United States v. Carlos Fernandez ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10421 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 13, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-20260-UU-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
CARLOS FERNANDEZ,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 13, 2010)
Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Carlos Fernandez appeals his convictions and total sentence of 97
months in prison imposed following his conviction by a jury on one count of
conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and six
counts of health care fraud, in violation of 18 U.S.C. § 1347. Fernandez first
argues that the district court’s admission into evidence at trial of an exhibit
containing electronic medicare claims data, and any summaries and extracts of that
exhibit, was error because the exhibit was not properly authenticated, it was not
admissible under the business records exception to the hearsay rule, and the
admission violated the Sixth Amendment. Next, Fernandez argues that the
district court erred by allowing a witness to testify about statements she overheard
from an unidentified speaker while she was conducting an on-site governmental
inspection of Fernandez’s business. Fernandez contends that this evidence was
inadmissible hearsay and that its admission violated his rights under the Sixth
Amendment. Fernandez further argues that even if the court determines that no
one evidentiary error requires reversal of his convictions, the cumulative effect of
the district court’s evidentiary errors deprived him of his right to a fair trial and
requires reversal. Finally, Fernandez argues that his sentence, which was at the
top of his applicable guideline range, is unreasonable because the district court
failed to consider adequately the sentencing factors of 18 U.S.C. § 3553(a).
I.
“We review a district court’s evidentiary rulings only for an abuse of
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discretion.” United States v. Kennard, 472 F.3d 851, 854 (11th Cir. 2006). We
also “review the district court’s authentication rulings for abuse of discretion.”
United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). In the absence of
abuse, we do not disturb the district court’s broad discretion in determining the
admissibility of business record evidence. United States v. Garnett, 122 F.3d
1016, 1018 (11th Cir. 1997). “We review questions of constitutional law de novo.
United States v. Underwood, 446 F.3d 1340, 1345 (11th Cir. 2006). However, in
the absence of an objection at trial, we review Confrontation Clause violations for
plain error only. United States v. Brazel, 102 F.3d 1120, 1141 (11th Cir. 1997).
To demonstrate plain error, the defendant must show that there is (1)
error, (2) that is plain and (3) that affects substantial rights. If all
three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.
United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007) (internal quotation
marks omitted).
The Federal Rules of Evidence provide that, in general, evidence is properly
authenticated when there is “evidence sufficient to support a finding that the
matter in question is what its proponent claims.” Fed.R.Evid. 901(a).
Authentication under Fed.R.Evid. 901 only requires the presentation of “sufficient
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evidence to make out a prima facie case that the proffered evidence is what it
purports to be.” United States v. Caldwell, 776 F.2d 989, 1001-02 (11th
Cir.1985). “A district court has discretion to determine authenticity, and that
determination should not be disturbed on appeal absent a showing that there is no
competent evidence in the record to support it.” Siddiqui, 235 F.3d at 1322.
A party lays the proper foundation for the trustworthiness of computer
generated business records is laid, and the records are admissible, in the following
circumstances: “(1) The records must be kept pursuant to some routine procedure
designed to assure their accuracy, (2) they must be created for motives that would
tend to assure accuracy (preparation for litigation, for example, is not such a
motive), and (3) they must not themselves be mere accumulations of hearsay or
uninformed opinion.” United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir.
1985) (quoting Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir. 1980)). See
Fed.R.Evid. 901(b)(4) (providing that a document can be authenticated by
“[a]ppearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances”).
“‘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,” and hearsay is generally not admissible Fed.R.Evid. 801(c), 802.
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Business records, however, are admissible as an exception to the hearsay rule
under Fed.R.Evid. 803(6). Business records include data compilations of a
business “if kept in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make the . . . data compilation .
. . .” Fed.R.Evid. 803(6). Rule 803(6) “requires the testimony of a custodian or
other qualified witness who can explain the record-keeping procedure utilized. It
is not necessary for the person who actually prepared the documents to testify so
long as there is other circumstantial evidence and testimony to suggest the
trustworthiness of the documents.” Garnett, 122 F.3d at 1018-19. See Allen v.
