United States v. Coy Jones , 930 F.3d 366 ( 2019 )


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  •      Case: 18-50086   Document: 00515019836        Page: 1   Date Filed: 07/02/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 18-50086
    Fifth Circuit
    FILED
    July 2, 2019
    UNITED STATES OF AMERICA,                                       Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    COY JONES,
    Defendant - Appellant
    -------- ----------------------
    Consolidated With
    Case No. 18-50088
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    COY MARSHALL JONES,
    Defendant - Appellant
    Appeals from the United States District Court
    for the Western District of Texas
    Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
    STEPHEN A. HIGGINSON, Circuit Judge:
    Upon sua sponte panel rehearing, we withdraw our prior opinion, United
    States v. Jones, 
    924 F.3d 219
    (5th Cir. 2019), and substitute the following:
    Case: 18-50086       Document: 00515019836      Page: 2    Date Filed: 07/02/2019
    No. 18-50086
    Coy Jones was convicted by a jury of possessing and conspiring to possess
    with the intent to distribute methamphetamine, possessing a firearm as a
    convicted felon, and possessing a firearm in furtherance of a drug trafficking
    crime. We hold that Jones’s rights under the Confrontation Clause were
    violated when a law enforcement officer testified that he knew Jones had
    received a large amount of methamphetamine because of what the officer was
    told by a confidential informant. This error was not invited by the defense and
    was not harmless. We therefore vacate Jones’s convictions and the related
    revocation of his supervised release and remand for further proceedings.
    I.
    A.
    Jones was arrested in the course of an investigation into suspected large-
    scale methamphetamine distribution by Eredy Cruz-Ortiz. Acting on tips from
    a confidential informant, law enforcement officers observed Cruz-Ortiz meet
    with various individuals in Austin-area parking lots between August 2016 and
    May 2017. On August 23, 2016, for instance, Cruz-Ortiz met with Imran
    Rehman to sell him methamphetamine. Rehman later testified that he met
    with Cruz-Ortiz about 25 to 30 times to purchase methamphetamine. 1 Another
    individual, Julio Rogel Diaz, met with Cruz-Ortiz in a parking lot on
    September 23, 2016, and was subsequently stopped by law enforcement with
    about 700 grams of methamphetamine.
    Law enforcement officers also observed Jones meet with Cruz-Ortiz on
    several occasions. On both September 20 and September 28, 2016, Jones was
    seen briefly entering Cruz-Ortiz’s vehicle in a Target parking lot and leaving
    the vehicle holding a bag. On the latter occasion, Jones drove from parking
    1        Rehman also testified that he did not know Jones and had never seen him
    before trial.
    2
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    spot to parking spot for about an hour before Cruz-Ortiz arrived, but did not
    enter any stores. 2 Jones was not searched or arrested on either date, and law
    enforcement officers were unable to definitively ascertain the content of the
    bags. On October 6, 2016, Jones was again observed in the Target parking lot
    moving from spot to spot, but he left without meeting anyone. Detective
    Michelle Langham, one of the case agents on the investigation, testified that
    she believed Jones left because he spotted surveillance units.
    About six months later, on April 3, 2017, law enforcement officers—again
    acting on a tip from their confidential informant—conducted surveillance of
    the parking lot of a Valero/Wag-A-Bag gas station. Detective Langham
    testified that the surveillance team observed Jones arrive, pull up to the gas
    pumps, drive back and forth in the area for about an hour, return to the
    parking lot, and meet up with Cruz-Ortiz’s vehicle. Both vehicles then drove
    out of the parking lot in tandem. Detective Langham acknowledged that she
    did not observe any exchange of items between Jones and Cruz-Ortiz and she
    did not stop Jones or seize any drugs on this date.
    The central events in this case occurred on May 3, 2017. Special Agent
    Royce Clayborne received a tip from the confidential informant that a drug
    deal would occur at the same Valero on May 3, 2017. A surveillance team set
    up in the area and observed Jones arrive and pull alongside a truck driven by
    someone they identified as Cruz-Ortiz’s roommate. Detective Langham
    testified that Jones gestured to the other driver, and both vehicles drove off
    together. Officers followed the two vehicles as they left the gas station and
    traveled down County Road 213, a lightly traveled rural road. The vehicles
    briefly passed out of view. When Detective Langham drove by, she saw the two
    2       Jones points to photographic evidence in the record that he did enter the
    Target store on September 20, 2016.
    3
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    vehicles meet for less than a minute in a dirt pull-off on the side of the road
    and then drive off in different directions. Nobody saw any transaction or
    exchange of items between Jones and the other driver, and nobody observed
    Jones in possession of a firearm. The individual believed to be Cruz-Ortiz’s
    roommate was not followed or stopped after this encounter.
    Officers instead followed Jones as he turned onto County Road 201.
    Detective Langham directed a sheriff’s deputy to stop Jones for a traffic
    violation. Jones did not immediately stop when the deputy activated his
    emergency lights. Instead, Jones abruptly sped up and drove up to 90 miles
    per hour on a 40-mile-an-hour road for about a mile, passing out of view at
    certain points. Law enforcement officers did not observe Jones throw anything
    from his truck but, when Jones finally stopped, the windows on both sides of
    his truck were down. Officers arrested Jones and searched his truck, but found
    no drugs or firearms.
    With the assistance of canine units, law enforcement then searched both
    sides of County Road 201. After one to two hours of searching, officers found
    an unloaded pistol in a cactus patch on what would have been the passenger
    side of Jones’s vehicle, about a quarter of a mile from where Jones ultimately
    stopped. The pistol was wedged into a cactus and covered in dirt and cactus
    pollen. Detective Langham testified that the pistol was not rusted and was not
    covered by leaves or other objects, and she did not believe it had been there for
    a long period of time. Officers also found a gun magazine nearby.
    A sheriff’s deputy driving to collect the gun noticed a Ziploc bag
    approximately a quarter of a mile from where the gun was found and on the
    opposite side of the road. The Ziploc, found next to a reusable plastic bag,
    contained about 982 grams of methamphetamine. Detective Langham testified
    that both the gun and the methamphetamine were found in an area where the
    sheriff’s deputy lost sight of Jones as he sped down the road. Detective
    4
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    Langham and Agent Clayborne testified that they had extensive experience in
    drug investigations and had never randomly encountered a kilogram of
    methamphetamine on the side of the road. Fingerprint analysis was conducted,
    but there were no usable prints on the methamphetamine bag or the pistol,
    and the usable prints on the reusable plastic bag were either inconclusive or
    did not match Jones.
    Jones was interrogated on the night of his arrest. He told a detective that
    he did not intentionally flee the sheriff’s deputy but was instead attempting to
    get away from an individual who attempted to fight him at the Valero. Jones
    stated that he did not see the deputy or his blue lights. As Jones now
    acknowledges, this description of a fight at the Valero was inconsistent with
    what the surveillance team observed. Jones did not admit to possessing a
    firearm or to possessing methamphetamine.
    B.
    Jones was subsequently charged with (1) possession with intent to
    distribute 500 grams or more of methamphetamine, (2) conspiracy to possess
    with intent to distribute 500 grams or more of methamphetamine, (3)
    possession of a firearm by a convicted felon, and (4) possession of a firearm in
    furtherance of a drug trafficking crime. The government filed notice of its
    intent to introduce evidence of other crimes under Federal Rule of Evidence
    404(b), and Jones filed a motion to exclude this evidence. Jones also filed
    pretrial motions to compel disclosure of the identity of the government’s
    confidential informant and to exclude testimony related to the confidential
    informant under Federal Rule of Evidence 403 and the Confrontation Clause
    of the Sixth Amendment. The district court denied the motion to disclose the
    confidential informant, and stated that it was denying the motion to exclude
    testimony “at this time prior to trial.” The court explained that “[t]he
    information, I suspect, is simply going to be a suspected drug transaction at
    5
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    that address,” but noted that “[i]f the government is going to go further, the
    government needs to tell counsel.”
    The case proceeded to a four-day jury trial. At trial, law enforcement
    officers testified about their investigation into Cruz-Ortiz’s suspected
    methamphetamine distribution and their surveillance of Cruz-Ortiz and
    Jones. This testimony included multiple references to tips and other
    information received from the confidential informant. Jones objected to this
    testimony on hearsay grounds. The district court sustained some objections,
    but determined that other references to the confidential informant were
    admissible to explain the officers’ actions rather than for the truth of the
    matter asserted in the statements.
    Over Jones’s continued objection, the district court also admitted
    evidence of Jones’s prior judgment of conviction. The district court instructed
    the jury that it could not consider the prior conviction as proof of the crimes
    charged, except as to the charge for being a felon in possession of a firearm.
    The district court further instructed the jury that, if it found beyond a
    reasonable doubt from other evidence that Jones committed the acts charged
    in the indictment, it could consider evidence of similar acts allegedly
    committed on other occasions to determine intent, motive, opportunity, plan,
    or absence of mistake.
    The district court denied Jones’s motion for a judgment of acquittal, and
    the jury found Jones guilty on all four counts. The district court later denied a
    post-trial motion for judgment of acquittal or, alternatively, a new trial. Jones
    was sentenced to a total of 300 months’ imprisonment, the mandatory
    minimum for his offenses. At the same sentencing hearing, the district court
    found that Jones violated his supervised release on the 2010 federal conviction
    because of his new criminal conviction in this case. The district court sentenced
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    Jones to 18 months’ imprisonment on the revocation, to run consecutively to
    his 300 month term.
    Jones now appeals his convictions and the revocation of his supervised
    release. He argues that (1) the district court erred by admitting evidence of his
    prior conviction, (2) testimony regarding the confidential informant violated
    his rights under the Confrontation Clause, (3) the district court erred by not
    ordering disclosure of the identity of the confidential informant, and (4) the
    evidence was insufficient to support the jury’s verdict on any of the four counts.
    Jones further contends that his revocation judgment must be vacated because
    it was predicated on an invalid conviction. We address each argument in turn.
    II.
    Under Federal Rule of Evidence 404(b), evidence of a defendant’s past
    crime “is not admissible to prove a person’s character,” but “may be admissible
    for another purpose, such as proving motive, opportunity, intent, preparation,
    plan, knowledge, identity, absence of mistake, or lack of accident.” Jones
    properly objected to the admission of his prior judgment of conviction. “We
    review the district court’s admission of extrinsic offense evidence over a 404(b)
    objection under a ‘heightened’ abuse of discretion standard.” United States v.
    Jackson, 
    339 F.3d 349
    , 354 (5th Cir. 2003) (quoting United States v.
    Wisenbaker, 
    14 F.3d 1022
    , 1028 (5th Cir. 1994)). The burden is on the
    government to demonstrate “that a prior conviction is relevant and admissible
    under 404(b).” United States v. Wallace, 
    759 F.3d 486
    , 494 (5th Cir. 2014).
    The admissibility of a prior conviction “under Rule 404(b) hinges on
    whether (1) it is relevant to an issue other than the defendant’s character, and
    (2) it ‘possess[es] probative value that is not substantially outweighed by its
    undue prejudice’ under Federal Rule of Evidence 403.” United States v. Smith,
    
