     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:
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                                     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.
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                                    No. 18-50086
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.
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                                 No. 18-50086
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
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                                 No. 18-50086
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
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                                 No. 18-50086
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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                                  No. 18-50086
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
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                                  No. 18-50086
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
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                                 No. 18-50086
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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                                       No. 18-50086
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.
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                                 No. 18-50086
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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                               No. 18-50086
     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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                                 No. 18-50086
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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                                No. 18-50086
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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                                  No. 18-50086
      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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                                       No. 18-50086
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.
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                                  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
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                                 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


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                                      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.
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                                   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).


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                                    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.
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                                  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
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                                    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).
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                                  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
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                                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.




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