United States v. Jackson, 2010 U.S. App. LEXIS 23159

Jackson was convicted after a jury trial of conspiring to possess with intent to distribute more than five kilograms of cocaine.
He challenged admission of two notebooks from a coconspirator obtained during a proffer; coconspirator did not testify or authenticate the notebooks.
The notebooks purportedly identified Jackson and quantified cocaine transactions; Officer Hight interpreted them for the jury.
Government relied on the notebooks and related testimony to prove drug transactions; Valdez provided the notebooks during a proffer session.
The court held the notebooks were not properly authenticated; the admission violated the Confrontation Clause and was not harmless, vacating and remanding for new proceedings, while noting remaining evidence could sustain a conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the notebooks were properly authenticated as business records.	Jackson argues not authenticated; not kept in regular course by Valdez's cell.	Government contends the notebooks are non-testimonial business records.	Not properly authenticated; abuse of discretion to admit.
Whether the notebooks fall under the coconspirator hearsay exception.	Not properly authenticated as coconspirator statements.	Ledgers purport to be coconspirator statements made in course of conspiracy.	Not sufficiently authenticated to qualify as coconspirator statements.
Whether admission of the notebooks violated the Confrontation Clause.	Notes are testimonial and violation occurred; Valdez not cross-examined.	If proper business records, Confrontation Clause would be satisfied; or testimonial nature would be controlled.	Admission violated the Confrontation Clause.
Whether the error was harmless beyond a reasonable doubt.	Evidence independently supported conviction; ledgers were ancillary.	Ledgers were highly probative and closing argument relied on them.	Not harmless beyond a reasonable doubt.
Whether the remaining evidence suffices to sustain the conviction on remand.	Even without ledgers, other substantial evidence exists to prove conspiracy.	Conviction could stand with surviving evidence.	Remaining evidence is sufficient to support a conviction.

Crawford v. Washington, 541 U.S. 36 (Supreme Court 2004) (Confrontation Clause; testimonial nature requires cross-examination)
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (Supreme Court 2009) (business records do not automatically avoid confrontation; analysts' statements are testimonial)
Morgan, 505 F.3d 332 (5th Cir. 2007) (business records not automatically non-testimonial post-Crawford)
Gonzales, 436 F.3d 560 (5th Cir. 2006) (confrontation prohibits testimonial out-of-court statements unless unavailable with cross-examination)
Veytia-Bravo, 603 F.2d 1189 (5th Cir. 1979) (trustworthiness required for Rule 803(6) business records)
Arce, 997 F.2d 1123 (5th Cir. 1993) (upon authentication, handwriting similarity and context support reliability)
Jimenez Lopez, 873 F.2d 769 (5th Cir. 1989) (authentication standards for documents in evidence)
Yanez Sosa, 513 F.3d 194 (5th Cir. 2008) ( heightened scrutiny of evidentiary rulings in criminal cases)