Appeals from the United States District Court for the Western
District of Texas
HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE
sua sponte panel rehearing, we withdraw our prior opinion,
United States v. Jones, 924 F.3d 219 (5th Cir.
2019), and substitute the following:
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.
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. 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.
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. 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.
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
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.
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.
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.
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.
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.
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."
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.
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
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.
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.
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).
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.
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).
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.
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
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.
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
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.
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 ...