            Case: 14-11331   Date Filed: 03/10/2015   Page: 1 of 9




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11331
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cr-20461-RSR-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                     versus

JOHN CAMERON CAIN,

                                                         Defendant - Appellant.

                       ________________________

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

                             (March 10, 2015)

Before WILSON, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      John Cain appeals his convictions for (1) forcibly assaulting a federal officer

while using a deadly weapon, in violation of 18 U.S.C. § 111(a)(1), (b); (2)

brandishing a firearm during and in relation to the commission of a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

                                          I.

      During the mid-afternoon hours on June 12, 2013, Cain was walking down a

street in Homestead, Florida, carrying an assault rifle over his shoulder with a

handgun tucked inside his waistband. A woman who happened to be driving down

the same street that Cain was walking on, noticed Cain walking along the side of

the road carrying an assault rifle on his shoulder. As her vehicle approached, Cain

pulled the handgun from his waistband, pointed the gun at the woman, and asked,

“What the fuck are you looking at, bitch?” Immediately thereafter, the woman

reported what had occurred to the police, and the police began to marshal a

perimeter.

      Meanwhile, an employee of the United States Postal Service (USPS), while

on his way back from delivering mail to his daily route, also saw Cain walking

along the side of the road with an assault rifle draped over his shoulder. As the

USPS employee attempted to make a turn, Cain approached his vehicle, pointed

his handgun directly at him and asked, “What’s up?!” In a state of panic, the


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USPS employee sped off down the street and made the first turn he could to avoid

any potential gunfire from Cain. After making the turn, the postal employee

encountered two police officers who appeared to be searching for a suspect. The

USPS employee immediately flagged the officers down, informed the officers of

what had just occurred, and pointed the officers in the direction in which he last

saw Cain.

      Thereafter, the officers located a seemingly agitated, belligerent, and

aggressive individual who was carrying an assault rifle and a handgun—whom

they later learned to be Cain. As the officers approached, Cain screamed

profanities toward the officers and attempted to instigate a physical confrontation

with them. With their weapons drawn, the officers demanded that Cain

immediately drop his weapons, after which Cain eventually complied. The officers

then moved in and placed Cain under arrest.

      At trial, the above-mentioned facts were undisputed. Cain raised the defense

of insanity, which created only one issue: whether Cain, during the commission of

the offense, had the requisite state of mind to be found guilty of the crimes of

which he was charged. To establish that he was insane at the time of the alleged

offense, Cain sought to admit testimony from Dimitrios Kalogiannis—a clinical

social worker who conducts mental health evaluations of inmates at the Broward

County Jail—concerning statements Cain made to Kalogiannis during a mental


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evaluation of Cain. Specifically, Kalogiannis was to testify that during a mental

evaluation at Broward County Jail, Cain told him that at the time the alleged

offense occurred he was experiencing auditory hallucinations. Upon the

government’s hearsay objections, the district court excluded Kalogiannis’s

testimony concerning these statements. At the conclusion of a three-day trial, the

jury returned a guilty verdict on all three counts charged in the indictment. Cain

received a total 300-month term of imprisonment. This appeal followed.

      On appeal, Cain argues that the district court improperly excluded the

testimony of Kalogiannis because it was non-hearsay. Cain asserts that the

statements were being offered for impeachment purposes—not to prove the truth of

the matter asserted. Cain also argues that Kalogiannis’s testimony was admissible

as an exception to the rule against hearsay pursuant to Rule 803(4) of the Federal

Rules of Evidence, which allows statements to physicians that are made in

furtherance of medical diagnosis. Finally, Cain argues that the district court’s

exclusion of this testimony substantially prejudiced him because Kalogiannis’s

testimony concerning statements that Cain made to him during his mental

evaluation was critical to his defense of insanity, thereby preventing him from fully

presenting his insanity defense at trial.

      Because we conclude that the district court did not abuse its discretion when

it excluded Kalogiannis’s testimony, we affirm.


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                                          II.

      “We review a district court’s decision to admit or exclude evidence for

abuse of discretion.” United States v. Reeves, 742 F.3d 487, 501 (11th Cir. 2014).

An evidentiary ruling that is erroneous will only result in reversal if the ruling was

not harmless. See United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.)

corrected, 194 F.3d 1186 (11th Cir. 1999). An error is not harmless if “there is a

reasonable likelihood that [the error] affected the defendant’s substantial rights.”

United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990). We need not

reverse a defendant’s conviction “if the error had no substantial influence on the

outcome and sufficient evidence uninfected by error supports the verdict.” Hands,

184 F.3d at 1329 (internal quotation marks omitted). We will reverse a

defendant’s conviction if the error caused actual prejudice because of its

“substantial and injurious effect or influence” on the jury’s verdict. United States

v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir. 2010). Overwhelming evidence of

guilt is a factor that may be considered in determining harmlessness. Id. The

government bears the burden of establishing that an error is harmless. Id. We

review the entire record to reach a decision on the reversibility of an evidentiary

error. Id.

