IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50948

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MELVIN DAVID TOWNS, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY, JONES, and GRAVES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Melvin Towns (“Towns”) challenges his conviction and sentence for

conspiracy to manufacture methamphetamine and conspiracy to possess and

distribute pseudoephedrine in violation of 21 U.S.C. § 846. He argues primarily

that some of the evidence against him—pseudoephedrine purchase logs—was

introduced in violation of the business records exception to the hearsay rule and

the Sixth Amendment’s Confrontation Clause. Because the purchase

transaction logs conform to Federal Rule of Evidence (FRE) 803(6), and because

the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305,

129 S. Ct. 2527 (2009), approves the use of nontestimonial business records

without a live witness, we AFFIRM the conviction. Finding no reversible error

United States Court of Appeals

Fifth Circuit

F I L E D

April 30, 2013

Lyle W. Cayce

Clerk

 Case: 11-50948 Document: 00512225461 Page: 1 Date Filed: 04/30/2013
No. 11-50948

in the refusal of a safety value sentence reduction, we AFFIRM the sentence as

well.

BACKGROUND

In 2009, James Pieprzica, an officer with the Texas Department of Public

Safety, discovered a conspiracy whereby individuals would visit multiple

pharmacies to obtain large quantities of pseudoephedrine and use it to

manufacture methamphetamine. With the help of cooperating witnesses and

informants, Pieprzica compiled a list of alleged conspirators—including

Towns—and began submitting requests to various pharmacies to obtain lists of

their purchases of pseudoephedrine. Upon receipt of those lists, some of which

were in electronic format sent through email and some of which were hard copies

that were mailed, Pieprzica and an analyst combined the information into a

spreadsheet.

Towns was charged in April of 2011 in a superseding indictment with one

count of conspiracy to manufacture 500 grams or more of methamphetamine and

to possess and distribute pseudoephedrine knowing that it would be used to

manufacture methamphetamine. Towns was charged with furthering the

conspiracy by purchasing large quantities of pseudoephedrine to be used in

manufacturing methamphetamine. At trial, the Government offered

pseudoephedrine purchase logs from various retailers (Walgreens, Wal-Mart,

Target, and CVS) to highlight a pattern of movement and purchase implicating

Towns in the conspiracy. The log spreadsheets were admitted through Pieprzica,

who had received the records and their certifying affidavits from the records

custodians of the companies that ran the pharmacies. Towns had filed a motion

in limine to exclude the records, making the same arguments addressed in this

appeal, but the district court denied it. The records were admitted at trial over

Towns’s objection that they were not kept for business purposes, but as required

2

 Case: 11-50948 Document: 00512225461 Page: 2 Date Filed: 04/30/2013
No. 11-50948

law enforcement records. He failed to object specifically to the custodian

certificates or purchase logs as having an inadequate foundation.

The government then offered several witnesses to prove the existence of

the conspiracy. Co-conspirators confirmed Towns’s involvement in the plan to

manufacture methamphetamine and testified that he acquired pseudoephedrine

pills for their operation. He also assisted from time to time in tasks related to

the actual “cooking” of the methamphetamine.

Towns testified at trial and admitted to purchasing pseudoephedrine pills 

in large quantities. He claimed that he took the drug to stay awake in his work

as a truck driver, but denied involvement in any illegal drug manufacturing

activity. Towns also denied the accuracy of the pseudoephedrine drug purchase

logs and denied purchasing pills in excess of the statutorily allowed limit of nine

grams per 30 days. During cross examination, the Government asked Towns to

read amounts and information contained on the logs, but did not ask about

specific store visits or whether he purchased pseudoephedrine with one of his

co-conspirators.

Towns was subsequently convicted by a jury. In his motion for a new trial,

Towns reurged that the records were both improperly admitted as business

records and violated his right to confront the witnesses against him. The motion

was denied. Thereafter, the district court found that Towns was ineligible for

a safety valve sentence reduction and that the court was required to sentence

him to a mandatory sentence of 120 months. He timely appealed both the

conviction and the sentence.

STANDARD OF REVIEW

This court reviews a district court’s evidentiary rulings for abuse of

discretion, subject to harmless error review. United States v. Jackson, 636 F.3d

687, 692 (5th Cir. 2011). “A trial court abuses its discretion when its ruling is

based on an erroneous view of the law or a clearly erroneous assessment of the

3

 Case: 11-50948 Document: 00512225461 Page: 3 Date Filed: 04/30/2013
No. 11-50948

evidence.” Id. (quoting United States v. Yanez Sosa, 513 F.3d 194, 200

(5th Cir. 2008). Confrontation Clause challenges are reviewed de novo, but are

also subject to harmless error review. United States v. Tirado-Tirado, 563 F.3d

117, 122 (5th Cir. 2009). The district court’s legal interpretation of a safety valve

provision is reviewed de novo. United States v. Flanagan, 80 F.3d 143, 145

(5th Cir. 1996).

DISCUSSION

I. Pseudoephedrine Purchase Logs

This appeal revolves around the business transaction logs obtained from

the pharmacies. If this information is admissible and does not violate the

Confrontation Clause, the conviction must be upheld. We hold that the

pseudoephedrine purchase logs were business records for the purposes ofFederal

Rule of Evidence 803(6); admissible under the exception to the hearsay rule via

the affidavits certifying their status; and nontestimonial records that do not

violate the Sixth Amendment.1

 A. Business Records

Towns begins by challenging the district court’s admission of the purchase

logs as an abuse of discretion.2 This contention focuses on the second and fourth

requirements ofthe business records exception to the rule against hearsay found

in FRE 803(6).3 First, Towns argues that the logs do not qualify as true business

1 Because the district court did not err, we do not reach the question of harmless error.

2

It is doubtful this argument was preserved at the district court. The defendant

objected to the records as law enforcement records, not business records, and on Confrontation

Clause grounds. No objection was made as to the records custodians’ affidavits. The generic

complaints regarding admission of the purchase logs do not seem to satisfy the FRE’s

requirement of particularity in the grounds of the objection. FED. R. EVID. 103(a)(1)(B). For

purposes of this analysis, however, we will evaluate the argument on its merits.

3 There are five requirements for the exemption to be in effect: (A) the records must be

made at or near the time of the event by—or from information transmitted by—someone with

knowledge ofthe event; (B)they must be kept in the ordinary course of business; (C) they must

4

 Case: 11-50948 Document: 00512225461 Page: 4 Date Filed: 04/30/2013
No. 11-50948

records. He contends they were prepared with a law enforcement purpose in

mind and are only kept because of a Texas statute mandates their existence; the

pharmacies do not (and actually cannot) use the records for day-to-day business

activities. Thus they were not kept in the ordinary course of business. 

Alternatively, even if the logs are “business records,” they were not properly

admitted because of their introduction by Officer Pieprzica, not someone with

actual knowledge of the records. We reject each of these arguments.

