Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:07-cr-00313-1-Charles R. Norgle, Sr., Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
A jury found Monico R. Albiola guilty of one count of attempting to possess with intent to distribute methamphetamines, in violation of 21 U.S.C. § 846, and one count of knowingly and intentionally using a communication facility in the commission of a controlled substance offense, in violation of 21 U.S.C. § 843(b). Albiola appeals his conviction, arguing that the district court erred by admitting evidence of other mailing labels unrelated to the charged offense. Because the other mailing labels were admissible as evidence of absence of mistake under Rule 404(b), we find that any error in their admission was harmless. Although Albiola contends that the testimony of a law enforcement agent describing the methods and results of his investigation constituted impermissible hearsay, we find that the testimony did not contain any out-of-court statements. We therefore affirm Albiola's conviction.
On May 10, 2007, United States Postal Inspector Service ("USPIS") agents at O'Hare International Airport's mail center intercepted an Express Mail package addressed to "Monico Albiola, 1310 Cambia Drive, Apartment 6119, Schaumburg, Illinois." The return address was "David Albiola, 11014 3rd Street, Cashion, Arizona." After searching various law enforcement and public databases, the USPIS agents determined that the Arizona address existed but that no "David Albiola" was affiliated with it. The inspectors then obtained a search warrant and opened the package. Inside was a smaller box containing a coffee maker, and inside the coffee maker's carafe were two plastic bags containing a white powdered substance. According to analysis performed by the Drug Enforcement Administration ("DEA"), the substance, which weighed over 120 grams in total, was a mixture containing methamphetamine.
A few days later, USPIS conducted a controlled delivery of the package under government surveillance.
The package had been repacked to contain a lookalike substance and a tracking device to monitor when the package was moved or opened. USPIS Inspector Eduardo Andrade, who was dressed as a mail carrier, delivered the package to the Schaumburg address. Albiola signed for and accepted the package, but rather than reentering his apartment immediately, Albiola lingered in the doorway and watched Andrade as he walked down the hallway. After Andrade was out of sight, Albiola took the package inside the apartment, deadbolted the front door, and locked the sliding glass door. A few minutes later, the tracking device alerted, which indicated that the package had been opened. At this point, law enforcement agents entered the apartment pursuant to a search warrant and found Albiola in the hallway outside the master bedroom. The agents discovered the package inside the master bedroom. The coffee maker had been taken out of the box, and the carafe was pulled out slightly. The top of the carafe had been removed, leaving the two plastic bags containing the white substance exposed. During a post-arrest interview, Albiola stated that the package contained "something" he had purchased in Arizona. Albiola was indicted for attempted possession with intent to distribute methamphetamines and use of a communication facility in committing a drug offense, in violation of 21 U.S.C. §§ 846 and 843(b).
During Albiola's trial, the government elicited testimony from USPIS Inspector Jeffrey Gunther, who was primarily responsible for this investigation. Gunther testified about his attempts to verify the existence of "David Albiola," the purported sender of the subject package, which included records searches and interviews with Albiola's parents and the parents of Antoinette, Albiola's wife. Gunther testified that, based on his investigation, he was never able to identify "David Albiola" or otherwise confirm his existence. The district court admitted this testimony over Albiola's objection.
In addition to evidence that the return address on the subject package was fictitious, the government also introduced evidence that Albiola was connected to four other Express Mail labels containing fictitious addresses. Two of the labels were found during a consent search of Albiola's vehicle. Both labels were customer copies for Express Mail packages that were sent on May 3, 2007. The first label was addressed to "Monico Meress, 645 Rooster Run, Scherty, Texas." The return address was listed as "Alberto Romero, 1410 Wise Rd #3119, Schamburg, IL 60193." The second label found in Albiola's car contained the same return address, but was addressed to "Juventino Perez, 1805 S. 113th Dr., Avon-dale, AZ." According to Gunther, the Wise Road return address on both labels was fictitious-Wise Road exists (indeed, it runs adjacent to Cambia Drive, the street on which Albiola's apartment is located), but street number 1410 does not.
The other two mailing labels introduced by the government were electronic copies of labels found during a USPIS records search of packages sent through the Schaumburg post office. One label was dated April 27, 2007 and was sent to Albiola's apartment in Schaumburg. It contained the following return address: "Juan Albiola, 11001 W. Apache, Cashion, AZ 85329." According to Gunther, the street address was valid, but investigators determined that no person by the name of "Juan Albiola" received mail there. The other label, dated*fn1 March 2, 2007, indicated that the package was sent to Albiola's address in Schaumburg (although it did not list his specific apartment number) and was sent from "Alberto Romero" at 3600 Desert View Drive, Apache Junction, Arizona. During trial, Gunther noted that the road Desert View exists, but street number 3600 does not. Over Albiola's objection, the district court admitted all four labels, apparently as direct evidence of Albiola's knowing and intentional use of the United States mails. In its post-trial order, the court stated that the labels were also admissible as non-propensity evidence under Rule 404(b) of the Federal Rules of Evidence.
The jury found Albiola guilty on both counts, and the district court sentenced him to 97 months' imprisonment. Albiola now challenges his conviction and seeks a new trial. He argues that the district court's admission of the other four mailing labels was improper under Rule 404(b) and that Gunther's testimony regarding his inter- views of Albiola's and Antoinette's parents contained inadmissible hearsay in violation of Rule 801.
Albiola first contends that the district court erred by admitting the other mailing labels, which Albiola objected to in a pretrial motion in limine and during trial. We review evidentiary rulings made over a defendant's objections for abuse of discretion. United States v. Avila, 557 F.3d 809, 819 (7th Cir. 2009).
At the hearing on Albiola's motion in limine, the government asserted that the labels were "intricately intertwined with the investigation" since the labels "were part of the investigation that led up to the controlled delivery." Apparently unpersuaded by this argument, the district court commented that the government's "stronger argument would be that it's direct evidence of the use of the mails." The government then stated that "for [Section] 843(b) we have to show that the use of the mails was knowing. And these parcels show that the defendant knew what an Express parcel looked like." After a brief discussion, the district court said: "There does appear to be some relevance to these various exhibits in terms of [Rule] 401. There is at least a prima facie indication of their admissibility. I've also considered it in terms of Rule 403; that the probative value may be substantially outweighed by the danger of unfair prejudice or confusion of the issues. There is not enough to support an argument denying admissibility under 403." The district court reserved ruling on the issue until later in the trial. After the government raised the issue again during trial, the court issued the following ruling: "I am going to deny the ...