                                                                    [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                       No. 10-10458                   DEC 27, 2010
                                   Non-Argument Calendar               JOHN LEY
                                                                         CLERK
                                 ________________________

                           D.C. Docket No. 4:09-cr-10021-KMM-1

UNITED STATES OF AMERICA,

llll                                                     lllllllllllllllll Plaintiff-Appellee,


                                            versus

CARLOS REYES,

lllllllllllllllllllll                                               Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                     (December 27, 2010)

Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:
      Carlos Reyes participated in an alien-smuggling operation that resulted in

the drowning death of a young child after the go-fast boat capsized while trying to

evade capture. Reyes was convicted by a jury of 29 counts of knowingly

encouraging and inducing 29 aliens to enter the United States in violation of 8

U.S.C. §§ 1324(a)(1)(A)(iv) and (a)(1)(B)(iv), and one count of conspiring to

encourage and induce aliens to enter the United States in violation of 8 U.S.C. §§

1324(a)(1)(A)(iv), (a)(1)(A)(v)(I), and (a)(1)(B)(iv). Reyes raises a number of

issues in this appeal. He contends that the United States Coast Guard’s situation

report is inadmissible hearsay; that admission of the situation report violates the

Confrontation Clause; and that there is insufficient evidence to support his

convictions.

                                          I.

      Reyes first contends that the admission of the Coast Guard’s situation report

at his trial was error because that report is inadmissible hearsay. The report was

admitted under the public records exception of Federal Rule of Evidence 803(8).

Reyes argues that it was not within that exception because the law enforcement

limitation to the exception applies. We review a district court’s ruling on hearsay

evidence only for an abuse of discretion. United States v. Brown, 441 F.3d 1330,

1359 (11th Cir. 2006).

                                          2
      Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). Under Rule 803(8), however, documents are not

excluded as hearsay if they are records, reports, statements, or data compilations of

public agencies containing matters observed under a duty to report. Fed. R. Evid.

803(8)(B). In criminal cases, however, the exception contained in that rule does

not cover matters observed by police officers and other law enforcement

personnel. Fed. R. Evid. 803(8). Coast Guard officers act at times as law

enforcement personnel in discharging their duties. Cf. United States v. Trujillo,

573 F.3d 1171, 1173 (11th Cir. 2009) (discussing a joint operation between the

Coast Guard and a “virtual alphabet soup of federal law enforcement agencies”).

The situation report in its unredacted form recounted all of the events of the

interdiction including the 40-minute high-speed, go-fast boat chase that ended in a

capsized boat, a rescue, and the death of a child. The situation report in that form

would almost certainly fit within the law enforcement limitation to Rule 803(8) as

a matter observed by law enforcement personnel.

      The entire situation report, however, was not introduced into evidence. The

government stripped the situation report down to a bare list of the names of the

aliens found in the water near the go-fast boat and the identification numbers

                                           3
assigned by the Coast Guard to keep track of those aliens during their detention on

the Coast Guard vessel. The situation report in that redacted form is akin to

information resulting from filling out a booking sheet and assigning a prisoner

number to someone detained at a county jail. This Court has reasoned that such

“documents recording routine, objective observations, made as part of the

everyday function of the preparing official or agency” are precisely the “type of

reliable record envisioned by the drafters of Rule 803(8).” See United States v.

Brown, 9 F.3d 907, 911–12 (11th Cir. 1993) (holding that admission of a police

custodian’s property receipt to show existence of a firearm did not violate Rule

803(8)); see also United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010)

(“[A]dmission of routinely and mechanically kept I.N.S. records, such as . . .

warrants of deportation, does not violate Rule 803(8)(B).” (quoting United States

v. Agustino-Hernandez, 14 F.3d 42, 43 (11th Cir.1994))); United States v.

Dowdell, 595 F.3d 50, 72 (1st Cir. 2010) (finding that the admission of the “rote

recitation of biographical information in a booking sheet” does violate Rule

803(8)).