    804 F.3d 724
    , 735 (5th Cir. 2015) (quoting United States v. Beechum, 
    582 F.2d 898
    , 911 (5th Cir. 1978) (en banc)). “We consider several factors in determining
    7
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    whether the prejudicial effect of the extrinsic evidence substantially outweighs
    its probative value: (1) the government’s need for the extrinsic evidence, (2) the
    similarity between the extrinsic and charged offenses, (3) the amount of time
    separating the two offenses, and (4) the court’s limiting instructions.” United
    States v. Kinchen, 
    729 F.3d 466
    , 473 (5th Cir. 2013). We also “consider the
    overall prejudicial effect of the extrinsic evidence.” United States v. Juarez, 
    866 F.3d 622
    , 627 (5th Cir. 2017).
    In this case, Jones was charged with being a felon in possession of a
    firearm, and the evidence of his prior conviction was relevant and necessary to
    establish an element of this offense, namely, that he was a felon. Jones does
    not point to any stipulation in the record to a prior felony conviction and he
    does not explain how the government could have proven this element without
    introducing his judgment of conviction. Nor does he argue that the district
    court should have severed the felon-in-possession charge from his other counts.
    Accordingly, the district court did not err in admitting Jones’s prior conviction
    as substantive evidence of the felon-in-possession charge. See United States v.
    Turner, 
    674 F.3d 420
    , 430 (5th Cir. 2012).
    Jones primarily argues that the government impermissibly used his
    prior conviction for purposes beyond establishing that he was a convicted felon.
    The district court instructed the jury that, if it found beyond a reasonable
    doubt that Jones committed the acts charged in the indictment, it could
    consider his past similar acts for the limited purposes outlined in Rule 404(b),
    including whether Jones “had the state of mind or intent necessary to commit
    the crime charged in the indictment.” “Extrinsic evidence has high probative
    value when intent is the key issue at trial.” 
    Juarez, 866 F.3d at 627
    .
    Jones argues that the government’s need for this evidence was minimal
    because his “theory of defense was not based on an argument that he was an
    ignorant participant in the alleged events.” Yet, in its order denying Jones’s
    8
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    post-trial motion, the district court explained that Jones placed his intent at
    issue by arguing that he lacked intent to engage in a drug conspiracy and may
    have been meeting Cruz-Ortiz to obtain drugs for his personal use. See United
    States v. Jimenez-Elvirez, 
    862 F.3d 527
    , 536–37 (5th Cir. 2017). Jones does not
    address this finding by the district court. Notably, Jones’s closing argument
    highlighted the district court’s instruction to the jury that mere presence at
    the scene of an event or association with certain other persons is insufficient
    to prove a conspiracy. Further, the record does not indicate that Jones “offered
    any kind of ‘enforceable pre-trial assurances’ or any stipulation or concession
    regarding his intent.” United States v. Carrillo, 
    660 F.3d 914
    , 929 n.6 (5th Cir.
    2011) (citing United States v. McCall, 
    553 F.3d 821
    , 828 (5th Cir. 2008)). The
    government therefore needed to prove Jones’s intent at trial.
    We are also satisfied that the district court properly weighed the other
    three relevant factors. Jones’s past methamphetamine conspiracy conviction is
    identical to one of the offenses charged in this case. We have observed that
    “[s]imilarity between the prior and charged offenses increases both the
    probative value and prejudicial effect of extrinsic evidence” and requires the
    district court to “assess the similarity of the offenses and weigh enhanced
    probative value against the prejudice that almost certainly results when
    evidence of prior misconduct is admitted.” 
    Juarez, 866 F.3d at 628
    (quotations
    omitted); see also 
    Jimenez-Elvirez, 862 F.3d at 536
    . Jones does not argue,
    however, that his past conviction is too similar to the offenses charged here.
    Instead, both on appeal and before the district court, Jones attempted to
    distinguish his past criminal conduct as dissimilar from the conduct alleged in
    this case. Yet minor factual differences between Jones’s past offense and the
    conduct alleged here do not render his past conviction non-probative.
    Further, although Jones’s prior conviction was seven years old, he was
    released from prison less than two years before his May 3, 2017, arrest and
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    was still on supervised release for that conviction. His conviction was not too
    remote in time to be probative. See United States v. Arnold, 
    467 F.3d 880
    , 885
    (5th Cir. 2006) (affirming use of past conviction that was nine years old).
    Finally, and critically, the district court gave the jury an appropriate limiting
    instruction. See 
    Wallace, 759 F.3d at 495
    . The government did not urge the
    jury to disregard its instructions or consider the evidence for an improper
    purpose. 3
    “Even if all four factors weigh in the Government’s favor, we must still
    evaluate the district court’s decision under a ‘commonsense assessment of all
    the circumstances surrounding the extrinsic offense.’” 
    Juarez, 866 F.3d at 629
    (quoting 
    Beechum, 582 F.2d at 914
    ). Here, Jones’s judgment of conviction was
    admissible to prove an element of one of his charged offenses. The additional
    prejudicial effect of permitting the jury to consider Jones’s prior conviction to
    help determine his intent was therefore diminished. Moreover, Jones’s past
    conviction was “not of a heinous or violent nature” and “was unlikely to incite
    the jury to convict purely based on its emotional impact.” 
    Id. at 630.
    Evidence
    of his past conviction was not “greater in magnitude than the crimes for which
    [Jones] was on trial, nor did [it] occupy more of the jury’s time than the
    evidence of the charged offenses.” United States v. Hernandez-Guevara, 
    162 F.3d 863
    , 872 (5th Cir. 1998).
    Contrary to Jones’s arguments, affirming the use of his prior conviction
    in this case “does not render all prior narcotics convictions per se admissible in
    a drug conspiracy case.” 
    Wallace, 759 F.3d at 494
    ; see also 
    Carrillo, 660 F.3d at 929
    . We hold only that, under the specific circumstances of Jones’s trial, the
    3      As explained below, the government did elicit testimony that it was common
    for drug dealers to carry guns. But this testimony did not rely on Jones’s past drug conviction.
    Rather, it was consistent with the government’s theory that Jones possessed the pistol while
    purchasing methamphetamine on May 3, 2017.
    10
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    district court did not abuse its discretion in balancing the relevant factors and
    finding the evidence relevant and admissible.
    III.
    We turn next to Jones’s challenge under the Confrontation Clause. The
    Sixth Amendment provides a criminal defendant with the right “to be
    confronted with the witnesses against him.” U.S. Const. Amend. VI. “[T]his
    bedrock procedural guarantee” protects against convictions based on out-of-
    court accusations that the defendant cannot test “in the crucible of cross-
    examination.” Crawford v. Washington, 
    541 U.S. 36
    , 42, 61 (2004). To satisfy
    the Confrontation Clause, “[t]estimonial statements of witnesses absent from
    trial” may be “admitted only where the declarant is unavailable, and only
    where the defendant has had a prior opportunity to cross-examine.” 
    Id. at 59.
    We review preserved claims of Confrontation Clause error de novo, subject to
    harmless error analysis. See United States v. Kizzee, 
    877 F.3d 650
    , 656 (5th
    Cir. 2017).
    A.
    Prior to and during trial, Jones made multiple objections to the
    government’s use of information from its confidential informant. We focus our
    Confrontation Clause analysis on the following series of exchanges with Agent
    Clayborne. The first occurred on direct examination:
    Prosecutor: [B]ased on the information you’d received, Coy Jones
    had received a large amount of methamphetamine?
    Defense: Objection. Hearsay.
    Prosecutor: I’ll withdraw the question.
    The Court: That objection is overruled.
    Prosecutor: I’ll withdraw the question, your Honor.
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    The Court: All right.
    Prosecutor: Why did you follow Coy Jones as opposed to the other
    guy?
    Agent Clayborne: Well, we knew that Coy Jones had just received
    a large amount of methamphetamine.
    Prosecutor: And once you knew that he had received that
    methamphetamine, what did you do?
    Agent Clayborne: We were coordinating a traffic stop of the vehicle
    driven by Coy Jones, which is the white truck.
    Prosecutor: And why did you want to stop that vehicle?
    Agent Clayborne: Because it had methamphetamine, we wanted to
    seize it and arrest Coy Jones.
    On cross-examination, defense counsel questioned Agent Clayborne regarding
    his asserted knowledge that Jones had received methamphetamine:
    Defense: [Y]ou didn’t see any interaction between Mr. Jones and
    the silver truck, right?
    Agent Clayborne: That’s correct.
    Defense: But you testified that you knew Jones had received a
    large amount of methamphetamine.
    Agent Clayborne: That’s correct.
    Defense: But you didn’t know that, right? You hadn’t seen
    anything. You hadn’t seen an exchange of methamphetamine or
    money.
    Agent Clayborne: But I knew it was.
    Defense: You believed it, but you didn’t know it.
    Agent Clayborne: I knew it. I mean, if you’re asking me, I knew it.
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    Defense counsel then moved on to other questions. On re-direct examination,
    the government returned to the subject of Agent Clayborne’s knowledge of
    Jones’s methamphetamine possession:
    Prosecutor: [Defense counsel] also asked you, let me characterize
    this, sort of confronted you about when you said you knew a drug
    deal had gone down, but you had not seen anything. Do you recall
    that?
    Agent Clayborne: That’s correct.
    Prosecutor: How did you know that a drug deal had, in fact,
    occurred?
    Agent Clayborne: So once we saw or the other units saw what
    looked like a drug deal, I made a phone call to my confidential
    source, who then made some phone calls himself and got back to me
    that the deal had happened. (emphasis added).
    Prosecutor: Based on that information, you decided to stop Coy
    Jones?
    Agent Clayborne: That’s correct.
    Defense counsel asked to approach the bench and renewed the motion for
    disclosure of the confidential informant. Counsel argued that Agent Clayborne
    testified about the content of what the informant said and that Jones had the
    right to confront the witnesses against him. The district court stated that the
    testimony regarding the confidential informant came in response to defense
    questions on cross-examination and that the defense opened the door to the
    testimony. The court also denied Jones’s renewed motion to turn over reports
    on the confidential informant.
    B.
    “Police officers cannot, through their trial testimony, refer to the
    substance of statements given to them by nontestifying witnesses in the course
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    of their investigation, when those statements inculpate the defendant.” Taylor
    v. Cain, 
    545 F.3d 327
    , 335 (5th Cir. 2008). An officer’s testimony need not
    repeat the absent witness’s exact statement to implicate the Confrontation
    Clause. Rather, “[w]here an officer’s testimony leads to the clear and logical
    inference that out-of-court declarants believed and said that the defendant was
    guilty of the crime charged, Confrontation Clause protections are triggered.”
    
