636 F.3d 687 (5th Cir. 2011), 09-10850, United States v. Jackson

Docket Nº:09-10850.
Citation:636 F.3d 687
Opinion Judge:E. GRADY JOLLY, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Colin Dalawn JACKSON, also known as Cory, Defendant-Appellant.
Attorney:Matthew Joseph Kacsmaryk, Asst. U.S. Atty. (argued), Fort Worth, TX, Vijay Shanker, U.S. Dept. of Justice, Crim. Div., Washington, DC, for U.S. Kevin Joel Page (argued), Fed. Pub. Def., Dallas, TX, for Jackson.
Judge Panel:Before JOLLY, DeMOSS and DENNIS, Circuit Judges.
Case Date:March 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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636 F.3d 687 (5th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Colin Dalawn JACKSON, also known as Cory, Defendant-Appellant.

No. 09-10850.

United States Court of Appeals, Fifth Circuit.

March 22, 2011

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          Matthew Joseph Kacsmaryk, Asst. U.S. Atty. (argued), Fort Worth, TX, Vijay Shanker, U.S. Dept. of Justice, Crim. Div., Washington, DC, for U.S.

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

         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 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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" )

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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; 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 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,

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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 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, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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....

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