United States v. Cash

Case: 24-10243            Document: 88-1         Page: 1      Date Filed: 08/08/2025




           United States Court of Appeals
                for the Fifth Circuit                                        United States Court of Appeals
                                   ____________                                       Fifth Circuit

                                                                                    FILED
                                    No. 24-10243                               August 8, 2025
                                   ____________
                                                                               Lyle W. Cayce
                                                                                    Clerk
United States of America,

                                                                    Plaintiff—Appellee,

                                          versus

Terrance Deshun Cash,

                                            Defendant—Appellant.
                   ______________________________

                   Appeal from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:23-CR-256-1
                   ______________________________

Before Stewart, Clement, and Wilson, Circuit Judges.
Per Curiam: *
       Defendant-Appellant Terrance Cash was convicted of possession
with intent to distribute cocaine and heroin in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B). He appeals his conviction on five grounds: the district
court’s response to a jury note and admission of photographs of cocaine and
heroin, physical evidence of cocaine and heroin, testimony summarizing a



       _____________________
       *
           This opinion is not designated for publication. See 5th Cir. R. 47.5.
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                                No. 24-10243


text message Cash received, and an out-of-court statement by a declarant
who did not testify. Because we do not find reversible error, we AFFIRM.
                                     I.
                                     A.
       Officers with the Drug Enforcement Administration (“DEA”)
learned from a confidential informant that a Black man driving an Alfa Romeo
would be retrieving cocaine from a house on Locke Avenue in Fort Worth,
Texas. Based on the information, DEA agents and officers with the Fort
Worth Police Department (“FWPD”) began surveilling the house. On
August 8, 2023, the agents and officers saw the suspect and another man
arrive to the house in an Alfa Romeo, watched as the suspect entered and
later exited the house, and followed him to another location.
       On August 9, 2023, the confidential informant notified DEA agents
that the suspect would be moving cocaine from the Locke Avenue house
again. While the officers surveilled the house, DEA Agent Rocky Ductan
learned that the Alfa Romeo was in another neighborhood and drove to that
location. After Ductan established surveillance and parked, the driver of the
Alfa Romeo drove toward him. The driver later followed Ductan. Upon
Ductan’s request, officers with the FWPD conducted a stop of the Alfa
Romeo and arrested the driver—identified as Ms. Davis. After her arrest,
officers—excluding Ductan—interviewed Ms. Davis, searched her phone,
and learned that she had been on the phone with Cash when she followed
Ductan.
       Back at Locke Avenue, law enforcement saw the suspect—later
identified as Cash—arrive at the house in a Volkswagen Atlas and leave with
a dark-colored container. DEA agents radioed FWPD Officer Harlow
Jorgensen to stop the car and detain the driver, and Jorgensen attempted to
conduct a traffic stop. Instead of stopping, Cash led Jorgensen on a chase




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through a residential neighborhood for about five minutes before he pulled
over and was arrested. During the chase, Jorgensen saw Cash throw wrapped
packages of cocaine, baggies of heroin, and a flip phone out of the car. Officers
later retrieved some of the discarded items from the road. After obtaining a
warrant, officers searched the Locke Avenue home and retrieved cocaine,
among other items.
                                       B.
        A grand jury in the Northern District of Texas indicted Cash with two
counts of possession with intent to distribute cocaine and heroin in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B). Cash pleaded not guilty and proceeded to
a jury trial.
        During the trial, the government admitted photographs of cocaine and
heroin (“Exhibit Six”) through Jorgenson’s testimony and attempted to link
the drugs in the photographs to the drugs recovered after Cash’s flight. The
government admitted evidence of physical cocaine and heroin (“Exhibit
Ten”) through Ductan’s testimony and attempted to link the physical drugs
to the drugs recovered after Cash’s flight. Ductan also testified about a text
message found on Cash’s discarded phone from a Mexican cell phone
number and about statements made by Ms. Davis during her interview with
the FWPD.
        During jury deliberations, the jury sent the court several notes. The
jury foreperson asked if the jury could review Jorgensen’s testimony; the
district court responded that it could not reproduce the entire testimony. The
jury foreperson then asked whether Jorgensen “saw [the heroin] come out”
of Cash’s car “or if he retrieved any” and how many packages of heroin were
retrieved. The district court replied that it would review Jorgensen’s
testimony, and the jury responded that it wanted to see “[a]nything relating
to the heroin . . . [f]rom Jorgensen.” The jury then sent the court a note