To begin, the undue focus on the law enforcement purpose of the records

has little to do with whether they are business records under the Federal Rules

of Evidence. What matters is that they were kept in the ordinary course of

business. It is not uncommon for a business to perform certain tasks that it

would not otherwise undertake in order to fulfill governmental regulations. See

United States v. Veytia-Bravo, 603 F.2d 1187 (5th Cir. 1979). This does not

mean those records are not kept in the ordinary course of business. In VeytiaBravo, this court held that firearm records that gun shops were forced to

maintain by law were business records since a company could lose corporate

privileges for failing to maintain them properly. Id. at 1191. To hold otherwise

here would violate precedent and move the inquiry beyond the rule’s text. 

Fed. R. Evid. 803(6)(B) (exempting records “kept in the course of a regularly

conducted activity of a business” from the rule against hearsay). The regularly

conducted activity here is selling pills containing pseudoephedrine; the purchase

be kept regularly; (D) each of these conditions must be proven by the testimony of a qualified

witness or by a certification that complies with Rule 902(11) or (12); and (E) neither the source

of information nor the circumstances in which the record is prepared can indicate a lack of

trustworthiness. FED. R. EVID. 803(6).

5

 Case: 11-50948 Document: 00512225461 Page: 5 Date Filed: 04/30/2013
No. 11-50948

logs are kept in the course of that activity.4

 Why they are kept is irrelevant at

this stage.5

4

It is of no consequence that the purchase logs introduced at trial were only portions

(primarily those related to Melvin Towns and other conspirators) of a larger bank of business

records containing all the pseudoephedrine purchase logs for each store. A proponent may

offer summaries from voluminous records. FED. R. EVID. 1006. In accordance with the Rules,

the complete records were made available to the defendant and no objections were raised along

these lines.

5 The dissent contends that this court’s precedent in Matthews v. United States,

217 F.2d 409 (5th Cir. 1954), prevents the transaction logs from being true business records.

United States v. Veytia-Bravo, 603 F.2d 1187 (5th Cir. 1979), teaches that this is incorrect.

The documents held inadmissible in Matthews were special episodic reports of only

certain sales which were, regardless of size or frequency, legal. The IRS used the

records to facilitate its enforcement of liquor taxes, not to detect unlawful sales activity

by the keeper of the records. The business which recorded the sale had no incentive

to keep the records with precision and completeness to show its compliance with any

laws prohibiting certain types of transactions.

Id. at 1191. The records in the present case, unlike Matthews, are systematic logs of

purchases that may or may not be legal. It is imperative that accurate records be kept

because, unlike sugar, buyers are limited in pseudoephedrine purchase quantities. Also,

retailers are accountable for these records and failure to comply with the regulations renders

them subject to penalties. TEX.HEALTH &SAFETYCODE ANN. §§ 486.021-486.033 (West 2012).

Veytia-Bravo recognized that external incentives, which cause businesses to accurately

record transactions, are what make the records sufficiently trustworthy. Here, stores must

show that they have complied “with the regulation’s requirement that a complete record of all

sales be kept” and they must keep records to assist in restricting those “who c[an]not lawfully

purchase” additional pseudoephedrine. Veytia-Bravo, 603 F.2d at 1191. The point is that the

business records are acceptable under the FRE as long as outside factors ensure they have

been systematically checked, regularly and continually made, relied upon for compliance with

government regulations, and made according to the duty, under law, to provide accurate

records of such purchases. See United States v. Wells, 262 F.3d 455, 462 (5th Cir. 2001);

cf. Palmer v. Hoffman, 318 U.S. 109, 113, 63 S. Ct. 477, 480 (1943) (approving, as business

records,those “typical of entries made systematically or as a matter of routine to record events

or occurrences, to reflect transactions with others, or to provide internal controls”).

Furthermore, the dissent overlooks the section of Veytia-Bravo specifically

distinguishing modern record keeping from that in Matthews. It would make little sense to

treat a case that was to be “read as limited to its facts in their context” as applicable here.

Veytia-Bravo, 603 F.2d at 1191. The regular and orderly recordation of pseudoephedrine

purchases—for which Texas has no minimum amount required, TEX. HEALTH & SAFETY CODE

ANN. § 486.014—is a far cry from the haphazard logging of sugar sales in the 1950s. The

guarantees of trustworthiness present today—the requirement of photo identification for

purchases and the immediate computerized logging of sales—remove this case from the

“limited” facts of Matthews and align it with Veytia-Bravo, the admitted controlling authority.

6

 Case: 11-50948 Document: 00512225461 Page: 6 Date Filed: 04/30/2013
No. 11-50948

Next, the purchase records were properly admitted as business records

because of the qualifying affidavits offered to the court. For admission, a record

of a regularly conducted business activity must be proven by “testimony of the

custodian or another qualified witness, or by a certification that complies with

Rule 902(11).” Fed. R. Evid. 803(6)(D) (emphasis added). According to

Rule 902(11), records of regularly conducted business activity—even copies—are

self-authenticating if certified as accurate by the custodian. The party against

whom the record is offered must also be given notice and opportunity to

challenge the records.6 A proper foundation is laid for business records simply

by an affidavit that attests to the requisite elements of FRE 803(6).7

This type of attestation aligns with the precedent set forth in Wilson v.

Zapata Off-Shore Co., 939 F.2d 260 (5th Cir. 1991). There, a plaintiff objected

to the admission of hospital records containing an unfavorable statement about

her by her sister. Specifically, the plaintiff complained that a proper foundation

was not laid for the admission of business records because there was no

statement in the authenticating affidavit verifying the accuracy of a report. This

court held, however, that “Rule 803(6) does not require testimony that the record

is accurate.” Id. at 272. It was enough that the affidavit of the record custodian

6 That opportunity was afforded the defense and is why the claim at oral argument

against the records’ authenticity was new and thus untimely.

7 The best example of the proper manner in which to present business records can be

seen in O’Connor’s Federal Forms. In this case, each of the pharmacies—Walgreens, WalMart, Target, and CVS—provided affidavits from their respective records custodians that

mimic Federal Civil Form 8C:3. O’CONNOR’S FEDERAL CIVILFORMS 1256 (2012). Its language

tracks Rule 803(6) nearly word for word. Contrary to the dissent’s assertion in Footnote 7, a

party does not need to explain the record-keeping system ofthe organization. It is enough that

the 803(6) requirements are certified. A proper foundation was laid in this case by including

things such as names,titles, record descriptions, stores, etc. Because the rule does not require

anything more for criminal cases than civil ones, we must accept these attestations as

authoritative. We are interested in accuracy in a hearsay-type context, a concern identical in

both civil and criminal cases, but the Rules of Evidence allow for self-authenticating records

to be admitted and then weighed by the jury.

7

 Case: 11-50948 Document: 00512225461 Page: 7 Date Filed: 04/30/2013
No. 11-50948

(who did not make the report) “contain[ed] statements that track[ed] the

language of Rule 803(6) nearly word for word.” Id.

