           Case: 14-10748   Date Filed: 11/18/2014   Page: 1 of 17


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10748
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:13-cr-80171-DMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

CARL WINSTON ELLIS,
agent of Hubert Simms,

                                                          Defendant-Appellant.

                       ________________________

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



                            (November 18, 2014)
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Before WILLIAM PRYOR, EDMONDSON, and BLACK, Circuit Judges.



PER CURIAM:



      Carl Winston Ellis was convicted by a jury of attempting to illegally reenter

the United States, having previously been removed, in violation of 8 U.S.C.

§ 1326(a) and (b)(2). Ellis was first deported in 1999 and, in 2000, was convicted

of illegally re-entering the United States.

      Ellis was charged with that offense after United States Customs and Border

Protection agents responded to a distress call, on August 8, 2013, about a boat that

was dead on the water off the coast of Florida. Agents found Ellis and 14 others

(including a young child) on the boat. At the time, Ellis told the agents that the

boat came from Freeport, Bahamas, and that he and the other passengers were out

fishing. The agents, however, found no fishing equipment on board. Instead, they

observed that many of the passengers were traveling with plastic bags containing

personal items, large amounts of money, and their passports. Some passengers told

the agents that they were traveling to the United States. No one on the boat had

authorization to enter the United States.

      Ellis appeals the district court’s denial of his motion to dismiss the

indictment due to an alleged violation of the Speedy Trial Act, 18 U.S.C. § 3161,


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et seq., and appeals three of the court’s evidentiary rulings. He also argues that the

court should have dismissed the indictment because of an alleged violation of

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Ellis

testified at his trial. No challenge is made to the sufficiency of the evidence to

support a conviction. We affirm the conviction.



                                 Motion to Dismiss



      On appeal, Ellis argues that the speedy-trial period commenced on 7

September 2013, the day after his initial appearance. The day of his arraignment

was excluded, and the period was paused on 30 September, when he filed a motion

to retain an investigator. He maintains that the speedy-trial period resumed on 15

October 2013, the day after the court signed an order granting the motion, and that

the period ended on 8 December, the day before he filed his motion to dismiss the

indictment. The court denied the motion to dismiss at trial, on 10 December 2013.

As such, Ellis contends a total of 77 includable days elapsed between 7 September

and the commencement of trial.

      The Sixth Amendment to the United States Constitution provides that, “[i]n

all criminal prosecutions, the accused shall enjoy the right to a speedy and public




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trial.” U.S. Const. amend. VI. The Speedy Trial Act, 18 U.S.C. § 3161, et seq.,

provides:

      In any case in which a plea of not guilty is entered, the trial of a
      defendant charged in an information or indictment with the
      commission of an offense shall commence within seventy days from
      the filing date (and making public) of the information or indictment,
      or from the date the defendant has appeared before a judicial officer of
      the court in which such charge is pending, whichever date last occurs.

18 U.S.C. § 3161(c)(1).

      “We review the district court’s construction and interpretation of the Speedy

Trial Act de novo.” United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997).

We review the district court’s factual determinations on what constitutes

excludable time under the Speedy Trial Act for clear error. Id.

      The date on which the defendant was arraigned is excludable from the

statutory speedy-trial period. See United States v. Severdija, 723 F.2d 791, 792-93

(11th Cir. 1984). In addition, any period of delay resulting from “any pretrial

motion, from the filing of the motion through the conclusion of the hearing on, or

other prompt disposition of, such motion” is excludable. 18 U.S.C.

§ 3161(h)(1)(D). We have concluded that, when a judge rules on a motion by

written order, the motion has not been promptly disposed of under § 3161(h)(1)(D)

-- even though the order is signed by the judge -- until it is officially filed by the

clerk of the court, provided such filing occurs in due course. See United States v.

Martinez, 749 F.2d 623, 625 (11th Cir. 1984).
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       Here, the district court did not err in denying Ellis’s motion to dismiss the

indictment: no violation of the Speedy Trial Act occurred. Ellis incorrectly

concluded that the district court disposed of his motion for authorization to retain

an investigator on 14 October 2013. While the district court signed its order

granting the motion on 14 October, the clerk did not file the order until 28

October 2013. No one has contended that the filing was not in due course.

Pursuant to Martinez, the court disposed of the order, for the purpose of calculating

the speedy-trial period, on 28 October. See 749 F.2d at 625. As such, four days

elapsed from 7 September, the day after Ellis’s initial appearance, through 10

September. Ellis was arraigned on 11 September, which was excluded.

