                       NOT RECOMMENDED FOR PUBLICATION

                                    File Name: 20a0107n.06

                                        Case No. 19-5556

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           Feb 18, 2020
 UNITED STATES OF AMERICA,                               )
                                                                       DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )      ON APPEAL FROM THE
 v.                                                      )      UNITED STATES DISTRICT
                                                         )      COURT FOR THE EASTERN
 CHRISTOPHER E. PARSONS,                                 )      DISTRICT OF KENTUCKY
                                                         )
        Defendant-Appellant.                             )      OPINION
                                                         )



       BEFORE: SUTTON, BUSH, and READLER, Circuit Judges.

       CHAD A. READLER, Circuit Judge. Christopher Parsons appeals his conviction and

sentence for possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C.

§ 924(c)(1)(A). With respect to his jury trial, Parsons argues that the government violated his

Sixth Amendment Confrontation Clause rights by playing a video at trial without producing for

cross examination the confidential informant featured in the video. And as to his sentence, Parsons

contends that the district court erred when it applied a two-level enhancement under U.S.S.G.

§ 3C1.1 on the basis of statements he made in recorded prison calls. Seeing no error in the

proceedings below, we AFFIRM.

                                      I. BACKGROUND

       During their investigation into Parsons’s suspected drug trafficking, officers utilized a

confidential informant to attempt a controlled buy from Parsons. The informant was outfitted with
No. 19-5556, United States v. Parsons


video and audio recording devices. In one video, Parsons discussed the sale of an “8-ball” of

methamphetamine as well as pills of oxycodone, stating as to the latter, “I have 30s. I got 30s” (a

slang term for 30 milligram tablets of oxycodone). During this exchange, Parsons can be seen on

video charging the slide of a distinctive handgun. The video also depicted a monitor connected to

a surveillance camera system that tracked Parsons’s front driveway.

       Following that investigation, Parsons was indicted for knowingly possessing, with intent

to distribute, methamphetamine, hydrocodone, oxycodone, and morphine in violation of 21 U.S.C.

§ 841(a)(1), and for knowingly possessing a firearm in furtherance of drug trafficking, in violation

of 18 U.S.C. § 924(c)(1)(A). Parsons pled guilty to drug trafficking but disputed the charge for

possessing a firearm in furtherance of his drug trafficking.

       At trial, the government sought to introduce the video into evidence. But it did not produce

the confidential informant at trial, instead assigning the task of testifying about the video to the

officer who oversaw the controlled buy. Parsons objected, claiming that the government’s failure

to produce the confidential informant would violate his Confrontation Clause rights. The district

court overruled Parsons’s objection.

       The government also introduced into evidence three guns, various drugs, and drug

paraphernalia, all of which were discovered during their investigation of Parsons. After halting

Parsons’s attempt to flee arrest, officers found in his flight path a handgun chambered with a live

high-velocity round. When Parsons was subdued, officers found a bag of crystal meth underneath

him and hydrocodone pills on his person. In a subsequent search of Parsons’s residence, officers

found, near ammunition and two small bags of crystal meth, an additional handgun that matched

the gun in the video. They also discovered a SKS rifle (near its ammunition) and the surveillance

system shown in the video on top of a gun safe. Officers likewise discovered digital weighing


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scales and small bags frequently used in drug sales. After taking in all of this evidence, the jury

convicted Parsons of possessing a firearm in furtherance of drug trafficking.

       At Parsons’s ensuing sentencing proceeding, the government sought an obstruction of

justice enhancement. By way of background, during trial, Parsons made several prison calls

which, Parsons was told, were recorded. In those calls, Parsons directed his wife and others to

continue selling drugs and firearms, and to threaten, physically harm, and even kill the two FBI

Task Force Officers involved in his investigation. Parsons also stated that if he were sentenced to

twenty years in prison, he would “kill that bitch [the confidential informant] when I get out.”

Ultimately, the district court applied a two-level enhancement under U.S.S.G. § 3C1.1 for

obstruction of justice, based upon Parson’s prison-call threats.

       Parsons timely appealed.

                                         II. ANALYSIS

       Confrontation Clause. Parsons argues that his confrontation rights were violated when the

district court allowed the government to play a video to the jury without making the confidential

informant shown in the video available for cross examination. We review de novo claims that the

admission of evidence violated the Confrontation Clause. United States v. McGee, 529 F.3d 691,

697 (6th Cir. 2008). Where a violation occurs, we will set aside the conviction unless the record

demonstrates beyond a reasonable doubt that the error was harmless. Id.

