           Case: 13-10512   Date Filed: 09/23/2013   Page: 1 of 7


                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10512
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:12-cr-00005-BAE-GRS-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus


ANTONIO LAMONT MURRAY,
a.k.a. Mont,
a.k.a. Bo Hog,

                                                         Defendant-Appellant.

                      ________________________

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

                            (September 23, 2013)

Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
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      Antonio Lamont Murray appeals his convictions for one count of conspiracy

to kidnap, in violation of 18 U.S.C. § 1201(c), two counts of kidnapping, in

violation of 18 U.S.C. § 1201(a)(1) and (c), three counts of using a gun during a

crime of violence, in violation of 18 U.S.C. § 924(c), and one count obstruction of

justice, in violation of 18 U.S.C. § 1512(c)(2). He is currently serving a total

sentence of life imprisonment, plus 684 months, to run consecutively.

                                          I.

      Before trial, Murray filed motions for funds to obtain expert witnesses in

voice identification and deoxyribonucleic acid (DNA) analysis. A magistrate

judge denied the motions because Murray had failed to demonstrate that the

experts’ services were necessary for him to present an adequate defense.

Specifically, the magistrate judge found that Murray had failed to show that the

voice testimony was the primary evidence implicating his involvement in the

offenses, or that the government did not have additional compelling evidence

linking him to the criminal conduct. Murray additionally failed to explain why a

lay witness would be incapable of refuting the government’s evidence. Similarly,

with regard to the DNA expert, Murray did not explain what DNA evidence the

government had obtained or what evidentiary value the purported DNA had in the

government’s case. Murray subsequently re-filed his motions, and the magistrate

judge granted his motion in part, approving up to $2400 in expenditures for an


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expert DNA witness. Murray did not object to the magistrate judge’s order, nor

did he appeal any of the denials to the district court.

        At trial, the government called Charity Davis, an expert witness in forensic

serology and forensic DNA, to testify about a DNA sample that was obtained from

a soda can found at one of the crime scenes. Davis stated that based on the DNA

test results that were conducted by biologists at her lab, she was able to conclude

that the DNA from the crime scene matched Murray’s DNA. Murray objected to

this testimony, arguing that Davis was only interpreting the results of the biologists

and that instead, the biologists should be required to testify about the tests and the

test results.

        On appeal, Murray first argues that he was deprived of his Sixth Amendment

right to assistance of counsel and of his right to due process when the magistrate

judge denied his motions for expenditures to obtain expert witnesses. He further

contends that his counsel was ineffective because the denial of his motions

prevented him from providing a meaningful adversarial testing of the prosecution’s

case.

        Murray next argues that Davis’s testimony violated his right to confront the

witnesses against him. He contends that Davis’s testimony was based exclusively

on hearsay and findings made by the lab biologists who were not present at trial.

His inability to cross-examine those individuals or challenge their testimony at trial


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violated the Confrontation Clause. The government contends that Murray did not

properly raise a Confrontation Clause objection at trial, and, thus, this issue should

be reviewed for plain error only. After a thorough review of the record and the

parties’ briefs, we affirm.

                                          II.

      We lack jurisdiction to hear appeals directly from federal magistrate judges.

United States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (per curiam). Rule

59(a) of the Federal Rules of Criminal Procedure provides that a district court may

refer “any matter that does not dispose of a charge or defense” to a magistrate

judge. The magistrate judge must then enter an order and allow the parties to file

objections within 14 days of their receipt of the order. Fed. R. Crim. P. 59(a).

Failure to object to the magistrate judge’s order waives a party’s right to review.

Id. In Schultz, we determined that we lacked jurisdiction to review the magistrate

judge’s denial of the defendant’s motion for self-representation because the

defendant had failed to appeal the decision to the district court. 565 F.3d at 1361–

62. In this case because Murray did not appeal the magistrate judge’s denials of

his motions to the district court, we lack jurisdiction to rule on his claim regarding

the denials of his motions for expenditures. See id. at 1359.

      As to Murray’s next argument, we “will not generally consider claims of

ineffective assistance of counsel raised on direct appeal where the district court did


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not entertain the claim nor develop a factual record.” United States v. Bender, 290

F.3d 1279, 1284 (11th Cir. 2002). An appellate court generally cannot adequately

decide an ineffective-assistance of counsel claim raised for the first time on direct

appeal because the focus at trial did not analyze whether defense counsel’s actions

were prejudicial or supported by reasonable strategy. Massaro v. United States,

538 U.S. 500, 504–05, 123 S. Ct. 1690, 1693–94 (2003). The preferred avenue for

deciding a claim of ineffective assistance of counsel is by way of a habeas corpus

petition, “even if the record contains some indication of deficiencies in counsel’s

performance.” Id. at 504, 123 S. Ct. at 1694. Accordingly, we decline to review at

this time whether Murray’s trial counsel was ineffective. See id. at 504–05, 123 S.

Ct. at 1693–94.

                                         III.

       Murray further argues that Davis’s testimony violated the Confrontation

Clause. We review preserved claims of constitutional error de novo. United States

v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). However, where a defendant did

not lodge a timely Confrontation Clause objection, we review for plain error only.

United States v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006) (per curiam). “A

hearsay objection to testimony at trial, standing alone, does not preserve a

constitutional challenge under the Confrontation Clause for appeal.” Id. at 1291

n.8.


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      The Sixth Amendment’s Confrontation Clause states that a criminal

defendant has the right to be confronted with the witnesses against him. The

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

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

557 U.S. 305, 309–10, 129 S. Ct. 2527, 2531 (2009) (citing Crawford v.

Washington, 541 U.S. 36, 51–52 124 S. Ct. 1354, 1364 (2004)).

      Murray is unable to show any error, plain or otherwise. Murray argues that

the Confrontation Clause requires the biologists who conducted the underlying

DNA tests to be present at trial or be subjected to cross-examination before trial.

He is mistaken. In Williams v. Illinois, the Supreme Court found that an expert’s

reliance on a DNA profile produced by an outside lab does not run afoul to the

Confrontation Clause

      because that provision has no application to out-of-court statements
      that are not offered to prove the truth of the matter asserted. When an
      expert testifies for the prosecution in a criminal case, the defendant
      has the opportunity to cross-examine the expert about any statements
      that are offered for their truth. Out-of-court statements that are related
      by the expert solely for the purpose of explaining the assumptions on
      which that opinion rests are not offered for their truth and thus fall
      outside the scope of the Confrontation Clause.
—U.S.—, 132 S. Ct. 2221, 2228 (2012). At Murray’s trial, Davis testified that the

outside tests revealed that the DNA extracted from the soda can matched a known

sample from Murray. Under the Supreme Court’s decision in Williams, Davis’s

testimony did not violate the Confrontation Clause. See id.

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AFFIRMED.




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