Safeco Ins. Co. of Am., 782 F.2d 1517, 1519 (11th Cir. 1986) (holding that there
was sufficient foundation to admit a business record when the witness did not
prepare the report, but the witness’s testimony established that “[t]he report and
the test results in the report were issued by a state agency in the regular course of
its business, and there was no indication that they lacked trustworthiness”).
The admission of non-testimonial hearsay evidence does not violate the
Sixth Amendment’s right to confront witnesses if it bears an “indicia of
reliability,” which can be inferred if the evidence “falls within a firmly rooted
hearsay exception.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65
L. Ed. 2d 597 (1980), abrogated on other grounds by Crawford v. Washington,
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541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004).
We conclude from the record that the district court did not abuse its
discretion in admitting the electronic compilation of medicare claims data, and the
summaries and extracts of this data. The custodian’s testimony at trial showed
that the data was kept by a routine procedure supervised by a federal governmental
agency which designed safeguards for the security and accuracy of the data. The
custodian’s testimony also showed that the exhibit was a business record
generated by government-supervised procedures in the regular course of business,
and there was no evidence to question the trustworthiness of the electronic
information. Since Fernandez did not contemporaneously object to the
introduction of the exhibits on Sixth Amendment grounds, we review this issue for
plain error. Because the claims data exhibits were properly admitted as an
exception to the hearsay rule, there was no error, much less plain error, under the
Sixth Amendment in the admission of the exhibits.
II.
Under the evidentiary hearsay rules, certain out-of-court statements can be
admitted as non-hearsay evidence if they are offered, not for the truth of the
assertions therein, but to explain a witness’s state of mind and subsequent actions.
See United States v. Jiminez, 564 F.3d 1280, 1288 (11th Cir. 2009) (recognizing
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that “[s]tatements by out of court witnesses to law enforcement officials may be
admitted as non-hearsay if they are relevant to explain the course of the officials’
subsequent investigative actions, and the probative value of the evidence’s
non-hearsay purpose is not substantially outweighed by the danger of unfair
prejudice caused by the impermissible hearsay use of the statement” (internal
quotation marks omitted)); United States v. Hawkins, 905 F.2d 1489, 1495-96
(11th Cir. 1990) (holding that statements were admissible to explain why an
investigation was started). “[E]videntiary and other nonconstitutional errors do
not constitute grounds for reversal unless there is a reasonable likelihood that they
affected the defendant’s substantial rights; where an error had no substantial
influence on the outcome, and sufficient evidence uninfected by error supports the
verdict, reversal is not warranted.” Hawkins, 905 F.2d at 1493.
The Sixth Amendment only prohibits statements that are impermissible
hearsay. Jimenez, 564 F.3d at 1286. If statements are testimonial hearsay, the
Sixth Amendment requires the declarant to be unavailable and the defendant to
have a previous opportunity for cross-examination of the declarant in order for the
statements to be admitted. Underwood, 446 F.3d at 1346. If statements are non-
testimonial, they are admissible if they fall within an established hearsay exception
or otherwise bear indicia of reliability. Roberts, 448 U.S. at 66, 100 S. Ct. at 2539.
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Testimonial statements are generally “statements made under circumstances
which would lead the declarant to believe that the statement would be available for
use at a later trial.” Underwood, 446 F.3d at 1347. A Sixth Amendment
Confrontation Clause error is not ground for reversal if the error is “harmless
beyond a reasonable doubt.” United States v. Hunerlach, 197 F.3d 1059, 1067
(11th Cir. 1999). As this court noted in Hunerlach,
Factors that determine whether such an error is harmless include: 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.
Id. at 1067 n.9.
