### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-50948

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. MELVIN DAVID TOWNS, JR., Defendant-Appellant

A ppeal 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 s entence for conspiracy to manufacture m e t h amphetamine and conspiracy to possess and distribute pseudoephedrine in violation of 21 U.S.C. § 846. He a rgues primarily that s ome of t he evidence against him—pseudoephedrine p urchase logs—was introduced in violation of the business records exception to the hearsay rule and the Sixth Amendment’s Confrontation Clause. B e c a u se the purchase transaction logs conform to Federal Rule of Evidence (FRE) 803(6), and because the Supreme Court’s decision in Melendez-Diaz v
. M assachusetts , 557 U.S. 305, 129 S

. Ct. 2527 ( 2009), approves the use of nontestimonia l b usiness records without a l ive witness, we AFFIRM the conviction. Finding no reversible error U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 30, 2013 Ly l e W . Cay ce Clerk Case: 11-50948 Document: 00512225461 Page: 1 Date Filed: 04/30/2013N o. 11-50948

in the refusal of a safety value sentence r eduction, w e AFFIRM the sentence as well. BACKGROUND In 2009, James Pieprzica, an officer with the Texas D epartment of Public Safety, disc o v e red a c onspiracy whereby individuals would visit multiple pharmacies to obtain l arge quantities o f pseudoephedrine a nd use it to manufacture m ethamphetamine. With the h e l p of c ooperating witnesses and informants, Pieprzica compiled a list of alleged c ons p i r a t ors—including Towns—and began s ubmitting 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 a nd s ome of which were hard copies that were mailed, P ieprzica and an analyst combine d t h e i n f ormation into a spreadsheet. Towns was charged in April of 2 011 in a superseding indictment with one count of conspiracy to manufacture 500 grams or more of meth a mphetamine and
to possess and distribute pseudoephedrine knowing that it would be used to

m anufacture methamphetamine. Towns was charged w ith furthering t he conspiracy by purchasing l a r g e quantities of p s eudoephedrine to be used in manufactu ring methamphetamine. At trial, the Government offered pseudoephedrine purchase logs from v a rious r etailers (Walgreens, Wal-Mart, Target, and CVS) to highlight a pattern of movement and p urchase implicating Towns in the cons p i r a c y
. T h e l o g s p r e a d sheets were a dmitted t h rough Pieprzica, who had received the records and their c e r t i f y i n g affidavits from the records custodians of the companies that ran t he pharmacies. T owns had filed a motion in limine to exclude the r ecords, making the same arguments addressed in this appeal, but t he district court denied i t. The records were admitted at trial o ver Towns’s objection t hat they were not kept for b usiness purposes, but a s required

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law enforcement records. He failed to object speci f i cally to the c u stodian certificates or purchase logs as having an inadequate foundation. The gover n m e n t then offered several w itnesses t o prove the existence of the conspiracy. Co-conspirators confirmed Towns’s involvement in the plan to manufacture methamphetamine a n d t e s t i f i e d t h a t h e a c q u ired pseudoephedrine pills f or t heir 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 p urchasing pseudoephedrine p ills in large quantities. He c laimed that he took the d rug to stay awake in his work

as a truck driver, but d enied involvement in any illegal d rug manufacturing activity. Towns also denied the accuracy of the pseudoephedrine d rug purchase logs and denied purchasing pills in excess of the statutorily allowed l imit of nine
grams per 30 days. D uring cross examination, the Government asked Towns to read amounts a nd information contained on the l o g s , b u t did not ask about specific store visits or whethe r h e purchased pseudoephedrine with o ne of his co-conspirators. Towns was subsequently convicted by a jury. In his motion for a n ew trial, Towns r e u r ged that the records were both improperly admitted a s business records and violated his right to confront the w itnesses against him. The motion

was denied. T hereafter, t he district court found that Towns was i n eligible for

a safety valve sentence reduction and t h a t the court was required to s entence him to a m andatory sentence of 120 months. He timely appealed b o th the conviction and the sentence. STANDARD OF REVIEW This court reviews a d i strict court’s evidentiary rulings for a buse of discretion, subject to harmless error review. United States v. Jackson , 636 F.3d 687, 692 (5th Cir. 2 011). “ A trial court ab u s e s i ts discretion when its r uling is based on an erroneous view of the law or a clearly erroneous assessment of the

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evidence.” Id

. ( quoting United States v
. Yanez S o s a , 513 F.3d 194, 200 (5th Cir. 2008). C onfrontation Clause challenges are reviewed d e novo , but are also s ubject to harmless error review. U n ited States v
. Tirado-Tirado , 563 F.3d 117, 1 22 (5th Cir. 2009). The district court’s legal interpretation of a safety valve provi s i o n 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
t h e pharmacies. If t his information is admissible and does n ot violate t h e Confrontation Clause, t he conviction must be up held. We hold that the
p s e u d o e p h e d r i n e p u r chase logs were business records for the pur p o s e s o f F e d e r a l Rule of Evidence 803(6); admissible under the exception to the hearsay rule via the affidavits certifying their status; and nontestimonial records t hat do not violate the Sixth Amendment. 1 A. Business Records Towns begins by challenging the district court’s a dmission o f the purchase logs as an abuse of discretion. 2 This c o ntention focuses on t h e second and fourth requirements o f the b usiness r ecords exception to the rule a gainst hearsay found in FRE 803(6). 3 F irst, Towns argues that the l ogs do not qualify as true business

1 Becaus e the d is trict court d id not err, w e d o not reach the ques tion of harm les s error.

2 It is d oubtf

ul this argum ent w as p res erved at th e d i s t r i c t c ourt. The d ef end ant objected to the record s as law enf orcem ent record s , not bus ines s record s , and on Conf rontation Claus e ground s. N o objection w as m ad e as to the record s cus tod ians ’ af f id avits

. The generic
c o m p laints regard ing ad m is s ion of the p urchas e logs d o not s eem to satis fy the F R E ’ s requirem ent of particularity in the ground s of the objection. F E D

. R. E V I D

. 103( a) ( 1) ( B)

. For p urp os es of

this analys is , how ever, w e will evaluate the argum ent on its m erits

.

