[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 10585 Non

- Argument Calendar

________________________ D.C. Docket No. 4:16

- cr - 00097

- WTM

- GRS

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus MAURICE LUCLARE WILLIAMS, Defendant

- Appellant.

________________________ Appeal from t he United States District Court for the Southern District of Georgia

________________________ ( February 4, 2019 ) Before JILL PRYOR, BRANCH , and HULL, Circuit Judges.
PER CURIAM:

Case: 17-10585 Date Filed: 02/04/2019 Page: 1 of 142 Maurice Williams appeals his conviction s for possession with intent to distribute contro lled substances, possession of a firearm in furtherance of a drug

trafficking crime, and possession of a firearm by a convicted felon. On appeal, he argues that the district court abused its discretion by admitting text messages and a recorded phone call into evidence. He contends that this evidence should have been excluded a s hearsay. Because Williams cannot show that the district court abused its discretion in admitting th e evidence, we affirm.
I. FACTUAL BACKGROUND This case began when Williams was driv ing a GMC Yukon on Interstate 95 in Pooler, Georgia . A Pooler police officer, Craig Bogden, clocked the Yukon traveling 89 miles per hour in a n area where the speed limit was 70 miles per hour

. Bogd e n pursued the Yukon in his squad car and activated his lights and siren, signal ing for the Yukon to pull over. The Yukon slowed to 70 miles per hour and activated its turn signal as if it were going to pull over . The vehicle , instead, increased its speed and travel ed on the interstate for several more miles

. Bogden
pursue d the vehicle and learned from radio communications that the Yukon had been reported stolen. The Yukon exited the interstate

. At this point, officers from several other law enforcement agencies had joined the chase. The officers followed t he Yukon,

Case: 17-10585 Date Filed: 02/04/2019 Page: 2 of 143 which was traveling at speeds of over 120 miles per hour. One officer deployed a strip spike to deflate the Yukon’s tires . After driving over the strip, the Yukon turned into a residential subdivision and drove down a cul

- de

- sac . At the end of the cul

- de

- sac, the Yukon proceeded down a driveway , through a backyard , and back onto the street . The vehicle t hen drove through another yard

. The Yukon came to a stop in the yard. The Yukon’s driver jump ed out and

ran into the woods behind a home. A split second later, a passenger in the Yukon thr e w a black bag out the vehicle’s window

. O fficers pursued the driver on foot and apprehended him. They searched the driver and found in his wallet a state

issued identifica tion card identifying him as Maurice Williams , as well as approximately $1 3 00 cash and a small amount of marijuana. Other officers removed the passenger from the Yukon. The passenger was Shasta Stewart. Stewart appeared to be under the influence of dru gs and was taken to the hospital. The o fficers searched the Yukon and recovered a red Samsung cellphone. Officers also recovered the bag Stewart threw from the Yukon. Inside the bag, they found a revolve r , ammunition , and a knife. They also found controlled substance s , including more than 7 grams of cocaine and 1 4 grams of heroin as well as smaller quantities of other controlled substances, including morphine,

Case: 17-10585 Date Filed: 02/04/2019 Page: 3 of 144 amphetamine, and hydrocodone. The bag contained other items typically used in the distri bution of illegal drugs : digital scales, whisks, a crack pipe, a strainer, rolling papers, a razor blad e , plastic bags, a glass beaker, and baking soda. After the incident, Williams was indicted for possession with intent to distribute a controlled subst ance, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a felon. Stewart was never charged with any crime for her role in the incident. Williams pled not guilty and was tried before a jury. The central is sue at trial was whether the items in the bag belonged to Williams. Williams argued that the government failed to prove beyond a reasonable doubt that the items in the bag belonged to him, not Stewart

. The government contended that the fact that Williams led officers on a high

- speed chase was evidence that the drugs and gun belonged to him . The government also relied on text messages and a recorded jailhouse phone call to establish that the drugs and gun found in the bag belonged to Williams

. At trial, the government introduced five strings of text messages into evidence. The government extract ed the text messages from the Samsung cell phone found in the Yukon