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asking in relevant part, “When [d]id Officer Jorgensen first see Exhibit 6 on
page 8 of 11? [I]n terms of the heroin? We thought he said he did not see the
block of heroin until he was on the witness stand” (“Jury Note Three”).
       The parties discussed how to respond outside the presence of the jury.
The court believed the jury was asking when Jorgensen first saw the actual
heroin at the scene, whereas the defense believed the jury wanted to know
when Jorgensen first saw the picture of the heroin. The court brought the
jury into the courtroom to clarify, and the jury foreperson explained they
wanted to know when Jorgensen saw the heroin “[d]uring the incident, right
when he first saw it. Did he see it at the crime scene, or did he see it on the
witness stand?”
       After excusing the jury, the court informed the parties that the court
reporter searched Jorgensen’s testimony for “heroin” and compiled the
excerpts, and that the court intended to read the compiled excerpts to the
jury in response to their question. Defense counsel objected to reading the
transcripts out of context because it would be confusing, and the court
overruled the objection. After the court read the excerpts to the jury, the jury
foreperson said, “I think we have our answer.” Fewer than twenty minutes
later, the jury returned a verdict of guilty on both counts. The district court
sentenced Cash to 189 months of imprisonment.
       Cash timely appealed.
                                      II.
       The government argues that Cash failed to preserve his argument as
to Jury Note Three on appeal, and therefore, a plain error standard of review
applies. We need not resolve whether Cash preserved his argument for
appeal “because it fails even under the more rigorous abuse of discretion
standard.” United States v. Martinez, 131 F.4th 294, 315 (5th Cir. 2025).




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         “A trial court abuses its discretion when its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of the evidence.”
United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011) (quotations
omitted). Even if the district court erred in admitting certain evidence, we
review for harmless error. United States v. Hicks, 389 F.3d 514, 524 (5th Cir.
2004).
         Cash asserts that the testimony the court read detailed Jorgensen’s
observations of heroin during and after his pursuit of Cash but did not
connect that heroin to the heroin pictured on page eight of Exhibit Six. Cash
argues that the district court inserted itself into the fact-finder role and
resolved any doubt the jury may have had connecting the government’s
picture exhibits with the evidence found on the scene.
         In this circuit, “[t]he district court enjoys wide latitude in deciding
how to respond to questions from a jury.” United States v. Cantu, 185 F.3d
298, 305 (5th Cir. 1999). “Overall, we seek to determine whether ‘the court’s
answer was reasonably responsive to the jury’s question[] and whether the
original and supplemental instructions as a whole allowed the jury to
understand the issue presented to it.’” Id. at 306 (quoting United States v.
Mann, 161 F.3d 840, 864 (5th Cir. 1998)). “The danger in reading excerpted
testimony to the jury is that the district court will ‘substitute its judgment for
that of the jury, or . . . invade its province as factfinder.’” United States v.
Rose, No. 98-10533, 1999 WL 195232, at *1 (5th Cir. Mar. 15, 1999) (per
curiam) (quoting United States v. Alonzo, 681 F.2d 997, 1003 (5th Cir. 1982)).
         Jury Note Three specifically asked when Jorgensen saw the heroin
pictured in Exhibit Six on page eight. The jury later clarified that it wanted to
know whether Jorgensen saw that heroin for the first time on the scene or in
the courtroom. Before submitting Jury Note Three, the jury foreperson asked
more generally when Jorgensen “saw [the heroin] come out” of Cash’s car




