United States of America v. Rafiq Albert Brooks

Rafiq Brooks appeals his convictions on one count of

conspiracy to possess marijuana with intent to distribute and

two counts of possession of marijuana with intent to

distribute. At Brooks's jury trial, the government introduced

out-of-court statements by a nontestifying post office

supervisor and photographs of a seized package that was the

subject of those statements. Brooks argues that the admission

of this evidence violated his rights under the Confrontation

Clause of the Sixth Amendment. We conclude that admission

of the photographs did not violate the Confrontation Clause,

but that admission of the postal supervisor's statements did,

and we reverse the possession conviction that depended on

those statements.

I. Background

A.

In March 2011, a task force of DEA officers and local law

enforcement began investigating a group of individuals

suspected of shipping marijuana through the mail. The leader

of the investigation, Officer Kurt Kinsey, focused

surveillance on an apartment in Glendale, Arizona. On three

occasions in August and September 2011, law enforcement

observed people loading boxes into a vehicle at the Glendale

apartment and then driving to a post office. On each

occasion, the task force enlisted the help of U.S. Postal

Inspector Jeff Agster to contact the post office and search the

suspected parcels. Marijuana was found each time.

UNITED STATES V. BROOKS 5

Shortly after a traffic stop in late September in which

officers discovered two suspected conspirators with a parcel

containing marijuana, the task force observed the Glendale

apartment being cleaned out—numerous boxes, bags of

packing peanuts, and other packaging materials were brought

down and loaded into a car. Officers continued to observe the

suspected leader of the conspiracy, Koy Williams, at the

Glendale apartment, leading them to believe that Williams

still lived there.

On the morning of November 9, 2011, Officer Kinsey

observed two men exiting the Glendale apartment and

entering a silver Buick. Kinsey recognized one of the men as

Koy Williams. The other man was dressed in a long-sleeve

blue dress shirt, dark-colored dress pants, and a tie. Kinsey

followed the silver Buick to an apartment in Phoenix.

Later that morning, Kinsey followed the Buick from the

Phoenix apartment to Glendale, where he saw the Buick's

driver enter a post office with a box. Kinsey contacted Agster

and relayed the mailer's attire—long-sleeve blue dress shirt,

dress pants, and a tie. Agster, in turn, telephoned the

supervisor of the post office and conveyed the same

information. The supervisor confirmed the suspect's

presence in the post office and, either later in the same

conversation or in a subsequent one, gave Agster mailing

information, including a tracking number, for the parcel that

the suspect had dropped off. Acting upon that information,

Agster obtained a warrant, searched the identified parcel

while taking pictures, and found marijuana. Meanwhile, a

different task force member, Special Agent John Nelson,

followed the Buick from the post office to a grocery store,

where he was able to observe the blue-shirted driver from a

short distance.

UNITED 6 STATES V. BROOKS

On November 17, 2011, officers arrested Brooks and four

others at the Phoenix apartment. A bag next to Brooks

contained $1,807 in cash, and he admitted during the arrest

that the silver Buick was his rental car. A protective sweep

of the apartment revealed bales of marijuana on the kitchen

counter and packaging supplies throughout the apartment.

One of the arrestees had three delivery receipts on his person;

the three corresponding parcels were intercepted en route to

New York and found to contain marijuana. After obtaining

a warrant, officers returned to the Phoenix apartment and

found two boxes of marijuana that were packed and ready for

shipment, thirteen delivery confirmation receipts in a cereal

box, and a Glock 17 handgun.

The Glendale apartment was also searched. Unlike the

Phoenix apartment, which contained little furniture, the

Glendale apartment appeared to be lived in. Identification

documents for Brooks were found in one of the bedrooms,

along with packaging materials and a magazine for a Glock

17 handgun. The bedroom's closet contained a blue dress

shirt, a pair of dark slacks, and a tie.

B.

