[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-15954 ELEVENTH CIRCUIT
November 5, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00220-CR-ORL-22-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME SANDOVAL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 5, 2008)
Before BIRCH, BLACK and HULL, Circuit Judges.
PER CURIAM:
Jaime Sandoval appeals his convictions for one count of conspiracy to
possess with intent to distribute five kilograms or more of cocaine, in violation of
21 U.S.C. §§ 841(a)(1), b(1)(A)(ii) and 21 U.S.C. § 846 (Count One), and two
counts of aiding and abetting the possession of five kilograms or more of cocaine
with intent to distribute, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A)(ii) and
18 U.S.C. § 2 (Counts Two and Three). Prior to his trial, Sandoval petitioned the
court for a writ of habeas corpus ad testificandum, along with filing a motion for a
continuance of trial, to obtain the testimony of a Massachusetts prisoner, Mark
Groccia, who had been in contact with one of the two confidential informants (CI)
used in this case. Sandoval stated this testimony would show the CI was not
properly supervised, and would also relate to the CI’s alleged past drug sales. The
district court denied Sandoval’s request.
During the trial, Sandoval informed the court he wanted to proffer the
testimony of Fritz Scheller, the attorney for Stephanie Franzi, an identified witness
in the case who was debriefed on March 29, 2006, regarding her knowledge of
Sandoval and one of the CIs. Sandoval contended Scheller’s testimony regarding
Franzi’s debriefing statements would not be hearsay because the testimony was not
being offered to prove the truth of the matter asserted. The court allowed Sandoval
to proffer Scheller’s testimony, but did not permit the jury to hear this testimony.
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On appeal, Sandoval contends the district court abused its discretion when it
(1) denied his petition for a writ of habeas corpus ad testificandum and related
motion for a continuance, and (2) excluded Scheller’s testimony. We address each
issue in turn, and affirm the judgment of the district court.
I.
A prisoner’s presence at trial is secured by a writ of habeas corpus ad
testificandum, the grant or denial of which is “committed to the sound discretion of
the district court.” United States v. Rinchack, 820 F.2d 1557, 1567 (11th Cir.
1987). We review the denial of such a writ for an abuse of discretion. United
States v. Wright, 63 F.3d 1067, 1070 (11th Cir. 1995). Generally, however, courts
have required defendants in criminal cases requesting petitions for writs of habeas
corpus ad testificandum to comply with the requirements of Fed. R. Crim. P. 17(b).
Id. The grant or denial of a Rule 17(b) motion is reviewed for an abuse of
discretion. Rinchack, 820 F.2d at 1566. The defendant bears the burden of
articulating specific facts that show the relevancy and necessity of the requested
witness’s testimony. United States v. Hegwood, 562 F.2d 946, 952 (5th Cir.
1977).1
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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Here, the district court denied Sandoval’s petition for a writ of habeas
corpus, as well as Sandoval’s request for a continuance to secure Groccia’s
presence, because Sandoval failed to proffer testimony by Groccia that would be
admissible at trial. Sandoval bore the burden of establishing the relevancy and
necessity of Groccia’s presence for an adequate defense, and by failing to show
Groccia would testify at trial and would not raise his Fifth Amendment privilege
against self-incrimination, Sandoval could not show how Groccia was necessary to
the defense. See Fed. R. Crim. P. 17(b); Hegwood, 562 F.2d at 952. Moreover, the
information Sandoval sought to elicit through Groccia’s testimony was not
necessary to his entrapment defense because it could not establish in any way the
CI induced Sandoval into committing the crimes of which he was accused.
Because Sandoval did not establish the prisoner-witness’s presence at trial was
necessary for an adequate defense, the district court did not abuse its discretion in
denying his petition for a writ of habeas corpus ad testificandum and
accompanying motion for a continuance.
II.
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Hands, 184 F.3d 1322, 1326 (11th Cir. 1999). Hearsay is a
“statement, other than one made by the declarant while testifying at the trial or
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hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.
Evid. 801(c). Hearsay is inadmissible unless excepted by another rule, none of
which is relevant to this case. Fed. R. Evid. 802.
Sandoval contends Scheller’s testimony was not being offered to prove the
truth of the matter asserted, but was instead offered to rebut testimony by two of
the DEA agents in this case, or their March 29th debriefing report. To effectively
rebut the testimony of the agents or the prepared report, however, Sandoval would
necessarily be offering Franzi’s statements for their truth, not merely for the fact
the statements were made. See United States v. Webster, 649 F.2d 346, 349 (5th
Cir. 1981) (“Where the alleged fact is only so if the substance of the statement is
the truth, the statement constitutes hearsay.”). Because the testimony Sandoval
sought to introduce was hearsay and was not subject to any exception, the district
court properly excluded it. Accordingly, we affirm Sandoval’s convictions.
AFFIRMED.
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