[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13840 MARCH 28, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-14011-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO R. FASANELLI,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 28, 2006)
Before BLACK, BARKETT and COX, Circuit Judges.
PER CURIAM:
Mario R. Fasanelli appeals his conviction and 120-month sentence, imposed
following a jury trial, for possession with intent to distribute, and conspiracy to
possess with intent to distribute, 50 grams or more of a substance containing
methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and
846. On appeal, Fasanelli raises numerous evidentiary issues and contests the
sufficiency of the government’s evidence. Fasanelli further argues that his
sentence is unconstitutional in light of United States v. Booker, 543 U.S. 220
(2005).
At trial, the key government witness against Fasanelli was John Dyal, who
had agreed to assist in the case against Fasanelli in hopes of receiving a reduced
sentence in exchange for his cooperation. Dyal arranged a series of meetings with
Fasanelli, which eventually included undercover government agents. During one of
these meetings, Fasanelli introduced the government agents to Justin Bailey and
Bailey and Fasanelli then agreed to a methamphetamine transaction which Bailey
consummated. This transaction constitutes the basis of the charges against
Fasanelli. We address each of the issues on appeal, in turn.
I. Evidentiary Issues
Fasanelli first argues that Federal Rule of Evidence 404(b) was violated by
erroneously admitting Dyal’s testimony that prior to the date of the charged
conspiracy, he had repeatedly purchased drugs from Fasanelli and knew Fasanelli
“strictly [as a] drug dealer,” and by erroneously admitting Officer Richard
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McAfee’s testimony regarding Fasanelli’s prior state arrest and guilty plea to
charges for the sale of MDMA (“ecstacy”).
Fasanelli also argues that permitting Agent Mitchell to testify that Fasanelli
agreed to purchase methamphetamine at a meeting with undercover agents, where
Mitchell was not present nor otherwise himself heard Fasanelli make any such
agreement, violated Federal Rule of Evidence 802 and the Sixth Amendment’s
Confrontation Clause. We review preserved evidentiary objections for an abuse of
discretion. United States v. Hernandez, 921 F.2d 1569, 1582 (11th Cir. 1991).
A. Rule 404(b)
Rule 404(b) does not permit the admission of “evidence of other crimes,
wrongs or acts . . . to prove the character of a person in order to show action in
conformity therewith.” Fed. R. Evid. 404(b). However, the rule provides that such
evidence “may . . . be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. In United States v. Matthews, 431 F.2d 1296 (11th Cir. 2005), we
recently made clear that a not guilty plea to a conspiracy charge puts intent at issue,
unless the defendant “affirmatively takes the issue of intent out of the case.” Id. at
1311 (internal quotation marks and citations omitted). We find no error in the
admission of Fasanelli’s July 2000 arrest and plea on unrelated state charges as
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evidence of intent under Rule 404(b) since Fasanelli had put his intent at issue by
pleading not guilty. For the same reason, we find no error in the admission of
Dyal’s statements concerning his prior drug-sales relationship with Fasanelli. The
district court admitted this evidence on a similar theory: that Fasanelli’s not guilty
plea placed his intent at issue; that his prior relationship with Fasanelli was relevant
to prove intent; and that Dyal’s testimony concerning their prior relationship was
necessary to complete the story of the crime, as it explained why Dyal contacted
Fasanelli under the agents’ direction.
B. Hearsay / Confrontation Clause
Over Fasanelli’s hearsay objection, the district court permitted agent Mark
Mitchell to testify that he “obtained an understanding” that Fasanelli agreed to sell
methamphetamine at a meeting with Bailey, Dyal, and undercover agents. Mitchell
testified that he was not part of that meeting, nor otherwise himself heard Fasanelli
make any such agreement. The district court admitted the evidence on the theory
that it was admitted to show the course of the government’s investigation, rather
than for the truth of the matter asserted. On appeal, Fasanelli challenges the district
court’s ruling on both hearsay and Confrontation Clause grounds.
