                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                    JANUARY 23, 2008
                                                    THOMAS K. KAHN
                              No. 07-12764
                                                         CLERK
                           Non-Argument Calendar
                         ________________________

                      D. C. Docket No. 04-00229-CR-KD

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                    versus

OSCAR PEREZ-LOPEZ,
                                                     Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________

                              (January 23, 2008)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Oscar Perez-Lopez appeals his convictions for conspiracy to possess cocaine
with intent to distribute, in violation of 21 U.S.C. § 846, and possession of cocaine

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

                                          I.

      On October 30, 2004, Baldwin County Sheriff’s Deputy Randy Younce

made a traffic stop of a tractor trailer driven by Rudolfo Tobias. Tobias consented

to a search of the tractor trailer. Younce initially observed what he believed to be

drug paraphernalia and later discovered a hidden compartment under the sleeper

cab that contained $456,000 in cash and 439 grams of cocaine.

      Tobias first lied about the money and drugs, but eventually cooperated with

the police and told them that Perez-Lopez organized the trip and made all of the

arrangements. On November 17, 2004, a federal grand jury indicted Tobias and

Perez-Lopez for conspiracy to possess with intent to distribute more than five

kilograms of cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and

possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)

and 18 U.S.C. § 2. Tobias agreed to plead guilty to the conspiracy count, and in

exchange for his testimony against Perez-Lopez, the government agreed to drop the

remaining count and move for a reduced sentence.

      At Perez-Lopez’s trial, Tobias testified about the terms of his plea

agreement. Regarding the drug operation, Tobias testified that he met Perez-Lopez



                                           2
through his cousin, Isador Reyes, about a week before his arrest. Initially he had

told the police that he had been introduced by a person named Eddie, but he later

admitted that it was actually his cousin, Reyes. During a meeting outside Perez-

Lopez’s ranch in Texas, Reyes and Perez-Lopez offered Tobias a job driving a

tractor trailer from Texas to Florida. Perez-Lopez explained that Tobias would

drive a tractor trailer containing drugs and a legitimate load of limes to Florida—

the drugs would be stored in a hidden compartment. When Tobias arrived in

Florida, he would contact a person named Burro, at a number provided by Perez-

Lopez, to arrange final delivery of the drugs, and once Burro removed the drugs,

Tobias would deliver the legitimate load. Perez-Lopez was supposed to pay

Tobias for ths trip, but no details about payment were given at that meeting.

      Tobias then testified about the details of his trip from Texas to Florida, his

meeting with Burro, who arranged for the removal of the drugs, and his delivery of

the load of limes. After all this had occurred, Tobias then waited in Florida for

Burro to contact him again, and Burro arranged to have the money obtained by the

sale of the drugs loaded into the truck’s hidden compartment. Once the money was

loaded, Tobias drove the tractor trailer toward Mississippi, where he was going to

pick up a load of chickens. He was stopped by Deputy Younce while he was

traveling through Baldwin County, Alabama.



                                          3
      Once he decided to cooperate with police, Tobias: (1) told them where he

had picked up the money and that he was headed to Perez-Lopez’s ranch in Texas;

(2) described the ranch; (3) identified Perez-Lopez in a photo line-up; and (4)

provided Perez-Lopez’s contact information. Tobias also agreed to place

monitored calls to Perez-Lopez so he could make an excuse for the delay (which

was actually caused by his arrest) and the agents could hear that Perez-Lopez knew

about the money. In one of the calls, Perez-Lopez told Tobias he could take some

of the money in the hidden compartment to pay for repairs on the truck.

