           Case: 13-11038   Date Filed: 03/06/2014   Page: 1 of 8


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11038
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cr-20344-WPD-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                  versus

LUIS RAMON BATISTA,
ELIA O. VARGAS TERRERO,
a.k.a. Elia Vargas,

                                                         Defendant-Appellant.


                      ________________________

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

                             (March 6, 2014)

Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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      Luis Ramon Batista and Elia O. Vargas Terrero (Vargas) appeal their

convictions following a jury trial. The jury convicted Batista of conspiring to steal

goods valued at $1,000 or more from a truck traveling in interstate commerce, in

violation of 18 U.S.C. §§ 371 and 659; stealing goods valued over $1,000 from a

truck traveling in interstate commerce, also in violation of 18 U.S.C. § 659; and

making a false statement to the Federal Bureau of Investigation (FBI), in violation

of 18 U.S.C. § 1001(a)(2). Vargas was convicted only of making a false statement

to the FBI. Batista and Vargas raise three issues on appeal, which we address in

turn. After review, we affirm their convictions.

                         I. LAY WITNESS TESTIMONY

      Batista and Vargas both argue on appeal the district court improperly

admitted expert testimony through lay witnesses, in violation of Federal Rule of

Evidence 701(c). Specifically, they argue the following three categories of

testimony should not have been permitted: (1) an FBI agent’s testimony, using cell

phone records, regarding Batista’s and Vargas’s location at particular times; (2) a

police officer’s testimony, using government weather data, regarding the weather

at a particular time and location; and (3) phone company records custodians’

statements that cell phone calls connect to cell towers and that the connection was

made to the tower with the strongest available signal.




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      A non-expert witness may give opinion testimony if the testimony is: “(a)

rationally related to the witness’s perception; (b) helpful to clearly understanding

the witness’s testimony or to determining a fact in issue; and (c) not based on

scientific, technical, or other specialized knowledge within the scope of Rule 702.”

Fed. R. Evid. 701. Subsection (c) was added to the Rule in 2000 to prevent expert

testimony from being offered nominally as lay opinion testimony. United States v.

Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005). The determination of whether

testimony is properly admitted as lay opinion is based upon the nature of the

testimony, not whether the witness could be qualified as an expert. United States

v. LeCroy, 441 F.3d 914, 926-27 (11th Cir. 2006).

      In United States v. Hamaker, 455 F.3d 1316, 1331-32 (11th Cir. 2006), we

held that a lay witness could testify as to the data entries made in company time

sheets. We noted that, because the witness “simply added and subtracted numbers

from a long catalogue of [] records, and then compared those numbers in a

straightforward fashion,” his review of the records was “within the capacity of any

reasonable lay person.” Id.

      The district court did not abuse its discretion in allowing the testimony to be

admitted through lay witnesses. United States v. Jayyousi, 657 F.3d 1085, 1102

(11th Cir. 2011), cert. denied, 133 S. Ct. 29 (2012) (reviewing the admissibility of

lay opinion testimony for an abuse of discretion). The FBI agent’s testimony is


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analogous to the admissible testimony in Hamaker. He used Batista’s and

Vargas’s cell phone records, along with the phone companies’ records of where

their cell phone towers were located, to plot on a map which towers connected with

which cell phone at a particular point in time. In order to produce the maps, the

agent had to (1) read the cell phone records to determine which cell tower was used

at a particular time, (2) look up the latitude and longitude of that cell tower in the

companies’ records, and (3) mark the intersection of the latitude and longitude on a

map. The district court, therefore, did not abuse its discretion in admitting the

testimony.

      For similar reasons, the officer’s testimony was also admissible. He testified

regarding (1) the entries for precipitation on a government weather report, and

(2) the distance, using maps, from the weather station to the road in specific cities.

The reading of the data and basic comparison of locations was also analogous to

the testimony in Hamaker, and the court, therefore, did not abuse its discretion in

admitting it. See id.

      The testimonies of the records custodians were also admissible under Rule

701(c). The court here limited the witnesses to testifying that (1) cell phones

connect to cell phone towers, and (2) cell phones generally connect to the tower

with the closest, strongest signal. It is common knowledge that cell phones

connect wirelessly to a nearby cell phone tower. See Tampa Bay Shipbuilding &


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Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213, 1222-23 (11th Cir. 2003)

(noting Rule 701(c) was not intended to prohibit lay witnesses from testifying to

matters of common knowledge). Further, even if not “common knowledge,” the

custodians, as lay witnesses, were entitled to testify to their “particularized

knowledge” based on their experience. See id. at 1223 (explaining testimony

based on “particularized knowledge garnered from years of experience within the

field,” is not prohibited by Rule 701(c)). The court, therefore, also did not abuse

its discretion in allowing the records custodians to testify as they did. 1

                               II. CUMULATIVE ERROR

       Batista next asserts his convictions should be reversed based on cumulative

error. In doing so, Batista lists several places in the record where he asserts

evidentiary errors occurred, but does not present any analysis as to why those

rulings were erroneous.

