Case: 13-15110   Date Filed: 01/21/2015   Page: 1 of 20


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-15110
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20008-CMA-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DANIEL RODRIGUEZ,
a.k.a. Morgie,
LOUIS ROBINSON,
a.k.a. Big Lou,

                                                        Defendants-Appellants.

                       ________________________

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

                            (January 21, 2015)

Before TJOFLAT, WILSON and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Following a jury trial, Daniel Rodriguez and Louis Robinson were convicted

of conspiracy to commit Hobbs Act robbery, under 18 U.S.C. § 1951(a), two

substantive counts of Hobbs Act robbery, under the same, and discharging a

firearm during and in relation to a crime of violence, under 18 U.S.C.

§ 924(c)(1)(A)(iii). Rodriguez and Robinson, along with others, participated in a

string of armed and unarmed robberies of retail stores in South Florida. In one of

those robberies, Robinson shot the clerk of a jewelry store. Both defendants appeal

their convictions and total life sentences.

                                               I.

      Robinson and Rodriguez both argue that the district court erred in admitting

the expert testimony of an FBI agent, David Magnuson, concerning cell-site data

that placed them at the scenes of several of the robberies. They specifically

challenge the court’s failure to hold a Daubert 1 hearing before qualifying him as an

expert.

      We generally review decisions regarding the admissibility of expert

testimony for abuse of discretion. United States v. Frazier, 

, 1258

(11th Cir. 2004) (en banc). Abuse-of-discretion review applies not only to the

decision of whether evidence is admissible, but also to what proceedings the court



      1
          Daubert v. Merrell Dow Pharm., Inc., 

, 

(1993).

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uses to reach that determination. Kumho Tire Co., Ltd. v. Carmichael, 

, 152, 

, 1176 (1999).

      We have previously held that the overruling of a motion in limine does not

preserve an evidentiary issue for appeal. United States v. Rutkowski, 

,

598 (11th Cir. 1987) (per curiam). Rather, an objection at trial is required to

preserve an issue. 

has noted that a motion in limine is insufficient to

preserve an evidentiary issue because it may address hypothetical concerns that

may not arise during the course of a trial. United States v. Khoury, 

,

966 (11th Cir. 1990), modified on other grounds, 

(11th Cir. 1990).

However, as of the 2000 amendments, the Federal Rules of Evidence state that a

“definitive” pre-trial ruling need not be renewed to preserve the issue for appeal.

Fed. R. Evid. 103(b).

      Federal Rule of Evidence 702 governs the admissibility of expert testimony.

A qualified witness may offer expert testimony if: (a) the witness’s scientific,

technical or specialized knowledge is helpful to a trier of fact; (b) the testimony is

based on sufficient facts or data; (c) the testimony is the product of reliable

principles and methods; and (d) the witness reliably applied the principles and

methods to the facts of the case. Fed. R. Evid 702. Under Daubert, the trial court

must determine whether an expert’s testimony is based on reasoning or

methodology that is scientifically valid and whether that methodology can be


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applied to the facts at issue. 

–93, 113 S. Ct. at 2796; see

also Kumho Tire 

, 119 S. Ct. at 1171 (clarifying that Daubert

applies to all expert testimony, not just scientific testimony). Kumho Tire Co.

makes clear, however, that while the court must serve as a gatekeeper, it need not

conduct a formal hearing “where the reliability of an expert’s methods is properly

taken for granted . . . 

, 119 S. Ct. at 1176.

      As an initial matter, while the government argues otherwise, we treat this

issue as preserved. The district court issued a definitive pre-trial ruling on the

admissibility of Magnuson’s testimony. Accordingly, the defendants were not

required to renew their pre-trial objection to his status as an expert. See Fed. R.

Evid. 103(b).

