Case: 09-10850 Document: 00511420548 Page: 1 Date Filed: 03/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 22, 2011
No. 09-10850 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
COLIN DALAWN JACKSON, also known as Cory,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The petition for rehearing is GRANTED. We WITHDRAW our previous
opinion in this matter, United States v. Jackson, 625 F.3d 875 (5th Cir. 2010),
and substitute the opinion that follows. Although we arrive at the same result
as in our earlier opinion, this opinion reflects substantial changes to clarify and
further expound that our evidentiary and constitutional analyses are two
separate and distinct considerations:
Colin Dalawn Jackson (“Jackson”) appeals his conviction and sentence,
following a jury trial, for conspiring to possess with intent to distribute more
than five kilograms of cocaine, in violation of 21 U.S.C. § 846. Jackson primarily
argues that the district court erred in admitting into evidence two notebooks
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alleged to have been prepared by Jackson’s coconspirator. The notebooks were
admitted through the testimony of an investigating officer who received them
from the coconspirator—without any accompanying statement—during a proffer
session that failed to produce a plea bargain. The coconspirator did not testify
or otherwise authenticate the notebooks, but they, and the testimony
introducing and interpreting them, purportedly show the quantity of cocaine the
coconspirator distributed to Jackson. Jackson contends that admitting the
notebooks, and the investigating officer’s testimony pertaining thereto, violated
his rights under the Confrontation Clause of the Sixth Amendment; that the
notebooks and testimony constitute hearsay; and that the notebooks lacked
sufficient authentication. We hold that because the notebooks were not
adequately authenticated, the government has not met its burden of showing
that the notebooks were nontestimonial business records; that the district court
erred in admitting the notebooks into evidence at trial; that this error violated
Jackson’s rights under the Confrontation Clause; and that the error was not
harmless. We further hold that the evidence, absent admission of the notebooks,
was not constitutionally insufficient under Jackson v. Virginia, 443 U.S. 307
(1979), to sustain Jackson’s conviction. We therefore vacate the district court’s
judgment of conviction and sentencing and remand for further proceedings not
inconsistent with this opinion.
I.
A federal grand jury indicted Jackson on April 22, 2008, on a single count
of conspiring with Arturo Valdez (“Valdez”) and other known and unknown
persons, beginning on or about December 1, 2006 and continuing through
August 1, 2007, to possess with intent to distribute more than five kilograms of
cocaine. The evidence at trial included the following: Officer Christopher Hight,
a Dallas police officer and task force officer of the Drug Enforcement
Administration (DEA), testified that he was involved in surveillance and
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interception of communications concerning various drug cartels, including a
drug-trafficking organization headed by one Juan Reyes-Mejia. Hight testified
that he and other officers had identified a cell operating within this organization,
headed by Arturo Valdez. Valdez worked as a cocaine distributor in the larger
drug-trafficking organization, collected money from the sale of cocaine that he
transferred to couriers for transport to Mexico, had customers of his own, and
was a trusted member of the drug-trafficking cartel.
Wiretap surveillance disclosed multiple conversations that Valdez had
with an individual identified in the phone conversations as “Cory.” Hight
testified that he became familiar with Cory’s voice over the course of the
surveillance and, having subsequently spoken with the defendant, Hight
testified that “Cory’s” voice was that of the defendant, Mr. Jackson. The jury
heard several recordings of the phone conversations between Valdez and “Cory,”
and Valdez and other persons, which Hight interpreted for the jurors as
reflecting plans to engage in various cocaine and other narcotics transactions.
In August 2007, a task force arrested over 30 individuals involved in wide-
ranging alleged drug-trafficking conspiracies. Valdez was arrested by DEA
agents on August 16, 2007. Apparently seeking to work out a plea agreement
and obtain leniency at sentencing, Valdez agreed to a proffer session with law
enforcement concerning his knowledge of the drug-trafficking conspiracy.
During that session, Valdez and his attorney produced, without comment as far
as the record is concerned, two notebooks to Officer Hight containing 78 pages
of handwriting, with numbers, notations, and names. Certain lines of text in the
notebooks appear to be names or abbreviations for names. The names “Cory,”
“Corey” and “Cor.” appear in several places in the notebooks; Officer Hight
testified that these writings identify Jackson. Alongside and beneath several of
the alleged references to Jackson are only various numbers. The government’s
witness testified, and the government asserted in its closing argument, that
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these numbers reflect payments and amounts of cocaine, totaling approximately
350 kilograms, that were given to Jackson in the course of a conspiracy to
possess and distribute cocaine.
