            Case: 13-15774   Date Filed: 01/09/2015   Page: 1 of 8




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15774
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:05-cr-20586-KMM-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

RIGAL BAPTISTE,

                                                          Defendant-Appellant.

                       ________________________

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

                             (January 9, 2015)

Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      On July 3, 2005, Linda Nicolas arrived at the Miami International Airport on

a flight from Haiti with a kilo of cocaine concealed in her lower abdomen over

which she work a skin-tight pair of elastic biker shorts. She aroused the suspicion

of Customs officers and, on inspection, the cocaine was discovered. On

questioning by Special Agents of the U.S. Immigration and Customs Enforcement

(“ICE”), Nicolas admitted that she was attempting to smuggle cocaine into the

United States. She said that she was to have been met at the airport by a man who

would escort her and the smuggled cocaine to Bradenton, Florida.

      Nicolas agreed to cooperate with the agents and gave them a description of

the man she was to meet. Under the agents’ supervision, Nicolas led them to the

location in the airport where the meeting was to take place, and they spotted a man

make eye contact with her and make subtle gestures to summon her. The agents

seized the man, Rigal Baptiste, the appellant, and detained him. Special Agents

McBride and Morales interviewed Baptiste, and he admitted making arrangements

for Nicolas to travel to Haiti to pick up a quantity of cocaine; he was to deliver the

cocaine to a Mark Jerome in Bradenton.

      Baptiste and Nicolas were arrested, and on July 15, 2005, jointly indicted on

four counts for conspiracy to import cocaine, 1 conspiracy to distribute cocaine,2



      1
          21 U.S.C. § 963.
      2
          21 U.S.C. § 846.
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and possession of cocaine with intent to distribute.3 Nicolas pled guilty to all

counts on September 1, 2005. Appellant, who had entered pleas of not guilty and

been admitted to bail, absconded and became a fugitive. He was arrested on May

24, 2013 and on September 24, 2013, stood trial before a jury. 4 He was found

guilty as charged and, on December 13, 2013, given concurrent prison sentences of

120 months.

       Baptiste appeals his convictions, seeking a new trial on three grounds: the

District Court (1) infringed the hearsay rule and his Confrontation Clause right by

allowing Special Agents McBride and Morales to testify to Nicolas’s description of

Baptiste’s involvement in the conspiracies to import and distribute the cocaine

found on her person; (2) allowed the prosecutor to elicit inculpatory statements

from the agents but excluded exculpatory statements; (3) allowed the Government

to shift the burden of proof via the rebuttal portion of the prosecutor’s closing

argument to the jury at the close of the evidence. We affirm.

                                                I.

       A trial court ruling on the admissibility of evidence is reviewed for abuse of

discretion. Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997). Whether a



       3
           21 U.S.C. § 841(a)(1).
       4
           Baptiste was tried on a superseding information which replicated the four counts of the
initial indictment but omitted Nicolas as a codefendant. Baptiste was charged in a separate
indictment with failing to appear and pled guilty to the offense.
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ruling denies a constitutional right is reviewed de novo. United States v. Brown,

364 F.3d 1266, 1268 (11th Cir. 2004).

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

testifying at the trial . . ., offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). An out-of-court statement offered for a reason

other than its truth is not hearsay. Id. An out-of-court statement may be admitted

to explain why an officer conducted a particular investigation if “the probative

value of the [statement’s] non-hearsay purpose is not substantially outweighed by

the danger of unfair prejudice caused by the impermissible hearsay use of the

statement.” United States v. Baker, 432 F.3d 1189, 1209 n.17 (11th Cir. 2005); see

also United States v. Jiminez, 564 F.3d 1280, 1287–88 (11th Cir. 2009) (allowing

an out-of-court statement to explain an officer’s conduct).