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                                 No. 24-10243


“or if he retrieved any” and how many packages of heroin were retrieved. In
responding to Jury Note Three, the district court provided excerpts of
Jorgensen’s testimony that referenced “heroin,” but these excerpts did not
include any reference to page eight of Exhibit Six.
       Cash asserts that nothing in the record answered the question in Jury
Note Three. This court has previously found a defendant’s inability to point
to relevant omitted testimony in the record as dispositive. Rose, 1999 WL
195232, at *1 (“Because the defendant can point to no omitted testimony
potentially relevant to the jury’s question, we find that the district court did
not abuse its discretion.”). However, our own review of the record compels
further discussion because we located testimony from Jorgensen about page
eight of Exhibit Six. See Alonzo, 681 F.2d at 1003 (court conducting a review
of the record). Jorgensen testified that he saw the heroin pictured on page
eight of Exhibit Six in person on the scene and held it, and that the picture
accurately represented what he saw on the scene. This testimony did not use
the word “heroin” and was thus not included in the excerpts the district
court read to the jury even though it was directly relevant and responsive to
Jury Note Three.
       Yet even despite this omission, the excerpts were reasonably
responsive to Jury Note Three. In the excerpts, Jorgensen testified that he
saw Cash throw more than one bag of heroin out of his car, but he did not
connect any of that heroin to the pictures in Exhibit Six. United States v.
Stowell, 947 F.2d 1251, 1257 (5th Cir. 1991) (“There is nothing wrong in
responding in a narrow fashion allowing the jury to decide if the answer is
responsive.”). The district court did not tell the jury that the heroin
Jorgensen testified about was the heroin pictured on page eight of Exhibit Six.
Rather, the district court left it up to the jury to decide whether the excerpts
answered their question, and the jury foreperson told the court, “I think we
have our answer.” United States v. York, No. 94-10464, 1995 WL 71186, at *4



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(5th Cir. Jan. 26, 1995) (per curiam) (finding no abuse of discretion where the
jury informed the district court “that the rereading of the testimony was
adequate”). The district court had also already informed the jury to “draw
inferences and deductions from [the court’s responses] according to the
instructions [the court] gave you in the jury charge.” See Alonzo, 681 F.2d at
1003.
        In contrast to United States v. Rivera-Santiago—a case that Cash relies
on in his briefs—the omitted testimony supported, rather than contradicted,
the excerpts the district court read in response to Jury Note Three. Compare
107 F.3d 960, 965–66 (1st Cir. 1997) (per curiam) (finding error when the
court provided part of one witness’s testimony in response to a question
concerning a disputed issue of fact when there was conflicting and
contradictory evidence in the record as to that fact issue), with York, 1995 WL
71186, at *4 (finding no abuse of discretion when “[n]othing in [the
witness’s] testimony tended to contradict the reporter’s recapitulation”).
Cash’s trial counsel never challenged that Jorgensen saw the heroin pictured
on page eight of Exhibit Six on the scene so this fact was not in dispute. Rose,
1999 WL 195232, at *1 (noting that the court did not abuse its discretion when
the court’s selections of the excerpts “were not one-sided”). Because the
omitted testimony was merely corroborative of the excerpts that the district
court read to the jury, it was not significant. See Alonzo, 681 F.2d at 1003
(finding no error when the “review of the record discloses no significant
testimony, bearing on the questions posed by the jury, which was excluded
from the response to the jury’s request”).
        Under our deferential standard of review, we cannot say that the
district court abused its discretion by failing to include the omitted testimony
in the excerpts. Moreover, even if the district court did err, any error was
harmless because the omitted testimony corroborated the excerpts rather
than contradicted them, and the jury had sufficient evidence that Jorgensen