       The bulk of Batista’s “cumulative error” analysis is a repetition of his

argument the court admitted evidence in violation of Rule 701(c). Additionally,

without providing any analysis, Batista also points to a string cite of three places in


       1
         Batista also purports to raise an argument challenging the denial of his Federal Rule of
Criminal Procedure 29 motion for a judgment of acquittal. However, he only argues that ruling
was error insofar as, absent the improperly admitted expert testimony, there would not have been
enough evidence for a conviction. This is essentially an argument that the alleged evidentiary
error was not harmless. See Henderson, 409 F.3d at 1300. As such, we do not address the
sufficiency of any of Batista’s convictions. Further, as there was no evidentiary error, no
harmless error analysis is necessary.

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the record where he asserts the court admitted improper hearsay testimony. “We

routinely decline to address such cursory arguments, and this case presents no

exception.” United States v. Belfast, 611 F.3d 783, 821 (11th Cir. 2010); United

States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (stating any issue not

plainly and prominently raised on appeal will be deemed abandoned). Even if not

abandoned, Batista argues the hearsay violations warrant reversal only insofar as

they are cumulative to the argued Rule 701(c) errors. As the district court

committed no error under Rule 701(c), Batista’s claim of cumulative error is

without merit. See United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004)

(explaining where no individual errors are demonstrated, no cumulative error

exists).

                            III. FALSE STATEMENT

       Vargas contends the Government failed to present sufficient evidence to

support her conviction for making a false statement to a government official

regarding whether she traveled south of Orlando.

       The elements of making a false statement under 18 U.S.C. § 1001 are:

(1) the defendant made a false statement; (2) the statement was material; (3) the

defendant acted with specific intent to mislead; and (4) the matter was within the

purview of a federal government agency. United States v. McCarrick, 294 F.3d

1286, 1290 (11th Cir. 2002). The statement, however, need not have had actual


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influence, but must simply have had the capacity to impair the functioning of a

government agency. United States v. Boffil-Rivera, 607 F.3d 736, 741-42 (11th

Cir. 2010). The intent element of the statute can be met where the jury can

reasonably infer from circumstantial evidence that the defendant acted knowingly

and willfully. United States v. Gafyczk, 847 F.2d 685, 692 (11th Cir. 1988).

      Granting every inference in favor of the verdict, there was sufficient

evidence that Vargas made a false statement. See United States v. Beckles, 565

F.3d 832, 840 (11th Cir. 2009) (reviewing de novo whether sufficient evidence

supports a conviction, and drawing all reasonable factual inferences from the

evidence in favor of the verdict). The government official testified Vargas told

him that she did not travel to Miami before reporting the cargo stolen. Vargas’s

cell phone records, however, revealed her cell phone was in Miami before the truck

and cargo were reported stolen. The jury could have reasonably inferred, absent

any evidence to the contrary, that Vargas was with her cell phone. The official’s

testimony that he did not write in his notes that Vargas denied going to Miami

before reporting the stolen cargo may go to the credibility afforded to his

testimony. However, on sufficiency review, we draw reasonable inferences in

favor of the verdict, and sufficient evidence supports the conviction. See id.

      Vargas also argues that, because the official was aware the stolen

merchandise was stored in Miami, Vargas’s false statement was not a material one.


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However, his knowledge that the merchandise was in Miami did not render his

inquiry into whether Vargas, herself, went to Miami, immaterial to the

investigation. Arguably, that knowledge would make it more critical for the

official to know Vargas’s whereabouts to determine whether Vargas may have

been involved in bringing the property to Miami herself. To be “material,” the

false statement must have been capable of influencing the decision making of the

agency to which it was addressed. See Boffil-Rivera, 607 F.3d at 741. The

whereabouts of a witness or suspect to a theft (one who had access to the truck

containing the stolen goods) around the time the goods were stolen easily meets

that test.

       As the official was working for the federal government investigating an

interstate theft, the statement fell under the purview of a federal agency.

McCarrick, 294 F.3d at 1290. Further, as Vargas responded to a direct question of

whether she went to Miami before reporting the goods stolen, and her answer was

similarly direct, the jury could have inferred intent on her part to deceive. See

Gafyczk, 847 F.2d at 692. Accordingly, there was sufficient evidence to support all

of the elements of a § 1001 offense.

       AFFIRMED.




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