United States v. Diego Fagundez

24-12147 Opinion of the Court 3 statement was made during the course of and in furtherance of the conspiracy." United States v. Underwood, 446 F.3d 1340, 1345-46 (11th Cir. 2006). For purposes of Rule 801(d)(2)(E), the word "con- spiracy" means "an arrangement to work together toward a shared goal." Holland, 117 F.4th at 1356.

In determining whether a statement was in furtherance of a conspiracy, we apply a liberal standard. United States v. Wenxia Man, 891 F.3d 1253, 1271 (11th Cir. 2018). In making the initial finding, a district court is permitted to consider any nonprivileged evidence, including the statement itself. Id. Rule 801(d)(2) ex- pressly provides that, although the statement at issue "must be con- sidered" in determining whether a conspiracy existed, the state- ment "does not by itself establish . . . the existence of the conspir- acy or participation in it . . . ." The district court may conditionally admit the statement in advance of the government's introduction of evidence establishing the three requirements of Rule 801(d)(2)(E) have been met. Wenxia Man, 891 F.3d at 1271. The district court did not abuse its discretion by admitting the statements because the Government established by a prepon- derance of the evidence a conspiracy existed between Fagundez, Nance, and Cervantes and the statements in question were made during the course of and in furtherance of the conspiracy. See Hol- land, 117 F.4th at 1355 (reviewing a district court's rulings regard- ing the admissibility of co-conspirator statements for an abuse of discretion). Nance testified he frequently bought methampheta- mine from Cervantes, who used Fagundez as an intermediary to

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4 Opinion of the Court 24-12147 facilitate the transactions. Officer James Steedle testified he ob- served Nance arrive at Fagundez's residence, observed an individ- ual place a box into Nance's car, and later arrested Fagundez at the residence. Agent Ryan McCormick testified he arrested Nance and found the box in Nance's car contained methamphetamine. The Government introduced numerous messages and calls in which Nance and Cervantes made frequent references to "Diego." Nance testified the phone calls and text messages involved the discussion of buying and selling methamphetamine, and he testified their fre- quent references to "Diego" during those discussions were refer- ring to Fagundez. He also testified the individual who placed the methamphetamine into his car on December 13 was Fagundez. Accordingly, because the Government established through the testimony of multiple witnesses, as well as the calls and mes- sages between Nance and Cervantes, that Fagundez, Nance, and Cervantes were involved in a conspiracy to buy and sell metham- phetamine, the district court did not abuse its discretion in admit- ting the statements of Fagundez's co-conspirators. B. Admission of statements after Nance's arrest A violation of the Confrontation Clause is harmless if it is clear beyond a reasonable doubt the error did not affect the verdict. United States v. Carter, 776 F.3d 1309, 1328 (11th Cir. 2015). Non-constitutional hearsay errors, however, are harmless if a re- viewing court determines the error did not affect or had only very slight effect on the verdict. Id. The admission of out-of-court state- ments made by a declarant who testifies at trial does not violate the

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24-12147 Opinion of the Court 5 Confrontation Clause. See United States v. Curbelo, 726 F.3d 1260, 1274-76 (11th Cir. 2013).

There can be no conspiracy between one individual and a government informant who secretly intends to frustrate the con- spiracy, but a government informant can serve as a connecting link between two or more conspirators. Wenxia Man, 891 F.3d at 1265. Where there is an ongoing conspiracy between participants, the ar- rest of and subsequent cooperation with authorities by one of the participants does not preclude the continuing existence of the con- spiracy between the other co-conspirators. United States v. Casa- mayor, 837 F.2d 1509, 1513 (11th Cir. 1988).