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                                 No. 24-10243


saw the heroin on page eight of Exhibit Six on the scene. See United States v.
Infante, 404 F.3d 376, 389 (5th Cir. 2005).
                                     III.
       Cash challenges the district court’s evidentiary rulings admitting
(A) Exhibit Six and (B) Exhibit Ten into evidence. “This court reviews a
district court’s evidentiary decisions for an abuse of discretion.” Hicks, 389
F.3d at 522; United States v. Ceballos, 789 F.3d 607, 617 (5th Cir. 2015)
(applying abuse of discretion to an authentication issue).
       “Authentication is a condition precedent to admissibility.”
Weinhoffer v. Davie Shoring, Inc., 23 F.4th 579, 582 (5th Cir. 2022). A
proponent’s burden to authenticate evidence is low. Ceballos, 789 F.3d at 618.
“This Court does not require conclusive proof of authenticity before
allowing the admission of disputed evidence.” United States v. Jimenez Lopez,
873 F.2d 769, 772 (5th Cir. 1989).
       Under Federal Rule of Evidence 901, to authenticate an item, a
proponent—in this instance, a witness with knowledge of the item—“must
produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a), (b). Once the proponent
satisfies that low burden, “the ultimate responsibility for determining
whether evidence is what its proponent says it is rests with the jury,” and any
alleged flaws in authentication or a break in the chain of custody go to the
weight of the evidence rather than admissibility. Ceballos, 789 F.3d at 618
(cleaned up); United States v. Smith, 481 F.3d 259, 265 (5th Cir. 2007).
                                      A.
       Cash contends the government did not properly authenticate the
photographs of the drugs in Exhibit Six through Jorgensen’s testimony




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because Jorgensen neither took the photographs nor could recognize the
objects in the pictures as the drugs he recovered from the scene.
       “A witness qualifying a photograph need not be the photographer or
see the picture taken; it is sufficient if he recognizes and identifies the object
depicted and testifies that the photograph fairly and correctly represents it.”
United States v. Okulaja, 21 F.4th 338, 345 (5th Cir. 2021) (cleaned up).
Jorgensen’s testimony as to pages one through eight of Exhibit Six satisfy that
low burden. 1
       Although Jorgensen did not take the pictures and was not present
when the photographs were taken, neither are required to authenticate
pictures when the testimony demonstrates a witness’s knowledge of the
items pictured. United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. Unit B
1981) (argument that a witness did not take the photographs and could not
describe the conditions under which the photographs were taken “go[es]
only to the evidentiary weight of” the exhibit “rather than to its
admissibility”). On direct and cross-examination, Jorgensen identified the
items in the images on pages one through eight of Exhibit Six as the items
that he saw Cash throw out of his car during the police chase and that he held
on the scene. United States v. Duke, 858 F. App’x 770, 772 (5th Cir. 2021)
(per curiam) (“The deputy’s testimony that he recalled seizing the items
during the search satisfied Federal Rule of Evidence 901 . . . .”).
       Jorgensen also testified that the “pictures fairly and accurately
represent[ed] the items that [he] saw on the scene.” This court has found
similar descriptions of photographs sufficient for authentication. See, e.g.,
United States v. Alejandro, 354 F. App’x 124, 128 (5th Cir. 2009) (per curiam)
(“The detective did not have to actually create the map, so long as he could
       _____________________
       1
           The government only sought to introduce pages one through eight of Exhibit Six.




