IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41211

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

ANDRES CASTRO–FONSECA,

Defendant – Appellant

Appeal from the United States District Court

for the Southern District of Texas

No. 09-CR-747

Before KING, DEMOSS, and PRADO, Circuit Judges.

PER CURIAM:

*

Defendant–Appellant Andres Castro–Fonseca appeals his conviction for

conspiring to possess and possessing with an intent to distribute 4.8 kilograms

of cocaine. On appeal he argues that the district court erroneously admitted two

forms of hearsay evidence at trial. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 2009, Andres Castro–Fonseca was stopped while attempting

to cross the border between Mexico and the United States at the Los Indios

United States Court of Appeals

Fifth Circuit

F I L E D

February 1, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Bridge near Brownsville, Texas. The officers at Los Indios stopped the

defendant’s vehicle, a 1998 Ford Expedition, because they were acting on a tip

received by Agent David Arce from Immigration and Customs Enforcement.

When officers spotted the defendant’s vehicle approaching the primary

inspection lane, they directed the defendant to pull the vehicle between two

concrete barriers to minimize flight risk. Five officers surrounded the vehicle,

and the defendant was immediately taken to a holding cell. The officers moved

the vehicle to a secondary inspection area where a drug-sniffing dog alerted the

officers to the presence of drugs. After nearly three hours of investigation, the

officers found nine packages of cocaine hidden in the firewall between the

dashboard and the engine of the vehicle.

The defendant denied any knowledge that the cocaine was in the car. He

told Agent Arce that he had purchased the vehicle just two weeks earlier and

that he had lent it to an unnamed friend in Valle Hermoso, Mexico for five days.

He stated that he had left work in Reynosa, Mexico and driven to Valle Hermoso

to pick up the vehicle before driving to the Los Indios bridge.

The defendant was charged with conspiring to possess and possessing with

an intent to distribute 4.8 kilograms of cocaine in violation of 18 U.S.C. § 2 and

21 U.S.C. §§ 841, 846. The sole issue at trial was whether the defendant knew

that the cocaine was hidden in the vehicle. The jury found him guilty, and the

defendant appeals, arguing that he should have a new trial because the district

court erred in admitting hearsay evidence, some of which was admitted in

violation of the defendant’s rights under the Confrontation Clause. We find no

reversible error.

II. DISCUSSION

A. Testimony Regarding the Tip

The defendant argues that his rights under the Sixth Amendment’s

Confrontation Clause were violated when the district court permitted several

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officers to testify regarding the substance of the tip they received. “Alleged

violations of the Confrontation Clause are reviewed de novo, but are subject to

a harmless error analysis.” United States v. Bell, 367 F.3d 452, 465 (5th Cir.

2004).

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The Confrontation Clause bars the admission of testimonial hearsay.

Crawford v. Washington, 541 U.S. 36, 59 (2004). Such statements may

admitted, however, if they are used for a non-hearsay purpose. See United

States v. Holmes, 406 F.3d 337, 349 (5th Cir. 2005); see also Crawford, 541 U.S.

at 60 n.9 (the Confrontation Clause “does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter

asserted”). We have held that officers may testify regarding a tip they received

for “the limited purpose of explaining why they were at a particular location”

because such information is “simply background information showing the police

officers did not act without reason.” United States v. Vitale, 596 F.2d 688, 689

(5th Cir. 1979) (per curiam); accord United States v. Brown, 560 F.3d 754, 764

(8th Cir. 2009) (admission of victim’s statement regarding the street nickname

of his attacker did not violate the Confrontation Clause because “[a]n out of court

statement is not hearsay when offered to explain why an officer conducted an

investigation in a certain way”); United States v. Gibbs, 506 F.3d 479, 486 (6th

Cir. 2007) (testimony regarding tip that defendant may have had a gun did not

violate the Confrontation Clause because it was “offered simply as background

evidence” to explain the officers’ actions). In United States v. Hernandez, 441

F.2d 157 (5th Cir. 1971), an officer testified that he received a tip regarding a

The government contends that our review is for plain error because the defendant 1

failed to object to the testimony at trial. See United States v. Rose, 587 F.3d 695, 700 (5th Cir.

2009). On the morning of trial, the district court overruled the defendant’s general objection

to “any reference to any tip.” During trial the defendant objected to the testimony of Agent

Rodriguez and Officer Barreda, but he did not object to the testimony of Officer Hernandez and

Agent Arce. We need not decide whether the defendant sufficiently preserved the issue

because, under either standard, it was not error for the district court to admit the testimony.

