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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-40125                   United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                    November 21, 2018
UNITED STATES OF AMERICA,
                                                                       Lyle W. Cayce
              Plaintiff - Appellee                                          Clerk


v.

EDILBERTO MASO DIAZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:15-CR-1077-3


Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Edilberto Maso Diaz (Maso) appeals his jury convictions for three counts
of possession with intent to distribute marijuana and one count of conspiracy
to commit the same. He contends that the district court reversibly erred by
permitting the Government to present inadmissible hearsay statements from
an alleged coconspirator and by not offering a cautionary instruction about
that declarant’s statements. He alternatively alleges that these two errors


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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together amounted to cumulative error that deprived him of the right to a fair
trial. Finally, he challenges the sufficiency of the evidence against him. We
conclude that any erroneous admission of hearsay evidence was harmless and
that his remaining arguments are without merit. AFFIRMED.
                                        I
      At Maso’s two-day jury trial, the Government called as witnesses border
patrol and law enforcement agents who detailed three incidents in March,
May, and September of 2013 when drivers employed by Maso’s trucking
company, E&E Trucking, were arrested at the Mexican-American border after
large quantities of marijuana were discovered among produce in the backs of
the trucks. The Government then presented witness testimony from three
alleged coconspirators, Pablo Aroche-Calderin (Aroche), Rafael Nimer Torres
(Torres), and Benigno “Juaso” Grey-Ramirez (Grey), all of whom had already
pleaded guilty to related conduct. These three witnesses each admitted during
their testimony that they hoped to receive reduced sentences for testifying
against Maso. As discussed in more detail below, Torres testified to out-of-
court statements made by Andres, another alleged coconspirator, that Maso
challenges as inadmissible hearsay.
      Aroche, the first coconspirator witness, testified that he was arrested in
March and September 2013 for possession of marijuana when, while driving a
truck for E&E, he knowingly attempted to drive loads of marijuana over the
border. Aroche specifically stated that it was his understanding that Maso and
Grey had a business relationship in “drug trafficking, marijuana.” He testified
that, in March, he was sitting in the truck readying to pick up a load of broccoli
when Maso and Grey came up to talk to him. Maso told him that there was
another load that he would be picking up as well, but did not specify what it
was. Grey later called Aroche and told him where to pick up the load. Aroche

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testified that Maso and Grey were both present at the pick-up site while
marijuana was loaded into the truck.
      Aroche also gave his account of the September attempt to transport the
load of marijuana, similarly stating that Maso gave him separate delivery
instructions for the load of watermelons and “another load,” which turned out
to be marijuana, that was already in the truck. Aroche testified that Grey told
him that Maso would pay him for the March and September marijuana loads
if they arrived successfully. On cross-examination, Aroche acknowledged that
he initially implicated Grey but not Maso in the marijuana conspiracy, only
claiming Maso’s involvement after he, Aroche, had been sentenced and the
investigating agent asked about Maso.
      Torres, who testified next, spoke primarily about a conversation between
him and a man named Andres that occurred while Maso was present. Andres’s
relation to Maso is not clear from the totality of the trial testimony; witnesses
seemed uncertain as to whether he was Maso’s brother, cousin, or friend.
Torres testified that Andres told him that “if [Torres] was willing to traffic
marijuana, they had trucks.” Torres further testified that Andres “told me
Maso devoted himself to trafficking marijuana, that’s what he told me, I never
saw it.”   Torres later reiterated: “I knew that Andres and [Maso] devote
themselves to carrying drugs. Maso never told me anything like that, nor did
he insinuate it, but Andres had told me that’s what they devoted themselves
to, Andres told me that.” Torres acknowledged that Maso himself never said
anything to him about trafficking drugs.      The defense contemporaneously
objected to the admission of Andres’s statements through Torres’s testimony
as hearsay.     The district court overruled the objection, accepting the
Government’s justification that Andres was Maso’s coconspirator.          Torres
stated that he declined to be involved with the marijuana trafficking, but

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admitted to later being involved with Andres and Grey in trafficking different
controlled substances, including methamphetamine, and asserted Grey was
also involved. Torres never mentioned any involvement by Maso in these
different drug transactions.
      Grey, who testified next, stated that Maso came to his house in 2012 and
“There we talked like the two adults that we were, came to an agreement. He
would provide the means of transportation, I would provide the marijuana.”
Grey said he believed, but was not certain, that he and Maso were present
when Aroche’s truck was loaded with marijuana in March 2013. Grey further
confirmed that Maso’s drivers were paid the way Aroche had testified: Grey
would pay Maso, who would then pay his drivers directly. Grey also testified
that Andres “was not involved in this conspiracy” to traffic marijuana.
Consistent with Torres’s testimony, Grey did state that he had different drug
dealings with Andres and Torres to traffic other substances. However, he
clarified that “[w]ith Mr. Maso I just did marijuana.”
      The Government’s final witness, Agent David Bishop, a case agent who
investigated and arrested Maso, also testified about Andres’s involvement or
lack thereof. Bishop affirmed that he believed Grey’s testimony that “Andres
had nothing to do with this particular transaction.” Bishop further stated that
“whether or not Andres was involved in the drug trafficking we haven’t been
able to prove yet.” When asked what he suspected of Andres’s activities,
Bishop stated:
      I believe [Torres] was the transporter, [Grey] was the broker in the
      Valley and I believe Andres was the recipient. . . . I believe [Torres]
      was going to get paid for transporting the batteries. I believe
      [Torres] got the batteries from [Grey]. I don’t know if [Grey] knew
      that Andres was involved in that transaction. . . . I suspect Andres
      was [involved in that transaction].