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testify as to its accurate depiction of the area surrounding the school.”);
Okulaja, 21 F.4th at 345 (concluding that the district court did not abuse its
discretion where the witness who did not take the photographs testified that
“each picture ‘is what it is claimed to be’”); cf. United States v. Winters, 530
F. App’x 390, 395 (5th Cir. 2013) (finding that a proper foundation was not
laid when the witness could not identify the objects in the photographs).
Cash’s trial counsel cross-examined Jorgensen regarding whether the images
on pages four and five of Exhibit Six depicted the same items, and Jorgensen
responded that it was possible, but he did not know because he did not take
the pictures. At bottom, this questioning does not go to admissibility but
rather allows the jury to assess the accuracy and relevance of the images.
Alejandro, 354 F. App’x at 128–29 (a witness’s “lack of knowledge as to the
map’s creation, validity, and scaling” goes to its “relevancy and genuineness
as evidence”).
       For those reasons, we conclude that the district court did not abuse its
discretion in admitting pages one through eight of Exhibit Six.
                                      B.
       During the trial, the government sought to introduce Exhibit Ten
through Ductan’s testimony. Cash argues the government did not properly
authenticate Exhibit Ten because Ductan did not recover or witness the
recovery of the drugs from the scene. We disagree.
       Ductan testified that the physical contents of Exhibit Ten consisted of
“packaging [and substances] consistent with what was around the cocaine
. . . and heroin that was found” at the scene. He also described the
consistency of the substances. Both the government and the district court
asked Ductan whether the drugs in Exhibit Ten were the drugs he
“recovered” from the scene and he responded, “Yes.”




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                                 No. 24-10243


       This court has found similar testimony sufficient to authenticate
evidence. In United States v. Wilson, a law enforcement officer authenticated
a sweatshirt by testifying that she observed the defendant wearing the same
sweatshirt at the time of his arrest. 720 F. App’x 209, 210 (5th Cir. 2018) (per
curiam). Cash attempts to distinguish Wilson from this case by arguing that
the sweatshirt being authenticated was distinctive, the clothes had the
defendant’s name on them, and the testimony established a chain of custody
for the clothes. But Wilson is squarely on point.
       Ductan testified to his personal knowledge of the drugs: He identified
the packages and substances in Exhibit Ten as consistent with the drugs that
he observed and recovered from the scene. Ceballos, 789 F.3d at 617–18
(“Testimony by a witness with knowledge of the item, the item’s own
distinctive characteristics, and the circumstances of the item’s discovery may
each suffice to authenticate evidence.”); see also United States v. Lance, 853
F.2d 1177, 1181 (5th Cir. 1988) (“law enforcement agents who participated in
the taped conversations” authenticated recordings by testifying that the
“tapes contained accurate recordings of the conversations that occurred”).
Although Ductan may not have seized all of the drugs from the scene, “[t]he
testimony of the officer who seized the drugs [i]s sufficient to establish their
authenticity,” not necessary. Smith, 481 F.3d at 265 (emphasis added).
Ductan also described the packaging and consistency of the drugs in Exhibit
Ten in detail based on his personal knowledge. Ceballos, 789 F.3d at 617–18.
       The DEA-7 form, which the government admitted alongside the
physical heroin and cocaine, supports that Ductan had personal knowledge
of the drugs in Exhibit Ten. Ductan was on the scene when FWPD officers
Joe Hill and Greg Miller recovered the cocaine and heroin, and Hill and
Miller transferred the drugs to Ductan. Jimenez Lopez, 873 F.2d at 771
(authenticating witness “testified that he personally requested exhibit 3 and
received it via a California border patrol agent who [the witness] said



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                                     No. 24-10243


procured it from the magistrate’s court”); cf. United States v. Dockins, 986
F.2d 888, 895 (5th Cir. 1993) (finding testimony insufficient to authenticate
when the witness “had no knowledge, other than from reading the document,
that the fingerprint card actually came from the Denver Police
Department”); Weinhoffer, 23 F.4th at 582 (concluding that the witness’s
testimony was insufficient to authenticate evidence when the witness “had
no personal knowledge of the terms applicable to the auction” and her
memory consisted only of “what she found on the internet”).
        The DEA-7 form also establishes a chain of custody: It describes how
the drugs went from the scene to Hill and Miller to Ductan to another officer
to the DEA office and finally to the laboratory for testing. 2 Fed. R. Evid.
901(b) advisory committee’s note to 1972 proposed rules (testimony from a
witness with knowledge “contemplates a broad spectrum,” including
“testimony establishing narcotics as taken from an accused and accounting
for custody through the period until trial, including laboratory analysis”).
        Based on the foregoing, we cannot say that the district court abused
its discretion in admitting the physical cocaine and heroin into evidence.
                                          IV.
        Cash next contends that Ductan’s testimony on redirect
examination—where he paraphrased a text message between Cash and a
Mexican phone number—violates the best evidence rule.
        The parties agree that Cash’s trial counsel did not preserve this
argument on appeal so we review for plain error. 3 United States v. Coil, 442

