                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                July 16, 2007
                              No. 07-10100                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 05-00036-CR-CDL-4

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

RANDOLPH WILLIAM ROBINSON,
a.k.a. Shug,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________

                               (July 16, 2007)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Randolph William Robinson appeals his convictions for conspiracy to
commit armed bank robbery, armed bank robbery, and using a firearm during a

crime of violence. On appeal, Robinson argues that the district court abused its

discretion by (1) excluding testimony as inadmissible hearsay, and (2) refusing to

give a jury instruction on an alibi defense because the proffered alibi demonstrated

that Robinson was not present during some of the conspiracy’s overt acts.

                                           I.

      Robinson first argues that the district court abused its discretion by refusing

to allow him to introduce testimony that the court determined was double-hearsay.

Specifically, Robinson attempted to introduce testimony from his former attorney,

William Nash, that another client, Quinton Perry, told Nash that Robinson’s

coconspirator made incriminating statements about his role in the offense that

could have exculpated Robinson. Robinson argues that the double hearsay was

admissible as a statement against his coconspirator’s interest.

      Upon review of the briefs and the record, we find that the district court did

not abuse its discretion in determining that both the coconspirator’s and Perry’s

statements were hearsay. 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.” Fed. R. Evid. 801(c). Hearsay within hearsay, or so-

called “double-hearsay,” is admissible only if each part of the combined statements



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conforms with an exception to the hearsay rule. Fed. R. Evid. 805. Both the

coconspirator’s statement to Perry and Perry’s statement to Nash were made out of

court. The record also reflects that Robinson was, in fact, offering these statements

for the truth of the matter asserted—that is, he was ultimately hoping to establish

that his coconspirator had a plan for the robbery, and that Robinson was not a part

of that plan.

       The district court also did not abuse its discretion in finding that the

testimony did not qualify for a hearsay exception under Rule 804(b)(3). Rule

804(b)(3) provides that “[a] statement tending to expose the declarant to criminal

liability and offered to exculpate the accused is not admissible unless corroborating

circumstances clearly indicate the trustworthiness of the statement.” Fed.R.Evid.

804(b)(3). For this rule to apply: “(1) the declarant must be unavailable; (2) the

statement must be against the declarant's penal interest; and (3) corroborating

circumstances must clearly indicate the trustworthiness of the statement.” United

States v. Jernigan, 341 F.3d 1273, 1288 (11th Cir. 2003) (citation omitted).

Robinson’s argument that McQueen’s statement to Perry was excepted under Rule

804(b)(3) fails because he did not demonstrate that the witnesses were unavailable

to testify. Further, as the district court correctly noted, Perry’s statement to Nash

does not qualify as a prior statement made by a witness under Rule 804(b)(1)



                                            3
because Perry’s previous statement was not made in a hearing or under oath.

      Finally, considering that defense counsel was able to impeach Robinson’s

coconspirator using other means, and, in light of all the other evidence presented

against Robinson, there was no reasonable likelihood that any potential error

affected Robinson’s substantial rights. United States v. Hands, 184 F.3d 1322,

1329 (11th Cir. 1999) (stating that there is no need to reverse a conviction if

evidentiary error “had no substantial influence on the outcome and sufficient

evidence uninfected by error supports the verdict”) (citation omitted). Accordingly,

we cannot conclude that the district court erred in excluding the testimony.

                                          II.

      Robinson also argues on appeal that the district court abused its discretion

by refusing to give the jury an alibi instruction. Robinson argues that he was

located elsewhere at the time the bank robbery was committed, and therefore an

alibi instruction was appropriate.

      We have previously held that an alibi instruction was not necessary where

the defendant was charged with conspiracy and the proffered alibi showed only

that the defendant was not present at the time that one of the conspirators

performed an overt act in furtherance of the conspiracy. United States v. Lee, 483

F.2d 968, 970 (5th Cir. 1973). Although Robinson presented alibi evidence



                                           4
showing that he was not present during the bank robbery, the introduction of this

evidence did not necessitate an alibi jury instruction because he could have been

found guilty of the offense without being present for that particular overt act.

Pinkerton v. United States, 328 U.S. 640, 645-48 (1946) (stating that the “overt act

of one partner in [a conspiracy] is attributable to all”). Accordingly, we cannot

conclude that the district court abused its discretion in failing to give the jury an

alibi instruction.

       AFFIRMED.




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