    Kizzee, 877 F.3d at 657
    (quotation omitted).
    Agent Clayborne testified that he knew that Jones had received a large
    amount of methamphetamine because of what the confidential informant told
    him he heard from others. The jury was not required to make any logical
    inferences, clear or otherwise, to link the informant’s statement (double
    hearsay) to Jones’s guilt of the charged offense of methamphetamine
    possession. The government reinforced this connection during both opening
    and closing statements. In opening remarks, the prosecutor described the May
    3, 2017, surveillance and stated: “Of course, the information the agents have
    at this point is that Coy Jones is now in possession of a large amount of
    methamphetamine, so they follow Coy Jones.” In closing arguments, the
    prosecutor told the jury:
    And then, as you heard from Agent Clayborne when the defense
    asked him, how do you know the drug deal happened? Well, the
    informant told me. We called the informant and said, did the deal
    happen and he said, yep, it sure did. And that’s why they chose to
    follow Coy Jones because they knew he had the drugs.
    In light of this testimony and argument, we differ with the government’s
    assertion that the informant’s statements did not directly identify Jones. Both
    Agent Clayborne and the prosecution “blatantly link[ed]” Jones to the drug
    deal and “eliminated all doubt” as to who the informant was referring to. Gray
    v. Maryland, 
    523 U.S. 185
    , 193–94 (1998).
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    The government does not dispute that the confidential informant’s
    statements regarding the drug deal are inadmissible under the Confrontation
    Clause as substantive evidence of Jones’s guilt. It argues instead that the
    informant’s statements were not introduced for their truth, but simply to
    explain the actions of law enforcement officers. The district court instructed
    the jury that testimony regarding the confidential informant “was admitted
    only to explain why law enforcement was conducting various surveillance
    operations,” and could not be used “as evidence the defendant, or anyone else,
    actually engaged in a drug transaction.”
    Testifying officers may refer to out-of-court statements to “provide
    context for their investigation or explain ‘background’ facts,” so long as the
    “out-of-court statements are not offered for the truth of the matter asserted
    therein, but instead for another purpose: to explain the officer’s actions.”
    
