                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 07-15954                ELEVENTH CIRCUIT
                                                            November 5, 2008
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                                CLERK

                D. C. Docket No. 05-00220-CR-ORL-22-KRS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JAIME SANDOVAL,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________
                           (November 5, 2008)


Before BIRCH, BLACK and HULL, Circuit Judges.


PER CURIAM:
      Jaime Sandoval appeals his convictions for one count of conspiracy to

possess with intent to distribute five kilograms or more of cocaine, in violation of

21 U.S.C. §§ 841(a)(1), b(1)(A)(ii) and 21 U.S.C. § 846 (Count One), and two

counts of aiding and abetting the possession of five kilograms or more of cocaine

with intent to distribute, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A)(ii) and

18 U.S.C. § 2 (Counts Two and Three). Prior to his trial, Sandoval petitioned the

court for a writ of habeas corpus ad testificandum, along with filing a motion for a

continuance of trial, to obtain the testimony of a Massachusetts prisoner, Mark

Groccia, who had been in contact with one of the two confidential informants (CI)

used in this case. Sandoval stated this testimony would show the CI was not

properly supervised, and would also relate to the CI’s alleged past drug sales. The

district court denied Sandoval’s request.

      During the trial, Sandoval informed the court he wanted to proffer the

testimony of Fritz Scheller, the attorney for Stephanie Franzi, an identified witness

in the case who was debriefed on March 29, 2006, regarding her knowledge of

Sandoval and one of the CIs. Sandoval contended Scheller’s testimony regarding

Franzi’s debriefing statements would not be hearsay because the testimony was not

being offered to prove the truth of the matter asserted. The court allowed Sandoval

to proffer Scheller’s testimony, but did not permit the jury to hear this testimony.



                                            2
       On appeal, Sandoval contends the district court abused its discretion when it

(1) denied his petition for a writ of habeas corpus ad testificandum and related

motion for a continuance, and (2) excluded Scheller’s testimony. We address each

issue in turn, and affirm the judgment of the district court.

                                               I.

       A prisoner’s presence at trial is secured by a writ of habeas corpus ad

testificandum, the grant or denial of which is “committed to the sound discretion of

the district court.” United States v. Rinchack, 820 F.2d 1557, 1567 (11th Cir.

1987). We review the denial of such a writ for an abuse of discretion. United

States v. Wright, 63 F.3d 1067, 1070 (11th Cir. 1995). Generally, however, courts

have required defendants in criminal cases requesting petitions for writs of habeas

corpus ad testificandum to comply with the requirements of Fed. R. Crim. P. 17(b).

Id. The grant or denial of a Rule 17(b) motion is reviewed for an abuse of

discretion. Rinchack, 820 F.2d at 1566. The defendant bears the burden of

articulating specific facts that show the relevancy and necessity of the requested

witness’s testimony. United States v. Hegwood, 562 F.2d 946, 952 (5th Cir.

1977).1



       1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.

                                               3
      Here, the district court denied Sandoval’s petition for a writ of habeas

corpus, as well as Sandoval’s request for a continuance to secure Groccia’s

presence, because Sandoval failed to proffer testimony by Groccia that would be

admissible at trial. Sandoval bore the burden of establishing the relevancy and

necessity of Groccia’s presence for an adequate defense, and by failing to show

Groccia would testify at trial and would not raise his Fifth Amendment privilege

against self-incrimination, Sandoval could not show how Groccia was necessary to

the defense. See Fed. R. Crim. P. 17(b); Hegwood, 562 F.2d at 952. Moreover, the

information Sandoval sought to elicit through Groccia’s testimony was not

necessary to his entrapment defense because it could not establish in any way the

CI induced Sandoval into committing the crimes of which he was accused.

Because Sandoval did not establish the prisoner-witness’s presence at trial was

necessary for an adequate defense, the district court did not abuse its discretion in

denying his petition for a writ of habeas corpus ad testificandum and

accompanying motion for a continuance.

                                          II.

      We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Hands, 184 F.3d 1322, 1326 (11th Cir. 1999). Hearsay is a

“statement, other than one made by the declarant while testifying at the trial or



                                           4
hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.

Evid. 801(c). Hearsay is inadmissible unless excepted by another rule, none of

which is relevant to this case. Fed. R. Evid. 802.

      Sandoval contends Scheller’s testimony was not being offered to prove the

truth of the matter asserted, but was instead offered to rebut testimony by two of

the DEA agents in this case, or their March 29th debriefing report. To effectively

rebut the testimony of the agents or the prepared report, however, Sandoval would

necessarily be offering Franzi’s statements for their truth, not merely for the fact

the statements were made. See United States v. Webster, 649 F.2d 346, 349 (5th

Cir. 1981) (“Where the alleged fact is only so if the substance of the statement is

the truth, the statement constitutes hearsay.”). Because the testimony Sandoval

sought to introduce was hearsay and was not subject to any exception, the district

court properly excluded it. Accordingly, we affirm Sandoval’s convictions.

      AFFIRMED.




                                           5
