US v. Carlos Tejada

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:08-cr-01155-SB-6 Copies to all parties and the district court/agency. [998670675].. [10-5115]

Appeal: 10-5115

Document: 45

Date Filed: 09/06/2011

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UNPUBLISHED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

Before WYNN and
Circuit Judge.

DIAZ,

Circuit

Decided:
Judges,

and

September 6, 2011
HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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),

2000 & Supp. 2011).

(a)(1)(B)(i),

1957,

2

(West

On appeal, Tejada argues that the district

court erred by denying his motion to suppress evidence seized
from his home.
by

allowing

He also contends that the district court erred

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.
aware

that

some

of

conspirator was false.

the

He states that the Government was

information

provided

by

the

co-

He also notes that the co-conspirator

later admitted lying to law enforcement when he gave information
implicating Tejada.

2

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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
States

v.

Kelly,

592

F.3d

586,

denied, 130 S. Ct. 3374 (2010).

589

de novo.

(4th Cir.

United

2010),

cert.

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

investigation.

the

most

part

corroborated

by

the

police

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
Tejada’s

at

his

trial.

objection

to

The

Government

introduce

was

statements

permitted
made

by

over
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

co-conspirator

made

“during the course and in furtherance of the conspiracy.”

Fed.

R. Evid. 801(d)(2)(E).

statement

of

a

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

furtherance of the conspiracy.”
U.S.

171,

175

(1987)

during

the

course

and

in

Bourjaily v. United States, 483

(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.
indicated

in

statements
example,

that

by

business

conspiracy.”
alleged

Crawford

541

that

their

records
U.S.

Confrontation

standard of review.”

at

many

hearsay

nature

were

or

statements

56

Clause

The Supreme Court
exceptions

not
in

“covered

testimonial--for
furtherance

(emphasis

added).

violations

under

“We
the

de

of

a

review
novo

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 coconspirator made in furtherance of the conspiracy.
that the statements were not testimonial.

See United States v.

Sullivan, 455 F.3d 248, 258 (4th Cir. 2006).

5

It follows

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

court’s

refusal

closing

argument.

address

to

Tejada’s

allow

him

During

to

challenge
display

Tejada’s

to

his

closing

the

district

tattoos

argument,

during
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

testimony.

the

intention

of

casting

doubt

upon

a

witness’

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

Date Filed: 09/06/2011

find

the

district

Page: 7 of 7

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.
dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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