JAMES C. HO, Circuit Judge:
Following a tip from a confidential source, Arturo Sarli was arrested and convicted for possession with intent to distribute methamphetamine. He challenges his conviction under the Fourth and Sixth Amendments. We unanimously deny Sarlis Fourth Amendment claim, on the ground that he consented to the search of his vehicle. But we are divided with respect to Sarlis claim that, due to certain statements made at trial in violation of the Confrontation Clause, he is entitled to a new trial.
During trial, both the prosecutor and a prosecution witness referred to certain out-of-court statements by a confidential source. Sarli contends these references violated the Confrontation Clause because he did not get to cross-examine the source. By a divided vote, we hold that these references were harmless.
To be sure, the confidential source placed Sarli at the scene of the crime-providing Sarlis name, identifying his vehicle, and alleging he would be transporting methamphetamine to a particular location on a particular date. But so did the officers who pursued the tip and caught Sarli red-handed. They testified in court that they personally saw Sarli at that very location, on that very day, transporting methamphetamine in that very vehicle. So any references to out-of-court statements from the confidential source were entirely redundant of the testimony of the officers who caught Sarli at the scene.
Moreover, Sarlis defense at trial wasnt that he didnt do it-it was that he didnt know what he was doing. Sarli admitted he agreed to be paid to transport a box of cat litter from a Walmart parking lot to a restaurant parking lot. He simply denied knowing that the cat litter contained methamphetamine. Naturally, the prosecution ridiculed Sarlis dubious story as implausible in the extreme (and as evidence of guilt, as our precedents permit). The officers at the scene also testified that, once they found the drugs, Sarli cried about not wanting to go to prison, and protested his wifes innocence.
In sum, the prosecution proved that Sarli knew he was carrying drugs, based not on statements from the confidential source, but on statements from Sarli himself and the various in-court witnesses who testified at trial. So any reference to the confidential source was harmless. There is no reasonable possibility that those references contributed to the conviction. We affirm.
I.
In June 2014, a confidential source told Detective Steven Contreras of the San Antonio Police Department that a man named Arturo was using a white Avalanche pickup truck to transport methamphetamine around San Antonio. About a month later, that same confidential source told Detective Contreras that Arturo would be transporting about two kilograms of methamphetamine that very day, to the parking lot of Bill Millers restaurant in San Antonio.
Officers established surveillance and saw a white Avalanche pickup truck. They checked the license plate of the truck and found it was registered to Arturo Sarli, who had a pending municipal arrest warrant. When a marked police unit entered the parking lot, Sarli appeared nervous and drove away. Other officers, including Officer Juan Torres, followed Sarli and initiated a stop after witnessing a traffic violation. Sarli appeared shaky in the presence of the officers.
Officer Torres asked if Sarli would consent to a search of the truck. Sarli agreed. Officer Torres then waited until other officers were free to assist him, before again requesting and obtaining consent to search. Before beginning the search, officers told Sarli that he was under arrest on the outstanding warrant, handcuffed him, and placed him in the back of a police car.
Officer Torres and others then began the search. The initial search was unsuccessful. About 15 minutes after the stop, the first of two police dogs arrived to conduct a sniff of the truck. Neither dog alerted. Within five minutes of the second dog beginning to sniff, Detectives Contreras and Robert Tamez arrived at the scene. Soon thereafter, Detective Tamez looked inside of a box of cat litter in the back of the truck and found several small bundles that were later determined to contain methamphetamine. From beginning to end, the entire search lasted roughly 51 minutes.
Upon discovery of the drugs, Sarli began to cry. He told the officers that he was scared of going to prison. He also told them that his wife was innocent.
After he was advised of his rights, Sarli confessed that he drove to a Wal-Mart parking lot to meet an unknown man who gave him the box of cat litter-and that he agreed to be paid for transporting that box of cat litter to another unknown man he would meet at the restaurant.
Sarli was indicted for possession with intent to distribute 50 grams or more of methamphetamine under 21 U.S.C. § 841(a)(1) and 21 U.S.C. § (b)(1)(A). He moved to suppress the methamphetamine and his statements to police as the products of an unlawful search. After a suppression hearing, the magistrate judge recommended that the motion to suppress be denied. The magistrate judge found that the officers had probable cause to search Sarlis vehicle at the time of the traffic stop, but that the probable cause had dissipated by the time of Detective Tamezs search. The magistrate judge nevertheless found that Sarli had validly consented to the search, that he had not limited the scope of his consent, and that Detective Tamezs search of the cat litter box was valid.