3 There are f

ive requirem ents f

or the exem p tion to be in ef f ect: ( A) the record s m us t be
m ad e at or near the tim e of the event by— or f rom inf orm ation trans mitted by— s om eone w ith k now led ge of the event; ( B) they m us t be k ep t in the ord inary cours e of bus ines s ; ( C ) they m us t
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records. He contends they were prepared with a law enforcement purpose in mind and are o nly kept because of a Texas statute mandates their e xistence; the pharmacies d o not (and actually cannot) use the records for day-to-day business activities. Thus they w ere not ke p t i n t h e ordinary course o f business. A l t ernatively, e ven if the logs are “business records,” they were not pr o p e r l y admitted because of their introduction by Officer Pieprzica, n o t s o meone with actual knowledge of the records. We reject each of these arguments. To begin, the undue focus o n the law e nforcement 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 t he ordinary c o u r s e o f business. It is not uncomm o n for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. See Un i t e d S tates 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 w ere forced to maintain by law were business records since a company could lose corporate privileges for failing to maintain them properly. Id. at 1 191. To hold o therwise here would violate prece d e n t a n d move t he inquiry beyond t h e rule’s text. Fed. R

. Evid. 803(6)(B) (exempting r e cords “kept in the course of a regularly conducted activity of a business” from the rule against hearsay). The regularly conducted activity h e r e i s s e l l i n g p ills containing pseudoephedrine; the purchase

be kep t regularly; ( D ) each of thes e cond itions mus t be proven by the tes tim ony of a qualif ied
w itnes s or by a certif

ication that com p lies w ith Rule 902( 11) or ( 12) ; and ( E) neither the s ource of inf orm ation nor the circum s tances in w h i c h the record is p rep ared can ind icate a lack of trus tw orthines s
. F E D

. R. E V I D

. 803( 6)

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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 cons equence that the p urchas e logs introd uced at trial w ere only p ortions ( p rim arily thos e related to M elvin Tow ns and other cons p irators ) of a larger bank of bus ines s record s containing all the p s eud oep hed rine p urchas e l o gs f o r each s tore. A p rop onent m ay of f er sum m aries f

rom volum inous record s
. F E D

. R. E V I D

. 1006. In accord ance w ith the Rules , the com p lete record s w ere m ad e available to the d ef end ant and no objections w ere rais ed along thes e lines

.

5 The dis s ent contend s that this court’s p reced ent in M a tthew s v
. U

ni ted Sta t es , 217 F

. 2d 409 ( 5th C ir. 1954) , p revents the trans action logs f rom being true bus ines s record s
. U ni ted Sta tes v. V

eyti a -Bra v o , 603 F. 2d 1187 ( 5th Cir. 1979) , teaches that this is incorrect.
The d ocum ents held inad m is s ible in M a tthew s w ere s p ecial ep is od ic rep orts of only certain s ales wh i c h w e r e , r egard les s of s ize or f requency, legal. The IRS us ed the record s to facilitate its enf orcem ent of liquor taxes , not to detect unlaw f ul s ales activity by the k eep er of the record s
. T h e b u s ines s w hich record ed the s ale had no incentive to keep the record s w ith p recis ion and com p letenes s to s how its com p liance w ith any law s p rohibiting certain typ es of trans actions

. Id. at 1191. The record s in the p res ent cas e, unlik e M a tthew s , are s ys tem atic logs of p urchas es that m ay or may not be legal. It is im p erative that ac c u r ate record s be k ep t becaus e, unlik e s ugar, buyers are lim ited i n p s eud oep hed rine p urchas e quantities

. Als o, retailers are accountable f or thes e record s and f

ailure to com p ly w ith the regulations rend ers them s ubject to p enalties

. T E X

. H E A L T H & S A F E T Y C ODE A N N

. §§ 486. 021- 486. 033 ( Wes t 2012)

. V eyti a - Bra v o recognized that external incentives , w hich caus e bus ines s es to accurately record trans actions , are w hat m ak e the record s s uf ficiently trus tw orthy. H ere, s tores m us t
s how that they have com p lied “w ith the regulation’s requirem ent that a com p lete record of all
s ales be k ep t” and they m us t k eep record s to as sis t in res tricting thos e “w ho c[ an] not law f ully p urchas e” ad d itional ps eud oep hed rine. V eyti a - Bra v o , 603 F. 2d at 1191. The point is that the b u s i nes s record s are accep table und er the F RE as long as outs id e f actors ens ure they h a v e been sys tem atically check ed , regularly and continually m ad e, relied up on for com p liance w ith governm ent regulations , and m ad e accord ing t o t h e d u ty, und er law , to p rovid e accurate
recor d s of s uch p urchas es
. See U ni ted Sta tes v
. Wel l s , 262 F. 3d 455, 462 ( 5th C ir. 2001) ; cf

. Pa l m er v
. H

of f ma n , 318 U

. S. 109, 113, 63 S. C t. 477, 480 ( 1943) ( ap p roving, as bus ines s record s , thos e “typ ical of entries m ad e s ys tem atically or as a m atter of routine to record events
or occurrences , to ref

lect trans actions w ith others , or to p rovid e internal controls ”)

. Furtherm ore, the d is s ent overlook s the s ection of V eyti a -Bra v o s p ecif

ically d is tinguis hing mod ern record k eep ing f rom that in M

a t thew s
. It would m ak e little s ens e to t r e a t a c a s e that w as to be “read as lim ited to its f acts in their context” as ap p licable here

. V eyti a - Bra v o , 603 F. 2d at 1191. The regular and ord erly record ation of p s eud o e p hed rine p urchas es

— f

or w hich Texas has no m inim um am ount required , T E X

. H E A L T H & S A F E T Y C ODE A N N

. § 486. 014— is a f ar cry f rom the hap hazard logging of sugar s ales i n t h e 1950s

. T he guarantees of trus tw orthines s p res ent tod ay— the requirem ent of p hoto id entif ic ation f or p urchas es and the im m ed iate com p uterized logging of s ales

— rem ove t h is cas e f rom the “lim ited ” f

acts of M

a tthew s and align it w ith V eyti a - Bra v o , the ad m itted controlling authority.
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Next, t he purch a s e r e c ords were p roperly admitted as business records because of the qualifying affidavits offered t o 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).” F ed. R. Evid. 803(6)(D) (e m p h a s i s a dded). According to Rule 902(11), records of regularl y c o n d u c t e d b usiness activity—even copies—are self-authenticating if certified as accurate by the c u stodian. The p arty against whom the record is offered must also b e given notice an d o p p ortunity to challenge t he 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 s e t f o r th 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 a n u nfavorable statement about her by her sister. Specifically, the plaintiff complained that a proper foundation

w a s not laid for the a dmission of b usiness r e cords because ther e w a s n o statement in the authenticating affidavit verifying the accuracy o f a report. This
court held, however, that “Rule 803(6) does not require t e stimony that the record is accurate.” Id. at 272. It was enough t hat the affidavit of the r ecord c u stodian

6 Th a t op p ortunity w as af f ord ed the def

ens e and is w hy the claim at oral argum ent agains t the record s ’ authenticity w as new and thus untim ely.

7 The bes t exam p le of the p rop er m anner in w hich to p res ent bus ines s record s can be
s een in O’Connor’s Federa l Form s
. In this cas e, each of the p harm acies

— Walgreens , WalM art, Target, and CVS— p rovid ed af f id avits f rom their res p ective record s cus tod ians t h at
m im ic Fed eral Civil Form 8C: 3. O ’C ON N OR ’ S F E D E R A L C I V I L F OR M S 1256 ( 2012)

. I ts language track s R ule 803( 6) nearly w ord f or w ord

. Contrary to the d is s ent’s as s ertion in Footnote 7, a p arty d oes not need to exp lain the record

- k eep ing s ys tem of the organization. It is enough that the 803( 6) requirem ents are certif ied

. A p rop er f

ound ation w as laid in this cas e by includ ing things s uch as nam es , titles , record d es crip tions , s tores , etc. B ecaus e the rule does not require anything m ore f

or crim inal cas es than civ i l o nes , w e m us t accep t thes e attes tations as authoritative. We are interes ted in accuracy in a hears ay- typ e context, a concern id entical in both civil and crim inal cas es , but the Rules of Evid ence allow for s elf

