APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No. 1:09-CR-00224-CAB-1)
The opinion of the court was delivered by: Kelly, Circuit Judge.
Elisabeth A. Shumaker Clerk of Court United States Court of Appeals Tenth Circuit
Before TACHA, KELLY, and GORSUCH, Circuit Judges.
Defendant-Appellant Cynthia Yeley-Davis appeals from her conviction and sentence of life imprisonment for conspiracy to possess with intent to distribute, and to distribute, over 500 grams of a mixture or substance containing a detectable amount of methamphetamine. 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. On appeal, she argues that the trial court made several evidentiary errors and imposed an improper sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Ms. Yeley-Davis was charged on July 23, 2009 in an indictment which named Roman Cortez-Nieto and Adan Torres-Leos as co-conspirators. 1 R. 19. At trial, several witnesses testified about Ms. Yeley-Davis's involvement in the alleged conspiracy. Through the testimony of a state law enforcement agent ("agent"), the government introduced certified telephone toll records from Cellco Partnership dba Verizon Wireless ("Verizon") containing information about phone calls made and received by Ms. Yeley-Davis, Roman Cortez-Nieto, and Adan Torres-Leos ("Exhibit 5"). 3 R. 613-14. The government also introduced six charts created by the agent which summarized the data in the cell phone records. Id. at 619-22, 631-32, 635. The agent testified that he obtained the records from Verizon and explained how cell phone towers operate. In addition, the government introduced a notebook and pictures of a cell phone which contained evidence linking Ms. Yeley-Davis to the alleged conspiracy. Id. at 605-09, 611-13. Throughout the trial, the government used various photo arrays of the alleged co-conspirators to assist the jury in associating faces with names. Aplee Br. at 46.
A jury convicted Ms. Yeley-Davis on September 11, 2009. 2 R. 15-16. At sentencing, the government sought a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A) based on Ms. Yeley-Davis's two prior state felony drug convictions and the jury's conclusion that the conspiracy involved over 500 grams of methamphetamine. 3 R. 870, 882. The court sentenced her to life imprisonment, with ten years supervised release, and imposed a fine of $1,000 and a $100 special assessment. Id. at 904-06. Ms. Yeley-Davis timely appealed. 1 R. 266.
On appeal, Ms. Yeley-Davis argues that the district court erred in admitting Exhibit 5, thereby depriving her of her Sixth Amendment right to confrontation. She also argues that the court erred in imposing a life sentence because one of her previous convictions does not constitute a felony drug offense and because a life sentence here violates her Eighth Amendment rights. Finally, she argues that the admission of the notebook and the pictures of the cell phone, the agent's expert testimony about how cell phone towers operate, and the photo arrays amounts to cumulative error warranting reversal.
Ms. Yeley-Davis contends that the admission of Exhibit 5 denied her a right to confrontation under the Sixth Amendment. Aplt. Br. at 17-24. Exhibit 5 contains phone records of Ms. Yeley-Davis from August 15, 2008 to September 15, 2008, certified by the Verizon records custodian. 5 R.; see Fed. R. Evid. 902(11). The phone records provide information about each call made or received by Ms. Yeley-Davis's number, including the number making the call, the number receiving the call, and the date and duration of the call. 5 R. The certification-an affidavit submitted under Fed. R. Evid. 902(11) to authenticate the records-states that the record "[w]as made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; [w]as kept in the course of regularly conducted activity; and [w]as made by the regularly conducted activity as a regular practice." Id. In addition, Exhibit 5 contains the phone records of Roman Cortez-Nieto and Adan Torres-Leos from September 29, 2008 to October 24, 2008, also certified by the Verizon records custodian under Rule 902(11). Id. The agent testified that he obtained the phone records and affidavits directly from Verizon. 3 R. 614. The trial court admitted Exhibit 5 over Ms. Yeley-Davis's Confrontation Clause objection. Id. at 615. In addition, the agent testified that pursuant to the information found in the Exhibit 5, he created six charts ("Exhibits 5-A through 5-F") to summarize the phone calls between Ms. Yeley-Davis and various other alleged co-conspirators. The trial court admitted all six exhibits over Ms. Yeley-Davis's Confrontation Clause objections. Id. at 619, 622, 631, 635.
On appeal, Ms. Yeley-Davis argues that admitting the cell phone records and their authenticating documents violated her right to confrontation under the Sixth Amendment. She does not challenge the district court's admission of Exhibits 5-A through 5-F. "Although a district court's evidentiary rulings are reviewed for abuse of discretion, whether admission of . . . evidence violates the Confrontation Clause is reviewed de novo." United States v. Townley, 472 F.3d 1267, 1271 (10th Cir. 2007) (citation omitted).
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. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause "guarantees a defendant's right to confront those 'who bear testimony' against him." Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009) (quoting Crawford, 541 U.S. at 51). "Under Crawford, out-of-court testimonial statements may be admitted against a defendant only if either the declarant of those statements testifies at trial or the declarant is now unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant." United States v. Pablo, --- F.3d ----, 2010 WL 4609188 (10th Cir. Nov. 16, 2010) (citing Crawford, 541 U.S. at 54). Because we conclude that neither the cell phone records nor their authenticating documents were testimonial, no Confrontation Clause violation occurred.
As an initial matter, we hold-although Ms. Yeley-Davis does not appear to argue this on appeal-that the cell phone records in Exhibit 5 qualify as business records under Fed. R. Evid. 803(6).Fed. R. Evid. 803(6) provides an exception to the hearsay rule for records "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). To satisfy the business records exception, the proposed document must "(1) have been prepared in the normal course of business; (2) have been made at or near the time of the events recorded; (3) be based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) indicate the sources, methods and circumstances by which the record was made trustworthy." United States v. Ary, 518 F.3d 775, 786 (10th Cir. 2008) (citation omitted). "The proponent of the document must . . . lay thisfoundation for its admission." Id. (citing United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir.1999)).
The certification and affidavit signed by the Verizon records custodian establish that the phone records are business records. Even though the records are admissible under the business records exception to the hearsay rule, however, we must still determine whether the records are testimonial, and thus, subject to the Confrontation Clause. United States v. Pursley, 577 F.3d 1204, 1223 (10th Cir. 2009), cert. denied, --- U.S. ----, 130 S. Ct. 1098 (2010) ("[E]ven if a statement qualifies for an exception to the hearsay doctrine-based upon judicially fashioned reliability principles-the statement's admission may violate the ...