Season’s greetings from the DU Criminal Law Review. This is the last blog submission of the year, but definitely not the least. This one comes to you from another capable staff editor, David Koelling. We will have more engaging blog posts next year. Happy holidays and thanks for visiting our blog!
United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011).
Cynthia Yeley-Davis was charged on July 23, 2009 with conspiracy to possess with intent to distribute and conspiracy to distribute over 500 grams of a mixture of a substance containing a detectable amount of methamphetamine. United States v. Yeley-Davis, 632 F.3d 673, 676 (10th Cir. 2011). The indictment also named Roman Cortez-Nieto and Adan Torres-Leos as co-conspirators. Id. at 676-77.
Throughout the testimony of a state law enforcement agent, the government introduced certified cell phone records, as well as charts summarizing the data, from Yeley-Davis, Cortez-Nieto, and Torres-Leon, which showed calls made and received between all three parties, referred to as Exhibit 5 in the trial. Id. at 677. The agent testified where he obtained the records and how cell phone towers operate. Id. The government also introduced a notebook and pictures of a cell phone screen that linked Yeley-Davis to the conspiracy and used various photo arrays of the alleged co-conspirators to assist the jury with associating faces with names. Id.
A jury convicted Yeley-Davis on September 11, 2009. The government sought a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A) based on Yeley-Davis’s two prior state felony drug convictions. Id. She was subsequently sentenced by the district court to life imprisonment release and incurred a $1,000 fine and a $100 special assessment.
On appeal, Yeley-Davis argued that the district court erred in admitting Exhibit 5, thereby depriving her of her Sixth Amendment right to confrontation. Id. She also argued that the court erred in imposing a life sentence because one of her previous convictions did not constitute a felony drug offense and because a life sentence violates her Eighth Amendment rights. Id. Finally, she argued that the admission of the notebook and pictures of the cell phone screen, the agent’s expert testimony of how cell phone towers operate, and the photo arrays amount to cumulative error warranting reversal. Id.
The first argument Yeley-Davis made was that the admission of Exhibit 5 denied her right to confrontation under the Sixth Amendment. Id.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. Amend. VI. The Supreme Court has held that the Confrontation Clause only “guarantees a defendant’s right to confront those ‘bear testimony’ against him.” Crawford v. Washington, 541 U.S. 36 (2004).
Under Federal Rule of Evidence 803(6), cell phone records qualify as an exception to the hearsay rule and are admissible as business records. They must be “kept in the course of regularly conducted business activity . . . if it was the regular practice of that business activity to make the . . . record.” Fed. R. Evid. 803(6).
The Supreme Court has held that a business record is testimonial if the record was created for the purpose of establishing or proving some fact at trial, but is not testimonial if it was created for the administration of an entity’s affairs. See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2531 (2009).
Similarly, the Supreme Court has held that “written certification . . . is nontestimonial [because it is] too far removed from the ‘principal evil at which the Confrontation Clause was directed’ to be considered testimonial.” Crawford, 541 U.S. at 50.
Yeley-Davis argued that the phone records and the authenticating documents were testimonial because they were prepared as exhibits for trial. Yeley-Davis at 679. The Court of Appeals for the Tenth Circuit found that the cell phone records and authenticating documents in Exhibit 5 were in fact created for the administration of the cell phone company’s affairs, not to establish or prove some fact at trial and were therefore not testimonial. Id. By extension, the records were admissible under the business records exception of the hearsay rule. Id. Therefore, the Court found Yeley-Davis’s constitutional right to confront testimony was not violated when the district court admitted the non-testimonial business records in Exhibit 5.
Second, Yeley-Davis argued that one of her prior convictions did not qualify as a prior felony drug offense, making her ineligible for a life sentence under 21 U.S.C. § 851.
The federal statute requires the government to show that the defendant was convicted of two or more felony drug offenses before the court can invoke a mandatory life sentence. 21 U.S.C. § 841(b)(1)(A). A “felony drug offense” is defined as “an offense that is punishable by imprisonment for more than one year under any law of . . . a State . . . that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44).
The record showed that Yeley-Davis was convicted of two Wyoming state drug-related felonies. Id. at 681. One conviction was for delivery of a controlled substance (Wyo. Stat. § 35-7-1031) and the other conviction was for taking or passing a controlled substance into a jail (Wyo. Stat. § 6-5-208). Id. Yeley-Davis conceded that the former conviction was a felony but contested the classification of the latter conviction as a felony, even though the district court classified both as felonies. Id.