See Severdija, 723 F.2d at 792-93. Eighteen days elapsed from 12 September

through 29 September, the day before Ellis filed his motion to retain an

investigator; and 41 days elapsed from 29 October, the day after the clerk filed the

order granting Ellis’s motion, through 8 December, the day before Ellis filed his

motion to dismiss. The resulting total is 63 days, which is within the statutory

speedy-trial period.1




       1
         On appeal Ellis and the government dispute whether the time pending on a motion filed
by the government to reschedule trial to begin on 10 December 2013, which the district court
granted, was excludable from the speedy-trial period. Because the elapsed time, including the
pendency of that motion, was less than 70 days, we do not decide the question about whether the
government’s motion may have paused the speedy-trial clock.
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                                 Evidentiary Rulings



       Ellis argues on appeal that the district court abused its discretion by

admitting (i) evidence that Shane Rolle, the captain of the pertinent boat in this

case, had a prior conviction for alien smuggling; (ii) testimony by Kemar Clarke, a

passenger on the boat, that Derrick Singh, another passenger, said Singh was

traveling to the United States; and (iii) an affidavit from a Canadian official stating

that Ellis had been deported from Canada in 2011 because of a Canadian

conviction for trafficking in narcotics. Ellis also contends, for the first time on

appeal, that the court’s admission of the Canadian affidavit violated the Sixth

Amendment Confrontation Clause. Furthermore, he argues that the cumulative

effect of the three alleged evidentiary errors warrants reversal of his conviction.



                 (i)    Rolle’s prior conviction for alien smuggling



      Ellis argues on appeal that Rolle’s prior conviction was not relevant because

the government was unable to offer evidence that Ellis knew about it. He also

contends that, because the evidence lacked probative value, the danger that the jury

improperly considered it in deciding to convict him was overwhelming and

unfairly prejudicial.


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      We review a district court’s decision to admit evidence for abuse of

discretion. United States v. Jimenez, 224 F.3d 1243, 1249 (11th Cir. 2000). We

will reverse an erroneous evidentiary ruling “only if the resulting error was not

harmless.” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.), corrected by

194 F.3d 1186 (11th Cir. 1999). “An error is harmless unless there is a reasonable

likelihood that [it] affected the defendant’s substantial rights.” Id. (quotation

omitted); see also Fed.R.Crim.P. 52(a). An erroneous admission of evidence does

not warrant reversal if it “had no substantial influence on the outcome and

sufficient evidence uninfected by error supports the verdict.” United States v.

Fortenberry, 971 F.2d 717, 722 (11th Cir. 1992). We determine whether an error

had substantial influence on the outcome by examining “the facts, the trial context

of the error, and the prejudice created thereby as juxtaposed against the strength of

the evidence of [the] defendant’s guilt,” United States v. Reed, 700 F.2d 638, 646

(11th Cir. 1983). The doctrine of cumulative error allows remand for a new trial

even if the errors, considered individually, would not merit a new trial. See United

States v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013).

      The Federal Rules of Evidence provide that all relevant evidence is

admissible, unless the United States Constitution, a federal statute, the Federal

Rules of Evidence, or other rules prescribed by the Supreme Court provide

otherwise. Fed.R.Evid. 402. Evidence is relevant if it has some tendency to make


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a fact more or less probable than it would be without the evidence and if the fact is

of consequence in determining the case. Fed.R.Evid. 401.

      Rule 404(b) of the Federal Rules of Evidence provides that evidence of a

crime may not be admitted to prove a person’s character to show that, on a

particular occasion, the person acted in accordance with his character. Fed.R.Evid.

404(b)(1). But such evidence may be admissible to prove “motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Fed.R.Evid. 404(b)(2). We have said that a crime committed by

someone other than the defendant does not implicate Rule 404(b) and is admissible

if its relevance outweighs its prejudicial effect pursuant to Fed.R.Evid. 403.

United States v. Morano, 697 F.2d 923, 926 (11th Cir. 1983); United States v.

Edwards, 696 F.2d 1277, 1280-81 (11th Cir. 1983).

      Rule 403 of the Federal Rules of Evidence provides that the district court

may exclude relevant evidence if its probative value is “substantially outweighed”

by a danger of unfair prejudice, confusing the issues, or misleading the jury.

Fed.R.Evid. 403. We have explained that Rule 403 is “an extraordinary remedy to

be used sparingly.” United States v. Meester, 762 F.2d 867, 875 (11th Cir. 1985).

It is meant to permit the district court “to preserve the fairness of the proceedings,”

but “[i]t is not designed to permit the court to ‘even out’ the weight of the

evidence, to mitigate a crime, or to make a contest where there is little or none.”


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Id. We review the district court’s determination on whether evidence is unduly

prejudicial only for clear abuse. Id.

