                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              MAR 30, 2006
                               No. 05-12847                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 04-20323-CR-PAS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

EDWARD ANDREW GRANA,

                                                           Defendant-Appellant.


                         ________________________

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

                              (March 30, 2006)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

     Edward Grana appeals his conviction by a jury of theft of approximately
$320,000 in United States currency belonging to the Bureau of Engraving and

Printing, in violation of 18 U.S.C. §§ 641 and 2. He raises two arguments on

appeal. First, Grana argues that the district court abused its discretion and violated

his Sixth Amendment rights by restricting his the scope of his cross-examination of

government witnesses.1 As to this argument, he takes issue with the district court’s

ruling that he could not reference on cross-examination recordings made by

government witnesses Luis Valentin, Sergio Sanchez, and Elbin Delcid. He claims

that the fact that “the witnesses made the recordings was pertinent to [their]

credibility as to bias and motive to lie.” Grana further argues that the district court

erred by precluding him from cross-examining Valentin and Sanchez regarding

Valentin’s attempts to get Sanchez to engage in drug transactions. He argues that

the district court erred by failing to allow him to question Sanchez as to whether he

was aware that Grana intended to rent a storage unit before the theft took place.

           Grana’s second argument is that the district court coerced the jury into

returning a verdict by releasing them on a Friday with instructions to return to

continue deliberations the following Monday because it “improperly suggested that

[the court] expected a verdict,” unlike the Allen 2 charge given by the court the

       1
         Grana also states, generally, that his Fifth Amendment right to a fair trial was violated
by the alleged errors set forth in the first issue he raises on appeal. However, he does not explain
how his Fifth Amendment rights were violated, and no such basis is apparent.
       2
           Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)

                                                  2
previous day. He contends that “the cumulative effect of the trial court’s refusal to

acknowledge [the jury’s] genuine inability to reach an agreement, along with the

trial court’s supplemental instruction prior to releasing the jury for the weekend,

improperly coerced the jury to reach their verdict.”

      Each argument is addressed in turn.

                                          I.

      To prove a violation of 18 U.S.C. § 641, the government has the burden to

show that: (1) the defendant fraudulently appropriated money or property to his

own use or the use of others; (2) the money or property belonged to the

government; and (3) the defendant did so knowingly and willfully with the intent

either temporarily or permanently to deprive the government of use of the money

or property. See 18 U.S.C. § 641; United States v. McRee, 7 F.3d 976, 980

(11th Cir. 1993).

      The Confrontation Clause provides that: “In all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI. The Supreme Court has determined that this provision

serves to “ensure the reliability of the evidence against a criminal defendant by

subjecting it to rigorous testing in the context of an adversary proceeding before

the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163,



                                           3
111 L.Ed.2d 666 (1990). Included in the Confrontation Clause’s guarantee is that

witnesses against an accused must submit to cross-examination. Craig, 497 U.S. at

845-46, 110 S.Ct. at 3163. However, the Sixth Amendment right to confrontation

is not absolute. United States v. Deeb, 13 F.3d 1532, 1537 (11th Cir. 1994).

Specifically, the Confrontation Clause “guarantees only ‘an opportunity for

effective cross-examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.’” Kentucky v. Stincer,

482 U.S. 730, 739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631 (1987) (citation omitted).

A defendant’s rights under the Confrontation Clause are protected as long as

“cross-examination exposes the jury to facts sufficient to evaluate the credibility of

the witnesses and enables defense counsel to establish a record from which he can

properly argue why the witness is less than reliable.” Mills v. Singletary, 161 F.3d

1273, 1288 (11th Cir. 1998). Once there is sufficient cross-examination to satisfy

the Confrontation Clause, the district court may limit further cross-examination

within its discretion. United States v. Diaz, 26 F.3d 1533, 1539 (11th Cir. 1994).

      The Confrontation Clause requires the admission of impeachment evidence

if “a reasonable jury would have received a significantly different impression of

the witness’ credibility had counsel pursued the proposed line of

cross-examination.” United States v. Garcia, 13 F.3d 1464, 1469 (11th Cir.1994).



