                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               February 21, 2008
                               No. 06-15852                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 06-14023-CR-KMM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MARC JACQUES,
a.k.a.Riggins Elan,
a.k.a. Jason Adams,
a.k.a. Walter King,

                                                           Defendant-Appellant.


                         ________________________

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

                             (February 21, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:
      Marc Jacques appeals his conviction by a jury for possession with intent to

distribute five or more grams of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), and the life sentence imposed as a result. On appeal, Jacques argues

that (1) the evidence at trial was insufficient to support his conviction, (2) the

district court abused its discretion in admitting hearsay that violated Jacques’s right

to confrontation, (3) the district court abused its discretion in denying Jacques’s

requested jury instruction on reasonable doubt and lack of evidence, (4) the district

court abused its discretion in denying Jacques’s motion for a new trial on the basis

that a juror considered extrinsic evidence, and (5) the district court violated

Jacques’s Fifth and Sixth Amendment rights when it increased his sentencing

range based on his status as a career offender, where his prior convictions were not

alleged in the indictment or decided by a jury. For the reasons set forth below, we

affirm.

                                    DISCUSSION

      On April 4, 2006, Jacques was arrested in a room at the Harbor Inn Motel in

Stuart, Florida. Investigating officers testified that as Jacques walked from his

vehicle to the motel room, he carried an object with a protruding handle covered by

a white towel. A few seconds after Jacques entered the room, officers who had

been waiting in the bathroom detained Jacques. When Jacques was arrested he was



                                            2
standing within inches of a cooking pot that, according to the investigating

officers’ testimony, had not been in the room before Jacques’s arrival and

contained 31.6 grams of crack cocaine. Jacques testified as the sole witness in his

defense at trial.

1. Sufficiency of the Evidence

       “[W]e review de novo whether there is sufficient evidence to support the

jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003) (per

curiam). We will affirm the jury’s verdict “if a reasonable trier of fact could

conclude that the evidence establishes guilt beyond a reasonable doubt.” Id.

(internal quotation marks omitted). On review, we view the evidence “in the light

most favorable to the government, with all reasonable inferences and credibility

choices made in the government’s favor . . . .” Id. (internal quotation marks

omitted). We review a district court’s denial of a motion for judgment of acquittal

according to the same standard. United States v. Descent, 292 F.3d 703, 706 (11th

Cir. 2002) (per curiam).

       The elements that must be proved beyond a reasonable doubt by the

government in order to establish a violation of 21 U.S.C. § 841(a) are that the

defendant: (1) knowingly and intentionally (2) possessed a controlled substance

(3) with intent to distribute it. See 21 U.S.C. § 841(a)(1); see also United States v.



                                           3
Poole, 878 F.2d 1389, 1391 (11th Cir. 1989) (per curiam). All three elements can

be proven by direct or circumstantial evidence. Poole, 878 F.2d at 1391–92.

       Viewing the evidence presented at trial in the light most favorable to the

government, a jury could conclude beyond a reasonable doubt that Jacques

knowingly possessed cocaine base with the intent to distribute it. Accordingly, we

hold that the district court did not err in denying Jacques’s motion for judgment of

acquittal.

2. Hearsay and the Confrontation Clause

       “We review a district court’s hearsay ruling for abuse of discretion.” United

States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006), cert. denied, — U.S. —,

127 S. Ct. 1149, 166 L. Ed. 2d 998 (2007). “An erroneous evidentiary ruling will

result in reversal only if the resulting error was not harmless.” United States v.

Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (citing Fed. R. Crim. P. 52(a)). “An

error is harmless unless there is a reasonable likelihood that [it] affected the

defendant’s substantial rights.” Id. (internal quotation marks omitted). We review

de novo whether a defendant’s Sixth Amendment right to confrontation was

violated. United States v. Yates, 438 F.3d 1307, 1311 (11th Cir. 2006) (en banc).

       Under the Federal Rules of Evidence, “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove



                                            4
the truth of the matter asserted” is inadmissible hearsay. Fed. R. Evid. 801(c), 802.

