           Case: 17-12673   Date Filed: 07/30/2018   Page: 1 of 10


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      __________________________

                             No. 17-12673
                         Non-Argument Calendar
                      __________________________

                  D.C. Docket No. 1:15-cr-20918-JLK-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ANDREW ECKEL,

                                                           Defendant-Appellant.


                      __________________________

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


                              (July 30, 2018)



Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      A grand jury indicted Andrew Eckel on one count of being a felon in

possession of a firearm. 18 U.S.C. § 922(g)(1). Eckel was convicted by a jury and

sentenced to sixty-three months of imprisonment. He appeals the District Court’s

ruling on an evidentiary issue and its denial of his motion for a judgment of

acquittal. We affirm the decisions of the District Court on both matters.

                                          I.

                                          A.

      On November 16, 2015, Officer Anthony Castellanos was patrolling Florida

City, Florida in the early morning hours. He was on the lookout for a white

vehicle with four doors. Sometime past 2:00 A.M., he saw a vehicle that matched

this description and began to follow it. The vehicle came to an immediate halt, and

then proceeded slowly forward. Officer Castellanos continued to follow the

vehicle, keeping his eyes on the driver. The vehicle took a turn. After making the

turn, the driver of the vehicle leveled a revolver at Officer Castellanos and fired

three shots. Officer Castellanos dove into the center console of his police cruiser

and accelerated past the vehicle. He then made a U-turn, called dispatch to report

the gunfire, and pursued the vehicle.

      A number of police officers joined in the pursuit. Officer Frantz Hardy was

one of them. He was closest to the white vehicle. And as the vehicle approached a

trailer park, its driver opened the door and leapt out. Officer Hardy exited his

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police cruiser and instructed the driver to stop and to get on the ground. The driver

did not comply. He instead jumped over a cement wall and ran into the trailer

park. Officer Hardy did not pursue the driver. But he did get a clear look at him.

He radioed dispatch and described the driver as a Spanish male with a ponytail and

a goatee who was approximately five feet and six inches tall. He also stated that

the driver was wearing black clothes.

      After the driver fled, the police established a perimeter around the trailer

park. They also investigated the white car and its surroundings. Outside the

driver’s side of the car they found a revolver with three spent rounds and a pair of

black gloves. Inside the car, they found a ski mask on the driver’s seat. The police

also discovered an intoxicated woman in the passenger’s seat; she declined to

identify the driver. The car was dusted for fingerprints.

      Later that morning, Officer Anthony Prieto apprehended Andrew Eckel in

the trailer park because he matched the description given out in the dispatch. Eckel

sported a goatee and wore black shorts and black shoes. He also had a number of

tattoos, including one on his neck that read: “Blessed.” Eckel did not, however,

have a ponytail and he was not five foot and six inches tall. Soon after his

apprehension, Eckel was shown to Officer Hardy at the police’s command post.

Officer Hardy identified Eckel as the man who fled from the white car.




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      Later, the police determined that the black gloves and the ski mask contained

Eckel’s DNA. They found Eckel’s fingerprints on the driver’s side of the car. It

also came to light at trial that Felix Zelaya, a tattoo artist who lived in the area, saw

Eckel on the night of the incident. According to Zelaya’s testimony, Eckel arrived

at his residence with a woman who was extremely intoxicated around 9:00 or

10:00 P.M. Zelaya then tattooed the word “Blessed” on Eckel’s neck. After the

tattoo was finished, Eckel gave Zelaya a ride to a nearby apartment. The time was

approximately 11:00 to 11:30 P.M. Zelaya testified that Eckel was driving a white,

four-door Kia.

                                           B.

      Before trial, the parties stipulated to the admission of the police dispatch

recordings for the night of November 16, 2015. At trial, the Government called

Officers Castellanos and Hardy to testify as to their observations on the night of

the incident. In its direct examination of Officer Castellanos, the Government did

not reference the dispatch recording. It asked him only about what he observed on

that night. On cross examination, Eckel sought to question Officer Castellanos on

the portion of the dispatch recording that contained Officer Hardy’s description of

the suspect who fled the white car. The District Court refused to allow this cross

examination unless Eckel laid a foundation for it. It stated: “If you wish to play

that part [of the dispatch recording], identify first that [Officer Castellanos] knows

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[Officer] Hardy’s voice.” But faced with the prospect of establishing this

foundation, Eckel opted to “stay away from” cross examining Officer Castellanos

as to the description in the dispatch recording.

      Later, when the Government called Officer Hardy to the stand, the dispatch

recording was played, including the part where Officer Hardy described the

suspect. The Government questioned Officer Hardy on the description he gave of

the driver of the white car in the dispatch recording. And Eckel received an

opportunity to cross examine Officer Hardy as to that description.

      At the close of the Government’s case, Eckel moved for judgment of

acquittal on the ground that the Government had not introduced sufficient evidence

to support a finding of guilt. The District Court denied this request, finding that a

reasonable factfinder could find Eckel guilty based on the evidence presented.

      The jury rendered a guilty verdict. Eckel has appealed the District Court’s

demand that he establish a foundation before cross examining Officer Castellanos

on Officer Hardy’s description of the suspect in the dispatch recording. He also

appeals the denial of his motion for judgment of acquittal.

                                          II.

      Eckel contends that the District Court erred in forbidding him from cross

examining Castellanos as to the dispatch recording unless he established a

foundation for it. We review the evidentiary rulings of a district court for an abuse

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of discretion. United States v. House, 684 F.3d 1173, 1197 (11th Cir. 2012). The

Federal Rules of Evidence forbid cross examination on matters not raised during

direct examination, unless the district court chooses to permit such an inquiry.

Fed. R. Evid. 611(b).