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specific vehicle that would be used to smuggle heroin from Mexico into the

United States, including the make, model, color, and license plate number. Id.

at 163. We held that the testimony was not hearsay because it was used to

explain to the jury why the officers were following that particular vehicle and

that the officers “did not act in vacuum.” Id. at 164.

Though officers may refer to a tip to explain their actions, “[p]olice officers

cannot, through their trial testimony, refer to the substance of statements given

to them by nontestifying witnesses in the course of their investigation, when

those statements inculpate the defendant.” Taylor v. Cain, 545 F.3d 327, 336

(5th Cir. 2008) (holding that police officer improperly testified regarding a tip

from a non-testifying witness who identified the defendant as “the perpetrator”).

Testimony about a tip becomes inadmissible hearsay if the testimony at trial

“also points directly at the defendant and his guilt in the crime charged.” United

States v. Evans, 950 F.2d 187, 191 (5th Cir. 1991). Indeed, central to our holding

in Hernandez was the fact that the officers did not relay any portion of the tip

that specifically linked the defendant to the vehicle or the heroin. 441 F.2d at

164; see also United States v. Gomez, 529 F.2d 412, 416 (5th Cir. 1976) (holding

that testimony about tip was inadmissible hearsay because it linked the illegal

drugs with the occupants of the stopped vehicle).

At trial in this case, the Government presented testimony from four

officers that related to the tip they received. Agent Rodriguez testified, “We had

received a tip over the phone. One of the other officers had received a phone

call.” Officer Barreda, who was stationed at the primary inspection booth,

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Agent Rodriguez also testified that she “saw the driver coming up” because “there was

2

a lookout.” The defendant objected to this testimony, and the district court instructed the jury

to disregard it. We do not address the defendant’s argument regarding this portion of Agent

Rodriguez’s testimony further because it was not “so highly prejudicial as to be incurable by

the trial court’s admonition.” United States v. Ramirez–Velasquez, 322 F.3d 868, 878 (5th Cir.

2003) (citation omitted).

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testified regarding the procedure she planned to follow if a “certain event”

occurred, with the “certain event” being that she or another agent spotted the

vehicle that was the subject of the tip. Officer Hernandez testified that the

officers at Los Indios had received a tip and that “a plan [was] put in place as to

what would happen if a certain event occurred.” He also testified that because

of the tip “there [were] about five of us who were actively searching for the

vehicle.” Finally, Agent Arce testified that he personally received a tip, after

which “I called the bridges and I gave them information on the information that

I had received, a vehicle description.”

The defendant first argues that it was unnecessary for the officers to even

tell the jury that they received a tip. According to the defendant, the

government had no need to explain to the jury why the officers had stopped the

his vehicle because Customs and Border Protection officers have authority to

stop all persons crossing into the United States and to conduct a “routine”

search. See United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).

However, the sequence of events here was hardly “routine,” and the information

that the officers were acting on a tip likely assisted the jury in understanding

why they directed the defendant to stop his vehicle in an unusual place and why

they immediately escorted the defendant to a holding cell.

The defendant next argues that the officers’ testimony improperly

conveyed the substance of the tip to the jury and directly implicated him. We

disagree. The officers’ testimony regarding the tip provided background

information for the stop without directly inculpating the defendant. As in

Hernandez, the most that the jury could have learned from the testimony was

that the officers at Los Indios were looking for a specific vehicle. Any inference

that the informant had told the officers that the vehicle contained drugs in no

way connected the vehicle or the drugs directly to the defendant because the

officers did not testify regarding what, if anything, the informant told them

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about the occupants of the vehicle. By his own statement, the defendant did not

come into possession of the vehicle until shortly before he was stopped at Los

Indios; thus, he was free to argue, as he did, that he had no knowledge that there

was cocaine hidden in the vehicle. Therefore, we find no error in the district

court’s admission of the officers’ testimony regarding the tip.

B. Testimony Regarding Vehicle Ownership Records

The defendant also argues that the district court erred in permitting Agent

Arce to testify regarding the ownership records for the vehicles in which the

defendant crossed the border on previous occasions because such testimony was

hearsay. Our review of a district court’s evidentiary rulings is generally for

abuse of discretion, but where a party fails to properly object, our review is for

plain error. United States v. Williams, 620 F.3d 483, 488–89 (5th Cir. 2010). The

parties dispute whether the defendant properly raised his objection in the

district court because he did not object until after Agent Arce had already

answered the prosecutor’s questions. United States v. Johnston, 127 F.3d 380,

392 (5th Cir. 1997) (a party must “object to the admission of the evidence at the

first available opportunity” to preserve an error for appellate review). Even

under the less deferential standard of abuse of discretion, however, any error in

the admission of evidence is subject to the doctrine of harmless error. See United

States v. Hall, 500 F.3d 439, 443 (5th Cir. 2007) (an error is harmless if it “did

not contribute to the verdict obtained”).

