USCA11 Case: 21-13835 Date Filed: 11/23/2022 Page: 1 of 7

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-13835 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILIS A. SANTIAGO RIVERA,

Defendant-Appellant.

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:19-cr-00406-TPB-TGW-7 ____________________ USCA11 Case: 21-13835 Date Filed: 11/23/2022 Page: 2 of 7

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Before JORDAN, NEWSOM, and BLACK, Circuit Judges. PER CURIAM: Wilis Santiago Rivera appeals his conviction for conspiracy to possess with intent to distribute 400 grams or more of fentanyl. First, Santiago Rivera asserts the district court violated his Sixth Amendment Confrontation Clause rights by allowing the Govern- ment to introduce transcripts of translated telephone calls when the original translator was not offered as a witness and was not sub- ject to cross-examination. Santiago Rivera also asserts the district court abused its discretion in admitting evidence of a drug transac- tion that occurred two and half months before he was allegedly in- volved in the drug conspiracy. After review, we affirm. I. DISCUSSION A. Confrontation Clause Under the Confrontation Clause, “the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, the Supreme Court explained the Confrontation Clause’s “primary object” is “testimo- nial hearsay.” 541 U.S. 36, 53 (2004). If hearsay is “testimonial,” the Confrontation Clause forbids its introduction at trial, unless: (1) the declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine the declarant. Id. at 53-54. Testimo- nial statements include statements that are the functional equiva- lent of in-court testimony, such as affidavits, depositions, prior USCA11 Case: 21-13835 Date Filed: 11/23/2022 Page: 3 of 7

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testimony, and statements made under circumstances which would lead an objective witness to reasonably believe the state- ment would be available for use at a later trial. Id. at 51-52. We clarified the Confrontation Clause prohibits only testimonial state- ments that constitute impermissible hearsay, because the Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. United States v. Jiminez, 564 F.3d 1280, 1286-87 (11th Cir. 2009) (citing Crawford, 541 U.S. at 59 n. 9). In a case with a translated wiretap transcript, we held the Confrontation Clause is not violated when an individual who independently reviewed the underlying recordings and tran- scripts for accuracy is subject to cross-examination. United States v. Curbelo, 726 F.3d 1260, 1275-76 (11th Cir. 2013) (explaining that the Confrontation Clause “only insists that testimony be subject to cross-examination”). The Confrontation Clause does not require that “anyone whose testimony may be relevant in establishing the chain of custody . . . must appear in person as part of the prosecu- tion’s case.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1 (2009). Plain error review applies to Rivera’s Confrontation Clause claim as he objected to the translated transcripts only on hearsay and authenticity grounds. See United States v. Arbolaez, 450 F.3d 1283, 1291 & n.8 (11th Cir. 2006) (reviewing for plain error where a defendant did not lodge a timely Confrontation Clause objection and explaining a hearsay objection to testimony at trial, standing alone, does not preserve a constitutional challenge under the USCA11 Case: 21-13835 Date Filed: 11/23/2022 Page: 4 of 7

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Confrontation Clause for appeal). We note Santiago Rivera had access to the transcripts well over a year before trial began. Despite having the transcripts since the first discovery production, Santiago Rivera failed to produce any alternative transcripts or point to any errors in the transcripts. Santiago Rivera cannot show a Confron- tation Clause error existed, plain or otherwise, because (1) the tran- scripts did not constitute testimonial hearsay, and (2) the Govern- ment offered witnesses who testified as to the transcript’s accuracy based on an independent review of the telephone calls and tran- scripts. First, Santiago Rivera’s assertion the written transcripts con- stituted inadmissible hearsay as translations of the interpreter has been rejected by this Court. See United States v. Alvarez, 755 F.2d 830, 859-60 (11th Cir. 1985) (holding translations of a defend- ant’s statements do not constitute impermissible hearsay, because the interpreter acts as the defendant’s agent, where the interpreter had sufficient capacity and no motive to mislead). Neither the statements of Santiago Rivera nor his co-conspirators in further- ance of the conspiracy would be considered hearsay under the Fed- eral Rules of Evidence. See Fed. R. Evid. 801(d)(2)(A), (E). Noth- ing suggests the translator did not have sufficient capacity to inter- pret the telephone calls or that the translator had any motive to mislead the agents. See Alvarez, 755 F.2d at 859-60. Second, although the Government did not proffer its origi- nal translator as a witness, the record shows it offered Special Agent Hayley Hovhanessian, who testified as to the process. She testified that monitors and linguists were located in a secured, limited- USCA11 Case: 21-13835 Date Filed: 11/23/2022 Page: 5 of 7

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access room and listened to the calls, read the texts, and transcribed the wires if they were in Spanish. Special Agent Santos Miranda testified he had listened to the calls and reviewed the transcripts, and the English translations were substantially accurate. Further, Juan Ramos admitted to being a party on the recordings and testi- fied as to the transcripts’ accuracy. The Confrontation Clause “only insists that testimony be subject to cross-examination,” and Ramos and Special Agents Hovhanessian and Miranda were all cross-examined; thus, the Confrontation Clause was not violated. See Curbelo, 726 F.3d at 1275; see also Melendez-Diaz, 557 U.S. at 311 n.1. The district court did not err, plainly or otherwise, by allow- ing the Government to introduce the translated transcripts without offering the original translator as a witness. 1

1 Santiago Rivera’s reliance on United States v. Charles, 722 F.3d 1319 (11th Cir. 2013), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), is misplaced. As Santiago Rivera concedes, in Charles, the witness testified as to an inter- preter’s statements. See Charles, 722 F.3d at 1323-24. This is distinguishable from Miranda offering testimony as to the transcript’s accuracy based on his independent review, rather than statements by the original translator. In Bull- coming, the government sought to introduce a forensic laboratory report con- taining a testimonial certification through the in-court testimony of an analyst who did not sign the certification or perform or observe the reported test. See Bullcoming, 564 U.S. at 657. USCA11 Case: 21-13835 Date Filed: 11/23/2022 Page: 6 of 7

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B. Evidence of Drug Transaction Rule 401 of the Federal Rules of Evidence provides that evi- dence is relevant if (1) it has any tendency to make a material fact more or less probable than it would be without the evidence and (2) the fact is of consequence in determining the action. Fed. R. Evid. 401. Relevant evidence is generally admissible, whereas ir- relevant evidence is never admissible. See Fed. R. Evid. 402. The district court did not abuse its discretion in concluding the evidence from the November 2018 drug transaction was rele- vant. See United States v. Dothard, 666 F.2d 498, 501 (11th Cir. 1982) (stating a trial court has broad discretion in determining the admissibility of evidence, and its determination will not be dis- turbed absent a clear abuse of discretion). Santiago Rivera was not observed at the scene in November 2018. However, the photo- graph of the recovered drugs and related testimony showing the drugs involved in Santiago Rivera’s drug transaction was from the same shipment tested by the DEA and found to be fentanyl made it more probable the substance he conspired to possess was fenta- nyl. Fed. R. Evid. 401. Under these circumstances, and considering the district court’s broad discretion in determining the admissibility of evidence, the district court did not abuse its discretion by admit- ting the November 2018 drug transaction evidence. See id. USCA11 Case: 21-13835 Date Filed: 11/23/2022 Page: 7 of 7

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II. CONCLUSION The district court did not err in allowing the Government to introduce the translated transcripts or abuse its discretion in admit- ting the drug transaction evidence. AFFIRMED.