Both parties filed objections to the magistrate judges report. The district court agreed that the stop of Sarlis vehicle was supported by reasonable suspicion, that the outstanding warrant justified his arrest, and that the truck was subject to impoundment under police policy. It also found that the officers initially had probable cause to search the truck, but that the probable cause had dissipated by the time Detectives Contreras and Tamez arrived. However, the district court agreed that Sarli validly consented to the search, that Detective Tamezs search did not exceed the scope of his consent, and that Sarli had not objected to the continued search or tried to revoke his consent.
Sarli proceeded to trial. At trial, Detective Contreras testified that, when a marked police unit first entered the parking lot, Sarli behaved nervously and quickly drove away. Officer Torres testified that, following his traffic stop, Sarli appeared shaky. Detective Contreras presented unchallenged testimony that Sarli confessed that he agreed to be paid to deliver the package of cat litter from one person to another. Furthermore, Detective Contreras testified that the methamphetamine seized from Sarlis truck was the second largest quantity of methamphetamine he had ever handled.
When Detective Contreras was asked to describe how the investigation came about-namely, the tip from the confidential source-Sarli objected on Confrontation Clause grounds. The prosecutor rephrased the question, and Sarli again objected but was overruled. Detective Contreras testified that he received information from the confidential source that a Hispanic man by the name of Arturo [was] driving a white Avalanche thats going to be delivering narcotics.
During closing arguments, Sarlis counsel argued that Sarli was unaware of the methamphetamine, and that police made various mistakes. The government stated that Sarli was not randomly stopped, that the investigation originated with the tip from the confidential source, and that the allegations in the tip were corroborated by the evidence obtained from the stop and search of Sarlis vehicle. Sarli objected to the prosecutors reference to the confidential source but was again overruled.
The jury convicted Sarli, and he received a prison sentence of 324 months.
II.
Sarli raises two issues on appeal. First, he challenges the denial of his motion to suppress the evidence seized from Detective Tamezs search of his vehicle. Second, he challenges the denial of his objections that the two references during trial to the tip from the confidential source violated the Confrontation Clause. We address each in turn.
A.
When reviewing a denial of a motion to suppress evidence, this Court reviews factual findings for clear error and the ultimate constitutionality of law enforcement action de novo . United States v. Robinson , 741 F.3d 588, 594 (5th Cir.2014). A district courts denial of a motion to suppress should be upheld if there is any reasonable view of the evidence to support it. United States v. Michelletti , 13 F.3d 838, 841 (5th Cir.1994) (en banc). This Court must view the evidence in the light most favorable to the party that prevailed below. United States v. Pack , 612 F.3d 341, 347 (5th Cir.2010).
The standard for measuring the scope of a suspects consent under the Fourth Amendment is that of objective reasonableness-what a reasonable person would have understood by the exchange between the officer and the suspect. Florida v. Jimeno , 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (collecting cases). Officer Torres did not qualify or limit his request for Sarlis consent, and an affirmative response to a general request is evidence of general consent to search. United States v. Garcia , 604 F.3d 186, 190 (5th Cir.2010). Where there is ambiguity regarding the scope of a consent, the defendant has the responsibility to affirmatively limit its scope. See United States v. Mendoza-Gonzalez , 318 F.3d 663, 667 (5th Cir.2003). Sarli placed no such limits.
For his part, Sarli claims that he was unable to observe the search as it was being executed, because he was physically placed in a patrol car shortly after he gave consent. But we have rejected the notion that a consensual search ceases to be valid simply because the accused is unable to observe the conduct of the search. See , e.g. , United States v. Rich , 992 F.2d 502, 507 (5th Cir.1993) (Even if Rich was unable to see what was going on, ... we are unwilling to ... hold ... that enforcement officials must conduct all searches in plain view of the suspect); id. (The fact that the search was not conducted in a manner that made it conducive or even possible for Rich to later withdraw or limit his consent does not automatically make that search violative of the Fourth Amendment.).
In addition, Sarli claims that his consent reached its natural end before Detective Tamezs search, citing United States v. Escamilla , 852 F.3d 474, 485 (5th Cir.2017). But in Escamilla , there was a four-hour delay between two disparate searches. Id . Here, by contrast, the entire search lasted less than an hour, and the police maintained continuous control over the truck to allow various officers and sniffing dogs to conduct overlapping searches during that time. In short, there was no identifiable natural end to Sarlis consent. Id.
