                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JAN 23, 2007
                               No. 05-16139                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 05-20298-CR-UUB

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

LUIS ENRIQUE VALDES,

                                                           Defendant-Appellant.


                         ________________________

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

                              (January 23, 2007)

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Luis Enrique Valdes appeals his conviction for conspiracy to possess
cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 846 and

841(a)(1). Valdes makes four arguments on appeal. First, Valdes argues that his

rights under the Confrontation Clause of the Sixth Amendment were violated when

the district court allowed the Government to introduce at trial, over Valdes’s

objection, portions of tape-recorded telephone conversations between Valdes and a

confidential informant whom the Government chose not to call as a witness.

Second, Valdes argues that the Government violated its disclosure obligations

under Giglio v. United States, 405 U.S. 150, 92 S. Ct. 1763 (1972), when it failed

to turn over to him, for use at trial, impeachment evidence regarding the

Government’s confidential informant.1 Third, Valdes argues that the district court

erred in failing to give Valdes’s requested jury instruction regarding his alleged

withdrawal from the drug conspiracy. Finally, Valdes argues that the Government

violated the Equal Protection Clause of the Fourteenth Amendment under Batson

v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986),2 when it struck, allegedly on the

basis of race, three Hispanics from the pool of potential jurors. We will address


       1
          It is unclear whether Valdes is making an independent argument in this appeal based on
an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); but if he is, we
find that any such argument is without merit.
       2
         The Fourteenth Amendment does not by its terms apply to actions of the federal
government, but the Supreme Court has noted that its “approach to Fifth Amendment equal
protection claims has always been precisely the same as to equal protection claims under the
Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225,
1228 n.2 (1975).

                                               2
each argument in turn.

                     I. Sixth Amendment Confrontation Clause

      Valdes argues that his Sixth Amendment rights were violated when the

district court allowed the Government to admit into evidence a confidential

informant’s half of tape-recorded telephone conversations with Valdes without

requiring that the Government call the informant as a witness. Valdes asserts that

the informant’s statements were testimonial hearsay inadmissible under Crawford

v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).

      We review the district court’s decision on admissibility of evidence for an

abuse of discretion. United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002).

We review constitutional questions de novo. United States v. Brown, 364 F.3d

1266, 1268 (11th Cir. 2004).

      As an evidentiary matter, the district court did not err in admitting the

informant’s recorded statements because they were not hearsay. Hearsay is an out-

of-court statement “offered in evidence to prove the truth of the matter asserted.”

Fed. R. Evid. 801(c). Statements made by Valdes in the tape-recorded

conversations, when presented by the Government, were not hearsay because they

were admissions of a party opponent. Fed. R. Evid. 801(d)(2) (a party’s own

statement offered against him is “not hearsay”). Statements made by the informant



                                          3
were not hearsay because they were admitted not to prove the truth of the

informant’s statements but to provide context for Valdes’s half of the telephone

conversations.3 See United States v. Price, 792 F.2d 994, 996 (11th Cir. 1986).

Therefore, the district court did not abuse its discretion in admitting the recorded

conversations.

       Because the informant’s statements were not hearsay, and because the

Confrontation Clause “does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted,” Crawford, 541 U.S. at 59

n.9, 124 S. Ct. at 1369 n.9, Valdes’s Sixth Amendment challenge to his conviction

is without merit.4 Stated differently, because the informant’s portions of the

recordings were not admitted to prove the truth of any assertion, there was no Sixth

Amendment violation in this case. See United States v. Tolliver, 454 F.3d 660,

666 (7th Cir. 2006) (rejecting Crawford challenge to introduction of recorded

conversations made by Government informant and offered into evidence for



       3
           The district court in fact gave a limiting instruction to this effect as follows:

       The statements of the confidential source are not being admitted as substantive
       evidence. They are not being admitted for the truth of the matter asserted or the
       things that the confidential source says. . . . Instead, they are being admitted
       solely for the purpose of allowing you to put the statements of the other people in
       context.
       4
         We have no occasion to determine whether the informant’s statements were testimonial
or non-testimonial.

                                                     4
purpose of putting defendant’s statements in context; noting that “aside from the

testimonial versus nontestimonial issue, a crucial aspect of Crawford, is that it only

covers hearsay, i.e., out-of-court statements ‘offered in evidence to prove the truth

of the matter asserted’”); see also United States v. Faulkner, 439 F.3d 1221, 1226

(10th Cir. 2006) (“One thing that is clear from Crawford is that the [Confrontation]

Clause has no role unless the challenged out-of-court statement is offered for the

truth of the matter asserted in the statement”).

                     II. The Government’s Alleged Giglio Violation

       Valdes argues that his ability to impeach the confidential informant was

improperly limited. He asserts that, under Giglio v. United States, 405 U.S. 150,

92 S.Ct. 1763 (1972), the Government was required to provide impeachment

information regarding the confidential informant but failed to do so.5

       “In order to succeed on a Giglio challenge, the defendant must demonstrate

that the prosecutor knowingly used perjured testimony, or failed to correct what he



       5
          Valdes further argues (1) that he should have been allowed to question Government
witnesses about the informant’s bias and motivation and (2) that the district court prevented him
from impeaching the informant by ruling that, should Valdes choose to call the informant as a
witness, the informant would not be designated as a hostile witness and thus Valdes could not
ask her leading questions. These arguments are without merit because the informant did not
testify, and “[t]he law is clearly established that one may not introduce evidence to impeach a
witness who does not testify.” United States v. Williams, 954 F.2d 668, 672 (11th Cir. 1992).
We review for abuse of discretion a district court’s decision to limit the scope of a party’s cross
examination, see United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996); we find no abuse
of discretion here.

                                                 5
subsequently learned was false testimony, and that the falsehood was material.”