A grand jury indicted Brooks for conspiracy to possess

marijuana with intent to distribute, possession of marijuana

with intent to distribute on November 9 (the date of the

mailing at the Glendale post office), and possession of

marijuana with intent to distribute on November 17 (the date

of arrest at the Phoenix apartment). At trial, the prosecution

introduced evidence of the clothing in Brooks's closet and of

his connection to the silver Buick to show that Brooks was

the mailer on November 9. Agent Nelson made an in-court

identification of Brooks as the man wearing a blue dress shirt

UNITED STATES V. BROOKS 7

and dark slacks that he had followed to the grocery store from

the post office.

The prosecution also sought to tie the man in the blue

shirt to the parcel containing marijuana. To that end,

Inspector Agster testified regarding his communication with

the post office supervisor on November 9:

Prosecution: Let's move forward to

November 9, 2011. Were you

contacted again by task force

members regarding another

parcel related to this

investigation?

Agster: Yes.

Prosecution: What information were you

given at that time?

Agster: The information on this was

they were following another

subject who went to the

Glendale Arrowhead Post

Office in Glendale, Arizona.

Prosecution: Did you contact the supervisor

of that post office?

Agster: Yes, I did.

Prosecution: And in real time did you relate

to him the information

regarding the individual?

UNITED 8 STATES V. BROOKS

Agster: Yes. I was provided with a

description of the subject that

was going in to mail parcels

and I relayed that information

to the supervisor as well.

Prosecution: That same day did you obtain

that parcel?

Agster: I did.

Prosecution: How did you know that was

the same parcel that had been

mailed earlier that day?

Agster: The information that was

provided to me over the

phone. The tracking number

as well as the mailing

information was the same

when I got there to pick up the

parcel.

The defense objected to this testimony—and to the admission

of photographs depicting Agster's search of the parcel—on

Confrontation Clause grounds. The district court overruled

the objection. The postal supervisor never testified.

The jury convicted Brooks on all counts. The district

court sentenced Brooks to 110 months on the conspiracy

count and 60 months on each of the possession counts, with

all terms to run concurrently.

UNITED STATES V. BROOKS 9

II. Confrontation Clause

The Confrontation Clause of the Sixth Amendment

provides that "[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against

him.” Brooks contends that Inspector Agster's testimony

conveying out-of-court statements of the nontestifying postal

supervisor, as well as photographs of the parcel seized at the

Glendale post office, violated the Confrontation Clause.

We review alleged violations of the Confrontation Clause

de novo. United States v. Nguyen, 565 F.3d 668, 673 (9th

Cir. 2009).

A.

We reject Brooks's argument that admitting photographs

of the seized parcel violated the Confrontation Clause. As the

Supreme Court explained in Crawford v. Washington, the

Confrontation Clause "applies to 'witnesses' against the

accused—in other words, those who 'bear testimony.'”

541 U.S. 36, 51 (2004). "Testimony, in turn, is typically a

solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Id. (internal quotation

marks and brackets omitted). The photographs of the seized

parcel were not "witnesses” against Brooks. They did not

"bear testimony” by declaring or affirming anything with a

"purpose.” Therefore, their admission did not violate the

Confrontation Clause. See United States v. Lopez-Moreno,

420 F.3d 420, 436 (5th Cir. 2005) (holding that admission of

a voter identification card did not violate the Confrontation

Clause because it did not involve a witness bearing

testimony).

UNITED 10 STATES V. BROOKS

B.

Allowing Inspector Agster to testify about the postal

supervisor's statements, on the other hand, did violate the

Confrontation Clause. In Crawford, the Supreme Court held

that the Confrontation Clause bars "admission of testimonial

statements of a witness who did not appear at trial” if the

statements are offered to "establish[] the truth of the matter

asserted,” unless the witness is unavailable and the defendant

has had a prior opportunity for cross-examination. 541 U.S.

at 53–54, 59–60 n.9. In other words, absent unavailability

and a prior chance for cross-examination, the Confrontation

Clause forbids a statement of a nontestifying witness that is

testimonial and offered for its truth.

