                                                   NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 08-2504
                     _____________

            UNITED STATES OF AMERICA

                            v.

                   CHESNEY JONES,

                                       Appellant

                       __________

      On Appeal from the United States District Court
           for the Middle District of Pennsylvania
             (D.C. Criminal No.) 07-cr–0208-1
      District Judge: Honorable William W. Caldwell
                        __________

        Submitted Under Third Circuit LAR 34.1(a)
                   on March 23, 2010

Before: RENDELL, FUENTES, and JORDAN, Circuit Judges.

                  (Filed March 30, 2010)

                       __________

               OPINION OF THE COURT
                     __________
RENDELL, Circuit Judge.

       Chesney Jones appeals from a jury verdict finding her guilty of: unlawful

possession and distribution of at least 50 grams of crack cocaine, and at least 5 kilograms

of cocaine hydrochloride; interstate travel in aid of racketeering; making false statements;

and conspiracy to distribute drugs. Jones was sentenced to a total of 25 years’

imprisonment. Jones contends that the District Court erred by admitting into evidence

recordings of conversations in violation of the Confrontation Clause, admitting text

messages into evidence without allowing Jones to examine the phone on which these

messages were stored, and giving an improper jury instruction regarding Jones’

testimony. We write only for the parties and assume their familiarity with the factual and

procedural history of this case. We will affirm.

       After her arrest for a parole violation, Jones asked to speak to Drug Enforcement

Agents and admitted that she was a drug “runner” and had supplied multiple shipments of

cocaine hydrochloride to a buyer, Lance Harper, for approximately one year. Jones

agreed to cooperate with law enforcement and made recorded phone calls to Harper and

other individuals involved in drug trafficking. During one recorded meeting with Harper,

Jones attempted to tip him off that she was cooperating with law enforcement. Jones

testified at her trial, retracted everything she had told agents, and denied being involved

with drug trafficking.




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I. Recordings

       Jones contends that consensually recorded conversations between herself and her

alleged co-conspirators should not have been admitted into evidence because they are

testimonial and therefore violate the Confrontation Clause, according to Crawford v.

Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court held that out-of-court

statements that are testimonial are barred by the Confrontation Clause unless the witness

is unavailable and the defendant had a previous opportunity to cross-examine the witness.

541 U.S. at 68. However, we have held that “‘party admissions and co-conspirator

portions’ of disputed tape recordings are ‘nontestimonial.’” United States v. Bobb, 471

F.3d 491, 499 (3d Cir. 2006) (quoting United States v. Hendricks, 395 F.3d 173, 183-84

(3d Cir. 2005)). The Confrontation Clause does not bar the admission of nontestimonial

statements if they are “subject to a firmly rooted hearsay exception.” Albrecht v. Horn,

485 F.3d 103, 134 (3d Cir. 2007). Therefore, admitting the recorded conversations of

Jones and her co-conspirators into evidence did not violate the Confrontation Clause.

       Jones next argues that the conversations were hearsay and the District Court erred

in admitting the conversations under Federal Rule of Evidence 801(d)(2)(E). Under Rule

801(d)(2)(E), out of court statements by a co-conspirator are admissible if the

preponderance of the evidence shows that (1) a conspiracy existed; (2) that the defendant

and the declarant were members of the conspiracy; and (3) the statement was made in

furtherance of and in the course of the conspiracy. Bobb, 471 F.3d at 498. Jones urges



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that because the recordings were made after she was arrested and while she was

cooperating with law enforcement, they cannot be in furtherance of or during the course

of a conspiracy because the conspiracy had ended. However, the government provided

evidence that during Jones’ conversations with Harper she attempted to warn him that

they were being recorded - therefore, the conspiracy had not ended and the statements

were made in furtherance of the conspiracy. The District Court did not abuse its

discretion in allowing the recorded statements to be admitted into evidence.




II. Text Messages

       Jones next contends that the District Court erred by admitting text messages found

on her cell phone but not allowing Jones to personally examine the phone during trial.

While the government was presenting its case at trial, Jones asked if she could examine

her cell phone to attempt to prove that text messages to Harper were created after she was

in custody and therefore must have been planted by government agents. Jones’ counsel

had previously been given access to the phone and had seen the text messages at issue.

A. 225-29. The government objected to Jones handling the phone because of “grave

concerns about placing a valuable piece of evidence into the hands of the defendant to

personally manipulate this.” Id. Instead, the government offered to send the phone to a

laboratory where an expert could examine it to determine when the text messages were

written. Id.



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       On appeal, Jones urges that the government’s refusal to allow her to personally

examine the phone during the trial is a Brady violation. Brady v. Maryland, 373 U.S. 83

(1963), requires that prosecutors disclose potentially exculpatory evidence to the defense.

Here, where prosecutors allowed Jones’ counsel to access the phone and view the text

messages, and, when Jones asked to handle the phone during the trial, offered to have the

phone examined by an expert, there was no Brady violation.

III. Jury Instruction

       Lastly, Jones claims that the District Court erred in giving a jury instruction that

unfairly singled out Jones’ testimony as potentially biased. The District Court instructed

the jury that:

                 the defendant, Chesney Jones, has taken the witness stand.
                 You should examine and evaluate her testimony just as you
                 would the testimony of any witness. It is for you to decide to
                 what extent, if at all, Ms. Jones’s interest in the result of her
                 prosecution may have affected or colored her testimony.

A. 353.

       In the District Court’s general charge regarding witness credibility, it said “[t]he

parties themselves, that is the government and the defendant, have an obvious interest [in

the outcome of the case].” A. 352. Therefore, it was unnecessary for the Court to

reiterate that Jones’ had a personal interest in the outcome of case in a separate

instruction. While such an instruction that singles out the defendant’s interest in the case

is not advisable, we find that here it did not constitute reversible error.



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       In Reagan v. United States,157 U.S. 301, 304-05 (1895), the Supreme Court approved

the following instruction:

              You should especially look to the interest which the respective
              witnesses have in the suit, or in its result. Where the witness has
              a direct personal interest in the result of the suit, the temptation
              is strong to color, pervert, or withhold the facts. The law permits
              the defendant, at his own request, to testify in his own behalf.
              The defendant here has availed himself of this privilege. His
              testimony is before you, and you must determine how far it is
              credible. The deep personal interest which he may have in the
              result of the suit should be considered by the jury in weighing
              his evidence, and in determining how far, or to what extent, if at
              all, it is worthy of credit.

       In Reagan, the Court held that a trial court may instruct the jury that they may

consider the defendant’s “deep personal interest” in the outcome of the case, but cannot

declare or imply that the defendant has testified falsely. 157 U.S. at 311. The instruction

here did not imply that Jones had testified falsely and therefore is not reversible error

under Reagan.1

              For the foregoing reasons we will AFFIRM Jones’ convictions and

sentence.




  1
     We note that several courts of appeals have expressed concern as to the use of
instructions that single out the defendant’s interest in the case even though they don’t
constitute reversible error. See United States v. Gaines, 457 F.3d 238, 245 (2d Cir. 2006);
United States v. Bear Killer, 534 F.2d 1253, 1259-60 (8th Cir. 1976);United States v.
Saletko, 452 F.2d 193, 198-99 (7th Cir. 1971).

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