      As to the Daubert issue, it is clear that a district court need not conduct a

Daubert hearing where one would be unnecessary. See Kumho Tire Co., 526 U.S.

at 

. The court here, in large part, declined to hold a hearing

because it had available to it the testimony of the same witness, on the near

identical issue, from a case before a different judge in the same court. Rodriguez

and Robinson, neither here nor below, have argued that the two cases presented a

different question. If anything, the testimony in this case was less controversial

than in the previous case, as Magnuson did not testify here that a cell phone call

necessarily connects to the nearest tower, but more generally testified that a cell


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phone cannot connect to a tower that is outside its range, and stated that his maps

were based on estimates of cell phone ranges. The minimal reliability of that

conclusion, required by Daubert, could be said to be “properly taken for granted,”

such that a hearing was not warranted. See Kumho Tire Co., 526 U.S. at 

. Accordingly, we conclude that the district court did not abuse its

discretion in not holding a Daubert hearing.

      We also note that we will not consider Robinson’s argument that the cell site

data collection violated his Fourth Amendment rights. We will not consider issues

raised for the first time in a reply brief. See United States v. Britt, 

,

1104–05 (11th Cir. 2006) (per curiam).

                                          II.

      Rodriguez next argues that the court erred in admitting certain out-of-court

statements against him. The statements were made by a now-deceased

co-conspirator, and were testified to by that co-conspirator’s girlfriend. The court

admitted the statements under the forfeiture by wrongdoing hearsay exception,

found in Fed. R. Evid. 804(b)(6). Rodriguez argues that the admission violated the

Rules of Evidence and his Confrontation Clause rights.

      We review evidentiary rulings for an abuse of discretion. United States v.

Henderson, 

, 1297 (11th Cir. 2005). Under abuse-of-discretion

review, we will affirm even if we would have reached a different conclusion, so


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long as the district court’s ruling fell within a range of possible conclusions and did

not involve a clear error of judgment or an incorrect legal standard. United States

v. Lyons, 

, 1255 (11th Cir. 2005).

      Under the Federal Rules of Evidence, hearsay statements are generally not

admissible unless otherwise provided. Fed. R. Evid. 802. One exception to the

general hearsay rule is that hearsay testimony is admissible where it is “offered

against a party that wrongfully caused . . . the declarant’s unavailability as a

witness, and did so intending that result.” Fed. R. Evid. 804(b)(6). The

government must demonstrate that the exception applies by a preponderance of the

evidence. United States v. Zlatogur, 

, 1028 (11th Cir. 2001) (per

curiam). In a case that did not directly involve the application of the Federal Rules

of Evidence, the Supreme Court suggested that Rule 804(b)(6)’s intent requirement

means that the exception applies only where the defendant acts with the purpose of

making the witness unavailable. Giles v. California, 

, 367–68, 128 S.

Ct. 2678, 2687–88 (2008). Giles primarily involved the common-law

forfeiture-by-wrongdoing exception to the Sixth Amendment’s Confrontation

, 128 S. Ct. at 2681.

      The Supreme Court has made clear that a violation of a court’s hearsay rules

does not necessarily mean that a defendant’s Sixth Amendment confrontation

rights have been violated. California v. Green, 

, 155–56, 

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1930, 1933–34 (1970). The admission of hearsay can implicate the Sixth

Amendment, however, where the hearsay is “testimonial” in nature. Crawford v.

Washington, 

, 53–54, 

, 1365 (2004). Having not

defined “testimonial” in Crawford, the Supreme Court later refined the test,

explaining that hearsay was “testimonial” where it was made with the “primary

purpose . . .to establish [facts] potentially relevant to later criminal prosecution.”

Davis v. Washington, 

, 822, 

, 2273–74 (2006). The

“primary purpose” of a statement should be evaluated objectively based upon

circumstances and not upon the subjective intent of the individuals involved.

Michigan v. Bryant, 

, 1156 (2011).

      As an initial matter, we conclude that the Confrontation Clause was not

implicated here as the challenged statements were not testimonial in nature. See

–54, 124 S. Ct. at 1365. Those statements plainly were

not made with the primary purpose of aiding in a criminal investigation, as they

were from private conversations Washington had with his girlfriend outside the

trial context. See 

, 126 S. Ct. at 2273–74. Accordingly, the

Confrontation Clause was not implicated in this case, and our analysis of any error

begins and ends with the Federal Rules of Evidence.