      Before cross-examination, in a conference outside the presence of the jury,

counsel for Perez-Lopez told the district court that Tobias had identified “Eddie” as

Reyes for the first time at trial and this information had not been provided in

discovery. Counsel had a copy of Tobias’ plea agreement, and its factual recital

named Eddie, not Reyes. He requested access to Tobias’ presentence investigation

report to determine if, at that point, Tobias had admitted that it was Reyes, not a

fictional Eddie, who introduced him to Perez-Lopez, and, if not, to use the PSR for

impeachment purposes. The government stated that it could not say with certainty

when Tobias admitted the falsehood because the original case agent no longer

worked with the sheriff’s office, had not documented all the interviews, and the

only written report about the interviews was turned over to the defense. The



                                           4
government believed that it had discovered this information before Tobias’

sentence hearing, but it had no documentation to show that. The district court

ruled that Perez-Lopez could use the factual recital from Tobias’ plea agreement to

impeach him, but he could not use the PSR because it was sealed and Tobias did

not sign anything agreeing to its accuracy.

      On cross-examination, Tobias admitted, among other things, that he

originally lied to the agents about the existence of Eddie, but he thought that he

had told them the truth about Eddie on the night of his arrest. After further

questioning, he stated that he was not sure about the date, but he knew he had told

the truth at some point.

      The government also presented the testimony of a number of other

witnesses, including Drug Enforcement Administration agent Michael Lumpkin,

who worked in the agency’s Texas office and had been given the information

Tobias provided about Perez-Lopez’s ranch. On October 31, 2004, Lumpkin took

pictures of a ranch just east of Edinburg, Texas, which agents confirmed was

owned by Perez-Lopez and his wife, Lorena Perez. While monitoring the ranch,

Lumpkin followed an Expedition, which was registered to Perez-Lopez and his

wife, as it left the ranch, was driven through several cities, and then was driven

back to the ranch. Lumpkin described the vehicle’s course of action as “heat runs



                                           5
or checking to see if it was being followed by law enforcement.”

      Perez-Lopez objected to Lumpkin’s testimony about “heat runs” because

Lumpkin had not been qualified as an expert witness, and the government had

failed to provide notice that he was going to testify about surveillance techniques

as an expert witness. The government explained that it was only asking Agent

Lumpkin to describe his observations, and the district court overruled Perez

Lopez’s objection. Lumpkin then testified that the vehicle pulled into cul-de-sacs

and drove around the city without stopping at any particular location before

returning to the ranch. On November 12, 2004, the agents executed a search

warrant at the ranch, in which they recovered a T-mobile bill for the telephone

used by Tobias, Tobias’ marriage license, and Perez-Lopez’s financial records.

The search did not yield any drugs or money.

      The government also called Sharon Murphy, an agent with Immigration and

Customs Enforcement, who testified about her involvement in the investigation.

She told about the phone records of Tobias and Perez-Lopez. Tobias had a number

labeled as “Burro” in his phone, which was called many times between October 25

and October 28, 2004. When the government asked Murphy if she was aware that

an investigation had been initiated with regards to Burro, Perez-Lopez objected to

the testimony as irrelevant because it concerned an independent investigation of



                                          6
someone other than Perez-Lopez. He also objected that the question called for

inadmissible hearsay in the form of statements by other DEA agents telling

Murphy that they were investigating Burro. The district court ruled that the

testimony was relevant because Burro was alleged to be a conspirator in the case,

and that it was not hearsay as long as Murphy refrained from stating what other

agents had told her. Murphy testified that: (1) the agents in Texas, Alabama, and

Florida were conducting a coordinated investigation into the drug conspiracy; (2)

the agencies initiated an investigation aimed at identifying Burro and others

connected to Tobias; and (3) the individual associated with the Burro phone

number had been identified, but the investigation was still ongoing. Murphy also

testified that at some point in the investigation, Tobias had implicated Reyes as the

person who introduced him to Perez-Lopez.

      At the close of the government’s case, the district court denied Perez-

Lopez’s motion for judgment of acquittal. Perez-Lopez recalled Tobias, and then

testified on his own behalf. After both sides rested, the court submitted the case to

the jury. The jury convicted Perez-Lopez on all counts, and the district court

sentenced him to 300 months imprisonment on the conspiracy count and 240

months imprisonment on the possession with intent to distribute count, to be served

concurrently.



