[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-15774

Non-Argument Calendar

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D.C. Docket No. 1:05-cr-20586-KMM-2

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

RIGAL BAPTISTE, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(January 9, 2015)

Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM: 

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On July 3, 2005, Linda Nicolas arrived at the Miami International Airport on 

a flight from Haiti with a kilo of cocaine concealed in her lower abdomen over 

which she work a skin-tight pair of elastic biker shorts. She aroused the suspicion 

of Customs officers and, on inspection, the cocaine was discovered. On 

questioning by Special Agents of the U.S. Immigration and Customs Enforcement

(“ICE”), Nicolas admitted that she was attempting to smuggle cocaine into the 

United States. She said that she was to have been met at the airport by a man who 

would escort her and the smuggled cocaine to Bradenton, Florida.

Nicolas agreed to cooperate with the agents and gave them a description of 

the man she was to meet. Under the agents’ supervision, Nicolas led them to the 

location in the airport where the meeting was to take place, and they spotted a man 

make eye contact with her and make subtle gestures to summon her. The agents 

seized the man, Rigal Baptiste, the appellant, and detained him. Special Agents 

McBride and Morales interviewed Baptiste, and he admitted making arrangements 

for Nicolas to travel to Haiti to pick up a quantity of cocaine; he was to deliver the 

cocaine to a Mark Jerome in Bradenton. 

Baptiste and Nicolas were arrested, and on July 15, 2005, jointly indicted on 

four counts for conspiracy to import cocaine,1 conspiracy to distribute cocaine,

2

 

1

 21 U.S.C. § 963. 

2

 21 U.S.C. § 846.

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and possession of cocaine with intent to distribute.3 Nicolas pled guilty to all 

counts on September 1, 2005. Appellant, who had entered pleas of not guilty and 

been admitted to bail, absconded and became a fugitive. He was arrested on May 

24, 2013 and on September 24, 2013, stood trial before a jury.4

 He was found 

guilty as charged and, on December 13, 2013, given concurrent prison sentences of 

120 months.

Baptiste appeals his convictions, seeking a new trial on three grounds: the 

District Court (1) infringed the hearsay rule and his Confrontation Clause right by 

allowing Special Agents McBride and Morales to testify to Nicolas’s description of 

Baptiste’s involvement in the conspiracies to import and distribute the cocaine 

found on her person; (2) allowed the prosecutor to elicit inculpatory statements 

from the agents but excluded exculpatory statements; (3) allowed the Government 

to shift the burden of proof via the rebuttal portion of the prosecutor’s closing 

argument to the jury at the close of the evidence. We affirm.

I.

A trial court ruling on the admissibility of evidence is reviewed for abuse of 

discretion. Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997). Whether a 

 

3

 21 U.S.C. § 841(a)(1).

4 Baptiste was tried on a superseding information which replicated the four counts of the 

initial indictment but omitted Nicolas as a codefendant. Baptiste was charged in a separate 

indictment with failing to appear and pled guilty to the offense. 

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ruling denies a constitutional right is reviewed de novo. United States v. Brown, 

364 F.3d 1266, 1268 (11th Cir. 2004). 

Hearsay “is a statement, other than one made by the declarant while 

testifying at the trial . . ., offered in evidence to prove the truth of the matter 

asserted.” Fed. R. Evid. 801(c). An out-of-court statement offered for a reason 

other than its truth is not hearsay. Id. An out-of-court statement may be admitted 

to explain why an officer conducted a particular investigation if “the probative 

value of the [statement’s] non-hearsay purpose is not substantially outweighed by 

the danger of unfair prejudice caused by the impermissible hearsay use of the 

statement.” United States v. Baker, 432 F.3d 1189, 1209 n.17 (11th Cir. 2005); see 

also United States v. Jiminez, 564 F.3d 1280, 1287–88 (11th Cir. 2009) (allowing 

an out-of-court statement to explain an officer’s conduct). 

