division this was a methamphetamine manufacturing conspiracy case she appeals from the judgment of the district court where she received a minimum mandatory sentence of one hundred twenty months this case is the same sad refrain that i know that the panelists heard in many prior cases this hillis was indicted in a multi defendant methamphetamine conspiracy case she was probably the least involved of all the the defendants that were indicted even under the government's theory her decision to go to trial gave the co defendants an opportunity to testify and get significant reductions in their sentences the co defendants as you can see from the record all have multiple prior methamphetamine federal methamphetamine trafficking convictions and basically received significant reductions as a result of their testimony the government's theory of this case as regard to miss hillis was that she was characterized as a smurf and i know that the members of the panel familiar with that term it was the government's theory that she would canvass pharmacies in generally in southeast tennessee and purchase pseud e and was purchasing the sudafed and allegedly for an old abusive boyfriend by the name of jeremy riggs who testified and received a five k substantial assistance the government's theory was that  ss hillis would purchase sudafed run at these pharmacies in southeast tennessee turned the pills over to her boyfriend jeremy rigsby who then would cook those pills into finish methamphetamine product and of course sudafed was the precursor that was the essential ingredient in that she was motivated to do that in exchange for methamphetamine as you can see from the issues i raise in my brief the cornerstone of the government's case more these challenge pseudoephedrine purchase records i think it's significant that the timing of this these records that were gathered from several pharmacies in southeast tennessee were what i characterize as old records in the sense that they were from the years two thousand and eight to two thousand and ten the testimony of the two individuals that were advanced by the government in an effort to explain why the records were kept and how the records were care indicated that these were old manually maintained records in the sense that when the the customer appears at the point of purchase they would sign up on a piece of paper and there was no electronic scanning they did not have the ability between two thousand and eight and two thousand and ten to swipe or scan electronically the driver's license recognizing the confrontation problems with this i filed pretrial in motion and women e that we heard before the trial the focus of my argument was under eight zero three six see the fact that the source of the information in my view indicated  profound lack of trustworthiness i argued a judge matteis the district judge that there was the potential of fraud other individuals perhaps using miss hillis as a driver's license at the point of sale to purchase the sudafed and i also relied on the confrontation clause so this case comes to the court in a different posture than the collins case which the government sent a copy of rule twenty eight j this week the argument that i made a judgment tice's that the business record exception should not be so broad as to permit introduction of these records that might not have even been admissible if they would have put a warm body in the witness stand at the trial they were basically able to keep a true custodian of the records off the witness stand and therefore i had no opportunity to  me that there are various levels of hearsay if you look at the business records portion of it you at least have records that are kept in the ordinary course of pharmacy business  i think that would be the government's argument your honor i know that they're they're kept in the ordinary course of business in the sense of the state of tennessee requires pharmacies to maintain those records for really law enforcement purposes so police officers can check and see who's buying the precursor sudafed in a in a certain area collins dealt with that much i think it did but i think collins's is really distinguishable from the problem that you have is that yeah maybe they're keeping the records in a way that we can trust but we have no idea who came in and bought it that's correct ok so there i think you have to  at least the government has to rely on on the evidence that it's not the the records themselves don't necessarily have presumptive validity in and up themselves of that first level bit you need somebody to testify what is the habit in preparation and they have bit is that you get the idea you look at the person they have to match and then you record it and so that evidence is for whatever the jury wants to give it i mean is it you know it's not that they necessarily have to believe that person who made the declaration that i'm betsy hollis but that somebody came in and presented a license it was the normal practice to match the face to the license and that license whether it was hers or not was recorded and then it's up to the jury to decide when they believe it or when you have an issue of confrontation and i think that that justice  a with all due respect would really bristle at an analysis where you don't have the ability to confront your accuser in any way and it's particularly untrustworthy in the sense that before two thousand and eleven and individual came in and the the class of employees that were supposed to be checking these driver's license licenses was pretty wide open the woman that testified from wal mart basically said that a cashier could do it and was only after the legislature in tennessee tightened up the statute in eleven and limited that class of employees at the pharmacy to pharmacists pharmacist tax and pharmacist in terms that you i think had a more reliable class of individuals that would actually go through the steps of looking at the identification and making sure that it was was in order the i think you had a couple of problems and eleven you have really an unknown class of employees somebody with all the way down to a cashier or somebody else basically anybody in the store that they could put over there to deal with the customer and you also have this allegation that other individuals were using this hill ases driver's license the analysis that that i see in some of the cases really seems inconsistent with the comments to rule eight zero three six b when you take a look at the comments it talks about the supplier of the