NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0473n.06
No. 14-6533 FILED
Aug 16, 2016
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
BETSY HILLIS, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
BEFORE: KEITH, CLAY, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Betsy Hillis was convicted of conspiracy to
manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine with
cause to believe the pseudoephedrine would be used to manufacture methamphetamine. Over
Hillis’s objection at trial, the government introduced pharmacy records identifying Hillis as the
purchaser of pseudoephedrine. Hillis now appeals, arguing (1) the pharmacy records constituted
inadmissible hearsay and their admission violated her right of confrontation, and (2) the
government presented insufficient evidence of her guilt. We AFFIRM.
I.
Hillis was charged in a superseding indictment with conspiracy to manufacture and
distribute 50 grams or more of actual methamphetamine or 500 grams or more of a mixture and
substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846 (Count One); and conspiracy to possess and distribute pseudoephedrine with cause to
believe it would be used to manufacture methamphetamine, in violation of 21 U.S.C.
No. 14-6533, United States v. Hillis
§§ 841(c)(2) and 846 (Count Two). A second superseding indictment added charges of
obstructing an official proceeding (Count Three), and making a materially false statement to law
enforcement (Count Four). By the time the second superseding indictment was returned, all nine
of Hillis’s alleged co-conspirators charged in previous indictments had pled guilty to Count One
(or a lesser included charge) pursuant to a plea agreement.
Prior to trial, Hillis filed a motion in limine seeking to exclude summary records of
pseudoephedrine transactions from seven pharmacies that identified Hillis as the purchaser by
name, address, and driver’s license number. Each of the seven pharmacy records included a
certificate of authentication from a records custodian. Relying on United States v. Towns,
718 F.3d 404 (5th Cir. 2013), the district court denied the motion, finding that the pharmacy
records fit within the business-records hearsay exception, Fed. R. Evid. 803(6), and that the
admission of the records did not implicate the Confrontation Clause because they were
nontestimonial.
At trial, the government presented witnesses from two of the pharmacies—a loss
prevention manager from Walgreens and a pharmacist from Wal-Mart. The witnesses testified
that employees selling the pseudoephedrine are required to obtain photo identification from the
customer and compare the photograph to the customer. After obtaining identification, the
employees manually key the customer’s name and address into the system. The witnesses also
testified about the training each employee received on this process and the consequences of
failing to comply, including possible termination and civil fines for pharmacists. The witnesses
also explained that in 2011, after Hillis’s involvement in the conspiracy, Tennessee law became
stricter by limiting the class of employees authorized to make pseudoephedrine sales. Neither of
the witnesses observed the purchases at issue in this case.
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No. 14-6533, United States v. Hillis
Special Agent Stephen Gordy of the ATF testified that pharmacy records of
pseudoephedrine purchases are compiled in the Tennessee Meth Information System (TMIS) to
allow law enforcement to detect suspicious purchasing of pseudoephedrine, a necessary
ingredient for methamphetamine. The TMIS is often used as a starting point in investigating
methamphetamine activity and was one of the primary tools in this investigation. Gordy testified
that the pharmacy records reflect Hillis making many pseudoephedrine purchases at or near the
same times and locations as her codefendants, sometimes making multiple pseudoephedrine
purchases on the same day. Gordy also compared the pharmacy records with Hillis’s bank
records to show that approximately ten pseudoephedrine purchases were made with Hillis’s bank
card.1 Gordy further explained that Hillis’s bank card was used in stores near the pharmacies
from which pseudoephedrine was purchased by Hillis’s codefendants at around the same time.
Gordy concluded that the purchase patterns were consistent with a methamphetamine-
manufacturing conspiracy.
Other evidence presented at trial included the testimony of a law-enforcement officer,
who described the seizure of methamphetamine-manufacturing equipment and ingredients
belonging to codefendants Jeremy Rigsby and Jacob Barnes, which prompted the investigation
that led to Hillis. In addition, several of Hillis’s codefendants testified about Hillis’s
involvement in the conspiracy. Rigsby testified that Hillis was his girlfriend on and off during
the conspiracy; that he and Hillis purchased pseudoephedrine together on dates reflected in the
pharmacy records; that all the pseudoephedrine they purchased was used to make
methamphetamine; and that Hillis used methamphetamine with him and helped with some of the
prep work to manufacture it. Grant Turner, Rigsby’s brother, similarly testified that Hillis
1
The government’s exhibit in the record on appeal shows at least fifteen pseudoephedrine
purchases with Hillis’s bank card over a 29-month period.
