                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                             No. 08-16415                 ELEVENTH CIRCUIT
                                                          SEPTEMBER 23, 2009
                         Non-Argument Calendar
                                                           THOMAS K. KAHN
                       ________________________
                                                                CLERK

                 D. C. Docket No. 07-00066-CR-J-33-TEM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

CURTIS SMITH,
CHRISTOPHER WILKINS,
a.k.a. Nati,
RALPH EARL BROWN, JR.,


                                                        Defendants-Appellants.


                       ________________________

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

                           (September 23, 2009)

Before DUBINA, Chief Judge, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:

      Appellants Christopher Wilkins, Ralph Earl Brown, Jr., and Curtis Smith

appeal their convictions for one count of conspiracy to distribute 100 kilograms or

more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 846.

The conspiracy involved trafficking marijuana via tractor-trailer from California to

Florida.



                               I. Fed.R.Evid. 404(b)

      Wilkins argues that witness Leslie Quartermann’s testimony to the jury that

years before the alleged conspiracy began, Wilkins and Brown sent her on a trip to

California to transport drugs or drug money was extremely prejudicial, invited

speculation, and was not relevant to the conduct charged in the indictment.

Moreover, Wilkins claims that the government did not present any evidence to

prove that what Quartermann described about the trip was a crime. Accordingly,

Wilkins claims that the district court abused its discretion because the testimony

was not probative and was extremely prejudicial to him.

      Brown also argues that Quartermann’s testimony regarding her trip to

California was overly prejudicial, purporting to establish Brown’s character.

Brown claims that (1) the past acts were not linked or intertwined with the series of



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transactions that made up the conspiracy; (2) there was no testimony by

Quartermann that the suitcase contained marijuana or any drug; and

(3) Quartermann’s testimony was irrelevant and immaterial to prove knowledge or

intent to participate in future drug transactions.

      We review the district court’s admission of prior crimes or bad acts under

Federal Rule of Evidence 404(b) for abuse of discretion. United States v. Ellisor,

522 F.3d 1255, 1267 (11th Cir. 2008). Rule 404 of the Federal Rules of Evidence

provides that:

      Evidence of other crimes, wrongs, or acts is not admissible to prove

      the character of a person in order to show action in conformity

      therewith. It may, however, be admissible for other purposes, such as

      proof of motive, opportunity, intent, preparation, plan, knowledge,

      identity, or absence of mistake or accident. Fed.R.Evid. 404(b).

      “To be admissible, 404(b) evidence must (1) be relevant to one of the

enumerated issues and not to the defendant’s character; (2) the prior act must be

proved sufficiently to permit a jury determination that the defendant committed the

act; and (3) the evidence’s probative value cannot be substantially outweighed by

its undue prejudice, and the evidence must satisfy Rule 403 [which provides for the

exclusion of relevant evidence whose probative value is substantially outweighed



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by unfair prejudice].” United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir.

2000). Rule 404(b) permits the admission of prior bad acts evidence to show

motive, preparation, knowledge, and intent, as well as an ongoing scheme or plan.

See United States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992)

(noting that “[e]vidence of criminal activity other than the charged offense is

admissible for purposes of Rule 404(b) if it [] pertains to the chain of events

explaining the context, motive and set-up of the crime and is linked in time and

circumstances with the charged crime”) (internal quotation marks and alterations

omitted). To establish the relevance of other crimes evidence offered as proof of

intent, “it must be determined that the extrinsic offense requires the same intent as

the charged offense.” United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir.

2001) (internal quotation marks omitted). Finally, “[t]he greater the government’s

need for evidence of intent, the more likely that the probative value will outweigh

any possible prejudice.” United States v. Hicks, 798 F.2d 446, 451 (11th Cir.

1986).

         We conclude from the record that Quartermann’s testimony satisfied the

requirements of Rule 404(b), and the district court did not abuse its discretion in

admitting the testimony. Quartermann’s testimony was relevant to prove intent

and its probative value did not outweigh its prejudicial effect. Accordingly,



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Wilkins is not entitled to relief on this claim.

                                      II. Hearsay

      Wilkins argues that Alfred Wilkins’s statement, admitted through Agent

Clausen, connecting Wilkins to the residence where law enforcement discovered

large amounts of marijuana, was not made during the course of or in furtherance of

the conspiracy pursuant to Federal Rule of Evidence 801(d)(2)(E), notwithstanding

the fact that Alfred had a motive to implicate someone else as the “lessee” of the

house. Wilkins claims that the district court’s admission of Alfred’s statement

inculpating him was a clear error of constitutional magnitude.

      We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Massey, 89 F.3d 1433, 1441 (11th Cir. 1996). However, we

reverse erroneous evidentiary rulings only if “the error was not harmless.” United

States v. Church, 955 F.2d 688, 700 (11th Cir. 1992). 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).