    Kizzee, 877 F.3d at 659
    . We have made clear that “[w]hen such evidence comes
    into play, the prosecution must be circumspect in its use, and the trial court
    must be vigilant in preventing its abuse.” United States v. Evans, 
    950 F.2d 187
    ,
    191 (5th Cir. 1991); see also United States v. Sosa, 
    897 F.3d 615
    , 623 (5th Cir.
    2018) (“[C]ourts must be vigilant in ensuring that these attempts to ‘explain
    the officer’s actions’ with out-of-court statements do not allow the backdoor
    introduction of highly inculpatory statements that the jury may also consider
    for their truth.”) (quoting 
    Kizzee, 877 F.3d at 659
    ).
    Such vigilance is necessary to preserve the core guarantees of the
    Confrontation Clause. A witness’s statement to police that the defendant is
    guilty of the crime charged is highly likely to influence the direction of a
    criminal investigation. But a police officer cannot repeat such out-of-court
    accusations at trial, even if helpful to explain why the defendant became a
    suspect or how the officer was able to obtain a search warrant. See 
    Kizzee, 877 F.3d at 659
    –60 (holding that a detective’s testimony that he was able to obtain
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    a search warrant for the defendant’s house after questioning a witness about
    drug purchases violated the Confrontation Clause); 
    Taylor, 545 F.3d at 331
    ,
    336 (finding a violation of clearly established law when an officer testified that
    he was able to develop a suspect after an unnamed individual told him “that
    the perpetrator was Bruce”); United States v. Hernandez, 
    750 F.2d 1256
    , 1257
    (5th Cir. 1985) (rejecting argument that hearsay evidence identifying the
    defendant as a drug smuggler was permissibly used “to explain the motivation
    behind DEA’s investigation”).
    “Statements exceeding the limited need to explain an officer’s actions can
    violate the Sixth Amendment—where a nontestifying witness specifically links
    a defendant to the crime, testimony becomes inadmissible hearsay.” 
    Kizzee, 877 F.3d at 659
    ; see also United States v. Vitale, 
    596 F.2d 688
    , 689 (5th Cir.
    1979) (explaining that testimony regarding a tip is permissible “provided that
    it is simply background information showing the police officers did not act
    without reason and, in addition, that it does not point specifically to the
    defendant”). Because Agent Clayborne’s testimony about his conversation with
    the confidential informant “point[ed] directly at the defendant and his guilt in
    the crime charged,” it was not a permissible use of tipster evidence. 
    Evans, 950 F.2d at 191
    . Thus, the introduction of this statement at trial violated the
    Confrontation Clause. 4
    C.
    The government contends that, to the extent its use of the confidential
    informant’s statements exceeded permissible non-hearsay purposes, Jones
    4       In light of this holding, as well as less-developed briefing, we do not reach
    Jones’s argument that other references to the confidential informant at trial also violated the
    Confrontation Clause. Instead, to the extent the district court may need to revisit these issues
    at a new trial, we reiterate our earlier admonitions that tipster evidence “exceeding the
    limited need to explain an officer’s actions can violate the Sixth Amendment,” 
    Kizzee, 877 F.3d at 659
    , and “the prosecution must be circumspect in its use.” 
    Evans, 950 F.2d at 191
    .
    16
    Case: 18-50086     Document: 00515019836      Page: 17   Date Filed: 07/02/2019
    No. 18-50086
    invited the error. This argument falls short for two independent reasons. First,
    defense counsel did not ask Agent Clayborne how he knew that Jones had
    received the methamphetamine, and thus did not invite him to answer that
    question. Rather, the defense simply pointed out an inconsistency between
    Agent Clayborne’s testimony that he did not observe a drug transaction and
    his confident assertion that he knew Jones had received the drugs. “We
    narrowly construe counsel’s statements in applying the invited error doctrine.”
    United States v. Franklin, 
    838 F.3d 564
    , 567 n.1 (5th Cir. 2016). In this case it
    was the prosecution, not the defense, that elicited the hearsay testimony by
    asking Agent Clayborne how he knew that the drug deal had occurred. Cf.
    United States v. Jimenez, 
    509 F.3d 682
    , 691 (5th Cir. 2007) (finding invited
    error when the challenged “testimony was first elicited by Contreras’ own
    attorney on cross-examination after he repeatedly asked Delauney to explain
    the basis for his suspicions about Contreras”). The government has pointed to
    no authority suggesting that the defense raising general doubts on cross-
    examination about the basis of an officer’s knowledge permits the prosecution
    to directly elicit incriminating hearsay testimony on re-direct examination.
    Second, it is undisputed that defense counsel was not informed before
    trial that the confidential informant provided law enforcement with after-the-
    fact information that the drug deal went through. For invited error to permit
    “waiver of the Sixth Amendment right to confrontation, a purposeful rather
    than inadvertent inquiry into the forbidden matter must be shown.” United
    States v. Taylor, 
    508 F.2d 761
    , 764 (5th Cir. 1975); see also United States v.
    Salazar, 
    751 F.3d 326
    , 332 (5th Cir. 2014) (“Invited error applies, however,
    only where the error can be attributed to the actions of the defense.”). The Sixth
    Amendment guarantees defendants the right to confront all accusers, whether
    present or absent at trial. See 
    Crawford, 541 U.S. at 50
    –51. A defendant may
    cross-examine the government’s witnesses and probe seeming inconsistencies
    17
    Case: 18-50086     Document: 00515019836     Page: 18   Date Filed: 07/02/2019
    No. 18-50086
    without risking the unwitting admission of incriminating hearsay. See 
    Taylor, 508 F.2d at 764
    (finding no invited error when defense counsel “had no way to
    know that asking about the sawed-off rifle would lead the witness into the
    [challenged] statement”). To hold otherwise would eviscerate the protections of
    the Confrontation Clause by forcing defendants to choose between their right
    to vigorously cross-examine testifying witnesses and their right to confront
    out-of-court accusers.
    D.
    We may nonetheless affirm Jones’s conviction if the Confrontation
    Clause error was harmless beyond a reasonable doubt. See United States v.
    Alvarado-Valdez, 
    521 F.3d 337
    , 341 (5th Cir. 2008); Chapman v. California,
    