      Here, the district court did not abuse its discretion in concluding that Rolle’s

prior conviction for alien smuggling was relevant. The court reasonably concluded

that the conviction tended to contradict Ellis’s statement to the agents who

intercepted the boat that he was out fishing and that it tended to show “what he

might have been up to that day.” That Ellis may not have known about the

conviction does not render it irrelevant.

      Nor did the court abuse its discretion in determining that the relevance of

Rolle’s conviction outweighed any prejudicial effect it might have had on Ellis.

See Meester, 762 F.2d at 875. The district court noted our precedent indicating

that Rule 404(b) is not implicated by admission of evidence of a crime committed

by someone other than the defendant, Morano, 697 F.2d at 926; Edwards, 696 F.2d

at 1280-81, and the court concluded that the pertinent conviction was not otherwise

unduly prejudicial to Ellis. Ellis offers no convincing argument on appeal about

how Rolle’s conviction may have misled or confused the jury, or otherwise been

prejudicial to him.




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                         (ii)   Singh’s statement to Clarke



      Ellis argues that Clarke’s testimony that Singh said he was traveling to the

United States was inadmissible hearsay evidence and that it did not fall within a

hearsay exception. He contends summarily that the evidence directly impacted on

the jury’s decision about whether the boat was traveling from Freeport to Bimini or

from Bimini to the United States. The government argues that the statement was

admissible as a coconspirator’s statement, pursuant to Fed.R.Evid. 801(d)(2)(E).

      The Federal Rules of Evidence generally exclude hearsay from admissible

evidence. Fed.R.Evid. 802. Hearsay is defined as an out-of-court statement that “a

party offers in evidence to prove the truth of the matter asserted.”

Fed.R.Evid. 801(c). A statement offered against an opposing party that “was made

by the party’s coconspirator during and in furtherance of the conspiracy” is not

hearsay. Fed.R.Evid. 801(d)(2)(E).

      Before admitting a coconspirator’s statement over an objection that it does

not qualify under Fed.R.Evid. 801(d)(2)(E), a court must be satisfied a conspiracy

existed involving the declarant and the non-offering party and the statement was

made during and in furtherance of the conspiracy. Bourjaily v. United States, 483

U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). The offering party




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must prove such preliminary facts by a preponderance of the evidence. Id. at 176,

107 S.Ct. at 2779.

      At trial, the district court, without hearing an explanation from either Ellis or

the government, overruled Ellis’s hearsay objection. The government did not

argue before the district court that Rule 801(d)(2)(E) applied, and the district court

expressed no findings bearing on the objection. In any event, the government

presented other significant evidence that the boat at issue was traveling from

Bimini to the United States, that Ellis knew the boat was traveling to the United

States, and that Ellis intended to travel to the United States. So, any error by the

district court in admitting Clarke’s testimony that Singh said he was traveling to

the United States was harmless.



                              (iii)   Canadian affidavit



      Ellis argues that the affidavit from a Canadian official stating that Ellis was

deported from Canada in 2011 because of a Canadian conviction for narcotics

trafficking was inadmissible hearsay and that its admission violated the

Confrontation Clause. He maintains that the affidavit, which the government

offered to impeach his testimony that he was deported from Canada because of his




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criminal history in the United States, significantly impacted on the jury’s decision

to discredit his defense.

      Rule 803 of the Federal Rules of Evidence provides that a record or

statement of a public office is not excluded as hearsay if:

      (A)    it sets out:

             (i)     the office’s activities;

             (ii)    a matter observed while under a legal duty to report, but
                     not including, in a criminal case, a matter observed by
                     law-enforcement personnel; or

             (iii)   in a civil case or against the government in a criminal
                     case, factual findings from a legally authorized
                     investigation; and

      (B)    neither the source of information nor other circumstances
             indicate a lack of trustworthiness.

Fed.R.Evid. 803(8).

      The Confrontation Clause provides that, “[i]n all criminal cases, the accused

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

U.S.Const. amend. VI. Plain-error review applies to an alleged Confrontation

Clause violation, when the defendant failed to raise the objection at trial. United

States v. Brazel, 102 F.3d 1120, 1141 (11th Cir. 1997). Raising a hearsay

objection is insufficient to preserve a Confrontation Clause challenge.

United States v. Arbolaez, 450 F.3d 1283, 1291 n.8 (11th Cir. 2006). “Plain error



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exists when an error is so obvious that failure to notice it would result in a

miscarriage of justice.” Brazel, 102 F.3d at 1141 (quotation omitted).

