                                                                 [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                  No. 04-13840                     MARCH 28, 2006
                            ________________________              THOMAS K. KAHN
                                                                      CLERK
                       D. C. Docket No. 03-14011-CR-KMM

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                        versus

MARIO R. FASANELLI,

                                                           Defendant-Appellant.


                            ________________________

                    Appeals from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                  (March 28, 2006)

Before BLACK, BARKETT and COX, Circuit Judges.

PER CURIAM:

      Mario R. Fasanelli appeals his conviction and 120-month sentence, imposed

following a jury trial, for possession with intent to distribute, and conspiracy to
possess with intent to distribute, 50 grams or more of a substance containing

methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and

846. On appeal, Fasanelli raises numerous evidentiary issues and contests the

sufficiency of the government’s evidence. Fasanelli further argues that his

sentence is unconstitutional in light of United States v. Booker, 543 U.S. 220

(2005).

      At trial, the key government witness against Fasanelli was John Dyal, who

had agreed to assist in the case against Fasanelli in hopes of receiving a reduced

sentence in exchange for his cooperation. Dyal arranged a series of meetings with

Fasanelli, which eventually included undercover government agents. During one of

these meetings, Fasanelli introduced the government agents to Justin Bailey and

Bailey and Fasanelli then agreed to a methamphetamine transaction which Bailey

consummated. This transaction constitutes the basis of the charges against

Fasanelli. We address each of the issues on appeal, in turn.

I. Evidentiary Issues

      Fasanelli first argues that Federal Rule of Evidence 404(b) was violated by

erroneously admitting Dyal’s testimony that prior to the date of the charged

conspiracy, he had repeatedly purchased drugs from Fasanelli and knew Fasanelli

“strictly [as a] drug dealer,” and by erroneously admitting Officer Richard



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McAfee’s testimony regarding Fasanelli’s prior state arrest and guilty plea to

charges for the sale of MDMA (“ecstacy”).

      Fasanelli also argues that permitting Agent Mitchell to testify that Fasanelli

agreed to purchase methamphetamine at a meeting with undercover agents, where

Mitchell was not present nor otherwise himself heard Fasanelli make any such

agreement, violated Federal Rule of Evidence 802 and the Sixth Amendment’s

Confrontation Clause. We review preserved evidentiary objections for an abuse of

discretion. United States v. Hernandez, 921 F.2d 1569, 1582 (11th Cir. 1991).

      A. Rule 404(b)

      Rule 404(b) does not permit the admission of “evidence of other crimes,

wrongs or acts . . . to prove the character of a person in order to show action in

conformity therewith.” Fed. R. Evid. 404(b). However, the rule provides that such

evidence “may . . . be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Id. In United States v. Matthews, 431 F.2d 1296 (11th Cir. 2005), we

recently made clear that a not guilty plea to a conspiracy charge puts intent at issue,

unless the defendant “affirmatively takes the issue of intent out of the case.” Id. at

1311 (internal quotation marks and citations omitted). We find no error in the

admission of Fasanelli’s July 2000 arrest and plea on unrelated state charges as



                                            3
evidence of intent under Rule 404(b) since Fasanelli had put his intent at issue by

pleading not guilty. For the same reason, we find no error in the admission of

Dyal’s statements concerning his prior drug-sales relationship with Fasanelli. The

district court admitted this evidence on a similar theory: that Fasanelli’s not guilty

plea placed his intent at issue; that his prior relationship with Fasanelli was relevant

to prove intent; and that Dyal’s testimony concerning their prior relationship was

necessary to complete the story of the crime, as it explained why Dyal contacted

Fasanelli under the agents’ direction.

      B. Hearsay / Confrontation Clause

      Over Fasanelli’s hearsay objection, the district court permitted agent Mark

Mitchell to testify that he “obtained an understanding” that Fasanelli agreed to sell

methamphetamine at a meeting with Bailey, Dyal, and undercover agents. Mitchell

testified that he was not part of that meeting, nor otherwise himself heard Fasanelli

make any such agreement. The district court admitted the evidence on the theory

that it was admitted to show the course of the government’s investigation, rather

than for the truth of the matter asserted. On appeal, Fasanelli challenges the district

court’s ruling on both hearsay and Confrontation Clause grounds.