        _____________________
        2
          Even if the chain-of-custody information in the DEA-7 form had gaps, that would
go to the weight of the evidence rather than its admissibility. Smith, 481 F.3d at 265.
        3
        Cash urges us to apply closer scrutiny because his trial counsel objected to
Ductan’s testimony on related grounds, namely that the testimony constituted




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F.3d 912, 915 (5th Cir. 2006). Under the plain error standard, the defendant
must show that (1) the district court erred, (2) the error is clear or obvious,
and (3) the error affected the defendant’s substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If these three conditions are met, “the court
of appeals has the discretion to remedy the error—discretion which ought to
be exercised only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (cleaned up).
        On direct examination, Ductan testified that the officers recovered a
black flip phone from the scene of the police chase. Ductan testified that the
phone had one phone number “of particular interest to [him],” namely, a
phone number with a Mexican country code. On cross-examination, Cash’s
trial counsel brought up text messages from the phone number and noted that
the messages were included in a report Ductan wrote. On re-direct
examination, Ductan testified that he saw a message from the phone number
on Cash’s flip phone. When asked what he recalled seeing in the message,
Ductan replied, “It was just a message from the Mexico phone number -- I
would be paraphrasing without looking at the report -- but something to the
effect of good morning or hi brother, do you have the fourth coming,


        _____________________
“speculation.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (per curiam),
abrogated in part on other grounds by Davis v. United States, 589 U.S. 345 (2020). But Cash
fails to show how his argument on appeal is related to his trial counsel’s argument aside
from cursorily asserting that the objection at trial “called the court’s attention to the
potential problems with the reliability of this evidence.” Kiva Kitchen & Bath Inc. v. Cap.
Distrib. Inc., 319 F. App’x 316, 322 (5th Cir. 2009) (reviewing for plain error where “the
[defendants] failed to object on the basis of the best evidence rule, which is the sole ground
raised by them on appeal”); cf. United States v. Lopez, No. 94-40723, 1995 WL 727125, at
*10–11 (5th Cir. Nov. 21, 1995) (concluding that an objection at sentencing that the
defendant was not responsible for two loads of marijuana is related to the argument raised
on appeal that the defendant should not be responsible for the marijuana because it was
transported before he joined the conspiracy).




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somebody is looking for it, or something like that.” The government asked
what Ductan thought the message meant, and Ductan responded,
       I perceived it to mean that the Mexican source of supply was
       trying to get in contact with Mr. Cash and was inquiring on
       where the four kilograms of cocaine were, and whether or not
       -- when he would be able to deliver it to the expected recipient
       of the cocaine.
       Federal Rule of Evidence 1002, commonly known as the best evidence
rule, provides that “[a]n original writing, recording, or photograph is
required in order to prove its content unless these rules or a federal statute
provides otherwise.” Fed. R. Evid. 1002. “[T]he best evidence rule
‘comes into play only when the terms of a writing are being established,’ not
when a witness’s testimony is based on personal knowledge.” Kiva Kitchen
& Bath, 319 F. App’x at 322 (quoting In re Mobilift Equip. of Fla., Inc., 415
F.2d 841, 844 (5th Cir. 1969)); Fed. R. Evid. 1002 advisory committee’s
note to 1972 proposed rules (“[A]n event may be proved by nondocumentary
evidence, even though a written record of it was made.”).
       The government did not use Ductan’s testimony about the text
message to prove the content of the message, namely that Cash possessed
and intended to distribute four kilograms of cocaine. “[T]hat certain facts are
contained in a document does not prevent an affiant from testifying as to
those facts from her personal knowledge.” F.D.I.C. v. Stringer, No. 94-
10668, 1995 WL 29283, at *3 (5th Cir. Jan. 13, 1995). The defense on cross-
examination elicited Ductan’s personal knowledge of the text messages on
the flip phone, and the government on re-direct elicited Ductan’s
understanding of this particular message as it pertained to Cash’s
relationship with the owner of the Mexican number. United States v. Smith,
804 F.3d 724, 730–31 (5th Cir. 2015) (finding no violation of the best evidence
rule when the government did not use a ledger “to prove the terms of




