United States v. Damien Bernard Osborne

Case: 15-14283 Date Filed: 01/04/2017 Page: 1 of 19

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________

No. 15-14283

_________________________

D.C. Docket No. 1:15-cr-00031-DHB-BKE-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAMIEN BERNARD OSBORNE,

Defendant-Appellant.

__________________________

Appeal from the United States District Court

for the Southern District of Georgia

__________________________

(January 4, 2017)

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Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and JOSE

MARTINEZ, * District Judge.

PER CURIAM:

Appellant Damien Bernard Osborne challenges his conviction for armed

bank robbery, following a three-day jury trial. He raises arguments that the district

court improperly admitted two categories of evidence: (1) text messages between

a cell-phone number attributed to Osborne and other numbers, and (2) summary

exhibits concerning the text messages. We have carefully reviewed the record and

the parties’ briefs, and we have heard oral argument. Because we find no

reversible error, we now affirm Osborne’s conviction.

I.

A. The Trial

On March 4, 2015, a federal grand jury in the Southern District of Georgia

indicted Osborne on two counts: armed bank robbery, in violation of 18 U.S.C. §

2113(a) and (d); and using, carrying, and branding a firearm during a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The court held a three-day

jury trial on the charges. During the trial, the following evidence was presented.

*

The Honorable José Martínez, United States District Judge for the Southern District of

Florida, sitting by designation.

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1. The Bank Robbery

On December 2, 2013 at 11 a.m., two masked armed men in hoodies and

wearing gloves entered the front door of Southern Bank, a bank insured by the

Federal Deposit Insurance Corporation. They grabbed several bank employees,

pointed guns at them, and threatened to kill them if the employees did not comply

with the robbers’ demands. The men yelled at everyone to lie down on the floor in

the bank lobby. Then they threatened a bank teller to “give them the money,” so

she did.

Cash that the robbers took was bound by “bill straps” (money wrappers)

stamped with the words “Southern Bank.” The wrappers on each stack of cash

bore the bank’s name, the teller’s number and initials, and the date that the teller

had wrapped the money. The robbers stole a total of $10,980 from Southern Bank.

2. The Post-Robbery Events

In the aftermath of the robbery, witnesses observed the robbers drive away

in a black BMW. The black BMW stopped at the “Lovett house,” where Melvin

Jones saw three men walk away from it after parking it in the backyard of the

house. Jones observed the three men enter the screened-in back porch area of the

house next door to the Lovett house. Later, Jones saw the men leave in a different,

light-colored car.

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Later that same day, Willie McKelton, who lives next door to the Lovett

house, discovered that his porch was not as he had left it. On his porch, McKelton

found money wrappers. McKelton had heard about the bank robbery earlier in the

day from conversations on “social media” and people talking “in the break room”

where he worked, so McKelton reported his findings to the police.

3. The Investigation

The Georgia Bureau of Investigation investigated the scene at the Lovett

house and McKelton’s home. They found fingerprints on two of the money

wrappers, another piece of paper, and possibly a napkin.

James Gordon, a retired sergeant with the Richmond County Sheriff’s office,

identified two of the fingerprints on the money wrappers as those of Damien

Osborne. These wrappers had the Southern Bank logo on them, the bank teller’s

number and initials, and the dates of November 25, 2013, and December 2, 2013.

Sergeant Thomas Johnson, an officer with the Richmond County Sheriff’s office,

likewise identified the prints as those of Osborne.

Investigators also processed the black BMW they found at the Lovett house

Inside the car, they found a $10 bill, a receipt from Check Exchange Number 2

with the name “Damien Osborne” printed on it, and a piece of cardboard used to

package a pair of gloves.

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Danette Spears, the manager of the Check Exchange location identified on

the receipt found in the black BMW, testified that Osborne had opened an account

to cash checks there. Spears explained that Osborne’s personal information was

taken at the time he opened his accounts, and Osborne’s account application was

admitted into evidence. In the application, Osborne listed his telephone number as

(706) 831-4017.

Bernard Osborne, Damien Osborne’s father, testified that his son called him

on December 2, 2013, to ask him if he could leave his car at the Lovett house,

which belonged to Bernard Osborne’s deceased grandfather.