- authenticating record s to be ad m itted and then w eighed by the jury.
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(who d id not m ake the report) “ contain[ed] statements that t rack[ed] the language of Rule 803(6) nearly word for word.” Id. Wilson confirms the admissibility of the r e c o r d s i n t h e p r e s e nt case against
two primary objections. First, the affidavit of a r e cord custodian is sufficient to lay the f oundation for a b usiness record. Id. There i s therefore no n eed to have individual cashiers from each of the pharmacies testify. The drug purchases of specif i c individuals o n some date years prior could never be remembered
anyway; this is the genes i s of the b usiness records exception. What is more important—and actually required—is the testimony of the custodian 8 who

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

v. A r mstrong , 619 F.3d 380, 384–85 (5th Cir. 2 01 0 )

. S e cond, any claim

c o ncerning the r ecords’ accuracy is not the province of R ule 803(6). Wilso n , 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 i dentifying information t h e purchase logs e videnced. Towns was free to make arguments at trial that he w a s not the actual purchaser of the drugs, but accuracy does not control admissibility. The p u r c h a s e l ogs comprised records of a regularly conducted activity, which were made at or near the time o f the p urchase by individuals whose job duties entailed making those records. Because this information was certified by the records custodians’ affidavits and t here was no evidence of

un t r u s tworthiness in the record-keeping procedures, the pseudoephedrine purchase logs are admissible business recor d s
. S e e U n ited S tates v
. Jones , 554 F.2d 251, 252 (5th C ir. 1 977) (per curiam) (holding that a proper foundation

was l a id for business r ecords by recitation of t he facts contained in FRE 803(6)).

8 The d is j unctive nature of FRE 803( 6) ( D ) elim inates the need to p ut each cus tod ian on the s tand to verif

y t h e res p ective bus ines s record s
. The qualif ying inf orm ation m ay com e through live tes tim ony or certif ication. Ag e n t Piep rzica’s introd uction of the cus tod ian af f id avits w as theref

ore s uf f icient.
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Once these conditions were met, admission fell w ithin the discretion o f 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 p repared in anticipation of trial. T his would transgress the mandate of Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 135 4 ( 2 0 04). The Supreme Court held there that the Sixth Amendment is v iolated when testimon i a l s t atements are i ntroduced from a witness who did not appear at trial “unless h e w as unavailable to testify, and the defendant had h ad 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 M elendez-Diaz

. T he C ou r t a c k n owledged that business records are “generally a d m i s sible absent confrontation not because they qualify under an exception to the hearsay r ules, but because—having been created for the administration of an entit y ’s affairs and not for the purpose of establishing or proving some f

act at t rial—they are not testimonial.” Melendez-Diaz , 557 U.S.
at 32 4 , 1 2 9 S. Ct. at 2 539–40. T he statements o f a lab analyst—held to be affidavits within the core class o f testimonial statements—could not be used in M e l endez-Diaz absent confrontation because they were “ prepared speci f i c a l l y f o r

use at

. . . trial.” Id. , 129 S. Ct. at 2540. In c ontrast, t he business records in this

case were not p repared solely with an eye t o w a r d t rial. Cf. Bullcoming v. New M exico , 1 3 1 S

. Ct. 2 705, 2717 ( 2011) (applying Melendez-Diaz and noting that a document created solely for an e videntiary purpose is likely t estimonial). T h e pharmacies c reated these purchase logs ex ante to comply with stat e

9 A crim inal d ef

end ant has the right “to be conf ronted w ith the w itnes s es agains t him

. ” U

. S. C ON ST

. am end

. VI.
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regulatory measur e s , n ot i n response to an active p rosecution. Additionally, requiring a driver’s l icense for purchases o f pseudoephedrine d eters crime. The
state thus has a clear interest in businesses c reating these logs that extends beyond t h eir evidentiary value. Because the purchase logs were not prepared specifically and solely for use at trial, they are not testimonial and do n ot violate the Confrontation Clause. 1 0 II. Safety Valve Reduction Towns a lso contests the validity of his m i nimum ten-year sentence, 21 U

. S

. C

. § 841(b)(1)(A)(viii), because of the district court’s d e nial of a safety valve s entence reduction un d er 18 U.S.C. § 3553(f). 1 1 The court expressed a willingness to c onsid e r h i m for a r e duction, but ultimately rejected its appl ication because Towns did not m eet the final criterion by providing all information concerning the offense of conviction. T owns c ontends t he reduction

was denied because he maintained his innocence and pleaded not guilty. This argument is incorrect. Towns’s m i stake is to c onflate an initial innocent p l e a w i th a continued claim of innocence pos t

- t r i a l : a claim the district c o urt believed was less than forthright. T ow n s r i g h t l y points out that the statute does not r e quire a

1 0 We are not the f

irs t circuit to reach this hold ing. U ni ted Sta tes v
. M

a shek , 660 F

. 3d 922 ( 8th Cir. 2010)

. The Eighth C i r c u i t h e ld that “p s eud oep hed rine logs w ere k ep t in the ord inary cours e of bus ines s p urs uant to Iow a law and are bus ines s record s und er Fed eral Rule of Evid ence 803( 6) ” that are non- tes tim onial s tatem ents “to w hich the C onf rontation Claus e d oes not ap p l y. ” Id. at 930. Though M a shek w as d ecid ed und er plain error review

— as this
cas e could be on the bus ines s record s challenge— the court d id not rely on that s tand ard in its d e c i s ion to ad m it the logs and hold the Sixth A m end m ent not violated

. In f act, the E i g h t h Circuit exp licitly “[ a] s s um [ed ] that M as hek d id not w aive his right to c o nf rontation” bef

ore s tating that “ M

el endez

- D i a z d [ id ] not provid e him any relief

. ” Id.

1 1 This s a f

e t y valve p rovis ion allow s f or a red uction in s entence if : ( 1) the d ef end ant d oes not have m ore than one crim inal his tory p oi n t ; ( 2 ) n o v iolence, cred ible threats of violence, or dangerous w eap ons were us ed in the of f ens e; ( 3) the of

fens e d id not res ult in d eath
or s erious bod ily injury to anyone; ( 4) the d ef end ant w as not a lead er of others in the of f ens e; and ( 5) the d ef

end ant p rovid es all inf orm ation and evid ence to the governm ent concerning the of f ens e by the tim e of the s entencing hearing.
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defendant to plea d g u i l t y i n order to q ualify for the safety valve. It does, however, require the d efendant, b y the time of the sentenci n g hearing, to truthfully provide all information and evidence h e has concerning the offense. 18 U.S.C. § 3553(f)(5). In th i s case, Towns admitted to purchasing pseudoephedrine ( an admission capable of u pholding, on its own, the charge of

c o n s p i r a c y t o p r o d u c e m e t h a m p h e t a m ine) and to using m ethamphetamine in th e past. H e 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 t h e f

act that he t ook a p olygraph exam to “ prove” t h at he had no further k nowledge of t he 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 n e v e r a sked a nd answered. Towns had the right t o plead not guilty a nd t h e b u r d e n rested on the government to prove that he was guilty. Aft e r h i s c o nviction, t he burden shifted to Towns to provide any and all information related to the crime of convi c t i o n
. The district court determines, subject to clear error review, whether the d efendant has truthfully provided all such information before it employs the safety v alve. 1 2 O nce the court m a d e a negative finding o n t his factor, it had no choice legally to invoke t he safety valve provision. And we certainly cannot say the d istrict court’s suspicion of Towns’s veracity was, factually speaking, a clear error.

