United States v. Alejandro Valdes-Fiallo

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 17, 2007
No. 06-10219 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00219-CR-T-24TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO VALDES-FIALLO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 17, 2007)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Alejandro Valdes-Fiallo appeals his conviction for conspiracy to possess
with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(B)(ii)(II) and 846. Valdes-Fiallo argues that the district court erred in
admitting into evidence Orlando Brito’s statements to Miguel and Rudy Ocasios, in
violation of the Sixth Amendment, the Federal Rules of Evidence, Bruton v.
United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), and Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354 (2004). Valdes-Fiallo also argues that the district
court erred in admitting into evidence Detective Richard Diaz’s testimony
regarding statements Valdes-Fiallo had made to him while Valdes-Fiallo was in
custody, in violation of the Fifth Amendment and Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602 (1966). Because we find no reversible error, we AFFIRM.
I. BACKGROUND
Prior to trial, Valdes-Fiallo moved to suppress statements that Brito, a non-
testifying, co-conspirator and confidential informant (“CI”), made to the Ocasios,
two testifying co-conspirators, in secretly recorded conversations. Valdes-Fiallo
argued that Brito’s statements were not in furtherance of the conspiracy as is
required under Federal Rule of Evidence 801(d)(2)(E). In response to
Valdes-Fiallo’s motion to suppress Brito’s statements to the Ocasios, the
government agreed that Brito’s statements were not admissible under Rule
801(d)(2)(E), but asserted that it did not intend to enter the evidence under that rule
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and reserved the right to offer Brito’s statements under a different theory.
At trial, the district court ruled that the recorded conversations between Brito
and the Ocasios were admissible because, during opening arguments, there was a
suggestion of improper influence or motive and hence a prior statement by a
witness (such as one of the Ocasios) could be admitted under Rule 801(d)(1)(B).
The court also ruled that Brito’s statements were admissible because his statements
were not being admitted for the truth of the matter asserted, but rather only to
provide context.
Valdes-Fiallo also moved to suppress inculpatory statements that he had
made to Detective Diaz while incarcerated and, Valdes-Fiallo argued, without a
waiver of his rights and without the presence of his counsel. In response to
Valdes-Fiallo’s motion to suppress his statements to Detective Diaz, the
government argued that Valdes-Fiallo had initiated the contact with Detective Diaz
by phone and voluntarily had made statements to him, without prompting, in order
to lessen the instant charge. At a hearing for Valdes-Fiallo’s motions to suppress,
the government called Detective Diaz, who testified that an unknown male family
member of Valdes-Fiallo had contacted Detective Diaz three times in one week,
indicating that Valdes-Fiallo wanted to talk to Detective Diaz. Detective Diaz
testified that because Valdes-Fiallo periodically divulged information to Detective
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Diaz between 2001 and 2005, he decided to meet with Valdes-Fiallo. Detective
Diaz visited Valdes-Fiallo in jail and testified that he told Valdes-Fiallo that he did
not want to talk about anything in reference to Valdes-Fiallo’s pending charge.
Detective Diaz testified that Valdes-Fiallo had volunteered that his information
was unrelated to his charge; rather, he claimed he had information concerning drug
traffickers in Tampa. Detective Diaz also testified that Valdes-Fiallo had stated he
hoped that he could share it in order to help with his pending charge.
On cross-examination, Detective Diaz elaborated that Valdes-Fiallo was not
consistent in relaying information, but that the information Valdes-Fiallo divulged
was reliable. Detective Diaz admitted that he knew Valdes-Fiallo was under
indictment, but he had not called the prosecutor before he went to see
Valdes-Fiallo at the jail because he had not planned to talk with him about his
pending charge. Detective Diaz explained that he had not called Valdes-Fiallo’s
counsel or the United States Attorney’s Office, and he had not read Valdes-Fiallo
his Miranda rights at this meeting because, as Detective Diaz saw it, he “wasn’t
questioning him.” R2 at 59. According to Detective Diaz, Valdes-Fiallo only had
provided vague information about drug dealers in Tampa and had not said anything
related to his pending case.
The district court found that Valdes-Fiallo’s legal rights were not violated
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because he had initiated the conversation through his family member, and any
statement that he had made was not in response to questioning. The district court
thus denied Valdes-Fiallo’s motion to suppress his statement to Detective Diaz.
Ultimately, the jury found Valdes-Fiallo guilty of conspiracy to possess with intent
to distribute 500 grams or more of cocaine. This appeal followed.