The Court reaffirmed the classification of the second offense as a felony under 21 U.S.C. § 802(44) because the Wyoming statute she was charged with was punishable by more than one year imprisonment and it prohibited conduct related to drugs. Id. at 682. Yeley-Davis’s argument that the language of the statute applied to crimes other than drug offenses was not persuasive to the Court of Appeals. Id.
Similarly, Yeley-Davis argued that the imposition of a life sentence was a violation of the Eight Amendment’s prohibition against cruel and unusual punishment.
Prior precedent has held that “[t]he Eighth Amendment contains a narrow proportionality principle that applies to non-capital sentences.” United States v. Williams, 576 F.3d. 1149, 1165 (10th Cir. 2009) (citing United States v. Angelos, 433 F.3d. 738, 750 (10th Cir. 2006)). The Tenth Circuit added that “[u]nder that principle, the Eight Amendment forbids only extreme sentences that are grossly disproportionate to the crime.” Id. Previously, the Tenth Circuit found held that a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A) did not violate the Eighth Amendment. Yeley-Davis at 682 (citing Hamelin v. Michigan, 501 U.S. 957 (1991)).
Finally, Yeley-Davis argued that several harmless errors accumulated into one harmful error in the trial. Id. at 603. More specifically, she argued that the combination of allowing the introduction of a notebook and pictures of a cell phone to tie her to the conspiracy, allowing the agent to testify about how cell phone towers operate, and allowing the photo arrays into evidence should warrant a new trial.
The Court disagreed and noted that the jury was allowed to decide whether the evidence was properly seized from Yeley-Davis’s co-conspirators and whether the chain of custody was broken. It follows that the trial court did not abuse its discretion in admitting these exhibits and there was no error. Id.
Yeley-Davis also argued that the trial court erred in admitting the agent’s testimony about how cell phone towers operate, because the testimony was expert testimony under Federal Rule of Evidence 702 and that proper foundation had not been laid.
The Tenth Circuit has held that “[w]hen the subject matter of proffered testimony constitutes ‘scientific, technical, or other specialized knowledge,’ the witness must be qualified as an expert.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir. 2004) (citing Fed. R. Evid. 702). The court “must first determine whether an expert is qualified by knowledge, skill, experience, training, or education to render an opinion. Second, if the court determines that a witness is qualified, it must then determine whether her opinions are reliable.” Milne v. USA Cycling, Inc., 575 F.3d 1120, 1133 (10th Cir. 2009).
The court found that police are allowed to testify as experts in the area of drug trafficking. Yelley-Davis at 684. It further found that the district court failed to make findings on the record whether to admit the expert testimony of the agent. Id. However, the court refused to reverse the conviction on the finding of harmless error. Id. at 685. It held that the admittance of testimony about how cell phone towers work did not have a substantial impact on the outcome of the case. Id.
Yeley-Davis also argued that the admittance of the photo array of her fellow co-conspirators was hearsay and that the exhibits invaded the province of the jury.
In a prior case, the court held that an even more prejudicial photo array was harmless error because the trial judge gave a limiting instruction on the array and the array was only displayed a limited amount of time. United States v. Allen, 603 F.3d 1202, 1210 (10th Cir. 2010). In this case, the court held that the photo array used was even less prejudicial and it allowed the government to illustrate its theory of conspiracy. Yeley-Davis at 686. The district court also used a limiting instruction similar to Allen. Id.
The court ultimately agreed with only one of the errors Yeley-Davis brought on appeal, but that error did not support Yeley-Davis’ error argument. Id.
In conclusion, the Tenth Circuit affirmed the life sentence of Yeley-Davis for her violation of 21 U.S.C. § 841(b). Id. at 676. Yeley-Davis failed to show that her constitutional right to confrontation was violated. She also failed to show that one of her convictions was not a felony and that a life sentence under 21 U.S.C. § 841(b)(1)(A) was cruel and unusual punishment. Finally, Yeley-Davis failed to show that there was a culmination of harmless errors requiring the dismissal of her conviction.
It appears that the Tenth Circuit Court of Appeals construes the meaning of “testimony” in the Confrontation Clause and the Sixth Amendment in general literally. The court also appears to construe state drug statutes literally and will defer to the state’s determination of whether an offense constitutes a felony or not. The court also seems to take a narrow reading of the Eighth Amendment’s prohibition on cruel and unusual punishment, especially when it comes to non-capital punishments, as in this case. It also appears that the court is unlikely to find harmless error in the admittance of evidence unless the evidence offered is expert testimony. Even the admittance of expert testimony was found to be harmless when the district court failed to fulfill its gatekeeper duties.