Federal Rule of Evidence 801(c) defines hearsay as “a statement, other than
one made by the declarant while testifying at the trial . . . offered in evidence to
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prove the truth of the matter asserted.” Hearsay is inadmissible. Fed. R. Evid. 803.
Hearsay testimony also violates the Confrontation Clause where it is testimonial in
nature – for example when it is “made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use
at a later trial” – unless the declarant is unavailable and the defendant had a prior
opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 52
(2004) (internal quotation marks and citation omitted).
The district court abused its discretion in admitting Mitchell’s testimony.
Contrary to the district court’s assumption, the record makes clear that Mitchell’s
testimony could not have been offered to explain the course of the government’s
investigation. After Mitchell testified that he “obtained an understanding” that
Fasanelli agreed to the drug sale, the government ended the direct examination. At
no point did Mitchell explain how his “understanding” of Fasanelli’s agreement to
the transaction affected or determined the course of the government’s investigation.
See United States v. Williams, 133 F.3d 1048, 1051 (7th Cir. 1998) (holding that
testimony was not admissible for the non-hearsay purpose of explaining the course
of the government’s investigation where the testimony was in fact unrelated to any
background or explanation of the investigation); cf. United States v. Hawkins, 905
F.2d 1489, 1495 (11th Cir. 1990) (testimony regarding postal complaints was
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admissible non-hearsay where it was necessary to show the progress of the
government investigation and where the district court limited testimony to the fact
that there were complaints, without permitting inquiry into the substance of the
complaints). Indeed, Mitchell’s own testimony indicated that he had limited
involvement in the government’s investigation and was in the vicinity during the
Fasanelli meeting only for the protection of the undercover agents. The admission
of Mitchell’s testimony clearly violated Rule 803 and was an abuse of discretion.
Because we find error in the admission of the testimony under Rule 803, we need
not address Fasanelli’s constitutional argument.
This preserved evidentiary error requires reversal where it works a
“substantial influence” on the outcome of a case or leaves “grave doubt” as to
whether it affected the outcome of a case. United States v. Frazier, 387 F.3d 1244,
1266 n.20 (11th Cir. 2004) (en banc). In this case, however, the record compels a
conclusion that the admission of Mitchell’s testimony concerning Fasanelli’s
agreement to the drug sale was harmless error. While Mitchell’s testimony was
inadmissible hearsay, another government witness – detective Robert Pettit – gave
substantially identical, and admissible, first-hand testimony concerning Fasanelli’s
agreement to the methamphetamine sale. As the jury ultimately heard Pettit’s
admissible and more damaging account of his first-hand meeting with Fasanelli,
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any prejudice resulting from Mitchell’s testimony is negligible. See United States
v. Balfany, 965 F.2d 575, 582 (8th Cir. 1992) (holding that erroneous admission of
hearsay testimony was harmless where essentially the same testimony was given in
admissible form by another witness); United States v. DeLoach, 654 F.2d 763, 771
(D.C. Cir. 1980) (holding that admission of hearsay testimony was harmless where
the jury heard admissible testimony from three other sources to the same effect).
II. Sufficiency of the Evidence
Fasanelli next argues that as to both his possession conviction and conspiracy
to possess conviction, the jury lacked sufficient evidence to return a guilty verdict.
Concerning the conspiracy conviction, Fasanelli argues that there was insufficient
evidence to show any agreement between himself and Bailey, or anyone else, to
distribute methamphetamine. He focuses in particular on Bailey’s statement that
Fasanelli had nothing to do with the offense as well as the absence of either
recorded conversations or drugs seized from Fasanelli’s person or home.
In reviewing challenges to the sufficiency of the evidence, we draw all
inferences and credibility choices in the government’s favor, United States v.
Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005), reversing only where no reasonable
jury could have found the defendant guilty under any reasonable construction of the
evidence, United States v. Gonzales, 71 F.3d 819, 834 (11th Cir. 1996). Under this
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standard, Fasanelli’s challenge to his conspiracy conviction fails.