1 2 The d is trict court’s d eterm ination w as mad e, in large p art, on Tow ns ’ s tatem ent at the beginning of his saf ety valve hearing: “Well, it’s jus t lik e I s aid in the trial, I d id n’t f urnis h M i k e Sand ers w ith all thes e p ills and m anuf acture d rugs w ith him , and you k now , I d o n ’ t k now how els e to p ut it, other than w hat I s aid at the trial. And there’s really nothing els e I have to s ay about that, s ir. ” The court did not believe Tow ns and thus d enied the s af ety valve.
11 Case: 11-50948 Document: 00512225461 Page: 11 Date Filed: 04/30/2013N o. 11-50948 CONCLUSION Because the district court d i d n o t err in a dmitting the pseudoephedrine purchase l ogs or in denying Towns relief under the safety v alve s entence reduction, we AFFIRM

.

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GRAVES, Circuit Judge, dissenting. Because the district court erred in admitting t h e 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 HISTORY 1 James Pieprzica, an officer with the Texas Department of Public Safety,
tes t i f ied that law enforcement obtained information in 2009 regarding i n d i v i d u als who were visiting multiple pharmacies t o obtain products cont a i n i n g pseudoephedrine i n excess o f the statutorily allowed amount and that the pseudoephedrine was being used to manufacture methamphetamine (meth). Pieprzica compiled a list of individuals and b egan submitting requests to various pharmacies t o obtain l ists of their purchases of pseudoephedrine. Upon receipt of those l ists, some o f which were in electronic format s ent t h r o u g h email and

some of which were hard copies that were mail e d , P i e przica and an analyst combined the information into a spreadsheet. That investigation led t o the arrest of Michael Sanders 2 and more than a d o z e n o ther individuals in October of 2009. Sanders was c harged a long w i t h Timothy Wilson, Robbie H eldarsen and Beth Grier, who is the sister of the appellant, Melvin Dav i d T o w n s , Jr. 3 Sanders pleaded guilty and, i n exchange for a recommendation o f a reduced sentence, agreed to provide t he G overnment with additio n a l information. During Sanders’ initial meeting w ith investigators in December 2009, he i mplicated several other p eople, but not the appellant, Towns. During a second meeting in February 2 0 1 0 , after being told that

1 A recitation of the f

acts is neces sary to d em ons trate the lack of other evid ence and the
s ignif icance of the trans action logs to the jury’s verd ict.

2 Sand ers , age 51, tes tif ied that he had us ed m eth for ap p roxim ately thirty years and
w as hop ing f

or a red uction of his pos s ible tw enty year s entence. H e als o tes tif ied that his d aily
us e had cos t him his j ob, his w if e and cus tod y of his d aughter.

3 Tow ns tes tif

ied that he and G rier w ere not particularly clos e.

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investigators knew he was not telling the truth a nd being asked a bout Towns, S a n d e rs implicated T owns. Sanders testified that he “lied” d uring the firs t meeting. During Towns’ trial in 2011, Sanders testif i e d t h a t 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.” S anders also testified that more re c e n t l y h e had manufactured o r “ cooked” meth in a tool shed o n a ranch owned by T owns and Towns’ sister, Grier, near Gon z a l e s
. S anders said he was on the ranch property at different times both “with and without” Towns’ permission. Towns was living in the t o wn of Navasota a t the time. Grier lived in the old family home s ome miles from the ranch house, which Town s had rented to a tenant for several years. Sanders lived with Grier. The ranch had

a gate w ith l ocks and was accessible b y numerous people, i n c luding people who rented or resided there, hunters and others. Sanders s aid t h at he never saw Towns cook meth, but that Towns had watched him cook meth on occasion and “ s o metimes [ Towns] would like d raw the

a nhydrous [ammonia] off f or me and, you know, just l ittle stuff.” On th o s e occasions, Sanders said he s hared the meth with Towns. The time period o ver which this manufacturing occurred is unclear based on Sanders’ testimony, but it a ppears t h a t t he m anufacturing occurred for three or four years until about six months before Sanders’ arrest in O ctober 2 009 - o r a pproximately April 2009. Sanders testified that during t his period he and Towns’ a lso manufactured meth on the property of Don Cohorst in Washington County. Further, Sanders testified that, in addition to v arious other people, he and Towns both provided pseudoephedrine for manufacturing meth and o n occasion traveled to purchase pseudoephe d r i n e a t various stores in the Houston and Conroe areas. With regard to the pseudoephedrine l ogs, S anders was asked the following:

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Q. A l l right. During your prosecution, did you h ave t h e opportunity to look at some pseudo logs – A. Yes, sir. Q. – detailing t he pseudoephedrine, t he t i mes you purchased pseudoephedrine tablets? A. Yes, sir. Q. I believe those l ogs pertain to C VS, Wal-Mart, Walgreens, possibly Target? A. Uh-huh. Q. Did you and M r. Towns ever purchase pseudoephedrine at any other retailers, such as HEB or – A. Well, y es. HEB. Very seldom, b ut every now and then, yes, HEB.
Sanders was not asked about specific dates, times, locations o r whether Towns

was with him a t t h ose specific times. Likewise, Sanders offered no t estimony regarding specific trips to purchase pseudoephedrine with Towns. Sanders also i mplicated Joe y West, who was arrested and charged for conspiracy t o manufacture meth along with J osh Harkey an d T ony Harkey. West, a convicted drug offend e r w h o was on probation, a lso cooperated with officials in exchange f or a r e c o m m e n d a tion 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 “ g o o d f r i e nd,” 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 t he property when Towns w as t here, but that he had seen Towns at the ranch p roperty when Sanders was cooking meth. W est s a id that he never saw T o w n s manufacture any meth. West also testified as follows: Q. All right. Did y o u ever do a ny methamphetamine business with Mr. Towns? A. No transactions. Q. Never bartered – A. No, sir. Q. – or sold him any methamphetamine? A. No, sir.

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Q. Did you ever get any pills from him? A. No, sir. Q. Did M r. Towns ever d o a n y thing to exclude y o u f rom t h e property? A. No, sir. Q. Did you ever get any pills from Mr. Towns? A. At the e n d of – right whenever – I think it w as a r o und Christmastime, before I got arrested, yes, sir.

