                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 10-11100                ELEVENTH CIRCUIT
                        Non-Argument Calendar              MARCH 14, 2012
                      ________________________               JOHN LEY
                                                              CLERK
                D.C. Docket No. 5:09-cr-00009-HL-CWH-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus


JONATHAN CHURCHWELL,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                     ________________________

                            (March 14, 2012)



Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:
      Jonathan Churchwell appeals his convictions for possession with intent to

distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(viii), and possession with intent to distribute a detectable

amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).

Having raised no evidentiary objections to the pertinent testimony at trial,

Churchwell argues for the first time on appeal that the Government’s introduction

of out-of-court statements by confidential informants and a law enforcement

officer violated his Confrontation Clause rights. Churchwell asserts the out-of-

court statements were testimonial and were offered to prove he was keeping

methamphetamine in a storage unit and was distributing methamphetamine from

his current residence. He contends that even if the statements explained the course

of the police investigation, the slight probative value of that non-hearsay purpose

was overwhelmingly outweighed by the danger of unfair prejudice caused by the

statements’ hearsay use. We affirm Churchwell’s convictions.

      We normally review constitutional claims de novo. United States v.

Williams, 527 F.3d 1235, 1239 (11th Cir. 2008). However, Churchwell did not

object to the pertinent testimony or argument at trial on any grounds, including the

Confrontation Clause, nor did he ask the district court for a limiting instruction.

Therefore, we review only for plain error. United States v. Jiminez, 564 F.3d

                                          2
1280, 1286 (11th Cir. 2009). Under plain error review, “[a]n appellate court may

not correct an error the defendant failed to raise in the district court unless there is:

(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). When these three conditions

are met, we may notice the error if it “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. An error affects substantial rights

if it has a “substantial influence on the outcome of a case or leave[s] grave doubt

as to whether [it] affected the outcome of a case.” United States v. Turner, 474

F.3d 1265, 1276 (11th Cir. 2007) (quotation omitted). The defendant bears the

burden of persuasion to show an effect on substantial rights, id., and if the error’s

effect on the outcome is uncertain or indeterminate, then the defendant has not met

his burden of showing an effect on substantial rights, Rodriguez, 398 F.3d at 1301.

      The Confrontation Clause of the Sixth Amendment prohibits the

introduction of out-of-court statements that are “testimonial,” unless the declarant

is unavailable and the defendant had a prior opportunity to cross-examine the

declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). However, “the

Confrontation Clause prohibits only statements that constitute impermissible

hearsay.” Jiminez, 564 F.3d at 1286. The Clause “does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

                                            3
asserted.” Id. at 1286-87 (quotation omitted). Thus, statements by out-of-court

witnesses to law enforcement officials “may be admitted as non-hearsay if they are

relevant to explain the course of the officials’ subsequent investigative actions,

and the probative value of the evidence’s non-hearsay purpose is not substantially

outweighed by the danger of unfair prejudice caused by the impermissible hearsay

use of the statement.” Id. at 1288 (quotation omitted).

      The introduction of out-of-court statements by Government witnesses did

not violate Churchwell’s Confrontation Clause rights. Although the district court

did not make any evidentiary rulings on the statements or give a limiting

instruction sua sponte, it appears the out-of-court statements were introduced for

non-hearsay purposes—to explain how investigators got involved in the case and

why they sought search warrants for Churchwell’s storage unit and his current

residence. The statements helped explain the course of the investigators’

subsequent investigative actions, and were not plainly offered for the truth of the

matter asserted. Jiminez, 564 F.3d at 1288.

      Even if the statements were offered for hearsay purposes and thus, violated

the Confrontation Clause, Churchwell has not met his burden to show a reasonable

probability that the error affected his substantial rights. This is not a very close

case where the out-of-court statements tipped the balance in favor of conviction.

                                           4
Rather, this is a case where Churchwell was found to have rented a storage unit

that contained over 50 grams of methamphetamine, and his bedroom contained

methamphetamine that was packaged in a way consistent with distribution.

Therefore, even if the jury considered the out-of-court statements for hearsay

purposes, the statements did not likely have a substantial effect on the outcome,

and any effect they did have is uncertain. Rodriguez, 398 F.3d at 1301.

Accordingly, the introduction of out-of-court statements did not constitute plain

error, and we affirm.

      AFFIRMED.




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