Wilson confirms the admissibility of the records in the present case against

two primary objections. First, the affidavit of a record custodian is sufficient to

lay the foundation for a business record. Id. There is therefore no need to have

individual cashiers from each of the pharmacies testify. The drug purchases of

specific individuals on some date years prior could never be remembered

anyway; this is the genesis of the business records exception. What is more

important—and actually required—is the testimony of the custodian8 who

ensures such records are free from adulteration after the fact. See United States

v. Armstrong, 619 F.3d 380, 384–85 (5th Cir. 2010). Second, any claim

concerning the records’ accuracy is not the province of Rule 803(6). Wilson,

939 F.2d at 272. The pharmacies’ receipts show purchases by one Melvin Towns;

his driver’s license was recorded for each of the purchases and his signature was

obtained in many instances. This is all the identifying information the purchase

logs evidenced. Towns was free to make arguments at trial that he was not the

actual purchaser of the drugs, but accuracy does not control admissibility.

The purchase logs comprised records of a regularly conducted activity,

which were made at or near the time of the purchase by individuals whose job

duties entailed making those records. Because this information was certified by

the records custodians’ affidavits and there was no evidence of

untrustworthiness in the record-keeping procedures, the pseudoephedrine

purchase logs are admissible business records. See United States v. Jones,

554 F.2d 251, 252 (5th Cir. 1977) (per curiam) (holding that a proper foundation

was laid for business records by recitation of the facts contained in FRE 803(6)). 

8 The disjunctive nature of FRE 803(6)(D) eliminates the need to put each custodian on

the stand to verify the respective business records. The qualifying information may come

through live testimony or certification. Agent Pieprzica’s introduction of the custodian

affidavits was therefore sufficient.

8

 Case: 11-50948 Document: 00512225461 Page: 8 Date Filed: 04/30/2013
No. 11-50948

Once these conditions were met, admission fell within the discretion of the trial

court. That discretion was not abused here.

 B. Confrontation Clause

Towns next argues that admission of the pseudoephedrine purchase logs

violated his Sixth Amendment rights under the Confrontation Clause.9 He

contends the logs were “testimonial” since they were prepared in anticipation of

trial. This would transgress the mandate of Crawford v. Washington, 541 U.S.

36, 124 S. Ct. 1354 (2004). The Supreme Court held there that the Sixth

Amendment is violated when testimonial statements are introduced from a

witness who did not appear at trial “unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.” Id. at 53–54, 124

S. Ct. at 1365.

This line of argument is defeated by the Supreme Court’s clear direction

in Melendez-Diaz. The Court acknowledged that business records are

“generally admissible absent confrontation not because they qualify under an

exception to the hearsay rules, but because—having been created for the

administration of an entity’s affairs and not for the purpose of establishing or

proving some fact at trial—they are not testimonial.” Melendez-Diaz, 557 U.S.

at 324, 129 S. Ct. at 2539–40. The statements of a lab analyst—held to be

affidavits within the core class of testimonial statements—could not be used in

Melendez-Diaz absent confrontation because they were “prepared specifically for

use at . . . trial.” Id., 129 S. Ct. at 2540. In contrast, the business records in this

case were not prepared solely with an eye toward trial. Cf. Bullcoming v.

New Mexico, 131 S. Ct. 2705, 2717 (2011) (applying Melendez-Diaz and noting

that a document created solely for an evidentiary purpose is likely testimonial). 

The pharmacies created these purchase logs ex ante to comply with state

9 A criminal defendant has the right “to be confronted with the witnesses against him.” 

U.S. CONST. amend. VI.

9

 Case: 11-50948 Document: 00512225461 Page: 9 Date Filed: 04/30/2013
No. 11-50948

regulatory measures, not in response to an active prosecution. Additionally,

requiring a driver’s license for purchases of pseudoephedrine deters crime. The

state thus has a clear interest in businesses creating these logs that extends

beyond their evidentiary value. Because the purchase logs were not prepared

specifically and solely for use at trial, they are not testimonial and do not violate

the Confrontation Clause.10

II. Safety Valve Reduction

Towns also contests the validity of his minimum ten-year sentence,

21 U.S.C. § 841(b)(1)(A)(viii), because of the district court’s denial of a safety

valve sentence reduction under 18 U.S.C. § 3553(f).11 The court expressed a

willingness to consider him for a reduction, but ultimately rejected its

application because Towns did not meet the final criterion by providing all

information concerning the offense of conviction. Towns contends the reduction

was denied because he maintained his innocence and pleaded not guilty. This

argument is incorrect.

Towns’s mistake is to conflate an initial innocent plea with a continued

claim of innocence post-trial: a claim the district court believed was less than

forthright. Towns rightly points out that the statute does not require a

10 We are not the first circuit to reach this holding. United States v. Mashek, 660 F.3d

922 (8th Cir. 2010). The Eighth Circuit held that “pseudoephedrine logs were kept in the

ordinary course of business pursuant to Iowa law and are business records under Federal Rule

of Evidence 803(6)” that are non-testimonial statements “to which the Confrontation Clause

does not apply.” Id. at 930. Though Mashek was decided under plain error review—as this

case could be on the business records challenge—the court did not rely on that standard in its

decision to admit the logs and hold the Sixth Amendment not violated. In fact, the Eighth

Circuit explicitly “[a]ssum[ed] that Mashek did not waive his right to confrontation” before

stating that “Melendez-Diaz d[id] not provide him any relief.” Id.

11 This safety valve provision allows for a reduction in sentence if: (1) the defendant

does not have more than one criminal history point; (2) no violence, credible threats of

violence, or dangerous weapons were used in the offense; (3) the offense did not result in death

or serious bodily injury to anyone; (4) the defendant was not a leader of others in the offense;

and (5) the defendant provides all information and evidence to the government concerning the

offense by the time of the sentencing hearing.

10

 Case: 11-50948 Document: 00512225461 Page: 10 Date Filed: 04/30/2013
No. 11-50948

defendant to plead guilty in order to qualify for the safety valve. It does,

however, require the defendant, by the time of the sentencing hearing, to

truthfully provide all information and evidence he has concerning the offense. 

18 U.S.C. § 3553(f)(5). In this case, Towns admitted to purchasing

pseudoephedrine (an admission capable of upholding, on its own, the charge of

conspiracy to produce methamphetamine) and to using methamphetamine in the

past. He also admitted knowing other participants in the methamphetamine

scheme for which he was convicted, but that was supposedly all he knew. Towns

makes much of the fact that he took a polygraph exam to “prove” that he had no

further knowledge of the conspiracy. The district judge, however, noted at

sentencing that the most pertinent question—“Did you go around portions of the

state buying Sudafed packages illegally?”—was never asked and answered. 

Towns had the right to plead not guilty and the burden rested on the

government to prove that he was guilty. 