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                                        No. 24-10243


underlying documents reflecting payments”); Wealthmark Advisors Inc. v.
Phx. Life Ins. Co., 804 F. App’x 229, 233 (5th Cir. 2020) (per curiam)
(concluding that the court’s admission of summaries of commissions the
defendant paid to the plaintiff did not violate the best evidence rule because
the summaries “were not offered to prove the truth of the factual contents in
the checks or electronic transfers; they were used to prove up the balance of
the commissions [the plaintiff] owed [the defendant]”); Kiva Kitchen & Bath,
319 F. App’x at 322–23 (finding no violation of the best evidence rule when
the attorney sought to elicit testimony about the witness’s personal
knowledge of a website “not the authenticity of the document”). 4
        For those reasons, we do not find that the district court erred by
admitting Ductan’s testimony. 5
                                              V.
        Cash argues that the district court violated the Confrontation Clause
and the hearsay rule by allowing Ductan to testify about statements Ms. Davis
        _____________________
        4
          See also United States v. Fagan, 821 F.2d 1002, 1008 n.1 (5th Cir. 1987) (“The
prosecution was not trying to show the contents of the tape, but rather the contents of the
conversation, and, therefore, as the Advisory Committee note suggests, the best evidence
rule was inapplicable.”); In re Texas Health Enters. Inc., 72 F. App’x 122, 127 n.6 (5th Cir.
2003) (per curiam) (finding no abuse of discretion when a witness testified about a letter to
show when the letter was sent rather than to describe the contents of the letter).
        5
         Even if the district court did err, the error did not affect Cash’s substantial rights.
The record contained other substantial evidence of Cash’s guilt, including Cash’s
connection to the Mexican phone number. See United States v. Holley, 463 F.2d 634, 637–
38 (5th Cir. 1972) (concluding there was no harmless error where the witness testified to
the content of a writing in violation of the best evidence rule because the testimony was
cumulative and there was other substantial evidence of the defendant’s guilt). Moreover,
Cash does not argue that had the report containing the text message been admitted into
evidence, the jury would have reached a different result. United States v. Deason, 965 F.3d
1252, 1266–67 (11th Cir. 2020). Had the report been admitted, it would have merely been
additional evidence for the jury to consider of Cash’s communications with a Mexican
phone number.




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                                   No. 24-10243


made during her interview with other police officers. Cash asserts that the
government failed to show that Ms. Davis was unavailable to testify, and the
defense did not have the opportunity to cross-examine her. As to hearsay,
Cash argues that the government used Ms. Davis’s out-of-court statements
to prove the truth of what she said, that Cash concealed his name and
“distanced himself from the instrumentality of a crime.” The parties agree
that Cash did not preserve this argument on appeal so we review for plain
error. Coil, 442 F.3d at 915.
       On direct examination, Ductan testified that during one of his
surveillances, a woman later identified as Ms. Davis began following him in
the Alfa Romeo. Ductan testified that he notified the FWPD, who then
stopped the Alfa Romeo, questioned Ms. Davis, and subsequently arrested
her. Ductan testified that following her arrest, he searched her phone and
learned that while she followed him, she was on the phone with Cash.
       On cross-examination, defense counsel asked, “Would it be fair to say
Ms. Davis picked up on you pretty quickly?” Ductan responded, “Upon me
being there? Yes.” Defense counsel and Ductan then engaged in the
following conversation:
       Q.     And [Ms. Davis] didn’t say her friend’s name was Cash
              or Terrance? She called her friend Jason?
       A.     I believe so, yes.
       Q.     And she said, she only knew somebody by the name of
              Jason, and that’s who she was talking about, correct?
       A.     Yes.
       On redirect examination, Ductan clarified that he received
information from other agents who spoke with Ms. Davis, and she told them
that “she knew [Cash] as Jason. That Jason was an acquaintance of hers. That
Jason -- the vehicle was technically hers, but Jason put the down payment on