      The Federal Rules of Evidence define hearsay as a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to


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prove the truth of the matter asserted. Fed. R. Evid. 801(c). Hearsay is not

admissible unless otherwise authorized by federal statute, the Federal Rules of

Evidence, or other rules prescribed by the Supreme Court. Fed. R. Evid. 802. Out-

of-court statements offered for a reason other than their truth are not hearsay,

however, and their admission consequently is not barred by Rule 802 of the

Federal Rules of Evidence. See United States v. Arbolaez, 450 F.3d 1283, 1290

(11th Cir. 2006) (per curiam).

       A statement made for impeachment purposes is typically not hearsay. See

United States v. Grant, 256 F.3d 1146, 1156 (11th Cir. 2001).

               [T]he point of admitting inconsistent statements to
               impeach is not to show that they are true, but to aid the
               jury in deciding whether the witness is credible; the usual
               argument of the party doing the impeaching is that the
               inconsistent statements show the witness is too unreliable
               to be believed on important matters.

Id.
       Here, the statements made by Cain to Kalogiannis constituted hearsay,

because the statements were made out of court during an interview at the Broward

County Jail and were not offered for a valid non-truth purpose. 1 See Fed. R. Evid.


       1
         We note that the record reveals that at one point during the trial, Cain’s defense counsel
was asked by the district court to explain how Kalogiannis’s testimony regarding statements
Cain made to him during his mental evaluation at Broward County Jail would be non-hearsay
and Cain’s counsel’s response was, “at the time [Cain] was seen by [Kalogiannis] here in that
intake, [Kalogiannis] notes that Mr. Cain related to him that he was experiencing auditory
hallucinations.” As we see it, this response indicates that the testimony would have been offered
to prove that Cain reported experiencing auditory hallucinations—the truth of the matter it
intends to assert.
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801–802. While Cain asserted that he intended to offer the statements made by

Cain to Kalogiannis during his mental evaluation at Broward County Jail for

impeachment purposes, the impeachment purposes proffered by Cain were not

legitimate bases for impeachment. Impeaching Dr. Luis with statements made by

Cain to Kalogiannis is a type of impeachment that falls outside the traditional

scope of impeachment recognized by this Court—to show that the witness himself

made inconsistent statements that undermined his credibility. See Grant, 256 F.3d

at 1156.

       Cain also argues that his statement to Kalogiannis during his mental

evaluation at the Broward County Jail qualifies as admissible hearsay pursuant to

the exception under Rule 803(4). While we acknowledge that the commentary to

Rule 803(4) provides that statements made to physicians in furtherance of medical

diagnosis and for treatment purposes are not hearsay, the commentary does not

make it clear whether or not statements to clinical social workers qualify under

Rule 803(4)’s exception.2 See Advisory Committee’s Note to Para. (4) of Fed. R.

Evid. 803. This Court has yet to define the scope of Rule 803(4), and the language

of Rule 803(4) does not make it clear whether or not statements to clinical social



       2
         As the parties noted, at least two circuits have resolved this issue in favor of allowing
statements made to social workers for treatment purposes to count as an exception to the hearsay
rule pursuant to Rule 803(4). See United States v. Kappell, 418 F.3d 550, 557 (6th Cir. 2005);
Davignon v. Clemmey, 322 F.3d 1, 8 n.3 (1st Cir. 2003). However, we are not bound by these
decisions here.
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workers qualify for the exception. Therefore, without controlling precedent in this

circuit regarding the scope of Rule 803(4), we cannot conclude that the district

court’s exclusion of the statements here was an abuse of its discretion.

      However, even if we were to conclude that the district court abused its

discretion when it excluded Cain’s statements to Kalogiannis as hearsay, the

exclusion must have also prejudiced Cain. Phaknikone, 605 F.3d at 1109. We

cannot conclude here that the exclusion of this testimony—given the number of

witnesses permitted to testify about Cain’s mental condition, and the scope of the

cross-examination of Dr. Luis—had a “substantial and injurious effect or

influence” on the jury’s verdict. Id. Evidence of Cain’s mental state was

overwhelming. For example, multiple witnesses for the prosecution and the

defense, including Kalogiannis, Dr. Ouaou, Dr. Holmes, and Dr. Luis, testified

about Cain’s mental state, and thus provided the jury with comprehensive

observations about Cain’s mental state at the time of the offense. In addition, Drs.

Ouaou and Holmes both testified that in their opinion, Cain suffered from a mental

disease or defect at the time of the offense and that their opinions were based on a

review of his medical records, assessments, and their professional knowledge.

Moreover, Dr. Holmes testified that although Cain did not report auditory

hallucinations during her interview with him, Cain was already taking medication

for auditory hallucinations at the time of the interview—an indication that Cain


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had reported experiencing auditory hallucinations prior to the interview. This

testimony provided the jury with a reasonable basis upon which to make their

determination concerning whether or not Cain was insane at the time he committed

the offense, regardless of the district court’s evidentiary ruling that excluded

Cain’s hearsay statements to Kalogiannis. See id.

      In light of the entire record, we conclude that the district court did not abuse

its discretion by excluding Kalogiannis’s hearsay testimony. Thus, we affirm the

district court’s evidentiary rulings and Cain’s conviction.

      AFFIRMED.




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