. . . Q. Tell the jury about that. A. He brought me s o me pills t o 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.
Wes t w a s arrested in April of 2010 in Harris County. He testified that, although he still resided i n Gonzalez, he h a d g o n e to Houston after the initial round of arrests i n Gonzales County in October of 2009 b ecause he knew there

was a warrant for his arrest. West’s claim of returning to the same location in Gonzales County to make additional m eth i n Decemb e r o f 2009 with p ills obtained from Towns contradicts West’s other testimony t hat he never got p ills from Towns and that he knew about the arrests i n October of 2009 a nd went to Houston. Towns w as indicted on July 21, 2010, and charged in a superseding i n d i ctment on April 6, 2011, for one count of c onspiracy to manufacture 500
grams o r more of m e t h a m p hetamine and to possess and distribute pseudoephedrine knowing that it would be u s e d t o manufacture methamphetamine in violation of 21 U.S.C. §§ 8 41(a)(1), (b)(1)(A), (c)(1), (c)(2), 846. T owns w as f

urther charged with purchasing in e x c e s s o f 1 0 0 grams of

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pseudoephedrine during the p eriod o f the conspiracy, from January of 2008 to March of 2010, to be used by him and others to manufacture meth. A t t r i al, the Government offered p seudoephedrine logs of variou s r e t a i l e r s
. Towns filed a motion in limine t o e x c l u d e the records because they were not b u s i n ess records under Federal Rule of Evidence 803(6) s ince t hey were calculated for use in court by law enforcement a nd not in the conduct of business functions. Further, To w ns argued t hat even if the r ecords 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 t rial a nd admitted to purchasing pseudoephedrine that he took to s tay awake in his work as a truck d river. Towns denied bei ng involved in any drug activity w i t h S a n d e rs, West or Grier. Towns a lso denied the accuracy o f the pseudoephedrine logs and d e n ied p urchasing amounts in excess of the statutorily allowed limit of n ine grams p er 30 days. During cross examination, t he Government asked Towns to recite amounts and information contained on the logs, b ut did not ask about a ny specific store visits or whether he purchased pseudoephedrine with Sanders. Towns was subsequently convicted. In his motion f o r new trial, Towns asserted that the r ecords were improperly admitted as business records and violated his right to confront the wi t nesses against him. The district court denied the motion f

or new trial. Thereafter, the district found that, because Towns continued to assert his innocence, he was i neligible for a s afety valve and the court was required to sentence him to a mandatory sentence of 120 months. STANDARD OF REVIEW Thi s c ourt reviews a district court’s evidentiary rulings for a buse of discretion, subject to harmless error review. United States v. Jackson , 636 F.3d 687, 692 (5th Cir. 2 011). “ A trial court abuses its discretion w hen its r u l i n g is

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based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” Id

. Confrontation Clause c hallenges are reviewed de novo, but are subject to h armless e r ror review. United S t ates v. Tirado-Tirado , 563 F.3d 117, 122 (5th Cir. 2009). The district c ourt’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 , 1 45 (5th Cir. 1 996). The district court’s legal interpretation of a safety valve provision is reviewed de novo. Id

. DISCUSSION I . I napplicability of business records exception The pseudoephedrine l ogs were e ntered into e vidence under the business records e xception to the h earsay rule. Fed. R

. E v i d

. 8 0 3 ( 6). The l ogs are statutorily required to be kept under 21 U.S.C. § 8 30 and Tex a s Health and Safety Code § 486.014. Rule 803(6) c reates an exception to the hearsay rule for r ecords kept in the ordinary course of a regula r l y c o n d u c t e d b u s i ness a ctivity. The exception applies if: (A) the r ecord was made a t or near the time b y – or from information transmitted by – someone with knowledge; (B) the record was kept in the course o f a regularly conducted activity of a business, organization, occupation, o r calling, whether or not for profit; (C) making t he record was a regular practice of that activity; (D) all these conditions are shown by the testimony o f t h e custodian or another qual i f i e d w itness, or by a certification that complies with Rule 902(11) or ( 1 2 ) or with a statute permitting certification; and (E ) n e ither the source o f information nor the m ethod 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, t he supplier of the information does not a ct in the regular

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course, an essential link is broken; the assurance of accuracy does not extend to t he information itself, and the fact that it may be r ecorded with scrupulou s

a c c u r a c y i s of no avail." Fed. R

. Evid. 803(6), n. to para. (6). Despite t h e majority's statements t hat "any claim concerning the records' accuracy is not the province of R ule 803(6)" and that "accuracy does n o t control a dmissibility." Further, an "illustration is t he police report incorporating i n f ormation obtained from a b ystander: the officer qualifie s a s a c t i n g in the regular course but the informant does not." Id. S ee also Johnson v
. Lutz , 253 N.Y. 124, 1 70 N.E. 517 (1930). Rule 902(11) provides that: The original o r a copy of a domestic record that meets t h e r equirements of Rule 803(6)(A)-(C), as shown by a certificati o n o f the custodian o r another qualified per s o n that c o mplies with a federal statute or a rule prescribed b y the Supre m e Court. Before the trial or hearing, the proponent must give an adverse p arty reasonable written notice of the intent to offer t he record--and must make t he record and certification available for i nspection--so that the party has a fair opportunity to challenge them. Fed. R. Evid. 902(11). T h is Court h as not decided whether pseudoephedrine logs constit u t e 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 t he state and fede r al statutes i ndicate that the requirements are based on law enforcement purposes. As discussed herein, the majority

4 In the unp ublis hed op inion of U ni ted Sta tes v
. F

ox , 487 Fed

. A p p ’x 165 ( 5th Cir. 2012) , this C ourt p er curiam af f irm ed a p s eud oep hed r i n e c onviction w here logs w ere ad m itted at trial. This Court f

ound that “p s eud oep hed rine logs bearing the s ignature ‘Tina Fox’ f or each p os ses s ion conviction as w ell as the tes tim onies of Agent Rod ney Tand y , hand w riting exp ert K enneth Craw f

ord , and co- cons pirators ” s uf fi c i e n t to s up p ort the convictions of Fox. Id

. at 166, 167. This Court f urther s aid , “[ e] ven if Fox is correct that her p os s es s ion conviction on Count 47 w as s up p orted in part by a p harm acy log that w as not p rop erly v erif ied , the jury w as f ree to rely up on the log in ques tion becaus e, as Fox conced es , s he f ailed to ob j e c t t o i t s ad m is s ion into evid ence. ”
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erroneously finds that the reason the records are kept or t heir 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), f o r t h e holding that firearms records that gun s hops were r equired to maintain were b usiness records since a company c ould lose corporate p rivileges for f ailing to m aintain them. 5 T he majority then c o n c l u des that the pseudoephedrine logs are business records beca u s e t h e y are kept during the

course o f t he r egularly conducted activity of “selling p i lls containing pseudoephedrine.” I disa g r e e w ith the majority’s finding that the l ogs are business records. However, I agree that Veytia-Bravo is controlling authority. In Veytia-Bravo , Judge Charles Clark, w r iting for the panel, h eld that the district court did not err in admitting records o f firearms and a mmunitions sales

as b usiness records. After acknowledging that t he “primary emphasis of Rule 803(6) i s on the reli a b i l i t y o r trustworthiness o f the records sought to be introduced, ” t h e C o urt then engaged in a thorough a nalysis of t he applicable authority and distinguished p rior c a s e s finding records inadmissible. 6 Specifically, this Court f ound that Globe, the firearms dealer, “necessarily relied

u p o n t h e s e records in the c onduct of i ts o wn affairs, both to comply with t he regulation’s requirement that a complete record of all sales be kept and to show that i t had not violated 18 U.S.C. § 9 22 by k n o wingly selling firearms or ammunition to one who could not lawfully purchase them.” Veytia-Bravo , 603

5 I note that the “corp orate p rivilege” language actually com es f rom the d is cus s ion of U ni ted Sta tes v. Roga no , 520 F

. 2d 1191 ( 5th Cir. 1975)

. V eyti a -Bra v o , 603 F. 2d at 1191.