information does not act in the regular course of business an essential link is broken the assurance of accuracy does not extend to the information itself and the fact that the information could be recorded properly doesn't mean that the reporter of that information was honest or accurate in any way this is a case where the government had an opportunity to corroborate make some effort to corroborate these records this is the handwriting they could have done some handwriting analysis to see if it was in fact that c hyllus who signed off on these the sudafed and pills there was the availability of video surveillance in the pharmacies they made no effort to really go to the pharmacies themselves and say have you ever seen this woman who was lot of this the pins on who has the burden of if these are to be characterized as business records even though you found fault with the record keeping aspect of the protocol what did you do task respectfully that's the government's burden here are to to prove the guilt of betsy hill is beyond a reasonable doubt ms hill is has no burden to prove anything just a court notice of the jury well obviously it's a business records they're presumed to be accurate so then if you're claiming they're not accurate you need to show us how why they are not accurate i think in my cross examination of the witnesses they advanced i did show why they were not accurate and but what did you do well how did you show that they were not accurate i think i showed that they were not accurate because you have an unreliable reporter there is the issue of whether other people were others i advanced a witness that was discovered after a trial at sentencing a woman by the name of jessica stern who was incarcerated with one of the cooperating women one of the key witnesses in the case lori co who admitted to lodged at the same place that miss cope had been lodged at and in the course of being at that jail she met women in the same pod that were incarcerated with miss miss cope and that's how we learned that information and i brought it to the district court attention i thought it might have some relevance on it least on drug quantity for sentencing so that information came to your attention afterward yes but the information about your client claiming that the driver's license w good morning good morning and may please the court my name is anne rice of otto and i represent the united states for the eastern district of tennessee this case involves a five hundred grand methamphetamine manufacturing conspiracy involving over fifteen hundred grams of precursor pseudoephedrine and ten coconspirators the defendant asked this court to substitute her own rejected theory of the case with that of the jury's verdict the district court rejected the defendant's theory the jury rejected it and so should this court this court should reject the defense theory because the pharmacy records medical records banking records law enforcement testimony i witness testimony and other evidence presented in the case all prove beyond reasonable doubt that betsy hyllus was involved in a conspiracy involving multiple defendants the defendant testified at trial that she suffered from a severe allergies and deviate septum at trial medical records were inches introduced that were not disputed that show that in fact the defendant had a zero allergies and in fact had a subscription for excuse me a prescription for a medicine that did not contain in prison for this long period of time apparently all the other the people that are making this stuff and selling it are well many of the co defendants receive very harsh sentences including gabriel womack john gabriel womack testified at trial the fact of the matter is the defendant is not contesting her sentence here today and her sentence was within the guidelines range there wasn't a lot of room well in fact the defendants in addition to receiving consideration under rule five k in rule thirty five for their cooperation the defendants also including miss hillis benefited from the change in the guideline range which reduced the a pplicable guideline range for this type of case but what's more relevant for the issues before the court today are that the issues of the defendants and co defendants who testified who received benefit for their cooperation that was all play squarely for the jury the jury had before it all of the information regarding the co defendants credibility and they made that credibility terminations and it's the jury it's within the province of the jury for  credibility determinations and they rejected the defendant's testimony that her driver's license was stolen and credited the co defendants testimony and the co defendants testimony was substantiated by the pharmaceutical records in this case and also by the banking records the banking records were introduced without objection and art were found to be business records at the bank showed really very few purchases the banking records show a number purchases at least five purchases in which the pattern of purchase corroborated codefendant testimony and also showed that she purchased pseudoephedrine from multiple locations which was in line with law enforcement testimony that that in exchange for methamphetamine the co defendants who are credited by the jury also testified that miss hillis stripped matches in order to gain the phosphorus that was used to make methamphetamine and also assisted by microwaving ingredients that were used to cook the methamphetamine in addition to purchasing sirrah and pharmacy records in this case fit squarely within the eight zero three six you're say exception pharmacy records at issue in this case are inherently trustworthy they were made in the regular course of the pharmacies business and selling pseudoephedrine and were therefore admissible the district court found that the the pharmacy records were admissible because the pharmacy employees who made those records were doing it within the regular course of the business just as the pharmacy employees and collins were engaged in the regular course of business and the pharmacy records in collins are slightly different here in collins this court analyzed meths check records which is actually compiled by a public safety technology company in a database held by them but what the court looked at that's relevant here is that the pharmacy employees who were engaged in those transactions were making those transaction in time close to the time of the point of purchase and that those transaction record of those transactions