Criminal Court & Legal Affair Investigative Journalist Clarence Walker can be reached at [email protected].

A Fifth Circuit appeals court reversed a recent drug conviction against an Austin, Texas man based on the prosecutor's  illegal use of an "out-of-court" hearsay statement made by a snitch who told a DEA agent that the defendant had purchased a substantial amount of methamphetamine from another person. Federal prosecutors never brought the snitch forward to testify at trial that Coy Jones had, in fact, done a drug deal. Instead, prosecutors allowed a DEA agent to testify to the jury that the snitch had told the agent that the deal had gone down, and that Jones was in possession of big-time dope. The appeals court mandate in Jones case was issued on May 19, 2019. 

[image:1 align:left caption:true]Following four days of testimony, a jury in the Western District of Texas in Austin convicted Coy Jones in October 2017. On January 29, 2018, federal judge Sam Sparks gave Jones, a Native American, 30 years in a federal joint for methamphetamine trafficking and gun-related charges as a result of an alleged witness (the snitch) -- who never appeared in court, and whom Jones never got a chance to confront and cross-examine, as required by law under the Sixth Amendment of the Constitution.

The Confrontation Clause of the Sixth Amendment of the U.S. Constitution provides that "in all criminal prosecutions the accused shall enjoy the "right" to be confronted by the witnesses against him." Under the statute, accused defendants are given the opportunity to face prosecution witnesses against them in order to dispute the witnesses' testimony. This guarantee applies to both statements made in court, including statements made outside of court that are offered as evidence during trial. 

In a lengthy ruling, the Fifth Circuit said: "The government has therefore failed to meet its burden to show harmless error as to Jones' conviction for possession with intent to distribute 500 grams or more of methamphetamine and possession of a firearm." Here, the court added, "the inadmissible evidence was highly incriminating. Jones denied possessing the drugs and no drugs were found in his possession and no officer witnessed a drug transaction on May 3,2017.

[image:2 align:right caption:true]"We hold that Jones' rights under the Confrontation Clause were violated when a law enforcement officer testified, he knew Jones had a large amount of methamphetamine because of what the officer was told by a confidential informant. We therefore vacate Jones convictions and the related revocation of his supervised release and remand for a new trial,” the Fifth Circuit panel said. 

A DEA agent testified in open court about what the snitch allegedly told him about Jones meeting up with another narcotics dealer, which amounted to unsubstantiated hearsay. Although police never saw Jones purchase drugs, they and prosecutors relied on the words of the undercover snitch who said he made calls to other individuals who, in turn, told him the transaction had taken place. So, at this point, the government used double hearsay to convict Coy Jones.

"Everyone deserves the right to confront their accusers in court," retired criminal defense attorney Craig Washington told Drug War Chronicle.

But no such confrontation took place in this case. Federal prosecutors Matt Harding and Daniel Guess argued the use of "out-of-court" hearsay testimony by the informant was only to explain the officers" investigative tactics during the investigation.

Fifth Circuit judges concurred that the trial judge in Jones' case shouldn't have allowed prosecutors to elicit the snitch's hearsay testimony from the DEA agent about what he was told concerning the alleged drug purchase that Jones supposedly made with another suspect.

When Jones attorney Santosh Aravind objected at trial to the snitch's testimony and other detailed information the officers received from the missing witness against Jones, the judge overruled Aravind's timely objection, agreeing with the prosecutors that  the officers' references to what the informant told them was more to explain the officers' actions rather than vouch for the truth about what the informant said. 

Prior to trial, Jones' attorney Santosh Aravind filed a 403 motion to force the government prosecutors to disclose the identity of the informant. In response, prosecutors argued against identifying and bringing forth the informant because "the informant only gave a tip, and that the informant was not on the scene on any of this and would not be a fact witness." 

The Arrest of Coy Jones

The long, winding road to Coy Jones' federal conviction was the result of a hearsay statement by a "streetwise snitch." The showdown encapsulated a cast of dubious characters on Wednesday, May 3, 2017. On this eventful day in Jones' life, DEA agent Royce Clayborne received a tip from his prize-winning informant.

The informant told Claiborne that a drug deal would go down at a Valero gas station in Travis County, Texas. The DEA surveillance team, along with Austin police officers, observed Jones arrive in a vehicle. Jones parked next to a truck driven by a roommate of Fredy Cruz-Ortiz. DEA agents initially targeted Cruz-Ortiz, not Jones, because Cruz-Ortiz was the ring-leader of a meth trafficking ring. DEA agents and Cedar Park Detective Michelle Langham would later testify that they observed Coy Jones make a gesture to the other driver. Following the gestures, both vehicles drove off simultaneously.

 DEA agents had no direct knowledge that a drug deal had gone down until the informant told agent Claiborne by phone that a transaction had taken place and that the drivers had left the Valero parking lot. Officers immediately followed both vehicles as they headed towards County Road 213. This area is a lightly traveled rural road. When both vehicles briefly passed out of view and then reappeared into sight, Detective Langham spotted both drivers on County road 213 talking. When Jones and the other man departed, they drove off in different directions. 

Keep in mind, at this point, the officers never saw a dope exchange between Coy Jones and the other man he met on the night of May 3, 2017 nor did officers see Jones in a drug transaction on two prior occasions when he met with the alleged meth dealer. And on that night, the officers never saw Jones with a gun. They only had suspicions about drugs based on the tip from the informant.

The unidentified man, who was suspected to be the roommate of the meth ringleader identified as Cruz-Ortiz, was not  followed or stopped after his separate encounters with Jones. Officers instead continued to follow Jones as he finally turned onto County road 201. Detective Langham dispatched a sheriff's deputy to stop Jones by using a pretext traffic violation. 

