                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 4, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-4055
          v.                                             (D. Utah)
 JOSEPH MANUEL REYES,                           (D.C. No. 1:04-CR-030-TC)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.


      Joseph Manuel Reyes appeals his conviction for bank robbery. See

18 U.S.C. § 2113(a). He contends that certain hearsay testimony was improperly

admitted in violation of the Confrontation Clause, and as an excited utterance.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
We have jurisdiction under 28 U.S.C. § 1291. 1 We affirm because the testimony

could not have affected the verdict.

I.    BACKGROUND

      On February 4, 2004, a Wells Fargo bank in Logan, Utah, was robbed. A

man wearing sunglasses and a hooded blue jacket with the words “Old Navy”

across the front entered the bank and handed the teller a note that said “Give me

your money or I’ll shoot you.” R. Vol. III at 52. The teller gave the robber

approximately $2,900 in denominations ranging from $1 to $20, including $40 in

$2 bills. Bank security cameras took the robber’s picture, which was published in

the local newspaper the next day.

      At trial, several witnesses identified Mr. Reyes as the man in the bank

photograph. A police officer who had arrested Mr. Reyes the night before the


      1
        We originally partially remanded to the district court for a determination
whether there was excusable neglect justifying Mr. Reyes’s filing his notice of
appeal two days late. Order of May 19, 2005. Mr. Reyes’s counsel filed an
affidavit with the district court explaining that he was busy with other legal
matters and had neglected to file the notice, leaving Mr. Reyes to file his notice
pro se after the deadline had passed. We have serious doubts whether this
constitutes excusable neglect. See United States v. Torres, 372 F.3d 1159, 1163
(10th Cir. 2004 (“‘inadvertence, ignorance of the rules, or mistakes construing the
rules do not usually constitute “excusable” neglect’” (quoting Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993)). Nevertheless,
the government has not objected. And recently the Supreme Court strongly
indicated that timeliness rules are not jurisdictional. See Eberhart v. United
States, 126 S. Ct. 403, 406 (2005) (when the government objects to an untimely
filing, dismissal is mandatory; but “failure to object to untimely submissions
entails forfeiture of the objection”). We therefore proceed to the merits.

                                        -2-
robbery on a separate charge testified that he was “about 90 percent sure” that the

pictured man was Mr. Reyes. Id. at 20. He also identified the jacket Mr. Reyes

was wearing the night he was arrested as the jacket seen in the photo. Three

neighbors testified that they were “pretty certain,” R Vol. V at 59, “positive,” id.

at 37, and “very sure,” id. at 82, that the man in the bank photo was Mr. Reyes.

Two other acquaintances of Mr. Reyes testified that they had “no doubt in my

mind,” R. Vol. III at 40, and were “very certain,” R. Vol. V at 100, that the photo

was of Mr. Reyes.

      Christopher Godinez, who testified that he and Mr. Reyes were “like

brothers, ” id. at 106, provided information beyond just identifying the man in the

photo. He said that Mr. Reyes showed him a copy of the bank photo and asked if

it looked like him. He testified, “I told him no, but inside I knew it was him.” Id.

at 115. The day after the robbery he went with Mr. Reyes to the home of

Mr. Reyes’s mother. Mr. Reyes’s family had “recognized him from the picture in

the paper and they had a family meeting on why . . . he did it.” Id. at 118.

      [Prosecutor]: And what did Joseph [Mr. Reyes] say during these
      discussions of why he robbed the bank?

      [Mr. Godinez]: I believe he said he didn’t care. That he needed the
      money.

Id. The two had a conversation the next day in which Mr. Reyes again said he

robbed the bank because he needed the money.


                                          -3-
      Other witnesses, including two bank tellers, also identified Mr. Reyes’s

jacket and sunglasses as the same that were worn by the robber. (A few minutes

after the robbery Mr. Reyes had purchased a truck from a neighbor; he left his

jacket and sunglasses with the neighbor, who later turned them over to the

police.) In addition, several witnesses noted that in the days after the robbery

Mr. Reyes paid for numerous items, such as the truck, with cash, including

several $2 bills.

      Finally, over a hearsay objection from defense counsel, Captain Eric

Collins of the Logan City Police Department testified about a statement by

Mr. Reyes’s mother, Hortencia Garza, after Captain Collins and two other officers

showed her a copy of the bank-surveillance-camera image of the robber:

      Q.     And what was her reaction?

      A.     She immediately started to cry.

      Q.     Did you put a question to her.

      A.     I did.

      Q.     What did you say?

      A.     I asked her if that was her son Joseph.

      Q.     And what did she do?

      A.     She said yes.

      Q.     Did she do anything with her head or—


                                         -4-
       A.     She sat down on the couch and put her head in her hands and
              cried for some time, and I tried to comfort her. It was obvious
              that she was upset.

R. Vol. V at 96-97. Ms. Garza did not take the stand at trial. The district court

admitted the testimony under the excited-utterance exception to the hearsay rule.

See Fed. R. Evid. 803(2) (providing hearsay exception for a “statement relating to

a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.”).

       Mr. Reyes makes two arguments on appeal. First, he argues that the

testimony of Captain Collins regarding Ms. Garza’s identification of Mr. Reyes

violated the Confrontation Clause. In addition, he argues that the testimony was

hearsay, and was not an excited utterance.

II.    DISCUSSION

       The government concedes that admission of Ms. Garza’s statement violated

the Confrontation Clause. We also will assume (and, indeed, are inclined to

believe) that her statement was not an excited utterance. Nevertheless, Mr. Reyes

is not entitled to relief.

       A.     Standard of Review

       Mr. Reyes concedes that he did not raise the Confrontation Clause issue

below and that we review it only for plain error. “Plain error occurs when there is

(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)


                                          -5-
seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (internal quotation marks omitted). “Satisfying the third prong of plain-

error review—that the error affects substantial rights—usually means that the

error must have affected the outcome of the district court proceedings.” Id. at

732 (internal quotation marks omitted).

       As for the alleged erroneous admission of hearsay, we review for harmless

error because Mr. Reyes preserved his objection below. See United States v.

Marshall, 432 F.3d 1157, 1160 (10th Cir. 2005). This is not a constitutional

claim. “In non-constitutional harmless error cases, the government bears the

burden of demonstrating, by a preponderance of the evidence, that the substantial

rights of the defendant were not affected.” Id. at 1162 (internal quotation marks

omitted).

       B.    Merits

       The evidence introduced at trial was overwhelming. There can be no doubt

that excluding Captain Collins’s testimony about the mother’s identification

would not have affected the outcome of the trial. Any error was harmless, and

certainly did not satisfy the third prong of the plain-error test.

III.   CONCLUSION

       We AFFIRM the judgment of the district court.


                                           -6-
ENTERED FOR THE COURT


Harris L Hartz
Circuit Judge




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