1. Inspector Agster conveyed out-of-court statements.

There is no doubt that Agster's testimony introduced

"statements” of the postal supervisor. Although the

government emphasizes that the "actual statements” of the

supervisor were not offered in testimony, out-of-court

statements need not be repeated verbatim to trigger the

protections of the Confrontation Clause. Rather, we have

explained that "out-of-court statements admitted at trial are

'statements' for the purpose of the Confrontation Clause . . .

if, fairly read, they convey to the jury the substance of an outof-

court, testimonial statement of a witness who does not

testify at trial.” Ocampo v. Vail, 649 F.3d 1098, 1109–10

(9th Cir. 2011). Agster's testimony conveyed the substance

of the postal supervisor's statements. Agster testified that he

telephoned the supervisor and provided a description of the

suspect, and then later searched a particular parcel with the

tracking number and mailing information he had been

provided over the phone as identifying the package mailed by

UNITED STATES V. BROOKS 11

the suspect. By conveying the substance of what the

supervisor said, Agster introduced "statements” for the

purpose of the Confrontation Clause, even though he did not

quote the supervisor verbatim.

2. The statements were testimonial.

The postal supervisor's statements also were testimonial.

In the jointly decided cases of Davis v. Washington and

Hammon v. Indiana, the Supreme Court held that statements

made in the course of questioning by law enforcement "are

testimonial when the circumstances objectively indicate that

there is no . . . ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.”

547 U.S. 813, 822 (2006).1 Stated differently, courts must

consider whether a statement was "procured with a primary

1 In its post-Crawford cases, the Supreme Court has described a range

of interactions involving law enforcement personnel as "interrogations,”

including some that involved less formality than the term typically

connotes. For instance, Davis referred to a telephone conversation

between a 911 operator and a domestic abuse victim as an interrogation,

547 U.S. at 826, and Michigan v. Bryant did the same for an interaction

between police officers and a dying gunshot victim in a gas station

parking lot, 131 S. Ct. 1143, 1150 (2011). See also Crawford, 541 U.S.

at 53 n.4 ("We use the term 'interrogation' in its colloquial, rather than

any technical legal, sense.”). The Supreme Court has made clear,

however, that a statement need not be produced by "interrogation” in order

to be testimonial. See Davis, 547 U.S. at 822 n.1 ("The Framers were no

more willing to exempt from cross-examination volunteered testimony or

answers to open-ended questions than they were to exempt answers to

detailed interrogation.”). We believe it is unnecessary to decide whether

Inspector Agster's interaction with the post office supervisor was an

"interrogation” because we conclude that the primary purpose of the

interaction was investigative, regardless of how the interaction is labeled.

UNITED 12 STATES V. BROOKS

purpose of creating an out-of-court substitute for trial

testimony.” Michigan v. Bryant, 131 S. Ct. 1143, 1155

(2011). In making this determination, the goal is not to

discern "the subjective or actual purpose of the individuals

involved in a particular encounter, but rather the purpose that

reasonable participants would have had, as ascertained from

the individuals' statements and actions and the circumstances

in which the encounter occurred.” Id. at 1156.

Davis and Hammon guide our inquiry. The events in

Davis began with a call to a 911 operator that terminated

before anyone spoke, prompting the operator to return the

call. 547 U.S. at 817. Michelle McCottry answered, and

when the operator asked her what was going on, she said,

"He's here jumpin' on me again. . . . He's usin' his fists.” Id.

As the conversation continued, McCottry reported that her

former boyfriend had just run out the door after hitting her.

Id. at 818. The operator then gathered information about the

former boyfriend, and McCottry described the assault. Id.

McCottry did not appear at the subsequent trial, but the state

introduced the 911 tape. Id. at 819.