      In this case the government offered evidence that matching the names of

aliens with custodial identification numbers onboard Coast Guard cutters is a

routine, non-adversarial procedure used to track individuals until they are

                                         4
transferred to other agencies in the United States or repatriated to the countries

from which they came. Recording aliens’ names and assigning identification

numbers to log and track detainees while onboard a Coast Guard vessel does not

differ in form from intake procedures performed at the local jail. Both are

“routine, objective observations, made as a part of the everyday function” of the

agency and do not violate Rule 803(8). The district court did not abuse its

discretion in admitting the situation report under Rule 803(8).1

       Reyes also contends that the names within the situation report were out-of-

court statements by the alien declarants, and those names were themselves hearsay

and should not have been admitted. But the aliens’ statements providing names

were not offered for the truth of the matter asserted—they were not offered to

prove that any alien was in fact who he said that he was. Instead, those names

were offered and admitted only to prove that the names were stated by the aliens

and that an officer recorded those names and the number of the corresponding

bracelet that was placed on each alien’s wrist for identification and tracking

purposes. That information in turn was matched with records of repatriation to


       1
          Reyes makes a passing reference and brief argument that another document, which
recorded the aliens’ repatriation to Cuba, also constituted hearsay. Even assuming that issue is
sufficiently raised, that document, like the situation report, falls within the Rule 803(8) public
records exception because it was a “document[] recording routine, objective observations, made
as part of the everyday function of the preparing official or agency.” See, Brown, 9 F.3d at 911.

                                                 5
Cuba, which was relevant to the issue of whether the aliens lacked authorization to

come to the United States. Whether an alien was repatriated to Cuba under his

correct name or a fictitious one was irrelevant.

                                          II.

      Reyes’ second contention is that admission of the situation report violated

the Confrontation Clause. We review de novo the district court’s rejection of that

issue. United States v. Lamons, 532 F.3d 1251, 1261 n.15 (11th Cir. 2008). As we

have already mentioned, the only parts of the report that were admitted were the

names the aliens gave and the identification numbers assigned to those names.

Because the names the aliens gave were not offered for the truth of the matter

asserted, it follows that cross-examination of the alien making that out-of-court

statement to determine its truth would be fruitless. Whether the alien gave a false

name is irrelevant. Put differently, if it does not matter whether the aliens were

telling the truth, then they are not testifying as “witnesses against” Reyes under the

Confrontation Clause of the Sixth Amendment. U.S. Const. Amend. VI; see also

United States v. Jiminez, 564 F.3d 1280, 1286–1287 (11th Cir. 2009) (“The

Clause . . . does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.” (alterations omitted) (quoting

Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 1369 n.9 (2004))).

                                          6
Additionally, to the extent Reyes argues that the situation report itself violates the

Confrontation Clause, both the Coast Guard officer who gathered the names from

the aliens and assigned their identification numbers and the officer who recorded

the names in the situation report testified in court. Reyes had the opportunity to

cross-examine those officers about what the aliens said, how numbers were

assigned to the names, which numbers were assigned to which names, and so

forth.

                                          III.

         Reyes also contends that the evidence was insufficient to support his

conviction for encouraging or inducing aliens to come to the United States in

violation of 8 U.S.C. § 1324(a)(1)(A)(iv), and to support his conviction for

conspiring to do that under 8 U.S.C. § 1324(a)(1)(v)(I). We review de novo the

sufficiency of the evidence, viewing all evidence, reasonable inferences, and

credibility choices in favor of the verdict. United States v. Greer, 440 F.3d 1267,

1271 (11th Cir. 2006). A jury verdict cannot be set aside “if any reasonable

construction of the evidence would have allowed the jury to find the defendant

guilty beyond a reasonable doubt.” United States v. Herrera, 931 F.2d 761, 762

(11th Cir. 1991).

                                          A.

                                           7
       The government charged Reyes with 29 counts under 8 U.S.C. §

1324(a)(1)(A)(iv), one for each alien. The elements of that statute are: “(1)

encouraging or inducing; (2) an alien; (3) to come to . . . the United States; and (4)

knowing or in reckless disregard that the alien’s coming to . . . the United States is

illegal.” Edwards v. Prime, Inc., 602 F.3d 1276, 1294 (11th Cir. 2010) (quoting

United States v. Lopez, 590 F.3d 1238, 1250 (11th Cir. 2009)); see also 8 U.S.C. §

1324(a)(1)(A)(iv). “This Court has given a broad interpretation to the phrase

‘encouraging or inducing’ in this context, construing it to include the act of

‘helping’ aliens come to . . . the United States.” Edwards, 602 F.3d at 1295.