According to Agent Arce, a record is created for every person and vehicle

that crosses the border at a border checkpoint. These records are held in a

database called Treasury Enforcement Communications System (TECS). Agent

Arce testified that he cross-referenced the TECS records for the defendant’s

crossings with the TECS records for the vehicles that crossed on the same day

at the same time. In doing so, Agent Arce was able to identify the vehicles in

which the defendant had previously crossed the border. The government

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introduced into evidence the TECS records for the defendant’s crossings as well

as the records for each of the vehicles. See United States v. Puente, 826 F.2d

1415, 1418 (5th Cir. 1987) (holding that TECS records are admissible under

Federal Rule of Evidence 803(8) as public records).

Agent Arce determined that the defendant crossed the border on six

separate occasions between January and June 2009 in three different vehicles:

a 1998 Ford Expedition, a 2004 Ford F-150, and 1998 Jeep Cherokee. Agent

Arce then consulted other unidentified “records” to determine that the

Expedition was owned by Pablo Cesar Jimenez Quintero, the F-150 was owned

by Gerardo Alberto Pedraza Aguilar, and the Jeep Cherokee was owned by

Daniel Ramos Flores. The defendant contends that Agent Arce’s testimony

regarding the ownership of the Expedition and the F-150 was hearsay and that

3

its admission was reversible error.

The government argues that the testimony was not hearsay because Agent

Arce had personal knowledge of the ownership of the vehicles acquired through

review of his “records.” See United States v. Vosburgh, 602 F.3d 512, 539 n.27

(3d Cir. 2010) (noting that officer’s testimony regarding a girl’s age was

“arguably” not hearsay because he had learned the information after consulting

“vital statistics”). However, Agent Arce testified only that his “records indicate”

the owners of the vehicles. He did not testify regarding the nature of the records

he consulted to learn the information, and we are unable to identify from the

record before us the source from which Agent Arce learned this information. See

United States v. Black, 436 F.2d 838, 840 (5th Cir. 1971) (per curiam) (holding

that officer’s testimony regarding the contents of a message he received from a

licensing bureau was inadmissible hearsay). Moreover, the government did not

enter these records into evidence, so even if such records are admissible under

The defendant does not appeal the admission of Agent Arce’s testimony regarding the 3

ownership of the Jeep Cherokee.

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the hearsay rules, Agent Arce was testifying to the contents of an out-of-court

document. See id. We need not decide whether the testimony was in fact

hearsay, however, because we find any error in the admission of the testimony

to be harmless.

The government used Agent Arce’s testimony about the ownership of the

vehicles to attack the defendant’s credibility and to show that the defendant did

not own any of the vehicles in which he had crossed the border in the previous

six months, the inference being that the defendant would not have trafficked

drugs in a vehicle that he owned. Sufficient other admissible evidence, including

the TECS records, established the same information. The government was able

to prove, through the TECS records, that Mr. Jimenez Quintero, the record

owner of the Expedition, had crossed the border in the Expedition both before

and after the defendant claimed to have purchased it. And the TECS records for

both the Expedition and the F-150 sufficiently demonstrated that the defendant

had little connection with either vehicle.

Moreover, the defendant’s guilt was established by other extensive

evidence. The government presented evidence that the Expedition was

extraordinarily clean, which is typical of drug traffickers who have attempted

to erase fingerprints and traces that the vehicle has been taken apart; no

personal items were in the Expedition; the defendant was carrying only the key

to the Expedition and had no house keys or the like; the defendant’s demeanor

suggested guilt because he was nervous prior to the stop and never asked why

he was being taken to the holding cell; the defendant was carrying a large

amount of cash; and the value of the cocaine was between $97,500 and $390,000,

which suggested that the true owner of the cocaine, if not the defendant, would

not have entrusted it to the unsuspecting defendant. Given that other sources

of information supported the inferences to be gleaned from Agent Arce’s

testimony and that the evidence was of limited importance to the government’s

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case, we conclude that the testimony regarding the ownership records did not

contribute to the jury’s verdict and any error in its admission was therefore

harmless. United States v. Cooks, 589 F.3d 173, 180 (5th Cir. 2009) (error is

harmless where there is “other extensive evidence” of guilt).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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