     Case: 12-10512       Document: 00512181928         Page: 1     Date Filed: 03/20/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 20, 2013
                                     No. 12-10512
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADRIAN MONTIEL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:05-CR-313-7


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Adrian Montiel appeals his conviction and sentence for conspiracy to
possess with intent to distribute more than 500 grams of methamphetamine. He
asserts that the evidence is insufficient to support his conviction because there
was no direct evidence that he possessed narcotics or money related to the
conspiracy. Montiel maintains that the circumstantial evidence presented at
trial could have an innocent explanation and that it thus provides “equal or
nearly equal support to a theory of guilt and a theory of innocence,” which

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-10512     Document: 00512181928     Page: 2   Date Filed: 03/20/2013

                                  No. 12-10512

warrants reversal. United States v. Mudd, 685 F.3d 473, 477 (5th Cir. 2012)
(internal quotation marks and citation omitted).       We “view[] all evidence,
whether circumstantial or direct, in the light most favorable to the Government
with all reasonable inferences to be made in support of the jury’s verdict.”
United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012) (internal quotation
marks and citation omitted). After reviewing the timing and content of the
wiretapped telephone conversations, we conclude that a reasonable juror could
have found that Montiel knew of the existence of an agreement to violate the
narcotics laws and that he voluntarily participated in furtherance of that
agreement. See United States v. Booker, 334 F.3d 406, 409 (5th Cir. 2003).
      Additionally, Montiel argues that the admission of an officer’s hearsay
testimony reflecting Montiel’s involvement in an unrelated drug offense violated
the Confrontation Clause. At the time of the officer’s testimony, the parties
believed that the source of this information would testify, but the district court
ultimately found that the source’s testimony would be unduly prejudicial.
Because Montiel did not object to the introduction of this evidence on
Confrontation Clause grounds, we review for plain error. See United States v.
Martinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010). The Confrontation Clause
generally bars witnesses from testifying about out-of-court statements given by
non-testifying individuals. Crawford v. Washington, 541 U.S. 36, 54-56 (2004).
Even if the officer’s statements constituted testimonial hearsay generally barred
by the Confrontation Clause, Montiel has not demonstrated that the admission
affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). Given the strength of the evidence against him, Montiel is unable to
show “a reasonable probability that, but for [the Confrontation Clause
violation],” the jury would not have found him guilty. Martinez-Rios, 595 F.3d
at 587 (internal quotation marks and citation omitted).         Accordingly, the
judgment of the district court is AFFIRMED.



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