       1. A criminal defendant’s right to confront his accusers, while rooted in English common

law, was nonetheless not always honored by English authorities. Crawford v. Washington,

541 U.S. 36, 43 (2004). Mindful of infamous episodes of hearsay-based convictions (Sir Walter

Raleigh, for instance), and aware of the more immediate abuses of the British admiralty courts, the

Framers sought to ensure in our Constitution the basic procedural fairness of confrontation in


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No. 19-5556, United States v. Parsons


criminal prosecution. Id. at 44, 47–48. The Sixth Amendment’s Confrontation Clause thus

guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S.

Const. amend. VI. As the Supreme Court has interpreted that bedrock constitutional guarantee, a

criminal defendant’s confrontation right is violated when the government introduces a testimonial

out-of-court statement without making the declarant available for cross examination. Davis v.

Washington, 547 U.S. 813, 823–26 (2006).

       In view of this legal backdrop, we must first consider whether the statements in question

here are “testimonial.” The Supreme Court defined the archetypical testimonial statement as a

“solemn declaration or affirmation made for the purpose of establishing or proving some fact”

citing, as an example, a “formal statement to government officers” made by an “accuser.” Id. at

824 (quoting Crawford, 541 U.S. at 51). As another example, a statement made to the police with

the primary purpose of establishing past events potentially relevant to later criminal prosecution

was testimonial, while a statement made to police with the primary purpose of addressing an on-

going emergency was not. Davis, 547 U.S. at 822. We have sometimes deemed confidential

informant’s statements to be testimonial, on the view that an objectively reasonable confidential

informant would anticipate that her statements would be used by the police to investigate and

prosecute the accused. United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004) (“[S]tatements

of a confidential informant are testimonial.”); see also United States v. Doxey, 833 F.3d 692, 708

(6th Cir. 2016); United States v. Powers, 500 F.3d 500, 508 (6th Cir. 2007).

       2. Even when testimonial, however, an out-of-court statement implicates the Confrontation

Clause only if it is being offered to assert the truth of the matter stated. United States v. King, 865

F.3d 850 (6th Cir. 2017). Considering the many reasons a statement may be relevant to a particular

case, it can sometimes be difficult to discern whether the statement is being offered for its truth (as


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No. 19-5556, United States v. Parsons


opposed to another purpose). 6 Michael H. Graham, Handbook of Federal Evidence § 801:5 (8th

ed.) (2019) (“No aspect of the hearsay rule is as misunderstood as the second part of the definition

of hearsay—that the out of court statement is offered in evidence to prove the truth of the matter

asserted—which McCormick describes as a complicated and confusing condition.”) (internal

quotation marks omitted).

        That often hazy picture comes into focus here, however, by analogy to King. King, an

attorney, approached Marcus Terry, a man King assumed was a drug dealer, to offer his services

in helping Terry launder his alleged drug-deal money. King, 865 F.3d at 849. That assumption

proved to be wholly incorrect. For unbeknownst to King, Terry was a confidential informant for

the police. Id. And a good one at that, it turned out, as Terry recorded several conversations during

which King offered to help launder substantial amounts of drug money Terry claimed to possess.

Id. at 850. In prosecuting King, the government sought to introduce these recorded conversations

into evidence, without making Terry available for cross examination.              Rejecting King’s

Confrontation Clause challenge, we emphasized the fact that the statements were not introduced

“for the truth of the matter,” that is, to show that Terry possessed the money; indeed, he did not.

Rather, they were utilized to show that King believed Terry was looking for someone to launder

his money, safely avoiding any tension with King’s confrontation right. Id. at 851; see, e.g., Doxey,

833 F.3d at 708 (holding that a defendant’s Confrontation Clause rights are not violated when the

“CI [confidential informant] did not testify and none of the CI’s statements were offered for their

truth at trial”).

        Much the same is true here. Before trial, Parsons pled guilty to trafficking drugs. And the

recording of Parsons was used to show not that the informant wanted drugs, but, instead, that

Parsons believed she did and, in turn, that Parsons intended to meet that demand while possessing


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No. 19-5556, United States v. Parsons


a firearm. That the informant’s statements thus were not introduced for the truth of the matter

dooms Parsons’s Confrontation Clause challenge—and, by implication, his hearsay objection as

well. See Fed. R. Evid. 801(c)(2) (defining hearsay as a statement that is “offer[ed] in evidence to

prove the truth of the matter asserted in the statement”).

       It makes no difference that the recording helps establish the truth of the matter that Parsons

committed an act that was an element of a criminal offense. We answer Parsons today the way we

bluntly responded to that same argument in King: “That’s not how it works.” 865 F.3d at 851.