Statements to officers generally, however, may be admitted as non-hearsay for the

limited purpose of explaining the background of the officers’ actions if the

admission of such statements is not overly prejudicial. United States v. Baker, 432

F.3d 1189, 1209 n.17 (11th Cir. 2005).

      The Sixth Amendment provides, “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.

Const. amend. VI. “[I]f hearsay is ‘testimonial,’ . . . the Confrontation Clause

prohibits its admission at trial unless (1) the declarant is unavailable, and (2) and

the defendant has had a prior opportunity to cross-examine the declarant. Baker,

432 F.3d at 1203 (citation and footnote omitted). Non-hearsay aspects of out-of-

court statements do not raise Confrontation Clause concerns. See Tennessee v.

Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 2081–82, 85 L. Ed. 2d 425 (1985)

(holding that admission of non-hearsay aspects of a confession, to prove what

happened when an individual confessed, did not raise Confrontation Clause

concerns); United States v. Peaden, 727 F.2d 1493, 1500 n.11 (11th Cir. 1984)

(noting that the principles underlying the Confrontation Clause are not implicated

by statements admitted for their non-hearsay value). In Peaden, we further noted

that “[t]he value of a statement offered for nonhearsay purposes lies in its being



                                           5
said rather than in its content. The only person the defendant needs to cross-

examine, therefore, is the person who heard it, and is testifying to its utterance

from personal knowledge.” Peaden, 727 F.2d at 1500 n.11.

      Jacques challenges testimony at trial by government agents concerning what

they learned from a cooperating source who was not available to testify. The

testimony was non-hearsay because it was not offered for the truth of the matter

asserted. Furthermore, because the testimony was offered for a non-hearsay

purpose, the Confrontation Clause was not implicated. Accordingly, we conclude

that the district court did not abuse its discretion in admitting the challenged

testimony, and that such testimony did not violate the Confrontation Clause.

3. Requested Jury Instruction

      We review the district court’s refusal to use a proposed jury instruction for

abuse of discretion. United States v. Dean, 487 F.3d 840, 847 (11th Cir.) (per

curiam), pet. for cert. filed, (U.S. Oct. 25, 2007) (No. 07-553). For the denial of a

requested jury instruction to be reversible error a defendant must show that:

      (1) the requested instruction was a correct statement of the law, (2) its
      subject matter was not substantially covered by other instructions, and
      (3) its subject matter dealt with an issue in the trial court that was so
      important that failure to give it seriously impaired the defendant’s
      ability to defend himself.

Id. (internal quotation marks omitted). In deciding whether a defendant’s



                                           6
requested instruction was substantially covered by the actual charge delivered to

the jury, we “need only ascertain whether the charge, when viewed as a whole,

fairly and correctly states the issues and the law.” United States v. Gonzalez, 975

F.2d 1514, 1517 (11th Cir. 1992).

      The record shows that the subject matter of Jacques’s requested instruction

was substantially covered by the court’s instruction on reasonable doubt and by the

court’s instruction that the jury consider all of the evidence in the case.

Furthermore, the failure to give the requested instruction did not seriously impair

Jacques’s ability to defend himself because the court allowed Jacques to argue the

lack of evidence to the jury. Accordingly, the district court did not abuse its

discretion by declining to give Jacques’s requested jury instruction.

4. Motion for New Trial and Extrinsic Evidence

      We review a district court’s denial of a motion for new trial based on the

jury’s exposure to extrinsic evidence for abuse of discretion. United States v.

Ronda, 455 F.3d 1273, 1296 n.33 (11th Cir. 2006), cert. denied, — U.S. —, 127 S.

Ct. 1327, 167 L. Ed. 2d 86 (2007).