When the deputy activated his emergency red light to pull over Jones' vehicle, Jones' vehicle sped up, accelerating up to 90 miles per hour with the officers in hot pursuit. The chase lasted for at least two miles.

During the ensuing chase, none of the officers or agents saw Jones throw a weapon from his vehicle, yet when Jones' vehicle came to a screeching halt both windows rolled down. With guns drawn, officers arrested Jones and searched his vehicle, but no drugs or firearms were found.

Where is the Dope?

Unable to find dope on Coy Jones--either in or around his vehicle -- the officers grew increasingly frustrated. 

Perhaps the officers should have freed Coy Jones because they did not have an iota of evidence that he was guilty of a crime, right? 

But these hounds smelled blood.

"Let's get a K-9 out here," an officer said. Officers used the K-9 dog to retrace the route of the road that Jones and the officers had traveled during the chase. After 'one to two' hours of searching, officers discovered an unloaded pistol in a 'cactus patch'. Then, finally, on the opposite side of the road, approximately 'a half mile' from where the gun was found, an officer recovered a zip lock bag containing 982 grams of methamphetamines.

Detective Langham testified at trial that both the gun and the meth were found in an area "where the sheriff's deputy lost sight of Jones as he sped down County road 201."

DEA agents interrogated Coy Jones on the same night he was arrested.  When agents accused him of intentionally fleeing to avoid being caught with the methamphetamines and the gun, Jones explained that he was attempting to avoid an individual who tried to fight him at the Valero. 

On Appeal

Attorney Santosh Aravind appealed Coy Jones' conviction based on these four key points:

1.The District Court erred by admitting evidence of Jones' prior conviction.

2. Testimony regarding the confidential informant (aka snitch) violated Jones' rights under the Confrontation Clause.

3. The District Court erred by not ordering disclosure of the identity of the confidential informant.

4, The evidence was insufficient to support the jury's verdict.

During the trial, as stated, Jones' attorney objected multiple times to the prosecutor's use of information from a snitch that was spoken to in court by a DEA agent. To determine whether the Sixth Amendment (Confrontation Clause) had been violated, the Fifth Circuit focused on the exchange of testimony between the prosecutor and DEA agent Royce Clayborne.

Prosecutor: "Based on the information you had received; Coy Jones received a large amount of methamphetamines."

Defense Attorney: "Objection hearsay."

Judge: "That objection is overruled."

Prosecutor: "Why did you follow Coy Jones as opposed to the other guy?"

Agent Clayborne: "Well, we knew Coy Jones had just received methamphetamines."

Clayborne further told the prosecutor that their purpose there forward was to stage a traffic stop of the vehicle driven by Coy Jones and arrest him. 

During cross-examination, defense attorney attacked Agent Clayborne's knowledge of whether Jones obtained meth from another person at the Valero.

Defense attorney: "[You] did not see any interaction between Mr. Jones and the person in the silver truck, right?"

Agent Clayborne: "That's correct."

Defense: "But you did not know that, right? You had not seen anything. You had not seen an exchange of methamphetamines or money."

Clayborne: "But I knew it was."

Defense: "You believed it, but you did not know it."

Realizing Clayborne's testimony created doubts as to whether he saw the drug deal go down between Jones and the other guy in the silver truck, the prosecutor took the agent on re-direct examination.

Prosecutor: "The defense confronted you about when you said you knew a drug deal had gone down, but that you had not seen anything; how did you know that a drug deal occurred?"

Clayborne: "Once we saw (other officers included) what looked like a drug deal; I made a phone call to my confidential source (the snitch) who got back to me -- and said the deal had happened."

Prosecutor: "Based on that information, you decided to stop Coy Jones?"

Clayborne: "That's correct."

Bottom Line

Coy Jones' case exemplifies how federal prosecutors flagrantly violate the law in drug cases. Here, prosecutors violated Jones' constitutional rights to a fair trial and to have the right to confront his accuser(s) in court. The accuser was a police informant who prosecutors failed to bring forward to testify about what he did or did not see. Prosecutors knew beforehand that they were bypassing the constitutional limits of the Confrontation Clause, which enshrines the use of the Sixth Amendment to confront accusers(s). The trial court judge was equally responsible for the reversal of Jones conviction because Jones trial lawyer made timely objections to the judge about the prosecutors not bringing forth the "drug informant" to testify to the jury of whether he saw Jones do a dope deal.

Trapped in the system, unable to make bail, Coy Jones was bullied into pleading guilty all over again to the same charges that the Fifth Circuit had reversed in his favor. A federal judge gave Jones only eight years this time around on November 1, 2019.

Jones attorney, Santosh Aravind told the Drug War Chronicle that "if the case would've been retried, then it's likely the government would have to bring in the actual informant to testify." Prosecutors had already figured they could win the case outright if the informant testified in open court during a new trial for Jones. 

Attorney Craig Washington viewed the situation differently. Washington said the new plea raises the possibility that Coy Jones pleaded guilty to crimes that amount to "Fruit of the Poisonous tree." Under this doctrine the law says that "if the evidential tree is tainted, so is its fruit.”

"Once the Fifth Circuit granted a new trial, prosecutors shouldn't have been able to use the same evidence that was overturned in the first place to get Coy Jones to plead guilty to it."

Prosecutors have not responded to the Drug War Chronicle’s inquiry about Washington’s allegations as of this writing.

Meanwhile inmate Coy Jones#63245-280 is serving his prison sentence at FCI in Three Rivers, Texas. Although his projected release date is in 2024, the word in the legal arena is that another round of appeals will hit the court by the end of this year or early 2021.

Drug War reporter Clarence Walker can be reached at: [email protected]