In Hammon, police responded to a reported domestic

dispute at the home of Amy and Hershel Hammon. Id. The

officers found Amy "alone on the front porch, appearing

somewhat frightened, but she told them that nothing was the

matter.” Id. (internal quotation marks omitted). One officer

dealt with Hershel, insisting that he stay separated from Amy

to allow the officers to investigate what happened. Id. at

819–20. In another room, the other officer questioned Amy

about what had occurred and, after listening to her account,

asked her to complete a battery affidavit. Id. She wrote:

"Broke our Furnace & shoved me down on the floor into the

broken glass. Hit me in the chest and threw me down.” Id.

UNITED STATES V. BROOKS 13

at 820 (internal quotation marks omitted). Amy did not

appear at Hershel's trial, but the police officers testified

regarding her statements and authenticated the affidavit. Id.

at 820–21.

The Court held that the statements in Hammon were

testimonial and that the statements in Davis were not. "[T]he

nature of what was asked and answered in Davis,” the Court

explained, "was such that the elicited statements were

necessary to be able to resolve the present emergency, rather

than simply to learn . . . what had happened in the past.” Id.

at 827. For example, the operator's attempt to establish the

assailant's identity was needed "so that the dispatched

officers might know whether they would be encountering a

violent felon.” Id. The informality of the call, in which the

victim's "frantic answers were provided . . . in an

environment that was not tranquil, or even . . . safe,” also

contributed to the conclusion that the statements were not

testimonial. Id.

By contrast, in Hammon there was no "immediate threat”

to the speaker, and law enforcement "was not seeking to

determine (as in Davis) 'what is happening,' but rather 'what

happened.'” Id. at 830. "It was formal enough that Amy's

interrogation was conducted in a separate room, away from

her husband (who tried to intervene), with the officer

receiving her replies for use in his investigation.” Id.

(internal quotation marks and brackets omitted). Amy's

statements in response to police questioning were "an obvious

substitute for live testimony, because they d[id] precisely

what a witness does on direct examination.” Id.

Davis and Hammon lead us to conclude that the postal

supervisor's statements here were testimonial. First, based on

UNITED 14 STATES V. BROOKS

the content and context of the conversation, a reasonable

person would have understood the primary purpose to be

investigative. Postal employees presumably would have

known Inspector Agster to be a law enforcement officer, so

when he called to ask whether someone matching a certain

description was present, the most reasonable assumption

would have been that the inquiry related to a criminal

investigation. But even if that were not obvious at the

outset—for example, perhaps one could have thought that the

suspect was carrying a bomb and the call was intended to

address that emergency—the investigative purpose would

have become clear once the discussion turned to the details of

the package's mailing information rather than, say,

evacuation of the building. Thus, as the call proceeded, both

participants would have known that the primary purpose of

the conversation was to establish or prove facts potentially

relevant to a later criminal prosecution. By working with

Agster to gather incriminating evidence about the suspect, the

supervisor became part of the effort to collect information

necessary to make out a case against the suspect.

Second, Agster's interaction with the supervisor was

somewhat formal. Unlike Davis, in which the contested

statements were made to a 911 operator, here, as in Hammon,

the conversation involved a bona fide law enforcement

officer. Testimony must be solemn, and the Supreme Court

has explained that the solemnity of oral statements to law

enforcement is established "by the severe consequences that

can attend a deliberate falsehood.” Davis, 547 U.S. at 826

(explaining that false statements to federal investigators

violate 18 U.S.C. § 1001); see also United States v. McKanry,

628 F.3d 1010, 1018 (8th Cir. 2011) (affirming a conviction

under 18 U.S.C. § 1001 for a false statement to a postal

inspector). Additionally, in contrast to McCottry's frantic

UNITED STATES V. BROOKS 15

answers in Davis, here there is no indication that Agster's

phone conversation was rushed. Although confirming the

suspect's presence in the post office may have been timesensitive,

collecting a specific description of the parcel was

not. Rather, the circumstances suggest that the pace and

deliberateness of the phone call were much more similar to

the interrogation in Hammon than to the 911 call in Davis.

