### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 19, 2003 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-14977 Non-Argument Calendar

________________________ D.C. Docket No. 99-03257-CV-WMH UNITED STATES OF A MERICA Plaintiff-Appellee,

versus ROBERTO DURAN SAMANIEGO, Defendant, LUIS GONZALEZ BAEZ, Defendant-Appe llant.

__________________________ Appeal from t

he United States D

istrict Court for t

he Southern District of Florida

_________________________ (September

19, 2003)1 As Duran told the story in 1998: I was 14 or 15 . . . in my mother’s home town of Guarare . . . . There was a fiesta. I had $150 in my pocket, which was a lot of money for me, and we were all drinking whiskey. There was a girl sitting next to me, teasing me, and I felt like a big shot. But I was running out of money to buy alcohol when someone said, “Yo

u call yourself Manos de Piedra (Hands of Stone), I betcha a bottle of whiskey and $50 y ou can’t knock out that hors

e.” . . . My

uncle, Socrates

Garcia was his

name, pulled me aside. “I got a secre

t,” he s aid. He told me to punch the horse behind the ear and “that horse will go down.” He did. But I ripped my hand open. You could see right through to the bone. But I didn’t feel any pain. I

didn’t go to the hospital. I stayed with the girl all n

ight and didn’t g

et one kiss. Michael Katz, Duran is Still Horsing Around , N.Y. Daily News, June 2, 1998, at 75.

2 Before TJOFL

AT, BIRCH a

nd CARNES, Ci

rcuit Judges: CARNES, Circuit Judge: Like the brute Mongo in Mel Brooks’s 1974 comedy classic Blazing Saddles , Roberto Duran on ce knocked out a horse

with a single punch. 1 That horse, as well as

countless human o

pponents who suffere

d the same fate

in the streets and back all

eys of Panam

a where Duran gr

ew up, are not inc

luded in his career total of 10

4 officially sa

nctioned boxing wins – 69 o f them by kno ckout – against only 16 loss es. Born into poverty

, Roberto Duran gr

ew up fighting on the st

reets where he earned the nicknam

e “Manos de Pie

dra” – Hands of Sto

ne. He started hi s professional boxing career at the age of 15 or 16. In 1972, when only 21 years3

old, Duran won the

lightweight cham

pionship of the world by knocking out Ken Buchanan in the thirt

eenth round. As a lightweight, he achieved a near perfect record of 62 wins in 63 contests, which explains why Duran is widely regarded as one of the greatest bo xers in that weight ca tegory in the history of th e sport. He held the lightweight t

itle from 1972 to

1979, when he put it do

wn in order to fight as a welterweight. Duran captured the

welterweight ch

ampionship in 1980 w

ith a fifteen-roun

d decision over Sugar Ray Leonard. Five months later Leonard took that title back from Duran,

who conceded the fi

ght in the eighth round by muttering wha

t would become two of

the most infam

ous words in boxing histor y: “no m as.” Like a true champ, howev

er, Duran got up of

f the mat of tha

t embarrassin

g defeat to win championships in tw

o more weight c

lasses, defeating

Davey Moore i

n 1983 for the junior middlew

eight title and then,

at age 37, defeat

ing Iran Barkley

for the middleweight ti

tle in 1989. He was the first boxer to win cham

pionships in four different weight clas ses. Even hands of stone don ’t last forever , and no one can out box t ime. The damage done by the pounding Duran had taken in the ring over the years was exacerbated in 2001 b

y a car crash

in Argentina in whi

ch he suffered brok

en ribs and a punctured lung. In February of 2002, at the age of 5 0, Duran finally hung up2 The facts about Roberto Duran’s career are draw n from HickokSport s.com, Sports Biographies, at http://www.hickoks ports.com/biogr

aph/duranrob.sh

tml ; Ken Jones, One Moment of Weakness Dogs Duran’s Awesome Reputation , The Independent (London), July 25, 2002, at P24; and David A. Avila, Duran Among Spor t’s All-Time Grea

ts , The Press-Enterprise, Feb. 21, 2002, at D08. All the othe

r facts in this opini

on are drawn fr

om the record on a

ppeal. 4 his gloves after 34 y

ears of professiona

l boxing. 2 He left the ring w ith his memories and his champions

hip belts, and it is thos e belts that are at the center of this case. Duran

claims that his championship belt s were stolen from

his house in Panama by

his brother-in-law

, Bolivar Iglesia

s, in Septembe

r of 1993. Ever the fighter, Duran h

as waged a ten-y

ear battle to rega

in his belts, which a

re the physical embodiment of his life’s work and a rem inder of the glory that once was his. It is late in the

last round of that leg

al fight, which be

gan when Duran fil

ed a criminal com

plaint against Iglesi

as in Panama a

nd convinced the FBI to investigate the d isappearance of his b elts. It is undisputed that D

uran’s cham

pionship belts ultim

ately cam e into the hands of Luis Gonza

lez Baez, a Mia

mi businessm

an, and that Baez

attempted to sell the belts to under

cover FBI agents (

who had set up a sting op eration) for $200,000. Baez was arrest ed, but he claimed that the belts had not been stolen. The government confiscated the belts and filed an interpleader action in federal district court to det

ermine wheth

er Duran or Baez

is the rightful owne

r of the belts. The case was tried to a jury, which returned a verdict in favor of Duran.5