After his conviction, the burden shifted to Towns to provide any and all

information related to the crime of conviction. The district court determines,

subject to clear error review, whether the defendant has truthfully provided all

such information before it employs the safety valve.12 Once the court made a

negative finding on this factor, it had no choice legally to invoke the safety valve

provision. And we certainly cannot say the district court’s suspicion of Towns’s

veracity was, factually speaking, a clear error.

12 The district court’s determination was made, in large part, on Towns’ statement at

the beginning of his safety valve hearing: “Well, it’s just like I said in the trial, I didn’t furnish

Mike Sanders with all these pills and manufacture drugs with him, and you know, I don’t

know how else to put it, other than what I said at the trial. And there’s really nothing else I

have to say about that, sir.” The court did not believe Towns and thus denied the safety valve.

11

 Case: 11-50948 Document: 00512225461 Page: 11 Date Filed: 04/30/2013
No. 11-50948

CONCLUSION

Because the district court did not err in admitting the pseudoephedrine

purchase logs or in denying Towns relief under the safety valve sentence

reduction, we AFFIRM.

12

 Case: 11-50948 Document: 00512225461 Page: 12 Date Filed: 04/30/2013
No. 11-50948

GRAVES, Circuit Judge, dissenting.

Because the district court erred in admitting the pseudoephedrine logs as

business records and in refusing to consider a safety valve sentence reduction,

I would reverse and remand. Therefore, I respectfully dissent.

FACTS AND PROCEDURAL HISTORY1

James Pieprzica, an officer with the Texas Department of Public Safety,

testified that law enforcement obtained information in 2009 regarding

individuals who were visiting multiple pharmacies to obtain products containing 

pseudoephedrine in excess of the statutorily allowed amount and that the

pseudoephedrine was being used to manufacture methamphetamine (meth). 

Pieprzica compiled a list of individuals and began submitting requests to various

pharmacies to obtain lists of their purchases of pseudoephedrine. Upon receipt

of those lists, some of which were in electronic format sent through email and

some of which were hard copies that were mailed, Pieprzica and an analyst

combined the information into a spreadsheet.

That investigation led to the arrest of Michael Sanders2and more than a

dozen other individuals in October of 2009. Sanders was charged along with

Timothy Wilson, Robbie Heldarsen and Beth Grier, who is the sister of the

appellant, Melvin David Towns, Jr.3 Sanders pleaded guilty and, in exchange

for a recommendation of a reduced sentence, agreed to provide the Government

with additionalinformation. During Sanders’ initial meeting with investigators

in December 2009, he implicated several other people, but not the appellant,

Towns. During a second meeting in February 2010, after being told that

1 A recitation of the facts is necessary to demonstrate the lack of other evidence and the

significance of the transaction logs to the jury’s verdict.

2 Sanders, age 51, testified that he had used meth for approximately thirty years and

was hoping for a reduction of his possible twenty year sentence. He also testified that his daily

use had cost him his job, his wife and custody of his daughter.

3 Towns testified that he and Grier were not particularly close.

13

 Case: 11-50948 Document: 00512225461 Page: 13 Date Filed: 04/30/2013
No. 11-50948

investigators knew he was not telling the truth and being asked about Towns,

Sanders implicated Towns. Sanders testified that he “lied” during the first

meeting.

During Towns’ trial in 2011, Sanders testified that he had sold Towns

meth and “possibly” purchased meth from Towns “a long time ago.” Specifically,

Sanders said it had been “probably ten years ago or so.” Sanders also testified

that more recently he had manufactured or “cooked” meth in a tool shed on a

ranch owned by Towns and Towns’ sister, Grier, near Gonzales. Sanders said

he was on the ranch property at different times both “with and without” Towns’

permission. Towns was living in the town of Navasota at the time. Grier lived

in the old family home some miles from the ranch house, which Towns had

rented to a tenant for several years. Sanders lived with Grier. The ranch had

a gate with locks and was accessible by numerous people, including people who

rented or resided there, hunters and others.

Sanders said that he never saw Towns cook meth, but that Towns had

watched him cook meth on occasion and “sometimes [Towns] would like draw the

anhydrous [ammonia] off for me and, you know, just little stuff.” On those

occasions, Sanders said he shared the meth with Towns. The time period over

which this manufacturing occurred is unclear based on Sanders’ testimony, but

it appears that the manufacturing occurred for three or four years until about

six months before Sanders’ arrest in October 2009 - or approximately April 2009. 

Sanders testified that during this period he and Towns’ also manufactured meth

on the property of Don Cohorst in Washington County.

Further, Sanders testified that, in addition to various other people, he and

Towns both provided pseudoephedrine for manufacturing meth and on occasion

traveled to purchase pseudoephedrine at various stores in the Houston and

Conroe areas. With regard to the pseudoephedrine logs, Sanders was asked the

following:

14

 Case: 11-50948 Document: 00512225461 Page: 14 Date Filed: 04/30/2013
No. 11-50948

Q. All right. During your prosecution, did you have the

opportunity to look at some pseudo logs –

A. Yes, sir.

Q. – detailing the pseudoephedrine, the times you purchased

pseudoephedrine tablets?

A. Yes, sir.

Q. I believe those logs pertain to CVS, Wal-Mart, Walgreens,

possibly Target?

A. Uh-huh.

Q. Did you and Mr. Towns ever purchase pseudoephedrine at

any other retailers, such as HEB or – 

A. Well, yes. HEB. Very seldom, but every now and then, yes,

HEB.

Sanders was not asked about specific dates, times, locations or whether Towns

was with him at those specific times. Likewise, Sanders offered no testimony

regarding specific trips to purchase pseudoephedrine with Towns.

Sanders also implicated Joey West, who was arrested and charged for

conspiracy to manufacture meth along with Josh Harkey and Tony Harkey. 

West, a convicted drug offender who was on probation, also cooperated with

officials in exchange for a recommendation of a lighter sentence. West, also a

meth user, was taught how to manufacture meth by Sanders around 2005 and

had also cooked on the ranch property in Gonzales. West’s “good friend,” Ken

Nippert, rented the ranch house from Towns and gave West access to a building

near the house. West testified that he never cooked meth on the property when

Towns was there, but that he had seen Towns at the ranch property when

Sanders was cooking meth. West said that he never saw Towns manufacture

any meth. West also testified as follows:

Q. All right. Did you ever do any methamphetamine business

with Mr. Towns?

A. No transactions.

Q. Never bartered –

A. No, sir.

Q. – or sold him any methamphetamine?

A. No, sir.

15

 Case: 11-50948 Document: 00512225461 Page: 15 Date Filed: 04/30/2013
No. 11-50948

Q. Did you ever get any pills from him?

A. No, sir.

Q. Did Mr. Towns ever do anything to exclude you from the

property?

A. No, sir.

Q. Did you ever get any pills from Mr. Towns?

A. At the end of – right whenever – I think it was around

Christmastime, before I got arrested, yes, sir.

. . .

Q. Tell the jury about that.

A. He brought me some pills to cook some methamphetamines

[sic], and I traded him some drugs for the boxes of pills.

