Argued and Submitted, San Francisco, California:
September 8, 2014.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Arizona. D.C. No. 2:11-cr-02265-JAT-3. James A. Teilborg, Senior District Judge, Presiding.
The panel affirmed the defendant's convictions for possession with intent to distribute marijuana on November 17, 2011, and conspiracy to possess marijuana with intent to distribute; reversed his conviction for possession with intent to distribute marijuana on November 9, 2011; and remanded to the district court to determine whether resentencing is appropriate.
The panel held that admission of photographs of a parcel seized at the post office did not violate the Confrontation Clause because the photographs were not " witnesses" against the defendant.
The panel held that admission of statements by a postal supervisor, who did not testify, violated the Confrontation Clause because the statements were testimonial and offered for their truth, and there is no contention of unavailability or that the defendant had a prior opportunity to cross-examine the supervisor. The panel exercised its discretion to overlook the government's waiver as to harmlessness, and held that the error was harmless as to the November 17 possession-with-intent-to-distribute conviction and the conspiracy conviction. The panel declined to find the error harmless as to the November 9 count.
The panel rejected as foreclosed the defendant's contention that the district court erred by denying his motion to suppress evidence obtained by warrantless GPS monitoring, and concluded that the district court did not abuse its discretion by denying the defendant a minor participant adjustment at sentencing.
The panel left it for the district court to determine on remand whether the defendant's sentence for the remaining convictions should be adjusted, and dismissed as moot the defendant's motion to remand based on changes to the Sentencing Guidelines.
D. Stephen Wallin (argued), The Wallin Law Firm, Phoenix, Arizona, 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, Arizona, for Plaintiff-Appellee.
Before: Mary M. Schroeder, John B. Owens, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Friedland.
FRIEDLAND, Circuit Judge:
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, ...