    386 U.S. 18
    , 24 (1967). To meet this standard, the government bears the
    burden to show that there was “no reasonable possibility that the tainted
    evidence might have contributed to the jury’s verdict of guilty.” Lowery v.
    Collins, 
    988 F.2d 1364
    , 1373 (5th Cir. 1993). Here, the government points to
    other evidence of guilt, including surveillance of apparent drug transactions
    and Jones’s flight from police, and argues that the confidential informant’s
    testimony “was not crucial” to its case. This is insufficient to satisfy the
    government’s burden.
    Our harmlessness inquiry focuses “on the evidence that violated
    [Jones’s] confrontation right, not the sufficiency of the evidence remaining
    after excision of the tainted evidence.” Id.; see also United States v. Dominguez
    Benitez, 
    542 U.S. 74
    , 81 n.7 (2004) (“When the Government has the burden of
    addressing prejudice, as in excusing preserved error as harmless on direct
    review of the criminal conviction, it is not enough to negate an effect on the
    outcome of the case.”); 
    Alvarado-Valdez, 521 F.3d at 342
    (“Our focus is on the
    possibility of harm arising from [the] testimony and not necessarily on the
    18
    Case: 18-50086       Document: 00515019836         Page: 19     Date Filed: 07/02/2019
    No. 18-50086
    possibility of its relationship to other evidence.”). 5 Here, the inadmissible
    evidence was highly incriminating. Jones was charged, among other counts,
    with possession with the intent to distribute methamphetamine. He denied
    possessing the drugs. No drugs were found in his possession and no officer
    witnessed a drug transaction on May 3, 2017. The informant’s statement,
    revealed through Agent Clayborne’s testimony and emphasized during closing
    arguments, directly implicated Jones in methamphetamine possession.
    We have repeatedly found harmful error under similar circumstances.
    See 
    Kizzee, 877 F.3d at 662
    (finding that Confrontation Clause error was not
    harmless when testimony was referenced in closing arguments and “no other
    witness in this case could provide testimony from personal knowledge that
    Kizzee sold drugs”); 
    Duron-Caldera, 737 F.3d at 996
    –97 (noting that the
    contested affidavit undermined the defendant’s “sole defense,” and the
    government relied on it in closing arguments); 
    Taylor, 545 F.3d at 337
    (holding
    that Confrontation Clause error was not harmless “[i]n light of the dependency
    of the prosecution on a single witness’s less-than-certain identification,
    combined with the use of tainted hearsay evidence both in testimony and in
    closing argument asserting that the defendant was the ‘perpetrator’”);
    
