           Case: 12-14874   Date Filed: 08/06/2013   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14874
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cr-20074-UU-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JACKSON VITAL,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 6, 2013)

Before BARKETT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Jackson Vital appeals his convictions for conspiracy to import and the

importation of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(b)(2)(B), and 963,

conspiracy to possess with intent to distribute and possession with intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and

846, and making a false statement and a false writing, in violation of 18 U.S.C.

§§ 1001(a)(2) and 1001(a)(3). These charges, included in a six-count superseding

indictment against Vital and co-defendants Harry Richard and Manoha Pierre,

arose from the discovery of cocaine secreted inside Richard’s suitcase at the Miami

International Airport, following his arrival aboard a flight from Port-au-Prince,

Haiti. 1

       On appeal, Vital argues that his rights under the Confrontation Clause were

violated by the introduction of post-arrest statements of Pierre and Richard, as

described in the government’s opening argument and in testimony by government

witness Special Agent Richard Jansen. With respect to the government’s opening

argument, Vital points to the prosecutor’s reference to Pierre’s post-arrest

statement: “Pierre told Mr. Richard that he, himself, had made a prior trip to Haiti

recently, had brought back a suitcase, delivered it to Mr. Vital, and had been paid




       1
        The district court ordered that the trials proceed separately, first with the trial of Richard
and second with the joint trial of Vital and Pierre.


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$2,000.”2 With respect to the testimony of Agent Jansen, Vital argues—for the

first time on appeal—that the testimony improperly referenced post-arrest

statements of both Pierre and Richard. 3 Vital made a contemporaneous objection

to the out-of-court statement referenced during the government’s opening

argument, but not to those statements presented during Agent Jansen’s testimony.

We therefore review his Confrontation Clause-based evidentiary claims under two

different standards: the opening argument claim for an abuse of discretion 4 and the

witness testimony claim for plain error. United States v. Turner, 474 F.3d 1265,

1275 (11th Cir. 2007).

       The Confrontation Clause to the Sixth Amendment provides that, “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington,

the Supreme Court explained that under the Confrontation Clause, “[t]estimonial

statements of witnesses absent from trial have been admitted only where the

       2
           Vital objected, and the government rephrased by replacing the reference to “Mr. Vital”
with “an individual.”
         3
           Specifically, Vital points to (1) the same post-arrest statement by Pierre that was
referenced during the prosecutor’s opening argument, (2) a post-arrest statement by Pierre that
names a particular narcotics trafficker and (3) a post-arrest statement by Richard that he would
contact people who would arrange to pick him up from the airport. Vital also claims that “Agent
Jansen relat[ed] that Mr. Richard, in essence, told him that the people picking him up in the SUV
[including Vital] were acting with full knowledge of the cocaine in his bag.” Vital argues that
these statements laid the groundwork for damaging inferences drawn from Vital’s telephone
calls, text messages, and cellular phone contacts and so should not have been admitted.
       4
          Such an error is considered harmless where it is clear beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained. United States v. Caraballo,
595 F.3d 1214, 1229 n.1 (11th Cir. 2010).
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declarant is unavailable, and only where the defendant has had a prior opportunity

to cross-examine” the declarant. 541 U.S. 36, 59 (2004). Testimonial statements

are ones “that declarants would reasonably expect to be used prosecutorially[.]”

Id. at 51. The Court distinguished testimonial statements, which “interrogations

by law enforcement officers fall squarely within,” id. at 53, from, for example, a

“casual remark to an acquaintance,” id. at 51. However, the Confrontation Clause

“does not bar the use of testimonial statements for purposes other than establishing

the truth of the matter asserted.” See id. at 59 n.9. Therefore, the Clause may not

preclude a statement by an out of court witness to law enforcement officials if it is

not offered for its truth and, instead, is offered because it is “relevant to explain the

course of the officials’ subsequent investigative actions[.]” See United States v.

Baker, 432 F.3d 1189, 1208 n.17 (11th Cir. 2005) (citing cases).

      In the context of codefendants and the application of the Confrontation

Clause, the Supreme Court held in Bruton v. United States that, during a joint trial,

the admission of a confession or powerfully incriminating extrajudicial statement

of a non-testifying codefendant which names the defendant as a perpetrator

violates the Confrontation Clause. 391 U.S. 123, 135-36 (1968). There, the Court

held that admission of facially incriminating confession, even with curative

instruction, violated the Confrontation Clause because there was a “substantial risk

that the jury, despite instructions to the contrary, looked to the incriminating


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extrajudicial statements in determining [the defendant’s] guilt.” Id. at 126.

Although limiting instructions to juries may prevent Bruton violations where

statements do not name the defendant directly or refer to his existence, such

instructions are insufficient in the context of facially incriminating statements. See,

e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987).

       Vital argues that the prosecutor’s opening argument, which named Vital as

part of Pierre’s post-arrest statements, violated the rule established in Bruton. We

agree. The reference to Pierre’s out-of-court, testimonial statement made during

his police interrogation, which specifically referred to Vital by name, was facially

problematic. Even though, following Vital’s objection, the government repeated

the statement but replaced Vital’s name with the words “an individual,” this could

not remedy the initial violation. However, because the government presented

significant other evidence of Vital’s guilt,5 this Bruton violation was harmless

error. Caraballo, 595 F.3d at 1229 n.1. With respect to Vital’s argument

regarding Agent Jansen’s testimony, the district court did not commit plain error

by admitting Agent Jansen’s description of Richard’s statements because they were

made to explain the course of Jansen’s subsequent investigative actions. See

Baker, 432 F.3d at 1208 n.17. It was not plain or obvious that they were being

       5
         This evidence includes Vital’s false statements about his own name; not knowing
Richard; his purchase of Richard’s plane ticket; his meeting Richard at the airport with a large
amount of cash and helping Richard load a suitcase that previously contained cocaine into the
vehicle; and his numerous calls to an individual associated with Vital’s prior narcotics arrest.
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admitted for the truth of the matter asserted. Moreover, when Jansen described

Pierre’s post-arrest statements, he omitted identifying information with respect to

Vital. Even if these statements were admitted in error, Vital did not carry his

burden of showing that the error affected his substantial rights in light of the

alternate sources of the same information and the extensive evidence against Vital.

      Accordingly, we affirm Vital’s convictions.

      AFFIRMED.




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