Case: 13-11511   Date Filed: 01/17/2014   Page: 1 of 16


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11511
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:12-cr-00212-SCJ-LTW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                      versus

PAUL RUDOLPH MCGOWAN,
a.k.a. Paul Rudolph McGowen,
a.k.a. Gary Horatio Matthew,
a.k.a. Gary Hatio Matthew,
a.k.a. Stephen Walters,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (January 17, 2014)
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Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

       Paul Rudolph McGowan is a citizen of Jamaica. In 2010, an Immigration

Judge ordered him removed from the United States to Jamaica, and on December

22, 2011, he boarded a plane for Jamaica, having obtained from Jamaica a

temporary passport. McGowan’s stay in Jamaica was brief. On June 19, 2012,

agents of the Department of Homeland Security, Immigration and Customs

Enforcement (“ICE”) got word that McGowan was back in the United States,

obtained a warrant for his arrest, and arrested him shortly thereafter on June 29.1

On July 2, 2012, a Northern District of Georgia grand jury indicted McGowan for

illegally re-entering the United States as a previously removed alien, in violation of

8 U.S.C. §§ 1326(a), (b)(2) (2010). He pled not guilty to the charge and, on

January 22, 2013, stood trial before a jury.

       Two weeks before McGowan’s trial, the Government gave him copies of

several foreign documents, including an Application for Taxpayer Registration

(“Application”) McGowan purportedly executed in Jamaica on March 20, 2012.

An individual submitted the Application to the Jamaican government under the


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         The agents obtained a warrant for McGowan’s arrest on information that he was
wanted by the Rockdale County, Georgia, Sheriff’s Office for possession of a firearm by a
convicted felon. The agents attempted to arrest McGowan on June 22, but he fled on foot. A
week later, the agents were informed that he was residing in a home in Decatur, Georgia. They
approached the home, but McGowan saw them coming and ran into an adjoining wooded area.
The agents subdued McGowan and took him into custody after employing a Taser device.
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name Paul McGowan along with a photocopy of a Florida identification card in

that name, and listed his place of birth as Jamaica. Three days before trial, the

Government provided McGowan with a letter of certification from the

Superintendent of the Jamaican Police, which stated that the Application was a

copy of the original document, which was initially submitted to the Jamaican

Taxpayer Registration Centre Head Office but was transferred to the Jamaican

police in connection with a fraud investigation.

       At the end of the first day of trial, McGowan moved in limine to exclude the

Application, which the Government planned to introduce into evidence the

following day, objecting to the late disclosure of the document and disputing its

authenticity. The District Court admitted the Application as presumptively

authentic without final certification under Federal Rule of Evidence 902(3)(A).

The jury convicted McGowan, and the District Court sentenced him to 90 months’

imprisonment, noting, in part, his extensive criminal history and lack of remorse.

      McGowan appeals both his conviction and sentence. He seeks the vacation

of his conviction and a new trial on three grounds: (1) the Government’s disclosure

of the Application two weeks before trial amounted to discovery violation of

Federal Rule of Criminal Procedure 16 because the court should have continued

the trial or prohibited the Government from introducing the Application; (2) the

court erred in finding the Application authentic; and (3) the admission of the


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Application violated his rights under the Confrontation Clause of the Sixth

Amendment. McGowan also seeks the vacation of his sentence and a new

sentencing proceeding on the ground that his sentence is unreasonable because it is

excessive and resulted from the impermissible “double counting” of one of his

prior convictions. We address these grounds in turn.

                                          I.

      We review discovery rulings for abuse of discretion. United States v.

Campa, 

, 992 (11th Cir. 2008). Rule 16 requires that the government

permit a defendant, upon request, to inspect all documents the government intends

to use in its case in chief. Fed. R. Crim. P. 16(a)(1)(E). Further, the government

has a continuing duty to disclose newly discovered evidence. See Fed. R. Crim. P.

16(c). If the court determines that a party violated Rule 16’s disclosure

requirements with respect to a certain item of evidence, the court may (1) order the

violating party to permit discovery or inspection; (2) grant a continuance,

(3) prohibit the violating party from introducing the evidence, or (4) “enter any

other order that is just under the circumstances.” Fed. R. Crim. P. 16(d)(2).

      While the government may not leave evidence in the hands of a third party

to avoid disclosure, if the evidence is not in the government’s possession, custody,

or control, then it is not subject to discovery. United States v. Brazel, 

, 1150 (11th Cir. 1997) (“Nothing in this record, however, suggests that the


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prosecution deliberately left the [documents] with [the office that held them] to

avoid its discovery obligations.”).