. At trial, Williams objected to the admission of this

Case: 17-10585 Date Filed: 02/04/2019 Page: 4 of 145 evidence , claiming th at it cont ained inadmissible hearsay , but t he district court overruled his objection.
T he text messages showed the phone had been used to sell drugs. In one set of messages, the phone received a message asking, “Can You make it 2 girls 1 boy instead[?]” Gov’t Ex. 12C at 1. 1 The government introduced evidence showing that “girl” was slang for cocaine and “boy” was slang for heroin. The person using the phone responded , “OK be there in maybe ten at the most.” Id.
O ther text messages confirmed that the phone was used to sell drugs. In the second set of messages, a message was sent to the phone asking, “Need some boi u free [ ? ] ” Id. at 2. The person using the phone responded , “Give me bout ten [or] 15 min.” Id. In the third set of messages, the message “you got boy[?]” was sent to the phone. Id. at 4. The person using the phone responded “Yea.” Id. In the fourth set of messages, a person sent the phone a message saying , “I need some boy.” Id.
Yet a nother text message string tied the phone to Williams. In that string, the phone received an incoming message stating, “I’m very sick,” which was likely a reference to symptoms of heroin withdrawal

. Id. at 3. The person usi ng the

1 Citations in the form “ Gov’t Ex. X ” refer to the government’s exhibits introduced at trial. Case: 17-10585 Date Filed: 02/04/2019 Page: 5 of 146 phone responded , “I got some meds.” Id. In the next incoming message, the person explained that he or she had deleted phone numbers out of his or her cell phone and asked , “O k who is this[?]” Id. The person using the phone responded “I go by sex ual chocolate now lol. REESE.” Id. According to the government,
“Reese” could be a nickname for Maurice, Williams’s first name. And the government asserted that the nickname “ s exual c hocolate” indicated that the phone belonged to Williams, who was blac k, not Stewart , who was white

. The government also introduced at trial a recording of a jailhouse call and a transcript of the call

. After his arrest, Williams was placed in a jail that use d a system to monitor and record all telephone calls made by inmates

. Using the jail’s phone system, Williams called a woman . A witness who was familiar with Stewart’s voice identified Stewart as the other participant on the call. In the conversation, Stewart and Wi lliams discussed the high

- speed chase and how Stewart threw items out of the Yukon at Williams’s direction

. Williams objected to the admission of the recording and transcript , arguing that they contained inadmissible hearsay . T he court overruled his ob jection , admitting the recording into evidence. The court did not admit the transcript into evidence but allowed the jury to review it while they listened to the recording

.

Case: 17-10585 Date Filed: 02/04/2019 Page: 6 of 147 The jury convicted Williams on all charges. Williams was sentenced to a total te rm of 240 months’ imprisonment. This i s his appeal

. II. STANDARD OF REVIEW We review a district court’s evidentiary rulings for an abuse of discretion. United States v. Wilk , 572 F.3d 1229, 1234 (11th Cir. 2009). “An abuse of discretion occurs if the district court applies an incorrect legal standard or makes findings of fact that are clearly erroneous.” Id.
III. LEGAL ANALYSIS Federal Rule of Evidence 802 ordinarily prohibits the admission of hearsay statements. “Hearsay is a statement, other than one made by a declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted.” United States v. Rivera , 780 F.3d 1084, 1092 (11th Cir. 2015); see Fed. R. Evid. 801(c). Williams argu es that the district court should have exclude d evidence of the recorded phone call and text messages because they contained hearsay
statements. He argues that the cumulative effect of these evidentiary errors prejudic ed his right to a fair trial. We disagree. A. The District Court Did Not Err in Admitting into Evidence the Recorded Telephone Conversation. We begin by considering whether the district court abused its discretion in admitting into the evidence the record ed phone conversation between Williams and

