United States Court of Appeals

for the Fifth Circuit

No. 21-50189

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Nathaniel Ausbie; Francisco Sandoval, 

Defendants—Appellants,

consolidated with

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No. 21-50190

_____________

United States of America,

Plaintiff—Appellee,

versus

Nathaniel Ausbie,

Defendant— Appellant.

United States Court of Appeals

Fifth Circuit

FILED

March 21, 2022

Lyle W. Cayce

Clerk

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Appeals from the United States District Court

for the Western District of Texas

USDC No. 7:20-CR-245-1

USDC No. 7:16-CR-170-1

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

Nathaniel Ausbie and Francisco Sandoval appeal from their jury 

convictions for conspiracy to possess with intent to distribute 50 grams or 

more of methamphetamine. Ausbie also challenges his conviction for 

possession of a firearm in furtherance of a drug trafficking crime. At the time 

of their arrest, Ausbie and Sandoval were inside of a vehicle with 

approximately 282.2 grams of methamphetamine, three firearms, a digital 

scale, and a substantial amount of cash. Rebeca Carrillo, who was a named 

co-conspirator and who had been driving that vehicle shortly before the 

arrest, testified for the prosecution at Ausbie and Sandoval’s joint trial.

On appeal, Ausbie argues that the evidence presented at trial was 

insufficient to support the jury’s verdict as to the conspiracy count because 

it established only that there was a buyer-seller relationship between him, 

Sandoval, and Carrillo, and because the prosecution failed to prove that the 

charged conspiracy involved at least 50 grams of methamphetamine. 

Because he preserved these sufficiency challenges at trial, we review them de 

novo. See United States v. Ganji, 880 F.3d 760, 767 (5th Cir. 2018). “[A] 

buyer-seller relationship, without more, will not prove a conspiracy” because 

such a showing fails to show that “the participants knowingly joined an 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

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agreement to distribute drugs in violation of the law.” United States v.

Maseratti, 1 F.3d 330, 336 (5th Cir. 1993). However, we have held that 

“sizeable amounts of cash, large quantities of drugs, and the presence of 

weapons have all served as proof for drug conspiracy charges.” United States 

v. Escajeda, 8 F.4th 423, 427 (5th Cir. 2021). All of those types of evidence 

were present at Ausbie’s arrest. Moreover, Carrillo testified that Ausbie had 

previously sold her methamphetamine on multiple occasions, Ausbie had 

previously conducted four methamphetamine transactions with Sandoval 

using Carrillo as a middleman, and she had engaged in methamphetamine 

distribution with Ausbie. Given the deference due to the jury’s verdict, the 

evidence in this case was sufficient to establish that Ausbie was a knowing 

participant in the drug distribution conspiracy. Carrillo’s testimony 

regarding her past transactions with Ausbie, as well as the amount of 

methamphetamine present at the time of Ausbie’s arrest, also shows that a 

rational jury could have found that Ausbie knew or reasonably should have 

known that the conspiracy involved at least 50 grams of methamphetamine. 

See United States v. Staggers, 961 F.3d 745, 762 (5th Cir.), cert. denied, 141 S. 

Ct. 388 (2020). Accordingly, the evidence was sufficient to support Ausbie’s 

conspiracy conviction. Because Ausbie’s conspiracy conviction is affirmed, 

his challenge to his conviction for possession of a firearm in furtherance of a 

drug trafficking crime also fails.

Sandoval argues that a police detective’s testimony violated the 

Confrontation Clause because she referenced a non-testifying confidential 

informant’s statement identifying him as a drug source, the details of a 

controlled buy between the informant and Sandoval, and events that 

occurred during law enforcement’s three-hour surveillance of Sandoval 

leading up to his arrest. Because Sandoval objected on this basis at trial, we 

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review this issue de novo subject to harmless error analysis. See United States 

v. Kizzee, 877 F.3d 650, 656 (5th Cir. 2017).

The Government has not met its burden of establishing that the 

reference to the informant’s identification of Sandoval as a drug source was 

non-testimonial. See Kizzee, 877 F.3d at 656. Because that information 

specifically linked Sandoval to activities related to the charged crime, it was 

inadmissible hearsay. See United States v. Jones, 930 F.3d 366, 376-78 (5th 

Cir. 2019); Kizzee, 877 F.3d at 659; Taylor v. Cain, 545 F.3d 327, 335-36 (5th 

Cir. 2008). Moreover, due to some vagueness in the detective’s testimony, 

we will assume, without deciding, that the other challenged statements were 

also impermissible hearsay. See United States v. Sarli, 913 F.3d 491, 496 (5th 

Cir. 2019).

We may nonetheless affirm Sandoval’s conviction if the 

Confrontation Clause errors were harmless beyond a reasonable doubt. See 

Jones, 930 F.3d at 379. The fleeting references to the informant’s 

identification of Sandoval as a drug source were harmless because that 

information did not directly relate to the charged conspiracy offense and the 

prosecution did not rely on the informant’sidentification and instead focused 

on testimony from in-court witnesses. See Sarli, 913 F.3d at 498-99. 

Although Sandoval argues that the informant’s identification of him as a drug 

source was harmful because it bolstered Carrillo’s credibility in that regard, 

Sandoval’s general status as a drug source was amply demonstrated by other 

evidence properly admitted at trial. Moreover, the other statements 

challenged by Sandoval were harmless because they were cumulative of other 

properly admitted evidence. See United States v. Bedoy, 827 F.3d 495, 512 

(5th Cir. 2016). Specifically, the detective’s testimony regarding details of a 

controlled buy between the informant and Sandoval was cumulative of the 

detective’s firsthand testimony regarding those details, the recorded aerial 

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surveillance footage of the controlled buy, and the pilot’s testimony. The 

detective’s testimony summarizing the surveillance was also cumulative of 

the properly admitted evidence of that surveillance. Accordingly, the 

Government has met its burden of showing that there was “no reasonable 

possibility that the tainted evidence might have contributed to the jury’s 

verdict of guilty.” Jones, 930 F.3d at 379 (internal quotation marks and 

citation omitted).

Accordingly, we AFFIRM the judgments of conviction as to both 

Ausbie and Sandoval.

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