Q. Okay. And where did he deliver the pills to you?

A. At his house. I mean, at the residence out there.

Q. And were these pseudoephedrine tablets?

A. Yes, sir.

Q. But you never actually saw him cook, correct?

A. No, sir.

Q. And you never cooked in front of him?

A. No, sir.

West was arrested in April of 2010 in Harris County. He testified that,

although he still resided in Gonzalez, he had gone to Houston after the initial

round of arrests in Gonzales County in October of 2009 because he knew there

was a warrant for his arrest. West’s claim of returning to the same location in

Gonzales County to make additional meth in December of 2009 with pills

obtained from Towns contradicts West’s other testimony that he never got pills

from Towns and that he knew about the arrests in October of 2009 and went to

Houston.

Towns was indicted on July 21, 2010, and charged in a superseding

indictment on April 6, 2011, for one count of conspiracy to manufacture 500

grams or more of methamphetamine and to possess and distribute 

pseudoephedrine knowing that it would be used to manufacture

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (c)(1), (c)(2), 

846. Towns was further charged with purchasing in excess of 100 grams of

16

 Case: 11-50948 Document: 00512225461 Page: 16 Date Filed: 04/30/2013
No. 11-50948

pseudoephedrine during the period of the conspiracy, from January of 2008 to

March of 2010, to be used by him and others to manufacture meth.

Attrial, the Government offered pseudoephedrine logs of various retailers. 

Towns filed a motion in limine to exclude the records because they were not

business records under Federal Rule of Evidence 803(6) since they were

calculated for use in court by law enforcement and not in the conduct of business

functions. Further, Towns argued that even if the records were admissible as

business records, they were inadmissible under the Confrontation Clause. The

district court denied the motion in limine and admitted the records and evidence

at trial over Towns’ objections. The logs were admitted through Pieprzica.

Towns testified at trial and admitted to purchasing pseudoephedrine that

he took to stay awake in his work as a truck driver. Towns denied being

involved in any drug activity with Sanders, West or Grier. Towns also denied

the accuracy of the pseudoephedrine logs and denied purchasing amounts in

excess of the statutorily allowed limit of nine grams per 30 days. During cross

examination, the Government asked Towns to recite amounts and information

contained on the logs, but did not ask about any specific store visits or whether

he purchased pseudoephedrine with Sanders.

Towns was subsequently convicted. In his motion for new trial, Towns

asserted that the records were improperly admitted as business records and

violated his right to confront the witnesses against him. The district court

denied the motion for new trial. Thereafter, the district found that, because

Towns continued to assert his innocence, he was ineligible for a safety valve and

the court was required to sentence him to a mandatory sentence of 120 months.

STANDARD OF REVIEW

This court reviews a district court’s evidentiary rulings for abuse of

discretion, subject to harmless error review. United States v. Jackson, 636 F.3d

687, 692 (5th Cir. 2011). “A trial court abuses its discretion when its ruling is

17

 Case: 11-50948 Document: 00512225461 Page: 17 Date Filed: 04/30/2013
No. 11-50948

based on an erroneous view of the law or a clearly erroneous assessment of the

evidence.” Id. Confrontation Clause challenges are reviewed de novo, but are

subject to harmless error review. United States v. Tirado-Tirado, 563 F.3d 117,

122 (5th Cir. 2009). The district court’s determination of whether the defendant

has provided full disclosure is a factual finding reviewed for clear error. United

States v. Flanagan, 80 F.3d 143, 145 (5th Cir. 1996). The district court’s legal

interpretation of a safety valve provision is reviewed de novo. Id.

DISCUSSION

I. Inapplicability of business records exception

The pseudoephedrine logs were entered into evidence under the business

records exception to the hearsay rule. Fed. R. Evid. 803(6). The logs are

statutorily required to be kept under 21 U.S.C. § 830 and Texas Health and

Safety Code § 486.014.

Rule 803(6) creates an exception to the hearsay rule for records kept in the

ordinary course of a regularly conducted business activity. The exception applies

if:

(A) the record was made at or near the time by – or from

information transmitted by – someone with knowledge; 

(B) the record was kept in the course of a regularly conducted

activity of a business, organization, occupation, or calling, whether

or not for profit; 

(C) making the record was a regular practice of that activity; 

(D) all these conditions are shown by the testimony of the

custodian or another qualified witness, or by a certification that

complies with Rule 902(11) or (12) or with a statute permitting

certification; and 

(E) neither the source of information nor the method or

circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6).

As the comment to Rule 803(6) states, while all participants may be acting

routinely, if, "however, the supplier of the information does not act in the regular

18

 Case: 11-50948 Document: 00512225461 Page: 18 Date Filed: 04/30/2013
No. 11-50948

course, an essential link is broken; the assurance of accuracy does not extend to

the information itself, and the fact that it may be recorded with scrupulous

accuracy is of no avail." Fed. R. Evid. 803(6), n. to para. (6). Despite the

majority's statements that "any claim concerning the records' accuracy is not the

province of Rule 803(6)" and that "accuracy does not control admissibility." 

Further, an "illustration is the police report incorporating information obtained

from a bystander: the officer qualifies as acting in the regular course but the

informant does not." Id. See also Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517

(1930).

Rule 902(11) provides that:

The original or a copy of a domestic record that meets the

requirements of Rule 803(6)(A)-(C), as shown by a certification of

the custodian or another qualified person that complies with a

federal statute or a rule prescribed by the Supreme Court. Before

the trial or hearing, the proponent must give an adverse party

reasonable written notice of the intent to offer the record--and must

make the record and certification available for inspection--so that

the party has a fair opportunity to challenge them.

Fed. R. Evid. 902(11).

This Court has not decided whether pseudoephedrine logs constitute

business records for purposes of Rule 803(6).4 A s T o w n s a s s e r t s , t h e

transaction logs at issue here are prepared in accordance with federal and state

law. Both the state and federal statutes indicate that the requirements are

based on law enforcement purposes. As discussed herein, the majority

4

In the unpublished opinion of United States v. Fox, 487 Fed. App’x 165 (5th Cir. 2012),

this Court per curiam affirmed a pseudoephedrine conviction where logs were admitted at

trial. This Court found that “pseudoephedrine logs bearing the signature ‘Tina Fox’ for each

possession conviction as well as the testimonies of Agent Rodney Tandy, handwriting expert

Kenneth Crawford, and co-conspirators” sufficient to support the convictions of Fox. Id. at

166, 167. This Court further said, “[e]ven if Fox is correct that her possession conviction on

Count 47 was supported in part by a pharmacy log that was not properly verified, the jury was

free to rely upon the log in question because, as Fox concedes, she failed to object to its

admission into evidence.” 

19

 Case: 11-50948 Document: 00512225461 Page: 19 Date Filed: 04/30/2013
No. 11-50948

erroneously finds that the reason the records are kept or their subsequent use

has little, if anything, to do with whether the logs are business records.

The majority cites United States v. Veytia-Bravo, 603 F.2d 1187 (5th Cir.