      In this case, the Government called Officer Castellanos as its witness. On

direct examination, the Government did not question Officer Castellanos about the

description of the suspect on the dispatch recording. It did not play the portion of

the dispatch recording that contained the description of the suspect. But on cross

examination, Eckel questioned Officer Castellanos about the physical description

of the suspect given in the dispatch recording. Specifically, Eckel asked Officer

Castellanos: “What was that physical description?” The Government objected.

      The District Court refused to allow Eckel to cross examine Officer

Castellanos on the description given in the dispatch recording unless Eckel laid a

foundation for it. If Eckel did not lay a foundation, the District Court reasoned, the

jury would not be able to understand the relevance of the recording or assess the

identity or the credibility of the individuals speaking in it. If a foundation was laid

for the dispatch recording, however, the District Court said that Eckel was free to

play it and cross examine Officer Castellanos as to its contents. But Eckel decided

to “move off” the matter. Later in the trial, the description in the recording was




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played before the jury during the testimony of Officer Hardy. Eckel cross

examined Officer Hardy on it.

      It is clear that the District Court did not abuse its discretion in refusing to

allow Eckel to cross examine Officer Castellanos as to the description of the

suspect in the dispatch recording. This matter was not discussed on direct

examination and a foundation had not been laid. Officer Castellanos also testified

that he did not see the suspect clearly enough to identify him. Consequently, any

cross examination of Officer Castellanos on the description in the recording would

have been frivolous and confusing to the jury. The District Court therefore had

good reasons to forbid the cross examination of Castellanos on the dispatch

recording, unless, of course, Eckel laid the foundation.

      Eckel also argues that the District Court violated the Sixth Amendment by

declining to allow him to cross examine Castellanos about the description in the

recording. He did not raise this constitutional objection before the District Court,

and therefore we review this claim for plain error. See United States v. Woodard,

387 F.3d 1329, 1331 (11th Cir. 2004). For us to reverse on this standard, the error

must be “obvious” and “clear” under current law. United States v. Lange, 862 F.3d

1290, 1296 (11th Cir. 2017) (quotation omitted). We must conclude: (1) there was

an error; (2) the error was plain; (3) the error seriously affected the defendant’s




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substantial rights; and (4) the error seriously affected the fairness, integrity, or

public reputation of the judicial proceedings. Woodard, 387 F.3d at 1331.

      The Sixth Amendment provides a criminal defendant the right to confront

the witnesses against him. U.S. Const. amend. VI. This includes a right to cross

examine witnesses. United States v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017).

But the Sixth Amendment “guarantees an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20,

106 S. Ct. 292, 294 (1985). A district court has “wide latitude . . . to impose

reasonable limits on . . . cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” Delaware v. Van

Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1436 (1986).

      Eckel failed to lay a foundation for the dispatch recording. He also wished

to cross examine Officer Castellanos as to the description of the suspect in the

recording, even though Officer Castellanos testified that he did not see the suspect

well enough to identify him. Accordingly, any examination of Officer Castellanos

as to Officer Hardy’s description of the suspect would have been irrelevant and

better done during the cross examination of Officer Hardy himself. The District

Court therefore committed no obvious or clear error in refusing to allow Eckel to

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cross examine Officer Castellanos as to the description of the suspect in the

recording unless he laid a foundation for it.1

                                               III.

       Eckel claims that the Government presented insufficient evidence

identifying him as the individual who discharged the firearm, and therefore that the

District Court should have granted his motion for judgment of acquittal. We

review de novo the denial of a motion for judgment of acquittal. United States v.

Seher, 562 F.3d 1344, 1364 (11th Cir. 2009). We affirm the denial if a reasonable

factfinder could have found that the evidence established guilt beyond a reasonable

doubt. Id.

       It is a crime for a person “who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one year” to possess a firearm or

ammunition that was in or affected interstate commerce. 18 U.S.C. § 922(g)(1).

To prove that a defendant was a felon in possession of a firearm, the government

must show: (1) the defendant was a convicted felon, (2) who knowingly possessed

a firearm, and (3) the firearm was in or affected interstate commerce. United

States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014).



       1
         And even if we were to assume that the District Court plainly erred, the error was
harmless because the jury heard the description in the dispatch recording during the testimony of
Officer Hardy, and Eckel had the opportunity to cross examine him on it. See United States v.
Ndiaye, 434 F.3d 1270, 1286 (11th Cir. 2006) (“The denial of a defendant’s Confrontation
Clause right to cross-examination is examined for harmless error.”).
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      Eckel stipulated that he was a convicted felon and that the firearm and

ammunition traveled in interstate commerce. We need thus only consider whether

the Government presented evidence sufficient for a jury to conclude beyond a

reasonable doubt that Eckel knowingly possessed the firearm and ammunition.

      It clearly did. Officer Castellanos testified that the driver of the white car

fired three shots at him. Officer Hardy saw the man who jumped out of the car and

provided a description of him over the radio. This description sufficed for Officer

Prieto to identify Eckel as that man when he saw him in the trailer park. At the

command post, Officer Hardy identified Eckel as the man who exited the car.

Officer Hardy later testified that he had “no doubt” that Eckel was the man in the

car. Zelaya, who saw Eckel on the evening in question, testified that Eckel was

driving a white car with an intoxicated woman inside. Finally, the Government

presented evidence that Eckel’s fingerprints were inside the driver’s door of the

white car and that his DNA was on the gloves and ski mask obtained from it.

      Given all this evidence amassed against Eckel, a reasonable jury could have

found beyond a reasonable doubt that he was a felon in possession of a firearm.

                                         IV.

      For the reasons set forth above, the District Court did not err regarding the

cross-examination of Castellanos or the motion of acquittal.

      AFFIRMED.

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