           Case: 17-11964   Date Filed: 02/22/2018   Page: 1 of 10


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 17-11964
                       ________________________

                  D.C. Docket No. 1:16-cr-20559-JAL-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ZAYDAH LECHELLE BARKSDALE,

                                                          Defendant-Appellant.

                       ________________________

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

                            (February 22, 2018)

Before MARCUS, ANDERSON, and HULL, Circuit Judges.

PER CURIAM:
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      This is a direct criminal appeal in which defendant, Zaydah Barksdale, was

convicted after a jury trial of possession with intent to distribute a controlled

substance, importation of the same, and conspiracy with respect to both.

Defendant raises three arguments on appeal: (1) a challenge to the sufficiency of

the evidence; (2) an argument that the district court abused its discretion when it

prevented defense counsel in closing from commenting on evidence which the

district court erroneously believed was not in evidence; and (3) an argument that

the district court admitted into evidence statements of defendant’s co-conspirator,

Garth Levy, in violation of defendant’s rights under the Confrontation Clause.

Having heard oral argument and carefully reviewed the briefs and relevant parts of

the record, we address each of defendant’s arguments in turn and affirm.

                    I. SUFFICIENCY OF THE EVIDENCE
      On returning to the Miami airport on July 12, 2016, after a short trip to

Curacao, defendant presented her luggage—a large black Pathfinder suitcase—to

Customs and Border Patrol Officer J.R. Lopez for inspection. Lopez found

approximately 2.1 kilograms of cocaine concealed in a false bottom of the suitcase,

worth about $200,000. That evidence, plus Officer Lopez’s testimony about

defendant’s suspicious appearance and answers to his questions, and the very

substantial evidence of the conspiracy between defendant and Levy—discussed

below—provide ample evidence to support defendant’s convictions for importation


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and possession with intent to distribute.

       We also conclude that defendant’s conspiracy convictions are supported by

very strong evidence. The defendant’s July 2016 trip to Curacao was the second

time in recent months that she and Levy had taken overlapping trips from Atlanta

to Curacao. In addition, on a third recent occasion, they both had booked a trip to

Curacao which would have overlapped, except that Levy did not actually take the

flight. This July 2016 trip was thus defendant’s third trip to Curacao in about nine

months despite defendant’s very limited income. On this July 2016 trip, Levy was

interrogated on his trip to Curacao by Customs and Border Patrol Officer Carlos

Novoa in the Miami airport. Because Levy’s answers to questions were vague,

Novoa called for and searched the suitcase Levy had checked. Novoa testified that

it was a large, black Pathfinder suitcase, to which were affixed three plastic tags as

if price tags had been ripped off without removing the plastic fasteners. Novoa

found this noteworthy as he had rarely seen this in his experience of searching

thousands of bags. Significantly, Officer Lopez testified that the large, black

Pathfinder suitcase which defendant presented to him (which had the cocaine

concealed inside) also had three plastic tags indicating that the suitcase had been

recently purchased; he too noted that it was unusual for a suitcase to have such

plastic tags still affixed.

       The large, black Pathfinder suitcase that defendant presented to Customs in

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Miami not only had the cocaine in it, it had defendant’s own clothes in it (as

corroborated by a picture on defendant’s cellphone showing her wearing some of

the clothes found in the suitcase). Although defense counsel argued to the jury that

baggage handlers in the airport must have switched bags and put defendant’s

clothes in a different Pathfinder suitcase with the false bottom and the cocaine, that

argument was highly speculative and was clearly rejected by the jury.

      Officer Novoa, when he inspected Levy before his flight down to Curacao,

also found black carbon paper in Levy’s carry-on duffel bag. Novoa knew that

traffickers often attempt to conceal contraband with black carbon paper and

therefore questioned Levy, who said he needed carbon paper to make copies of a

contract, notwithstanding that Levy had earlier answered that he was going to

Curacao for vacation, not business. At trial, the government offered evidence that

the cocaine in defendant’s suitcase was wrapped in black carbon paper.