Accordingly, the district court properly denied Sarlis motion to suppress the evidence seized from Detective Tamezs search of Sarlis vehicle.
B.
At trial, Sarli objected on Confrontation Clause grounds at two different junctures: (1) when the prosecutor asked Detective Contreras how the investigation of Sarli had come about, and (2) when the prosecutor referenced in closing argument that the San Antonio Police Department investigation started with the tip from the confidential source. Both objections were overruled.
We assume without deciding that the references to the confidential sources tip violated the Confrontation Clause. We nevertheless affirm because we are convinced that the error was harmless beyond a reasonable doubt. United States v. Jimenez , 464 F.3d 555, 562 (5th Cir.2006) (citing Delaware v. Van Arsdall , 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ).
For a verdict to survive a Confrontation Clause violation, there must be [no] reasonable possibility that the evidence complained of might have contributed to the conviction. United States v. Alvarado-Valdez , 521 F.3d 337, 341 (5th Cir.2008) (quoting Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ). This is a demanding but not insurmountable burden. See , e.g. , United States v. Bedoy , 827 F.3d 495, 512 (5th Cir.2016) (concluding that the error was harmless beyond a reasonable doubt); United States v. Akins , 746 F.3d 590, 600 (5th Cir.2014) (finding the testimony cumulative and therefore harmless); United States v. Ogba , 526 F.3d 214, 229-30 (5th Cir.2008) (finding the error harmless in light of the non-hearsay evidence presented at trial); United States v. Pryor , 483 F.3d 309, 312 (5th Cir.2007) (observing that the admitted statement did not undercut Pryors only defense).
We conclude that there is no reasonable possibility that the information from the confidential informant contributed to Sarlis conviction. That is for one simple reason: The prosecutions case turned on statements made by in-court witnesses and not on any out-of-court statement.
1.
To begin with, the government did not need any out-of-court statement to connect Sarli to the crime scene or to his illicit cargo. The police caught him at the scene, driving the vehicle while the methamphetamine was stored inside. And they testified at trial accordingly. Officers observed Sarli operate a white Avalanche, pull into the Bill Millers parking lot, act nervously, flee at the sight of a marked patrol car, and then consent to a search of his vehicle, which is where the drugs were discovered. The information provided by the confidential source-the drivers name, vehicle description, location, and the vehicles content-was entirely redundant in light of the officers testimony. Indeed, Sarli did not dispute that he drove a white Avalanche to Bill Miller while carrying methamphetamine.
By contrast, in cases where weve granted relief, the defendants involvement was hotly contested, and the prosecution depended on out-of-court testimony to identify the defendant as a participant in the crime. For example, in United States v. Kizzee , 877 F.3d 650 (5th Cir.2017), a police search of the defendants house and person yielded less than a gram of crack cocaine. Id. at 654-56. It was only thanks to out-of-court statements from Carl Brown that the Government could establish Kizzee as a drug dealer, rather than a mere possessor. No other testimony was presented to connect Kizzee to Brown as the source of Browns drugs. Id. at 662. In United States v. Jackson , 636 F.3d 687 (5th Cir.2011), the prosecution relied on a set of notebooks, deemed to be out-of-court statements, which the Government candidly contended amount[ed] to proof beyond a reasonable doubt that Jackson participated in the conspiracy. Id. at 697. In Alvarado-Valdez , 521 F.3d at 342, the government relied heavily on out-of-court testimony to link the defendant to a cocaine delivery that law enforcement had intercepted one year earlier. The defendant was only arrested after being named by a coconspirator.
2.
Sarli did not dispute that he carried drugs-but he did dispute that he knew he was carrying drugs. But here again, the government did not need any out-of-court statement to establish its case.
Sarli confessed that he agreed to be paid for the admittedly unusual task of transporting a box of cat litter from one person in a Walmart parking lot to another person at a restaurant. He simply claims that he had no idea he was being paid to transport methamphetamine, rather than cat litter. As we have repeatedly stated, an implausible account provides persuasive circumstantial evidence of the defendants consciousness of guilt. United States v. Lopez-Monzon , 850 F.3d 202, 208 (5th Cir.2017) (quoting United States v. Diaz-Carreon , 915 F.2d 951, 953-54 (5th Cir.1990) ). A rational jury may infer from [a]n implausible account of exculpatory events ... that the defendant desires to obscure his criminal responsibility. Id.