      In a pre-trial hearing, Rodriguez did not dispute that he was recorded as

saying that he killed the co-conspirator “because [the co-conspirator] was a rat and


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he was cooperating.” Rodriguez did argue that the circumstances of the statements

suggested that he may have been embellishing his credentials to someone who

turned out to be a confidential informant. Beyond that, Rodriguez pointed to no

evidence suggesting that he did not kill the co-conspirator or that he did so for a

reason other than to make him unavailable to testify. While the government had

the burden of demonstrating the applicability of the hearsay exception by a

preponderance of the evidence, the fact that Rodriguez admitted to the killing, and

stated that he killed Washington “because he was a rat,” without any contrary

evidence, met that burden. See 

. Accordingly, it was

not an abuse of discretion for the district court to have concluded that the

statements were admissible. See 

. The fact that the

evidence suggests that Rodriguez had the intent to prevent the co-conspirator from

divulging information regarding the criminal activities in question here is sufficient

for the hearsay exception to apply. See Fed. R. Evid. 804(b)(6).

      Robinson purports to adopt Rodriguez’s argument as to this issue. As it is

contained in Rodriguez’s brief, the issue is specific to Rodriguez and does not

apply to Robinson. Robinson provides no additional argument, and he fails to

specify how the issue applies to him. Accordingly, we will not consider this issue

as to Robinson. See United States v. Esquenazi, 

, 929 n.11 (11th




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Cir.), cert. denied, 

(2014) (explaining that a party cannot broadly

adopt an issue that is individualized to another defendant).

                                         III.

      Robinson argues that the testimony discussed in Issue II violated his

Confrontation Clause rights, as they implicated him in the offense even though he

was not implicated in the killing of the co-conspirator. He bases his argument on

Bruton v. United States, 

, 

(1968).

      We review evidentiary rulings, such as those on Bruton claims, for abuse of

discretion. United States v. Turner, 

, 1275 (11th Cir. 2007). “For

violations of the Confrontation Clause, harmless error occurs where it is clear

beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.” United States v. Caraballo, 

, 1229 n.1 (11th Cir.

2010) (internal quotation marks omitted).

      As discussed above, the co-conspirator’s statements, made to his girlfriend,

were not testimonial in nature. Accordingly, the admission of the statements does

not implicate the Confrontation Clause. See 

–54, 124 S.

Ct. at 1365. We have not yet addressed, in a published case, whether an

out-of-court statement must be testimonial for Bruton to apply. However, we

conclude that, as Bruton was premised on the Confrontation Clause, its protections

only apply to testimonial statements. Every other Circuit to have considered the


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issues has concluded the same. See, e.g., United States v. Berrios, 

,

128–29 (3d Cir. 2012); United States v. Castro-Davis, 

, 65–66 (1st Cir.

2010); United States v. Smalls, 

, 768 n.2 (10th Cir. 2010); United

States v. Johnson, 

, 325–26 (6th Cir. 2009); United States v. Avila

Vargas, 

, 1008–09 (8th Cir. 2009).

      Accordingly, here, there was no Bruton error. Robinson does not raise any

argument that a severance was warranted outside of the Bruton context, and any

such viable argument has been abandoned. See United States v. Jernigan, 

, 1283 n.8 (11th Cir. 2003).

                                         IV.

      Robinson next argues that the district court should have ordered a mistrial

based on the purported burden-shifting by the government in its closing argument.

The government argued Robinson could not provide a viable innocent explanation

for his presence in a pawn shop selling jewelry shortly after a robbery.

      We review an argument that the government improperly shifted the burden

of proof through questioning or argument, a type of prosecutorial misconduct, de

novo. United States v. Schmitz, 

, 1266–67 (11th Cir. 2011). To

reverse based on improper prosecutorial comments, we must conclude that the

comments in question prejudicially affected the substantial rights of the defendant.