       The Sixth Amendment protects a criminal defendant’s right to confront the

witnesses against him. U.S. Const. amend VI. The Supreme Court explained in

Crawford v. Washington that the Sixth Amendment prohibits the introduction of

out-of-court testimonial statements unless the declarant is unavailable to testify and

the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. 36,

68, 124 S.Ct. 1354, 1374, 158 L. Ed.2d 177 (2004). However, the Confrontation

Clause “prohibits only statements that constitute impermissible hearsay,” and does

not bar “the use of testimonial statements for purposes other than establishing the


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truth of the matter asserted.” Jiminez, 564 F.3d at 1286–87 (quoting Crawford,

541 U.S. at 59 n.9, 124 S. Ct. at 1369).

      We find no hearsay or Confrontation Clause violation here. The agents did

not testify as to the actual statements that Nicolas provided, but, rather, testified

that she made a statement describing her coconspirator and that, as a result, they

were able to identify Baptiste and verify that he was involved in the cocaine

smuggling operation. To the extent the contents of her statements were revealed or

necessarily implied, they were not hearsay because they were not admitted for the

truth of the matter asserted, but rather to explain the basis for the agents’

investigatory actions in identifying and locating Baptiste, approaching him, and

bringing him to a secure area for questioning. Jiminez, 564 F.3d at 1287–88. Any

prejudicial effect of this ruling was mitigated by Baptiste’s admission that he

organized the smuggling venture and the circumstantial evidence corroborating the

admission. This same analysis applies to Baptiste’s Confrontation Clause

argument, which likewise fails.

                                           II.

      Baptiste’s defense was that he had been “set up” by Nicolas, with whom he

had been romantically involved. Since Nicolas did not testify as a prosecution

witness and Baptiste did not take the stand or present any evidence in his own




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defense, Baptiste attempted to establish this defense through his cross-examination

of Special Agents McBride and Morales.

      [Defense Counsel]: Do you remember talking to Rigel Baptiste about
      whether there had been a sexual relationship with Linda Nicolas?

      [McBride]: I don’t remember asking him. But it was -- it would not
      have been an unusual question for me to ask him.

      [Defense Counsel]: You don’t remember -- do you remember what he
      said about that? Did he deny it at that time?

      [McBride]: I -- honestly, I don’t remember off the -- from memory.
      No, sir. I don’t remember.

Doc. 134, at 91.

      After counsel asked McBride whether he remembered Baptiste saying, “is it

a crime to pick up my girlfriend at the airport on a flight coming in?” the

prosecutor objected: “First of all, it’s hearsay. Secondly, it’s [been] asked and

answered.” The court sustained the objection. Id. at 91–91.

      Defense counsel asked similar questions of Special Agent Morales, but all

he could recall was that Baptiste stated that he had driven Nicolas to the airport and

was going to pick her up after she returned from Haiti. When counsel asked, “Did

he admit that he was kind of really hot in her [sic] in a sexual relationship?” the

prosecutor objected on hearsay grounds and the court sustained it. Doc. 135, at 81.

      We find no abuse of discretion in the court’s rulings. First, both witnesses

said they had no recollection of the statements Baptiste’s purportedly made, as


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reflected in counsel’s questions, and that should have ended the inquiry. Second,

Baptiste’s argument—advanced for the first time in his brief to this court—that, for

sake of completeness, the statements Baptiste purportedly made, as indicated in

counsel’s questions, should have come in through Federal Rule of Evidence 106, is

meritless. Rule 106 states:

      When a writing or recorded statement or part thereof is introduced by
      a party, an adverse party may require the introduction at that time of
      any other part or any other writing or recorded statement which ought
      in fairness to be considered contemporaneously with it.

      McBride and Morales were testifying from their reports of the investigation

and their interview of Baptiste. The reports contained no indication that Baptiste

uttered the sexual relationship statements suggested in the questions counsel posed.

In short, there is nothing in the record indicating that further questioning along the

lines counsel was pursuing would have “in fairness” rendered the agents’

testimony complete.

                                         III.

      Baptiste argues that the District Court, in overruling his objection to the

prosecutor’s rebuttal argument, in which he referred to the defense’s failure to call

an expert witness on interrogation, allowed “the prosecution to distort important

facts and shift the burden of proof.” Appellant’s Br., at 28. This reference was in

response to defense counsel’s own argument in closing that the Government should

have called an interrogation expert to testify in its case in chief. The court’s charge
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to the jury, which was delivered following closing argument, plainly informed the

jury that the Government had the burden of proving all the elements of the crimes

with which Baptiste had been charged. There is no reasonable probability that but

for the prosecutor's reference to the defense's failure to call an interrogation expert,

the outcome of the trial would have been different.

      AFFIRMED.




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