IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 5, 2008
No. 06-41685 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
HUMBERTO GARCIA
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1659-1
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-appellant Humberto Garcia appeals his conviction for
conspiracy to possess with intent to distribute in excess of one thousand
kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and
846, and aiding and abetting possession with intent to distribute in excess of one
hundred kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 18 U.S.C. § 2. Garcia contends that the district court’s
admission of tape recorded statements discussing his participation in the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-41685
marijuana conspiracy violated his rights under the Sixth Amendment’s
Confrontation Clause. For the following reasons, we affirm his conviction.
1. We review the district court’s evidentiary rulings for abuse of
discretion, United States v. Cheramie, 51 F.3d 538, 540 (5th Cir.
1995), and alleged violations of the Confrontation Clause de novo,
United States v. Delgado, 401 F.3d 290, 299 (5th Cir. 2005).
2. Oscar Palacios’s statements were properly admitted to provide
context for the statements of other co-conspirators, as opposed to for
the truth of matter asserted in the statements. And “because the
Confrontation Clause does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter
asserted,” there was also no Sixth Amendment violation. United
States v. Acosta, 475 F.3d 677, 683 (5th Cir. 2007). Furthermore,
because Palacios was available to both parties to testify, there is not
a Confrontation Clause problem.
AFFIRMED.
2