UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS TEJADA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Solomon Blatt, Jr., Senior
District Judge. (2:08-cr-01155-SB-6)
Submitted: August 25, 2011 Decided: September 6, 2011
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Peter T. Phillips, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Carlos Tejada was convicted of one
count of conspiracy to possess with the intent to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C.A.
§§ 841(a)(1), (b)(1)(A); 846 (West 1999 & Supp. 2011), and one
count of conspiracy to commit money laundering, in violation of
18 U.S.C.A. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), 1957, 2 (West
2000 & Supp. 2011). On appeal, Tejada argues that the district
court erred by denying his motion to suppress evidence seized
from his home. He also contends that the district court erred
by allowing the Government to introduce statements of an
unavailable co-conspirator, and by not allowing him to display
his tattoos to the jury during closing argument. Finding no
error, we affirm.
We first address Tejada’s challenge to the denial of
his motion to suppress evidence seized from his apartment.
Tejada claims that the affidavit filed in support of the search
warrant was filled with inaccuracies and unreliable information
supplied by a co-conspirator. He states that the Government was
aware that some of the information provided by the co-
conspirator was false. He also notes that the co-conspirator
later admitted lying to law enforcement when he gave information
implicating Tejada.
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This court reviews the factual findings underlying a
district court’s ruling on a motion to suppress for clear error
and the district court’s legal conclusions de novo. United
States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010), cert.
denied, 130 S. Ct. 3374 (2010). When evaluating the denial of a
suppression motion, we construe the evidence in the light most
favorable to the Government, the prevailing party below. Id.
We conclude that the district court did not err in
denying Tejada’s motion to suppress. The co-conspirator’s
statements that were used in the affidavit in support of the
warrant were for the most part corroborated by the police
investigation. Furthermore, to the extent the information was
inaccurate, there is no evidence that law enforcement was aware
that the statements being used in the affidavit were not true.
Even if the affidavit misrepresented Tejada’s criminal history,
the district court did not err in finding the misrepresentation
immaterial to the probable cause determination.
We next address Tejada’s challenge to the admission of
evidence at his trial. The Government was permitted over
Tejada’s objection to introduce statements made by an
unavailable co-conspirator as statements made during the course
of and in furtherance of the conspiracy. Tejada claims that the
evidence was insufficient to support a finding that he and the
declarant were co-conspirators. He also claims the statements
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were testimonial in nature and therefore inadmissible absent an
opportunity to cross-examine the declarant.
A statement is not hearsay if it is offered against
the defendant and is a statement of a co-conspirator made
“during the course and in furtherance of the conspiracy.” Fed.
R. Evid. 801(d)(2)(E). For a statement to be admissible under
Rule 801(d)(2)(E), there “must be evidence that there was a
conspiracy involving the declarant and the nonoffering party,
and that the statement was made during the course and in
furtherance of the conspiracy.” Bourjaily v. United States, 483
U.S. 171, 175 (1987) (internal quotation marks omitted).
Accordingly, when the Government shows by a preponderance of the
evidence that (i) a conspiracy existed of which the defendant
was a member, and (ii) the co-conspirator’s statement was made
in furtherance of the conspiracy, the statement is admissible.
United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996). This
court reviews the trial court’s admission of evidence for abuse
of discretion. United States v. Blevins, 960 F.2d 1252, 1255
(4th Cir. 1992).
We conclude that there was sufficient evidence showing
that the declarant and Tejada were participants in a conspiracy,
and the statements were made in furtherance of that conspiracy.
Several witnesses testified as to the declarant’s and Tejada’s
roles in the conspiracy. To the extent that Tejada challenges
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the sufficiency of the evidence showing his and the declarant’s
participation in the conspiracy, this argument is without merit.
The Confrontation Clause of the Sixth Amendment bars
“admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 53-54 (2004).. For such
evidence to be excludable under the Confrontation Clause, it
must be “testimonial,” United States v. Udeozor, 515 F.3d 260,
268 (4th Cir. 2008), and offered for the truth of the matter
asserted, Crawford, 541 U.S. at 59-60 n.9. The Supreme Court
indicated in Crawford that many hearsay exceptions “covered
statements that by their nature were not testimonial--for
example, business records or statements in furtherance of a
conspiracy.” 541 U.S. at 56 (emphasis added). “We review
alleged Confrontation Clause violations under the de novo
standard of review.” United States v. Lighty, 616 F.3d 321, 376
(4th Cir. 2010), cert. denied, 131 S. Ct. 846 (2010).
For the reasons explained above, the district court
did not err in finding the statements represented those of a co-
conspirator made in furtherance of the conspiracy. It follows
that the statements were not testimonial. See United States v.
Sullivan, 455 F.3d 248, 258 (4th Cir. 2006). Consequently, the
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district court did not err in admitting the statements despite
the declarant not being available for cross-examination.
We next address Tejada’s challenge to the district
court’s refusal to allow him to display his tattoos during
closing argument. During Tejada’s closing argument, counsel
wanted Tejada to roll up his sleeves and show his tattoos to the
jury in an attempt to raise questions about the credibility of
one of the Government’s main witnesses. The district court
sustained the Government’s objection to the display.
Closing argument is limited to the facts in evidence.
Lighty, 616 F.3d at 361. It is not the time to introduce facts
not already admitted into evidence. United States v. Waldemer,
50 F.3d 1379, 1383 (4th Cir. 1995). When a defendant seeks to
display some physical attribute of his person to a jury for
purposes of supporting his case, the demonstration qualifies as
evidence sought to be introduced. United States v. Williams,
461 F.3d 441, 446 (4th Cir. 2006). We review a district court’s
evidentiary determinations for abuse of discretion. Id. at 445.
In the present case, Tejada was seeking to introduce
new evidence showing the presence of prominent tattoos on his
arms with the intention of casting doubt upon a witness’
testimony. Instead of presenting this evidence during his case
in chief, Tejada sought to have the evidence introduced during
his closing argument, contrary to established rules of trial
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procedure. We find the district court did not abuse its
discretion in denying Tejada the opportunity to show his tattoos
to the jury during his counsel’s closing argument.
Accordingly, we affirm the judgment of conviction. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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