The Federal Bureau of Investigation (“FBI”) also got in on the action. FBI

Special Agent Paul Kubala learned that a black BMW matching the description of

the one involved in the robbery had been recovered and that it was registered to

Dianne Davis. Dianne Davis told Kubala that the vehicle belonged to her son,

William Davis, who was incarcerated at the time and had loaned the car to a man

named “Slick.” Kubala obtained Slick’s phone number from Dianne Davis and

went to Rhinehart’s Oyster Bar, where, according to Dianne Davis, Slick worked.

At Rhinehart’s, Esha Tankersley immediately identified “Slick” as her employee

Damien Osborne. She also told Kubala that Osborne drove a black BMW and that

he had abruptly stopped showing up for work on November 24, 2013.

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William Davis confirmed that he had lent his black BMW to Osborne upon

William Davis’s imprisonment. He denied having placed the receipt bearing

Osborne’s name or the glove packaging inside the BMW. In addition, William

Davis noted that the name and phone number for Slick provided to Kubala by

Dianne Davis were written in his mother’s handwriting, and the paper looked like

it came out of his mother’s address book. William Davis explained that he told his

mother that Slick would have his black BMW, and he told her how to get in touch

with Slick.

4. Phone Records and Text Message Evidence Admitted at Trial

Jasmine Tell, a records custodian from Verizon Wireless, testified regarding

text messages and phone calls made from the telephone numbers (706) 825-6858

(“6858”) and (706) 831-4017 (“4017”). She stated that (1) the records Verizon

produced in the case were made at or near the time of the events described; (2) the

records were kept in the regular course of business; and (3) it was a regular

practice of the business to make the records. Tell also testified that phone number

6858 was activated on November 27, 2013, just a few days before the December 2,

2013, robbery at Southern Bank.

The government presented summary documents containing the text

messages. Tell ensured that the listed dates, times, and designation of the text

messages as incoming or outgoing on these summary documents were accurate and

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corresponded with Verizon’s source material containing the summarized

information.

Osborne objected to the government’s introduction and use of the summary

documents, arguing that the exhibits did not satisfy the requirements of Rule 1006

of the Federal Rules of Evidence because they were not voluminous. In response,

the government took the position that despite the length of the records, they

nonetheless qualified as admissible summaries because they organized records not

otherwise clearly decipherable by the jury, and it noted that the source documents

were attached. The court admitted the exhibits but gave a limiting instruction

regarding the jury’s use of the summary documents, explaining to the jury the

difference between the actual records as “source evidence” and the summary

documents and testimony.

Osborne also objected to the content of the text-message evidence from the

6858 and 4017 phones on the basis of “hearsay within hearsay.” 1 The government

responded, asserting that the evidence was not hearsay because, among other

reasons, it was admissible under the business-records exception. Significantly,

Osborne replied that he made his hearsay-within-hearsay objection to only “the

substance of the communications not allegedly authored by the defendant.”

1

Osborne did not object to Tell’s testimony on the basis that the government had not

established the relevance of the text messages because it had not proved that Osborne owned or

used those phones.

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(emphasis added). Instead, Osborne clarified, he objected to the incoming text

messages of the “third parties.” The court admitted both the incoming and

outgoing text messages because it concluded that “[h]alf of a conversation would

be meaningless and would likely be unintelligible.”

Exhibit 89C-3 showed text messages between 6858 and (706) 373-3107 on

December 2, 2013, at 7:34 a.m.:

Outgoing [from 6858]: U up?

Incoming: yeah

Outgoing: Cum thur lets go

Incoming: come where bra

Outgoing: My house

Incoming: give me a min bra

Outgoing: Bra lets get it

Incoming: ight bra

Exhibit 89C-2 included text messages on the same day at 7:45 a.m., between

6858 and (706) 461-9515, in which the user of 6858 identified himself as “Slick”:

Outgoing [from 6858]: Whats popn 5?

Incoming: who dis b

Outgoing: Slick fool hit me

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Exhibit 89D consisted of actual Verizon records of one text message that

was received by 4017 on November 26, 2013. The incoming, third-party text

message identified Slick as the individual using the 4017 phone number at the

time, stating in pertinent part, “[s]ayn you known for doin it that’s y ya name

Slick.”