Case: 17-10585 Date Filed: 02/04/2019 Page: 7 of 148 Stewart. In particular, Williams asserts that the following part of the phone conversation contained inadmissible hearsay:
MW: [I]f you ever ride with somebody and they try to get away or something, just make s ure like, when you’re riding like you throw one thing out at a time, like you know, don’t try and like, you know, throw a whole thing out at one time, you know, take a little bit in your hand and . . .
SS: Well usually, you know, whenever you’re riding with somebody and they tell you to do something, you just do it! You know, that’s all, you know, you just follow what you’re being told . . . You know , in a situation, you know.
MW: Yeah, yeah, yeah, I wasn’t. Sometimes . . .
SS: Being very ob edient, yeah, being obedient. Why wasn’t I hard headed? Why ( unintelligible ) ? Hold on one second, honey. So yeah, anyway, I also was thinking, you know , the only thing probably that cannot be dropped is the psycho part where that demon possessed you, a nd yeah, you know, you was a little reckless [.]
MW: Oh yeah, yeah, yeah.
Gov’t Ex. 14 B at 4

- 5 ( ellipses and parentheses in original)

. The district court did not abuse its discretion because none of the se statements qualif ies as hearsay. As an initial matter, Williams’s statements on the phone call were admissible as admission s of a party

- opponent. 2 “[A] statement is not hearsay if it

2 The government argues that we should review only for plain error whether Williams’s statements on the call were admissible because at trial Williams challenged only the admissibility of Stewart’s statements. We need not decide whether Williams preserved the issue,

Case: 17-10585 Date Filed: 02/04/2019 Page: 8 of 149 is the statement of the party against whom it is offered.” United States v. Munoz , 16 F.3d 1116, 1120 (1 1th Cir. 1994); see Fed. R. Evid. 801(d)(2)(A). Here, the evidence plainly shows that Williams made the statements in the call. His statements thus did not constitute hearsay. Williams also contends that Stewart’s statements were inadmissible as hearsay. We assume that Stewart’s statement s w ere offered to prove the truth of the matter asserted

— that she was acting at Williams’s direction when she threw the bag with the gun and drugs out of th e vehicle. We nonetheless conclude that the statement s w ere not hearsay because they w ere adoptive admission s . A statement that “is offered against an opposing party” and “is one the party manifested that it adopted or believed to be true” is not hears ay. Fed. R. Evid. 801(d)(2)(B). To determine whether an adoptive admission has occurred , “ the primary inquiry is whether the statement was such that, under the circumstances, an innocent defendant would normally be induced to respond, and whether there

a re sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement. ” United States v. Jenkins , 779 F.2d 606, 612 (11th Cir. 19 86 ) (internal quotation marks omitted)

. In general,
a court must determine whether these criteria are satisfied before admitting the

though , because e ven if we assume that Williams raised the issue below, he cannot show that the district court abused its discretion in admitting his statements

.

Case: 17-10585 Date Filed: 02/04/2019 Page: 9 of 1410 statement. I d. Requiring such preliminary findings “significantly diminish[es]” the risk of a court erroneously admitting evidence. United States v. Joshi , 896 F.2d 1303, 1312 (11th Cir. 1990). We nonetheless have recognized that we may make the determination of whether a statement qualifies as an adoptive admission in the first instance so long as the record contains sufficient evidence that the criteria for an adoptive admission are satisfied. See id. Although the district court failed to make a preliminary determination that Stewart’s statements qualified as adoptive admissions , the record contains sufficient evidence that th e statement s satisfied the c riteria for adoptive admissions

. We have explained that the first requirement, whether an innocent defendant would normally be induced to respond , is “of particular relevance in cases involving silent acquiescence” but is “not at issue . . . [when] the de fendant is alleged to have responded to [the] statement . . . affirmatively.” Id. at 1311

- 12. Here, Williams responded affirmatively to Stewart’s statements on the phone call by responding “[y] eah, yeah, yeah , ” Gov’t Ex. 14 B at 4

- 5 , meaning this requireme nt is satisfied

. We thus focus our analysis on whether there were

“ sufficient foundational facts from which the jury could infer that [Williams] heard, understood, and acquiesced ” in Stewart’s statement s . Jenkins , 779 F.2d at
612 (internal quotation marks omitted)

.