                                           4
      In Diaz, we held that a district court did not violate the Confrontation Clause

or abuse its discretion by prohibiting cross-examination of a government witness

regarding a prior arrest and a related investigation and civil action, notwithstanding

the defendants’ contention that incident gave the witness motive to testify

favorably for government, in part because the defendants were allowed to delve

into witnesses credibility by inquiring if he had any reason to “curry favor” with

the government. Diaz, 26 F.3d at 1539. We have also held that a defendant’s

Confrontation Clause rights were not violated by the district court’s refusal to

admit evidence regarding a witness’ past criminal history because extensive

impeachment evidence was already presented. United States v. Burston

13 F.3d 1464, 1336-37 (11th Cir. 1998).

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

at the trial or a hearing, offered into evidence to prove the truth of the matter

asserted. Fed.R.Evid. 801(c). Generally, hearsay is inadmissible. Fed.R.Evid. 802.

Among the exceptions to the general rule is that the district court may allow

evidence of a statement that is otherwise hearsay when the purpose is to establish

the declarant’s state of mind. Fed.R.Evid. 803(3).

      When a party properly preserves its claim, we review the district court’s

evidentiary rulings for an abuse of discretion. United States v. Jiminez,



                                            5
224 F.3d 1243, 1249 (11th Cir. 2000). We will reverse an erroneous evidentiary

ruling “only if the resulting error was not harmless.” United States v. Hands, 184

F.3d 1322, 1329 (11th Cir. 1999), corrected by 194 F.3d 1186 (11th Cir. 1999); see

also Fed.R.Crim.P. 52(a) (noting that errors that do not affect substantial rights

must be disregarded). An error is harmless unless “there is a reasonable likelihood

that [it] affected the defendant’s substantial rights.” United States v. Hawkins, 905

F.2d 1489, 1493 (11th Cir.1990). We need not reverse a conviction if the

evidentiary error “had no substantial influence on the outcome and sufficient

evidence uninfected by error supports the verdict.” United States v. Fortenberry,

971 F.2d 717, 722 (11th Cir. 1992).

      As to his Confrontation Clause argument, on cross-examination of Valentin,

Grana ascertained that he had been involved in drug sales, and had cooperated with

the government in an effort to get his brother out of prison early. He questioned

whether Valentin and his brother concocted the story about Grana stealing the

currency, and whether he was angry with Grana. Valentin stated during

cross-examination that he had cooperated with the government during its

investigation. Grana also ascertained that Valentin had previously lied to obtain

money in connection with past drug transactions and that he had confessed these

crimes to the government but had not been prosecuted. Finally, he questioned



                                           6
whether Valentin had a record of $500 of the stolen currency that he claimed Grana

gave him.

      Grana also questioned Delcid about the events that he claimed to have

witnessed on the date of the theft, and Delcid admitted cooperating with the

government. On his cross-examination, Sanchez admitted that he had sold drugs

to both Grana and Valentin. He also admitted that he was afraid of being arrested

and incarcerated for his drug activity. Sanchez verified that he had cooperated

with the government, but refused to speak with an investigator acting on Grana’s

behalf. Grana also questioned whether Sanchez believed that he could avoid jail

by cooperating with the government, and Sanchez admitted that he was angry at

Grana for not paying him all of the money due on a paint job.

      In sum, Grana’s cross-examination of these government witnesses addressed

their prior drug use, motives to lie, versions of events, and cooperation with the

government. See Burston 159 F.3d at 1336-37. A reasonable jury’s evaluation of

the witnesses’ credibility would not have been significantly different had the

recorded conversations or testimony about them been introduced, especially to the

extent that Grana sought to introduce them to show that the witnesses cooperated

with the government, as that fact was clearly established. See Garcia, 13 F.3d at

1469. The district court’s limitation of the examinations by refusing to allow



                                          7
evidence of the audiotapes, therefore, was not an abuse of discretion in this respect.

See Diaz, 26 F.3d at 1539.

      As to the hearsay issues, at trial, Grana attempted to elicit and admit into

evidence testimony from Sanchez regarding statements Grana allegedly made prior

to the date of the theft that he wished to obtain a storage unit. Grana argued that

this evidence would tend to refute the government’s claim that he wanted to rent

the unit to store the stolen currency. The district court sustained the government’s

objection on hearsay grounds, finding that the statements were offered for their

truth, and not - as Grana argued - to show “state of mind” or “intent.” Grana also

filed a motion in limine to introduce evidence of Valentin’s “silence” on one

audiotape, claiming that this undermined Valentin’s credibility, but the court

denied his motion on the basis that the tape was inaudible, and otherwise on

hearsay grounds.

      Assuming arguendo that the district court erred by failing to admit this

evidence as hearsay, it was harmless in light of the evidence against Grana at trial.