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      Finally, Maso testified in his defense, stating that Grey had proposed to
him that they carry drugs, but that he refused; that he was not present when
Aroche was told about or loading the drugs; and that he otherwise had no
involvement in his drivers’ drug smuggling using his trucks or any knowledge
of the trafficking incidents until drugs were seized.
      When instructing the jury, the court stated the following:
      In this case, the government called as witnesses three alleged
      accomplices . . . Rafael Nimer Torres, Benigno Grey-Ramirez . . .
      and Pablo Aroche-Calderin . . . all three of whom the government
      has entered into a plea agreement providing for the dismissal of
      some charges and a lesser sentence than the co-defendant would
      otherwise be exposed to for the offense to which the co-defendant
      pled guilty. . . . You should keep in mind that [their] testimony is
      always to be received with caution and weighed with great care.
      You should never convict the defendant upon the unsupported
      testimony of an alleged accomplice, unless you believe that
      testimony beyond a reasonable doubt.
The court did not mention Andres in this list of alleged accomplices. Maso
raised no contemporaneous objection, nor did he request an alternative
instruction.
      The jury subsequently convicted Maso, and he was sentenced to 160
months of imprisonment. Maso timely appeals.
                                       II
      Hearsay—out-of-court statements presented for the truth of the matter
asserted—are not admissible in a jury trial unless an enumerated exception
applies.   FED. R. EVID. 801, 802.      Rule 801(d)(2)(e) provides that such
statements are admissible when they are used against a party and were “made
by the party’s coconspirator during and in furtherance of the conspiracy.” We
review the district court’s decision to admit this evidence for an abuse of
discretion. United States v. Hall, 500 F.3d 439, 443 (5th Cir. 2007). The


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district court does not abuse its discretion if the Government proves by a
preponderance of the evidence “(1) the existence of the conspiracy; (2) the
statement was made by a coconspirator of the party; (3) the statement was
made during the course of the conspiracy; and (4) the statement was made in
furtherance of the conspiracy.” Id.; see FED. R. EVID. 801(d)(2)(e). In assessing
whether these elements are satisfied, “[t]he statement[s] [themselves] must be
considered[,] but cannot by [themselves] establish the existence of the
conspiracy or participation in it.” United States v. Nelson, 732 F.3d 504, 516
(5th Cir. 2013) (citations and quotation marks omitted).        “There must be
‘independent evidence’ establishing the conspiracy.” Id.
      Maso contends that Andres’s statements were not admissible under the
coconspirator exception because there was no independent evidence that they
were in furtherance of any conspiracy Maso and Andres participated in
together. See generally United States v. Arce, 997 F.2d 1123, 1128 (5th Cir.
1993) (“The conspiracy that forms the basis for admitting coconspirators’
statements need not be the same conspiracy for which the defendant is
indicted.”). Though there was independent evidence that Maso was involved
in marijuana trafficking and Andres with methamphetamine trafficking with
at least one overlapping coconspirator—Grey—none of this evidence connected
Maso to the methamphetamine or Andres to the marijuana.
      However, though Maso’s arguments call the admissibility of these
hearsay statements into question, we conclude that reversal is not warranted
because any error was harmless. “[E]rrors in evidentiary rulings are subject
to the doctrine of harmless error.” United States v. Cornett, 195 F.3d 776, 785
(5th Cir. 1999) (citations omitted). Under this doctrine, “[a]ny error, defect,
irregularity, or variance that does not affect substantial rights must be
disregarded.” FED. R. CRIM. P. 52(a). “Under a harmless error analysis, the

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issue is whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” Cornett, 195 F.3d at 785 (citations and quotation
marks omitted).        “Thus, the error will not require reversal if ‘beyond a
reasonable doubt the error complained of did not contribute to the verdict
obtained.’” Id. (citing Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)). 1 The
burden of proving harmlessness falls to the Government. United States v.
Olano, 507 U.S. 725, 741 (1993).
       Here, Aroche and Grey specifically implicated Maso in the marijuana
trafficking independent of Andres’s statements. Grey explicitly discussed how
he and Maso entered into a drug trafficking arrangement and detailed his
subsequent marijuana dealings with Maso. Aroche, similarly, testified that
Maso instructed him to get directions from Grey on where to go to pick up
another unspecified load, and that Maso was then present at the designated
pick-up site while marijuana was subsequently loaded into the truck. Further,
Aroche specifically told the jury that Maso and Grey had a business
relationship in “drug trafficking, marijuana.”
       This is not a case, as in Cornett, where there was otherwise “no direct
evidence” that the defendant committed the crime, 195 F.3d at 785, or, as in
United States v. Sumlin, where the “case was a close one, and even the district
judge remarked that he would not have been surprised had the jury returned
a different verdict,” 489 F.3d 683, 692 (5th Cir. 2007).                     Moreover, the
Government’s closing argument indicates that Torres’s testimony was not