6 S e e P a l m e r v. H

of f m a n , 318 U

. S. 109, 63 S. Ct. 477, 87 L. Ed

. 645 (1943) ( Accid en t rep ort com p leted by railroad em p loyee not ad m i s s i ble und er the bus ines s record s excep tion t o t h e h e a r s ay rule becaus e it was p rep ared p rim arily f or us e in litigation and not in t h e cond uct of bus ines s
. ) ; and M a tthew s v
. U

ni ted Sta tes , 217 F. 2d 409 ( 5th Cir. 1954) ( s tatutorily required “s ugar rep orts ” to d etect s ales of s ubs tances us ed i n the m anuf acture of d is tilled
s p irits w ere inad mis s ible as l a c k ing neces s ary trus tw orthines s and becaus e they w ere not
us ed as an integral part of the bus ines s in its ow n interes t. )
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F.2d at 1191. T h is Court also noted that in Matthews the “business which recorded the sale had no i ncentive to keep the r ecords w ith p r ecision and completeness to s how its compliance with any laws prohibiting c ertain types of transactions.” I

d

. In Matthews , this Court established the following standard: So long as the a ccuracy a n d r eliability o f 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 r ecords, 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, t he rationale underlying this exception to t he rule against hearsay is that the inherent reliability o f business records is “supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience o f business in relying upon them, o r by a duty to make an accu r a te record as part of a c ontinuing job or occupation.” Fed.R.Evid. 803(6), Notes of Advisory C omm ittee on Proposed Rules. We have expressly
r e c o gnized t hat t h e “‘primary emphasis o f rule 803(6) is o n t h e reliability or trustworthine s s of the records sought to be introduced.’” U

nite d S t a tes v. Duncan , 919 F.2d 981, 986 (5th

7 This cas e is als o f

actually s im ilar to M

a t thew s in that only purchas es of s ugar in large
am ounts w ere required to be rep orted

. Here, p harm acies are only required to log p urchas es of p ack ages containing i n e x ces s of 60 m illigram s of p s eud oep hed rine, contrary to the
m ajority’s characterization of thes e as “s ys tem atic logs ” of all p urchas es
. S ee 21 U

. S. C. § 830( e) ( 1) ( A) (iii)

. Further, the m ajority’s s tatem ent that thes e purchas es “m ay or m ay not be legal” is m is lead ing in that retailers are s tatutorily p rohibited f rom s elling p seud oep hed rine in illegal am ounts in any s ingle trans action and there is abs olutely no ind ication that thes e record s are us ed “to d etect unlaw f ul s ales activity by the k eep er of the record s. ” Were that the
cas e, then, bas ed on the m ajority’s hold ing here, the involved p harm acies clearly engaged in unlaw ful s ales activity. To the contrary, a retailer is not m aintaining the logs in an attem pt to p rove it d id not s ell p s eud oep hed rine to a p urchas er f orbid d en by law

. As evid enced by this
cas e, a retailer is not even m aintaining the logs to ens ure that it d oes not s ell p seud oep hed rine to som eone who has alread y p urchas ed a d aily or m onthly allotm ent. R ather, a retailer is
m erely com p lying w ith the requirem ent of k eep ing the record s, w ithout analyzing or relying
on them and w ith no incentive to ens ure accuracy, f or the G ov e r n m ent to pos s ibly later us e f or s om e law enf

orcem ent p urp os e. 21 Case: 11-50948 Document: 00512225461 Page: 21 Date Filed: 04/30/2013N o. 11-50948

Cir.1990)(quoting United S tates v. Veytia-Bravo , 603 F .2d 1 187, 1189 (5th Cir.1979)).
United States v. Wells , 262 F.3d 455, 462 (5th Cir. 2001). Further, t o reiterate the comment t o Rule 8 03(6) quoted p re v i o usly herein, if the supplier of information does not act in the r egular c o urse of b usiness, there is n o assurance of trustworthiness. Fed. R. Evid. 8 03(6), n
. to para. (6). See also Broadcast Music, I

nc., v. Xanthas, Inc. , 8 55 F.2d 233, 238 (5th Cir. 1988); Johnson v. Lutz , 253 N.Y. 124, 170 N.E. 517 (1930). T h is is consistent with other a uthority. For example, the T enth Circuit has said: “The essential component of the business records exception is that
e a c h a c t or in the c hain of information is under a business duty or compulsion to provide accurate information.” U n i t e d States v. McIntyre , 997 F.2d 687, 699 (10th Cir.1993). “If any person i n t h e process is not a cting in the regular course of busines s , t h e n an essential link in the trustworthiness chain fails....” 2 McCormick o n 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 l ogs here

are not busi n e s s records. There is no dispute that the pharmacies did not “necessarily rely” upon these records in the conduct of their own a ffairs. To the contrary, the information in the logs is confidential and subject t o non-disclosure with limited exceptions that do not include day-to-day business activities. See 21 U.S.C. § 8 30(c). See also Tex. Health & Safety C o d e § 4 8 6

. 0 146. As this Court’s finding i n Veytia-Bravo mandates, mere compliance with the requirement to keep the logs is n ot sufficient to establish tha t t h e p h a rmacies “necessarily relied upon these records in the conduct of its own a ffairs.” Veytia22 Case: 11-50948 Document: 00512225461 Page: 22 Date Filed: 04/30/2013N o. 11-50948

Bravo , 603 F.2d at 1191. 8 Unlike in V e ytia-Bravo , there is no indication that the pharmacies had any “incen t ive t o keep t he r ecords with p recision and completeness to s how its compliance with any laws prohibiting c ertain types of transactions.” I

d

. 9 There is n o evidence that the accuracy and r e liability of the pseudoephedrine logs “ have been tested by the fact that a [pharmacy] carries on its own affairs from day to day i n reliance u pon such records.” Matthews , 217 F.2d at 413-414. Where, a s here, one party seeks to prove a substantive fact by the introduction o f evidence that is compiled, not in con n e ction 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 m ajority m is ap prehend s the “s ection of V eyti a - B r a v o s p ecif

ically d is tinguis hing m od ern record k eep ing f rom that in Ma tthew s
. ” What this Court actually s aid
w as : To the extent that M a tthew s m ight be read as conclud ing that no record required to be k ep t by law could s atis fy the trus tw orthines s requirem ent of the bus ines s record s excep tion, it w ould now conf lict w ith the rea l i t i es of tod ay's bus ines s world in w hich many, if not m os t, of the record s of every bus ines s are required to be k ep t by s om e governm ent ed ict.
V eyti a - Bra v o , 603 F. 2d at 1191. This Court s aid nothing about “hap hazard logging of s ugar s ales in the 1950s ” but w as m erely s aying that there are record s , l i k e the f irearm s record s , that are required to be k ep t by law w hich m ay s atis f y the trus tw orthines s requirem ent of the bus ines s record s excep tion, unlik e the logs here. Further, the m ajority’s s tatem ent regard ing the “im m ed iate com p uterized logging of s ales ” is uns up ported by any authority or evid ence.

