     Case: 10-50152 Document: 00511335594 Page: 1 Date Filed: 12/29/2010




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

                                                 FILED
                                                                         December 29, 2010
                                     No. 10-50152
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

MARTIN MARTINEZ-ESTRADA, also known as Luis Chavez-Martinez, also
known as Victoriano Martinez-Estrada,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 4:09-CR-253-7


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Martin Martinez-Estrada appeals his 130-month sentence imposed after
his jury-trial conviction for possession, with intent to distribute, more than 100,
but less than 1000, kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2. Martinez contends: (1) the district court abused its discretion
by admitting alleged hearsay testimony of Agent Holguin, a member of the Drug
Enforcement Agency Task Force, regarding a description of Martinez’ personal


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50152 Document: 00511335594 Page: 2 Date Filed: 12/29/2010

                                   No. 10-50152

appearance; and (2) his rights were substantially affected by admission of this
testimony because it improperly bolstered the testimony of his two co-
defendants.
      Hearsay is “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 asserted”.    F ED. R. E VID. 801(c).   Such testimony is generally not
admissible as evidence, unless it falls within an exception. See F ED. R. E VID.
802. The district court’s evidentiary ruling is reviewed for abuse of discretion,
subject to a harmless-error analysis. United States v. Crawley, 533 F.3d 349,
353 (5th Cir. 2008); see F ED. R. E VID. 103(a). In other words, an evidentiary-
ruling error is reversible only where it substantially affects defendant’s right to
a fair trial. Crawley, 533 F.3d at 353; F ED. R. E VID. 103(a).
      The district court did not abuse its discretion in admitting Agent Holguin’s
testimony. The Government asked Agent Holguin to testify specifically about
information he provided to another law enforcement agent during the course of
the investigation. The information relayed was based on details provided during
interviews of Martinez’ co-defendants and included: a description of Martinez
as wearing a black T-shirt and camouflage trousers during the commission of the
crime, and having a distinctive tattoo around his right eye. The description was
not offered to prove the truth of the matter asserted, but rather to explain how
Agent Holguin proceeded in the investigation. Out-of-court statements, offered
to provide background information to explain the actions of investigators, are not
hearsay. United States v. Dunigan, 555 F.3d 501, 507 (5th Cir.), cert. denied,
129 S. Ct. 2450 (2009).
      In any event, any error was harmless because admission of the testimony
did not substantially affect Martinez’ rights. See id. at 509 (holding prosecutor’s
statements did not substantially effect defendant’s right to fair trial). The record
is replete with evidence of the description co-defendants provided to Agents
regarding Martinez’ appearance, including the testimony of two co-defendants

                                         2
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                                 No. 10-50152

who explained the descriptions they provided to agents. Furthermore, the
record reflects additional, overwhelming evidence of Martinez’ participation in
the drug venture: two co-defendants testified Martinez was one of seven men
recruited to transport marijuana into the United States from Mexico, carried one
of the bags containing a substance confirmed to be marijuana, acted as a
translator for the non-English speaking participants, and even made some of the
decisions during the trip.
      AFFIRMED.




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