F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-4055
v. (D. Utah)
JOSEPH MANUEL REYES, (D.C. No. 1:04-CR-030-TC)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.
Joseph Manuel Reyes appeals his conviction for bank robbery. See
18 U.S.C. § 2113(a). He contends that certain hearsay testimony was improperly
admitted in violation of the Confrontation Clause, and as an excited utterance.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
We have jurisdiction under 28 U.S.C. § 1291. 1 We affirm because the testimony
could not have affected the verdict.
I. BACKGROUND
On February 4, 2004, a Wells Fargo bank in Logan, Utah, was robbed. A
man wearing sunglasses and a hooded blue jacket with the words “Old Navy”
across the front entered the bank and handed the teller a note that said “Give me
your money or I’ll shoot you.” R. Vol. III at 52. The teller gave the robber
approximately $2,900 in denominations ranging from $1 to $20, including $40 in
$2 bills. Bank security cameras took the robber’s picture, which was published in
the local newspaper the next day.
At trial, several witnesses identified Mr. Reyes as the man in the bank
photograph. A police officer who had arrested Mr. Reyes the night before the
1
We originally partially remanded to the district court for a determination
whether there was excusable neglect justifying Mr. Reyes’s filing his notice of
appeal two days late. Order of May 19, 2005. Mr. Reyes’s counsel filed an
affidavit with the district court explaining that he was busy with other legal
matters and had neglected to file the notice, leaving Mr. Reyes to file his notice
pro se after the deadline had passed. We have serious doubts whether this
constitutes excusable neglect. See United States v. Torres, 372 F.3d 1159, 1163
(10th Cir. 2004 (“‘inadvertence, ignorance of the rules, or mistakes construing the
rules do not usually constitute “excusable” neglect’” (quoting Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993)). Nevertheless,
the government has not objected. And recently the Supreme Court strongly
indicated that timeliness rules are not jurisdictional. See Eberhart v. United
States, 126 S. Ct. 403, 406 (2005) (when the government objects to an untimely
filing, dismissal is mandatory; but “failure to object to untimely submissions
entails forfeiture of the objection”). We therefore proceed to the merits.
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robbery on a separate charge testified that he was “about 90 percent sure” that the
pictured man was Mr. Reyes. Id. at 20. He also identified the jacket Mr. Reyes
was wearing the night he was arrested as the jacket seen in the photo. Three
neighbors testified that they were “pretty certain,” R Vol. V at 59, “positive,” id.
at 37, and “very sure,” id. at 82, that the man in the bank photo was Mr. Reyes.
Two other acquaintances of Mr. Reyes testified that they had “no doubt in my
mind,” R. Vol. III at 40, and were “very certain,” R. Vol. V at 100, that the photo
was of Mr. Reyes.
Christopher Godinez, who testified that he and Mr. Reyes were “like
brothers, ” id. at 106, provided information beyond just identifying the man in the
photo. He said that Mr. Reyes showed him a copy of the bank photo and asked if
it looked like him. He testified, “I told him no, but inside I knew it was him.” Id.
at 115. The day after the robbery he went with Mr. Reyes to the home of
Mr. Reyes’s mother. Mr. Reyes’s family had “recognized him from the picture in
the paper and they had a family meeting on why . . . he did it.” Id. at 118.
[Prosecutor]: And what did Joseph [Mr. Reyes] say during these
discussions of why he robbed the bank?
[Mr. Godinez]: I believe he said he didn’t care. That he needed the
money.
Id. The two had a conversation the next day in which Mr. Reyes again said he
robbed the bank because he needed the money.
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Other witnesses, including two bank tellers, also identified Mr. Reyes’s
jacket and sunglasses as the same that were worn by the robber. (A few minutes
after the robbery Mr. Reyes had purchased a truck from a neighbor; he left his
jacket and sunglasses with the neighbor, who later turned them over to the
police.) In addition, several witnesses noted that in the days after the robbery
Mr. Reyes paid for numerous items, such as the truck, with cash, including
several $2 bills.
Finally, over a hearsay objection from defense counsel, Captain Eric
Collins of the Logan City Police Department testified about a statement by
Mr. Reyes’s mother, Hortencia Garza, after Captain Collins and two other officers
showed her a copy of the bank-surveillance-camera image of the robber:
Q. And what was her reaction?
A. She immediately started to cry.
Q. Did you put a question to her.
A. I did.
Q. What did you say?
A. I asked her if that was her son Joseph.
Q. And what did she do?
A. She said yes.
Q. Did she do anything with her head or—
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A. She sat down on the couch and put her head in her hands and
cried for some time, and I tried to comfort her. It was obvious
that she was upset.
R. Vol. V at 96-97. Ms. Garza did not take the stand at trial. The district court
admitted the testimony under the excited-utterance exception to the hearsay rule.
See Fed. R. Evid. 803(2) (providing hearsay exception for a “statement relating to
a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.”).
Mr. Reyes makes two arguments on appeal. First, he argues that the
testimony of Captain Collins regarding Ms. Garza’s identification of Mr. Reyes
violated the Confrontation Clause. In addition, he argues that the testimony was
hearsay, and was not an excited utterance.
II. DISCUSSION
The government concedes that admission of Ms. Garza’s statement violated
the Confrontation Clause. We also will assume (and, indeed, are inclined to
believe) that her statement was not an excited utterance. Nevertheless, Mr. Reyes
is not entitled to relief.
A. Standard of Review
Mr. Reyes concedes that he did not raise the Confrontation Clause issue
below and that we review it only for plain error. “Plain error occurs when there is
(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
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seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.
2005) (internal quotation marks omitted). “Satisfying the third prong of plain-
error review—that the error affects substantial rights—usually means that the
error must have affected the outcome of the district court proceedings.” Id. at
732 (internal quotation marks omitted).
As for the alleged erroneous admission of hearsay, we review for harmless
error because Mr. Reyes preserved his objection below. See United States v.
Marshall, 432 F.3d 1157, 1160 (10th Cir. 2005). This is not a constitutional
claim. “In non-constitutional harmless error cases, the government bears the
burden of demonstrating, by a preponderance of the evidence, that the substantial
rights of the defendant were not affected.” Id. at 1162 (internal quotation marks
omitted).
B. Merits
The evidence introduced at trial was overwhelming. There can be no doubt
that excluding Captain Collins’s testimony about the mother’s identification
would not have affected the outcome of the trial. Any error was harmless, and
certainly did not satisfy the third prong of the plain-error test.
III. CONCLUSION
We AFFIRM the judgment of the district court.
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ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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