      We conclude that the Government’s disclosure of the Application did not

violate any of the discovery requirements of Rule 16. Although the Government

gave McGowan the Application only two weeks prior to trial, the record shows

that it did so immediately upon receiving the document, after exercising diligence

in trying to obtain it. The prosecutor swore as an officer of the court that she

requested the Application from the Jamaican authorities when she was first

assigned the case in September 2012, requested it again prior to January, and

immediately forwarded it to McGowan once she received it. McGowan presented

no evidence to the contrary.

      Because the Government’s discovery obligation began only once it received

the Application, its disclosure immediately thereafter satisfied Rule 16’s discovery

requirements. We thus find no abuse of discretion in the court’s denial of

McGowan’s motion in limine.

                                          II.

      We review a district court’s decision that a particular piece of evidence has

been properly authenticated for an abuse of discretion. Thus, we will not disturb

the admission of the evidence “on appeal absent a showing that there is no

competent evidence in the record to support it.” United States v. Caldwell, 776


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, 1001 (11th Cir. 1985) (internal quotation marks omitted) (discussing

authentication through extrinsic evidence under Federal Rule of Evidence 901); see

also United States v. Koziy, 

, 1322 (11th Cir. 1984) (discussing self-

authentication under Federal Rule of Evidence 902(3)).

      Authenticity is a prerequisite of admissibility. See Fed. R. Evid. 901. A

party may authenticate, or lay the foundation for, a document through extrinsic

evidence, as contemplated under Federal Rule of Evidence 901, or a document

may be self-authenticating under Rule 902. See Fed. R. Evid. 901–02. When a

document is “self-authenticating” under Rule 902, no extrinsic evidence of

authenticity is necessary. Fed. R. Evid. 902.

      A foreign public document is “a document that purports to be signed or [as

in the present case] attested by a person who is authorized by a foreign country’s

law to do so.” Fed. R. Evid. 902(3). There are three ways in which a foreign

public document may be authenticated without additional extrinsic evidence under

Rule 902.

      First, a document may be formally “self-authenticating” under the primary

paragraph of Rule 902(3), which requires a party to provide a final certification

indicating that “the official vouching for the document [the signor or attestor] is

who he purports to be.” United States v. Deverso, 

, 1256 (11th Cir.

2008) (internal quotation marks omitted). Second, where a foreign public

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document lacks the proper final certification required under Rule 902(3)’s primary

paragraph, subsection (A) of Rule 902(3) provides that the document may be

“treated as presumptively authentic” if two conditions are satisfied: (1) the parties

have been a “given a reasonable opportunity . . . to investigate the document’s

authenticity and accuracy”; and (2) “good cause” exists to excuse the missing final

certification. Fed. R. Evid. 902(3)(A). Finally, subsection (B) allows a foreign

public document “to be evidenced by an attested summary with or without final

certification” upon the same showing of good cause and reasonable opportunity for

inspection in subsection (A). Fed. R. Evid. 902(3)(B). “Good cause is a well

established legal phrase[;] [a]lthough difficult to define in absolute terms, it

generally signifies a sound basis or legitimate need to take judicial action.” In re

Alexander Grant & Co. Litig., 

, 356 (11th Cir. 1987) (internal

quotation marks omitted) (discussing good cause in the context of a issuing a

protective order).

      A challenge to the reliability of information contained in a document

authenticated under Fed. R. Evid. 902(3) “goes to the weight of the evidence, not

its admissibility on grounds of authenticity.” 

; see also

(explaining that authentication merely involves

presenting sufficient evidence of a prima facie case of authenticity, and “the trier

of fact [ultimately decides] whether the proffered evidence is in fact what it


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purports to be”).

      To obtain a conviction for illegal attempted reentry under 8 U.S.C.

§ 1326(a), the government must prove that the defendant: (1) was an alien at the

time of the attempted reentry; (2) had previously been deported; (3) had not

received the express consent of the Attorney General to apply for re-admission to

the United States since his previous deportation; and (4) attempted to enter the

United States. United States v. Marte, 

, 1345 (11th Cir. 2004).

      We find no abuse of discretion in the District Court’s treatment of the

Application as presumptively authentic without final certification under Fed. R.

Evid. 902(3)(A). First, McGowan had a reasonable opportunity to inspect the

document. He received the document two weeks in advance of trial and never

contacted the Government with any questions or doubts as to its authenticity

during that time. He asserts that two weeks was insufficient for him to reasonably

inspect the two-page Application, but he neither explains why he was unable to do

so nor presents any evidence demonstrating the same.

      Second, “good cause” excused the final certification requirement under Fed.

R. Evid. 902(3). The uncontroverted evidence showed that the inadequate

certification letter was due to the Jamaican government’s delayed cooperation.

That government provided the certification only three days prior to trial, despite

the prosecution’s diligence in requesting the document months earlier, and thus


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leaving the prosecution no time to obtain an additional certification before trial.