    Alvarado-Valdez, 521 F.3d at 342
    –43 (“We cannot see how the government can
    5       Our harmless error cases have also considered factors such as “the importance
    of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative,
    the presence or absence of evidence corroborating or contradicting the testimony of the
    witness on material points, the extent of cross-examination otherwise permitted, and of
    course, the overall strength of the prosecution’s case.” United States v. Duron-Caldera, 
    737 F.3d 988
    , 996 (5th Cir. 2013) (quotation omitted). Yet we have also explained that these
    factors are primarily relevant in cases involving “Confrontation Clause violations arising
    from the denial of a defendant’s right to impeach a witness for bias.” 
    Alvarado-Valdez, 521 F.3d at 342
    (citing Delaware v. Van Arsdall, 
    475 U.S. 673
    , 684 (1986)). This is not such a
    case. In any event, our cases have consistently recognized that the government must show
    “no reasonable possibility that the evidence complained of might have contributed to the
    conviction.” 
    Kizzee, 877 F.3d at 661
    (quotation omitted); see also 
    Duron-Caldera, 737 F.3d at 996
    .
    19
    Case: 18-50086    Document: 00515019836        Page: 20   Date Filed: 07/02/2019
    No. 18-50086
    conclusively show that the tainted evidence did not contribute to the
    conviction, because the government’s closing argument relied on that very
    evidence.”).
    Our recent decision in United States v. Sarli, 
    913 F.3d 491
    (5th Cir.
    2019), is not to the contrary. In Sarli, the defendant was arrested with a large
    amount of methamphetamine. 
    Id. at 493.
    A detective testified that law
    enforcement arrested Sarli following a tip from a confidential informant, and
    the prosecution mentioned this tip briefly in opening and closing arguments.
    