At trial, Dyal testified that (1) he met repeatedly with Fasanelli and, on at
least one occasion, they discussed an acquaintance of Fasanelli’s who could provide
Dyal with methamphetamine; (2) Fasanelli identified this acquaintance as Justin
Bailey and told Dyal that Bailey, the source of methamphetamine, was en route to
South Florida; (3) Fasanelli and Dyal discussed drug transactions in coded
language, which Dyal explained to the jury; and (4) Fasanelli told Dyal that if Dyal
could not purchase the drugs by himself, they could purchase them together.
Detective Robert Pettit, who acted as an undercover agent in this operation, testified
that (5) Fasanelli and Bailey agreed to sell the charged narcotics to him; (6)
Fasanelli informed Pettit of the price of the drugs involved; (7) Fasanelli and Bailey
discussed the quality of the methamphetamine with Pettit and how best to “cut” it;
(8) Fasanelli told Pettit that he looked forward to a long business relationship with
him; (9) when Pettit indicated that he would need the drugs delivered to him,
Fasanelli told him that Bailey would “bring it up” the next day; and (10) Fasanelli
told Bailey to put the drugs in a “laser facial” device Fasanelli had bought earlier
that day. The totality of this evidence is clearly sufficient to support the jury’s
conviction for the charged conspiracy.
As to the possession conviction, Fasanelli argues that the government never
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proved either actual possession of, nor dominion or control over, the
methamphetamine in question. However, under circuit precedent, Fasanelli may be
convicted of possession under an aiding and abetting theory provided that the
government showed that: (1) a substantive offense was committed; (2) Fasanelli
associated himself with the criminal venture; and (3) Fasanelli had the same
unlawful intent as the actual perpetrator. United States v. Perez, 922 F.2d 782, 785-
86 (11th Cir. 1991). So long as the government proves these elements, it need not
show that Fasanelli was present at the scene of the crime. Id.
As discussed above, there was testimony at trial that Fasanelli and Bailey
agreed with government agents to the methamphetamine sale. Furthermore, trial
testimony showed that Fasanelli told the agents that the drugs would be concealed
in a laser-facial machine of his, and that he wanted the laser machine returned.
When Bailey delivered the drugs, they were packaged inside such a machine. After
Bailey’s arrest, Dyal telephoned Fasanelli to inquire as to his whereabouts.
Fasanelli then represented that Bailey was en route to the appointed meeting place.
This evidence is clearly sufficient to satisfy the elements of possession on an aiding
and abetting theory.
III. Sentencing
Finally, Fasanelli argues that he is entitled to re-sentencing because his
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sentence involves both constitutional and statutory error under Booker, 543 U.S.
220, and that the district court erred by failing to find the guidelines
unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). The
superseding indictment had charged Fasanelli with conspiracy to possess
with intent to distribute 50 grams or more of a mixture and substance containing
methamphetamine and possession with intent to distribute 50 grams or more of a
mixture or substance containing methamphetamine. The jury completed a special
verdict form in which it found that Fasanelli’s offenses had involved 50 grams or
more of a mixture and substance containing methamphetamine.
Fasanelli’s presumptive guidelines sentencing range, with a total offense
level 32 and a criminal history category III, was 151 to 188 months’ imprisonment.
Fasanelli was, however, also subject to a statutory mandatory minimum sentence of
ten years’ imprisonment and a statutory maximum sentence of life imprisonment
under 21 U.S.C. § 841(b)(1)(A). The district court agreed with Fasanelli’s
argument that the guidelines enhancement should not be applied and instead
sentenced Fasanelli to the lesser statutory minimum sentence of 120 months. Thus,
Fasanelli’s receipt of the ten-year statutory mandatory minimum sentence of
incarceration negates any possible plain error emanating from the district court’s
consideration of the guidelines computations applicable to Fasanelli as though they
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were mandatory.
AFFIRMED.
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