United States v. Vallejo, 297 F.3d 1154, 1163-64 (11th Cir. 2002) (internal

quotation marks omitted). Under Giglio, the Government is required to turn over

to a criminal defendant any impeachment evidence that is likely to cast doubt on

the reliability of a witness whose testimony may be determinative of guilt or

innocence. United States v. Jordan, 316 F.3d 1215, 1226 n.16, 1253 (11th Cir.

2003).

         In this case, the Government had no Giglio obligation with regard to the

confidential informant. Giglio requires the Government to provide impeachment

information about testifying witnesses, and the informant did not testify as a

witness at trial. See Jordan, 316 F.3d at 1226 n.16, 1253; see also Smith v. Kemp,

715 F.2d 1459, 1467 (11th Cir. 1983). The Government’s refusal to disclose to

Valdes impeachment evidence regarding its confidential informant did not violate

Giglio.6

                                   III. The Jury Instruction

         Valdes argues that the district court erred in refusing to give a jury



         6
          We have thoroughly examined the transcripts of the tape-recorded conversations that
were introduced at trial and conclude that the statements made by the confidential informant
have little or no probative value in this case. Rather, it is Valdes’s own statements on the tapes,
apart from anything said by the confidential informant, that clearly demonstrate his participation
in arranging the drug transaction that was to be carried out on March 3, 2005.

                                                 6
instruction on Valdes’s alleged withdrawal from the drug conspiracy. Valdes says

that he was entitled to have the district court give any jury instruction for any

theory of defense supported by the evidence, and that the basis for his requested

withdrawal instruction was that he withdrew from the conspiracy when he called

off the cocaine sale during a telephone conversation with the confidential

informant.

       We review “a district court’s refusal to give a jury instruction requested by

the defense for an abuse of discretion.” United States v. Dulcio, 441 F.3d 1269,

1275 (11th Cir. 2006). “For the denial of a requested jury instruction to be

reversible error a defendant must show that the instruction: (1) was a correct

statement of the law; (2) was not adequately covered in the instructions given to

the jury; (3) concerned an issue so substantive that its omission impaired the

accused's ability to present a defense; and (4) dealt with an issue properly before

the jury.” Id. (internal quotation marks omitted).

       Unlike criminal conspiracy generally, a conspiracy to commit a drug crime

prohibited by 21 U.S.C. § 846 does not require for completion the carrying out of

an overt act in furtherance of the underlying drug crime. United States v. Garcia,

655 F.2d 59, 62 (5th Cir. Unit B 1981).7 Valdes’s proposed jury instruction on


       7
        Decisions by a Unit B panel of the former Fifth Circuit are binding precedent in the
Eleventh Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).

                                                7
withdrawal stated that the conspiracy would not become complete until an overt act

in furtherance of the underlying drug crime was committed. Valdes wanted to

argue to the jury that he could have withdrawn from the putative conspiracy at any

time before an overt act was committed and that he did in fact withdraw from the

conspiracy before the drug transaction was complete. The jury instruction

proposed by Valdes, however, was not a correct statement of the law regarding the

type of conspiracy with which he was charged, and, therefore, the district court did

not err in refusing to give it. See Dulcio, 441 F.3d at 1275.

                              IV. The Batson Challenge

      Valdes, a Hispanic male, argues that the Government violated Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), by using three of its four

peremptory challenges to strike other Hispanic males from the pool of potential

jurors. Valdes asserts that the use of those strikes in that manner constitutes a

prima facie case of discrimination and that the Government’s proffered race-

neutral reasons were pretextual.

      We review the district court’s resolution of a Batson challenge with great

deference. United States v. Allen-Brown, 243 F.3d 1293, 1296 (11th Cir. 2001).

“A district court’s finding as to why a juror is excused is an issue of fact, and as

such, it will not be disturbed on appeal ‘unless it is clearly erroneous or appears to



                                           8
have been guided by improper principles of law.’” Id. at 1297.

      “The Batson three-step procedure for evaluating an objection to a

peremptory challenge is as follows: (1) the objector must make a prima facie

showing that the peremptory challenge is exercised on the basis of race; (2) the

burden then shifts to the challenger to articulate a race-neutral explanation for

striking the jurors in question; and (3) the trial court must determine whether the

objector has carried its burden of proving purposeful discrimination.” Id.

      Valdes raised his Batson objection in response to the striking of a third

Hispanic male juror from the jury pool. The district court did not clearly err in

determining that the Government’s race-neutral explanation for striking this juror

was legitimate and that Valdes had not carried his burden of demonstrating

purposeful discrimination. The reasons proffered by the Government were that the

juror was an attorney from another country and knew Valdes’s attorney. Although

the juror in question was the third Hispanic male the Government had stricken

from the jury pool, the Government had left on the jury at least three other

Hispanics. See United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995)

(“Although the presence of [Hispanic] jurors [on the empaneled jury] does not

dispose of an allegation of race-based peremptory challenges, it is a significant

factor tending to prove the paucity of the [discrimination] claim”). Valdes



                                           9
presented no argument to the district court as to why the Government’s proffered

reasons might be insufficient or pretextual, and the district court accepted the

Government’s proffered reasons, thus determining that Valdes had failed to carry

his burden of demonstrating that the Government’s use of its peremptory strike

was racially discriminatory. This finding was not clearly erroneous.

      As Valdes did not request separate explanations for the Government’s

challenges to the first two Hispanic males struck from the jury, any Batson

objection to their exclusion was waived. See United States v. Cashwell, 950 F.2d

699, 704 (11th Cir. 1992).

      Upon careful consideration of the parties’ briefs and a thorough review of

the record, we find no reversible error. Accordingly, Valdes’s conviction is

      AFFIRMED.




                                          10
