United States v. Rubio ( 2022 )

Case: 21-50886 Document: 00516557486 Page: 1 Date Filed: 11/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-50886
FILED
November 28, 2022
United States of America, Lyle W. Cayce
Clerk
Plaintiff—Appellee,
versus
Lorenzo Rubio, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-78-4
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
A jury convicted Lorenzo Rubio of conspiracy to distribute and
possession with intent to distribute 50 or more grams of methamphetamine,
in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a). The district court
sentenced Rubio to 300 months’ imprisonment, followed by supervised
release.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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On direct appeal, Rubio presents two issues for review. First, he
argues that the district court erred when it admitted a report containing text
messages exchanged by Rubio and his co-conspirator. Second, Rubio argues
that the Government’s allegedly-late production of cell phone records should
have caused the trial court to either grant a continuance, exclude the tardy
evidence, or both. We reject Rubio’s arguments and affirm.
I.
Rubio’s first argument disputes the trial court’s admission of
testimony concerning and an exhibit of 19 text messages produced by a
software program called “Cellebrite Analyzer.” The texts were extracted
from the cell phone of Rubio’s co-conspirator, one Stephen Neilson. Rubio
objected to the introduction of the messages as inadmissible hearsay and a
violation of his Sixth Amendment confrontation right. We first discuss
(A) Rubio’s hearsay objection, then (B) his Confrontation Clause claim.
Then, (C) we explain that any error was harmless.
A.
The relevant texts discuss, obliquely, the logistics of various
contemplated drug transactions. We review the trial court’s application of
Federal Rule of Evidence 801(d)(2) for abuse of discretion, subject to a
preponderance of the evidence standard. United States v. Elashyi, 554 F.3d
480, 503 (5th Cir. 2008). We review the factual predicates underlying the
district court’s conspiracy hearsay exception for clear error. See United States
v. Burton, 126 F.3d 666, 673 (5th Cir. 1997).
At the time of the text messages’ admission, the trial judge was aware
that police had found methamphetamine in a pickup truck occupied by Rubio
and two alleged coconspirators when that truck was stopped. The trial court
had heard testimony of Neilson, an interlocutor in each of the relevant text
messages, and had heard Neilson authenticate the communications and
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inculpate Rubio in the drug-distribution scheme. The trial judge had also
heard testimony recounting Rubio’s arrival at a hotel room where more than
a pound of methamphetamine was later found.
It is not necessary to further recount the trial record; these items alone
constitute sufficient evidence for the trial court’s application, applying a
preponderance standard, of Rule 801(d)(2)(E)’s conspiracy hearsay
exception. That excepts texts sent by conspirators other than Rubio. Texts
sent by Rubio and offered against him were, to the extent any of them might
otherwise constitute hearsay, opposing party statements excepted by Rule
801(d)(2)(A).
B.
Rubio next invokes Constitution’s Confrontation Clause. In Crawford
v. Washington, 541 U.S. 36 (2004), the Supreme Court explained that the
Sixth Amendment right of the accused “to be confronted with the witnesses
against him” precluded the admission of “testimonial” statements where
the accused was denied cross-examination, regardless of any hearsay
exception. Id. at 54–56. Rubio’s confrontation challenge may be construed as
applying to both the text messages contained in the Cellebrite report, as well
as to the report itself.
Rubio’s confrontation challenge to the text messages is without merit.
That is because statements are testimonial only if the “primary purpose” of
the declarant making the statements was to inculpate the defendant or prove
facts pertinent to criminal prosecution. United States v. Ayelotan, 917 F.3d
394, 403 (5th Cir. 2019) (relying on Davis v. Washington, 547 U.S. 813, 822
(2006)). We have previously held that “as a general matter,” coconspirator
statements made in furtherance of a conspiracy are not testimonial. Id. The
text messages in this case were sent by conspirators to operate the
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conspiracy, not to inculpate any defendant. The messages were therefore
admissible under Ayelotan.
Rubio’s confrontation challenge to the Cellebrite report itself (the
document containing the text messages we just addressed) likewise fails. The
Cellebrite report merely documented, without any further comment, the text
messages we addressed above. Those messages were authenticated by
Neilson, from whose phone they were sourced. The police officer who used
Cellebrite software to create the report also testified at trial, as follows:
I follow the directions, and I choose the extraction that I want
to perform on the phone. Once that happens, I literally press
start. The [extraction device] does all the extraction, and then
the data is sent over to another system software called
Cellebrite analyzer. From there, that is what interprets all the
data. Once that is done, I put all the information on to a USB
drive, and I hand it over to the detective or officer, and the
phones are logged back into evidence.