Third, as in Hammon, the supervisor's statements

reported "what happened”—that is, that the man in the blue

shirt mailed a package bearing certain identifying

information—rather than "what is happening.” 547 U.S. at

830 (internal quotation marks omitted). Although the

suspect's presence was confirmed in real time, there is no

indication that the supervisor relayed the package's mailing

information while the suspect was still at the counter mailing

it. Rather, given the surrounding circumstances, we must

assume that the supervisor set aside the parcel and provided

the mailing information to Agster after the suspect left the

post office. The supervisor's statements identifying a

particular package as the one mailed by the man in the blue

shirt were "an obvious substitute for live testimony” because

they did "precisely what a witness does on direct

examination.” Id. Whereas the statements in Davis were

nontestimonial partly because "[n]o 'witness' goes into court

to proclaim an emergency and seek help,” id. at 828,

witnesses routinely do go into court to say that they observed

a crime and collected evidence of it.

Finally, our conclusion that the primary purpose was

investigative is reinforced by the lack of an alternative. That

is, if the purpose of Agster's call was not to build a case for

prosecution, then what was the purpose? The government

does not suggest there was any sort of emergency, nor does

UNITED 16 STATES V. BROOKS

it say that Agster was trying to stop the suspect from getting

away.2 And although Agster may have wanted to prevent the

package from reaching its destination, that goal was realized

once the box was set aside. Collecting the tracking number

and mailing information, and then using that information to

select the parcel to be searched, was plainly done with an eye

toward prosecution.

3. The statements were offered for their truth.

In addition to being testimonial, the supervisor's

statements were offered for their truth. The government

seems to suggest that the statements were offered solely to

provide foundation for the admission of photographs

depicting the search of the parcel, and not for their truth.

Foundational evidence is valuable, however, only if it is true.

In this respect, foundation differs from other situations in

which the truth of the statement is irrelevant, such as when

offered to show its effect on the listener. Here, the

prosecution was far from indifferent as to the truth of the

supervisor's statements. The prosecution already had offered

evidence to prove that Brooks was the man in the blue shirt.

It wanted the jury to believe the supervisor correctly

identified the package mailed by the man in the blue shirt so

that it could connect the marijuana found in that package to

Brooks.

* * *

2 The lack of emergency distinguishes this case from United States v.

Solorio, 669 F.3d 943, 952–54 (9th Cir. 2012), and United States v. Liera-

Morales, 759 F.3d 1105, 1109–11 (9th Cir. 2014), in which we held that

statements were nontestimonial because they were offered to help resolve

dangerous situations.

UNITED STATES V. BROOKS 17

To summarize, we conclude that the prosecution

introduced statements by the postal supervisor that were

testimonial and offered for their truth. Because the postal

supervisor did not testify, and there is no contention of

unavailability or that Brooks had a prior opportunity to crossexamine

the supervisor, the admission of the statements

violated the Confrontation Clause.3

III. Harmlessness

Once a Confrontation Clause error has been shown, the

government bears the burden of proving that it was harmless

beyond a reasonable doubt. United States v. Nguyen,

565 F.3d 668, 675 (9th Cir. 2009). The government's

answering brief, despite noting that a harmlessness analysis

applies to Confrontation Clause violations, does not argue

that any error here was harmless. This constitutes waiver.

See United States v. Gonzalez-Flores, 418 F.3d 1093, 1100

n.4 (9th Cir. 2005) ("Although the government mentions that

a harmless error analysis applies, it makes no argument on

this score nor advances any theory about how any errors here

were harmless. Issues raised in a brief which are not

supported by argument are deemed abandoned.” (internal

quotation marks omitted)).

In Gonzalez-Flores, we held that we have discretion to

consider harmlessness sua sponte in extraordinary cases, and

3 Setting aside the challenged testimony does not affect whether it was

proper to admit the photographs. Agster testified that he went to the post

office following his conversation with Officer Kinsey, that he took

pictures while searching the parcel, and that the photographs admitted at

trial were the ones that he took. Relevance and authenticity were therefore

established without the challenged testimony. See Fed. R. Evid. 401,

901(a).