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No. 14-6533, United States v. Hillis
accompanied him to purchase pseudoephedrine used to make methamphetamine and that Hillis
had helped with prep work at her apartment. Lori Cope testified that she used methamphetamine
with Hillis around 2008. Gabriel Womack testified that Hillis traded pseudoephedrine pills for
methamphetamine that Womack manufactured.
After the government rested, Hillis testified that she had suffered from allergies or sinus
issues since she was a child, which she treated with regular use of pseudoephedrine.2 Hillis also
testified that she almost always used her bank card when she made purchases. She admitted that
she purchased the pseudoephedrine when the records reflected that her bank card was used, but
denied that she made any of the other pseudoephedrine purchases reflected in the pharmacy
records. To explain those non-bank card purchases, she testified that she lost her driver’s license
in October 2000 and had it replaced. Then, a couple of weeks later, she found the lost license so
she had an extra driver’s license. Hillis testified that she dated Rigsby from 2001 or 2002 until
2005 or 2006, and that Rigsby was aware of her extra license. According to Hillis, Rigsby took
her license and gave it to Cope and another woman to use to purchase pseudoephedrine. When
confronted with records showing that she made purchases with her bank card minutes apart from
codefendants’ purchases at the same store, or that she used her bank card in stores in the same
city at approximately the same time her driver’s license was being used to purchase
pseudoephedrine, Hillis agreed with the government that these occurrences were the result of a
“terrible coincidence.” (R. 481: Trial Tr., PID 2032-40.)
2
Amber Luna, who worked with Hillis from 2009 to 2012, testified that Hillis was “constantly
congested or allergies or sinuses or something” and took medication “constantly” for her symptoms.
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No. 14-6533, United States v. Hillis
The jury returned guilty verdicts on Counts 1 and 2.3 Hillis was sentenced to
120 months’ imprisonment as to each count, to be served concurrently. She now appeals her
conviction.
II.
A.
Hillis first argues that her conviction should be overturned because the pharmacy records
constitute inadmissible hearsay. We review a district court’s evidentiary rulings for abuse of
discretion. United States v. Cecil, 615 F.3d 678, 688 (6th Cir. 2010) (citing Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 141 (1997); United States v. Blackwell, 459 F.3d 739, 752 (6th Cir. 2006)).
“[I]t is an abuse of discretion to make errors of law or clear errors of factual determination.”
United States v. McDaniel, 398 F.3d 540, 544 (6th Cir. 2005).
The district court determined that the pharmacy records were admissible under Federal
Rule of Evidence 803(6), which provides an exception to the rule against hearsay for:
(6) Records of a Regularly Conducted Activity. A record of an act,
event, condition, opinion, or diagnosis if:
(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;
(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, or by a certification that complies with Rule 902(11)4
or (12) or with a statute permitting certification; and
3
The district court had previously granted in part Hillis’s Rule 29 motion as to the portion of
Count One charging conspiracy to distribute methamphetamine, but preserved the portion of Count One
charging conspiracy to manufacture methamphetamine. Counts Three and Four were severed and later
dismissed.
4
Federal Rule of Evidence 902(11) provides:
The original or a copy of a domestic record that meets the requirements of Rule
803(6)(A)-(C), as shown by a certification of the custodian or another qualified person
that complies with a federal statute or a rule prescribed by the Supreme Court. Before the
trial or hearing, the proponent must give an adverse party reasonable written notice of the
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No. 14-6533, United States v. Hillis
(E) the opponent does not show that the source of information or the
method or circumstances of preparation indicate a lack of trustworthiness.5
Hillis contends that the pharmacy pseudoephedrine records fail to meet the requirements of Rule
803(6) because they (1) were made primarily for law-enforcement purposes rather than in the
regular course of business, (2) lack trustworthiness, (3) were made using information supplied by
an individual outside the regular practice of the business activity, and (4) constitute double
hearsay because some of the information was provided by the person furnishing a driver’s
license when purchasing pseudoephedrine.