The Sixth Amendment protects a criminal defendant’s right to confront the 

witnesses against him. U.S. Const. amend VI. The Supreme Court explained in 

Crawford v. Washington that the Sixth Amendment prohibits the introduction of 

out-of-court testimonial statements unless the declarant is unavailable to testify and 

the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. 36, 

68, 124 S.Ct. 1354, 1374, 158 L. Ed.2d 177 (2004). However, the Confrontation 

Clause “prohibits only statements that constitute impermissible hearsay,” and does 

not bar “the use of testimonial statements for purposes other than establishing the 

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truth of the matter asserted.” Jiminez, 564 F.3d at 1286–87 (quoting Crawford, 

541 U.S. at 59 n.9, 124 S. Ct. at 1369).

We find no hearsay or Confrontation Clause violation here. The agents did 

not testify as to the actual statements that Nicolas provided, but, rather, testified 

that she made a statement describing her coconspirator and that, as a result, they 

were able to identify Baptiste and verify that he was involved in the cocaine 

smuggling operation. To the extent the contents of her statements were revealed or 

necessarily implied, they were not hearsay because they were not admitted for the 

truth of the matter asserted, but rather to explain the basis for the agents’ 

investigatory actions in identifying and locating Baptiste, approaching him, and 

bringing him to a secure area for questioning. Jiminez, 564 F.3d at 1287–88. Any 

prejudicial effect of this ruling was mitigated by Baptiste’s admission that he 

organized the smuggling venture and the circumstantial evidence corroborating the 

admission. This same analysis applies to Baptiste’s Confrontation Clause 

argument, which likewise fails. 

II.

Baptiste’s defense was that he had been “set up” by Nicolas, with whom he 

had been romantically involved. Since Nicolas did not testify as a prosecution 

witness and Baptiste did not take the stand or present any evidence in his own 

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defense, Baptiste attempted to establish this defense through his cross-examination 

of Special Agents McBride and Morales. 

[Defense Counsel]: Do you remember talking to Rigel Baptiste about 

whether there had been a sexual relationship with Linda Nicolas?

[McBride]: I don’t remember asking him. But it was -- it would not 

have been an unusual question for me to ask him.

[Defense Counsel]: You don’t remember -- do you remember what he 

said about that? Did he deny it at that time?

[McBride]: I -- honestly, I don’t remember off the -- from memory. 

No, sir. I don’t remember.

Doc. 134, at 91.

After counsel asked McBride whether he remembered Baptiste saying, “is it 

a crime to pick up my girlfriend at the airport on a flight coming in?” the 

prosecutor objected: “First of all, it’s hearsay. Secondly, it’s [been] asked and 

answered.” The court sustained the objection. Id. at 91–91. 

Defense counsel asked similar questions of Special Agent Morales, but all 

he could recall was that Baptiste stated that he had driven Nicolas to the airport and 

was going to pick her up after she returned from Haiti. When counsel asked, “Did 

he admit that he was kind of really hot in her [sic] in a sexual relationship?” the 

prosecutor objected on hearsay grounds and the court sustained it. Doc. 135, at 81. 

We find no abuse of discretion in the court’s rulings. First, both witnesses 

said they had no recollection of the statements Baptiste’s purportedly made, as 

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reflected in counsel’s questions, and that should have ended the inquiry. Second, 

Baptiste’s argument—advanced for the first time in his brief to this court—that, for 

sake of completeness, the statements Baptiste purportedly made, as indicated in 

counsel’s questions, should have come in through Federal Rule of Evidence 106, is 

meritless. Rule 106 states:

When a writing or recorded statement or part thereof is introduced by 

a party, an adverse party may require the introduction at that time of 

any other part or any other writing or recorded statement which ought 

in fairness to be considered contemporaneously with it. 

McBride and Morales were testifying from their reports of the investigation 

and their interview of Baptiste. The reports contained no indication that Baptiste 

uttered the sexual relationship statements suggested in the questions counsel posed. 

In short, there is nothing in the record indicating that further questioning along the 

lines counsel was pursuing would have “in fairness” rendered the agents’ 

testimony complete. 

III.

Baptiste argues that the District Court, in overruling his objection to the 

prosecutor’s rebuttal argument, in which he referred to the defense’s failure to call 

an expert witness on interrogation, allowed “the prosecution to distort important 

facts and shift the burden of proof.” Appellant’s Br., at 28. This reference was in 

response to defense counsel’s own argument in closing that the Government should 

have called an interrogation expert to testify in its case in chief. The court’s charge 

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to the jury, which was delivered following closing argument, plainly informed the 

jury that the Government had the burden of proving all the elements of the crimes 

with which Baptiste had been charged. There is no reasonable probability that but 

for the prosecutor's reference to the defense's failure to call an interrogation expert, 

the outcome of the trial would have been different.

AFFIRMED.

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