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      “[P]rosecutors must refrain from making burden-shifting arguments which

suggest that the defendant has an obligation to produce any evidence or to prove

innocence.” United States v. Simon, 

, 1086 (11th Cir. 1992). Where

such an argument “permeates the entire atmosphere of the trial,” we will reverse

for prosecutorial misconduct. 

marks omitted). The

prejudice that results from burden-shifting comments can be cured by a court’s

instructions regarding the burden. 

.

      Here, the challenged comments did not suggest that Robinson had any

burden. Rather, it stated that, contrary to any argument that Robinson might

advance, the evidence showed that Robinson was not at the pawn shop for an

innocent reason. That comment is more about the strength of the government’s

evidence than Robinson’s failure to explain himself and prove his innocence.

      Even assuming, arguendo, that the government’s comments were improper,

there would be no reversible error here. As conceded by Robinson, the

government’s challenged argument, consisting of one statement, did not

“permeate” the trial. See 

. Further, the risk of confusing

the jury was small, and any such risk could have been, and was, obviated by the

use of curative instructions, both from the court and the government’s own rebuttal

closing. See 

.

                                          V.


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       Rodriguez next argues that the district court erred in improperly instructing

the jury as to aiding and abetting liability for a § 924(c) offense, and that there was

insufficient evidence to convict him of aiding and abetting Robinson’s discharge of

a gun. The trial was held before the Supreme Court clarified the standard for

aiding and abetting a § 924(c) crime in Rosemond v. United States, 

, (2014).

       Where a party did not object to a jury instruction in the district court, we

review the instruction for plain error. United States v. Prather, 

,

1270 (11th Cir. 2000). Plain error is: “(1) [an] error; (2) that is plain and (3)

affects substantial rights . . .but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” 

(internal quotation marks omitted). The defendant has the burden of satisfying the

plain-error rule, including, under the third prong, showing that the probability of a

different result is sufficient to undermine confidence in the outcome of the

proceeding. See United States v. Rodriguez, 

, 1304–05 (11th Cir.

2005). Where the court fails to submit a material element to the jury, even if that

error is plain, the error fails to meet the fourth prong of plain error review where

the evidence of the omitted element was “overwhelming and essentially

uncontroverted.” United States v. Cotton, 

, 632–33, 

,

1786 (2002) (internal quotation marks omitted). Reviewing for plain error, we


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have held that the failure to instruct a jury on an essential element of an offense is

harmless when it is clear beyond a reasonable doubt that a rational jury would have

convicted if properly instructed. United States v. Gutierrez, 

, 471

(11th Cir. 2014). Further, when applying plain error review, we may affirm a

conviction where one of two multiple theories of liability was incorrectly

instructed, so long as we are firmly convinced that the jury based its verdict on a

properly instructed ground. United States v. Range, 

, 619–20 (11th

Cir. 1996) (affirming a § 924(c) conviction even though the instructions contained

a flaw as to one alternative theory of liability).

      It is illegal to use or carry a firearm during and in relation to a crime of

violence or to possess a firearm in furtherance of such a crime. 18 U.S.C.

§ 924(c)(1)(A). Where the firearm is discharged, a minimum ten-year sentence,

consecutive to the sentence for the underlying crime of violence, is required. 

Generally, anyone who aids or abets anyone in committing a

federal offense is punishable as if he had committed the offense. 

      In order to be found guilty for aiding or abetting a crime, the government

must prove that the defendant (1) took an affirmative act in furtherance of the

offense, and (2) had the intent of facilitating the offense’s commission. 

. To meet the first prong, there need only be proof that the

defendant took an affirmative act in furtherance of the underlying “crime of


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violence” offense, as the commission of a crime of violence (or drug trafficking

offense) is an essential element of a § 924(c) offense. 

at 1247. To

meet the second prong in this situation “an active participant in a drug transaction

has the intent needed to aid and abet a §924(c) violation when he knows that one of

his confederates will carry a gun.” Id.,134 S. Ct. at 1249.