See Fortenberry, 971 F.2d at 722. Specifically, Valentin and Sanchez testified that

Grana had confessed to stealing the currency. Valentin testified that Grana told

him in detail how he obtained the currency, and that he had previously considered

committing such a crime if the opportunity arose. Valentin’s version of the theft,



                                           8
as told to him by Grana, was corroborated by a government agent’s version of the

suspected manner of the theft. There was also testimony that security records

showed that Grana exited an employee checkpoint, where he was not searched, into

a public area, and re-entered through the same check point shortly thereafter on the

date and around the time of the theft. Accordingly, there was ample evidence upon

which the jury could have found Grana guilty of knowingly and willfully taking

money that belonged to the government with the intent to deprive the government

of its use, in violation of § 641. See 18 U.S.C. § 641; McRee, 7 F.3d at 980.

      Based upon the foregoing, first, there was no error regarding to the district

court’s limitations on Grana’s cross-examination of government witnesses because

his cross-examination was adequate to protect his rights under the Confrontation

Clause. Second, any evidentiary error alleged by Grana was harmless in light of

the ample evidence supporting the jury’s guilty verdict.

                                         II.

      We determine whether a trial judge’s instruction that the jury continue

deliberation was coercive based upon the totality of the circumstances.

Lowenfeld v. Phelps, 484 U.S. 231, 237, 108 S.Ct. 546, 550, 98 L.Ed.2d 568

(1988).

      In United States v. Brokemond, 959 F.2d 206, 208-09 (11th Cir. 1992), we



                                          9
reviewed a case in which the appellant conceded the validity of a modified Allen

charge, but argued, as Grana does, that a subsequent instruction to the jurors given

in response to their failure to agree on a verdict was coercive. See Brokemond,

959 F.2d at 208-09. In that case, the district court’s supplemental instruction

reminded jurors that their verdict had to be unanimous. Id. at 208. We noted that

the district court’s reemphasis of the unanimity requirement in the supplemental

instruction “was merely a reiteration of that part of the initial charge,” and did not

“suggest to the jury which verdict it should return.” Id. at 209.

Therefore,“[v]iewing the supplemental instruction in light of the totality of the

overall charge, which was correct in all respects,” the supplemental instruction was

not coercive. Id.

      In United States v. Prosperi, 201 F.3d 1335, 1341 (11th Cir. 2000), we stated

that a “brief instruction” that consisted of the court advising the jury to continue

deliberations was not coercive because it did not “suggest that a particular outcome

was either desired or required.” Prosperi, 201 F.3d at 1341. Similarly, in Watson

v. Alabama, 841 F.2d 1074, 1076 (11th Cir. 1988), we ruled that a supplemental

instruction given to a jury was not coercive because that the judge’s initial charge

to the jury was thorough, extensive and correct, and the supplemental instruction

only reemphasized the requirement of unanimity. Watson, 841 F.2d at 1076. In



                                           10
contrast, in Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060,

13 L.Ed.2d 957 (1965), the Supreme Court held that a trial judge’s statement, in

the course of his response to a jury’s note that they were unable to agree on verdict,

that “[y]ou have got to reach a decision in this case” was coercive. Jenkins, 380

U.S. at 446, 85 S.Ct. at 1060.

      In the present case, in response to an initial note advising the district court

that the jurors had not reached a verdict, the district court read a modified Allen

charge, the propriety of which Grana does not dispute.

      In response to the second note advising that the jurors had not yet reached a

verdict, the district court advised that the jury continue deliberations for

approximately 15 to 20 minutes. A third note was also received, though it is

unclear exactly when that note was submitted by the jury, and it appears from the

record that it might have been submitted while the jury waited on word from the

district court regarding the second note. In any event, at the end of the day on a

Friday, after two notes from the jury subsequent to the Allen charge, the district

court advised the jurors that they would resume deliberations on the following

Monday in an effort to reach an unanimous verdict. Specifically, the court advised

that the jurors “get some rest over the weekend,” and “[r]e-think [their] positions.”

It also stated that the jurors were “free to think about what’s going on in terms of



                                           11
[their] deliberations.”

        The totality of these circumstances were not inherently coercive because the

district court did not “suggest that a particular outcome was either desired or

required.” See Prosperi, 201 F.3d at 1341. The court also did not state that the

jury would be required to reach a decision. Jenkins, 380 U.S. at 446, 85 S.Ct. at

1060.

        Based upon the foregoing, we affirm Grana’s conviction.

AFFIRMED.




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