The government introduced the notebooks at trial solely through the
testimony of Officer Hight, who twice stated that his analysis of them was
“based on [his] experience as an officer and nothing from what was obtained
from Mr. Valdez.” Officer Hight further testified why drug traffickers often keep
ledgers, and he explained the various entries in the ledgers that he interpreted
as representing cocaine transactions involving Jackson. He testified that he
believed the numbers in the notebooks reflect quantities of cocaine, rather than
marijuana, because the numbers are consistent with information the police had
gathered through telephone surveillance. Hight also stated that the ledgers’
references to “Nove” and “Nov.” are likely references to Noe Godines, another
participant in the drug conspiracy. Hight testified at length concerning the
notebooks’ contents, interpreting various numbers and calculations for the jury.
At trial, Jackson objected to admission of the notebooks on Sixth
Amendment, hearsay, and authentication grounds. These objections were
overruled, and the jury found Jackson guilty of one count of conspiring to possess
with intent to distribute more than five kilograms of cocaine.1 Jackson has
timely appealed to this Court, arguing the same ground asserted in his objection
to the notebooks before the district court.
II.
The government argues that the notebooks are nontestimonial business
records that by their nature do not offend the Confrontation Clause.
Alternatively, the government contends that the notebooks are nontestimonial
statements made by a coconspirator during the course and in furtherance of a
1
Jackson’s 235-month prison sentence was based largely on drug-quantity calculations
made using information in the drug ledgers supplied by Valdez and admitted at trial.
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conspiracy. The threshold question before us is whether the notebooks said to
be drug ledgers were properly admitted as a business record or coconspirator
statement in furtherance of a conspiracy, which in turn requires us to determine
whether they were adequately authenticated to be what they were purported to
be. See United States v. Arce, 997 F.2d 1123, 1128 (5th Cir. 1993).
This question arises from Crawford v. Washington, in which the Supreme
Court held that “[w]here testimonial evidence is at issue, . . . the Sixth
Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” 541 U.S. 36, 68 (2004). However, in
describing the class of “testimonial” statements implicating Sixth Amendment
rights, the Court has noted that business records ordinarily fall outside this
category. Id. at 56; Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2539–40
(2009). In general, “after Crawford, business records are not testimonial in
nature and their admission at trial is not a violation of the Confrontation
Clause.”2 United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007). The same
is generally true of coconspirator statements made during the course and in
furtherance of a conspiracy. United States v. Holmes, 406 F.3d 337, 348 (5th Cir.
2005); Crawford, 541 U.S. at 56.
Review of a trial court’s evidentiary rulings is for abuse of discretion,
subject to harmless error review. United States v. Jimenez-Lopez, 873 F.2d 769,
771 (5th Cir. 1989). “A trial court abuses its discretion when its ruling is based
2
We recognize, of course, that there may be exceptions to this general observation
because the Confrontation Clause, as a constitutional right, cannot be circumscribed by merely
invoking the evidentiary rules of hearsay. For example, although “[d]ocuments kept in the
regular course of business may ordinarily be admitted at trial despite their hearsay status, .
. . that is not the case if the regularly conducted business activity is the production of evidence
for use at trial.” Melendez-Diaz, 129 S.Ct. at 2538. Indeed, “[b]usiness 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.”
Id. at 2539–40. That is, business records are not per se nontestimonial, but they are generally.
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on an erroneous view of the law or a clearly erroneous assessment of the
evidence.” United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008)
(internal citations omitted). Applying the foregoing standard, we conclude that
the district court erred in admitting the notebooks given to Officer Hight by
Arturo Valdez because they were not adequately authenticated. The notebooks
fall outside of the business records and coconspirator statement exceptions to the
hearsay rules.
A.
Although not in itself determinative in the context of this case, we first
address whether the notebooks were properly authenticated as business
records.3 “The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.” F ED. R. E VID. 901(a).
“A proponent may authenticate a document with circumstantial evidence,
including the document’s own distinctive characteristics and the circumstances
surrounding its discovery.” In re McLain, 516 F.3d 301, 308 (5th Cir. 2008)
(internal citations omitted). “[T]his Court does not require conclusive proof of
3
Federal Rule of Evidence 803(6) provides an exception to the hearsay rule for
[a] memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, made at or near the time
by, or from information transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record or data compilation, all as shown by the testimony of the
custodian or other qualified witness, or by certification that complies
with Rule 902(11), Rule 902(12), or a statute permitting certification,
unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term “business” as
used in this paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether or not
conducted for profit.