      A statement is not hearsay if it is made by a coconspirator of a party during



                                            5
the course and in furtherance of the conspiracy. Fed.R.Evid. 801(d)(2)(E). In order

for evidence to be admissible under Federal Rule of Evidence 801(d)(2)(E), “the

government must prove by a preponderance of the evidence these things: (1) a

conspiracy existed; (2) the conspiracy included the declarant and the defendant

against whom the statement is offered; and (3) the statement was made during the

course and in furtherance of the conspiracy.” United States v. Magluta, 418 F.3d

1166, 1177-78 (11th Cir. 2005). However, “cumulative admission of potentially

erroneous hearsay statements” is harmless in both the constitutional and

nonconstitutional sense. United States v. Weinstein, 762 F.2d 1522, 1535-36 (11th

Cir. 1985).

      Although the statement in question was inadmissible hearsay because it was

not made in the course of, or in the furtherance of the conspiracy, the district court

did not err in admitting the statement. The statement was cumulative of other

testimony regarding Wilkins’s rental of the house. Accordingly, we conclude that

the testimony was harmless, and we affirm. See id.

                                III. Speedy Trial Act

      Brown argues that the district court failed to comply with Zedner v. United

States, 547 U.S. 489, 126 S. Ct. 1976 (2006), and violated the Speedy Trial Act by

relying on his waiver of his right to a speedy trial instead of entering an “ends of



                                           6
justice” order setting forth the reasons for the continuances.

      We review the district court’s construction and interpretation of the Speedy

Trial Act de novo and review the district court’s factual determination as to what

constitutes excludable time under the Act for clear error. United States v. Schlei,

122 F.3d 944, 984 (11th Cir. 1997). The Speedy Trial Act mandates that a trial

commence within 70 days after the date the defendant appeared before a judicial

officer or the date of the indictment, whichever occurs later. 18 U.S.C.

§ 3161(c)(1). Excluded from the 70 days are periods of delay resulting from a

continuance where the district court sets forth, either orally or in writing on the

record, its reasons for finding that the ends of justice are served by the continuance

and outweigh the best interest of the public or the defendant in a speedy trial. 18

U.S.C. § 3161(h)(7)(A); see also Zedner, 547 U.S. at 498-99, 126 S. Ct. at 1983-

84. However, the Act specifically states that “[f]ailure of the defendant to move for

dismissal prior to trial or entry of a plea of guilty or nolo contendere shall

constitute a waiver of the right to dismissal under this section.” 18 U.S.C.

§ 3162(a)(2); see also United States v. Tenorio-Angel, 756 F.2d 1505, 1508 (11th

Cir. 1985).

      We conclude from the record that Brown waived his right to enforce any

speedy trial violation by failing to move for dismissal of his indictment. Further,



                                            7
the record demonstrates that the district court complied with the Speedy Trial Act.

Accordingly, there was no violation.

                                   IV. Impeachment

         Smith argues, without citation to case law, that the district court should have

allowed him to impeach witness Maria Karina Corona’s credibility with the

statement that she made to Agent Davis regarding the “drivers” who worked for

Brown, which was inconsistent with her prior testimony that Smith drove the truck.

         Prior inconsistent statements made by witnesses are discussed in Federal

Rule of Evidence 613, which specifies that for extrinsic evidence of a prior

inconsistent statement to be admissible, the statement must have been made by the

witness. See Fed.R.Evid. 613(b).

         We conclude from the record that the district court did not abuse its

discretion by not permitting Smith to impeach Corona with her inconsistent

statement contained in Agent Davis’s report because her trial testimony was not

inconsistent. Additionally, Smith introduced through Agent Davis’s testimony the

same evidence he complains he was prevented from introducing through Corona

and thus has not shown prejudice. Therefore, Smith is not entitled to relief on this

claim.

                                 V. Bruton violation


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       The first statement in Smith’s brief statement of facts is as follows: “Curtis

Smith was a truck driver for Co-Defendant Ralph Brown.” However, Smith argues

that the government did not put forth overwhelming evidence of his guilt, pointing

out that the only evidence of his being the sole truck driver for Brown came from

Corona and Agent Davis. Accordingly, Smith argues that the district court violated

Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), by allowing Agent

Davis to testify that Brown told him (Agent Davis) that Smith was the sole driver

of his tractor trailer.

       We review preserved Bruton claims for abuse of discretion and evaluate any

Bruton error for harmlessness beyond a reasonable doubt. United States v. Turner,

474 F.3d 1265, 1275 (11th Cir. 2007). In Bruton, the Supreme Court held that the

admission of a statement by a nontestifying codefendant that inculpated the other

defendant in a joint trial violated the defendant’s Sixth Amendment right to

confrontation. Bruton, 391 U.S. at 136-37, 88 S. Ct. at 1628. However, we have

held that a Bruton problem does not exist “where the statement was not

incriminating on its face, and became so only when linked with evidence

introduced later at trial.” United States v. Brazel, 102 F.3d 1120, 1140 (11th Cir.

1997) (internal quotation marks omitted). Accordingly, “for Bruton to apply, a

codefendant’s statement must be clearly inculpatory standing alone.” Id. (internal



                                           9
quotation marks and alteration omitted).

      We conclude that the district court did not abuse its discretion in denying

Smith’s motion for a mistrial based on the admission of Brown’s statement because

the statement did not incriminate Smith in marijuana trafficking.

      For the above-stated reasons, we affirm the defendants’ convictions.

             AFFIRMED.




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