King also argued that the recordings at issue there were “offered for the truth of the matter asserted,

because they went directly to establishing an element of the offense.” Id. at 851 (internal quotation

and citation omitted). Most evidence, of course, will help prove (or disprove) one element or

another. Why else introduce it, after all? But as an evidentiary matter, a statement can both help

prove an element of an offense and, as here, not be asserted for the truth of the statement’s content.

Id.

       3. Even if Parsons’s Confrontation Clause rights were violated, the violation amounted to,

at most, harmless error. Setting aside the evidence admitted in purported violation of Parsons’s

confrontation right, the record still reveals “substantial evidence” establishing Parsons’s guilt,

meaning there is “no reasonable probability” that the constitutional violation made a difference to

the jury’s verdict. United States v. Henderson, 626 F.3d 326, 334 (6th Cir. 2010) (citations

omitted).

       From Parsons’s residence, officers seized three guns, digital weighing scales, and small

bags typically used in drug sales. Two of the guns were handguns. One, which matched the gun

Parsons was handling in the video, was found in Parsons’s bedroom lying near “high-velocity

rounds” typically used to pierce body armor, a few feet away from two small bags of crystal meth.


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No. 19-5556, United States v. Parsons


A second handgun was found with a live high-velocity round in the chamber. And a third gun, a

SKS rifle, was found in Parsons’s bedroom, with ammunition two feet away. In addition, officers

discovered in the same bedroom, on top of a gun safe, a surveillance system that fed into a monitor

(both of which were also present in the video). And when Parsons attempted to flee, officers found

the handgun chambered with a live round in Parsons’s flight path, crystal meth on the ground

where he was apprehended, and hydrocodone on his person.

       As to the video, even with the confidential informant’s statements edited out from the

recording, Parsons’s own words evinced an intent to sell the drugs to the confidential informant

while, the video depicted, Parsons was handling a gun similar to the handgun seized later. So even

assuming a Confrontation Clause violation from the admission of the confidential informant’s

statements, any error was harmless, in view of the remaining evidence of Parsons’s guilt. See

United States v. Powers, 500 F.3d 500, 510 (6th Cir. 2007) (holding a Confrontation Clause

violation in admitting an informant’s statements to be harmless error because the defendant’s own

words in the recording “evinced his intent to sell the drugs” to the informant).

   Sentencing Enhancement. Moving on to his sentence, Parsons argues that the district court

erred in applying a two-level enhancement under U.S.S.G. § 3C1.1 for obstructing justice. We

review de novo the district court’s legal interpretations of the Sentencing Guidelines, and we

review the district court’s factual conclusions for clear error. United States v. Thomas, 933 F.3d

605, 608 (6th Cir. 2019). But as the government notes and Thomas describes extensively, our

cases, it is fair to say, leave room for debate over the standard we apply when reviewing the district

court’s application of the Sentencing Guidelines to the facts. Id. at 608–610. Sometimes we have

said clear error applies, other times de novo. Compare United States v. Jackson-Randolph, 282

F.3d 369, 390 (6th Cir. 2002) (applying clear error review to a district court’s application of the


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No. 19-5556, United States v. Parsons


Guidelines), with United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018) (applying de novo

review instead). Perhaps the answer depends upon the Guidelines provision in question. See

Burford v. United States, 532 U.S. 59, 64–66 (2001) (determining the standard of review for a

Guideline based on logic specific to that Guideline). For today’s purposes, it is enough to note

Thomas’s wisdom to leave the issue for another day. Id. at 610. As, like there, even under de novo

review, the sentencing challenge here fails. That is, Parsons has not shown that the district court

erred in applying the two-level obstruction of justice enhancement to his sentence.

       Section 3C1.1 applies when the defendant “willfully obstructed or impeded, or attempted

to obstruct or impede, the administration of justice with respect to the investigation, prosecution,

or sentencing” of the defendant. U.S.S.G. § 3C1.1. At issue are Parsons’s instructions to his wife

and friends to threaten two FBI Task Force Officers involved in his prosecution, his direct threat

to kill the confidential informant, and his expressed desire to either kill the officers involved, or

his direction to others to do so. Threats alone are enough to justify the enhancement. United States

v. Brown, 237 F.3d 625, 627–28 (6th Cir. 2001) (upholding a district court’s application of

obstruction of justice enhancement when a defendant who suspected he was under investigation

threatened a potential witness); see also United States v. Kamper, 748 F.3d 728, 744–45 (6th Cir.