                                          7
      Perez-Lopez timely appealed, and he contends that the district court erred

by: (1) allowing Agent Lumpkin to testify about “heat runs” without qualifying

the agent as an expert on counter-surveillance and even though the government had

failed to provide Perez-Lopez with notice of the expert testimony; (2) admitting

testimony about the investigation of Burro because it was irrelevant, inadmissible

hearsay, its admission violated his Sixth Amendment Confrontation Clause rights,

and it was “amorphous bad character evidence;” and (3) declining to order the

government to turn over any information concerning when Tobias informed the

agents that the individual who introduced him to Perez-Lopez was his cousin,

Reyes. Perez-Lopez also contends that, when coupled together, the cumulative

effect of the individual errors deprived him of a fair trial.

                                           II.

      Perez-Lopez first contends that the district court abused its discretion by

admitting Agent Lumpkin’s testimony about “heat runs” because he had not been

qualified as an expert in surveillance, and Perez-Lopez had not received advance

notice of the expert testimony as required by Federal Rule of Criminal Procedure

16. We review rulings made under Rule 701 of the Federal Rules of Evidence only

for an abuse of discretion. United States v. Myers, 972 F.2d 1566, 1576–77 (11th

Cir. 1992).



                                            8
      Rule 701 governs the testimony of “lay” witnesses. It provides that the

testimony of a witness who is not testifying as an expert, “is limited to those

opinions or inferences which are (a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue, and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701.

      We have explained that in order to be rationally based on the perception of

the witness, the testimony must be “based on first-hand knowledge or

observation.” United States v. Marshall, 173 F.3d 1312, 1315 (11th Cir. 1999).

The witness’s perception, however, may be interpreted in light of his experience.

See Myers, 972 F.2d at 1577 (stating that a police officer could testify that burn

marks on the skin were caused by a stun gun where the opinion was based on the

officer’s personal perceptions of the marks and his experience on the police force).

We have rejected the argument that simply because a police officer testifies to an

opinion based in part on his past experiences, his testimony should not be admitted

under Rule 701. United States v. Novaton, 271 F.3d 968, 1008 (11th Cir. 2001).

      Rule 702 governs the testimony of expert witnesses. See Fed. R. Evid. 702.

When the district court admits a witness’s testimony under Rule 702 rather than as

a lay opinion under Rule 701, the provisions of Federal Rule of Criminal



                                           9
Procedure 16 apply. According to Rule 16, at the defendant’s request, the

government must provide before trial a written summary of expert witness

testimony, including “the witness’s opinions, the bases and reasons for those

opinions, and the witness’s qualifications.” Fed. R. Crim. P. 16(a)(1)(G).

         The district court did not abuse its discretion in admitting Agent Lumpkin’s

testimony under Federal Rule of Evidence 701 because his opinion that the vehicle

he observed was conducting a “heat run,” or “checking to see if it was being

followed,” was based on his personal observations of the vehicle and his past

experience as a DEA agent. Just as the district court in Myers did not abuse its

discretion by admitting under Rule 701 an officer’s testimony that the burn marks

on a person’s skin were the result of a stun gun based on the officer’s personal

observations of the marks and his past experience as a police officer, see Myers,

972 F.2d at 1577, the district court here did not abuse its discretion by admitting

under Rule 701 Lumpkin’s testimony about “heat runs” based on his personal

observations of the Expedition and his past experience as a DEA agent. Because

Lumpkin provided a lay opinion, Perez-Lopez’s discovery argument under Federal

Rule of Criminal Procedure 16, which only applies to expert testimony, lacks

merit.




                                           10
                                          III.

      Perez-Lopez next contends that the district court abused its discretion by

allowing Agent Murphy to testify about the investigation of Burro in Florida

because, as he argued before the district court, it was irrelevant, inadmissible

hearsay. Perez-Lopez also argues for the first time on appeal that the evidence was

inadmissible as “amorphous bad character evidence” under Federal Rule of

Evidence 404(b), and that the admission of this testimony violated his rights under

the Sixth Amendment Confrontation Clause.

                                          A.

