                                                                                FILED
                            NOT FOR PUBLICATION                                  FEB 23 2012

                                                                            MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 11-10064

              Plaintiff - Appellee,               D.C. No. 1:08-cr-00739-SOM-2

  v.
                                                  MEMORANDUM*
JOHN GOUVEIA, Jr.,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                Susan Oki Mollway, Chief District Judge, Presiding

                           Submitted February 14, 2012**
                                Honolulu, Hawaii

Before: GOODWIN, TROTT, and MURGUIA, Circuit Judges.

       Defendant-Appellant John Gouveia, Jr., appeals the district court’s denial of his

Confrontation Clause objections in connection with his conviction for: (Count One)

conspiring to possess with intent to distribute 500 grams or more of methamphetamine


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
from sometime in February 2006 up through and including July 27, 2006, in violation

of 21 U.S.C. § 846; (Count Two) possessing with intent to distribute 500 grams or

more of methamphetamine on or about March 15, 2006, in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(A) as well as 18 U.S.C. § 2; and (Count Three) attempting

to possess with intent to distribute 500 grams or more of methamphetamine on or

about July 27, 2006, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) as

well as 18 U.S.C. § 2. Gouveia also challenges the district court’s denial of his

motion for judgment of acquittal as to Count Two. The facts are known to the parties,

and we state them here only as necessary to explain our disposition.

I.    Confrontation Clause Claims

      The Confrontation Clause bars the admission of out-of-court statements by

witnesses that are testimonial, unless the witness is unavailable and the defendant had

a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S.

36, 53-54 (2004). Although the Supreme Court has not set forth a comprehensive

definition of “testimonial,” the “core class” of testimonial statements includes “ex

parte in-court testimony or its functional equivalent . . . that declarants would

reasonably expect to be used prosecutorially, extrajudicial statements . . . contained

in formalized testimonial materials, . . .[and] statements that were made under

circumstances which would lead an objective witness reasonably to believe that the


                                          2
statement would be available for use at a later trial.” Id. at 51-52 (second alteration

in original) (internal quotation marks and citation omitted). In addition, the Clause

“does not bar the use of testimonial statements for purposes other than establishing the

truth of the matter asserted.” Id. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409,

414 (1985)).

      Gouveia challenges the admission of the Drug Enforcement Agency agent’s

testimony that the agent came to an agreement with informant Jose Perez as well as

the agent’s testimony about the instructions he gave Perez before Perez made recorded

phone calls to Gouveia’s co-defendant, Ramiro Hernandez. Gouveia also challenges

the admission of the recordings of phone calls between Perez and Hernandez. All

three of Gouveia’s Confrontation Clause claims are meritless.

      With regard to the agent’s testimony that he reached an agreement with

informant Perez, the district court struck this testimony from the record and instructed

the jury to disregard it. As a result, the court’s actions remedied any potential

prejudice. See Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir. 2000) (“Ordinarily, a

cautionary instruction is presumed to have cured prejudicial impact.”).

      The agent’s testimony about the instructions he gave Perez did not violate

Gouveia’s right to confrontation because these statements did not indicate to the jury

that Perez had made incriminating statements about Gouveia. Unlike the agent’s


                                           3
testimony in the case of United States v. Gomez, 617 F.3d 88, 91-92 (2d Cir. 2010),

there was no indication that Perez was asked to call or discuss his co-conspirators,

buyers, or suppliers. Furthermore, there were other reasonable explanations for the

agent’s interest in extracting information about Gouveia from Hernandez. In addition,

unlike Gomez, the agent’s instructions were necessary for the jury to understand the

meaning of code words used by Perez and Hernandez during the recorded calls.

      Gouveia’s objection to the admission of the recordings of the phone call

between Perez and Hernandez fails because the statements on the recordings are not

subject to the Confrontation Clause. Since Hernandez did not know his statements

were being recorded by law enforcement and had no reason to expect that they would

be used at his and Gouveia’s prosecution, his statements are not testimonial and,

therefore, are not subject to the Confrontation Clause. Crawford, 541 U.S. at 51-52.

Perez’s statements, which were factually false, are also exempt from the Confrontation

Clause because they were not offered for the truth of the matter asserted, but to

provide context for Hernandez’s statements.          Id. at 59 n.9 (noting that the

Confrontation Clause “does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted.”).

II.   Sufficiency of the Evidence Claim




                                           4
      In evaluating a challenge to the sufficiency of the evidence, we view the

evidence in the light most favorable to the prosecution, and must affirm the jury’s

verdict so long as any rational trier of fact could conclude that the elements of the

crime have been proven beyond a reasonable doubt. United States v. Nevils, 598 F.3d

1158, 1163-64 (9th Cir. 2010) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

      Viewing the evidence in the light most favorable to the government, the facts

support a reasonable inference that the car that arrived in March 2006 was used to

transport methamphetamine to Hawaii from California and that the phone calls

between one of Perez’s phones and one of Gouveia’s phones the day the car arrived

were related to a drug conspiracy. Id. at 1164. As a result, it is reasonable to infer

that Gouveia possessed with intent to distribute methamphetamine that had been

shipped in March 2006 due to the similarities between the car shipments in March and

July and Gouveia’s conviction for attempted possession with intent to distribute

methamphetamine in July 2006. Even if the evidence produced at trial could support

the alternative conclusion that the car was not carrying drugs but was merely a “dry

run,” the government does not have “an affirmative duty to rule out every hypothesis

except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 326 (citing

Holland v. United States, 348 U.S. 121, 140 (1954)).


                                          5
      Accordingly, we AFFIRM the district court’s admission of the phone call

recordings and the agent’s testimony about the instructions he gave Perez; and

AFFIRM the district court’s denial of Gouveia’s motion for judgment of acquittal as

to Count Two.

      AFFIRMED




                                        6
