United States v. Brooks
| Decision Date | 24 November 2014 |
| Docket Number | No. 13–10146.,13–10146. |
| Citation | 772 F.3d 1161 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Rafiq Albert BROOKS, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
D. Stephen Wallin (argued), The Wallin Law Firm, Phoenix, AZ, for Defendant–Appellant.
Mark S. Kokanovich (argued), Deputy Appellate Chief; John S. Leonardo, United States Attorney; Michael A. Lee, Assistant United States Attorney, Office of the United States Attorney, Phoenix, AZ, for Plaintiff–Appellee.
Appeal from the United States District Court for the District of Arizona, James A. Teilborg, Senior District Judge, Presiding. D.C. No. 2:11–cr–02265–JAT–3.
Before: MARY M. SCHROEDER, JOHN B. OWENS, and MICHELLE T. FRIEDLAND, Circuit Judges.
Rafiq Brooks appeals his convictions on one count of conspiracy to possess marijuana with intent to distribute and two counts of possession of marijuana with intent to distribute. At Brooks's jury trial, the government introduced out-of-court statements by a nontestifying post office supervisor and photographs of a seized package that was the subject of those statements. Brooks argues that the admission of this evidence violated his rights under the Confrontation Clause of the Sixth Amendment. We conclude that admission of the photographs did not violate the Confrontation Clause, but that admission of the postal supervisor's statements did, and we reverse the possession conviction that depended on those statements.
In March 2011, a task force of DEA officers and local law enforcement began investigating a group of individuals suspected of shipping marijuana through the mail. The leader of the investigation, Officer Kurt Kinsey, focused surveillance on an apartment in Glendale, Arizona. On three occasions in August and September 2011, law enforcement observed people loading boxes into a vehicle at the Glendale apartment and then driving to a post office. On each occasion, the task force enlisted the help of U.S. Postal Inspector Jeff Agster to contact the post office and search the suspected parcels. Marijuana was found each time.
Shortly after a traffic stop in late September in which officers discovered two suspected conspirators with a parcel containing marijuana, the task force observed the Glendale apartment being cleaned out—numerous boxes, bags of packing peanuts, and other packaging materials were brought down and loaded into a car. Officers continued to observe the suspected leader of the conspiracy, Koy Williams, at the Glendale apartment, leading them to believe that Williams still lived there.
On the morning of November 9, 2011, Officer Kinsey observed two men exiting the Glendale apartment and entering a silver Buick. Kinsey recognized one of the men as Koy Williams. The other man was dressed in a long-sleeve blue dress shirt, dark-colored dress pants, and a tie. Kinsey followed the silver Buick to an apartment in Phoenix.
Later that morning, Kinsey followed the Buick from the Phoenix apartment to Glendale, where he saw the Buick's driver enter a post office with a box. Kinsey contacted Agster and relayed the mailer's attire—long-sleeve blue dress shirt, dress pants, and a tie. Agster, in turn, telephoned the supervisor of the post office and conveyed the same information. The supervisor confirmed the suspect's presence in the post office and, either later in the same conversation or in a subsequent one, gave Agster mailing information, including a tracking number, for the parcel that the suspect had dropped off. Acting upon that information, Agster obtained a warrant, searched the identified parcel while taking pictures, and found marijuana. Meanwhile, a different task force member, Special Agent John Nelson, followed the Buick from the post office to a grocery store, where he was able to observe the blue-shirted driver from a short distance.
On November 17, 2011, officers arrested Brooks and four others at the Phoenix apartment. A bag next to Brooks contained $1,807 in cash, and he admitted during the arrest that the silver Buick was his rental car. A protective sweep of the apartment revealed bales of marijuana on the kitchen counter and packaging supplies throughout the apartment. One of the arrestees had three delivery receipts on his person; the three corresponding parcels were intercepted en route to New York and found to contain marijuana. After obtaining a warrant, officers returned to the Phoenix apartment and found two boxes of marijuana that were packed and ready for shipment, thirteen delivery confirmation receipts in a cereal box, and a Glock 17 handgun.
The Glendale apartment was also searched. Unlike the Phoenix apartment, which contained little furniture, the Glendale apartment appeared to be lived in. Identification documents for Brooks were found in one of the bedrooms, along with packaging materials and a magazine for a Glock 17 handgun. The bedroom's closet contained a blue dress shirt, a pair of dark slacks, and a tie.
A grand jury indicted Brooks for conspiracy to possess marijuana with intent to distribute, possession of marijuana with intent to distribute on November 9 (the date of the mailing at the Glendale post office), and possession of marijuana with intent to distribute on November 17 (the date of arrest at the Phoenix apartment). At trial, the prosecution introduced evidence of the clothing in Brooks's closet and of his connection to the silver Buick to show that Brooks was the mailer on November 9. Agent Nelson made an in-court identification of Brooks as the man wearing a blue dress shirt and dark slacks that he had followed to the grocery store from the post office.
The prosecution also sought to tie the man in the blue shirt to the parcel containing marijuana. To that end, Inspector Agster testified regarding his communication with the post office supervisor on November 9:
The defense objected to this testimony—and to the admission of photographs depicting Agster's search of the parcel—on Confrontation Clause grounds. The district court overruled the objection. The postal supervisor never testified.
The jury convicted Brooks on all counts. The district court sentenced Brooks to 110 months on the conspiracy count and 60 months on each of the possession counts, with all terms to run concurrently.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Brooks contends that Inspector Agster's testimony conveying out-of-court statements of the nontestifying postal supervisor, as well as photographs of the parcel seized at the Glendale post office, violated the Confrontation Clause.
We review alleged violations of the Confrontation Clause de novo. United States v. Nguyen, 565 F.3d 668, 673 (9th Cir.2009).
We reject Brooks's argument that admitting photographs of the seized parcel violated the Confrontation Clause. As the Supreme Court explained in Crawford v. Washington, the Confrontation Clause “applies to ‘witnesses' against the accused—in other words, those who ‘bear testimony.’ ” 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). “Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. (internal quotation marks and brackets omitted). The photographs of the seized parcel were not “witnesses” against Brooks. They did not “bear testimony” by declaring or affirming anything with a “purpose.” Therefore, their admission did not violate the Confrontation Clause. See United States v. Lopez–Moreno, 420 F.3d 420, 436 (5th Cir.2005) ().
Allowing Inspector Agster to testify about the postal supervisor's statements, on the other hand, did violate the Confrontation Clause. In Crawford, the Supreme Court held that the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial” if the statements are offered to “establish[ ] the truth of the matter asserted,” unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination. 541 U.S. at 53–54, 59–60 n. 9, 124 S.Ct. 1354. In other words, absent unavailability and a prior chance for cross-examination, the Confrontation Clause forbids a statement of a nontestifying witness that is testimonial and offered for its truth.
There is no doubt that Agster's testimony introduced “statements” of the postal supervisor. Although the government emphasizes that the “actual statements” of the supervisor were not offered in testimony, out-of-court statements need not be repeated verbatim to trigger the protections of the Confrontation Clause. R...
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