      We review evidentiary rulings only for an abuse of discretion. United States

v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). The district court abuses its

discretion when its “decision rests upon a clearly erroneous finding of fact, an

errant conclusion of law, or an improper application of law to fact.” Id. “Even if

an abuse of discretion is shown, nonconstitutional evidentiary errors are not

grounds for reversal absent a reasonable likelihood that the defendant’s substantial

rights were affected.” United States v. Malol, 476 F.3d 1283, 1291 (11th Cir.

2007) (quotations omitted). Reversal is not warranted “where an error had no

substantial influence on the outcome, and sufficient evidence uninfected by error

supports the verdict.” United States v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir.



                                          11
2006).

         The Federal Rules of Evidence provide that only relevant evidence is

admissible. Fed. R. Evid. 402. “Relevant evidence” is “evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Fed. R. Evid. 401.

         The district court did not abuse its discretion by concluding that Agent

Murphy’s testimony about the investigation of Burro was relevant. The

government had already provided evidence that Tobias had delivered drugs to a

man named Burro in Florida, that Perez-Lopez had given him a phone number for

Burro, and that Tobias had contacted Burro at that number several times between

October 25 and October 28, 2004. The fact that the DEA was conducting an

ongoing investigation of Burro in Florida was relevant to the scope and existence

of the overall conspiracy and corroborated the other evidence presented by the

government.

         The district court also did not abuse its discretion by concluding that Agent

Murphy’s testimony was not hearsay. Under Federal Rule of Evidence 801,

hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter



                                            12
asserted.” Fed. R. Evid. 801(c). Subject to certain exceptions, hearsay is not

admissible at trial. See Fed. R. Evid. 802.

      Agent Murphy testified that there was a coordinated investigation occurring

in Texas, Alabama, and Florida, and that she was aware that Burro had been

identified as part of the ongoing investigation into the charged conspiracy. Her

testimony did not include any statements from other agents, and it appears to have

been based on her personal participation in the coordinated investigation of the

conspiracy. A witness’s testimony at trial based on her personal observations,

which does not include out-of-court statements, is not hearsay. See Fed. R. Evid.

801(c).

                                           B.

      Perez-Lopez argues for the first time on appeal that admission of the

evidence about the investigation of Burro violated his Sixth Amendment

Confrontation Clause rights. We review a claim of error raised for the first time on

appeal only for plain error. Baker, 432 F.3d at 1202–03, 1206. Plain error exists

where (1) there is an error; (2) the error is plain or obvious; and (3) the error affects

the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732–34,

113 S. Ct. 1770, 1776–78 (1993). When these three factors are met, we may then

exercise our discretion and correct the error only if it seriously affects the fairness,



                                           13
integrity, or public reputation of judicial proceedings. Id. at 732, 113 S. Ct. at

1776. Whether the error affected a defendants’s substantial rights hinges on

whether the error affected the outcome of the proceeding. Arbolaez, 450 F.3d at

1291.

        “The Confrontation Clause of the Sixth Amendment guarantees criminal

defendants an opportunity to impeach through cross-examination the testimony of

adverse witnesses.” United States v. Ariaz-Izquierdo, 449 F.3d 1168, 1178 (11th

Cir. 2006), cert. denied, 127 S. Ct. 1041 (2007). The Confrontation Clause forbids

the introduction of testimonial hearsay evidence at trial, unless: (1) the declarant is

unavailable; and (2) the defendant had a prior opportunity to cross-examine the

declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374

(2004).

        There was no error, much less plain error. The district court did not violate

Perez-Lopez’s Confrontation Clause rights by admitting Agent Murphy’s

testimony that Burro, an unindicted co-conspirator, was under investigation

because the testimony was based on her personal knowledge and was not hearsay.

Moreover, Perez-Lopez was given an opportunity to fully cross-examine Murphy

about the investigation during the trial, and therefore his Confrontation Clause

rights were not violated.