FED . R. EVID . 803(6).
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authenticity before allowing the admission of disputed evidence. . . . Rule 901
does not limit the type of evidence allowed to authenticate a document. It
merely requires some evidence which is sufficient to support a finding that the
evidence in question is what its proponent claims it to be.” Jimenez-Lopez, 873
F.2d at 772. The standard for authentication is not a burdensome one. United
States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009). However, the government
has failed to meet it in this case.
Although we have not spelled out the precise contours of trustworthiness
necessary to authenticate drug ledgers, we have upheld the authenticity of drug
ledgers as business records where (1) the ledgers were found in the home of a
known drug trafficker, and the government’s witness testified (2) that he worked
for the drug trafficker who allegedly created the ledgers; (3) that the ledgers
resembled those which the drug trafficker maintained; and (4) that the
handwriting on the ledgers was similar to the drug trafficker’s handwriting.
Arce, 997 F.2d at 1128.
This case, however, is distinguishable in critical ways. Although there is
no dispute that Mr. Valdez is a known drug trafficker, the ledgers were not
found in Valdez’s home; indeed, they were produced by Valdez at a proffer
session, under circumstances that raise questions in and of themselves. Officer
Hight conceded that Valdez’s motive in turning over the ledgers was to obtain
a benefit for himself. We have no information in the record to indicate that
Valdez told Officer Hight that he was the recorder of the ledgers. The record
thus does not reflect whether the ledgers were prepared by someone with
knowledge of the transactions they supposedly record, or whether they record
transactions at all. The ledger entries do not include any indication of the term
“cocaine” and thus do not facially convey that they are applicable to the
conspiracy charged. There are no dates recorded on the ledgers other than a
lone reference in each to February 9 (without a year). No handwriting analysis
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was performed on the notebooks, and no member of the drug-trafficking
organization testified relating to their trustworthiness.
For his part, Officer Hight testified that he was not able personally to
vouch for the credibility of any entries in the ledgers. Although he testified
generally that he believed numbers in the notebooks represent quantities of
cocaine because they are consistent with information he gathered from
intercepted phone calls, Officer Hight did not connect any specific numbers
recorded in the ledgers with amounts of cocaine that he had heard discussed. He
even acknowledged that the events recorded in the ledgers could have taken
place at times outside the course of the relevant drug-trafficking conspiracy.
We do not overlook that the trial judge exercises broad discretion in ruling
on the admissibility of evidence. United States v. Veytia-Bravo, 603 F.2d 1187,
1189 (5th Cir. 1979). But here the district court gave no reasons for its decision
to admit the notebooks; it simply admitted the ledgers without comment. As the
foregoing discussion makes clear, there is very little support for qualifying these
ledgers as admissible business records. Indeed, the government has failed to
satisfy virtually all of the authentication requirements with respect to the
alleged drug ledgers, and the district court has said nothing. Thus satisfied that
the district court’s assessment of the evidence was incorrect, we conclude that
admission of the notebooks under the business records exception was error.
B.
Like business records, statements made by a coconspirator during the
course and in furtherance of a conspiracy fall within a recognized exception to
the hearsay rules. F ED. R. E VID. 801(d)(2)(E). Such statements “are by their
nature generally nontestimonial and thus are routinely admitted against an
accused despite the absence of an opportunity for cross-examination.” Holmes,
406 F.3d at 348; see also Crawford, 541 U.S. at 56. As with business records,
documents purporting to be the statements of a coconspirator made in the course
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and in furtherance of a conspiracy must be authenticated as such in order to be
admissible.
Whether the notebooks represent coconspirator statements made during
and in furtherance of a conspiracy depends, in significant part, on whether
Valdez made those records in the course of his drug-trafficking enterprise. We
have already found the evidence insufficient for authentication on these grounds.
Specifically, we explained above that Officer Hight testified he was not able to
vouch for the credibility of any entries in the ledgers and acknowledged that the
events recorded therein could have taken place at times outside the course of the
relevant drug-trafficking conspiracy. Given this lack of predicate, we hold there
is not a sufficient basis to admit the notebooks as coconspirator statements in
furtherance of a conspiracy.
C.