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                                 No. 24-10243


that Alfa Romeo for her.” The government asked, “does she call him Jason
Cash or just Jason,” and Ductan responded, “Jason Cash.”
       “The Sixth Amendment’s Confrontation Clause provides that, in all
criminal prosecutions, the accused shall enjoy the right to be confronted with
the witnesses against him.” Crawford v. Washington, 541 U.S. 36, 42 (2004)
(cleaned up). The Confrontation Clause bars the admission of statements
that are testimonial hearsay and made by a witness “who did not appear at
trial unless he [or she] was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” Id. at 53–54; Smith v. Arizona,
602 U.S. 779, 784 (2024).
       To determine whether admitted evidence violated the Confrontation
Clause, we ask three questions: “First, did the evidence introduce a
testimonial statement by a nontestifying witness? Second, was any such
statement offered to prove the truth of the matter asserted? Third, was the
nontestifying witness available to testify, or was the defendant deprived of an
opportunity to cross-examine him?” United States v. Hamann, 33 F.4th 759,
767 (5th Cir. 2022). If the answer is “yes” to each question, there is a
Confrontation Clause violation. Id. The government only disputes the second
question.
       “The Confrontation Clause does not apply to out-of-court statements
offered into evidence for a purpose other than establishing the truth of the
matter asserted.” United States v. Kizzee, 877 F.3d 650, 659 (5th Cir. 2017).
However, “where a nontestifying witness specifically links a defendant to the
crime, testimony becomes inadmissible hearsay.” Id.
       Here, Ductan did not testify that Ms. Davis said that Cash had cocaine
and heroin and intended to distribute the drugs. Cf. United States v. Jones,
930 F.3d 366, 378 (5th Cir. 2019) (finding a Confrontation Clause violation
where the officer’s testimony about his conversation with a confidential




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                                        No. 24-10243


informant “pointed directly at the defendant and his guilt in the crime
charged” (cleaned up)); United States v. Sharp, 6 F.4th 573, 581–83 (5th Cir.
2021) (finding a Confrontation Clause violation where the officer’s
testimony that a confidential informant told him that the defendant
possessed a large amount of methamphetamine led to the clear and logical
inference that the defendant was guilty of drug trafficking). Instead, Ductan
testified that other agents learned from Ms. Davis that she knew Cash by the
name of Jason and that Cash helped her purchase the Alfa Romeo.
        The government only elicited this testimony on redirect to counter
the defense’s questions on cross-examination, which attempted to
distinguish “Jason” from Cash and imply that Ductan conducted an
inadequate investigation. See United States v. Octave, 575 F. App’x 533, 539
(5th Cir. 2014) (per curiam) (“The testimony here was only elicited on
redirect examination after [the agent’s] investigation had been attacked and
for the limited purpose of showing why [the agent] conducted his
investigation in a certain manner.”); cf. Hamann, 33 F.4th at 770 (“The
government has not advanced any reason for needing inculpatory evidence
to bolster the credibility of its investigation. [The defendant] has never
contended that the investigation was inadequate.”).
        For those reasons, we cannot conclude that the district court plainly
erred in admitting Ductan’s testimony as to Ms. Davis’s statements. 6
                                             VI.
        Given the foregoing reasons, we AFFIRM the district court in all
respects.

        _____________________
        6
         Even if the district court did err, the error did not affect Cash’s substantial rights
because the government presented the jury with overwhelming evidence of Cash’s guilt.
Sharp, 6 F.4th at 582–83.




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