[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________

No.12-12319

Non-Argument Calendar

__________________________

D.C. Docket No. 1:11-cr-20537-UU-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RYLAN A. FORBES,

Defendant-Appellant.

__________________________

Appeal from the United States District Court

for the Southern District of Florida

__________________________

(January 15, 2013)

Before CARNES, MARTIN and COX, Circuit Judges.

PER CURIAM:

Rylan A. Forbes appeals his conviction for attempted illegal reentry into the

United States in violation of 8 U.S.C. § 1326(a) and (b)(2). We affirm.

Case: 12-12319 Date Filed: 01/15/2013 Page: 1 of 5 
2

I.

The Indictment charged Forbes with knowingly attempting to reenter the 

United States illegally. At Forbes’s trial, the Government’s chief witness was 

Patrick Brown. Brown testified that he met Forbes while the two were on a boat 

trying to be smuggled into the United States. 

This appeal focuses on Brown’s testimony concerning three out-of-court 

statements. First, Brown testified that a man named Billy, who Brown had helped 

load marijuana onto a boat before meeting Forbes, said that his boat was not going 

to smuggle people into Miami. Second, Brown testified that other passengers on 

the boat said that they thought an island in the Bahamas was the United States. 

And third, Brown testified that one of the captains of the boat, Paulino, stated that 

the vessel needed to leave quickly because immigration officials were onto them. 

Forbes objected to each of these statements as hearsay. The district court 

overruled the objections, concluding that the statements fell under the 

coconspirator hearsay exclusion found in Federal Rule of Evidence 801(d)(2)(E).1

The court did not give the jury an instruction on the defense of mistake, and 

none was requested. 

 

1 The district court did not specify its reasoning for overruling the objections to Brown’s 

testimony about a statement made by a passenger and Paulino’s statement. But both parties 

agree that the court relied on the coconspirator exclusion from hearsay.

Case: 12-12319 Date Filed: 01/15/2013 Page: 2 of 5 
3

II.

Forbes makes two arguments on appeal: (A) that the district court abused its 

discretion when it admitted out-of-court statements under the coconspirator 

hearsay exclusion and (B) that the district court plainly erred when it failed to sua 

sponte give a jury instruction on the defense of mistake. We consider each in turn. 

A.

Forbes contends that the district court erred when it admitted Brown’s 

testimony about three out-of-court statements under the coconspirator hearsay 

exclusion. 

We review a preserved challenge to the admissibility of evidence for an 

abuse of discretion. United States v. Gamory, 635 F.3d 480, 492 (11th Cir. 2011).2

 

Even if a district court abuses its discretion, however, a harmless error will not 

result in reversal. Id. An error is harmless when it does not affect the substantial 

rights of the defendant, such that we can say with “fair assurance, after pondering 

all that happened without stripping the erroneous action from the whole, that the 

judgment was not substantially swayed by the error.” Id. (quoting Kotteakos v. 

United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 1248 (1946)). 

 

2 The Government argues that the issue should be reviewed only for plain error because 

Forbes did not state with specificity the grounds for his objections at trial. In this circuit, 

however, an objection only needs to be raised in such a way that the trial court cannot 

misunderstand it. United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006). Here, the district 

court was aware of the grounds for the objection. We therefore review the district court’s 

admission of the statements for an abuse of discretion. 

Case: 12-12319 Date Filed: 01/15/2013 Page: 3 of 5 
4

An out-of-court statement offered for its truth against a defendant is not 

hearsay if the statement was made by the defendant’s coconspirator during and in 

furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E). The government bears 

the burden of proving by a preponderance of evidence that a conspiracy existed 

between the declarant and the defendant and that the statement was made during 

and in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 

175–76, 107 S. Ct. 2775, 2778–79 (1987). 

Even if we were to assume that the district court abused its discretion in 

admitting Brown’s testimony concerning these statements, such errors were

harmless. Forbes’s conviction was not “swayed by the error.” The Government 

presented substantial evidence that Forbes had the knowledge and intent to reenter 

the United States. Forbes told Brown that he had paid $5,000 for the trip to the 

United States. Forbes also told Brown that he planned to purchase equipment for 

his business upon his arrival into the country. During the voyage, Forbes and the 

other passengers were instructed to turn off all lights and cell phone batteries to 

evade the Coast Guard. 

B.

Next, Forbes argues that the district court plainly erred when it failed to sua 

sponte charge the jury on the defense of mistake. 

Case: 12-12319 Date Filed: 01/15/2013 Page: 4 of 5 
5

Because Forbes failed to request a jury instruction on mistake, both parties 

agree that we review this issue for plain error. To demonstrate plain error, a 

defendant must show that there is (1) error (2) that is plain (3) that affects 

substantial rights and (4) that seriously affects the fairness, integrity, or reputation 

of judicial proceedings. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 

2007). 

The district court did not err in failing to give an instruction on the defense 

of mistake. Without a request, the district court was not obligated to give such an 

instruction. Further, the instructions that the court gave sufficiently explained that 

if the jury believed that Forbes was mistaken about the boat’s destination, the jury 

should not convict him. Specifically, the court charged the jury that it had to find 

that Forbes acted “knowingly.” The court defined “knowingly” as “an act [ ] done 

voluntarily and intentionally and not because of mistake or accident.” (R.6 at 243-

44.) Thus, the court adequately presented the issue of mistake to the jury. 

AFFIRMED.

Case: 12-12319 Date Filed: 01/15/2013 Page: 5 of 5