1. The records were made in the regular course of business
Several circuits have addressed the admissibility of pseudoephedrine-purchase records,
although none has addressed all the arguments Hillis makes here. In United States v. Collins,
this court upheld the admission of “MethCheck”6 records under Rule 803(6), rejecting the
defendant’s argument that the government did not lay the requisite foundation because it
introduced the records through law-enforcement officers rather than a custodian of records, an
argument that Hillis does not advance on this appeal. 799 F.3d 554, 583-84 (6th Cir. 2015). But
Collins does not address whether the records otherwise meet the business-records exception to
hearsay, and thus does not address any of the arguments Hillis raises on appeal. The Eighth
intent to offer the record—and must make the record and certification available for
inspection—so that the party has a fair opportunity to challenge them.
5
Subsection (E) was amended in December 2014 to make clear that the burden to show lack of
trustworthiness is on the opponent of the evidence. Prior to the amendment, subsection (E) provided:
“neither the source of information or the method or circumstances of preparation indicate a lack of
trustworthiness.”
6
MethCheck is a service provided by a public safety technology company that electronically
tracks in real time the purchase of precursors for methamphetamine. United States v. Collins, 799 F.3d
554, 583 (6th Cir. 2015). When a customer attempts to purchase a medication that is identified as a
methamphetamine precursor, the pharmacy employee scans or manually enters the customer’s
government identification information into the MethCheck System, and the employee receives a nearly
instantaneous message confirming whether the sale is legal or illegal (based on purchase quantity
regulations). Id. This purchase information becomes available to law enforcement in under a minute. Id.
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No. 14-6533, United States v. Hillis
Circuit has also upheld pseudoephedrine-purchase records as business records, but the cases
provide minimal analysis. See United States v. Wells, 706 F.3d 908, 913 (8th Cir. 2013); United
States v. Mashek, 606 F.3d 922, 930 (8th Cir. 2010).
The Fifth Circuit’s opinion in Towns, relied on by the district court, squarely addresses
whether pharmacy pseudoephedrine-purchase records are made in the regular course of business.
In Towns, Texas law required pharmacies to keep records of pseudoephedrine purchases.
718 F.3d at 408. At trial, records that had been gathered from the pharmacies by law-
enforcement officers were introduced to show the defendant’s participation in a conspiracy to
manufacture methamphetamine and to possess and distribute pseudoephedrine knowing that it
would be used to manufacture methamphetamine. Id. at 406-07. On appeal, the defendant
challenged the admission of the records on the ground that they were prepared for law
enforcement, rather than for business purposes, and they were introduced by a law-enforcement
officer rather than someone with knowledge of the records. Id. at 408.
The court rejected both arguments. As to the first argument, the court explained that “the
undue focus on the law enforcement purpose of the records has little to do with whether they are
business records under the Federal Rules of Evidence” because “[w]hat matters is that they were
kept in the ordinary course of business. It is not uncommon for a business to perform certain
tasks that it would not otherwise undertake in order to fulfill governmental regulations.” Id.
Accordingly, the court concluded that selling pills containing pseudoephedrine is a regularly
conducted activity, and the purchase records of those pills are made in the course of that activity.
Id.
In rejecting defendant’s second argument, the court explained that the affidavit of a
records custodian is sufficient to lay the foundation for a business record under Rule 902(11),
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No. 14-6533, United States v. Hillis
and thus there is no need to require cashiers from each pharmacy to testify. Id. at 409-10. The
court was also unpersuaded by defendant’s argument that the records were not accurate,
reasoning that the defendant was free to make arguments at trial that he did not purchase the
pills, but that “accuracy does not control admissibility.” Id. at 410.