       1 Our circuit has alternatively applied a less stringent standard to determine whether
a potential evidentiary error was harmless. See United States v. Gil-Cruz, 808 F.3d 274, 276
(5th Cir. 2015) (“An error affects substantial rights if there is a reasonable probability that
the improperly admitted evidence contributed to the conviction” (citing United States v.
Sumlin, 489 F.3d 683, 688 (5th Cir. 2007)) (emphasis added). Here, we hold that Maso is not
entitled to relief under either standard.
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critical to its case: referring to Torres as “more of a background witness” and
making no reference to Andres’s statements about Maso devoting himself to
the trafficking of marijuana. Because we conclude beyond reasonable doubt
that the jury would therefore have delivered the same verdict without hearing
the challenged hearsay statements, their admission thus does not justify
reversal. 2
       For similar reasons, we also reject Maso’s argument that there was
insufficient evidence to support his guilty verdict. We must affirm a guilty
verdict if “after viewing the evidence and all reasonable inferences in the light
most favorable to the prosecution,” we determine that “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Vargas-O’Campo, 747 F.3d 299, 301 (5th Cir. 2014)
(emphasis in original). Because we hold that the jury would have returned the
same verdict even without Andres’s testimony, there is certainly enough
evidence to sustain the verdict when considering all evidence, including
Andres’s testimony, in the light most favorable to this verdict.




       2 Maso alleges that he may not have been found guilty without Andres’s statements
because Aroche and Grey were unreliable witnesses who contradicted each other. This
argument, however, relies on a mischaracterization of Grey’s testimony. Maso claims that
when Grey testified he did not have any “dealings” with Aroche, he was denying ever meeting
or knowing him, which would be inconsistent with Aroche’s account. Grey’s testimony as a
whole, however, clarifies that his statement instead addressed the structure of the
conspiracy, emphasizing that he coordinated with Maso directly and Maso then handled the
specifics of hiring and paying his drivers. (“I have said from the beginning that my dealings
have been with Mr. Maso, not with any driver. . . . I never had any business with Aroche.”).
        Indeed, Grey made similar statements about Torres, a member of the
methamphetamine trafficking activities with which Grey also admitted his involvement.
Grey stated he had met Torres, but felt it necessary to clarify that Torres “was never hired
by me to handle any drugs. . . . The fact that I was involved does not mean that I hired him.”
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                                        III
      We review a party’s claim that the district court erred in its jury
instructions for abuse of discretion, asking “whether the charge, as a whole, is
a correct statement of law.” United States v. Bennett, 874 F.3d 236, 242 (5th
Cir. 2017) (cleaned up). Where, as here, the appellant failed to object at trial,
the instructions are reviewed for plain error only. Under this standard of
review, Maso must establish a forfeited error that is clear or obvious and that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he satisfies the first three prongs of the plain error analysis, this
court has the discretion to correct the error if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (cleaned up).
      Maso alleges that the district court abused its discretion by not including
Andres in the list of alleged accomplices who the jury was instructed to believe
only with caution and great care. Maso’s argues on appeal that there is no
valid reason for not including Andres in this instruction. However, Maso here
ignores the critical distinction that Andres, unlike the testifying witnesses, did
not make the prejudicial statements in hopes of receiving a reduced sentence
after a guilty plea. Maso makes no further attempt to engage with Bennett’s
demanding standard. The district court’s instruction was not an abuse of
discretion, plain or otherwise.
      Accordingly, Maso’s contention that the hearsay admission and jury
instructions together constitute cumulative error is also meritless.          “The
cumulative error doctrine provides for reversal when an aggregation of non-
reversible errors, i.e., plain and harmless errors that do not individually
warrant reversal, cumulatively deny a defendant’s constitutional right to a fair
trial.” United States v. Cervantes, 706 F.3d 603, 619 (5th Cir. 2013) (citing
United States v. Delgado, 672 F.3d 320, 343–44 (5th Cir. 2012) (en banc)).

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“Allegations of non-errors do not play a role in cumulative error analysis since
there is nothing to accumulate.” Cervantes, 706 F.3d at 619. Because the jury
instructions were not themselves error, Maso cannot succeed under this
alternative theory.
                                      ***
      For these reasons, we AFFIRM Edilberto Maso Diaz’s conviction and
sentence.




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