UNITED 18 STATES V. BROOKS

that we should consider three factors to identify such cases:

(1) "the length and complexity of the record,” (2) "whether

the harmlessness of an error is certain or debatable,” and

(3) "the futility and costliness of reversal and further

litigation.” Id. at 1101. "[T]he second factor—the court's

certainty as to the harmlessness of the error—is of particular

importance,” and sua sponte recognition "is appropriate only

where the harmlessness of the error is not reasonably

debatable.” Id.

Unlike Gonzalez-Flores, this case involves constitutional

error. The burden to establish harmlessness is heavier for

constitutional errors than it is for non-constitutional errors.

Compare United States v. Sandoval-Gonzalez, 642 F.3d 717,

725 (9th Cir. 2011) (government must show it is more

probable than not that a non-constitutional error did not

materially affect the verdict), with Chapman v. California,

386 U.S. 18, 24 (1967) (government must show beyond a

reasonable doubt that a constitutional error did not contribute

to the verdict obtained). Thus, exercising our discretion to

find a constitutional error harmless under Gonzalez-Flores

requires a double level of certainty: we must be convinced

that the error was "harmless beyond a reasonable doubt” and

that "satisfaction of that standard is beyond serious debate.”

United States v. Pryce, 938 F.2d 1343, 1347–50 (D.C. Cir.

1991) (opinion of Williams, J., announcing the judgment)

(internal quotation marks and emphasis omitted).4

4 In addition to the D.C. Circuit, other circuits that share our standard for

when to recognize harmlessness sua sponte apply that standard to

constitutional errors. See, e.g., United States v. Torrez-Ortega, 184 F.3d

1128, 1135-37 (10th Cir. 1999) (considering harmlessness of

constitutional error notwithstanding government's waiver); United States

v. Parmelee, 42 F.3d 387, 392 n.6 (7th Cir. 1994) (same).

UNITED STATES V. BROOKS 19

Even under this high standard, we find that the Gonzalez-

Flores factors favor exercising our discretion to determine

that admitting the postal supervisor's out-of-court statements

was harmless as to two of Brooks's three convictions—

possession with intent to distribute on November 17 (the day

of arrest) and conspiracy. First, the complexity of the record

is modest—the result of a four-day trial. Second, even

without the supervisor's out-of-court statements—or even any

evidence at all regarding the mailing on November 9—there

was overwhelming evidence that Brooks participated in the

conspiracy and, on November 17, possessed marijuana with

intent to distribute.5 Among other things, Brooks lived with

the conspiracy leader in the Glendale apartment for at least a

month prior to his arrest, and the conspiracy leader referred

to Brooks as his "worker.” For several months, law

enforcement had observed cars travelling from the Glendale

apartment to post offices in order to ship marijuana, and a

search of the apartment revealed packaging materials and

numerous postal receipts. Brooks was responsible for a

handgun found at the Phoenix apartment and the silver Buick

used in the conspiracy, and he possessed almost two thousand

dollars in cash at the time of his arrest. Brooks was

apprehended at the Phoenix apartment, where bales of

marijuana were found on the kitchen counter, along with

more than a dozen mailing receipts and two sealed boxes with

5 Brooks also raises a Confrontation Clause challenge to evidence

suggesting that he mailed additional packages at a second post office on

November 9. Because no parcel was ever searched at the second post

office, there was no direct evidence that any marijuana was mailed at that

post office, even if the mailer was Brooks. We therefore conclude that the

evidence related to the second post office was of such minimal probative

value that its presence or absence has no effect on our evaluation of

Brooks's convictions, and any error with respect to that evidence was

harmless.