II. DISCUSSION
We apply “a mixed standard of review to the denial of a defendant’s motion
to suppress, reviewing the district court’s findings of fact for clear error and its
application of law to those facts de novo.” United States v. Lyons, 403 F.3d 1248,
1250 (11th Cir.), cert. denied, 126 S. Ct. 732 (2005). “We review a district court’s
evidentiary rulings for abuse of discretion.” Id. We review questions of
constitutional law de novo. United States v. Brown, 364 F.3d 1266, 1268 (11th
Cir. 2004).
A. Brito’s recorded statements to the Ocasios
With some exceptions and exclusions, the Federal Rules of Evidence bar
hearsay, which is defined as “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.” Fed. R. Evid. 801(c). We have held that recorded statements are
not hearsay when they are offered to put a defendant’s statements in a conversation
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into context. United States v. Price, 792 F.2d 994, 996 (11th Cir. 1986). Evidence
that is not offered to prove the truth of the matter asserted is not hearsay. Fed. R.
Evid. 801(c); Cargill v. Turpin, 120 F.3d 1366, 1373 (11th Cir. 1997).
Additionally, we presume that a jury follows the instructions given to it by the
district judge. United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005) (per
curiam).
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. “Testimonial statements of witnesses absent from trial
have been admitted only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.” Crawford, 541 U.S. at
59, 124 S. Ct. at 1369. Testimonial hearsay covers “statements that were made
under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial,” such as prior
testimony, police interrogations, affidavits, and depositions. Id. at 51-52, 68, 124
S. Ct. at 1364, 1374 (citation omitted). In a joint trial, the admission of a co-
defendant’s extrajudicial confession that implicates the accused violates the
accused’s right of cross-examination under the Confrontation Clause. Bruton, 391
U.S. at 126, 88 S. Ct. at 1622. Only those statements by a non-testifying co-
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defendant that directly inculpate the defendant give rise to a constitutional
violation. United States v. Arias, 984 F.2d 1139, 1142 (11th Cir. 1993).
Valdes-Fiallo makes several arguments regarding the inadmissibility of
Brito’s statements during Brito’s conversations with the Ocasios. Valdes-Fiallo
argues that the district court erred in admitting into evidence statements made by
Brito because they were not in furtherance of the conspiracy, see Fed. R. Evid.
801(d)(2)(E), and they did not qualify as admissible under the residual hearsay
exception of Rule 807. Valdes-Fiallo also contends that the admission of Brito’s
statements violated the rule announced in Bruton, that is, that the Confrontation
Clause prohibits the admission of statements of a non-testifying co-defendant that,
standing alone, clearly inculpate the defendant.
As an initial matter, we dispose of Valdes-Fiallo’s Rule 801(d)(2)(E) and
Rule 807 arguments because the district court did not admit Brito’s statements
under either of these rules. In addition, Valdes-Fiallo’s Bruton argument is
inapplicable since the Bruton rule only applies to situations in which a non-
testifying co-defendant’s statement is admitted against a defendant in a joint trial;
Brito was not Valdes-Fiallo’s co-defendant in a joint trial. See Cargill, 120 F.3d at
1375 n. 16 (distinguishing Bruton on the grounds that defendant’s trial was not a
joint trial).
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Furthermore, Valdes-Fiallo contends that even though we have held that
statements of a non-testifying co-defendant may be admissible to provide context
for the defendant’s statements, such statements are not admissible to provide
context for the statements of someone other than the defendant. We fail to see
how, and Valdes-Fiallo does not offer any explanation as to how, this distinction
makes a difference. The recorded statements by Brito were not hearsay because
they were offered to put into context the statements made by the Ocasios, both of
whom testified, in recorded conversations with Brito. Price, 792 F.2d at 996-997
(holding that a CI’s statements during taped conversations with the defendant were
admissible to supply context to the defendant’s statements). Furthermore, the
district court issued a limiting jury instruction that Brito’s statements were not
being admitted for the truth of the matter asserted each time the recordings in
question were played for the jury.
Additionally, Valdes-Fiallo’s arguments regarding the applicability of
Crawford to Brito’s statements is misplaced. The Supreme Court noted that the
Confrontation Clause applies to “witnesses” who “bear testimony,” which the
Court indicated “is typically [a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact. Crawford, 541 U.S. at 51, 124 S. Ct.
at 1364 (citation and internal quotation omitted). As recognized by the Crawford
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Court, the Confrontation Clause “does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.” Id. 541 U.S. at
59 n. 9, 124 S. Ct. at 1369 n. 9. Here, Brito’s statements are not hearsay because
they were not used to prove the truth of the matter asserted, but rather, merely to
provide context, and thus, do not run afoul of the Confrontation Clause. See
United States v. Hendricks, 395 F.3d 173, 184 (3d Cir. 2005) (permitting, after
consideration of Crawford, the introduction of “the balance of the [secretly
recorded] conversations, i.e., the statements of CI Rivera [that] . . . put the
[nontestimonial] statements of the other parties to the conversations into
perspective.” (citation and internal quotation omitted)). Accordingly, the district
court did not err in admitting Brito’s statements made during the recorded
conversations between him and the Ocasios.