This is Baez’s appeal from the judgment the district court entered in accordance with that verdict. Baez’s principa

l contention on appeal i s that the district co urt should not have admitted testimony about a purported apology from B olivar Iglesias. Over Baez’s objec

tion, the district c ourt permitted a number of wi

tnesses, including Duran and some

of his family

members,

to testify that I

glesias apologized in t

heir presence for stealing the bel ts. Baez contends that testimony is inadmissible hearsay. T

he district court al

lowed it on the theory

that the out-of-cour

t statement described an existin

g state of mind or

emotion, and f

or that reason fit w

ithin the hearsay exce

ption set out in Feder

al Rule of Evidenc e 803(3). We r eview the district court’s evidentiary rul ing only for an abu

se of discretion, a

nd we will reverse only if

Baez convinces us th

at an erroneous ruli

ng “resulted in a substantial prejudicial effect.” Alexander v. Fulton County, Ga. , 207 F.3d 1303, 1326 (11th Cir. 2000) (citation and internal marks omitted). Rule 803(3) provides t

hat, even though the de

clarant is not avail

able as a witness, the following is not excluded by the hearsay rule:

A statement of

the declarant’ s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, m

otive, design, m

ental feeling, pa

in, and bodily health), but not including a statement of memory or belief to prove th

e fact reme

mbered or beli

eved unless3 In Bonner v. City of Prichard , 661 F. 2d 1206 (1 1th Cir. 1981) we adopted as binding

precedent Fifth Circuit decisions issued prior to the close of business on September 30, 1981. 6 it relates to the exe

cution, revocation,

identification, or terms of decla

rant’s will. Fed. R. Evid. 803(3). The question, as Baez’s argument fr ames it, is whether Iglesias’s apology

falls within the exc

lusion from Rule

803(3) admissibi

lity because it is a “ statement of m emory or be

lief to prove the fa

ct remem bered or believed.” An apology is evid

ence of a then-exi sting state of mi nd or emotion: remorse. Iglesias’s apology is admissible to prove the truth of the m atter asserted – that Iglesias felt remorse at the time he made the apolog etic statement. See T. Harris Young & Assoc., Inc. v. Marquette Elec., Inc. , 931 F.2d 816, 827-2 8 (11th Cir. 1991). Tha

t is not the problem . The problem is, as we have obse

rved, that “the state-of

-mind exception

does not permit t

he witness to relat

e any of the declarant’s sta

tements as to w

hy he held the par

ticular state of m

ind, or what he might have believed that would have induced the state of mind.” United States v. Cohen , 631 F.2d 1223, 1225 (5th Cir. 1980). 3 Consistent with th at position, we have explained that t

he purpose of the exc

lusion from Rule

803(3) admissibi

lity is “to narrowly li mit those ad missible st atements to d eclaratio ns of cond ition – ‘I’m scared’ – and not belief – ‘I’m scared because [som eone] threatened me.’” Id.7

The testimony admitted in this case was not limited to the fact that I glesias had expressed rem

orse, but also includ

ed the fact that he s aid he apologized for and as ked fo rgive ness for ha ving stol en the belts . The t estimo ny most often came in response to questions from Duran’s counsel about how the witness knew Iglesias had stole n the belts. What Iglesias said was offered to show not only that he was remor

seful, but also that he had stolen the belts . Rule 803(3) expre ssly prohibits the use of a statement of then-existing state of mind in this way. That prohibition, the committee notes explains, is necessary “to avoid the virtual destruction of the he

arsay rule w

hich would otherwis e result from allowing state of mind, provable by a hearsay statement, to

serve as the basis f

or an inference of the happening of the e

vent which produced t

he state of mind .” Fed. R. Ev id. 803(3) advisory committee’s note. Our conclusion that Iglesias’s apology was not properly admitted under Rule 803(3) does not en

d the matter. Although the district court admitted

the statement under

Rule 803(3), Dura

n offered the testi

mony concer

ning the apology

as a statement

against interest by

a declarant unavai

lable at trial, w

hich is admissible under

Rule 804(b)(3). T

he district court did not reach that alte rnative ground for admissibility, but we do because we will not hold that the district court abused its discretion

where it reache

d the correct resu

lt even if it did so for

the8

wrong reason. Close v. United States , 336 F.3d 1283, 1285 n. 1 (11th Cir. 2003) (“‘[W] e may not r

everse a judgm

ent of the district court if it can be af firmed on any ground, regardless of whether those grounds were used by the district court.’”) (quoting Magluta v. Samples , 162 F.3d 662, 664 (1 1th Cir. 1998)). T he part of Iglesias’s apology

in which he adm

itted having stolen Dur

an’s belts is a sta

tement against interest, because it would “subject the declarant to civil or criminal liability” with