1979), for the holding that firearms records that gun shops were required to

maintain were business records since a company could lose corporate privileges

for failing to maintain them.5 The majority then concludes that the

pseudoephedrine logs are business records because they are kept during the

course of the regularly conducted activity of “selling pills containing

pseudoephedrine.” I disagree with the majority’s finding that the logs are

business records. However, I agree that Veytia-Bravo is controlling authority.

In Veytia-Bravo, Judge Charles Clark, writing for the panel, held that the

district court did not err in admitting records of firearms and ammunitions sales

as business records. After acknowledging that the “primary emphasis of Rule

803(6) is on the reliability or trustworthiness of the records sought to be

introduced,” the Court then engaged in a thorough analysis of the applicable

authority and distinguished prior cases finding records inadmissible.6

Specifically, this Court found that Globe, the firearms dealer, “necessarily relied

upon these records in the conduct of its own affairs, both to comply with the

regulation’s requirement that a complete record of all sales be kept and to show

that it had not violated 18 U.S.C. § 922 by knowingly selling firearms or

ammunition to one who could not lawfully purchase them.” Veytia-Bravo, 603

5

I note that the “corporate privilege” language actually comes from the discussion of

United States v. Rogano, 520 F.2d 1191 (5th Cir. 1975). Veytia-Bravo, 603 F.2d at 1191.

6 See Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943) (Accident

report completed by railroad employee not admissible under the business records exception

to the hearsay rule because it was prepared primarily for use in litigation and not in the

conduct of business.); and Matthews v. United States, 217 F.2d 409 (5th Cir. 1954) (statutorily

required “sugar reports” to detect sales of substances used in the manufacture of distilled

spirits were inadmissible as lacking necessary trustworthiness and because they were not

used as an integral part of the business in its own interest.)

20

 Case: 11-50948 Document: 00512225461 Page: 20 Date Filed: 04/30/2013
No. 11-50948

F.2d at 1191. This Court also noted that in Matthews the “business which

recorded the sale had no incentive to keep the records with precision and

completeness to show its compliance with any laws prohibiting certain types of

transactions.” Id. In Matthews, this Court established the following standard:

So long as the accuracy and reliability of records sought to be

introduced in evidence have been tested by the fact that a business

concern carries on its own affairs from day to day in reliance upon

such records, there is no departure from the standards of accuracy

and trustworthiness that were basic in the historic rule permitting

testimony from the shop book or book of account.

Matthews, 217 F.2d at 413-414.7

This Court has also said:

Indeed, the rationale underlying this exception to the rule

against hearsay is that the inherent reliability of business records

is “supplied by systematic checking, by regularity and continuity

which produce habits of precision, by actual experience of business

in relying upon them, or by a duty to make an accurate record as

part of a continuing job or occupation.” Fed.R.Evid. 803(6), Notes of

Advisory Committee on Proposed Rules. We have expressly

recognized that the “‘primary emphasis of rule 803(6) is on the

reliability or trustworthiness of the records sought to be

introduced.’” United States v. Duncan, 919 F.2d 981, 986 (5th

7 This case is also factually similar to Matthews in that only purchases of sugar in large

amounts were required to be reported. Here, pharmacies are only required to log purchases

of packages containing in excess of 60 milligrams of pseudoephedrine, contrary to the

majority’s characterization of these as “systematic logs” of all purchases. See 21 U.S.C. §

830(e)(1)(A)(iii). Further, the majority’s statement that these purchases “may or may not be

legal” is misleading in that retailers are statutorily prohibited from selling pseudoephedrine

in illegal amounts in any single transaction and there is absolutely no indication that these

records are used “to detect unlawful sales activity by the keeper of the records.” Were that the

case, then, based on the majority’s holding here, the involved pharmacies clearly engaged in

unlawful sales activity. To the contrary, a retailer is not maintaining the logs in an attempt

to prove it did not sell pseudoephedrine to a purchaser forbidden by law. As evidenced by this

case, a retailer is not even maintaining the logs to ensure that it does not sell pseudoephedrine

to someone who has already purchased a daily or monthly allotment. Rather, a retailer is

merely complying with the requirement of keeping the records, without analyzing or relying

on them and with no incentive to ensure accuracy, for the Government to possibly later use

for some law enforcement purpose.

21

 Case: 11-50948 Document: 00512225461 Page: 21 Date Filed: 04/30/2013
No. 11-50948

Cir.1990)(quoting United States v. Veytia-Bravo, 603 F.2d 1187,

1189 (5th Cir.1979)).

United States v. Wells, 262 F.3d 455, 462 (5th Cir. 2001).

Further, to reiterate the comment to Rule 803(6) quoted previously herein,

if the supplier of information does not act in the regular course of business, there

is no assurance of trustworthiness. Fed. R. Evid. 803(6), n. to para. (6). See also

Broadcast Music, Inc., v. Xanthas, Inc., 855 F.2d 233, 238 (5th Cir. 1988);

Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930).

This is consistent with other authority. For example, the Tenth Circuit

has said:

“The essential component of the business records exception is that

each actor in the chain of information is under a business duty or

compulsion to provide accurate information.” United States v.

McIntyre, 997 F.2d 687, 699 (10th Cir.1993). “If any person in the

process is not acting in the regular course of business, then an

essential link in the trustworthiness chain fails....” 2 McCormick on

Evidence § 290 (Kenneth S. Broun, ed., 6th ed.2006); McIntyre, 997

F.2d at 699 (quoting McCormick with approval).

United States v. Ary, 518 F.3d 775 (10th Cir. 2008).

These cases clearly support a finding that the pseudoephedrine logs here

are not business records. There is no dispute that the pharmacies did not

“necessarily rely” upon these records in the conduct of their own affairs. To the

contrary, the information in the logs is confidential and subject to non-disclosure

with limited exceptions that do not include day-to-day business activities. See

21 U.S.C. § 830(c). See also Tex. Health & Safety Code § 486.0146. As this

Court’s finding in Veytia-Bravo mandates, mere compliance with the

requirement to keep the logs is not sufficient to establish that the pharmacies

“necessarily relied upon these records in the conduct of its own affairs.” Veytia22

 Case: 11-50948 Document: 00512225461 Page: 22 Date Filed: 04/30/2013
No. 11-50948

Bravo, 603 F.2d at 1191.8 Unlike in Veytia-Bravo, there is no indication that the

pharmacies had any “incentive to keep the records with precision and

completeness to show its compliance with any laws prohibiting certain types of

transactions.” Id.

9 There is no evidence that the accuracy and reliability of the

pseudoephedrine logs “have been tested by the fact that a [pharmacy] carries on

its own affairs from day to day in reliance upon such records.” Matthews, 217

F.2d at 413-414. Where, as here, one party seeks to prove a substantive fact by

the introduction of evidence that is compiled, not in connection with the

pharmacies’ own operations, but under sanction of federal statute, “none of the

proofs of trustworthiness” is present. Id. at 414.