                                           14
                                          C.

      Perez-Lopez also argues for the first time on appeal that the evidence about

the investigation of Burro constituted improper character evidence, in violation of

Federal Rule of Evidence 404(b). As with Perez-Lopez’s Confrontation Clause

argument, we also review this argument only for plain error. Baker, 432 F.3d at

1202–03, 1206.

      Rule 404(b) forbids the admission of any evidence of “other crimes, wrongs,

or acts . . . to prove the character of a person in order to show action in conformity

therewith.” Fed. R. Evid. 404(b). However, such evidence “may . . . be admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Id.

      Perez-Lopez’s argument that the testimony was inadmissible character

evidence is meritless. As mentioned above, Agent Murphy’s testimony related to

an investigation of Burro regarding the underlying crime at issue under the charged

conspiracy. There was no reference to any “other crimes, wrongs, or acts”

committed by Perez-Lopez, or to his character. See Fed. R. Evid. 404(b). Rule

404(b) does not apply.

                                          IV.

      Perez-Lopez next contends that the district court erred in declining to order



                                          15
the government to turn over information about when Tobias informed the agents

that the individual who introduced him to Perez-Lopez was his cousin, Reyes.

Perez-Lopez argues that the information, including Tobias’ presentence

investigation report, was necessary for his attack on Tobias’ credibility, which he

argues was the central issue of the case.

      We review de novo whether a violation of Brady v. Maryland, 373 U.S. 83,

83 S. Ct. 1194 (1963), occurred below. United States v. Schlei, 122 F.3d 944, 989

(11th Cir. 1997). Upon request, the government has a duty to reveal any “evidence

[that] is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at 1196–97. This

duty covers “[i]mpeachment evidence . . . as well as exculpatory evidence.”

United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985). The

government violates a defendant’s constitutional right to due process when it

suppresses requested evidence that is favorable to the accused and the suppressed

evidence is material. United States v. Perez, 473 F.3d 1147, 1150 (11th Cir. 2006),

cert. denied, 127 S. Ct. 2147 (2007).

      In order to establish constitutional error under Brady, a defendant must show

“(1) that the Government possessed evidence favorable to the defendant (including

impeachment evidence); (2) that the defendant did not possess the evidence nor



                                            16
could he have obtained it himself with any reasonable diligence; (3) that the

prosecution suppressed the favorable evidence; and (4) that had the evidence been

revealed to the defense, there is a reasonable probability that the outcome of the

proceedings would have been different.” Id. “Within the possession, custody, or

control of the government does not include possession of a federal court or

probation officer.” United States v. Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997)

(citation omitted); see also United States v. Trevino, 556 F.2d 1265, 1270–71 (5th

Cir. 1977) (holding that a PSR generally is not considered to be in the

government’s possession for purposes of Brady material).1

       Perez-Lopez’s argument is without merit because the record shows that

documents containing the information he sought either did not exist because of the

poor recordkeeping by the original case officer, or, in the case of Tobias’ PSR, the

document was not in the possession of the government for the purposes of Brady.

Moreover, Perez-Lopez cannot show that there is a reasonable probability that, had

the evidence been disclosed, the outcome of the trial would have been different.

He presented much the same information through other evidence, including

Tobias’ and Agent Murphy’s testimony, and he effectively impeached Tobias



       1
          In our en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.

                                              17
using other evidence, such as the factual recitation in his plea agreement.

Accordingly, there was no Brady violation here.

                                          V.

      Perez-Lopez finally contends that when coupled together, the cumulative

effect of the individual errors deprived him of a fair trial. We address a claim of

cumulative error by first considering the validity of each claim individually.

United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997). We then

examine the evidentiary errors in the aggregate and the trial “as a whole to

determine whether the appellant was afforded a fundamentally fair trial.” Id. We

will reverse if the cumulative effect is prejudicial, even if each individual error was

harmless. Baker, 432 F.3d at 1203. However, where there is no error or only a

single error, there can be no cumulative error. United States v. Waldon, 363 F.3d

1103, 1110 (11th Cir. 2004).

      Because the district court did not commit any individual errors, there cannot

be any cumulative prejudicial error.

      AFFIRMED.




                                          18
