     Case: 17-10073      Document: 00514821941         Page: 1    Date Filed: 02/04/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 17-10073                                FILED
                                                                          February 4, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANTONIO BALLESTEROS, also known as Antonio Ballesteros Meza,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:16-CR-122-21


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Antonio Ballesteros appeals his conviction and 360-month sentence for
conspiracy to possess with intent to distribute 500 grams or more of
methamphetamine, asserting that the district court (1) violated his rights
under the Confrontation Clause; (2) admitted improper hearsay evidence;
(3) admitted unfairly prejudicial drug evidence seized from an uncharged
coconspirator; and (4) erroneously applied a two-level guidelines enhancement


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-10073

because the offense involved the importation of methamphetamine.
Ballesteros concedes, correctly, that the last issue is foreclosed. See United
States v. Foulks, 747 F.3d 914, 914-15 (5th Cir. 2014).
      Ballesteros first contends that the district court violated the
Confrontation Clause by admitting into evidence a report reflecting his
movements based on GPS tracking of his cell phone. Because Ballesteros did
not raise his Confrontation Clause claim in the district court, we review this
issue for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
The Sixth Amendment prohibits prosecutors from introducing an out-of-court
testimonial statement at trial unless the declarant is unavailable to testify and
the accused has had a prior opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 59, 68 (2004). The Confrontation Clause
applies to testimonial hearsay and does not bar the admission of nonhearsay
statements. See Williams v. Illinois, 567 U.S. 50, 57 (2012). A “statement,” for
purposes of the hearsay rule, is “a person’s oral assertion, written assertion, or
nonverbal conduct[.]” FED. R. EVID. 801(a) (emphasis added).
      Ballesteros does not cite, and we have not found, any decision by this
court holding that the output of a computer program, such as a GPS report,
amounts to a hearsay “statement” under the Sixth Amendment. A “lack of
binding authority is often dispositive in the plain-error context.” United States
v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). Moreover, at least six other
circuits have held that machine “statements” do not constitute hearsay for
confrontation purposes. See United States v. Lizarraga-Tirado, 789 F.3d 1107,
1109-10 (9th Cir. 2015) (collecting cases). Given the above, Ballesteros fails to
show that the district court clearly or obviously violated the Sixth Amendment
by admitting the GPS report. See Puckett, 556 U.S. at 135.




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                                  No. 17-10073

      Ballesteros next argues that the GPS report, a cell phone “common call
analysis,” a cell phone “frequency report,” a Facebook profile for “Anthony
Meza,” and recordings of his pretrial jail phone calls and related testimony
were admitted in violation of the hearsay rule. Hearsay is “a statement that
. . . the declarant does not make while testifying at the current trial or hearing;
and . . . a party offers in evidence to prove the truth of the matter asserted in
the statement.”    FED. R. EVID. 801(c).    The admission of the GPS report,
common call analysis, and frequency report is reviewed for plain error. See
Puckett, 556 U.S. at 135. As to the Facebook profile and jail tapes, however,
Ballesteros must show that the district court abused its discretion by admitting
them over his timely hearsay objection. See United States v. Valas, 822 F.3d
228, 239-40 (5th Cir. 2016).
      Like his related Sixth Amendment claim, Ballesteros’s hearsay
complaint about the GPS report fails on plain error due to a lack of binding
authority that machine “statements” are hearsay and ample persuasive
authority that they are not. See Gonzalez, 792 F.3d at 538; Lizarraga-Tirado,
789 F.3d at 1109-10.     Furthermore, his argument about the common call
analysis and call frequency charts is really a hearsay challenge to the
underlying phone records, which were never in evidence.            In any event,
Ballesteros’s plain error analysis is wholly inadequate. See United States v.
Charles, 469 F.3d 402, 408 (5th Cir. 2006) (holding that inadequately briefed
arguments are abandoned). Therefore, he fails to demonstrate clear or obvious
hearsay error as to these exhibits. See Puckett, 556 U.S. at 135.
      Ballesteros’s argument with respect to the “Meza” Facebook profile relies
on United States v. Browne, 834 F.3d 403, 412-13 (3d Cir. 2016). Even were
Browne binding authority, it relevantly concerns authentication under Federal
Rule of Evidence 901, not hearsay. See id. at 408-14. Otherwise, Ballesteros



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cites no law holding that a social media profile, used in the manner herein,
implicates the hearsay rule and fails to explain how, in the manner used, the
“Meza” Facebook profile made an assertion—offered for its truth—that “Meza”
was in fact Ballesteros. See FED. R. EVID. 801(c); FED. R. APP. P. 28(a)(8)(A)
(requiring appellant to cite authorities). Ballesteros further fails to identify
any specific hearsay statement contained in his recorded jail calls or related
testimony. Santillana v. Williams, 599 F.2d 634, 635 (5th Cir. 1979) (“The
burden of appellant on appeal is to persuade the appellate court that the trial
judge committed an error of law.”). Given the above, he shows no abuse of
discretion in admitting these exhibits. See Valas, 822 F.3d at 239-40.
      Lastly, Ballesteros argues that the district court erred by admitting into
evidence methamphetamine that was seized from the car of an uncharged
coconspirator.   Under Federal Rule of Evidence 403, a court may exclude
relevant evidence “if its probative value is substantially outweighed by a
danger of . . . unfair prejudice.” FED. R. EVID. 403. We will not reverse a district
court’s Rule 403 ruling absent a clear abuse of discretion. United States v.
Williams, 620 F.3d 483, 492 (5th Cir. 2010).
      Ballesteros asserts that evidence of an independent drug transaction
between two other members of the conspiracy risked confusing the jury about
his own participation in the conspiracy.       Prosecutors, however, presented
ample evidence of Ballesteros’s involvement in the conspiracy through his own
wiretapped phone conversations and related law enforcement testimony. As
such, Ballesteros fails to show that admission of the complained-of evidence
and testimony created a substantial risk that jurors would be confused as to
his involvement in the charged conspiracy. See FED. R. EVID. 403. He thus
fails to show a clear abuse of discretion. See Williams, 620 F.3d at 492.
      In all respects, the judgment of the district court is AFFIRMED.



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