9 The m ajority is correct that the Texas D ep artm ent of S t a t e H ealth Services “m ay im p os e an ad m inis trative p enalty on a p e r s o n w ho violates this chap ter. ” T ex. H ealth & Saf ety Cod e § 486. 021. H ow ever, the Texas s tatute als o p rovid es that a “p ers on is not liable f or an act d one or om is s ion m ad e in com p liance w ith the requirem ents of Section 486. 014 or 486. 0141. ” T ex. H ealth & Saf ety Cod e § 486. 0145. N otably, Section 4 8 6 .014 is the s ection p rovid ing that a retailer m us t require a p urchas er to d is p lay id entif ication, either a d river’s licens e or som e other form of id entif ication containing a p hotograp h and ind icating the p ers on is over age s ixteen ( w e d o not know the f orm of id entif

ication us ed or required here) , s ign f or the p urchas e ( not p rovid ed on all of the lo gs here nor id entif ied as Tow ns ’ s ignature on the others ) , and the inf

orm ation required to be record ed by the retailer, i. e. , only the nam e, d ate, item and num ber of gram s purchas ed

. Tex. Hea l t h & S a f ety Cod e § 486. 014. Thus , any liability f

or an act or om is s ion in determ ining a p urchas er’s id entity or in accurately record ing the trans action is s p ecif ically lim ited

. See Tex. Health & Saf ety Cod e § 486. 0145. 23 Case: 11-50948 Document: 00512225461 Page: 23 Date Filed: 04/30/2013N o. 11-50948

For these reasons, the pseudoephed rine logs a re not business records
p u r s uant to Rule 803(6). The evidence in t his c ase included o nly the pseudoephedrine transaction l ogs a nd t he testimony of two alleged coconspirators, a dmitted “cooks” and convicted drug offenders, offered in exchange for a reduction in sentence. Therefore, it is n ot evident that t he transaction logs did not c o ntribute 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 a uthentication and the Confrontation Clause would be moot. However, because the majority holds otherwise, I will address these arguments in the alternative. I I . Authentication The majority relies on Wilson v
. Zapata Off-Shore C o ., 939 F.2d 260 (5th Cir. 1 9 9 1 ) , t o find that the logs were p roperly admitted as b usiness records because o f the qualifying affidavits offered t o the c ourt. In Wilson , the challenge

was that the proper foundation was not laid for the a dmission o f h o spital records which included a s t a tement by W ilson’s sister to a social w orker. Id

. a t 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 r egarding the accuracy of the sister’s statement in t he context of authentication. This Court found in Wilson that a proper foundation was laid for the h ospital records and that the person attesting to the authenticity did not ha v e t o “ p e r sonally attest to the accuracy of the information contained in the records.” Id . at 272. This is b ecause there

was no d ispute that the hospital records were indeed b usiness records and that they had already cleared the first hurdle establishing t he trustworthiness of the records. In other words, as discussed a bove, the accuracy and reliability of the hospital records had already been tested by the fact that the hospital carries on its o wn affairs from day to day in reliance upon t h o s e r e c o r d s. Here, the

24 Case: 11-50948 Document: 00512225461 Page: 24 Date Filed: 04/30/2013N o. 11-50948

pharmacy logs d o not clear t hat first h urdle and, even if they did, they were not properly authenticated. As set out above, Rule 803(6) requires that the c onditions “are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11).” F e d. R

. Evi d

. 803(6)(D). The majority finds that the certificates provided with the logs are sufficient. I disagree. This Court has said that “a qualified w i t n e s s i s one who can e xplain the record k eeping syste m o f t h e organization and vouch that the requirements of the business records exception are met.” United States v. Ned , 637 F.3d 5 62, 570 (5th Cir. 2011). See also U n i t e d S t a tes v. Brown , 553 F.3d 768, 7 92 (5th Cir. 2008) (Affirmed the i nadmissibility of pharmacy records for failur e t o o f f e r a qualified witness to lay a foundation or timely affidavit.). No such witness t estified h ere. Only Officer P ieprzica, who compiled the log information into s preadsheets, testified regardi n g the logs. Pieprzica was unable to explain the system of organization or vouch that the r e q u i r e m e nts

were met. Pieprzic a specifically testified that each pharmacy had a different
way of keeping the records, that the records w e re submitted in different formats, that he d id not talk to or know the identit y o f t h e clerks who recorded the
tr a n s a c t ions, and no surveillance recordings of any transactions were e ver requested during the investigation. While the pharmacies did provide g eneric certificat i ons from their respective corpo r a t e o f fices f or the records, those certifications neither explained the record-keeping system of the o rganizat i o n n o r vouched t h at the requirements of the business records exceptions were met. 1 0

1 0 The m ajority’s note that thes e certif ications mim ic an ap p licable fed eral f orm nearly
w ord f or w ord d oes not es tablis h f ound ation. T h e m a j o rity is correct that the rule d oes not require anything more f or crim inal cas es than f or civil cas es
. H ow ever, the rule als o d oes not require anything les s f or authenticati o n v i a c ertif icate than it d oes for authentication via a qualif ied w itnes s
. Thus , w hether by certif icate or by qualif

ied w itnes s , a p arty m us t exp lain the record

- k eep ing s ys tem of the organization and vouch that the requirem ents of the bus ines s 25 Case: 11-50948 Document: 00512225461 Page: 25 Date Filed: 04/30/2013N o. 11-50948

Further, i t is i m p o s s i b l e t o determine the application of subsection (E) that

“ n e i t h er t he source of information nor the method or circumstances of preparation indicate a lack of trustworthiness” as neither the certifications nor Pieprzica s poke to t he source of the i nformation or the method of preparation. Fed. R. Evid. 803(6)(E). P i e p rzica testified that he provided all of Towns’ informati o n t o t h e v a r i o u s pharmacies when he i nquired about any pseudoephedrine purchases. Without the proper foundation, w e ar e u n a b le t o determine whether relevant information in t he logs was obtained f rom Towns, from his driver’s l icense or some other form of identification, from som e o n e p u r p o r t i n g t o be Towns, or f rom law enforcement. And c ontrary to the majority’s state m e nts regarding Town’s driver’s license being recorded and his s ignature being obtained on s ome of the log s , t h e r e 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 w ere n ot p roperly authenticated. I I I

. Confrontation Clause Notwithstanding that t he 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, t he a ccused shall enjoy the right

... to be confronted with the witnesses against him.'" C rawford v. Washington , 541 U.S. 36, 42, 124 S.Ct. 1354, 1 58 L.Ed.2d 177 (2004). See U.S. Const. amend. VI. T he Supreme Court further stated t he typic a l d e f inition of "testimony" as a "solemn declaration or affirmation m a d e f

or the purpose of e stablishing o r proving some fact." Crawford , 541 U.S. 51.

record s excep tion are m et. 26 Case: 11-50948 Document: 00512225461 Page: 26 Date Filed: 04/30/2013N o. 11-50948

