     Case: 09-41211 Document: 00511368406 Page: 1 Date Filed: 02/01/2011




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

                                                FILED
                                                                          February 1, 2011

                                       No. 09-41211                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee
v.

ANDRES CASTRO–FONSECA,

                                                   Defendant – Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  No. 09-CR-747


Before KING, D EMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Andres Castro–Fonseca appeals his conviction for
conspiring to possess and possessing with an intent to distribute 4.8 kilograms
of cocaine. On appeal he argues that the district court erroneously admitted two
forms of hearsay evidence at trial. We affirm.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       On June 5, 2009, Andres Castro–Fonseca was stopped while attempting
to cross the border between Mexico and the United States at the Los Indios

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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Bridge near Brownsville, Texas.       The officers at Los Indios stopped the
defendant’s vehicle, a 1998 Ford Expedition, because they were acting on a tip
received by Agent David Arce from Immigration and Customs Enforcement.
      When officers spotted the defendant’s vehicle approaching the primary
inspection lane, they directed the defendant to pull the vehicle between two
concrete barriers to minimize flight risk. Five officers surrounded the vehicle,
and the defendant was immediately taken to a holding cell. The officers moved
the vehicle to a secondary inspection area where a drug-sniffing dog alerted the
officers to the presence of drugs. After nearly three hours of investigation, the
officers found nine packages of cocaine hidden in the firewall between the
dashboard and the engine of the vehicle.
      The defendant denied any knowledge that the cocaine was in the car. He
told Agent Arce that he had purchased the vehicle just two weeks earlier and
that he had lent it to an unnamed friend in Valle Hermoso, Mexico for five days.
He stated that he had left work in Reynosa, Mexico and driven to Valle Hermoso
to pick up the vehicle before driving to the Los Indios bridge.
      The defendant was charged with conspiring to possess and possessing with
an intent to distribute 4.8 kilograms of cocaine in violation of 18 U.S.C. § 2 and
21 U.S.C. §§ 841, 846. The sole issue at trial was whether the defendant knew
that the cocaine was hidden in the vehicle. The jury found him guilty, and the
defendant appeals, arguing that he should have a new trial because the district
court erred in admitting hearsay evidence, some of which was admitted in
violation of the defendant’s rights under the Confrontation Clause. We find no
reversible error.
                              II. DISCUSSION
A.    Testimony Regarding the Tip
      The defendant argues that his rights under the Sixth Amendment’s
Confrontation Clause were violated when the district court permitted several

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officers to testify regarding the substance of the tip they received. “Alleged
violations of the Confrontation Clause are reviewed de novo, but are subject to
a harmless error analysis.” United States v. Bell, 367 F.3d 452, 465 (5th Cir.
2004).1
       The Confrontation Clause bars the admission of testimonial hearsay.
Crawford v. Washington, 541 U.S. 36, 59 (2004).                      Such statements may
admitted, however, if they are used for a non-hearsay purpose. See United
States v. Holmes, 406 F.3d 337, 349 (5th Cir. 2005); see also Crawford, 541 U.S.
at 60 n.9 (the Confrontation Clause “does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter
asserted”). We have held that officers may testify regarding a tip they received
for “the limited purpose of explaining why they were at a particular location”
because such information is “simply background information showing the police
officers did not act without reason.” United States v. Vitale, 596 F.2d 688, 689
(5th Cir. 1979) (per curiam); accord United States v. Brown, 560 F.3d 754, 764
(8th Cir. 2009) (admission of victim’s statement regarding the street nickname
of his attacker did not violate the Confrontation Clause because “[a]n out of court
statement is not hearsay when offered to explain why an officer conducted an
investigation in a certain way”); United States v. Gibbs, 506 F.3d 479, 486 (6th
Cir. 2007) (testimony regarding tip that defendant may have had a gun did not
violate the Confrontation Clause because it was “offered simply as background
evidence” to explain the officers’ actions). In United States v. Hernandez, 441
F.2d 157 (5th Cir. 1971), an officer testified that he received a tip regarding a


       1
          The government contends that our review is for plain error because the defendant
failed to object to the testimony at trial. See United States v. Rose, 587 F.3d 695, 700 (5th Cir.
2009). On the morning of trial, the district court overruled the defendant’s general objection
to “any reference to any tip.” During trial the defendant objected to the testimony of Agent
Rodriguez and Officer Barreda, but he did not object to the testimony of Officer Hernandez and
Agent Arce. We need not decide whether the defendant sufficiently preserved the issue
because, under either standard, it was not error for the district court to admit the testimony.