2014) (upholding a district court’s imposition of an obstruction of justice enhancement when a

defendant spread rumors in a jail that a witness was a “snitch” knowing how the inmates would

react to snitches in jail). Indeed, the very first example in the Guideline Application Notes

discussion of situations where the enhancement applies is instances of “threatening, intimidating,

or otherwise unlawfully influencing a . . . witness . . . directly or indirectly, or attempting to do

so.” U.S.S.G. § 3C1.1 cmt. n.4; see also United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019)




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No. 19-5556, United States v. Parsons


(en banc) (per curiam) (holding that the Sentencing Guidelines commentary is authoritative unless

it is plainly erroneous or inconsistent with a Guideline).

       Parsons offers no compelling response. He characterizes his statements as nothing more

than harmless bluster. Perhaps sophomoric taunts would not rise to the level of obstruction of

justice. See United States v. Archer, 671 F.3d 149, 166–68 (2d Cir. 2011) (reversing the

application of an obstruction of justice enhancement when the defendant, via text, accused a friend

who might testify against him of being a “pussy”). But that is worlds apart from what Parsons did

here—attempting to induce others into threatening or even killing law enforcement officials

involved in his prosecution and making explicit threats about killing a government informant.

       He likewise describes his statements as having no intended consequences. But it is difficult

to read them that way when, in the very same conversation, Parsons also directed his audience to

continue to engage in more routine criminal acts like selling drugs and firearms. Just as with that

nefarious activity, it is fair to assume that Parsons had some expectation that his instructions to

threaten or even kill witnesses and officers would also come to pass. And it may be more than an

unhappy coincidence that, just months after Parsons’s arrest, his acquaintance, John Hall,

murdered one of the officers who investigated Parsons. While no one has alleged that Parsons is

directly to blame, that tragic eventuality confirms why Parson’s threats cannot be swept aside as

merely a man “running his mouth.”

       It makes no difference, it bears adding, whether Parsons’s statements had any “actual

effect” on federal law enforcement efforts. By its plain terms, § 3C1.1 applies to “attempted”

obstruction as well as successful obstruction. To be sure, as Parsons notes, the Seventh Circuit

held in United States v. Griffin that a defendant’s misstatement to law enforcement qualifies for

the § 3C1.1 enhancement only if the statements “actually obstruct or impede” law enforcement


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No. 19-5556, United States v. Parsons


efforts. 310 F.3d 1017, 1023 (7th Cir. 2002) (quoting U.S.S.G. § 3C1.1 cmt. n. 4(g)). That

conclusion is clear from Application Note 4(G), which explicitly requires such misleading

statements to have “significantly obstructed or impeded” law enforcement efforts. U.S.S.G.

§ 3C1.1 cmt. n. 4(g). But the same is not true for threats. Application Note 4(A) makes plain that,

as to a threat to a witness, the enhancement applies regardless whether the defendant is actually

“threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror,

directly or indirectly, or attempting to do so” (emphasis added). U.S.S.G. § 3C1.1 cmt. n. 4(a).

See also United States v. Robinson, 813 F.3d 251, 263 (6th Cir. 2016) (upholding a district court’s

imposition of a two-level obstruction enhancement for a defendant’s attempt to threaten

government witnesses).

       Equally unavailing is Parsons’s assertion that, for § 3C1.1 to apply, there must be some

likelihood of the witnesses learning of the threat. “[T]he plain language of Application Note 4(A)

to U.S.S.G. § 3C1.1 [] provides for an enhancement when defendants attempt to indirectly threaten

a witness” through a third party, even where the witness may never learn of the threat. United

States v. Talley, 443 F. App’x 968, 972–73 (6th Cir. 2011). We have thus upheld the imposition

of an enhancement for witness threatening where the defendant induced another to harass a

witness. Id. at 972; Kamper, 748 F.3d at 744. That is exactly what Parsons was attempting to do.

       As a final point, Parsons argues that since the subjects of his threats would not learn of

them, the obstruction of justice enhancement necessarily cannot apply. As support, he cites the

Fourth Circuit’s holding in United States v. Brooks, 957 F.2d 1138, 1149–50 (4th Cir. 1992). But

we previously have read Brooks as merely distinguishing between a “frustrated outburst[]” and an

intended threat, as in Brooks the defendant’s statements were serendipitously overheard by a law

enforcement official who reported them. United States v. Galloway, 57 F.3d 1071, 1995 WL


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No. 19-5556, United States v. Parsons


329242, at *4 (6th Cir. May 31, 1995) (unpublished table decision). It was, therefore, unclear that

the defendant intended the statements to be received by anyone. Id. Here, on the other hand,

Parsons was speaking directly to his intended audience.

                                      III. CONCLUSION

       For these reasons, we AFFIRM the judgment of the district court.




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