Judge Graves dissented, relying on Fifth Circuit precedent and reasoning that the
pseudoephedrine logs were prepared in accordance with state and federal law for law-
enforcement purposes, and thus the pharmacies do not “necessarily rely” upon the records to
conduct their own affairs. Id. at 418 (Graves, J., dissenting) (citing United States v. Veytia-
Bravo, 603 F.2d 1187, 1191 (5th Cir. 1979); Matthews v. United States, 217 F.2d 409, 413-14
(5th Cir. 1954)). Judge Graves reasoned that because the pharmacies do not rely on the records
for their own affairs, the pharmacies lack an incentive to keep precise records, and the records
therefore have untested accuracy and reliability. Id. at 418-19. Judge Graves also concluded that
the records were not properly authenticated, reasoning that the certificates of authentication were
insufficient because they did not explain the record-keeping system of the organization, and the
sponsoring witness failed to shed light on the record-keeping systems or vouch that the
requirements of Rule 803(6) were met. Id. at 419-20.
Hillis echoes Judge Graves’s dissent in Towns and argues that the pharmacy records were
not made in the regular course of business because their primary utility is for law enforcement.
Hillis additionally relies on Palmer v. Hoffman, 318 U.S. 109 (1943). Palmer involved an
accident report provided by an engineer of a railroad company. Id. at 111. The Court held that
the engineer’s report was inadmissible because it was not made in the regular course of business,
reasoning that “[a]n accident report may affect that business in the sense that it affords
information on which the management may act. It is not, however, typical of entries made
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No. 14-6533, United States v. Hillis
systematically or as a matter of routine to record events or occurrences, to reflect transactions
with others, or to provide internal controls.” Id. at 113. Even if the railroad company routinely
recorded its employees’ versions of accidents, the Court explained, those accident reports are not
made in the regular course of business because the “primary utility [of those reports] is in
litigating, not in railroading.” Id. at 114.
Although there is some appeal to Hillis’s position, we decline to adopt it here. The
business-records exception “is based on the indicia of reliability that attaches to a record created
or maintained by an employer in the ordinary or regular course of their business. An employer’s
independent motivation for creating and maintaining reliable business records obviates the need
for sworn testimony and cross-examination.” Cobbins v. Tenn. Dep’t of Transp., 566 F.3d 582,
588 (6th Cir. 2009). As the majority in Towns recognized, pharmacies are required by law to
record pseudoephedrine purchases, see Tenn. Code Ann. § 39-17-431; 21 U.S.C. § 830, and thus
the recording of these purchases is made by the employer in the ordinary course of its business of
selling pseudoephedrine products. 718 F.3d at 406, 408. That the laws requiring pharmacies to
track these purchases were enacted, at least in part, for law-enforcement purposes does not
detract from the reliability of the records. This is not a case like Palmer, where the pharmacies
may have a motivation to misrepresent for an advantage in litigation. See Palmer, 318 U.S. at
113 (approving as business records those “entries made systematically or as a matter of routine
to record events or occurrences, to reflect transactions with others, or to provide internal
controls”). Rather, the adverse consequences for pharmacists and pharmacies for failure to
comply with the law would seem to motivate the pharmacies to keep accurate records. See Tenn.
Code Ann. § 39-17-431(f) (2005); see also United States v. Johnson, 971 F.2d 562, 571 (10th
Cir. 1992) (“[B]ank records are particularly suitable for admission under Rule 803(6) in light of
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No. 14-6533, United States v. Hillis
the fastidious nature of the record keeping in financial institutions, which is often required by
governmental regulation.”). Accordingly, the pharmacy records were made in the regular course
of business.
2. The pharmacy records do not lack trustworthiness
Hillis next argues that the pharmacy records are untrustworthy because there is evidence
that Hillis’s driver’s license was stolen and used by others. This court has explained that, “once
the foundation is laid, absent specific and credible evidence of untrustworthiness, ‘the proper
approach is to admit the evidence and permit the jury to determine the weight to be given the
records.’” Peak v. Kubota Tractor Corp., 559 F. App’x 517, 523 (6th Cir. 2014) (quoting United
States v. Hathaway, 798 F.2d 902, 907 (6th Cir. 1986)).
Here, Hillis’s evidence of untrustworthiness does not render the records inadmissible.
First, she does not actually dispute the accuracy of the records, i.e., that the pharmacy employees
accurately documented that her driver’s license was furnished to purchase pseudoephedrine. Nor
does she challenge the pharmacies’ processes for recording the identification of the purchaser.
In that sense, she is not disputing the trustworthiness of the records at all. Instead, Hillis argues
that the records are untrustworthy because Rigsby stole her license and gave it to other women to
purchase pseudoephedrine. But Hillis provides no support for her argument that this would
render the records inadmissible.
