USA v. JACKSON

Citation625 F.3d 875
Decision Date08 November 2010
Docket NumberNo. 09-10850.,09-10850.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Colin Dalawn JACKSON, also known as Cory, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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Matthew Joseph Kacsmaryk, Asst. U.S. Atty. (argued), Fort Worth, TX, for U.S.

Kevin Joel Page (argued), Fed. Pub. Def., Dallas, TX, for Jackson.

Appeals from the United States District Court for the Northern District of Texas.

Before JOLLY, DeMOSS and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

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 received from Jackson's alleged coconspirator during a proffer session. The coconspirator did not testify or otherwise authenticate the notebooks, but they purportedly show the quantity of cocaine the coconspirator distributed to Jackson. Jackson contends that admitting the notebooks, and an investigating officer's testimony pertaining thereto, violated the Confrontation Clause of the Sixth Amendment; that the notebooks and testimony constitute hearsay; and that the notebooks lacked sufficient authentication. Because the notebooks were not sufficiently authenticated, we hold that the district court abused its discretion 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 was sufficient to sustain Jackson's conviction absent admission of the notebooks into evidence. 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 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; the government's witness testified that these writings identify Jackson. Alongside and beneath several of the alleged references to Jackson are various numbers. The government's witness testified, and the government asserted in its closing argument, that 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 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 timely appealed to this Court.

II.

The threshold question before us is whether the notebooks purporting to be drug ledgers were properly authenticated such that they fall within a recognized exception to the Confrontation Clause. 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 conspiracy.

[1] [2] In this case, proper authentication of the notebooks is determinative of whether the introduction of that evidence violated the Constitution, i.e., the Confrontation Clause. 2 Review of a trial court's evidentiary rulings is for abuse of discretion, subject to harmless error review. 3 United States v. Jimenez Lopez, 873 F.2d 769, 771 (5th Cir.1989). “A trial court abuses its discretion when its ruling is based 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 abused its discretion in admitting the notebooks given to Officer Hight by Arturo Valdez because they were not properly authenticated. The notebooks fall outside of the business records and coconspirator statement exceptions to Crawford and, as presented to the jury here, are testimonial in nature.

A.

[3] [4] A properly introduced, authenticated business record that meets the standards of the Federal Rules of Evidence ordinarily is nontestimonial and will not violate the Confrontation Clause. Thus, we first address whether the notebooks were properly authenticated as business records in accordance with Federal Rule of Evidence 803(6). 4 In Crawford v. Washington, 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, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). While the Court did not define “testimonial,” it noted that business records fall outside this category. Id. at 56, 124 S.Ct. 1354. In general, “after Crawford, business records are not testimonial in nature and their admission at trial is not a violation of the Confrontation Clause.” 5 United States v. Morgan, 505 F.3d 332, 339 (5th Cir.2007).

The Confrontation Clause claim before us today turns on authentication of the notebooks. If the notebooks were not properly authenticated, then they do not qualify as business records and their admission into evidence violates the Confrontation Clause. We reach this conclusion here because the notebooks contain entries that, when offered into evidence as records of regular business activity, purport to be Arturo Valdez's “solemn declaration[s] or affirmation [s] made for the purpose of establishing or proving some fact[s]-namely, the existence and amounts of his cocaine transactions with Jackson. Crawford, 541 U.S. at 51, 124 S.Ct. 1354. If not authentic business records, the ledger entries are 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.” Melendez-Diaz, 129 S.Ct. at 2532. Irrespective of the fact that they were volunteered, the notebook entries “do precisely what a witness does on direct examination.” Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); see also id. at 822 n. 1, 126 S.Ct. 2266 (“The Framers were no more willing to exempt from cross-examination volunteered testimony ... than they were to exempt answers to detailed interrogation.”).

The government plainly introduced the notebooks to prove the truth of the matter asserted: Jackson's transacted...

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