      The government has the burden of establishing a defendant’s guilt “solely on

the basis of evidence produced in the courtroom and under circumstances assuring

the accused all the safeguards of a fair trial.” Farese v. United States, 428 F.2d



                                            7
178, 179 (5th Cir. 1970). This theory “goes to the fundamental integrity of all that

is embraced in the constitutional concept of trial by jury.” United States v. Rowe,

906 F.2d 654, 656 (11th Cir. 1990) (internal quotation marks omitted). Jurors

“have no right to investigate or acquire information relating to the case outside of

that which is presented to them in the course of the trial in accordance with

established trial procedure.” Farese, 428 F.2d at 179. Nevertheless, “due process

does not require a new trial every time a juror has been placed in a potentially

compromising situation.” Rowe, 906 F.2d at 656 (internal quotation marks

omitted). A new trial is required if the jury’s consideration of extrinsic evidence

resulted in a reasonable possibility of prejudice to the defendant. Id.

      An apparent conflict exists among our prior decisions regarding whether

prejudice is presumed when a juror receives extrinsic information about the case.

We have so far declined to resolve the conflict because it has had no bearing on the

result in later cases, and as discussed below, we need not do so in the present case.

See Ronda, 455 F.3d at 1299 n.36.

      We addressed a trial court’s duty to investigate juror misconduct in United

States v. Cousins, 842 F.2d 1245 (11th Cir. 1988), stating that:

      [W]hen a defendant makes a “colorable showing” that jurors have
      been exposed to extrinsic influences, the district court, in the exercise
      of its discretion, must make sufficient inquiries or conduct a hearing
      to determine whether the influence was prejudicial. However, there is

                                           8
      no per se rule requiring an inquiry in every instance. The duty to
      investigate arises only when the party alleging misconduct makes an
      adequate showing of extrinsic influence to overcome the presumption
      of jury impartiality. In other words, there must be something more
      than mere speculation.

Id. at 1247. If a defendant establishes prejudice, the burden shifts to the

government to establish that the consideration of extrinsic evidence was harmless.

See Ronda, 455 F.3d at 1299. To determine whether the government has met its

burden, we consider the totality of the circumstances, including “(1) the nature of

the extrinsic evidence; (2) the manner in which the information reached the jury;

(3) the factual findings in the district court and the manner of the court’s inquiry

into the juror issues; and (4) the strength of the government’s case.” Id. at

1299–1300.

      Jacques complains about a juror who allegedly drove past the motel where

the offense took place. Under the totality of the circumstances, including the

limited nature of the extrinsic evidence, the way in which it reached the juror, and

the strength of the government’s case, we conclude that any exposure to extrinsic

evidence by the juror was harmless. Therefore, the district court did not abuse its

discretion in denying Jacques’s motion for new trial.

5. Prior Convictions

      We review properly preserved constitutional claims de novo, but reverse



                                           9
only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)

(per curiam). A district court does not err by relying on prior convictions to

enhance a defendant’s sentence. United States v. Shelton, 400 F.3d 1325, 1329

(11th Cir. 2005). In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.

1219, 140 L. Ed. 350 (1998), the Supreme Court held that a district court may

consider prior convictions and use them to enhance a defendant’s sentence even if

those convictions were not alleged in the indictment or proved beyond a reasonable

doubt. Id. at 244–46, 118 S. Ct. at 1231–32. Subsequent Supreme Court

decisions, namely Apprendi,1 Blakely,2 and Booker,3 have not disturbed that

holding. Shelton, 400 F.3d at 1329. Accordingly, we must follow

Almendarez-Torres.

      The government made an adequate showing of the necessary convictions for

the sentence enhancement under 21 U.S.C. § 841. Thus, the district court did not

violate Jacques’s Fifth and Sixth Amendment rights when it enhanced his sentence

based on his prior convictions.

                                       CONCLUSION

      Based on our review of the record and the parties’ briefs, we affirm

      1
          Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
      2
          Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
      3
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

                                               10
Jacques’s conviction and sentence as to the sufficiency of the evidence, the

admission of out-of-court statements concerning the background of the

investigation, the refusal to give Jacques’s requested jury instruction, the denial of

Jacques’s motion for new trial, and the use of prior convictions to enhance

Jacques’s sentence.

AFFIRMED.




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