It is unclear what portion of this rote process Rubio purports to
challenge under the Confrontation Clause. But we have already held that that
cell phone extraction reports were “machine-generated results” and thus not
testimonial. United States v. Hill, 35 F.4th 366, 390 (5th Cir. 2022). † And to
†
Hill decided the issue under a de novo standard and hence forecloses Rubio’s
argument. But Hill is far from the only authority supporting that result. See also United
States v. Waguespack, 935 F.3d 322 (5th Cir. 2019) (declining to find that machine-
generated results trigger the confrontation clause, albeit on plain error review); United
States v. Ballesteros, 751 F. App’x 579, 580 (5th Cir. 2019) (per curiam) (finding no plain
error where appellant raised confrontation challenge to cell-phone GPS data reports). Our
approach also parallels other Circuits considering Cellebrite reports or analogous machine-
generated evidence. See United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008)
(Easterbrook, J.) (“the Confrontation Clause does not forbid the use of raw data produced
by scientific instruments”); United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005)
(concluding that machine-generated data is not hearsay); United States v. Seugasala, 702 F.
App’x 572, 575 (9th Cir. 2017) (unpublished) (finding no plain error where trial court
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the extent Rubio fears any portion of the report was manipulated, the officer
most closely involved in the creation of that report was available to him for
cross examination.
C.
Even if evidence or testimony was improperly admitted, the error may
be harmless. See Fed. R. Crim. Proc. 52(a) (“Any error, defect,
irregularity or variance which does not affect substantial rights shall be
disregarded.”). We have previously indicated that evidentiary errors are
subject to harmless error review. See, e.g., United States v. Okulaja, 21 F.4th
338, 346 (5th Cir. 2021).
The text messages contained in the Cellebrite report used coded
language; none contained the word “methamphetamine,” “meth,” or
similar “smoking gun.” The Government’s case included the testimony of
several coconspirators, who identified and inculpated Rubio. As discussed,
police observed Rubio at a hotel with his conspirators, where
methamphetamine was later found. When police intercepted a truck
containing Rubio and two conspirators, Rubio was seated in the back seat. A
container of methamphetamine was also in the back seat. Although Rubio
denied distributing methamphetamine, he admitted to consuming it with
other conspirators. Finally, police seized a ledger kept by the apparent leader
of the conspiracy, Edward Brueggemeyer, who authenticated it on the stand.
admitted Cellebrite evidence); United States v. Marsh, 568 F. App’x 15, 16−17 (2nd Cir.
2014) (summary order) (finding no need for expert testimony where, as here, the officer
performing Cellebrite extraction testified at trial); United States v. Lamons, 532 F.3d 1251,
1262–64 (11th Cir. 2008) (observing no Confrontation Clause violation where software-
decrypted cell phone records were introduced into evidence); United States v. Arce, 49
F.4th 382, 391−92 (4th Cir. 2022) (holding Cellebrite reports generally non-testimonial,
except where algorithms offered opinions about extracted data).
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The ledger listed monetary amounts and names of conspiracy members. The
name “Lorenzo” (Rubio’s first name) appears in the ledger.
Given the overwhelming nature of the evidence against Rubio, any
evidentiary error tied to the Cellebrite report was harmless.
II.
Rubio also argues that the trial judge should have granted his motion
for a continuance after the Government’s production of cell phone records.
The Government shared extraction reports from Rubio’s phone on April 29,
2021, from Brueggemeyer’s and Neilson’s phones on May 17, 2021, and from
co-conspirator Michael Moore’s phone on May 20, 2021, ahead of the
originally-scheduled June 7 trial date. The records contained 8 gigabytes of
data. Relatedly, Rubio argues that the trial court should have sanctioned the
allegedly-late production by excluding the evidence.
We review continuance issues for abuse of discretion. United States v.
Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009). For relief, any abuse must result
in “serious prejudice.” Id. (quotation omitted). We similarly review a district
court’s decisions on discovery sanctions for abuse of discretion. United States
v. Dvorin, 817 F.3d 438, 450 (5th Cir. 2016). Relief also requires finding
prejudice. Id.Other than a generalized nod towards the need for time, Rubio does
not explain how the trial court’s decisions prejudiced him. That precludes
relief. See United States v. Lewis, 476 F.3d 369 (5th Cir. 2007) (finding
inability to show prejudice precluded relief). Further, the record shows that
the trial court was not completely insensitive to Rubio’s concerns. It ordered
the Government to specify in advance any cell-phone records the
Government planned to introduce. Without granting a longer continuance,
the trial court moved the trial date by two days, to June 9, 2021, in part to
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give Rubio more time to review the records. And there is no evidence or
suggestion from Rubio that the Government behaved in bad faith in any way.
Further, Rubio’s conduct after the denial of his continuance motion
undermines this appeal. The parties voluntarily went to trial one day early,
on June 8, 2021. The trial court repeatedly warned Rubio that starting early
could prejudice his demand for a continuance, at one point saying, “You
want to have it both ways. We will see how the Circuit figures that out.”
Rubio’s choice to start early suggests he did not need a continuance. On these
facts, we do not find that the trial court abused its discretion.
AFFIRMED.
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