                   Case: 12-11914          Date Filed: 12/19/2012   Page: 1 of 10

                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-11914
                                         Non-Argument Calendar
                                       ________________________

                               D.C. Docket No. 0:11-cr-60271-DMM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff-Appellee,

                                                 versus

LIKY DESIRE,

llllllllllllllllllllllllllllllllllll                        llllDefendant-Appellant.

                                       ________________________

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

                                           (December 19, 2012)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

         Liky Desire appeals his convictions for: (1) intent to evade currency

reporting, knowing concealment of more than $10,000 in United States currency,
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and attempt to transport this currency from a place outside the United States to a

place inside the United State in violation of 31 U.S.C. § 5332(a); (2) failure to

report the transportation of currency in excess of $10,000 in violation of 31 U.S.C.

§ 5316(a)(1)(B); and (3) making a false statement to a federal officer in violation

of 18 U.S.C. § 1001(a)(2). On appeal, Desire argues that the district court violated

the rule against hearsay and his confrontation rights when it permitted witness

testimony regarding statements that he made in Creole, through interpreters, to law

enforcement officers. For the reasons set forth below, we affirm Desire’s

conviction.

                                               I.

       On September 30, 2011, at the Fort Lauderdale/Hollywood International

Airport (“FLL Airport”)1, Desire arrived on an international flight from Haiti,

carrying approximately $49,240, but, in violation of financial reporting

requirements, he denied that he was carrying more than $10,000. Related to this

incident, Desire was indicted for the above-referenced offenses.

       At trial, Jose Espinal, an officer with Customs and Border Protection

(“CBP”) who works at the FLL Airport, explained that, in addition to a customs


       1
           “FLL” is the designated airport code for the Fort Lauderdale/Hollywood International

Airport.



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declaration form, travelers who are carrying more than $10,000 are required to

complete a separate “FinCEN form.” On September 30, 2011, Desire presented a

customs declaration form, indicating that he did not have over $10,000. Officer

Espinal asked Desire, in English, if he was bringing over $10,000 into the United

States, and Desire responded that he had less than a hundred dollars. Officer

Espinal also asked Desire, in English, if he was “bringing money for anybody

else,” and Desire said “No.”

      Officer Claudette Cooper, another CBP officer who works at the FLL

Airport, testified that, when Desire presented his signed and completed declaration

form, Desire indicated to her, in English, that he had packed his own bags, that he

was not carrying anything for anyone else, and that he was not carrying more than

$10,000. At this point, Officer Cooper checked Desire’s “crossing records,” which

showed that on April 11, 2004, Desire had been “warned regarding $35,000,” and

on May 1, 2005, Desire declared that he was carrying $40,000. Desire had also

filed three FinCEN forms in 2007.

      After Officer Cooper asked for assistance from Officer Eugene Martin,

Desire said that he did not understand the officers, and the officers requested an

interpreter. The interpreter, “Philip,” who worked for American Airlines, spoke

Creole to Desire. Throughout the trial, Desire’s counsel objected to any testimony



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regarding statements that Desire made through an interpreter “based on hearsay

and []confrontation.” The court overruled the objections.

      Officer Cooper testified that, based on her experience and training, Desire

and Philip appeared to understand each other. Desire indicated, through Phillip,

that he had $90 in his pocket. During this time, Officer Cooper searched Desire’s

bag and found two white envelopes and four black cellophane packages. As to the

envelopes, Desire indicated, through Phillip, that he was carrying money for

someone else. At some point, another airline representative named “Stephanie”

arrived to replace Philip, and Stephanie also spoke with Desire in Creole. The

officers took Desire into a search room, where Stephanie told Officer Martin that

Desire had indicated that “he was carrying some money in his crotch.”

      Officer Martin testified that he knew that Phillip spoke Creole because

Officer Martin had previously heard him speak the language. Further, Stephanie

was the employee who the airline sends to “do all of the interpreting,” so when she

arrived, she excused Phillip. Ultimately, a pat down search of Desire revealed

$12,000 in his “groin area,” and, in total, the officers recovered approximately

$49,240 from the search of Desire and his bags.

      The parties stipulated that Desire had made 46 round trips between Haiti and

the United States.



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      Finally, Desire testified that he was born in Haiti, and due to his shoe

business, he travels back and forth between Haiti and the United States. When

Desire travels internationally, he is required to complete a form, but he can not

read the form, so other people help him complete it. On September 30, 2011,

during his flight, he experienced dizziness, blurred vision, and an irregular

heartbeat. Another passenger on the flight completed Desire’s declaration form,

and this passenger did not ask Desire how much money he was carrying. During

the time when Desire was being searched at the airport, he communicated with law

enforcement officers through an individual who spoke Creole. Desire advised the

officers that he was carrying $22,000 of his own money, but he also had money for

other people in his business.

      Desire further testified that when he traveled to the United States in April

2004, a CBP officer told him that, in the future, he would have to declare when he

carried more than $10,000. Later, when Desire traveled to the United States in

May 2005 and April 2007, he declared $40,000. When he traveled to the United

States in September 2011, Desire knew that he was carrying more than $10,000,

but he did not know that he was legally obligated to report the money.

      The jury found Desire guilty on all counts, and he received an 18-month

sentence.



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                                         II.

      We review evidentiary rulings for an abuse of discretion. United States v.

Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010). Preserved evidentiary

objections and violations of the Confrontation Clause are subject to the harmless

error standard. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005);

United States v. Edwards, 211 F.3d 1355, 1359 (11th Cir. 2000). Whether an error

was harmless depends on a variety of factors, such as “the importance of the

witness’ testimony in the prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of cross-examination

otherwise permitted, and, of course, the overall strength of the prosecution’s case.”

Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d

674 (1986).

      The Confrontation Clause of the Sixth Amendment prohibits the admission

of testimonial, out-of-court statements, unless the declarant is unavailable and the

defendant had a previous opportunity to cross-examine the declarant. United

States v. Jiminez, 564 F.3d 1280, 1286 (11th Cir. 2009) (citing Crawford v.

Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004)).

“[T]he Confrontation Clause prohibits only statements that constitute



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impermissible hearsay.” Id.

      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.” Id. at 1287 (quoting Fed.R.Evid. 801(c)). The Federal Rules of

Evidence provide that a statement made by a party against whom it is offered is not

hearsay. Fed.R.Evid. 801(d)(2)(A). Thus, admission of a defendant’s own out-of-

court statements is not hearsay and does not violate the Confrontation Clause.

United States v. Brown, 441 F.3d 1330, 1358-59 (11th Cir. 2006). Further,

statements made by a party’s authorized agent are also excluded from the

definition of hearsay. Fed.R.Evid. 801(d)(2)(C) and (D). We have held that

translations of a defendant’s statements do not constitute impermissible hearsay

and the interpreter acts as the defendant’s agent, where the interpreter had

sufficient capacity and no motive to mislead. United States v. Alvarez, 755 F.2d

830, 859-60 (11th Cir. 1985) (adopting the reasoning of United States v. Da Silva,

725 F.2d 828 (2d Cir.1983)). Specifically, when there is no motive to mislead and

no reason to believe that a translation is inaccurate, the interpreter is no more than

a “language conduit,” and “a testimonial identity between the declarant and

translator brings the declarant’s admissions within Rule 801(d)(2)(C) or (D).”

Alvarez, 755 F.2d at 860 (quoting Da Silva).



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      The district court did not abuse its discretion in admitting the statements that

Desire made to the CBP officers through the interpreters. Evidence suggested that

Phillip and Stephanie, the interpreters who worked for American Airlines, had

sufficient capacity to interpret Desire’s statements, and no evidence suggested that

either interpreter had any motive to mislead the officers. As to capacity, Officer

Cooper testified that, based on her training and experience, Desire and Phillip

appeared to understand each other, and, although she could not understand what

they were saying, she understood that they were communicating in Creole. Officer

Martin also testified that he had heard Phillip speaking in Creole on prior

occasions, and that Stephanie was the airline’s designated interpreter.

Additionally, Desire testified that he communicated with the CBP officers through

an individual who spoke Creole, and he did not suggest that he had problems

communicating with either interpreter. As to motive, Desire has not identified any

evidence to suggest that the interpreters had a motive to mislead the CBP officers

or to misrepresent Desire’s statements. Because the interpreters appear to have had

sufficient capacity to translate Desire’s statements and no evidence suggested that

their translations were inaccurate, their out-of-court translations of Desire’s own

statements were not hearsay and did not violate his confrontation rights. See

Alvarez, 755 F.2d at 859-60; Brown, 441 F.3d at 1358-59.



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      Regardless, even if the district court should have excluded the statements

based on the government’s failure to more clearly establish capacity, any error was

harmless. Baker, 432 F.3d at 1202; Edwards, 211 F.3d at 1359. As to the strength

of the prosecution’s overall case, Officers Espinal and Cooper both testified that

Desire had told each of them, in English, that he was carrying less than $10,000

and that he was not carrying money for anyone else. However, evidence showed

that Desire was, in fact, traveling with $42,240, and the defense presented evidence

that $27,240 of the money belonged to other individuals. Although Desire

presented testimony that he was not intentionally dishonest on his customs form

because he was sick and unaware of the reporting requirement, other evidence

established that he had traveled from Haiti to the United States approximately 46

times, and on at least three prior occasions, he had reported traveling with a large

sum of cash. Moreover, Desire admitted that, in 2004, he was warned of his

obligation to declare more than $10,000, and evidence showed that he complied

with this obligation on at least two occasions after the warning. Thus, absent any

testimony regarding the statements that Desire made through the interpreters, the

government presented a strong case that Desire was aware of the financial

reporting requirement, but he failed to report $42,240 and made false statements to

CBP officers regarding how much money he was carrying. See Van Arsdall, 475



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U.S. at 684, 106 S.Ct. at 1438.

      Moreover, the statements that Desire made through the interpreters were

cumulative and corroborated by other evidence in the record. Id. For example,

through Philip, Desire denied carrying over $10,000, but Desire had already made

the same denial, in English, to Officers Espinal and Cooper. Further, Desire stated

to Officer Martin, through Stephanie, that he was carrying money for someone

else, but this statement was consistent with his own trial testimony. Although

Desire told CBP officers, through Stephanie, that he was carrying money in his

groin area, he does not challenge the search that revealed this money, and it is

unclear how his admission to carrying the money prejudiced his defense. In sum,

Desire fails to identify any statement that he made to CBP officers through an

interpreter that was not established through other evidence or that substantially

prejudiced his defense.

      For the foregoing reasons, we affirm Desire’s convictions.

      AFFIRMED.




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