      Federal Rule of Evidence 801(c) defines hearsay as “a statement, other than

one made by the declarant while testifying at the trial . . . offered in evidence to



                                            4
prove the truth of the matter asserted.” Hearsay is inadmissible. Fed. R. Evid. 803.

Hearsay testimony also violates the Confrontation Clause where it is testimonial in

nature – for example when it is “made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for use

at a later trial” – unless the declarant is unavailable and the defendant had a prior

opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 52

(2004) (internal quotation marks and citation omitted).

      The district court abused its discretion in admitting Mitchell’s testimony.

Contrary to the district court’s assumption, the record makes clear that Mitchell’s

testimony could not have been offered to explain the course of the government’s

investigation. After Mitchell testified that he “obtained an understanding” that

Fasanelli agreed to the drug sale, the government ended the direct examination. At

no point did Mitchell explain how his “understanding” of Fasanelli’s agreement to

the transaction affected or determined the course of the government’s investigation.

See United States v. Williams, 133 F.3d 1048, 1051 (7th Cir. 1998) (holding that

testimony was not admissible for the non-hearsay purpose of explaining the course

of the government’s investigation where the testimony was in fact unrelated to any

background or explanation of the investigation); cf. United States v. Hawkins, 905

F.2d 1489, 1495 (11th Cir. 1990) (testimony regarding postal complaints was



                                            5
admissible non-hearsay where it was necessary to show the progress of the

government investigation and where the district court limited testimony to the fact

that there were complaints, without permitting inquiry into the substance of the

complaints). Indeed, Mitchell’s own testimony indicated that he had limited

involvement in the government’s investigation and was in the vicinity during the

Fasanelli meeting only for the protection of the undercover agents. The admission

of Mitchell’s testimony clearly violated Rule 803 and was an abuse of discretion.

Because we find error in the admission of the testimony under Rule 803, we need

not address Fasanelli’s constitutional argument.

      This preserved evidentiary error requires reversal where it works a

“substantial influence” on the outcome of a case or leaves “grave doubt” as to

whether it affected the outcome of a case. United States v. Frazier, 387 F.3d 1244,

1266 n.20 (11th Cir. 2004) (en banc). In this case, however, the record compels a

conclusion that the admission of Mitchell’s testimony concerning Fasanelli’s

agreement to the drug sale was harmless error. While Mitchell’s testimony was

inadmissible hearsay, another government witness – detective Robert Pettit – gave

substantially identical, and admissible, first-hand testimony concerning Fasanelli’s

agreement to the methamphetamine sale. As the jury ultimately heard Pettit’s

admissible and more damaging account of his first-hand meeting with Fasanelli,



                                          6
any prejudice resulting from Mitchell’s testimony is negligible. See United States

v. Balfany, 965 F.2d 575, 582 (8th Cir. 1992) (holding that erroneous admission of

hearsay testimony was harmless where essentially the same testimony was given in

admissible form by another witness); United States v. DeLoach, 654 F.2d 763, 771

(D.C. Cir. 1980) (holding that admission of hearsay testimony was harmless where

the jury heard admissible testimony from three other sources to the same effect).

II. Sufficiency of the Evidence

      Fasanelli next argues that as to both his possession conviction and conspiracy

to possess conviction, the jury lacked sufficient evidence to return a guilty verdict.

Concerning the conspiracy conviction, Fasanelli argues that there was insufficient

evidence to show any agreement between himself and Bailey, or anyone else, to

distribute methamphetamine. He focuses in particular on Bailey’s statement that

Fasanelli had nothing to do with the offense as well as the absence of either

recorded conversations or drugs seized from Fasanelli’s person or home.

      In reviewing challenges to the sufficiency of the evidence, we draw all

inferences and credibility choices in the government’s favor, United States v.

Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005), reversing only where no reasonable

jury could have found the defendant guilty under any reasonable construction of the

evidence, United States v. Gonzales, 71 F.3d 819, 834 (11th Cir. 1996). Under this



                                           7
standard, Fasanelli’s challenge to his conspiracy conviction fails.

      At trial, Dyal testified that (1) he met repeatedly with Fasanelli and, on at

least one occasion, they discussed an acquaintance of Fasanelli’s who could provide

Dyal with methamphetamine; (2) Fasanelli identified this acquaintance as Justin

Bailey and told Dyal that Bailey, the source of methamphetamine, was en route to

South Florida; (3) Fasanelli and Dyal discussed drug transactions in coded

language, which Dyal explained to the jury; and (4) Fasanelli told Dyal that if Dyal

could not purchase the drugs by himself, they could purchase them together.

Detective Robert Pettit, who acted as an undercover agent in this operation, testified

that (5) Fasanelli and Bailey agreed to sell the charged narcotics to him; (6)

Fasanelli informed Pettit of the price of the drugs involved; (7) Fasanelli and Bailey

discussed the quality of the methamphetamine with Pettit and how best to “cut” it;

(8) Fasanelli told Pettit that he looked forward to a long business relationship with

him; (9) when Pettit indicated that he would need the drugs delivered to him,

Fasanelli told him that Bailey would “bring it up” the next day; and (10) Fasanelli

told Bailey to put the drugs in a “laser facial” device Fasanelli had bought earlier

that day. The totality of this evidence is clearly sufficient to support the jury’s

conviction for the charged conspiracy.

      As to the possession conviction, Fasanelli argues that the government never



                                            8
proved either actual possession of, nor dominion or control over, the

methamphetamine in question. However, under circuit precedent, Fasanelli may be

convicted of possession under an aiding and abetting theory provided that the

government showed that: (1) a substantive offense was committed; (2) Fasanelli

associated himself with the criminal venture; and (3) Fasanelli had the same

unlawful intent as the actual perpetrator. United States v. Perez, 922 F.2d 782, 785-

86 (11th Cir. 1991). So long as the government proves these elements, it need not

show that Fasanelli was present at the scene of the crime. Id.

      As discussed above, there was testimony at trial that Fasanelli and Bailey

agreed with government agents to the methamphetamine sale. Furthermore, trial

testimony showed that Fasanelli told the agents that the drugs would be concealed

in a laser-facial machine of his, and that he wanted the laser machine returned.

When Bailey delivered the drugs, they were packaged inside such a machine. After

Bailey’s arrest, Dyal telephoned Fasanelli to inquire as to his whereabouts.

Fasanelli then represented that Bailey was en route to the appointed meeting place.

This evidence is clearly sufficient to satisfy the elements of possession on an aiding

and abetting theory.

III. Sentencing

      Finally, Fasanelli argues that he is entitled to re-sentencing because his



                                           9
sentence involves both constitutional and statutory error under Booker, 543 U.S.

220, and that the district court erred by failing to find the guidelines

unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). The

superseding indictment had charged Fasanelli with conspiracy to possess

with intent to distribute 50 grams or more of a mixture and substance containing

methamphetamine and possession with intent to distribute 50 grams or more of a

mixture or substance containing methamphetamine. The jury completed a special

verdict form in which it found that Fasanelli’s offenses had involved 50 grams or

more of a mixture and substance containing methamphetamine.

      Fasanelli’s presumptive guidelines sentencing range, with a total offense

level 32 and a criminal history category III, was 151 to 188 months’ imprisonment.

Fasanelli was, however, also subject to a statutory mandatory minimum sentence of

ten years’ imprisonment and a statutory maximum sentence of life imprisonment

under 21 U.S.C. § 841(b)(1)(A). The district court agreed with Fasanelli’s

argument that the guidelines enhancement should not be applied and instead

sentenced Fasanelli to the lesser statutory minimum sentence of 120 months. Thus,

Fasanelli’s receipt of the ten-year statutory mandatory minimum sentence of

incarceration negates any possible plain error emanating from the district court’s

consideration of the guidelines computations applicable to Fasanelli as though they



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were mandatory.

     AFFIRMED.




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