           Case: 18-13237   Date Filed: 09/13/2019   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13237
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:16-cr-00295-MSS-AEP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ANDREW HALEY MORCOMBE,

                                                         Defendant-Appellant.

                       ________________________

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

                            (September 13, 2019)

Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Andrew Haley Morcombe appeals his conviction and sentence of 36

months’ imprisonment for international parental kidnapping in violation of 18

U.S.C. § 1204(a). Morcombe argues that the district court erred in five respects:

first, in excluding testimony concerning the minor victim’s (his daughter, V.M.’s)

out-of-court statements as inadmissible hearsay; second, in concluding that a

psychologist’s deposition addressing V.M.’s mental condition was also

inadmissible because Morcombe had arranged for the psychologist to assess V.M.

in anticipation of litigation; third, in issuing erroneous jury instructions regarding

the definition of “domestic violence” in § 1204(c)(2)1; fourth, in denying

Morcombe’s motion to continue the trial; and fifth, in imposing a sentence that

exceeded the range recommended by the Sentencing Guidelines. We conclude that

none of Morcombe’s contentions are persuasive and therefore affirm his conviction

and sentence.

       The parties are familiar with the facts of the case; we repeat them here only

as necessary.

                                                  I

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

abuse of discretion. United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir.



1
  “It shall be an affirmative defense under this section that . . . the defendant was fleeing an
incidence or pattern of domestic violence.” 18 U.S.C. § 1204(c)(2).
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2013). A district court abuses its discretion if it “applies an incorrect legal

standard or makes findings of fact that are clearly erroneous.” Id. (citation

omitted)

      Hearsay is defined in Rule 801 of the Federal Rules of Evidence as a

statement, other than one made by the declarant while testifying at trial, offered to

prove the truth of the matter asserted. Fed. R. Evid. 801(c). Hearsay statements

are inadmissible unless otherwise authorized by federal statute, the Federal Rules

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

An out-of-court statement submitted to show the statement’s effect on the hearer,

by contrast, is generally not hearsay because it is neither (1) an assertive statement

nor (2) offered to prove the truth of the matter asserted. United States v. Rivera,

780 F.3d 1084, 1092 (11th Cir. 2015); United States v. Cruz, 805 F.2d 1464, 1478

(11th Cir. 1986) (“[A]n utterance may be admitted to show the effect it has on a

hearer.”).

      Morcombe contends that he submitted testimony relating V.M.’s out-of-

court statements not to prove their truth but rather to show their effect on him. In

particular, Morcombe argues that these statements indicated V.M.’s susceptibility

to domestic violence when living with his ex-wife, and thus contributed to

Morcombe’s affirmative defense under § 1204(c)(2).




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      The text of § 1204(c) indicates why Morcombe’s argument fails. It provides

an affirmative defense for a defendant “fleeing an incidence or pattern of domestic

violence.” 18 U.S.C. § 1204(c)(2). But the provision says nothing about fleeing

based on a reasonable belief about an incident or pattern of domestic violence.

Morcombe’s state of mind—and any effect that V.M.’s statements had on it—was

thus immaterial to his affirmative defense. The testimony from third parties

relating V.M.’s statements to them was therefore either inadmissible as irrelevant

or, as the district court found, because Morcombe’s actual intention was to prove

the truth of the matter asserted (that V.M. had suffered domestic violence). In

either case, the statements were inadmissible.

                                         II

      Statements made for medical diagnosis or treatment are admissible as

exceptions to the rule against hearsay. Federal Rule of Evidence 803(4) limits this

exception to a statement that “(A) is made for—and is reasonably pertinent to—

medical diagnosis or treatment; and (B) describes medical history; past or present

symptoms or sensations; their inception; or their general cause.” Morcombe

contends that V.M.’s statements to a psychologist in Australia, as detailed in that

psychologist’s deposition, were admissible because they demonstrated the trauma

that V.M. sustained due to domestic violence. Given the psychologist’s deposition

and related e-mails included in the record—in particular, an email in which


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Morcombe indicated that he was seeking the psychologist’s aid in convincing a

judge to grant him an injunction—we agree with the district court that Morcombe

sought the psychologist’s opinion principally in anticipation of family-court

litigation.

       We also conclude that any error in excluding this evidence was harmless.

An evidentiary error is harmless if, in light of the entire record, the error had no

substantial influence on the outcome and sufficient evidence uninfected by error

supports the verdict. United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir.

2007). The relevant portions of the psychologist’s opinion were ultimately shown

to the jury, and Morcombe has not persuaded us that any of the material that the

district court excluded would have influenced the jury’s verdict or his sentence.

                                          III

       This Court does not review alleged errors “invited” by the party alleging the

same error. United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). As

relevant here, the doctrine of invited error provides that a defendant generally

waives his right to challenge jury instructions when his counsel has expressly

agreed to their content. See United States v. Silvestri, 409 F.3d 1311, 1337 (11th

Cir. 2005) (“[The defendant] affirmatively waived his right to challenge the

instruction when his counsel told the district court that the jury instructions

‘covered the bases.’”). When invited error applies, we may not review the claim


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even if plain error would result. United States v. Frank, 599 F.3d 1221, 1240 (11th

Cir. 2010) (concluding that a defendant waived review of the alleged error because

he “not only agreed with” the jury instructions, “but requested them”).