      The Confrontation Clause protects a defendant’s right to confront those

persons who make “testimonial” statements against him. Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 309-10, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314

(2009) (citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d

177 (2004)). Testimonial statements may include statements that declarants would

reasonably expect to be used prosecutorially, including ex parte in-court testimony

or its functional equivalent, such as affidavits. Crawford, 541 U.S. at 51, 124 S.Ct.

at 1364.

      The Confrontation Clause prevents the admission of testimonial hearsay

against a criminal defendant, unless the declarant is unavailable and the defendant

had a prior opportunity for cross-examination. Id. at 53-54, 68, 124 S.Ct.

at 1365-66, 1374. The Sixth Amendment right to confrontation is not absolute.

United States v. Deeb, 13 F.3d 1532, 1537 (11th Cir. 1994). As such, the harmless

error doctrine applies in the confrontation context. Delaware v. Van Arsdall, 475

U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). Whether the error is

harmless depends on many factors, including the importance of the testimony to

the government’s case, whether the testimony was cumulative, the presence or

absence of evidence corroborating or contradicting the testimony on material


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points, and the overall strength of the government’s case. Id.

      Here, we conclude that any error by the district court in admitting the

Canadian affidavit was harmless. The government presented other significant

evidence of Ellis’s guilt of the charged offense and impeaching him as a witness.

Given the weight of the valid evidence in this case, Ellis also has not convinced us

that the cumulative effect of supposed errors in this case warrants reversal of his

convictions.



                                Alleged Brady Violation



      Ellis argues on appeal that the government violated Brady by failing to

inform him earlier that Singh told immigration officials on 8 October 2013 that

Singh was traveling on the boat at issue in this case to attend a reggae show in

Bimini. Singh was deported from the United States to Jamaica on 31 October, and

the government did not inform Ellis of the exculpatory statement until 6 November

2013. Ellis maintains that he was unable, with the help of an investigator, to locate

Singh in Jamaica before the commencement of trial and that he was therefore

deprived of the opportunity to explore and to introduce Singh’s testimony, which

would have corroborated Ellis’s defense.




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      “[S]uppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence 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. To establish a Brady violation, the defendant

must show that (1) the government possessed evidence favorable to him; (2) he

did not possess the evidence, nor could he obtain it himself with reasonable

diligence; (3) the government suppressed the evidence; and (4) had the evidence

been disclosed to the defense, a reasonable probability exists that the outcome of

the proceedings would have been different. United States v. Hansen, 262 F.3d

1217, 1234 (11th Cir. 2001). A “reasonable probability” is “a probability

sufficient to undermine confidence in the outcome.” United States v. Bagley, 473

U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). “The mere

possibility that an item of undisclosed information might have helped the defense,

or might have affected the outcome of the trial, does not establish ‘materiality’ in

the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct.

2392, 2400, 49 L.Ed.2d 342 (1976). “Materiality is a function of the strength of

the government’s case.” United States v. Burroughs, 830 F.2d 1574, 1579

(11th Cir. 1987).

      Brady issues usually arise when the defendant learns, after trial, of

information that was known to the prosecution but unknown to the defense.


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See Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. In United States v. Kubiak, we

concluded that no Brady violation occurred where (i) the prosecution informed the

defendant, before trial, that it had taken a statement from a coconspirator that

contained evidence favorable to the defense; (ii) the defense took no act to obtain

the evidence; (iii) during trial, the trial court, sua sponte, ordered the government

to turn the coconspirator’s statement over to the defense; and (iv) the defense did

not move for a continuance, request a recess, introduce the coconspirator’s

statement into evidence, or call the coconspirator as a witness. 704 F.2d 1545,

1550 (11th Cir. 1983). We concluded that the defense’s conduct undercut the

argument that the defense was prejudiced by the government’s failure to provide

the evidence earlier. Id.

      Ellis has not demonstrated a reasonable probability that Singh’s testifying

would have altered the outcome of his trial. For one thing, the date Singh

referenced in the statement at issue was inconsistent with the date in the

indictment. Second, if Singh had testified at trial consistently with the statement at

issue, the government could have impeached him with Singh’s earlier statement

that he was traveling on 7 August 2013 from Bimini to the United States, with

Clarke’s testimony that Singh said he was traveling to the United States, and with

Ellis’s testimony that he and Singh were detained together and that Ellis helped

Singh contact his family. Moreover, Ellis’s failure -- once he did know of the


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pertinent statement before trial -- to request a continuance to locate Singh and

failure to introduce Singh’s statement into evidence undercuts his argument that he

was actually prejudiced by the government’s failure to provide the statement

earlier. See Kubiak, 704 F.2d at 1550.

      AFFIRMED.




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