    Id. at 498.
    Critically, “Sarli did not dispute that he carried drugs—but he did
    dispute that he knew he was carrying drugs.” 
    Id. at 497.
    We determined that
    references to the confidential informant’s tip were harmless because “nothing
    in the confidential tip established whether Sarli was a knowing participant or
    an ignorant, gullible mule—and the prosecutor did not once suggest
    otherwise.” 
    Id. at 499.
    Here, by contrast, the informant’s purported
    confirmation that a drug deal occurred directly inculpated Jones in the
    contested element of possession.
    It is possible that the jury concluded that Jones possessed a large amount
    of methamphetamine based only on his meetings with Cruz-Ortiz, his highly
    suspicious conduct on May 3, 2017, and the improbability that the
    methamphetamine and pistol would be randomly discovered on the side of the
    road. But it is also possible that any doubts about Jones’s guilt were dispelled
    by Agent Clayborne’s testimony, emphasized during closing arguments, that
    he knew Jones possessed methamphetamine because of the information he
    received from the confidential informant. “Under these circumstances, there 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.”
    United States v. Jackson, 
    636 F.3d 687
    , 697 (5th Cir. 2011) (quotation omitted).
    20
    Case: 18-50086      Document: 00515019836       Page: 21    Date Filed: 07/02/2019
    No. 18-50086
    “That would require retrying the case on appeal, at best, or engaging in pure
    speculation, at worst.” 
    Alvarado-Valdez, 521 F.3d at 343
    .
    The government has therefore failed to meet its burden to show harmless
    error as to Jones’s conviction for possession with intent to distribute 500 grams
    or more of methamphetamine. Two other counts of conviction—conspiracy to
    possess with intent to distribute 500 grams or more of methamphetamine and
    possession of a firearm in furtherance of a drug trafficking crime—are closely
    linked to Jones’s alleged methamphetamine purchases and must similarly be
    reversed. Jones’s remaining count of conviction—possession of a firearm by a
    convicted felon—does not directly relate to methamphetamine possession or
    distribution. Yet, as the government itself argued in its briefing and at oral
    argument, the evidence of gun possession is deeply intertwined with Jones’s
    alleged methamphetamine dealing. The government elicited testimony at trial
    that it is common for drug dealers to carry guns to protect themselves and their
    product. On appeal, the government contends that Jones’s involvement in drug
    trafficking supports an inference that he possessed the discarded pistol. The
    government has offered no argument that Jones’s felon-in-possession
    conviction can survive the reversal of his other counts of conviction. 6 Under
    these circumstances, we cannot say that there is no “reasonable possibility that
    the evidence complained of might have contributed to the conviction” for
    firearm possession. 
    Chapman, 386 U.S. at 24
    . We thus vacate the judgment of
    conviction on all counts and remand for a new trial.
    IV.
    Jones also appeals the denial of his motion to disclose the identity of the
    confidential informant. We review a district court’s decision to deny disclosure
    6      Indeed, the government candidly acknowledged at oral argument that it could
    be more difficult to establish harmlessness as to the firearm counts than as to the
    methamphetamine counts.
    21
    Case: 18-50086    Document: 00515019836       Page: 22   Date Filed: 07/02/2019
    No. 18-50086
    of an informant’s identity for abuse of discretion. United States v. Ibarra, 
    493 F.3d 526
    , 531 (5th Cir. 2007). There is “no fixed rule” in this area because “[t]he
    problem is one that calls for balancing the public interest in protecting the flow
    of information against the individual’s right to prepare his defense.” Roviaro
    v. United States, 
    353 U.S. 53
    , 62 (1957). “We apply a three factor test to
    determine whether the identity of a confidential informant should be disclosed:
    ‘(1) the level of the informant’s activity; (2) the helpfulness of the disclosure to
    the asserted defense; and (3) the Government’s interest in nondisclosure.’”
    United States v. Ortega, 
    854 F.3d 818
    , 824 (5th Cir. 2017) (quoting 
    Ibarra, 493 F.3d at 531
    ).
    In response to Jones’s request for disclosure, the government
    represented that the informant “just gave a tip,” “was not on the scene on any
    of this that will be the subject of trial,” and “would not be a fact witness.” The
    district court held an ex parte hearing with the government and subsequently
    denied Jones’s motion for disclosure of the confidential informant, citing safety
    concerns and the government’s long relationship with the informant. We have
    affirmed the denial of a request for disclosure when the confidential informant
    “was a mere tipster,” the informant did not provide information that would aid
    the defense, and disclosure posed risks to the safety of the informant and his
    family and could jeopardize other ongoing investigations. 
    Ibarra, 493 F.3d at 532
    .
    Upon review of the transcript of the ex parte hearing, we concur in the
    district court’s assessment that disclosure of the informant’s identity could be
    dangerous for the informant and his family. It is not clear from the record,
    however, whether the district court fully considered the level of the informant’s
    involvement in the contested conduct and the potential helpfulness of
    disclosure to Jones’s defense. These factors are closely tied to our
    Confrontation Clause analysis. As explained above, the government’s use of
    22
    Case: 18-50086     Document: 00515019836       Page: 23    Date Filed: 07/02/2019
    No. 18-50086
    the confidential informant at Jones’s trial exceeded the scope of a “mere
    tipster.” The government instead elicited testimony that the confidential
    informant confirmed facts central to its case—that a drug deal occurred on May
    3, 2017, and that Jones received a large amount of methamphetamine in that
    transaction.
    Jones argues that disclosure of the informant’s identity would have been
    helpful to his defense because the informant could have been cross-examined
    regarding the benefits he received in exchange for assisting law enforcement
    as well as his own criminal history. This information was discussed during the
    district court’s ex parte hearing with the government but was not disclosed to
    Jones before trial. 7 The value of impeachment evidence depends on how a
    witness is used at trial and whether the witness’s credibility is a relevant issue
    in the case. See, e.g., Giglio v. United States, 
    405 U.S. 150
    , 154–55 (1972). Here,
    the government relied on the confidential informant’s representation that a
    drug transaction was completed on May 3, 2017. Moreover, the government
    highlighted the trustworthiness of the confidential informant during closing
    arguments. The government noted that the informant had provided reliable
    information about Cruz-Ortiz on multiple occasions and that law enforcement
    officers were “able to confirm what they’re being told by their informant, based
    on the information he gives them.” The government also emphasized that the
    informant was providing information about Cruz-Ortiz, not Jones, and “[i]t’s
    not like the CI is trying to frame up Coy Jones.” Under these circumstances,
    an opportunity to challenge the informant’s motivations and credibility could
    have been helpful to the defense.
    7       Jones has not raised, and we do not address, whether the government had a
    separate obligation to disclose impeachment information to the defense under Brady v.
    Maryland, 
    373 U.S. 83
    (1963), and Giglio v. United States, 
    405 U.S. 150
    (1972).
    23
    Case: 18-50086       Document: 00515019836    Page: 24   Date Filed: 07/02/2019
    No. 18-50086
    Given our holding on Jones’s Confrontation Clause challenge, we expect
    the government to make different use of the confidential informant at any new
    trial. We thus remand to the district court to reconsider Jones’s motion for
    disclosure in connection with a new trial.
    V.
    Jones further argues that, without the confidential informant’s
    impermissible statements, there is not enough admissible evidence in the
    record to support his convictions. “In reviewing the sufficiency of the evidence,
    we view the evidence and the inferences drawn therefrom in the light most
    favorable to the verdict, and we determine whether a rational jury could have
    found the defendant guilty beyond a reasonable doubt.” United States v.
    Mitchell, 
    484 F.3d 762
    , 768 (5th Cir. 2007). The record reflects that the
    evidence was legally sufficient to support Jones’s convictions. The government
    offered   substantial     evidence   that    Cruz-Ortiz     was    involved     in
    methamphetamine distribution and that Jones had multiple meetings with
    Cruz-Ortiz that resembled drug purchases. This evidence—combined with
    Jones’s high-speed flight from the sheriff’s deputy, his false statements to
    police after his arrest, and the discovery of a pistol and nearly a kilogram of
    methamphetamine on the part of the road where Jones passed out of view—
    could lead a reasonable jury to find Jones guilty beyond a reasonable doubt of
    the offenses charged. Accordingly, we remand for a new trial rather than for
    entry of a judgment of acquittal. See 
    Jackson, 636 F.3d at 697
    –98.
    VI.
    Finally, Jones appeals the revocation of his supervised release. The
    district court found that Jones violated his supervised release because of his
    conviction in the jury trial. The court also found that this was a Grade A
    violation as a matter of law. The government argues that, even if we set aside
    Jones’s new conviction, the district court had enough information to justify
    24
    Case: 18-50086    Document: 00515019836     Page: 25   Date Filed: 07/02/2019
    No. 18-50086
    revoking Jones’s supervised release based on a preponderance of the evidence
    presented at trial. Although this may be true, the district court made no
    independent factual findings as to Jones’s underlying criminal conduct and did
    not provide any alternative grounds to justify revoking Jones’s supervised
    release. We therefore vacate and remand to the district court to reconsider
    whether to revoke Jones’s supervised release and, if so, what sentence to
    impose. See United States v. Jones, 
    484 F.3d 783
    , 793 (5th Cir. 2007).
    VII.
    The judgment of conviction is VACATED on all counts and this matter
    is REMANDED for further proceedings consistent with this opinion. The
    judgment of revocation is also VACATED and REMANDED.
    25
    

