Case: 14-10379    Date Filed: 11/14/2014   Page: 1 of 4


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-10379
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 9:12-cr-80025-KAM-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

HERNANDEZ BANKS,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                             (November 14, 2014)

Before HULL, MARCUS, and MARTIN, Circuit Judges.

PER CURIAM:

     Hernandez Banks appeals his convictions for one count of knowingly
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receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), one

count of knowingly distributing child pornography, in violation of 18 U.S.C.

§ 2252(a)(2) and (b)(1), and one count of knowingly possessing child pornography,

in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). On appeal, he argues that the

district court abused its discretion when it excluded testimony about out-of-court

statements made by Banks’s younger brother, referred to in the proceedings as B.T.

According to this testimony, B.T. had previously stated that a person other than

Banks had shown B.T. how to access and view child pornography on Banks’s

computer. Banks argues that the district court should have admitted the testimony

as a statement against penal interest under Federal Rule of Evidence 804(b)(3), and

that the district court erred in finding the statements were not inculpatory. After

careful consideration, we affirm the district court because any error was harmless.

      We review the district court’s rulings on admission of evidence for abuse of

discretion. United States v. Gibson, 

, 1275 (11th Cir.), cert. denied,

___ U.S. ___, 

(2013). However, “[i]n a case involving non-

constitutional evidentiary errors, we read these rules of evidence and criminal

procedure along with the federal harmless-error statute, 28 U.S.C. § 2111, which

requires that ‘the court shall give judgment after an examination of the record

without regard to errors or defects which do not affect the substantial rights of the

parties.’” United States v. Frazier, 

, 1266 n.20 (11th Cir. 2004) (en


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banc). Errors only “affect a substantial right of a party if they have a ‘substantial

influence’ on the outcome of a case or leave ‘grave doubt’ as to whether they

affected the outcome of a case.” 

v. United States, 

, 764–65, 

, 1248 (1946)).

      Banks argues that the district court abused its discretion in excluding

testimony about B.T.’s statement that someone other than Banks showed him how

to access child pornography on Banks’s computer. But even if the district court

did abuse its discretion by excluding B.T.’s statement, that error would not leave

us with “grave doubt” about the outcome of the case. The evidence connecting

Banks to the child pornography—especially the temporal proximity of access to

child pornography on Banks’s computer and activity in Banks’s personal e-mail

account, university student account, and Facebook and YouTube accounts, and the

fact that access to child pornography never occurred when Banks was at work or

school—was overwhelming. On top of that, the jury heard evidence that Banks

admitted in an interview to FBI agents before trial that he had “used [Limewire] to

download and view child porn[ography].” Finally, the district court did not

exclude all of B.T.’s testimony that Banks offered; it allowed testimony regarding

other statements made by B.T. that “he viewed child pornography on the

computers at his home.” See 

n.20 (finding that an

evidentiary error was harmless because, among other things, “the district court did


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not exclude all of [the declarant’s] testimony”). In light of the foregoing, the

district court’s decision to exclude portions of B.T’s statement did not have a

substantial influence on the outcome of the case, and any district court error was

harmless.1

       AFFIRMED.




       1
         Because we find any error to be harmless, we need not and do not address whether any
error occurred: namely, whether the district court abused its discretion by excluding portions of
B.T.’s statements.
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