Furthermore, the attaché officer ICE’s Jamaica office, who personally obtained

copies of the Application from the Jamaican police department, the custodian of

the original document, testified to the document’s authenticity. That testimony and

the certification letter, even if insufficient to satisfy the final certification

requirement under Rule 902(3), were nonetheless evidence of the Application’s

authenticity. McGowan failed to present any evidence undermining such

authenticity. In sum, the record contains a “sound basis” underlying the court’s

ruling. See In re Alexander 

.

       To the extent that McGowan attacks the ICE officer’s testimony on the

ground that the officer never spoke with anyone at the Jamaican Taxpayer

Registration Office and did not know whether McGowan was actually the person

who filled out the Application, his argument challenges the reliability of the

information contained in the Application, and thus, goes to the weight of the

evidence, not its authenticity. See, e.g., United States v. Doyle, 

, 545

(2d Cir. 1997).

       Finally, assuming that the court abused its discretion in admitting the

Application, the error was harmless. The Government presented substantial

evidence, beyond the Application, demonstrating McGowan’s alienage.

Specifically, the Government introduced (1) the Immigration Judge’s 2010


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decision ordering McGowan’s removal to Jamaica, (2) the temporary passport the

Jamaican government provided for McGowan’s transportation to Jamaica, which

stated that McGowan had admitted to being a citizen of Jamaica, and (3) ICE’s

certificate of nonexistence, which stated that McGowan was not a legal resident or

naturalized citizen of the United States.


                                            III.

      We review de novo a defendant’s claim that his Sixth Amendment right of

confrontation was denied. United States v. Gari, 

, 1361–62 (11th

Cir. 2009). If we determine that a denial occurred, we will not reverse if the error

was harmless. 

An alleged constitutional error is harmless if it appears

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

verdict obtained.” 

marks omitted). In making this

determination, we consider “the importance of the uncross-examined statements in

the prosecution’s case, whether those statements were cumulative, the presence or

absence of evidence corroborating or contradicting the testimonial statement on

material points, the extent of cross-examination otherwise permitted, and the

overall strength of the prosecution’s case.” 

      The Sixth Amendment’s Confrontation Clause provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. amend. VI. The Clause prohibits the

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introduction of out-of-court statements that are “testimonial,” unless the declarant

is unavailable and the defendant had a prior opportunity to cross-examine the

declarant. Crawford v. Washington, 

, 68, 

, 1374, 158 L.

Ed. 2d 177 (2004).

      Testimonial statements are ones a declarant “would reasonably expect to be

used prosecutorially.” United States v. Charles, 

, 1322 (11th Cir.

2013) (internal quotation marks and alterations omitted). In assessing whether a

statement is testimonial in nature, we look “only at the primary purpose” of the

questions that elicited the statement. United States v. Caraballo, 

,

1229 (11th Cir. 2010) (emphasis in original). In Caraballo, we rejected as

testimonial a standard Immigration and Naturalization Service (“INS”) alien-entry

form, emphasizing that the form was merely a “record of biographical data,” which

the INS routinely generated and primarily used for the purpose of tracking the

entry of aliens into the United States. 

(internal quotation marks

omitted). We further explained, “[i]t is of little moment that an incidental or

secondary use of the interviews [from which the forms were generated] underlying

the [] forms actually furthered a prosecution.” 

      Admission of non-testimonial hearsay against a criminal defendant is not

governed by Crawford, but still violates the Confrontation Clause unless the

statement falls into one of the hearsay exceptions, or otherwise carries a


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particularized guarantee of trustworthiness. United States v. Baker, 

,

1204 (11th Cir. 2005). Hearsay “is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” United States v. Jiminez, 

, 1287 (11th

Cir. 2009) (quoting Fed. R. Evid. 801(c) (internal quotation marks omitted)). The

Rules of Evidence provide that a statement made by a party against whom it is

offered is not hearsay. Fed. R. Evid. 801(d)(2)(A). Thus, a defendant’s own

out-of-court statement is not hearsay and its admission does not violate the

Confrontation Clause. United States v. Brown, 

, 1358–59 (11th Cir.

2006). Similarly a statement “made by a person whom the party authorized to

make [] on the subject” is nonhearsay when offered against the party. Fed. R.

Evid. 801(d)(2)(C).

      In reviewing the admissibility of a hearsay statement, we are not limited to

the ground on which the document was admitted; we may affirm the admission

under any applicable hearsay exception or nonhearsay provision. See United

States v. Williams, 

, 1013 (11th Cir. 1988) (concluding that a

document was an admission by a party opponent, and thus nonhearsay under Rule

801(d)(2), and declining to address parties’ arguments as to whether the document

was a business record under Rule 803(6), the ground on which the district court

relied, noting that either rule was applicable given that the proper foundation had


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been laid); 

(“We may affirm the decision of the district

court on any ground that finds support in the record.”) (discussing challenge to

peremptory strikes).

