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Published opinion

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

Appellant Tyrone Santos appeals his conviction for assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). Appellant and Andre Dorsey White, both incarcerated at the federal penitentiary in Pollock, Louisiana, beat and stabbed Cashmere Cazeau, a fellow inmate. Appellant claims that the Government violated his Sixth Amendment right to confront witnesses by failing to call Cazeau as a witness at trial but admitting statements Cazeau made to Jeremy Dallas, a Bureau of Prisons nurse, about the amount of pain he was in. Appellant claims that the Government needed Cazeau’s statements to prove that Cazeau suffered “serious bodily injury,” which can be shown by proving “extreme physical pain.” See 18 U.S.C. § 1365(b). Appellant also argues that the district court erred by instructing the jury to make no inferences based on the failure to call a witness. Because Appellant’s statements to the prison nurse were not testimonial and the district court correctly instructed the jury to make no inferences due to the failure to call a witness, we affirm.

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