      Under the Pinkerton 2 doctrine, § 924(c) liability may be imposed upon a

defendant for the reasonably foreseeable actions of his co-conspirators. United

States v. Diaz, 

, 1098–1100 (11th Cir. 2001). Diaz made clear that

Pinkerton liability was distinct from aiding and abetting liability, and it specified

that one could be found guilty under a Pinkerton theory even if he did not aid and

abet the offense. 

      As conceded by the government, in light of the intervening Rosemond

decision, the jury instructions on aiding and abetting were plainly insufficient as

applied to the § 924(c) count. The court instructed that a co-conspirator could be

convicted of an offense under a theory of aiding and abetting, and alternatively

instructed on Pinkerton liability where it was reasonably foreseeable that another

member of a conspiracy would commit an offense. The pattern charge on aiding

and abetting did not in any way communicate the notion of advance knowledge

concerning the firearm. Rosemond held that, for a § 924(c) offense, an aider or


      2
          Pinkerton v. United States, 

, 

(1946).
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abettor must have sufficient actual advance knowledge that a gun would be used

such that he could withdraw from the offense. See 

–

50. The jury instructions, therefore, allowed the jury to convict Rodriguez under

an aiding and abetting theory without finding that he had actual knowledge that a

cohort would have a gun with him. As Rodriguez did not object to the correctness

of the aiding and abetting instruction below, we review for plain error. See

.

      There was legally sufficient evidence upon which a properly instructed jury

could have found Rodriguez guilty of aiding and abetting a § 924(c) offense. As

the government points out in its brief, Rodriguez had some role in the planning of

the robberies, the robberies appeared carefully orchestrated, and the robbers

generally traveled in one car to each robbery. Further, there was evidence of three

armed robberies, suggesting that Rodriguez must have known that a gun would be

used in, at the very least, the latter two events. However, the Count 3 § 924(c)

offense specifically charged the Count 2 robbery of the ABC Jewelry store (the

only charged robbery where a gun was actually discharged) as the underlying

crime of violence. Of the armed robberies discussed at trial, the ABC Jewelry

store was the first in time. The fact that there were multiple armed robberies does

not carry as much weight here as it otherwise might have had the charged offense

occurred after another armed robbery. The fact that Rodriguez continued to


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partake in the robberies after the ABC robbery suggests that he knew going in that

a gun would be used, but it does not establish beyond a reasonable doubt that a

rational jury necessarily would have reached that conclusion. See 

. The evidence that Rodriguez bought bullets for his own gun also

suggests that Rodriguez was not opposed to using a gun, but it does not do much to

support a conclusion that he knew the ABC Jewelry robbery would be an armed

robbery.

      Standing alone, there was not enough evidence to say, beyond a reasonable

doubt, that a rational and properly instructed jury would have convicted Rodriguez

for aiding and abetting the commission of the Count 3 charge. See 

. Aiding and abetting, however, was not the only theory under which

the jury was permitted to find Rodriguez guilty of Count 3. The court instructed

the jury as to Pinkerton liability, and the government, in discussing the § 924(c)

charge in closing, appeared to rest solely on Pinkerton liability. The evidence

discussed above does make it clear beyond a reasonable doubt that a rational jury

would have convicted Rodriguez on the basis that it was reasonably foreseeable to

him that a co-conspirator would have a gun. Therefore, the court’s instructional

error was harmless. See 

; see also Dean v. United

States, 

, 572–74, 

, 1853–54 (2009) (holding that the

enhanced minimum sentence for discharging a firearm requires no additional mens


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rea specific to the firing of the gun). Applying plain-error review, we affirm

despite the instructional error, because the record makes clear that the jury

convicted Rodriguez under a Pinkerton theory of liability. See 

–20.

                                         VI.

      In his only challenge to his life sentence, Rodriguez argues that there was no

evidence that he had a leadership role in the robberies. Accordingly, the U.S.S.G.

§ 3B1.1(a) four-level enhancement should not have been applied. Robinson

purports to adopt this issue.