      There is additional evidence supporting the convictions: e.g., the fact that

Levy and defendant live seven miles apart in Atlanta; defendant’s demeanor when

questioned at the time of arrest; her statement that while in Curacao she had met

three locals, one of whom was named Levy; and Levy’s pattern on his several trips

to Curacao, which was to fly to Curacao with a checked suitcase but fly back

without checking a suitcase. The foregoing suffices to establish that the evidence

of defendant’s guilt was more than sufficient; there was very strong evidence of

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defendant’s guilt.

II. THE DISTRICT COURT’S RESTRICTION OF DEFENSE COUNSEL’S
               CLOSING ARGUMENT TO THE JURY
      The closing argument at issue, the government’s objection, and the district

court’s ruling are set forth as follows:

      [MR. SCHWARTZ:] I submit to you, ladies and gentlemen, that in the
      rush to get things done, my client’s advice of rights form was not
      submitted at that time before he did his interview. It was submitted at
      10:00 p.m., after the fact.

      And you heard, ladies and gentlemen, that there was—my client said
      something while she was being processed. She said, “The guy with
      the tattoos”—Special Agent Cruz—“he told me, if I signed the form,
      they would let me go.”

      MS. McNAMARA: Objection, your Honor. That’s facts not in
      evidence.

      MR. SCHWARTZ: Your Honor, it came in.

      THE COURT: No.

      MR. SCHWARTZ: If you recall—

      THE COURT: Sustained. Sustain the objection. Sustain the
      objection.

      MR. SCHWARTZ: Ladies and gentlemen, you heard—

      THE COURT: Please disregard that statement.

      MR. SCHWARTZ: Ladies and gentlemen, you heard the testimony
      and my question on cross-examination of Special Agent Sauer. What
      is in evidence you can consider.

      And I submit, ladies and gentlemen, something is not right here. And

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       I’ll tell you why.

       All these little things, these little inconsistencies, these [sic] little
       cutting of corners, are important because you heard and I’m sure
       you’re going to hear again that my client said the name Levy as one of
       the people she met in Curacao and spelled it out.

       Well, first of all, it’s not really consistent with what they claim—if
       everything that the Government claims is true, the handler was
       supposed to train her to deny, deny, deny, not spell the name of her
       alleged co-conspirator. It doesn’t make any sense.

       And, quite frankly, there’s no record in his report that she—he asked
       her to spell it out. We got that in cross-examination.

       And I submit to you, ladies and gentlemen, that she never said
       “Levy.” Look at Exhibit 6-F-5. It’s a slip of paper with a phone
       number on it. That ain’t “Levy.” That’s “Leroy.” That’s the name
       she gave.

Doc. 186 at 41–42.

       The district court was in error when it instructed the jury to disregard

counsel’s comment on the statement defendant made to Agent Sauer about Agent

Cruz – “he told me, if I signed the form, they would let me go.” The district court

erroneously believed it had excluded that testimony when Agent Sauer was

testifying.1 However, that error is clearly harmless, because whether or not

defendant said that to Agent Sauer has little or no relevance to any issue in the

       1
                The government’s objection – “facts not in evidence” – was an appropriate
objection in that the testimony that was actually before the jury did not include the fact that
Agent Cruz was “the guy with the tattoos.” However, the district court believed that it was
excluding defendant’s statement to Agent Sauer about Agent Cruz – “he told me, if I signed the
form, they would let me go.” And the jury might also have believed that.


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case.

        Defendant argues on appeal that the district court not only struck counsel’s

comment on the foregoing near irrelevant statement of defendant to Agent Sauer,

but also struck counsel’s argument that Agent Sauer had perjured himself and that,

contrary to his testimony, he had not advised defendant of her Miranda rights until

after her interview, at 10:00 p.m. that evening when the consent to search form was

signed. We reject this argument. The court’s ruling most plausibly addresses only

the sentence immediately preceding the government’s objection and certainly not

counsel’s comments (which appeared in preceding paragraphs) about whether

defendant signed the Miranda form before the questioning started (as Agent Sauer

testified) or only later. Defense counsel himself clearly did not understand the

district court’s ruling to limit his argument challenging the credibility of Agent

Sauer, as he immediately continued his vigorous argument challenging Sauer’s

credibility and the credibility of the government’s investigation of the crime.