Hillis’s argument goes to the weight, rather than admissibility, of the evidence. See
Towns, 718 F.3d at 410 (“Towns was free to make arguments at trial that he was not the actual
purchaser of the drugs, but accuracy does not control admissibility.”). Hillis testified that her
license was stolen and used by Rigsby and co-conspirators to purchase pseudoephedrine in her
name. The district court’s decision to allow the jury to determine whether Hillis’s explanation
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No. 14-6533, United States v. Hillis
was credible was not an abuse of discretion. See Peak, 559 F. App’x at 523; see also Hathaway,
798 F.2d at 906 (“It is well established that federal law favors the admission of evidence which
has any probative value at all.”).
Thus, Hillis’s allegations that her license was stolen did not render the records
inadmissible as untrustworthy.
3. The records are not inadmissible as a result of a customer providing some of
the information
Hillis argues that the pharmacy records are inadmissible because the purchaser who
furnishes the driver’s license is a supplier of information acting outside the framework of regular
business activity, and the information supplied is itself hearsay that does not fall within a hearsay
exception. The advisory committee’s note to Rule 803(6) explains that “[i]f . . . the supplier of
the information does not act in the regular course, an essential link is broken; the assurance of
accuracy does not extend to the information itself, and the fact that it may be recorded with
scrupulous accuracy is of no avail.” Fed. R. Evid. 803 advisory committee’s note (6) to 1972
proposed rules. The advisory committee’s note provides the example of a “police report
incorporating information obtained from a bystander: the officer qualifies as acting in the regular
course but the informant does not.” Id. This court has recognized that “if the record is based on
the statements of an informant rather than the first-hand observations of its author, the informant
must also be acting under a business duty.” Cecil, 615 F.3d at 690.
Nonetheless, if records contain information obtained from a customer, the information
still falls within the business-records exception if the business’s standard practice is to verify the
information provided by the customer. See, e.g., United States v. Mitchell, 49 F.3d 769, 778
(D.C. Cir. 1995) (citation omitted); see also United States v. Reyes, 157 F.3d 949, 952 (2d Cir.
1998) (“So long as the regular practice of verification is established,” the records are allowed
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No. 14-6533, United States v. Hillis
into evidence “under the business records exception”); United States v. McIntyre, 997 F.2d 687,
700 (10th Cir. 1993) (“If the business entity has adequate verification or other assurance of
accuracy of the information provided by the outside person, the exception may still apply. Some
courts have required that the business employee recording the information be ‘able in some way
to verify the information provided—for example, by examining a credit card, driver’s license, or
other form of identification.’” (quoting United States v. Lieberman, 637 F.2d 95, 101 (2d Cir.
1980))); United States v. Bland, 961 F.2d 123, 127 (9th Cir. 1992) (holding that store records
were admissible where a manager testified that his employees were “required to verify gun
purchasers’ names with a picture identification” and where the customers were under a “legal
duty to provide truthful information”).
Here, the pharmacy records have assurances of accuracy and there is evidence that the
standard practice of the pharmacies is to verify the information given by purchasers. First, the
pharmacies were required by law not to sell pseudoephedrine unless the purchaser provided
government-issued photo identification, and pharmacists faced consequences if they did not
comply. Tenn. Code Ann. § 39-17-431(d), (f) (2005). This is not a situation where a pharmacy
employee was merely taking the customer at her word as to her identity, which would present a
hearsay problem. Rather, the pharmacy employee was required to verify for herself the identity
of the customer through her own observation of the customer and the customer’s photo
identification. It is the record of the pharmacy employee’s observations that is at issue in this
case, rather than an unverified statement by a customer.
Second, there is evidence that the law was followed in this case, because each record
contains Hillis’s name, address, and driver’s license number, in addition to the amount of
pseudoephedrine purchased. Third, the certificates provided by the pharmacy all say that the
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records were made in the regular course of business as a regularly conducted business activity.
