[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11100 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 14, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:09-cr-00009-HL-CWH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN CHURCHWELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(March 14, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Jonathan Churchwell appeals his convictions for possession with intent to
distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(viii), and possession with intent to distribute a detectable
amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).
Having raised no evidentiary objections to the pertinent testimony at trial,
Churchwell argues for the first time on appeal that the Government’s introduction
of out-of-court statements by confidential informants and a law enforcement
officer violated his Confrontation Clause rights. Churchwell asserts the out-of-
court statements were testimonial and were offered to prove he was keeping
methamphetamine in a storage unit and was distributing methamphetamine from
his current residence. He contends that even if the statements explained the course
of the police investigation, the slight probative value of that non-hearsay purpose
was overwhelmingly outweighed by the danger of unfair prejudice caused by the
statements’ hearsay use. We affirm Churchwell’s convictions.
We normally review constitutional claims de novo. United States v.
Williams, 527 F.3d 1235, 1239 (11th Cir. 2008). However, Churchwell did not
object to the pertinent testimony or argument at trial on any grounds, including the
Confrontation Clause, nor did he ask the district court for a limiting instruction.
Therefore, we review only for plain error. United States v. Jiminez, 564 F.3d
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1280, 1286 (11th Cir. 2009). Under plain error review, “[a]n appellate court may
not correct an error the defendant failed to raise in the district court unless there is:
(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). When these three conditions
are met, we may notice the error if it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. An error affects substantial rights
if it has a “substantial influence on the outcome of a case or leave[s] grave doubt
as to whether [it] affected the outcome of a case.” United States v. Turner, 474
F.3d 1265, 1276 (11th Cir. 2007) (quotation omitted). The defendant bears the
burden of persuasion to show an effect on substantial rights, id., and if the error’s
effect on the outcome is uncertain or indeterminate, then the defendant has not met
his burden of showing an effect on substantial rights, Rodriguez, 398 F.3d at 1301.
The Confrontation Clause of the Sixth Amendment prohibits the
introduction of out-of-court statements that are “testimonial,” unless the declarant
is unavailable and the defendant had a prior opportunity to cross-examine the
declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). However, “the
Confrontation Clause prohibits only statements that constitute impermissible
hearsay.” Jiminez, 564 F.3d at 1286. The Clause “does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
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asserted.” Id. at 1286-87 (quotation omitted). Thus, statements by out-of-court
witnesses to law enforcement officials “may be admitted as non-hearsay if they are
relevant to explain the course of the officials’ subsequent investigative actions,
and the probative value of the evidence’s non-hearsay purpose is not substantially
outweighed by the danger of unfair prejudice caused by the impermissible hearsay
use of the statement.” Id. at 1288 (quotation omitted).
The introduction of out-of-court statements by Government witnesses did
not violate Churchwell’s Confrontation Clause rights. Although the district court
did not make any evidentiary rulings on the statements or give a limiting
instruction sua sponte, it appears the out-of-court statements were introduced for
non-hearsay purposes—to explain how investigators got involved in the case and
why they sought search warrants for Churchwell’s storage unit and his current
residence. The statements helped explain the course of the investigators’
subsequent investigative actions, and were not plainly offered for the truth of the
matter asserted. Jiminez, 564 F.3d at 1288.
Even if the statements were offered for hearsay purposes and thus, violated
the Confrontation Clause, Churchwell has not met his burden to show a reasonable
probability that the error affected his substantial rights. This is not a very close
case where the out-of-court statements tipped the balance in favor of conviction.
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Rather, this is a case where Churchwell was found to have rented a storage unit
that contained over 50 grams of methamphetamine, and his bedroom contained
methamphetamine that was packaged in a way consistent with distribution.
Therefore, even if the jury considered the out-of-court statements for hearsay
purposes, the statements did not likely have a substantial effect on the outcome,
and any effect they did have is uncertain. Rodriguez, 398 F.3d at 1301.
Accordingly, the introduction of out-of-court statements did not constitute plain
error, and we affirm.
AFFIRMED.
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