B. Detective Diaz’s testimony regarding Valdes-Fiallo’s statements in custody
The Fifth Amendment provides that no person “shall be compelled in any
criminal case to be a witness against himself . . . .” U.S. Const. amend. V. The
government “may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against
self-incrimination.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. Once an accused
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has invoked his Fifth Amendment rights, he is not subject to further interrogation
absent counsel, “unless the accused himself initiates further communication,
exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477,
484-85, 101 S. Ct. 1880, 1885 (1981).
“Even if a defendant has initiated contact with the police after requesting
counsel, any statements made are still inadmissible unless they are the product of a
knowing and voluntary waiver.” Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir.
1988). The Supreme Court has held that
the inquiry into whether a defendant has waived his rights under
Miranda voluntarily, knowingly and intelligently has two distinct
dimensions:
First the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion or deception. Second, the waiver must have
been made with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it. Only
if the “totality of the circumstances surrounding the interrogation”
reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights
have been waived.
Id. at 398 (citations omitted).
We conclude that the district court did not err in admitting Detective Diaz’s
testimony regarding the statements Valdes-Fiallo made to Detective Diaz while in
custody. We first address of Valdes-Fiallo’s arguments regarding his exchange
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with Detective Diaz. Valdes-Fiallo contends that Detective Diaz contradicted
himself when testifying about Valdes-Fiallo’s reliability, presumably in an attempt
to call into question Detective Diaz’s credibility. No contradiction exists, however,
as Detective Diaz testified that Valdes-Fiallo was unreliable in terms of “when
[Detective Diaz] needed him to meet,” but otherwise, was reliable in respect to the
information he provided. R2 at 55.
Valdes-Fiallo’s other arguments relate to Detective Diaz’s failure to take
notes of the encounter, failure to contact either the United States Attorney’s office
or his own counsel’s office, and failure to read Valdes-Fiallo his rights prior to
speaking with him. Importantly, however, Valdes-Fiallo presented no evidence at
trial, and does not argue on appeal, that he did not initiate the meeting in question.
Detective Diaz’s testimony supports the finding that Valdes-Fiallo, through his
family member, initiated the meeting. See Christopher v. Florida, 824 F.2d 836,
845 (11th Cir. 1987) (citation omitted) (“‘Initiation’ means to ‘begin’ or
‘set-going’”).
Even were we to assume that the meeting was an “interrogation,” the totality
of the circumstances surrounding the exchange reveals both an uncoerced choice
and the requisite level of comprehension necessary to waive his rights under
Miranda. See Dunkins, 854 F.2d at 399; see also Edwards, 451 U.S. at 486 n. 9,
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101. S. Ct. at 1885 n. 9 (“If, as frequently would occur in the course of a meeting
initiated by the accused, the conversation is not wholly one- sided, it is likely that
the officers will say or do something that clearly would be ‘interrogation.’ In that
event, the question would be whether a valid waiver of the right to counsel and the
right to silence had occurred, that is, whether the purported waiver was knowing
and intelligent and found to be so under the totality of the circumstances . . . .”).
Detective Diaz prefaced their meeting with the warning that he did not want to
discuss anything related to Valdes-Fiallo’s then-pending federal charge. Detective
Diaz testified that Valdes-Fiallo then told him that he had some information
unrelated to his current charges and that he was hoping his cooperation would
assist him with his pending charges. The voluntariness of a Miranda waiver
depends on the absence of police overreaching, and Valdes-Fiallo does not argue
on appeal that his statement was involuntary due to any police overreaching or
coercion, see Dunkins, 854 F.2d at 399, nor does he argue on appeal that he was
reinterrogated after he clearly asserted his right to counsel. See Edwards, 451 U.S.
at 485, 101 S. Ct. at 1880. As a result, the district court did not err in finding that
Valdes-Fiallo initiated the conversation, did not err in denying his motion to
suppress his post-arrest statement, and did not abuse its discretion by admitting that
statement at trial.
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III. CONCLUSION
Upon review of the appellate record, and upon consideration of the briefs of
the parties, we find no reversible error. Accordingly, we AFFIRM.
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