USA v. Andrew Benford

Filing

Opinion issued by court as to Appellant Andrew Benford. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 14-12542

Date Filed: 03/19/2015

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12542
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00118-TWT-LTW-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW BENFORD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 19, 2015)
Before TJOFLAT, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Andrew Benford appeals his conviction for knowingly possessing a firearm

Case: 14-12542

Date Filed: 03/19/2015

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and ammunition as a convicted felon. 18 U.S.C. §§ 922(g)(1), 924(a)(2). Benford
challenges the denial of his motion for a mistrial. We affirm.
After the government rested its case, Benford moved for a mistrial based on
an alleged violation of his right to confront and cross-examine a confidential
informant who had identified Benford as a firearms dealer and contacted him on
behalf of federal agents. Benford argued that his “understanding from the
Government was . . . [it would] call the [informant]” as a witness, but the
government instead called Allan McLeod, an agent of the Bureau of Alcohol,
Tobacco, Firearms and Explosives, and Stephen McKesey, an investigator with the
Atlanta Police Department, to testify about statements that the informant had made
to them “related to [Benford’s] identity, his selling guns, [and his] ability to sell
guns.” The district court denied Benford’s motion.
The district court did not abuse its discretion when it denied Benford’s
motion for a mistrial. The statements by the confidential informant to the law
enforcement officials were admissible as non-hearsay because the statements were
“relevant to explain the course of the officials’ subsequent investigative actions.”
United States v. Ransfer, 749 F.3d 914, 925 (11th Cir.), cert. denied, 135 S. Ct. 392
(2014). The agents testified that the confidential informant had proved reliable in
the past; had identified Benford as a firearms dealer; and had showed McLeod text
messages that the informant had exchanged with Benford when arranging to
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Date Filed: 03/19/2015

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purchase a firearm from him. The government introduced the informant’s
statements to explain why the agents decided to investigate Benford; how
McKesey knew where to meet Benford; and how McKesey knew with whom to
transact. And after Benford objected to McLeod’s testimony as hearsay, the district
court instructed the jury to consider the testimony “for the limited purpose of
explaining [McLeod’s] conduct and for that reason only.”
Even if we were to assume that the district court erred, any error was
harmless. McKesey’s testimony was sufficient to prove that Benford knowingly
possessed a firearm. See United States v. Gari, 572 F.3d 1352, 1362–63 (11th Cir.
2009). McKesey purchased a firearm from Benford and positively identified him
as the seller during trial.
We AFFIRM Benford’s conviction.

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