                     III. CONFRONTATION CLAUSE ISSUE
        The district court allowed the admission into evidence of several statements

made by Levy to Officer Novoa when Novoa questioned Levy at the Miami airport

before Levy boarded the flight to Curacao. With respect to his interaction with

Levy, Novoa testified that, when asked the purpose of his trip, Levy was very

vague – e.g., “just to visit,” “vacation.” Doc. 183 at 18. When asked what kind of


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activities, he couldn’t come up with an answer. When asked if he was going to

visit someone there, he answered, “Yeah. Yeah. I have a friend there.” Doc. 183

at 19. When Novoa asked the friend’s name, Levy came up with a name, but when

asked the person’s last name, Levy thought about it a while but couldn’t come up

with the person’s last name. Novoa testified: “[B]ased on my experience, on my

training, if somebody’s taking that long to give you an answer or if they’re—they

don’t know details, like a person’s name, it usually means they’re being

deceptive.” Doc. 183 at 19. Because Levy’s answers raised his suspicions, Novoa

called for the airline to produce the suitcase that Levy had checked, and Novoa

took a picture of it. Levy also acknowledged ownership of the black carbon paper

Novoa had found in his carry-on duffel bag, and acknowledged he was carrying

$2000 cash.

      We assume, arguendo—but expressly do not decide—that Novoa’s

questioning of Levy had proceeded beyond mere random questioning and that

Levy’s statements were testimonial. However, based on our careful review of the

entire context of Novoa’s testimony, as well as the government’s use thereof in its

arguments to the jury, we conclude that the government offered the statements of

Levy—not to prove the truth thereof—but, just the opposite, to demonstrate that

Levy was not telling the truth, but rather was being deceptive. It is absolutely clear

that the government was suggesting to the jury—not the truth of Levy’s statements

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that he was on vacation and not the truth of his statement that he had a friend in

Curacao—but rather that he was going to Curacao as part of a scheme to import

cocaine. Indeed, with respect to the only2 statement by Levy that could have added

probative value to the government’s case (if the jury misconstrued Levy’s

statement “I have a friend there” to mean not a friend who lived in Curacao but

rather a co-conspirator and visitor like Barksdale who was already there), Novoa’s

testimony clearly revealed that the government’s purpose in introducing the

testimony was to show—not that Levy was flying to Curacao to vacation with a

friend living there—but, quite the opposite, to demonstrate that Levy was being

deceptive. As Novoa explained:

       [B]ased on my experience, on my training, if somebody’s taking that
       long to give you an answer or if they’re—they don’t know details, like
       a person’s name, it usually means they’re being deceptive.

Doc. 183 at 19.

       The case law is clear that “[t]he [Confrontation] Clause . . . does not bar the

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

matter asserted.” Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354,

1369 n.9, 158 L. Ed. 2d 177 (2004); accord United States v. Jiminez, 564 F.3d

1280, 1286–89 (11th Cir. 2009). Because the challenged statements of Levy were

       2
               Other statements, like acknowledging ownership of the Pathfinder suitcase and
carbon paper, have little relevance because Levy checked the suitcase, and Officer Novoa found
the carbon paper.


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not presented to the jury to prove the truth of the matters being asserted by Levy,

there is no violation of the Confrontation Clause.3

         For the foregoing reasons, 4 we affirm defendant Barksdale’s convictions. 5

         AFFIRMED.




         3
               Moreover, if there were error, it would clearly be harmless beyond a reasonable
doubt.
         4
               Other arguments of defendant on appeal are rejected without need for discussion.
         5
               Defendant Barksdale has not challenged her sentence—imprisonment for a
concurrent term of 36 months followed by three years of supervised release.
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