This Court has acknowledged that, while business records are gener ally
not t estimonial in nature after Crawford v. Washington 1 1 , there are exceptions. In Melendez-Diaz , the Supreme Court held that the Confrontation Clause applied to testimonial b usiness records. Melendez-Diaz v. Mas s a c h u s e tts , 557 U.S. 305, 321-324, 1 29 S.Ct. 2527, 1 7 4 L.Ed.2d 314 (2009). The Court specifically said: Business a nd p u b l ic records are generally admissible a bsent confrontation not because they qualify u n d e r a n exception to t h e hearsay rules, but becaus e – having been created for t h e administration of an e ntity’s affairs and n o t f o r t he purpose of establishing or proving some fact at trial – t hey are not testimonial.
Id. at 324. This C ourt has also recognized that business r ecords are not per se nontestimonial. See Jackson , 636 F.3d at 692. Here, the logs were created for l aw enforcement purposes and were used
to establish or prove some fact at trial - the fact t h a t T o w n s and others purchased products containing pseudoephedrine. The logs w ere not created for the “ administration o f [the pharmacies’] affairs.” Melendez-Diaz v. M a ssachusetts , 557 U.S. 305, 324, 129 S.Ct. 2527, 174 L.Ed. 2d 314 ( 2 0 0 9 )

. Therefore, the l ogs woul d b e t estimonial and i n violation of t he Confrontation Clause. 1 2 Further, the E ighth Circuit case cited by t he majority in finding that Towns’ Sixth Amendment rights were not violated is distinguishable.

1 1 541 U

. S. 36, 68, 124 S. Ct. 1354, 158 L

. Ed

. 2d 177 ( 2004)

.

1 2 I note that the m ajority als o f ind s , w ithout citation to authority, that the logs d id not
v i o l a t e t he right of conf rontation becaus e “requiring a d river’s licens e f or p urchas es of p s eud oep hed rine deters crim e” and the “s tate thus has a clear interes t in bus ines s es creating thes e logs that extend s beyond their evid entiary value. ” H ow ever, again, as d i s cus s ed p revious ly herein, w e have no evid ence that a d river’s licens e w as required , and a s tate’s interes t in the creation of record s to d eter crim e d oes not allow a violation of the Conf rontation Claus e. The s tate mos t certainly w ould have an interes t in a crim e lab analys t creating record s to d eter crim e, but the U nited Stat e s Sup rem e Court has f ound thos e record s to be tes tim onial. M

el endez -D i a z , 557 U

. S. 305. 27 Case: 11-50948 Document: 00512225461 Page: 27 Date Filed: 04/30/2013N o. 11-50948

The Eighth Circuit found in U nited States v. Mashek , 606 F.3d 922, 9 30 (8th Cir. 2 010), that t h e admission of pseudoephedrine logs did not violate Mashek’s’s constitutional confrontation r i ghts. However, Mashek was decided under plain error review and does not fully address the applicable issues. In M a s h e k , a uthorities obtained l ogbooks from several pharmacies after receiving information f rom multiple s o urces that Mashek was manufacturing meth and regularly carried firearms. Mashek , 6 06 at 926. Authorities obtained the cooperation of a f

requent v isitor to Mashek’s home and arranged a c o ntrolled delivery of pseudoephedrine and l i thium batteries. This transaction was recorded and Mashek s a i d h e would have meth later, but he needed to get

a n h y drous ammonia and camping fuel. Based o n information that was recorded , officers believed that Mashek planned to steal anhyd r o u s ammonia from a nearby farm a nd manufacture meth l a ter that day. Auth o rities obtained a search w a r r a n t and d iscovered a large amount of evidence of meth manufacturin g , i n c l u d i n g p s e u d o e p h e d r i n e p i l ls, e mpty blister packs, c h emicals, equipment, etc., as well as firearms. Id . at 927. Mashek filed a motion to suppress the evidence ac q u i red during the search and also to suppress the pseudoephedrine logs. He cited Federal Rules of Evidence 401, 403 and 801. T h e d i s t r ict court denied the motion. The court further said t hat it would allow the e vidence with the proper foundati o n and that Mashek c ould r equire that the government p r oduce a w itness to establish the foundation n ecessary to overcome a hearsay objection to the logs. I d. at 930. At trial, Mashek did not o bject to foundation, thus waiving hi s r ight to a live witness. Therefore, on appeal, the Eighth Circuit reviewed only on plain error. The court said: Assuming that Mashek did not waive h i s right to confrontation, Melendez-Diaz does not provide him any r elief. The pseudoephedrine l ogs w ere kept in the o rdinary course of business pursuant to Iowa law and are business records under Federal Rule

28 Case: 11-50948 Document: 00512225461 Page: 28 Date Filed: 04/30/2013N o. 11-50948

of Evidence 803(6). B usin e s s r e c ords u nder Rule 803(6) a re nontestimonial statements

. . . to which the Confrontation Clause d o es not apply. T hus, the a dmission of the pseudoephedrine logs did n ot 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) a nd 846, and possession of a f i r e a rm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). R u l e 8 03 requires that the custodian of t h e business records or anot h e r qualified witness must lay a foundation before r ecords are admitted. Mashek did not object to foundation, thus he waived a ny argument regarding whether the logs were business records. The logs in M ashek were not used to establish

a crime r elated t o the purch a s e , but merely corroborated the crime t o which Mashek agreed on the recording of the controlled delivery and t h e evidence obtained pursuant to the search. He was convicted of a ttempt t o manufacture. Here, Towns objected repeatedly to the foundation and the r e cords were testimonial. I V. Safety Valve The statutor y m i n i m um sentence in this c ase is ten years. 2 1 U.S.C. § 841(b) ( v iii). H owever, 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 y o u can go t o trial, you are found g uilty, and then later try t o g e t s a f e t y valve. But to d o that, y ou can’t during the safety valve hearing plead continued innocence and n ot say that y o u know something about t h e crime that was committed. And that is what your client did in the transcript, as I read it. He continues t o maintain he is innocent of t he charges in this case.
There is no requirement that Towns m ust admit guilt under the statute, which says, in relevant part:

29 Case: 11-50948 Document: 00512225461 Page: 29 Date Filed: 04/30/2013N o. 11-50948

[N]ot l a t e r than the time of the sentencing hearing, the defendant has truthfully provided to the Government all i n f o rmation and evidence the defendant has concerning the offense or offenses that
were p art o f the s ame c ourse of conduct or of a c o mmon scheme or plan, but the fact that the defendant has no r e levant or useful other information to p rovide or that the Government is already aware of the information s h all n o t preclude a determination by t he court that the defendant has complied with this requirement. 18 U.S.C. § 3553(f). Towns a dmitted that he had purchased pseudoephedrine. 1 3 Towns admitted that he had u sed meth i n the past. Towns a dmitted 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 g uilt, the district court erred by n ot gra n t ing the safety valve r elief and I would also reverse on this issue. CONCLUSION B e c ause the district court erred in admitting the pseudoephedrine transaction logs and i n refusing to consider a safety valve s entence reduction, I would reverse and remand. Thus, I respectfully dissent.

1 3 N otably, the G overnm ent conced es in its brief that p urchas ing multip le p ack ages of p s eud oep hed rine f

rom d if f erent s tores is not illegal unles s it exceed s the s tatutorily allow ed
am ounts

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