United States v. Messiah Green, 396 F. App'x 573 (11th Cir. 2010). · Go Syfert
United States v. Messiah Green, 396 F. App'x 573 (11th Cir. 2010). Cases Citing This Book View Copy Cite
16 citation events (16 in the last 25 years) across 7 distinct courts.
Cited for
At page 575 Determining testimonial nature of business records for evidence5 citing cases“bjecause the cell phone records were generated for the administration of metro pcs's business, and not for the purpose of proving a fact at a, criminal trial, they were nontestimonial, and the district court did not violate the defendant's constitutional right to confrontation by admitting them int…”1 citing court quotes it · passage not found verbatim in the opinion (88%)
  • United States v. Khatallah, 278 F. Supp. 3d 1 (D.D.C. 2017).published
    Id.; see also United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir. 2011) (holding that admission of telephone records as business records did not violate Confrontation Clause); United States v. Green, 396 Fed.
  • United States v. Burgos-Montes, 786 F.3d 92 (1st Cir. 2015).published
    See, e.g., United States v. Yeley-Davis, 632 F.3d 673, 678-79 (10th Cir.2011); United States v. Green, 396 Fed.Appx. 573, 575 (11th Cir.2010) (per curiam).
  • Galloway v. State, 122 So. 3d 614 (Miss. 2013).published
    As to Galloway’s argument with regard to the phone .records, they were admitted, without objection, under the business-record exception of Rule 803(6) of the Mississippi Rules of Evidence, “which by their nature, are non-testimonial for pu…
  • State v. Hood, 2012-Ohio-6208, 984 N.E.2d 1057.published 2 cites
    Id. at 679 . {¶ 37} Likewise, in United States v. Green, 396 Fed.Appx. 573, 575 (11th Cir.2010), the court held that subpoenaed records from the defendant’s cell-phone carrier were not testimonial: “[The defendant’s] cell phone records and…
  • State v. Hood, 2012-Ohio-5559, 984 N.E.2d 929.published
    Rather, these records were kept for Verizon’s business purposes. *603 Id. at 679 . {¶ 34} Likewise, in United States v. Green, 396 Fed.Appx. 573, 575 (11th Cir.2010), the court held that subpoenaed records from the defendant’s cell-phone c…
At page 574 Determining if records are testimonial under confrontation clause3 citing casesformation from Green’s cell phone on the day of the robbery, which it had subpoenaed from Metro PCS into evidence. He contends that, because the records were…opening of page *574 (no citing court says what it cites this page for)
  • People v. Ortega, 2016 COA 148, 405 P.3d 346.published
    See id.; United States v. Green, 396 Fed.Appx. 573, 574-75 (11th Cir. 2010) (“[Bjecause the [cell phone] records were generated for the administration of Metro PCS’s business, and not for the purpose of proving a fact at a, criminal trial,…
  • United States v. Keck, 643 F.3d 789 (10th Cir. 2011).published
    Id. (quoting United States v. Green, 396 Fed.
  • State v. McNeil, 2013 UT App 134, 302 P.3d 844.published
    See, eg., United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir.2011); United States v. Green, 396 Fed.Appx. 573, 574-75 (11th Cir.2010); People v. Turner, B235057, 2013 WL 414222 , *7 (Cal.Ct.App.
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Messiah GREEN, Defendant-Appellant
10-10300.
Court of Appeals for the Eleventh Circuit.
Aug 31, 2010.
Unpublished opinion
396 F. App'x 573
Kim Dammers, John Andrew Horn, Paul Jones, Sally Yates, Assistant U.S. Attorney, Office of U.S. Attorney, Atlanta, GA, for Plaintiff-Appellee., E. Vaughn Dunnigan, E. Vaughn Dunni-gan, P.C., Atlanta, GA, for Defendant-Appellant.
Edmondson, Barkett, Martin.
Cited by 12 opinions  |  Unpublished
PER CURIAM:

Messiah Green appeals his convictions, and 241-month total sentence, for armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (Count 1), and possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(l)(A)(iii) (Count 2).