Thus, we have decided that the district court erred in allowing the
notebooks into evidence as a business record or as a statement of a coconpirator
during the course and in furtherance of a conspiracy—the only grounds asserted
by the government to counter Jackson’s Sixth Amendment objection. But this
holding does not conclude our discussion. Because the standard for harmless
error turns on whether the district court’s error was only evidentiary or, more
seriously, constitutional, we must proceed to the next question: whether the
district court’s admission of the notebooks violated Jackson’s Sixth Amendment
right to confront Valdez.
III.
“[T]he Confrontation Clause prohibits (1) testimonial out-of-court
statements; (2) made by a person who does not appear at trial; (3) received
against the accused; (4) to establish the truth of the matter asserted; (5) unless
the declarant is unavailable and the defendant had a prior opportunity to cross
examine him.” United States v. Gonzalez, 436 F.3d 560, 576 (5th Cir. 2006).
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Through Officer Hight, the government plainly introduced the notebooks to
prove the truth of the matter asserted: Jackson’s transacted cocaine deals with
Valdez. Valdez did not appear at trial, was not shown to be unavailable for trial,
and was not cross-examined. Jackson’s Confrontation Clause claim thus turns
on whether the notebooks procured from Valdez were testimonial as presented
to the jury.
It is the government’s burden to show the admissibility of its evidence. See
United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003) (“The proponent has
the burden of establishing, by a preponderance of the evidence, that the
pertinent admissibility requirements are met.”); see also, e.g., United States v.
Elashyi, 554 F.3d 480, 503 (5th Cir. 2008) (addressing admissibility of
coconspirator statements); United States v. Wells, 262 F.3d 455, 461 (5th Cir.
2001) (addressing admissibility of business records). Similarly, the government
bears the burden of defeating Jackson’s properly raised Confrontation Clause
objection by establishing that its evidence is nontestimonial. See United States
v. Arnold, 486 F.3d 177, 192 (6th Cir. 2007) (en banc) (holding that “the
government ha[d] met its burden of proving that [the statements in question]
were nontestimonial”).4 Cf. Melendez-Diaz, 129 S.Ct. at 2540 (“[T]he
4
Judge Moore, writing in dissent in Arnold, discussed in further detail the foundation
for the principle that the government bears the burden of proving the nontestimonial nature
of statements to which the defendant objected at trial:
It is clear that before Crawford the government bore the burden of proving the
admissibility of statements under the Confrontation Clause. Ohio v. Roberts,
448 U.S. 56, 74–75 (1980) (“As with other evidentiary proponents, the
prosecution bears the burden of establishing” that a witness is constitutionally
unavailable); Idaho v. Wright, 497 U.S. 805, 816 (1990) (recognizing that
government has the burden of establishing sufficient indicia of reliability).
Nothing in either Crawford or Davis states, or even hints, that the Supreme
Court intended to alter this allocation of burdens. The inescapable conclusion,
then, is that post-Davis, the government retains the burden of defeating, by
preponderance of the evidence, a defendant’s Confrontation Clause challenge.
This means that the government must establish facts showing that the
proffered statements are nontestimonial . . . .
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Confrontation Clause imposes a burden on the prosecution to present its
witnesses, not on the defendant to bring those adverse witnesses into court.”).
As we explain below, the government has failed to carry this burden of
demonstrating that the notebooks were not testimonial.
We have earlier held that the notebooks at issue were improperly admitted
into evidence as business records and interpreted for the jury by a government
witness. Although Officer Hight had no independent knowledge of the
authenticity of the records, he explained to the jury that the notebook entries
represent the real-time records of a known drug dealer documenting his cocaine
transactions with Jackson, whose alias appears in the notebooks at certain
places. On the record before us, the notebooks, accompanied by Officer Hight’s
testimony, constitute the “functional equivalent” of Valdez’s own “ex parte in-
court testimony” against Jackson as having done drug business with Valdez.
Melendez-Diaz, 129 S.Ct. at 2531 (quoting Crawford, 541 U.S. at 51).
Because there was no proof that these “business records” were authentic,
Id. at 213–14 (Moore, J., dissenting) (internal citations modified). Although Judge Moore was
writing before the Supreme Court decided Melendez-Diaz, her analysis—and the majority’s
allocation of burden on the government—holds equally true today. As with Crawford and
Davis, nothing in Melendez-Diaz “states, or even hints, that the Supreme Court intended to
alter this allocation of burdens.” Id.