Case: 17-10585 Date Filed: 02/04/2019 Page: 10 of 1411 There were sufficient foundational facts here. The trial record supports an inference that Williams heard and understood Stewart’s statements. During the phone call, Williams was actively engaged in the conversation. Indeed, Williams raised no argument at trial or on appeal that he did not hear or understand Stewart’s
comments. The evidence also support s a conclusion that Williams acquiesced in the statements. After Stewart’s made the comments , Williams twice respo nded

“ [ y ] eah, yeah, yeah

. ” Gov’t Ex. 14 B at 4

- 5. A jury could find that , in making these statements , Williams manifest ed his agreement with and adopti on of Stewart’s assertion that she was following his direction s when s he threw the bag out th e window

. Based on the record, we conclude that the trial court implicitly admitted Stewart’s statements as adopted admissions . Because Stewart’s
statements were not hearsay , w e discern no error in the court’s admission of the phone conversation. 3

3 Williams’s brief addresses only why Stewart’s statements were not admissible as s tatements of a co

- conspirator . Under the Federal Rules of Evidence, statements of an opposing party’s co

- conspirator ma de “during and furtherance of the conspiracy” do not constitute hearsay. Fed. R. Evid. 801(d)(2)(E). We need not decide whether Stewar t’s statements were made “during and furtherance of the conspiracy” because the statements are adoptive admissions and thus do not qualify as hearsay for a different reason. Id. 801(d)(2)(B).

Case: 17-10585 Date Filed: 02/04/2019 Page: 11 of 1412 B. The District Court Did Not Err in Admitting into Evidence the Text Messages. Williams also argues that the district court erred in admitting the transcripts of the text message strings retrieved from the Samsung cell phone

. Again, we cannot say that the district court erred. The outgoing text messages sent from the Samsung cell phone qualify as admissions of a party

- opponent. 4 The government laid a sufficient foundation to support a jury finding that Williams sent the messages from th e phone

. First, t he phone was found in the Yukon , 5 which supports an inference that it belonged to someone in the car, either Stewart or Williams

. Second, in a text message string, the person who used the phone identified himself as “RE ESE” and “ sexual chocolate

. ” Gov’t Ex

. 12C at 3. A reasonable jury could infer from this message that the phone belonged to Williams, not Stewart. Reese could be a nickname for Maurice, Williams’s first name. And t he user’s description of himself or herself as “chocolate” further supports an inference that the phone belonged to Williams,

4 The government argues that we should review for plain error whether the outgoing text messages were admissible because Williams raised no objection to their admissibility at trial. Again, we need not decide whether Williams preserved the issue, because e ven if we assume that Williams raised this issue below, he cannot show that the district court abused its discretion. 5 Williams argue s that it is unclear whether law enforcement foun d the phone in the bag or the Yukon. But Williams has not identified any testimony from a witness that the phone was found inside the bag. The evidence at trial , instead, reflects that the cellphone was found inside the Yukon. Case: 17-10585 Date Filed: 02/04/2019 Page: 12 of 1413 who was black, and not Stewart, who was white

. Because the government introduce d evidence that Williams possessed and used the cellphone, the outgoing
messages were admissions of a party

- o pponent , not hearsay

. Fed. R. Evid. 801(d)(2)(A). Williams also argues that the incoming messages sent to the phone should have been excluded as hearsay

. In t hese messages , individuals were contacting the user of the phone asking him whether he had drugs and stating that they needed to buy drugs. None of these statements was offered for the truth of the matter asserted because the se statements are in capable of being proven true or false. See
Rivera , 780 F.3d at 1092

- 93. W e thus reject Williams’s argument that these messages contained hearsay. Williams’s final argument is that the cumulative effect of the district court’s erroneous evidentiary rulings warrants reversal of his convictions. “Even where individual judicial errors . . . may not be sufficient to warrant reversal alone, we may consider the cumulative effects of errors to determine if the defendant has been denied a fair trial.” United States v. Lopez , 590 F.3d 1238, 1258 (11th Cir. 2009). Because Williams has failed to show that the district court erred in admitting any of the challenged evidence , there is no cumulative error.

Case: 17-10585 Date Filed: 02/04/2019 Page: 13 of 1414 IV. CONCLUSION For the reasons discussed above, we affirm the district court’s evidentiary rulings and, consequently, Willia ms’s convictions. AFFIRMED. Case: 17-10585 Date Filed: 02/04/2019 Page: 14 of 14