Exhibit 89G, which Tell testified was a summary exhibit showing the

quantity of incoming and outgoing calls from numbers 6858 and 4017, was also

admitted into evidence at the trial. Tell testified that on November 26, 2013,

number 4017 participated in 199 calls and texts. Number 6858 was activated on

November 2, 2013, and, when the quantity of texts and phone calls from 4017

decreased, the number of texts and calls from 6858 increased. On December 2,

2013, 4017 made one call or sent one text, and 6858 participated in 296 calls and

texts.

And although Exhibit 89C-l was not discussed at trial, this admitted exhibit

shows a conversation between a third party and 6858, which identifies “Damien”

as the 6858 phone’s user: “Damien ugly how the hell u gone put me on hold don’t

come back to the phone that s rude and inconsiderate this exactly why we can

never get along.”

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5. Cell-Phone Tower/“Ping” Evidence

Finally, the government presented evidence showing that immediately after

the Southern Bank robbery, 6858 used a cell tower that covered the location of

Southern Bank, and between 11:21 a.m. and 12:45 p.m., 6858 used a cell tower

that covered the location of the Lovett house. Osborne did not object to this

evidence.

B. The Verdict and Sentence

At the close of the evidence, the jury returned a guilty verdict on both

counts. The district court sentenced Osborne to 155 months in prison (71 months

as to Count 1 and 84 months as to Count 2, to be served consecutively). Osborne

now appeals his conviction, challenging the admission of both incoming and

outgoing text messages and the summary exhibits.

II.

We generally review a district court’s evidentiary rulings for abuse of

discretion. United States v. Massey, 89 F.3d 1433, 1441 (11th Cir. 1996). But

where a party failed to object at trial, we review the district court’s decision for

plain error only. See Fed. R. Crim. P. 52(b); United States v. Jernigan, 341 F.3d

1273, 1280 (11th Cir. 2003). Under the plain-error standard, an appellant must

show that (1) an error occurred; (2) the error was plain; and (3) the error affected

the appellant’s substantial rights. United States v. Shelton, 400 F.3d 1325, 1328-29

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(11th Cir. 2005). Only if all three requirements are satisfied may we exercise our

discretion to “notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (citations and

internal quotation marks omitted).

A.

We begin by addressing Osborne’s argument that the district court

committed reversible error in admitting the text messages. In the district court,

Osborne objected to the admissibility of the incoming text messages only, not the

outgoing ones. But as we have noted, on appeal, Osborne challenges the

admission of both the incoming and outgoing text messages. Because Osborne

raises his objection to the outgoing text messages for the first time on appeal, we

review this aspect of his claim for plain error.

Here, Osborne asserts that the district court could not have properly admitted

the outgoing text messages under the business-record exception to the hearsay rule.

See Fed. R. Evid. 803(6). Rule 803(6) excepts from the hearsay rule “records of a

regularly conducted activity.” To qualify for this exception, the proponent of the

evidence must establish the following:

(A) the record was made at or near the time by—or

from information transmitted by—someone with

knowledge;

(B) the record was kept in the course of a regularly

conducted activity of a business, organization,

occupation, or calling, whether or not for profit;

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(C) making the record was a regular practice of that

activity;

(D) all these conditions are shown by the testimony of

the custodian or another qualified witness . . . ; and

(E) the opponent does not show that the source of

information or the method or circumstances of

preparation indicate a lack of trustworthiness.

Id. Osborne essentially argues that the content of the outgoing text messages is

hearsay because Verizon did not have knowledge of the information contained

within the content of the outgoing text messages, and it lacked adequate

verification or other assurance of accuracy of the information. The government

responds that the Verizon documents qualify as business records because, based on

the Verizon representative’s testimony, they reliably report the content of the text

messages they document, and that is all that was at issue.