To the extent the Exhibit 7 phone call¹contained statements by Cervantes, the district court did not abuse its discretion in ad- mitting the call because the evidence established that Cervantes and Fagundez were involved in an ongoing conspiracy. Nance's arrest and cooperation with authorities did not end that conspiracy and Cervantes' statements were made during and in furtherance of the conspiracy. Cervantes' statements indicate that an ongoing

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6 Opinion of the Court 24-12147 conspiracy still existed between him and Fagundez, and the fact that Nance had begun cooperating with law enforcement did not end the conspiracy. See Casamayor¸ 837 F.2d at 1513. To the extent the Exhibit 7 phone call contained statements by Nance, and to the extent Nance testified regarding post-arrest statements made to law enforcement, even if all of those state- ments constituted impermissible hearsay, the admission of those statements against Fagundez was harmless. On the call, Nance tells Cervantes he had been delayed in bringing money to him and he would bring Cervantes the money the next day. Nance's testimony only briefly referenced statements made to law enforcement after his arrest—he testified he told agents that (1) he was supposed to let someone know he had "made it back," and (2) he told agents

"what [he] knew about the investigation." Even without the state- ments in Exhibit 7 or Nance's testimony regarding post-arrest state- ments to law enforcement, (1) the Government introduced volu- minous calls and messages between Nance and Cervantes;

(2) Nance testified those calls and messages were discussions re- garding the buying and selling of methamphetamine—many of which referenced "Diego;" (3) Nance testified he received metham- phetamine from Fagundez, and he identified Fagundez in the courtroom; (4) Officer Steedle testified he observed Nance arrive at Fagundez's house, observed someone place a box in Nance's trunk, and later apprehended Fagundez at that house; and

(5) Agent McCormick testified that when he arrested Nance, he found the box in Nance's car contained methamphetamine.

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24-12147 Opinion of the Court 7 Because Nance testified at trial, those statements were not barred by the Confrontation Clause, and thus Fagundez would have to show the admission of those statements affected the verdict in order to constitute reversible error. See Curbelo, 726 F.3d at 1274- 76; Carter, 776 F.3d at 1328. Considering the substantial amount of other evidence introduced by the Government, Fagundez has not shown the admission of any of Nance's statements in the Exhibit 7 phone call or Nance's cursory testimony regarding post-arrest statements to law enforcement affected the jury's verdict. See Carter¸ 776 F.3d at 1328.

C. Drug Quantity

When the amount of drugs that was seized does not reflect the scale of the offense, the district court must instead approximate the quantity of drugs attributable to the defendant. United States v. Dixon, 901 F.3d 1322, 1349 (11th Cir. 2018). Such a determination can be based on fair, accurate, and conservative estimates, but it cannot be based on calculations that are merely speculative. Id. When sentencing a defendant who was a member of jointly under- taken criminal activity, the district court may consider the conduct of others that was in furtherance of the jointly undertaken activity and was reasonably foreseeable in connection with that activity. Id. The district court did not clearly err in determining Fagun- dez was responsible for 5.963 kilograms of methamphetamine. See id. at 1347 (reviewing for clear error a district court's factual finding of the drug quantity attributable to a defendant). Fagundez asserts Nance testified he received methamphetamine from Fagundez on

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8 Opinion of the Court 24-12147 only two occasions and he did not meet Fagundez until December 2019, but those arguments are contradicted by the record. Nance testified he first received a kilogram of methamphetamine from Fa- gundez "four to five months" prior to Nance's arrest in December 2019, and he testified he then bought "a kilo or two a week" of methamphetamine from Cervantes "for about three to four months," usually meeting with Fagundez to pay for and receive the drugs. Additionally, the calls and messages between Nance and Cervantes frequently referenced "Diego." Thus, Nance's testi- mony, along with calls and messages between Nance and Cervan- tes, established Fagundez frequently served as an intermediary for Cervantes' and Nance's weekly drug deals over a span of several months. As Fagundez concedes he provided 3.963 kilograms of methamphetamine to Nance on December 13, the district court's finding Fagundez was responsible for only 2 additional kilograms was a conservative estimate considering Nance's testimony he bought "a kilo or two" a week for "four to five months" after first meeting Fagundez. See Dixon, 901 F.3d at 1349.

Because the district court's finding regarding the drug amount for which Fagundez was responsible was a conservative estimate based on the evidence introduced at trial, the district court did not clearly err in determining Fagundez was responsible for

5.963 kilograms of methamphetamine.

III. CONCLUSION

Accordingly, we affirm Fagundez's conviction and sentence.

AFFIRMED.

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