      Not only did Morcombe fail to object when the district court concluded that

state-law definitions of “domestic violence” were appropriate for the jury

instructions, he agreed that domestic violence was defined by the applicable state

laws. And even if we were to credit Morcombe’s argument that he acceded to the

state-law definitions only after the district court had made its inclinations clear,

Morcombe has not demonstrated that the district court plainly erred in using state-

law definitions. To establish that an error is “plain,” Morcombe must show,

among other things, that the district court’s error was contrary to controlling

precedent or the clear words of a statute or rule. United States v. Humphrey, 164

F.3d 585, 588 (11th Cir. 1999). But Morcombe has expressly acknowledged that §

1204 does not define “domestic violence,” and points us toward only non-binding

case law in arguing that the definitions used here were erroneous. We therefore

affirm the district court’s jury instructions as well.

                                           IV

      We review the district court’s denial of Morcombe’s motion for a

continuance for abuse of discretion. United States v. Graham, 643 F.3d 885, 893

(11th Cir. 2011). The Sixth and Fourteenth Amendments to the Constitution


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guarantee that any person brought to trial in a federal court will be afforded the

right to assistance of counsel before he can be validly convicted and punished by

imprisonment. United States v. Jeri, 869 F.3d 1247, 1257 (11th Cir. 2017).

Implicit in that guarantee is the right to adequate time for counsel to prepare a

defense. Id.

      There is no mechanical test to determine whether the denial of a continuance

deprived a party of due process. Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

Instead, “[t]he answer must be found in the circumstances present in every case,

particularly in the reasons presented to the trial judge at the time the request is

denied.” Id. Among other relevant circumstances, we have considered the “time

available for preparation, the likelihood of prejudice from denial, the accused’s

role in shortening the effective preparation time, the degree of complexity of the

case, and the availability of discovery from the prosecution.” United States v.

Garmany, 762 F.2d 929, 936 (11th Cir. 1985) (quotations omitted).

      We refuse to conclude that the district court abused its discretion because

Morcombe has not identified specific, substantial prejudice that resulted from the

district court’s denial of his motion for a continuance. See United States v. Saget,

991 F.2d 702, 708 (11th Cir. 1993). The district court’s decision did not limit

Morcombe’s own ability to testify or to call other witnesses to testify regarding

their personal observations. And although Morcombe ultimately did not put on a


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defense, that was a strategic decision. Morcombe decided to rest only after seeing

things “develop[] in trial”—adding that evidence had been introduced that he “did

not anticipate was going to come in during the Government’s case.” The time

available for preparation, Morcombe’s attorney’s role in shortening the effective

preparation time, and the complexity of the case do not call for a different

conclusion. We therefore affirm in this respect as well.

                                          V

      Finally, we review the procedural and substantive reasonableness of the

district court’s sentence for abuse of discretion. United States v. Duperval, 777

F.3d 1324, 1331 (11th Cir. 2015). The party challenging the sentence bears the

burden of showing that it is unreasonable in light of the record and the factors

detailed in 18 U.S.C. § 3553(a). United States v. Tome, 611 F.3d 1371, 1378 (11th

Cir. 2010).

      A sentence is procedurally unreasonable if the district court erred in

calculating the Guidelines range; treated the Sentencing Guidelines as mandatory;

failed to consider the § 3553(a) factors; selected a sentence based on clearly

erroneous facts; or failed to adequately explain the sentence, including any

deviation from the Guidelines range. United States v. Rodriguez, 628 F.3d 1258,

1264 (11th Cir. 2010).




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      If we find that a sentence is procedurally reasonable, we then examine

whether the sentence is also substantively reasonable. Gall v. United States, 552

U.S. 38, 51 (2007). The district court must impose a sentence that is “sufficient,

but not greater than necessary, to comply with the purposes” indicated by

§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote

respect for the law, provide just punishment for the offense, deter criminal conduct,

and protect the public from the defendant’s future criminal conduct. The weight

given to a particular factor is committed to the sound discretion of the district

court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007), and we will

reverse its determination only if we are left with the firm conviction that the court

committed a clear error of judgment, United States v. Irey, 612 F.3d 1160, 1186

(11th Cir. 2010) (en banc).

      First, we conclude that Morcombe’s 36-month sentence was procedurally

reasonable. The district court’s findings that Morcombe made false allegations and

displayed little remorse were supported by the record. See Rodriguez, 628 F.3d at

1264. In addition, when imposing the sentence, the district court stated that it had

considered the § 3553(a) factors and explained why it varied Morcombe’s sentence

above the Guidelines range. Id.

      Morcombe’s sentence was also substantively reasonable. It was well within

the district court’s discretion to reject the testimony of Morcombe’s character


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witnesses, or to find that their testimony was outweighed by that of his victims.

See 18 U.S.C. § 3553(a)(1); Clay, 483 F.3d at 743. It was also within the district

court’s discretion to give little weight to Morcombe’s career, education, and lack

of a criminal history given the court’s emphasis on the seriousness of the other

sentencing factors. In sum, nothing in the record indicates that the district court

committed clear error. We therefore affirm its sentence.

      AFFIRMED.




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