Document Info

Docket Number: 18-50086; Consolidated With Case 18-50088

Citation Numbers: 930 F.3d 366

Judges: Higginbotham, Smith, Higginson

Filed Date: 7/2/2019

Precedential Status: Precedential

Modified Date: 10/18/2024

Authorities (24)

United States v. Jackson , 636 F.3d 687 ( 2011 )

Taylor v. Cain , 545 F.3d 327 ( 2008 )

United States v. James Edward Evans , 950 F.2d 187 ( 1991 )

United States v. Herminio Hernandez , 750 F.2d 1256 ( 1985 )

Giglio v. United States , 92 S. Ct. 763 ( 1972 )

United States v. Dominguez Benitez , 124 S. Ct. 2333 ( 2004 )

United States v. Michael P. Vitale , 596 F.2d 688 ( 1979 )

United States v. Houston M. Wisenbaker, Jr. , 14 F.3d 1022 ( 1994 )

United States v. Harold James Taylor and Woodrow Hunter , 508 F.2d 761 ( 1975 )

United States v. Jimenez , 509 F.3d 682 ( 2007 )

United States v. Alvarado-Valdez , 521 F.3d 337 ( 2008 )

United States v. Jackson , 339 F.3d 349 ( 2003 )

Roviaro v. United States , 77 S. Ct. 623 ( 1957 )

Brady v. Maryland , 83 S. Ct. 1194 ( 1963 )

United States v. Keyon Lakeith Mitchell Duford Lee Mitchell , 484 F.3d 762 ( 2007 )

United States v. McCall , 553 F.3d 821 ( 2008 )

United States v. Jones , 484 F.3d 783 ( 2007 )

United States v. Ibarra , 493 F.3d 526 ( 2007 )

United States v. Orange Jell Beechum , 582 F.2d 898 ( 1978 )

Mitchell Lowery v. James Collins, Director Texas Department ... , 988 F.2d 1364 ( 1993 )

View All Authorities »