Accordingly, the records qualify as business records even though some of the information was
supplied by a customer.7 See McIntyre, 997 F.2d at 700 (“We do not feel that in every case there
must be direct testimony that an employee actually verified the information, nor is it necessary
that there be an express policy that identification be checked. In some cases, the interests of the
business may be such that there exists a sufficient self-interest in the accuracy of the log that we
can find its contents to be trustworthy.”); see also United States v. Seelig, 622 F.2d 207, 214 (6th
Cir. 1980) (“Kopp testified that when he went into Seelig Pharmacy to investigate, he requested
the records which are required to be kept for sales of schedule V drugs. Appellant Seelig handed
him the records, which were later seized and from which the copies were made. The
identification by Kopp and the admission by Seelig . . . establish that the records were ones of
regularly conducted activity which is an exception to the hearsay rule, Rule 803(6) . . . .”).
For the reasons above, the pharmacy records were properly admitted as business records.
B.
Hillis next argues that admission of the pharmacy records violated the Confrontation
Clause. We review this claim de novo. United States v. Henderson, 626 F.3d 326, 333 (6th Cir.
2010).
“The Confrontation Clause guarantees a criminal defendant the right ‘to be confronted
with the witnesses against him,’” United States v. Johnson, 581 F.3d 320, 324 (6th Cir. 2009)
(quoting U.S. Const. amend. VI), and bars the “admission of testimonial statements of a witness
7
Additionally, witnesses from Wal-Mart and Walgreens testified that an employee selling
products with pseudoephedrine reviews the driver’s license and documents the necessary information
prior to selling the pseudoephedrine, providing an even greater assurance of accuracy. The records from
Walgreens and Wal-Mart constituted the vast majority of Hillis’s pseudoephedrine purchases, including
times when Hillis purchased pseudoephedrine around the same time that a codefendant purchased
pseudoephedrine at the same or a nearby store. Accordingly, even if the records from the other
pharmacies were improperly admitted, any error would have been harmless.
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who did not appear at trial unless he was unavailable to testify” and previously subject to cross-
examination, Crawford v. Washington, 541 U.S. 36, 53-54 (2004). “Hearsay evidence that is
non-testimonial is not subject to Confrontation Clause analysis . . . .” Collins, 799 F.3d at 585
(quoting United States v. Parlier, 570 F. App’x 509, 517 (6th Cir. 2014)). A statement is
“testimonial” under the Confrontation Clause if the declarant “intend[ed] to bear testimony
against the accused.” Id. (alteration in original) (quoting United States v. Cromer, 389 F.3d 662,
675 (6th Cir. 2004)). “This determination ‘depends on whether a reasonable person in the
declarant’s position would anticipate his statement being used against the accused in
investigating and prosecuting the crime.’” Id. (quoting Johnson, 581 F.3d at 325).
“Business and public records are generally admissible absent confrontation . . . 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.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 324 (2009). But, regardless whether statements qualify as
business records, if those records were prepared specifically for use at trial, they are subject to
confrontation. Id. Applying these principles, the Supreme Court has held that the Confrontation
Clause bars the admission of affidavits from non-testifying forensic analysts who perform drug
analysis on seized evidence, see Melendez-Diaz, 557 U.S. at 308-09, 324, and blood-alcohol
analysis where the government relies on the testimony of an analyst familiar with the forensic
procedures rather than the certifying analyst, see Bullcoming v. New Mexico, 564 U.S. 647, 651-
52 (2011).
Hillis argues that the pharmacy records are subject to confrontation because they were
created solely for law-enforcement purposes to establish a fact at trial. We rejected that
argument in Collins:
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No. 14-6533, United States v. Hillis
[U]nlike the forensic report at issue in Bullcoming and the affidavit at issue in
Melendez-Diaz, the MethCheck reports at issue in this case were not made to
prove the guilt or innocence of any particular individual, nor were they created for
solely evidentiary purposes. Although law enforcement officers may use
MethCheck records to track pseudoephedrine purchases, the MethCheck system is
designed to prevent customers from purchasing illegal quantities of
pseudoephedrine by indicating to the pharmacy employee whether the customer
has exceeded federal or state purchasing restrictions. Furthermore, it is
improbable that a pharmacy employee running a standard identification check of a
customer would have anticipated that the records of that transaction would later
be used against these particular defendants at trial.