8

In Footnote 5, the majority misapprehends the “section of Veytia-Bravo specifically

distinguishing modern record keeping from that in Matthews.” What this Court actually said

was:

To the extent that Matthews might be read as concluding that no record

required to be kept by law could satisfy the trustworthiness requirement of the

business records exception, it would now conflict with the realities of today's

business world in which many, if not most, of the records of every business are

required to be kept by some government edict.

Veytia-Bravo, 603 F.2d at 1191. This Court said nothing about “haphazard logging of sugar

sales in the 1950s” but was merely saying that there are records, like the firearms records,

that are required to be kept by law which may satisfy the trustworthiness requirement of the

business records exception, unlike the logs here. Further, the majority’s statement regarding

the “immediate computerized logging of sales” is unsupported by any authority or evidence.

9 The majority is correct that the Texas Department of State Health Services “may

impose an administrative penalty on a person who violates this chapter.” Tex. Health &

Safety Code § 486.021. However, the Texas statute also provides that a “person is not liable

for an act done or omission made in compliance with the requirements of Section 486.014 or

486.0141.” Tex. Health & Safety Code § 486.0145. Notably, Section 486.014 is the section

providing that a retailer must require a purchaser to display identification, either a driver’s

license or some other form of identification containing a photograph and indicating the person

is over age sixteen (we do not know the form of identification used or required here), sign for

the purchase (not provided on all of the logs here nor identified as Towns’ signature on the

others), and the information required to be recorded by the retailer, i.e., only the name, date,

item and number of grams purchased. Tex. Health & Safety Code § 486.014. Thus, any

liability for an act or omission in determining a purchaser’s identity or in accurately recording

the transaction is specifically limited. See Tex. Health & Safety Code § 486.0145.

23

 Case: 11-50948 Document: 00512225461 Page: 23 Date Filed: 04/30/2013
No. 11-50948

For these reasons, the pseudoephedrine logs are not business records

pursuant to Rule 803(6). The evidence in this case included only the

pseudoephedrine transaction logs and the testimony of two alleged coconspirators, admitted “cooks” and convicted drug offenders, offered in exchange

for a reduction in sentence. Therefore, it is not evident that the transaction logs

did not contribute to the jury’s verdict. The district court’s error was clearly not

harmless beyond a reasonable doubt and I would reverse on this issue.

Accordingly, the arguments regarding authentication and the

Confrontation Clause would be moot. However, because the majority holds

otherwise, I will address these arguments in the alternative.

II. Authentication

The majority relies on Wilson v. Zapata Off-Shore Co., 939 F.2d 260 (5th

Cir. 1991), to find that the logs were properly admitted as business records

because of the qualifying affidavits offered to the court. In Wilson,the challenge

was that the proper foundation was not laid for the admission of hospital records

which included a statement by Wilson’s sister to a social worker. Id. at 271-72. 

Wilson’s objection was to the double hearsay contained in the business record. 

There was no claim that the records were not business records. The majority

here misapprehends the discussion in Wilson regarding the accuracy of the

sister’s statement in the context of authentication. This Court found in Wilson

that a proper foundation was laid for the hospital records and that the person

attesting to the authenticity did not have to “personally attest to the accuracy

of the information contained in the records.” Id. at 272. This is because there

was no dispute that the hospital records were indeed business records and that

they had already cleared the first hurdle establishing the trustworthiness of the

records. In other words, as discussed above, the accuracy and reliability of the

hospital records had already been tested by the fact that the hospital carries on

its own affairs from day to day in reliance upon those records. Here, the

24

 Case: 11-50948 Document: 00512225461 Page: 24 Date Filed: 04/30/2013
No. 11-50948

pharmacy logs do not clear that first hurdle and, even if they did, they were not

properly authenticated.

As set out above, Rule 803(6) requires that the conditions “are shown by

the testimony of the custodian or another qualified witness, or by a certification

that complies with Rule 902(11).” Fed. R. Evid. 803(6)(D). The majority finds

that the certificates provided with the logs are sufficient. I disagree.

This Court has said that “a qualified witness is one who can explain the

record keeping system of the organization and vouch that the requirements of

the business records exception are met.” United States v. Ned, 637 F.3d 562, 570

(5th Cir. 2011). See also United States v. Brown, 553 F.3d 768, 792 (5th Cir.

2008) (Affirmed the inadmissibility of pharmacy records for failure to offer a

qualified witness to lay a foundation or timely affidavit.). 

No such witness testified here. Only Officer Pieprzica, who compiled the

log information into spreadsheets, testified regarding the logs. Pieprzica was

unable to explain the system of organization or vouch that the requirements

were met. Pieprzica specifically testified that each pharmacy had a different

way of keeping the records, that the records were submitted in different formats,

that he did not talk to or know the identity of the clerks who recorded the

transactions, and no surveillance recordings of any transactions were ever

requested during the investigation.

While the pharmacies did provide generic certifications from their

respective corporate offices for the records, those certifications neither explained

the record-keeping system of the organization nor vouched that the

requirements of the business records exceptions were met.10

10 The majority’s note that these certifications mimic an applicable federal form nearly

word for word does not establish foundation. The majority is correct that the rule does not

require anything more for criminal cases than for civil cases. However, the rule also does not

require anything less for authentication via certificate than it does for authentication via a

qualified witness. Thus, whether by certificate or by qualified witness, a party must explain

the record-keeping system ofthe organization and vouch that the requirements ofthe business

25

 Case: 11-50948 Document: 00512225461 Page: 25 Date Filed: 04/30/2013
No. 11-50948

Further, it is impossible to determine the application of subsection (E) that

“neither the source of information nor the method or circumstances of

preparation indicate a lack of trustworthiness” as neither the certifications nor

Pieprzica spoke to the source of the information or the method of preparation. 

Fed. R. Evid. 803(6)(E).

Pieprzica testified that he provided all of Towns’ information to the various

pharmacies when he inquired about any pseudoephedrine purchases. Without

the proper foundation, we are unable to determine whether relevant information

in the logs was obtained from Towns, from his driver’s license or some other form

of identification, from someone purporting to be Towns, or from law enforcement. 

And contrary to the majority’s statements regarding Town’s driver’s license

being recorded and his signature being obtained on some of the logs, there is

absolutely no evidence in the record to establish that any pharmacy “recorded”

Town’s driver’s license or that any of those differing signatures are his.

Thus, even if the logs were business records, they were not properly

authenticated. 

III. Confrontation Clause

Notwithstanding that the logs are not business records, even if they were,

the admission of the logs violated Towns’ right to confrontation.

"The Sixth Amendment's Confrontation Clause provides that, ‘[i]n all

criminal prosecutions, the accused shall enjoy the right ... to be confronted with

the witnesses against him.'" Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004). See U.S. Const. amend. VI. The Supreme Court

further stated the typical definition of "testimony" as a "solemn declaration or

affirmation made for the purpose of establishing or proving some fact." 

Crawford, 541 U.S. 51.

records exception are met. 

