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United States v. Jones

United States Court of Appeals, Fifth Circuit

July 2, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
COY JONES, Defendant-Appellant 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:

         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 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 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 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 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 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 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 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 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 district court did not abuse its ...


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