Monday, May 06, 2013

Pharmacies' Pseudoephedrine Purchase Logs Are Business Records & Are Not Subject to the Confrontation Clause

United States v. Towns, No. 11-50948 (Apr. 30, 2013) (Jolly, Jones, Graves)

A divided panel held that the pseudoephedrine purchase logs from various retailers were business records under Federal Rule of Evidence 803(6) and not subject to the Confrontation Clause. These logs were the primary evidence against Towns to support his convictions for conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. The pharmacies kept the logs to comply with state regulations, did not use the logs for any other business purpose, and did not necessarily require the purchaser’s photo identification when making a log entry. The pharmacies provided affidavits that tracked the language of Rule 803(6), and the Government introduced the logs through a law enforcement officer who had no personal knowledge of the pharmacies’ record-keeping systems. Towns tried to exclude the logs through a motion in limine but, according to the majority, did not specifically object to authentication or foundation.

The majority reasoned that the logs were maintained during the ordinary course of business and therefore business records pursuant to Rule 803(6). It did not matter that the pharmacies did not actually rely upon or use the logs in any way and that the logs only served law enforcement purposes. The majority found that the custodian affidavits provided by the pharmacies were sufficient, and that the Confrontation Clause was inapplicable because the logs were not prepared solely with an eye toward trial but rather in order to comply with state regulatory measures.

The dissent, authored by Circuit Judge Graves, sharply disagreed. Judge Graves provided the factual background highlighting the lack of evidence—other than the logs—that linked Towns to the alleged conspiracies. Judge Graves concluded that the logs were not business records pursuant to Rule 803(6) and Fifth Circuit precedent because they lacked accuracy, reliability, and trustworthiness since the pharmacies did not rely on the logs for their own business matters. He also found that the officer witness was not a qualified witness to introduce the logs since he could not explain the pharmacies’ record-keeping systems, and that the pharmacies’ affidavits were insufficient for proper authentication. Judge Graves determined that the logs were testimonial and subject to the Confrontation Clause because they were created for law enforcement purposes, were used to establish or prove some fact at trial, and were not created to administer the pharmacies’ affairs.

The district court found that Towns did not qualify for safety valve because he continued to profess his innocence even after found guilty at trial. The majority affirms this finding, noting that a defendant does not have to profess guilt in order to qualify for safety valve, but that the district court determined that Towns was not completely truthful and, for this reason, denied safety valve. Judge Graves would reverse on this point as well, as he interprets the district court’s comments as erroneously reading into the safety valve provision a requirement to admit guilt.

In the end, the panel affirms Towns’ conviction and ten-year sentence almost entirely based on the evidence of pseudoephedrine purchases logged by clerks at Walgreens, Wal-Mart, Target, and CVS under Towns’ name without any corroboration such as photo identification verification and similar signatures. These logs and the testimony at trial never established that Towns was actually the person buying the pseudoephedrine on each of those occasions, just that his name was entered in the logs. While Towns admitted to purchasing some pseudoephedrine, he maintained through sentencing—much to his detriment—that he did not participate in the alleged conspiracies.

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