      Here, in light of the court’s valid finding regarding authenticity, admission

of the Application did not violate McGowan’s rights under the Confrontation

Clause. First, the “statements” in the Application were non-testimonial. The

Government’s witness testified that the purpose of submitting a Taxpayer

Registration Application in Jamaica is to obtain a taxpayer number, the equivalent

of a Social Security number in the United States. Thus, an applicant would not

reasonably expect the form to be used prosecutorially. 

.

Indeed, the Application is analogous to the contested INS form in Caraballo. It

requests “basic biographical information,” and is processed by the Taxpayer

Registration Office for all individuals who apply for a Taxpayer Registration

Number, just as the INS generates its entry form on all aliens who enter the United

States. See 

–29.

      Although McGowan argues that he could have expected the Application to

be used against him, the argument is unavailing because his subjective expectation

is not relevant. Moreover, in light of the Application’s primary administrative

purpose, its subsequent use at McGowan’s trial is “of little moment” and does not

render the Application testimonial. See 

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      Second, the statements in the Application are nonhearsay. Assuming, based

on the instructions and format of the Application, that McGowan personally filled

it out, and was thus the declarant, the statements are nonhearsay as an admission

by a party opponent under Fed. R. Evid. 801(d)(2)(A). Even if the processing

officer filled out the Application from information provided and sworn to by

McGowan, McGowan authorized the officer to “make a statement on the subject,”

likewise rendering the statement nonhearsay under Fed. R. Evid. 801(d)(2)(C).

      Finally, assuming that the court’s admission of the Application violated

McGowan’s rights under the Confrontation Clause, the error was harmless. As

previously noted, the Government presented strong evidence of McGowan’s

alienage, including an admission by McGowan that he was a Jamaican citizen, as

reported by the Jamaican government in McGowan’s temporary passport. In light

of that statement, the Application section that identified McGowan’s place of birth

as Jamaica was simply cumulative evidence of his alienage. And, the Immigration

Judge’s removal order and the temporary passport corroborated the information in

the Application demonstrating McGowan’s alienage.

      In short, even if the District Court erred in admitting the Application, the

error was harmless beyond a reasonable doubt.

                                         IV.




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      McGowan argues that his sentence should be vacated and that the case

should be remanded for resentencing because the sentence is both substantively

unreasonable and the product of improper “double counting.” We review

McGowan’s reasonableness argument for abuse of discretion, United States v.

Hunt, 

, 746 (11th Cir. 2008), and the double counting argument de

novo. United States v. Naves, 

, 1168 (11th Cir. 2001). We consider

these arguments in reverse order.

                                          A.

      In United States v. Adeleke, 

(11th Cir. 1992), we held that, in

the context of the illegal reentry of a previously removed alien, where, as here, a

prior drug conviction increases the defendant’s base offense level pursuant to

U.S.S.G. § 2L1.2 (Unlawfully Entering or Remaining in the United States), and

also counts toward his criminal history, as in the case here, the resulting sentence is

not the product of impermissible double counting. 

Rather, the

calculation is permissible because the purpose of the criminal history category is

“to punish likely recidivists more severely, while the enhancement under § 2L1.2

is designed to deter aliens who have been convicted of a felony from re-entering

the United States.” 

Adeleke plainly forecloses McGowan’s double

counting argument.

                                          B.



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      A sentence is substantively unreasonable if it does not achieve the purposes

of sentencing stated in 18 U.S.C. § 3553(a), including the need for just punishment

and deterrence. United States v. Talley, 

, 788 (11th Cir. 2005). The

weight given to any specific § 3553(a) factor is committed to the sound discretion

of the district court, absent a clear error in judgment. United States v. Gonzalez,

, 1324 (11th Cir. 2008). The applicable Guidelines sentence range

for McGowan’s case calls for 77–96 months’ imprisonment. We ordinarily expect,

but do not automatically presume, that a sentence within the Guidelines range is

reasonable. 

not tarry long in concluding that McGowan’s sentence is

substantively reasonable. Considering McGowan’s propensity for reentry, his

steady criminal history and lack of remorse for his criminal conduct, the District

Court’s imposition of a sentence within the Guideline’s sentence range was clearly

appropriate to promote respect for the law, provide just punishment, and deter

McGowan from further criminal activity. See 18 U.S.C. § 3553(a)(2).

                                         V.

      For the reasons we have stated, McGowan’s conviction and sentence are

      AFFIRMED.




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