were here at reliable what's more of the pseud transaction records here do not violate the confrontation clause but the confrontation clause is not implicated because of the nature of these types of records the confrontation clause would bar any testimonial records from being introduced into evidence even business records that may be admissible under hearsay exception could still be barred by the confrontation clause but here the confrontation clause is not implicated because the statements that were admitted the transaction records at issue here were not admitted and were not created for testimonial purposes and so they are not in violative of the confrontation clause of the united states put forth a foundation for those records calling upon a pharmacy employees who explained the training requirements and the legal requirements for keeping track of pseudoephedrine purchases and explained what consequences employees and their pharmacy would face if they failed to abide by the pharmaceutical or sued me by the regulations dictating the purchase of pseudoephedrine whether at ms phyllis was indeed the person who submitted that id and sign for that pseudoephedrine was up to the government to prove and we submit that we did prove that first miss helis claimed that her driver's license had been revoked or excuse me had been stolen she put that issue squarely before the jury and it was soundly rejected the jury had before it information to disbelieve miss hillis they chose to disbelieve her because the evidence was overwhelmingly in favor of the fact that the defendant herself purchased the pseudoephedrine records the jury had before it the very records in which she signed for the pseudoephedrine purchases and in which your driver's license under multiple different addresses was used  so the defendant's claims were refuted by the un contradicted testimony the testimony of the banking records in which she said she did not deny making any of the significant purchases that were attached to her banking records well some of her banking records also something law enforcement uses to look at whether or not that pseudoephedrine is being used to manufacture methamphetamine and because of that the jury rejected the defendant's argument and the district court properly admitted those records because they were not politicians confrontation clause to the extent the defendant seeks to have the opportunity to place that defense squarely before the jury  did and the jury had before it the ability to weigh that evidence so whether it is admissible is is whether or not the record was made in regular course of business and whether it is inherently trustworthy whether it's enough to prove the defendant's guilt that goes to the weight of the evidence whether it is in fact or the record doesn't show that is was in fact that's e list but that goes to the weight of the record and not to its admissibility and not only were the pharmacy records an important part of the case against the defendant the record demonstrates that there was ample proof to support the jury's verdict for coconspirators testified about helices involvement including that she provided pseudoephedrine to manufacture methamphetamine she stripped matches for the phosphorus to cook methamphetamine and she provided a location for the cooks to manufacture methamphetamine the witnesses were all cross examined vigorously by the defendant the pseudoephedrine records were supported by the defendant and banking records and the department of safety records regarding her claim that the wreck that her driver's license had been stolen those safety records also refuted the defendant's testimony law enforcement officers testified as to the pattern of purchasing pseudoephedrine what that  co defendants refuted her testimony and because of that the verdict of the jury should stand and the judgment should be affirmed i would like to speak to the issue jessica s and so the credibility determination was made for judgment tice and he determined after listening to her that mr cheese testimony was not believable and likewise any issue with  and because of all of the proof in this case the overwhelming evidence against the defendant and the corroborated testimony that was provided at the united states asked at the judgment at the district court and the jury be found thank situation there was no contemporaneous confrontation clause made in the collins case the lawyers intolerance focused on the what they perceived to be deficiencies in the qualifications of the witnesses so the confrontation issue came to this court under a plain error analysis and when you read the opinion for some reason for of the requirements of the business records exception are discussed in the body of the columns opinion for some reason three six he makes is not mentioned at all and that was the thrust of my motion and lemony and the thrust of my confrontation was the clause challenge and that was that there was no trustworthiness on either side of the transaction we don't know the the competency of the person that was receiving the information and recording it manually and we certainly don't know who the reporter of the information was in the col case although it may be records that were during the same relevant time period is miss hillis they had a fully automated fully electronic meth check system where the i d had to be scanned and had to be swiped and judge clay writing the opinion talks about the government advancing in joe who is the vice president of this tech company and as judge clay rowe testified at length if you take a look at the testimony of the two people the man from wal greens who was a loss prevention shoplifting guy and somebody from wal mart that they ran it at the last minute we're talking about direct examination it was a matter of minutes the government was extremely casual in how they presented th records evidence and for the government to stand up here and say that those records were not testimonial really understates what their case was about they relied exclusively on those records use those records to convince the the the jury that convicted m hillis that those records corroborated the string of cooperators that testified against ms hill's they also prepared a chart that was supposed to be a calendar used as an aid is the testimony was being presented the calendar had the sudafed written records for each day for some reason the calendar ended up going back to the jury so for the government to say that they're not testimony i think it ignores the issue in the case