in the meaning of

Rule 804(b)(3). F or a statement against interest to be admissible und

er Rule 804, howev

er, the declara

nt must have been

unavailable at the time of the trial with in the meaning of Rule 80 4(a). Iglesias was not present at the trial, but that does not mean he was unavailable for Rul

e 804 purposes. Subse

ction (a) of that r

ule tells us a witnes s should be considered una vailable in five sepa

rate circums

tances, only one

of which is relevant i

n this case: The dec

larant is unavailabl

e if he “is abse

nt from the hearing and the pr

oponent of a statem

ent has been unable to

procure the declarant’s att

endance (or in the c ase of a hearsay exception under subdivi sion (b)(2), (3), or (4), the declarant’s attendance or testimony ) by process or other reasonable means.” Fed. R. Evid. 8 04(a)(5). Duran could not procu

re Iglesias’s a

ttendance or testim

ony by proces s because Iglesias,

a citizen of Pana

ma, apparen

tly was living in t

hat country at th

e9

time of the tri

al, and “foreign nationals located outside the United States . . . are beyond the subpoena power of the district court.” United States v. D rogoul , 1 F.3d 1546 , 1553 (11t h Cir. 1993 ). Duran did enlist th e help of Ig lesias’s immediate

family in a

n attempt to loca

te him and persua

de him to return

to the United States and testify. Iglesias’s sister, who is Duran’s wife, testified that she and her mother had tried to locate I glesias on five diff

erent occasions, b

ut finding him had proven impossible. Iglesias’s mother testified that she had tried to contact him in order to ge

t him to come

back and testify

but was unable to get Iglesias. Using the efforts o f Iglesias’s sist er and mother,

as Duran did, is a reasonable me

ans of attempti

ng to locate Iglesias

in Panama and p ersuade him to travel to the United States to testify. It follows that Duran did establish Iglesias was unavailable to t

estify under Ru

le 804(a)(5), so t

he out-of-court sta

tement Iglesias made was admissible u nder Rule 804(b)(3) a s a statement against int erest. The district court

did not abuse its discre

tion in admitting t

he statement,

albeit on the wrong ground. Baez also contends that the district cou rt should not have denie

d his motion for Fede

ral Rule of Civil P

rocedure 16(f) sa

nctions against Dura

n for violating, on two occ asions, the court’ s order that Duran provide both a witnes s and exhibit list to Baez. Baez argues that his ability to prepare for trial was10

compromise

d by Duran’s total disregard of t he court’s order

, and the appropria

te sanction should have bee n dismissal of D

uran from the a

ction, striking som

e of his pleadings, or excluding some witness testimony. He does not specify which pleading or testimony. We review a district court’s refusal to impose sanctions under Rule 16(f) only for abuse of discret ion. See Brooks v. United States , 837 F.2d 958, 961 (1 1th Cir. 1988); Acuna v. Brown & Root, Inc. , 200 F.3d 335, 340 (5 th Cir. 2000). Rul e 16(f) provides for s anctions as follows:

If a party or p arty’s attor

ney fails to obey

a scheduling or pretrial order, or if no appearance is made on behalf of a party at a sche

duling or pretrial c onference, or if a party or party’s a

ttorney is substan

tially unprepar

ed to participa te in the co nference, o r if a party or p arty’s attorney fails

to participate in good

faith, the judge,

upon motion or the judge’s own initiative, may m ake such orders with regard thereto as are just and among others any of the orders provid ed in Rule 37(b)(2)(B) , (C), (D). In lieu of or in additi

on to any other san

ction, the judge shall require the pa

rty or the attor

ney representi

ng the party or both to pay the reasonable expenses incurred because of any noncompliance w ith this rule, includi

ng attorney’s f

ees, unless the ju

dge finds that the noncompliance was substantially justified or that other circumstance s make an awa rd of expenses unjus

t. Fed. R. Civ. P. 16(f).11

Rule 16(f) sanction

s were “desi

gned to punish lawy

ers and parties for conduct which unrea

sonably delay

s or otherwise inte

rferes with the e

xpeditious management of trial preparation.” Goforth v. Owe ns , 766 F.2d 1533, 1535 ( 11th Cir. 1985). And di strict courts have di scretion to decide if there is a pattern

of delay or a deliberate refusal to comply with court orders or directions that justifies a sanction. We do not bel ieve the di strict cou rt abused i ts discret ion in den ying Baez’s motion for sanctions against Duran for filing his pretrial statement three days after it was due. The cou rt acted well wit hin its discre tion in conclu ding t hat thr ee days was not an “unr

easonable delay

” and did not interfer

e with the expeditiou

s resolution of the case. Whether the court properly could have ruled the other way is a question we need not decide. See In re Rasbury , 24 F.3d 159, 168 (11th Cir. 1994) (noting that under

abuse of discretion s

tandard there are

some questions on which the district c

ourt might rule e

ither way and b e affirmed, as long as the decision is within the “range of choice for the d istrict court”). The judgment

entered on the jur

y’s verdict s

tands, and under it R

oberto Duran is entitled to

regain his cham

pionship belts. AFFIRMED

.