799 F.3d at 586 (internal citation omitted).
Although Collins was decided under a plain-error standard of review, id. at 584, its
reasoning forecloses Hillis’s argument. As in Collins, the government presented evidence that
one of the purposes of Wal-Mart’s system is to reject a sale if the customer exceeded the state
limit on monthly pseudoephedrine sales. Further, as explained in Collins, the pharmacy
employees here likely would not anticipate that the records they were creating would be used
against Hillis at trial. Id. at 586; see also Towns, 718 F.3d at 411 (“The pharmacies created these
purchase logs ex ante to comply with state regulatory measures, not in response to an active
prosecution. Additionally, requiring a driver’s license for purchases of pseudoephedrine deters
crime. The state thus has a clear interest in businesses creating these logs that extends beyond
their evidentiary value. Because the purchase logs were not prepared specifically and solely for
use at trial, they are not testimonial and do not violate the Confrontation Clause.”). Thus, the
pharmacy records here are not testimonial, and their admission did not violate the Confrontation
Clause.
C.
Finally, Hillis argues that the government presented insufficient evidence of guilt. In
reviewing a sufficiency challenge, we view the evidence “in the light most favorable to the
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No. 14-6533, United States v. Hillis
prosecution” and will affirm if “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Henry, 797 F.3d 371, 376 (6th Cir.
2015) (internal quotation marks omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “Any ‘issues of credibility’ must be resolved in favor of the jury’s verdict.” Collins,
799 F.3d at 589 (quoting United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001)).
“Moreover, every reasonable inference from the evidence must be drawn in the government’s
favor.” Cecil, 615 F.3d at 691 (internal quotation marks omitted) (quoting United States v.
Woods, 877 F.2d 477, 479 (6th Cir. 1989)). Accordingly, “[a] defendant challenging the
sufficiency of the evidence ‘bears a very heavy burden.’” Collins, 799 F.3d at 589 (quoting
United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005)).
Hillis argues that the evidence is insufficient because (1) the government did not prove
that her license was not stolen and, therefore, did not prove that she made the pseudoephedrine
purchases that were not corroborated by the bank records; (2) her confirmed purchases were de
minimis and consistent with her reported allergies and sinus issues; and (3) her codefendants’
testimony was not credible. Hillis essentially asks us to reweigh evidence and make credibility
determinations, which is inappropriate when reviewing a sufficiency challenge.
The government presented sufficient evidence to support the convictions. Codefendants
testified that Hillis purchased pseudoephedrine for the purpose of giving it to Rigsby and Turner
to use in manufacturing methamphetamine, traded pseudoephedrine pills for methamphetamine,
and helped with preparation for manufacturing methamphetamine by stripping matches and
allowing codefendants to use her apartment. This testimony was corroborated by the pharmacy
records, Hillis’s bank records, and Gordy’s testimony explaining that the purchase patterns were
consistent with a methamphetamine-manufacturing conspiracy. Based on this evidence, a
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No. 14-6533, United States v. Hillis
rational trier of fact could find that Hillis entered into an agreement to violate the drug laws, had
knowledge of and the intent to join the conspiracy, and participated in the conspiracy. See
United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005); see also United States v. Stewart,
628 F.3d 246, 255, 261 (6th Cir. 2010) (affirming conviction where “the government put forth
circumstantial evidence corroborating various elements of the coconspirators’ testimony”).
A rational juror could have rejected Hillis’s explanations that her license was stolen, and
that her pseudoephedrine purchases were consistent with allergies or sinus issues. Hillis could
not explain why she had confirmed bank card purchases using both licenses8 or how Rigsby
could have stolen her license during the charged conspiracy if they were no longer dating as she
claimed. Further, the government presented evidence that Hillis had no pseudoephedrine
purchases for several months during the spring, when allergens are more prevalent, and that
Hillis tested negative for known allergens.
In sum, the government presented sufficient evidence of Hillis’s guilt.
III.
For these reasons, we AFFIRM.
8
Hillis’s address changed such that the address on her current license during the conspiracy
would have differed from her extra license that she had replaced in 2000, but she made pseudoephedrine
purchases using her bank card with both licenses.
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United States v. Betsy Hillis
Court: Court of Appeals for the Sixth Circuit
Date filed: 2016-08-16
Citations: 656 F. App'x 222
Copy CitationsCombined Opinion