Similarly, we find nothing in the Court’s most recent Confrontation Clause decision,
Michigan v. Bryant, --- S.Ct. ----, 2011 WL 676964 (Feb. 28, 2011), to cast doubt upon this
premise. That case, like Davis, involved police interrogation in the aftermath of a crime;
documentary evidence was not at issue. Nevertheless, the case is instructive in that the Court
conducted an “objective” inquiry “to determine whether the ‘primary purpose’ of [the]
interrogation [was] ‘to enable police assistance to meet an ongoing emergency.’” Id. at 10.
That is, the Court asked whether the evidence was sufficient to show the nontestimonial
nature of the statements at issue—not whether the defendant had proven them to be
testimonial. Assuming arguendo that the Court envisioned a completely neutral allocation of
burdens (an intent that we do not read into the Court’s opinion), doing so would necessarily
rest upon the assumption that courts will be able to ascertain from the record “the
circumstances in which the encounter occurs and the statements and actions of the parties.”
Id. By contrast, as our discussion of authenticity reveals, the record before us does not lend
itself to a determination as to the circumstances in which the relevant statements in this case
(i.e., the drug ledger entries) were made.
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the ledgers’ entries become merely statements, made at an unknown time and
conveyed at a proffer session, that relate (through Officer Hight’s translation for
the jury) the very testimony that Valdez “would be expected to provide if called
at trial.”5 Melendez-Diaz, 129 S.Ct. at 2532. In other words, the notebook
entries “do precisely what a witness does on direct examination.” Davis v.
Washington, 547 U.S. 813, 830 (2006). Furthermore, the government has failed
to establish that these unauthenticated notebook entries were in fact not “made
under circumstances which would lead an objective witness reasonably to believe
that [they] would be available for use at a later trial.”6 Melendez-Diaz, 129 S.Ct.
at 2531 (quoting Crawford, 541 U.S. at 52). It has thus failed to meet its burden
of establishing that the “drug ledgers” in this case are nontestimonial.
Thus it is clear that, as presented to the jury in this case, the ledgers are
5
When we speak of authenticity, it should not be interpreted that we are applying the
reliability standard of Ohio v. Roberts, 448 U.S. 56 (1980), which was rejected by Crawford as
the touchstone for determining whether evidence is testimonial. See 541 U.S. at 61 (“Where
testimonial statements are involved, we do not think the Framers meant to leave the Sixth
Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous
notions of ‘reliability.’ . . . To be sure, the Clause’s ultimate goal is to ensure reliability of
evidence, but . . . [i]t commands . . . that reliability be assessed in a particular manner: by
testing in the crucible of cross-examination.”).
In Crawford, the Court was referring to reliability with respect to the veracity of the
statements at issue. We have evaluated reliability in a different context, considering not
whether the evidence in question is truthful, but whether it is the category of evidence its
proponent claims. We have concerned ourselves not with whether Valdez’s notebook entries
accurately reflect the details of cocaine sales to Jackson, but instead with whether those
entries are business records or coconspirator statements in furtherance of a conspiracy—that
is, whether they are what their proponent purports them to be. The reliability for authenticity
of a document, as here, is quite distinct from the reliability for truthfulness of its contents.
6
We repeat that the ledgers’ lack of authenticity is not determinative of our
constitutional inquiry. We note, however, the Supreme Court’s recent pronouncement that in
determining whether the primary purpose of a statement is to “creat[e] an out-of-court
substitute for trial testimony[,] . . . standard rules of hearsay, designed to identify some
statements as reliable, will be relevant.” Bryant, 2011 WL 676964 at *9. As the Court
explained in Bryant, the business records and coconspirator statement exceptions to the
hearsay rules “rest on the belief that certain statements are, by their nature, made for a
purpose other than use in prosecution.” Id. at *11 n.9.
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testimonial evidence that violates the Confrontation Clause.
IV.
Having concluded that the admission of the notebooks was an abuse of
discretion that violated Jackson’s Confrontation Clause rights, we turn now to
whether this error was harmless. For the reasons that follow, we hold that the
error was not harmless beyond a reasonable doubt.
“A defendant convicted on the basis of constitutionally inadmissible
Confrontation Clause evidence is entitled to a new trial unless it was harmless
in that ‘there was [no] reasonable possibility that the evidence complained of
might have contributed to the conviction.’” United States v. Alvarado-Valdez,
521 F.3d 337, 341 (5th Cir. 2008) (quoting Chapman v. California, 386 U.S. 18,
24 (1967)) (internal citations omitted). “The government bears the burden of
establishing the error is harmless beyond a reasonable doubt,” id., and in doing
so, “it is not enough to negate an effect on the outcome of the case.” United
States v. Dominguez Benitez, 542 U.S. 74, 81 n.7 (2004). Here, “because the
government’s closing argument relied on [the] very evidence” that offends the
Confrontation Clause, “[w]e cannot see how the government can conclusively
show that the tainted evidence did not contribute to the conviction.”