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specific vehicle that would be used to smuggle heroin from Mexico into the
United States, including the make, model, color, and license plate number. Id.
at 163. We held that the testimony was not hearsay because it was used to
explain to the jury why the officers were following that particular vehicle and
that the officers “did not act in vacuum.” Id. at 164.
       Though officers may refer to a tip to explain their actions, “[p]olice officers
cannot, through their trial testimony, refer to the substance of statements given
to them by nontestifying witnesses in the course of their investigation, when
those statements inculpate the defendant.” Taylor v. Cain, 545 F.3d 327, 336
(5th Cir. 2008) (holding that police officer improperly testified regarding a tip
from a non-testifying witness who identified the defendant as “the perpetrator”).
Testimony about a tip becomes inadmissible hearsay if the testimony at trial
“also points directly at the defendant and his guilt in the crime charged.” United
States v. Evans, 950 F.2d 187, 191 (5th Cir. 1991). Indeed, central to our holding
in Hernandez was the fact that the officers did not relay any portion of the tip
that specifically linked the defendant to the vehicle or the heroin. 441 F.2d at
164; see also United States v. Gomez, 529 F.2d 412, 416 (5th Cir. 1976) (holding
that testimony about tip was inadmissible hearsay because it linked the illegal
drugs with the occupants of the stopped vehicle).
       At trial in this case, the Government presented testimony from four
officers that related to the tip they received. Agent Rodriguez testified, “We had
received a tip over the phone. One of the other officers had received a phone
call.”2 Officer Barreda, who was stationed at the primary inspection booth,



       2
         Agent Rodriguez also testified that she “saw the driver coming up” because “there was
a lookout.” The defendant objected to this testimony, and the district court instructed the jury
to disregard it. We do not address the defendant’s argument regarding this portion of Agent
Rodriguez’s testimony further because it was not “so highly prejudicial as to be incurable by
the trial court’s admonition.” United States v. Ramirez–Velasquez, 322 F.3d 868, 878 (5th Cir.
2003) (citation omitted).

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testified regarding the procedure she planned to follow if a “certain event”
occurred, with the “certain event” being that she or another agent spotted the
vehicle that was the subject of the tip. Officer Hernandez testified that the
officers at Los Indios had received a tip and that “a plan [was] put in place as to
what would happen if a certain event occurred.” He also testified that because
of the tip “there [were] about five of us who were actively searching for the
vehicle.” Finally, Agent Arce testified that he personally received a tip, after
which “I called the bridges and I gave them information on the information that
I had received, a vehicle description.”
      The defendant first argues that it was unnecessary for the officers to even
tell the jury that they received a tip.       According to the defendant, the
government had no need to explain to the jury why the officers had stopped the
his vehicle because Customs and Border Protection officers have authority to
stop all persons crossing into the United States and to conduct a “routine”
search. See United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).
However, the sequence of events here was hardly “routine,” and the information
that the officers were acting on a tip likely assisted the jury in understanding
why they directed the defendant to stop his vehicle in an unusual place and why
they immediately escorted the defendant to a holding cell.
      The defendant next argues that the officers’ testimony improperly
conveyed the substance of the tip to the jury and directly implicated him. We
disagree.   The officers’ testimony regarding the tip provided background
information for the stop without directly inculpating the defendant.         As in
Hernandez, the most that the jury could have learned from the testimony was
that the officers at Los Indios were looking for a specific vehicle. Any inference
that the informant had told the officers that the vehicle contained drugs in no
way connected the vehicle or the drugs directly to the defendant because the
officers did not testify regarding what, if anything, the informant told them

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about the occupants of the vehicle. By his own statement, the defendant did not
come into possession of the vehicle until shortly before he was stopped at Los
Indios; thus, he was free to argue, as he did, that he had no knowledge that there
was cocaine hidden in the vehicle. Therefore, we find no error in the district
court’s admission of the officers’ testimony regarding the tip.
B.    Testimony Regarding Vehicle Ownership Records
      The defendant also argues that the district court erred in permitting Agent
Arce to testify regarding the ownership records for the vehicles in which the
defendant crossed the border on previous occasions because such testimony was
hearsay. Our review of a district court’s evidentiary rulings is generally for
abuse of discretion, but where a party fails to properly object, our review is for
plain error. United States v. Williams, 620 F.3d 483, 488–89 (5th Cir. 2010). The
parties dispute whether the defendant properly raised his objection in the
district court because he did not object until after Agent Arce had already
answered the prosecutor’s questions. United States v. Johnston, 127 F.3d 380,
392 (5th Cir. 1997) (a party must “object to the admission of the evidence at the
first available opportunity” to preserve an error for appellate review). Even
under the less deferential standard of abuse of discretion, however, any error in
the admission of evidence is subject to the doctrine of harmless error. See United
States v. Hall, 500 F.3d 439, 443 (5th Cir. 2007) (an error is harmless if it “did
not contribute to the verdict obtained”).
      According to Agent Arce, a record is created for every person and vehicle
that crosses the border at a border checkpoint. These records are held in a
database called Treasury Enforcement Communications System (TECS). Agent
Arce testified that he cross-referenced the TECS records for the defendant’s
crossings with the TECS records for the vehicles that crossed on the same day
at the same time. In doing so, Agent Arce was able to identify the vehicles in
which the defendant had previously crossed the border.            The government