      We review the enhancement of a defendant’s offense level based on his role

as an organizer or leader as a finding of fact reviewed for clear error. United States

v. Rendon, 

, 1331 (11th Cir. 2003). At sentencing, the government

bears the burden of proving by a preponderance of the evidence that the defendant

played an aggravating role in the offense. United States v. Yeager, 

,

1226 (11th Cir. 2003). A defendant’s failure to object to facts contained in a PSI

constitutes an admission to those facts. United States v. Bennett, 

,

833–34 (11th Cir. 2006) (per curiam).

      The Sentencing Guidelines call for a four-level enhancement where the

defendant was an organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive. U.S.S.G. § 3B1.1(a). The


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guidelines commentary instructs that, in deciding whether someone was an

organizer or leader, the following factors are relevant:

             the exercise of decision making authority, the nature of
             participation in the commission of the offense, the
             recruitment of accomplices, the claimed right to a larger
             share of the fruits of the crime, the degree of participation
             in planning or organizing the offense, the nature and
             scope of the illegal activity, and the degree of control and
             authority exercised over others.

cmt. n.4. There is no requirement that all of those factors must be

present to warrant the enhancement. United States v. Martinez, 

,

1026 (11th Cir. 2009). The commentary also states that more than one person can

be considered an organizer or leader of an offense and that the adjustment does not

apply to someone who merely suggests the commission of an offense. U.S.S.G.

§ 3B1.1 cmt. n.4); see also United States v. Ndiaye, 

, 1304 (11th Cir.

2006).

      In order to warrant the § 3B1.1 enhancement, there must be evidence of both

a leadership role and an extensive operation. United States v. Yates, 

, 1181–82 (11th Cir. 1993) (per curiam). In Martinez, we held that a

defendant’s admission that he “orchestrated” drug shipments was not sufficient to

warrant the enhancement. 

–29. Rather, Martinez made

clear that the enhancement required a showing of a “necessary hierarchical

relationship.” 

In another case, however, specific evidence that the


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defendant had directed the activities of several co-conspirators was sufficient for

the enhancement. United States v. Mesa, 

, 1170 (11th Cir. 2001);

see also 

(affirming the enhancement where the evidence

showed that the defendant recruited and instructed at least two co-conspirators).

      Here, the evidence that Rodriguez was an organizer or leader is not

overwhelming. Rodriguez’s statement or boast that he could call up people to

commit a robbery does suggest that he had some planning role in the offenses.

However, that statement is not significantly more specific than the statement in

Martinez that the defendant “orchestrated” drug shipments. See 

–29. Further, while Rodriguez did not contest that he made the

statement, there does not appear to be any evidence that Rodriguez actually

planned one of the robberies in that fashion. Also, when considering that

statement, it is important to note that the mere suggestion of an offense does not

warrant the enhancement. U.S.S.G. § 3B1.1 cmt. n.4.

      Other evidence, however, supports the imposition of the enhancement. The

unchallenged fact that Rodriguez paid someone to set fire to a car used in one of

the robberies is direct evidence that Rodriguez had some planning role in the

offenses. Rodriguez also recruited an accomplice to join in on one of the already

planned robberies, and did so by more than merely suggesting that a crime could

be committed. In conversations with a confidential informant, Rodriguez


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discussed obtaining rental cars to use during robberies, further suggesting

Rodriguez’s planning role in the robberies.

      While not overwhelming, as detailed above, there is some evidence that

Rodriguez was an organizer or leader of the offense, particularly with regard to

recruiting accomplices and planning the robberies. See U.S.S.G. § 3B1.1 cmt. n.4.

Accordingly, we conclude that there was no clear error below in imposing the

four-level enhancement.

      Robinson cannot be said to have actually presented this issue on appeal. As

with the hearsay issue above, Robinson merely stated that he adopted Rodriguez’s

argument on this issue, and does not present any additional argument. A

determination of whether a defendant was an organizer or leader is inherently

defendant-specific, and, therefore, we will not consider the issue as to Robinson,

who failed to raise any argument, specific to him, that the enhancement was

improper. See 

n.11.

      AFFIRMED.




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