the challenged statement. Three co-conspirators

testified at trial and implicated Saenz in the methamphetamine conspiracy. These

                                          -7-
witnesses purchased large amounts of methamphetamine from Saenz and through

Saenz’s distributor which they then redistributed to other buyers. Additional

evidence from law enforcement officers about the surveillance and the observed

drug transactions included pictures, videotapes, and telephone conversations, all

of which established Saenz’s role in the conspiracy. In context, the brief

statement in redirect examination that Lara implicated Saenz was cumulative and

added nothing substantive to the evidence against him.

      Saenz suggests the challenged testimony was particularly prejudicial

because the jury would give additional weight to Lara implicating Saenz in the

conspiracy because of a family relationship. Although Saenz does not indicate

where evidence of the relationship was introduced at trial since the witnesses

questioned about the relationship denied knowing exactly how Lara and Saenz

were related, Saenz asserts Lara is related to his wife. But given the substantial

evidence offered against Saenz, an undefined family relationship between Lara

and Saenz’s wife carries little weight. Even considering the unsubstantiated

family relationship, the unelaborated statement by the officer has minimal

significance when balanced against the specific details of the conspiracy offered

by the testifying co-conspirators and the investigating officers. In sum, the

admission of Officer W atkins’s statement did not affect the outcome of the trial.

      Even if the error had some effect on Saenz’s substantial rights, it still

would not satisfy the fourth prong of plain error review. The fourth prong

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requires that the error draw into question the integrity, fairness, or public

reputation of judicial proceedings. The admitted statement does not rise to this

level. W e have already discussed the relative insignificance of the challenged

testimony in the larger context of the trial. An objective public observer would

hardly consider the proceedings unfair. See United States v. Perez, 989 F.2d

1574, 1583 (10th Cir. 1993) (noting that even constitutional errors are not

prejudicial per se).

      Admission of the testimony in violation of Crawford therefore did not

affect Saenz’s substantial rights or implicate the integrity of his trial.

Accordingly, the district court committed no plain error.

      B. H earsay

      Saenz also argues that the challenged testimony was inadmissible hearsay

under the Federal Rules of Evidence. Saenz objected on hearsay grounds at trial,

and we “appl[y] a harmless error standard when reviewing trial courts’ rulings on

hearsay objections resting solely on the Federal Rules of Evidence.” United

States v. Resendiz-Patino, 420 F.3d 1177, 1181 (10th Cir. 2005). W e will again

assume that admitting the testimony was error.

      An error is harmless if it “does not have a substantial influence on the

outcome of the trial; nor does it leave one in grave doubt as to whether it had

such effect.” Id.      Under harmless error analysis, unlike review for plain error,

the government bears the burden of persuasion with respect to whether the

                                            -9-
defendant w as prejudiced by the error. Olano, 507 U.S. at 734. Having carefully

reviewed the entire record, for the reasons discussed above we are satisfied that

the error did not affect the outcome of the trial.

      In short, Saenz would have been convicted even if W atkins had not referred

to Lara’s out-of-court statement.

                                    III. Conclusion

      Because we find no reversible error, w e AFFIRM the district court.

                                                      Entered for the Court

                                                      Timothy M . Tymkovich
                                                      Circuit Judge




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