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introduced into evidence the TECS records for the defendant’s crossings as well
as the records for each of the vehicles. See United States v. Puente, 826 F.2d
1415, 1418 (5th Cir. 1987) (holding that TECS records are admissible under
Federal Rule of Evidence 803(8) as public records).
      Agent Arce determined that the defendant crossed the border on six
separate occasions between January and June 2009 in three different vehicles:
a 1998 Ford Expedition, a 2004 Ford F-150, and 1998 Jeep Cherokee. Agent
Arce then consulted other unidentified “records” to determine that the
Expedition was owned by Pablo Cesar Jimenez Quintero, the F-150 was owned
by Gerardo Alberto Pedraza Aguilar, and the Jeep Cherokee was owned by
Daniel Ramos Flores. The defendant contends that Agent Arce’s testimony
regarding the ownership of the Expedition and the F-1503 was hearsay and that
its admission was reversible error.
      The government argues that the testimony was not hearsay because Agent
Arce had personal knowledge of the ownership of the vehicles acquired through
review of his “records.” See United States v. Vosburgh, 602 F.3d 512, 539 n.27
(3d Cir. 2010) (noting that officer’s testimony regarding a girl’s age was
“arguably” not hearsay because he had learned the information after consulting
“vital statistics”). However, Agent Arce testified only that his “records indicate”
the owners of the vehicles. He did not testify regarding the nature of the records
he consulted to learn the information, and we are unable to identify from the
record before us the source from which Agent Arce learned this information. See
United States v. Black, 436 F.2d 838, 840 (5th Cir. 1971) (per curiam) (holding
that officer’s testimony regarding the contents of a message he received from a
licensing bureau was inadmissible hearsay). Moreover, the government did not
enter these records into evidence, so even if such records are admissible under

      3
       The defendant does not appeal the admission of Agent Arce’s testimony regarding the
ownership of the Jeep Cherokee.

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the hearsay rules, Agent Arce was testifying to the contents of an out-of-court
document.    See id. We need not decide whether the testimony was in fact
hearsay, however, because we find any error in the admission of the testimony
to be harmless.
      The government used Agent Arce’s testimony about the ownership of the
vehicles to attack the defendant’s credibility and to show that the defendant did
not own any of the vehicles in which he had crossed the border in the previous
six months, the inference being that the defendant would not have trafficked
drugs in a vehicle that he owned. Sufficient other admissible evidence, including
the TECS records, established the same information. The government was able
to prove, through the TECS records, that Mr. Jimenez Quintero, the record
owner of the Expedition, had crossed the border in the Expedition both before
and after the defendant claimed to have purchased it. And the TECS records for
both the Expedition and the F-150 sufficiently demonstrated that the defendant
had little connection with either vehicle.
      Moreover, the defendant’s guilt was established by other extensive
evidence.   The government presented evidence that the Expedition was
extraordinarily clean, which is typical of drug traffickers who have attempted
to erase fingerprints and traces that the vehicle has been taken apart; no
personal items were in the Expedition; the defendant was carrying only the key
to the Expedition and had no house keys or the like; the defendant’s demeanor
suggested guilt because he was nervous prior to the stop and never asked why
he was being taken to the holding cell; the defendant was carrying a large
amount of cash; and the value of the cocaine was between $97,500 and $390,000,
which suggested that the true owner of the cocaine, if not the defendant, would
not have entrusted it to the unsuspecting defendant. Given that other sources
of information supported the inferences to be gleaned from Agent Arce’s
testimony and that the evidence was of limited importance to the government’s

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case, we conclude that the testimony regarding the ownership records did not
contribute to the jury’s verdict and any error in its admission was therefore
harmless. United States v. Cooks, 589 F.3d 173, 180 (5th Cir. 2009) (error is
harmless where there is “other extensive evidence” of guilt).
                            III. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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