Osborne bases his argument on United States v. Blechman, 657 F.3d 1052

(10th Cir. 2011). There, the Tenth Circuit considered whether information

appearing in an alleged business record but provided by an outsider to the business

who is not under a business duty to provide accurate information may ever be

excepted from the hearsay rule under Rule 803(6). See id. at 1065-66. It

concluded that such information may qualify for admission under Rule 803(6) “[i]f

the business entity has adequate verification or other assurance of accuracy of the

information provided by the outside person.” Id. at 1066 (citation and internal

quotation marks omitted). In particular, the Tenth Circuit noted two methods of

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demonstrating the requisite “guarantee of trustworthiness”: “(1) proof that the

business has a policy of verifying [the accuracy of information provided by

someone outside the business]; or (2) proof that the business possesses ‘a sufficient

self-interest in the accuracy of the [record]’ to justify an inference of

trustworthiness.” Id. (citation and internal quotation marks omitted) (alteration in

original).

We have previously explained that “at least where the explicit language of a

. . . rule does not specifically resolve an issue, there can be no plain error where

there is no precedent from the Supreme Court or this Court directly resolving it.”

United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). As the

Blechman discussion illustrates, the explicit language of Rule 803(6) does not

specifically resolve the question of whether the content of text messages is

admissible under the rule in the circumstances of this case. And Osborne’s

reliance on a Tenth Circuit case to make his argument is an implicit concession

that he has found no Supreme Court or Eleventh Circuit case that directly resolves

the issue. Nor have we. For these reasons, even assuming arguendo that the

district court’s admission of the outgoing text messages was error, it did not

constitute plain error.

And even if it had been plain error, in this case, the admission of the

outgoing texts did not affect Osborne’s substantial rights. To show that an error

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affected Osborne’s substantial rights, Osborne had to demonstrate that the error

“affected the outcome of the district court proceedings.” Puckett v. United States,

556 U.S. 129, 135 (2009) (citation and quotation marks omitted).

Here, he could not do that. The evidence in this case was overwhelming,

even in the absence of the content of the text messages. William Davis testified

that he lent the black BMW—the robbery get-away car—to Osborne when Davis

went to jail; Tankersley similarly attested that Davis drove a black BMW and

stopped showing up for work shortly before the robbery; the black BMW was

found at the Lovett house, which was owned by Osborne’s family; a receipt with

Osborne’s name, along with packaging for gloves (such as those used during the

robbery), was found inside the black BMW; Southern Bank money wrappers dated

within a day and about a week of the robbery and bearing Osborne’s fingerprints

were found on the porch of the home next to the Lovett house; and the 6858

number, which started being used only when the 4017 number—which Osborne

identified as his own on the unobjected-to Check Exchange application—decreased

in usage, was used in the vicinity of the robbed bank just after the robbery and in

the area of the Lovett house soon thereafter. Against this evidence, the limited

content of the outgoing text messages could not reasonably be viewed as having

had any substantial effect on the jury’s determination of guilt.

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Nor does Osborne fare any better on his challenge to the admission of the

incoming messages. Though we review this district-court decision for abuse of

discretion, we find none.

In United States v. Rivera, 780 F.3d 1084 (11th Cir. 2015), we recently

noted that “where the admission of the substance of a communication between the

defendant and another person is sought, the fact that the statements made by the

other person were out of court does not, as a blanket matter, preclude admission.”

Id. at 1093. Under Rivera, statements from a non-defendant are admissible to give

context to the defendant’s alleged statements when the non-defendant’s statements

were also non-hearsay because they were “non-assertive statements that are

incapable of being true or false or . . . statements that are indisputably false.” Id. at

1092.

In Osborne’s case, the district court admitted several incoming text messages

that fit Rivera’s framework for admissible, third-party, non-assertive statements

that give context to the defendant’s alleged statements: Exhibit 89C-3, for

example, shows four incoming texts: (1) “yeah;” (2) “come where bra;” (3) “give

me a min bra;” and (4) “ight bra.” These statements, as the district court

explained, give context to Osborne’s outgoing text messages, and they were not

admitted for the truth of the matter asserted—particularly because they do not

really assert anything. See Rivera, 780 F.3d at 1092. In Exhibit 89C-2, also, the

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only incoming text is a question—“who dis b”—which is also not an assertive

statement, and which gives context to Osborne’s alleged response identifying

himself.

In Exhibit 89C-1, the declarant calls the owner of the 6858 phone by the

name “Damien,” thus purporting to identify the recipient of the message. Exhibit

89C-1 was also presented alone, as only one incoming message without any

outgoing messages, so it is not admissible in order to place any of Osborne’s

statements into context.