26

 Case: 11-50948 Document: 00512225461 Page: 26 Date Filed: 04/30/2013
No. 11-50948

This Court has acknowledged that, while business records are generally

not testimonial in nature after Crawford v. Washington11, there are exceptions.

In Melendez-Diaz, the Supreme Court held that the Confrontation Clause

applied to testimonial business records. Melendez-Diaz v. Massachusetts, 557

U.S. 305, 321-324, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The Court

specifically said:

Business and public records are generally admissible absent

confrontation not because they qualify under an exception to the

hearsay rules, but because – having been created for the

administration of an entity’s affairs and not for the purpose of

establishing or proving some fact at trial – they are not testimonial. 

Id. at 324. This Court has also recognized that business records are not per se

nontestimonial. See Jackson, 636 F.3d at 692.

Here, the logs were created for law enforcement purposes and were used

to establish or prove some fact at trial - the fact that Towns and others

purchased products containing pseudoephedrine. The logs were not created for

the “administration of [the pharmacies’] affairs.” Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 324, 129 S.Ct. 2527, 174 L.Ed. 2d 314 (2009). 

Therefore, the logs would be testimonial and in violation of the Confrontation

Clause.12

Further, the Eighth Circuit case cited by the majority in finding that

Towns’ Sixth Amendment rights were not violated is distinguishable.

11

541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

12

I note that the majority also finds, without citation to authority, that the logs did not

violate the right of confrontation because “requiring a driver’s license for purchases of

pseudoephedrine deters crime” and the “state thus has a clear interest in businesses creating

these logs that extends beyond their evidentiary value.” However, again, as discussed

previously herein, we have no evidence that a driver’s license was required, and a state’s

interest in the creation of records to deter crime does not allow a violation ofthe Confrontation

Clause. The state most certainly would have an interest in a crime lab analyst creating

records to deter crime, but the United States Supreme Court has found those records to be

testimonial. Melendez-Diaz, 557 U.S. 305.

27

 Case: 11-50948 Document: 00512225461 Page: 27 Date Filed: 04/30/2013
No. 11-50948

The Eighth Circuit found in United States v. Mashek, 606 F.3d 922, 930

(8th Cir. 2010), that the admission of pseudoephedrine logs did not violate

Mashek’s’s constitutional confrontation rights. However, Mashek was decided

under plain error review and does not fully address the applicable issues.

In Mashek, authorities obtained logbooks from several pharmacies after

receiving information from multiple sources that Mashek was manufacturing

meth and regularly carried firearms. Mashek, 606 at 926. Authorities obtained

the cooperation of a frequent visitor to Mashek’s home and arranged a controlled

delivery of pseudoephedrine and lithium batteries. This transaction was

recorded and Mashek said he would have meth later, but he needed to get

anhydrous ammonia and camping fuel. Based on information that was recorded,

officers believed that Mashek planned to steal anhydrous ammonia from a

nearby farm and manufacture meth later that day. Authorities obtained a

search warrant and discovered a large amount of evidence of meth

manufacturing,including pseudoephedrine pills, empty blister packs, chemicals,

equipment, etc., as well as firearms. Id. at 927. 

Mashek filed a motion to suppress the evidence acquired during the search

and also to suppress the pseudoephedrine logs. He cited Federal Rules of

Evidence 401, 403 and 801. The district court denied the motion. The court

further said that it would allow the evidence with the proper foundation and

that Mashek could require that the government produce a witness to establish

the foundation necessary to overcome a hearsay objection to the logs. Id. at 930. 

At trial, Mashek did not object to foundation, thus waiving his right to a live

witness. Therefore, on appeal, the Eighth Circuit reviewed only on plain error. 

The court said:

Assuming that Mashek did not waive his right to confrontation,

Melendez-Diaz does not provide him any relief. The

pseudoephedrine logs were kept in the ordinary course of business

pursuant to Iowa law and are business records under Federal Rule

28

 Case: 11-50948 Document: 00512225461 Page: 28 Date Filed: 04/30/2013
No. 11-50948

of Evidence 803(6). Business records under Rule 803(6) are nontestimonial statements . . . to which the Confrontation Clause does

not apply. Thus, the admission of the pseudoephedrine logs did not

violate Mashek’s constitutional confrontation rights.

Mashek, 606 at 930. Mashek was convicted of attempt to manufacture meth, in

violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

Rule 803 requires that the custodian of the business records or another

qualified witness must lay a foundation before records are admitted. Mashek

did not object to foundation, thus he waived any argument regarding whether

the logs were business records. The logs in Mashek were not used to establish

a crime related to the purchase, but merely corroborated the crime to which

Mashek agreed on the recording of the controlled delivery and the evidence

obtained pursuant to the search. He was convicted of attempt to manufacture. 

Here, Towns objected repeatedly to the foundation and the records were

testimonial.

IV. Safety Valve

The statutory minimum sentence in this case is ten years. 21 U.S.C. §

841(b)(viii). However, 18 U.S.C. section 3553(f) provides a limitation on the

applicability of the statutory mandatory minimum sentence. With regard to a

safety valve sentence reduction, the district court said:

But – I agree that you can go to trial, you are found guilty,

and then later try to get safety valve. But to do that, you can’t

during the safety valve hearing plead continued innocence and not

say that you know something about the crime that was committed.

And that is what your client did in the transcript, as I read it. 

He continues to maintain he is innocent of the charges in this case.

There is no requirement that Towns must admit guilt under the statute,

which says, in relevant part:

29

 Case: 11-50948 Document: 00512225461 Page: 29 Date Filed: 04/30/2013
No. 11-50948

[N]ot later than the time of the sentencing hearing, the defendant

has truthfully provided to the Government all information and

evidence the defendant has concerning the offense or offenses that

were part of the same course of conduct or of a common scheme or

plan, but the fact that the defendant has no relevant or useful other

information to provide or that the Government is already aware of

the information shall not preclude a determination by the court that

the defendant has complied with this requirement.

18 U.S.C. § 3553(f).

Towns admitted that he had purchased pseudoephedrine.13 Towns

admitted that he had used meth in the past. Towns admitted knowing Sanders,

West and Grier. Towns even passed a polygraph examination in an attempt to

establish that he was being truthful.

The district court repeatedly said that the sentence of ten years was too

high, but that the safety valve was inapplicable and it had “no choice legally.” 

As there is no requirement under the safety valve that Towns admit guilt, the

district court erred by not granting the safety valve relief and I would also

reverse on this issue.

CONCLUSION

Because the district court erred in admitting the pseudoephedrine

transaction logs and in refusing to consider a safety valve sentence reduction, I

would reverse and remand. Thus, I respectfully dissent.

13 Notably, the Government concedes in its brief that purchasing multiple packages of

pseudoephedrine from different stores is not illegal unless it exceeds the statutorily allowed

amounts.

30

 Case: 11-50948 Document: 00512225461 Page: 30 Date Filed: 04/30/2013