Alvarado-Valdez, 521 F.3d at 342–43.
In both its case in chief and its closing argument in this case, the
government placed great importance on the drug ledgers handed over to Officer
Hight by Arturo Valdez. The government’s attorney emphasized that the ledgers
showed cocaine distribution in excess of 350 to 400 kilograms to Mr. Jackson, as
well as the name of an alleged coconspirator. The government stated that these
entries amount to “proof beyond a reasonable doubt” that Jackson participated
in the conspiracy with Valdez. Under these circumstances, “[t]here is no way to
determine whether the jury would have convicted [the defendant] purely on the
basis of [the tainted] testimony or of any of the other evidence.” Id. at 343. In
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the light of the government’s reliance on tainted evidence, and notwithstanding
the other evidence implicating Jackson in the conspiracy, the government cannot
show, under controlling precedents, that the notebooks did not contribute to the
conviction. Accordingly, we must say that the trial court’s error was not
harmless beyond a reasonable doubt, and therefore we vacate Jackson’s
conviction and sentence.
V.
The final question presented is whether we remand the case to the district
court for a new trial or for entry of a judgment of acquittal. The nature of the
remand depends upon whether we conclude that the remaining evidence in the
record is sufficient for a reasonable jury to convict Jackson when the drug
ledgers are excluded. We think there is adequate other evidence to support a
jury verdict of guilt. This other evidence includes a number of telephone
conversations—to which we have referred earlier in this opinion—between
Jackson and his alleged coconspirator Valdez regarding the sale and purchase
of cocaine. The connection between Jackson and Valdez is further substantiated
by photographs of the two men together. Under a review for sufficiency, this
evidence must be viewed in the light most favorable to the verdict, giving “full
play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” Jackson, 443 U.S. at 319. We also observe that on
appeal Jackson does not argue the insufficiency of the evidence for conviction.
We conclude that the remaining evidence is adequate to support a reasonable
jury’s finding that Jackson conspired to possess with intent to distribute more
than five kilograms of cocaine. See United States v. Watkins, 591 F.3d 780, 788
(5th Cir. 2009) (“Each element” of a conspiracy to possess and distribute more
than five kilograms of cocaine “may be inferred from circumstantial evidence;
that is, the ‘agreement may be inferred from a concert of action’ and ‘[k]nowledge
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of a conspiracy and voluntary participation . . . may be inferred from a collection
of circumstances.’”) (quoting United States v. Casilla, 20 F.3d 600, 603 (5th Cir.
1994) (internal citations omitted)). Accordingly, Jackson’s conviction is vacated
and the case is remanded for further appropriate proceedings, including an
opportunity for a new trial.7
VI.
We sum up: Under the general hearsay exception for business records and
coconspirator statements in furtherance of a conspiracy, the notebooks alleged
to contain entries of cocaine transactions involving the defendant must be
authenticated in order to be admissible. We have held that the government did
not adequately authenticate the notebook “drug ledgers” in this case, and that
the notebooks did not bear sufficient indicia of reliability to be what they
purported to be. We have thus concluded that the district court erred in
admitting into evidence the notebooks as a business record or coconspirator
statement in furtherance of a conspiracy.
Because the notebooks were testimonial as presented to the jury, the
district court’s error violated Jackson’s rights under the Confrontation Clause.
Given the manner in which the government relied on this inadmissible evidence
in both its case in chief and its closing argument, we cannot say that the
evidence did not contribute to the jury’s verdict. Thus, the district court’s error
was not harmless beyond a reasonable doubt. Finally, we have held that the
remaining evidence against Jackson is sufficient to support the conviction, and
that therefore this case must be remanded for an opportunity for a new trial and
such other proceedings as are appropriate.
7
In the light of this conclusion, we need not address Jackson’s additional grounds for
appeal.
15
Case: 09-10850 Document: 00511420548 Page: 16 Date Filed: 03/22/2011
No. 09-10850
For the foregoing reasons, the judgment of the district court is VACATED
and the case is REMANDED for further proceedings not inconsistent with this
opinion.
VACATED and REMANDED.
16