Green raises two issues on appeal. First, he appeals his convictions, arguing that the district court violated his Sixth Amendment right to confront witnesses against him when it admitted the cell phone records and cell tower location in[*574] formation from Green’s cell phone on the day of the robbery, which it had subpoenaed from Metro PCS into evidence. He contends that, because the records were testimonial for purposes of the Sixth Amendment’s Confrontation Clause, he was entitled to cross-examine a Metro PCS employee at trial. [1] Second, Green argues that his sentence for Count 1 was procedurally unreasonable because the district court erroneously found that he organized the robbery, and thus, was subject to a two-level enhancement pursuant to U.S.S.G. § 3Bl.l(c).

I. Admission of Cell Phone Records

We review a district court’s evidentiary rulings for abuse of discretion, and questions of whether a hearsay statement is “testimonial” for purposes of the Sixth Amendment de novo. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir.2010).

The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with witnesses against him.” U.S. Const, amend. VI. The Confrontation Clause bars the admission of hearsay evidence that is “testimonial” unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). “Testimonial” statements are typically “solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact,” and may include “material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” Id. at 541 U.S. at 51-52, 124 S.Ct. at 1364. Generally, business records are “by their nature [ ] not testimonial.” Id. at 541 U.S. at 56, 124 S.Ct. at 1367.

The Supreme Court recently expanded its definition of “testimonial” statements to include affidavits containing the results of forensic analysis of seized substances. Melendez-Diaz v. Massachusetts, — U.S. -, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009). It did so because such affidavits were “made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial,” and their sole purpose “was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance.” Id. (citation and quotations omitted). The Court rejected the argument that the affidavits were admissible as business records, stating that:

Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here — prepared specifically for use at petitioner’s trial — were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.

Id. at — U.S. at-, 129 S.Ct. at 2539-40.

Consistent with the Supreme Court’s decision in Melendez-Diaz, we have held that documents which are routinely recorded[*575] for a purpose other than preparation for a criminal trial are non-testimonial for purposes of the Sixth Amendment. See Caraballo, 595 F.3d at 1226-29 (holding that an immigration form, used for “routine, objective cataloging of unambiguous biographical matters,” was not testimonial because it was primarily used to track the entry of aliens into the United States, and it was “of little moment that an incidental or secondary use of the interviews underlying the [ ] forms actually furthered a prosecution.”). We have also held that the documents at issue in this case, cell phone records and cell tower locations, are business records within the meaning of Fed. R.Evid. 803(6), and thus, satisfy an exception to the hearsay rule. See United States v. Sanchez, 586 F.3d 918, 929-30 (11th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 1926, 176 L.Ed.2d 394 (2010).

We conclude that Green’s cell phone records and cell tower location information qualified as business records under Fed.R.Evid. 803(6) which, by their nature, are non-testimonial for purposes of the Sixth Amendment. See Crawford, 541 U.S. at 56, 124 S.Ct. at 1367; Sanchez, 586 F.3d at 929-30. Further, because the records were generated for the administration of Metro PCS’s business, and not for the purpose of proving a fact at a criminal trial, they were non-testimonial, and the district court did not violate Green’s constitutional right by admitting them into evidence.

II. Sentencing

“A district court’s upward adjustment of a defendant’s Guidelines offense level due to his status as a leader or organizer under U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear error.” United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir.2002).

In determining whether a defendant was an organizer or leader, pursuant to U.S.S.G. § 3Bl.l(c), the district court should consider the following factors:

the exercise of discretion making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

U.S.S.G. § 3B1.1, comment, (n. 4). “The assertion of control or influence over only one individual is enough to support a § 3B1.1(c) enhancement.” Phillips, 287 F.3d at 1058. In Phillips, we concluded that there was “abundant evidence” supporting the district court’s finding that the defendant was an organizer of a bank robbery when two codefendants testified that he did most of the planning and preparation for the robbery, including suggesting the idea of the bank robbery, selecting the bank to be robbed, providing the guns, and purchasing the supplies, and then waited in a get-away car monitoring a police scanner during the commission of the robbery. Id.

In this case, the trial judge heard evidence that Green suggested the bank robbery, selected the bank, recruited two accomplices, developed the plan for the robbery, and played the primary role during the actual commission of the robbery. Based thereupon, it was not clear error for the district court to find that Green was subject to a two-level enhancement pursuant to U.S.S.G. § 3Bl.l(c).

For the foregoing reasons, Green’s conviction and sentence are

AFFIRMED.

1

. Although a Metro PCS employee was not available to testify at trial, the records were certified as accurate, and an expert witness testified, and was available for cross-examination, as to the meaning of the documents.