           Case: 16-15335    Date Filed: 09/29/2017   Page: 1 of 4


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15335
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:15-cr-20332-MGC-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

THOMSIN PIERRE,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 29, 2017)

Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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       Thomsin Pierre appeals his conviction for conspiracy to possess with intent

to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. Pierre contends

the district court erred when it denied his adopted motion to suppress evidence

found on his cell phones seized pursuant to a non-arrest detention. After review,1

we affirm.

                                         I. DISCUSSION

       Pierre argues on appeal that the plain-view doctrine did not apply in this case

for two reasons: first, the officers did not have lawful access to his cell phones

during the stop; and second, the incriminating nature of the cell phones was not

immediately apparent. We need not, however, address his arguments because, as

the Government points out, to the extent there was any error, it was harmless.

       This Court will reverse on the basis of an erroneous evidentiary ruling “only

if the resulting error was not harmless.” United States v. Hands, 184 F.3d 1322,

1329 (11th Cir.), corrected by 194 F.3d 1186 (11th Cir. 1999); see also Fed. R.

Crim. P. 52(a). “[I]f the jury might have relied on the unconstitutional evidence in

reaching its verdict, then the error was harmful unless the other evidence of guilt

was so overwhelming that the defendant suffered no prejudice from the admitted

evidence.” United States v. Khoury, 901 F.2d 948, 960 (11th Cir.), opinion


       1
         We review a district court’s denial of a motion to suppress under a mixed standard,
reviewing the district court’s findings of fact for clear error, and its application of the law to
those facts de novo. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).
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modified on denial of reh’g, 910 F.2d 713 (11th Cir. 1990) (citing United States v.

Drosten, 819 F.2d 1067, 1072 (11th Cir. 1987)). Here, although the jury may have

relied in part on the cell phone evidence, the additional evidence of guilt was

overwhelming. Both of Pierre’s co-conspirators that testified at trial stated that

Pierre was the source of the funds for the attempted cocaine purchase, and they

recounted at length and in detail his role. Moreover, the testimony of the arresting

officers corroborated the co-conspirators’ stories regarding Pierre’s participation in

the transaction: police observed Pierre at the scene of the attempted purchase

involved in a verbal altercation with his co-conspirators after the cocaine deal fell

through and saw him repossessing a blue bag full of cash that Pierre’s co-

conspirators had assured an undercover agent was the purchase money. The police

followed Pierre as he drove off with another co-conspirator; Pierre attempted to

evade them while throwing objects out the window of the vehicle until he was

arrested. After being read his Miranda rights, Pierre freely admitted the cash

belonged to him. The arresting officer asked what he planned to buy with the

money and Pierre replied that he was going to buy a “car,” which all of the

witnesses at trial agreed is a well-known code word for cocaine. When the

arresting officer inquired as to what kind of automobile Pierre intended to

purchase, Pierre said he did not know, and when the officer asked whether “car”

was in fact code for “cocaine,” Pierre merely chuckled and smirked. Finally,


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Pierre’s banking records and employment history indicated he lied to the officers

about where the money came from. In short, the cell phone evidence, although

indicative of Pierre’s guilt, was merely icing on the cake. The voluminous

additional evidence of Pierre’s guilt was so overwhelming that any error in the

introduction of the cell phone evidence was harmless. See Khoury, 901 F.2d at

960.

                                 II. CONCLUSION

       For the reasons stated above, we affirm Pierre’s conviction.

       AFFIRMED.




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