Nevertheless, we need not decide whether this text message constituted

inadmissible hearsay because even if it did, the court’s admission of the message

was harmless error. When, as alleged here, nonconstitutional error occurs in

criminal cases, “we apply the federal harmless-error statute, which provides that on

appeal we must ignore ‘errors or defects which do not affect the substantial rights

of the parties.’” United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir. 1999)

(quoting 28 U.S.C. § 2111).

As we have explained, in the absence of the text messages, the evidence of

Osborne’s guilt was plentiful and strong. So even the omission of all of the text

messages would have been highly unlikely to have produced a different verdict,

and an improper admission by the district court does not warrant reversal unless

“[a] significant possibility . . . exist[s] that, considering the other evidence

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presented by both the prosecution and the defense, the . . . statement had a

substantial impact upon the verdict of the jury.” See United States v. Arbolaez, 450

F.3d 1283, 1290 (11th Cir. 2006) (quoting United States v. Rodriguez, 524 F.2d

485, 487 (5th Cir. 1975)). Since that is not the case here, the admission of the

incoming texts—even if erroneous—cannot provide grounds for a reversal of

Osborne’s conviction.

B.

Osborne also contends that the district court committed reversible error in

admitting Government Exhibits 89C-l, 89C-2, and 89C-3 under Rule 1006, Fed. R.

Evid. As we have noted, these exhibits summarized the information contained on

the Verizon records setting forth the text messages sent to and from phone numbers

6858 and 4017. In explaining the basis for his challenge, Osborne argues that “a

single incoming text message consisting of 29 words does not constitute

‘voluminous writings’ to warrant its separate admission as summary exhibit 89C-3.

Likewise, the three text messages in summary exhibit 89C-2, which totaled 32

characters, are not voluminous.” Because the district court allowed the text

messages in the form of summary exhibits, Osborne argues, it “bolstered their

significance to the jury and thereby harmed Mr. Osborne.”

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We review a district court’s decision to admit summary charts under Rule

1006 for abuse of discretion. United States v. Richardson, 233 F.3d 1285, 1293

(11th Cir. 2000).

Rule 1006 states, in relevant part, that “[t]he proponent may use a summary,

chart, or calculation to prove the content of voluminous writings, recordings, or

photographs that cannot be conveniently examined in court.” Fed. R. Evid. 1006

(emphasis added). Though we have noted that summary charts have potential for

abuse, we have also explained that summary exhibits are permissible so long as

they are supported by the record, the supporting evidence has been presented to the

jury, and the court informs the jury that it has the responsibility to decide what

weight to give the summaries. Richardson, 233 F.3d at 1293-94. We have further

reasoned that “where the defense has the opportunity to cross-examine a witness

concerning the disputed issue and to present its own version of the case, ‘the

likelihood of any error in admitting summary evidence diminishes.’” Id. (citation

and internal quotation marks omitted). Applying these standards, we find no abuse

of discretion in the admission of the summary exhibits.

First, the exhibits were supported by the record, the supporting evidence was

presented to the jury (and, in fact, included with the summary exhibits), and the

court properly instructed the jury on the role of the summary exhibits, explaining

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that the jury could rely on them only to the extent that it found them helpful but

that the summaries should not replace the source evidence.

Second, though the source documents were not lengthy—about ten pages—

the information they contained was nonetheless “voluminous.” Indeed, we agree

with the government’s description of the source documents as “complicated[] and

disorganized,” in that they contained only a very few text messages scattered

amongst vast “fields of information” that would be “virtually incomprehensible to

a lay person.” For this reason—as the government explained and, after examining

the source documents, we can see why—locating and organizing the messages

within Verizon’s technical records could not have “be[en] done conveniently”

from the witness stand in the absence of the summary exhibits. As a result, the

summary exhibits made voluminous information much more easily accessible and

understandable to the jury.

Third, Osborne had the opportunity to, and did, in fact, thoroughly cross-

examine Verizon’s records custodian regarding the summary exhibits. On this

record, we find no abuse of discretion in the district court’s admission of the

summary exhibits.

III.

For the foregoing reasons, Osborne’s conviction is AFFIRMED.

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