UNITED 20 STATES V. BROOKS

marijuana ready for shipment. Third and finally, in light of

the overwhelming evidence, remand for retrial on the

conspiracy and November 17 possession counts would be

futile and costly. With all three Gonzalez-Flores factors

pointing in favor of sua sponte recognition, we exercise our

discretion to overlook the government's waiver and hold the

Confrontation Clause error harmless with respect to the

convictions on those two counts.

Our harmlessness conclusion is different, however, with

respect to the conviction for possession with intent to

distribute on November 9.6 Certainty as to harmlessness is a

prerequisite for sua sponte recognition under Gonzalez-

Flores. The government acknowledged at oral argument that

any Confrontation Clause error would not have been clearly

harmless as to the November 9 count. We agree. The

prosecution offered substantial evidence to prove that Brooks

was the man in the blue shirt who entered the post office with

a box, but the supervisor's improperly admitted statements

were the key evidence linking the man in the blue shirt to the

seized parcel and the marijuana it contained. Absent those

6 In light of Brooks's longer, concurrent prison sentence for conspiracy,

the government argues that reversal of the November 9 conviction will not

reduce the amount of time he serves. Even if that is true, it does not

render reversal unnecessary because the conviction carries a special

assessment of $100. 18 U.S.C. § 3013(a)(2)(A); see Ray v. United States,

481 U.S. 736, 736–37 (1987) (per curiam) (holding that review of each

conviction was required despite the defendant's concurrent prison terms

because each conviction carried a $50 assessment). And even without the

special assessment, we still could not decline review. See United States

v. DeBright, 730 F.2d 1255, 1258–60 (9th Cir. 1984) (en banc)

(overturning the concurrent sentence doctrine, under which we formerly

had authority to decline consideration of an alleged error impacting one

count on the ground that an equally long or longer concurrent prison

sentence had been imposed on another count).

UNITED STATES V. BROOKS 21

statements, we cannot say with certainty that the jury would

have reached the same verdict, particularly given that certain

evidence at trial supported the possibility that Brooks mailed

something other than marijuana. We thus decline to find the

Confrontation Clause violation harmless as to the November

9 count.7

IV. Other Contentions

In addition to the Confrontation Clause issue, Brooks

argues that the district court erred by denying his motion to

suppress evidence obtained via warrantless GPS monitoring

and his request for a minor participant adjustment at

sentencing. These arguments can be dealt with summarily.

Brooks's contention regarding GPS monitoring is

foreclosed by United States v. Pineda-Moreno, 688 F.3d

1087, 1090–91 (9th Cir. 2012), in which we held that the

exclusionary rule does not apply to evidence obtained from

a GPS device placed on a suspect's car prior to United States

v. Jones, 132 S. Ct. 945 (2012).

Brooks is also mistaken that the district court abused its

discretion by denying him a minor participant adjustment at

sentencing. Brooks did not show that he was substantially

less culpable than his co-conspirators. See United States v.

Cantrell, 433 F.3d 1269, 1282–83 (9th Cir. 2006). Ample

7 We leave it for the district court to determine in the first instance on

remand whether Brooks's sentence for the remaining convictions should

be adjusted. Because the district court may consider on remand any

sentencing arguments it finds appropriate, we dismiss as moot Brooks's

motion to remand based on changes to the United States Sentencing

Guidelines.

UNITED 22 STATES V. BROOKS

evidence supported the district court's conclusion that Brooks

was deeply embedded in the conspiracy.

For the reasons discussed above, we hold that admission

of the postal supervisor’s out-of-court statements violated the

Confrontation Clause. Although we exercise our discretion

to overlook the government’s waiver and hold the error

harmless as to two of Brooks’s convictions, we decline to do

so with respect to his conviction for possession with intent to

distribute on November 9, 2011. Accordingly, we AFFIRM

Brooks’s convictions for possession with intent to distribute

on November 17 and conspiracy, REVERSE his conviction

for possession with intent to distribute on November 9, and

REMAND to the district court to determine whether

resentencing is appropriate.