We need not determine if an evidentiary or a constitutional error occurred in
the admission of the out-of-court statements of the unidentified speaker because,
even if any such error did occur, we conclude that the error does not dictate
reversal. As to any possible evidentiary error, a review of the record reveals that
such error was harmless because the statement of the unidentified speaker did not
substantially affect the outcome of the trial. Also, any possible constitutional error
in admitting the statement was “harmless beyond a reasonable doubt” when
considered in the context of the entire trial. The government presented much
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evidence to support the verdict, including witness testimony, documentary
evidence, and recorded evidence, and the statements of the unidentified speaker
were not significant in the context of all the other evidence of guilt. Thus, reversal
is not warranted on this ground.
III.
“The cumulative error doctrine provides that an aggregation of
non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless
errors) can yield a denial of the constitutional right to a fair trial, which calls for
reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (internal
quotation marks omitted).
As stated above, even if there was error, it did not affect Fernandez’s
substantial rights and did not deny him a fair trial. Thus, there was no cumulative
error and Fernandez’s argument has no merit.
IV.
We review sentencing decisions on appeal for reasonableness. Gall v.
United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594, 169 L. Ed. 2d 445 (2007).
“[A] sentence may be reviewed for procedural or substantive unreasonableness.”
United States v. Ellisor, 522 F.3d 1255, 1273 (11th Cir. 2008) (internal quotation
marks omitted). “Once an appellate court has satisfied itself that the district court
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followed proper sentencing procedure, the court then evaluates the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Id. (internal quotation marks omitted). The party challenging the sentence has the
burden to establish that the sentence is unreasonable. United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005).
We must consider several factors to determine if a sentence is procedurally
sound, such as whether the district court considered the § 3553(a) sentencing
factors and whether the court adequately explained the chosen sentence. Gall, 552
U.S. at 51, 128 S. Ct. at 597. A district court is not required “to state on the record
that it has explicitly considered each of the § 3553(a) factors or to discuss each of
the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005). When the parties’ arguments discuss the § 3553(a) factors, it is sufficient
for the court to acknowledge that it considered the factors and the parties’
arguments. Id. at 1329-30. Further, even if the district court fails to articulate
explicitly that it considered the § 3553(a) factors, the sentence is reasonable if the
record indicates that the court did, in fact, consider the sentencing factors. United
States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007).
The highly deferential review for substantive reasonableness does not
involve the consideration of each decision made during sentencing. Id. at 938.
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Instead, it requires a review of only the final sentence for reasonableness in light
of the § 3553(a) factors. Id. Section 3553(a) first states that “[t]he court shall
impose a sentence sufficient, but not greater than necessary,” to comply with the
purposes of sentencing. 18 U.S.C. § 3553(a). The section continues with the
following list of factors that a court must consider in imposing a sentence: (1) the
nature and circumstances of the offense and the history and characteristics of the
defendant; (2) the need to reflect the seriousness of the offense, promote respect
for the law, provide just punishment, adequately deter criminal conduct, protect
the public, and provide the defendant with needed correctional treatment; (3) the
kinds of available sentences; (4) the sentencing guideline range, including policy
statements of the Guidelines in the case of probation or supervised release
violations; (5) any other pertinent policy statements of the Sentencing
Commission; (6) the need to avoid unwarranted sentence disparities; and (7) the
need for restitution to victims. 18 U.S.C. § 3353(a); Talley, 431 F.3d at 786. The
weight given to each factor is “a matter committed to the sound discretion of the
district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (internal
quotation marks omitted). Ordinarily, this court expects a sentence within the
guidelines range to be reasonable. Talley, 431 F.3d at 788.
A review of the record demonstrates that Fernandez’s sentence is
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procedurally sound. The record reveals that the court did weigh and consider the
§ 3553(a) factors. Further, Fernandez’s sentence, which is within the guidelines
range, is also substantively reasonable.
Conclusion
Based on a review of the record and the parties’ briefs, we affirm
Fernandez’s convictions and total sentence.
AFFIRMED.
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