       Reyes asserts that the evidence presented by the government is insufficient

to satisfy the first element of encouraging or inducing under that statute because

all he did was plug coordinates into a GPS and plug his phone number into a

satellite phone. He argues that including that conduct under the first element of §

1324(a)(1)(A)(iv) stretches even this Court’s broad interpretation of the phrase

“encouraging or inducing” too far.2

       Reyes’ portrayal of the evidence and his argument, however, miss the boat.

The evidence presented by the government proved at the very least that he helped


       2
         Reyes also asserts that such a broad reading renders 8 U.S.C. §§ 1324(a)(1)(A)(i) and
(a)(1)(A)(v)(II) superfluous. This Court specifically addressed and rejected those arguments in
Lopez. See Lopez, 590 F.3d at 1250–51.

                                                8
the aliens to come from Cuba to the United States. There was testimony that

Reyes was the “organizer of the trip” and made calls to Cuba to coordinate the

pickup of the aliens. There was also testimony that Reyes, in addition to providing

and initially plugging in the GPS coordinates of the pickup rendevous and

providing a satellite phone with his number programmed in it, helped the pilots via

satellite phone to reprogram the GPS when it malfunctioned while the boat was on

the high seas en route to Cuba. Without Reyes’ help, the smuggling operation

would have been back to square one because the pilots could not have guided the

go-fast boat to the rendevous point where the aliens were waiting for them. There

was also evidence that he instructed the pilots how to evade interdiction by the

Coast Guard and told them what they should do in case they got caught. That was

plenty of evidence to support Reyes’ conviction under 8 § 1324(a)(1)(A)(iv).3

                                               B.

       Reyes also argues that the government failed to produce sufficient evidence

to support his conspiracy conviction under 8 U.S.C. § 1324 (a)(1)(A)(v). He

       3
          Reyes also briefly argues that the government insufficiently proved each alien’s lack of
authorization to enter the United States. As we have already discussed, there was evidence
showing a covert smuggling operation resulting in the go-fast boat picking up 29 aliens who were
waiting for that boat in the water off the Cuban shore. En route to the United States, the go-fast
boat attempted to evade authorities, resulting in a 40-minute, highspeed chase. There was
evidence that the aliens were detained by the Coast Guard after the interdiction and that each
alien was successfully repatriated back to Cuba. That was more than enough evidence to prove
that the 29 aliens were Cuban nationals not authorized to enter the United States.

                                                9
asserts that the government presented no evidence of arrangements between Reyes

and any foreign national. The lack of any arrangement, Reyes claims, made it

impossible for him to have conspired to encourage or induce any aliens to come to

the United States in violation of 8 § U.S.C. § 1324(a)(1)(A)(iv).

      That argument is unpersuasive, because the absence of arrangements

between Reyes and any aliens is not dispositive. The elements of criminal

conspiracy are: (1) an agreement to commit a crime, (2) defendant’s knowing and

voluntary participation in the conspiracy, and (3) performance by at least one

conspirator of an overt act in furtherance of the conspiracy. United States v.

Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006). The government may show

conspiracy “by circumstantial evidence and the extent of participation in the

conspiracy or extent of knowledge of details . . . does not matter if the proof shows

the defendant knew the essential objective of the conspiracy.” United States v.

Gupta, 463 F.3d 1182, 1194 (11th Cir. 2006) (quotations marks omitted).

      Like the convictions under 8 U.S.C. § 1324(a)(1)(A)(iv), Reyes’ conspiracy

conviction under § 1324(a)(1)(A)(v)(I) is supported by ample evidence. There

was evidence that after the first departure to Cuba failed, Reyes was present at a

meeting where a new plan was put together so that the illegal smuggling trip could

be completed. Reyes also fulfilled his role in that agreed-to plan when he

                                         10
programmed the GPS, provided the satellite phone, and communicated on

numerous occasions with the pilots while they were en route to Cuba. The

evidence sufficiently showed that Reyes and the pilots agreed to commit a crime,

and Reyes, with knowledge of the plan, participated in it and committed numerous

overt acts in furtherance of it.

      AFFIRMED.




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