So the dubiousness of Sarlis explanation is affirmative evidence of his knowledge under our precedents. And the fact that the box contained a large quantity of methamphetamine, worth at least forty thousand dollars, is further indicative of intent to distribute. United States v. Villarreal , 324 F.3d 319, 325 (5th Cir.2003).
In sum, the prosecution furnished the jury with ample, compelling evidence that Sarli in fact knew he was carrying drugs-all of it independent of the confidential source. The prosecution essentially pointed to Sarlis own account of what happened and asked the jury to draw the only reasonable inference available.
Whats more, the prosecution also called multiple in-court witnesses who testified about Sarlis demeanor and conduct during the investigation. For example, when a marked police unit first entered the parking lot, Sarli behaved nervously and quickly drove away. Following his traffic stop, Sarli appeared shaky. We have held that such [n]ervous behavior ... frequently constitutes persuasive evidence of guilty knowledge. Lopez-Monzon , 850 F.3d at 209. Sarli also began to openly weep after police uncovered the methamphetamine, telling officers that he was scared about the prospect of going to prison. He also told them that his wife was innocent.
Sarlis knowledge is thus amply established by his own statements as well as his behavior at the scene of the crime, as described by various in-court witnesses. By contrast, nothing in the information provided by the confidential source established that Sarli knew he was transporting methamphetamine. The confidential source stated that police would find drugs in a particular car driven by a particular person-he did not convey whether or not the driver was actually aware he was transporting drugs. See , e.g. , United States v. Wilson , 657 F.2d 755, 760 (5th Cir.Unit A Sept. 1981) (That an informant had given a tip that people in the area were in possession of heroin does not add significantly to the evidence of possession.). Unless the government attempts to insinuate more at trial-and it did not do so here-the information from the confidential source was therefore harmless.
This case thus stands in stark contrast to other cases in which weve granted relief after the prosecution used out-of-court statements to rebut denials of knowledge and other defense theories. For example, in United States v. Tirado-Tirado , 563 F.3d 117 (5th Cir.2009), Customs and Border Protection apprehended the defendant while helping a foreign national enter the United States illegally. The defendant claimed he had no knowledge of his passengers unlawful status. Id. at 120. To prove otherwise, the government argued that the defendant lied to border patrol agents and met his passenger at a designated location. A challenged deposition was the lone piece of evidence backing each point. Id. at 126. In United States v. Foster , 910 F.3d 813 (5th Cir.2018), the government presented out-of-court statements during its case-in-chief and its closing argument for the very purpose of proving that the defendant knew he was transporting aliens in his tractor trailer across the border. Id. at 816. The jury submitted questions to the court during its deliberations about the out-of-court statements. Id. at 822. The court knew with near certainty that the information had at least some impact. In United States v. Duron-Caldera , 737 F.3d 988 (5th Cir.2013), the government introduced into evidence a 40-year-old affidavit from the defendants maternal grandmother, which it used to disprove the defendants claim that he had derived U.S. citizenship through his mother. The defendant was being prosecuted for illegal reentry after deportation. Id . at 996. His claim of derived citizenship was his sole defense.
3.
This case involves only a small number of fleeting references to out-of-court statements by the confidential informant.
The prosecution mentioned the confidential sources tip only briefly in its opening statement. The entire reference takes up a single sentence. And it is used merely to construct a timeline of events. The dissenting opinion belabors the fact that the prosecutor featured [the informants tip] as the first point in her opening statement. Dis. Op. at 501. But that is simply because the tip from the confidential source triggered the investigation. Any chronology of events naturally starts at the beginning, with the event that prompted the police to set up surveillance. Notably though, the prosecution never drew a connection between the confidential information and Sarlis knowledge that he was carrying drugs.
It should be telling, then, that Sarli himself did not object to the prosecutions opening statement at trial. Nor did he bother to brief it on appeal.
Likewise, Detective Contreras never tried to use the confidential informant to prove Sarlis knowledge. He mentioned the confidential informant only when asked how the investigation came about, and what he and the other officers were looking for when they arrived at the restaurant.
Finally, the prosecution mentioned the informants tip briefly during closing argument.
And once again, when it came to the core dispute over Sarlis knowledge, the prosecution focused on Sarlis own statements: when we come to the end, what hes telling you is that he had that box to deliver to someone at Bill Millers. How can one not knowingly know what that is. And to be financially compensated for it. Who is going to be financially compensated for delivering a Tidy Cats box. Of course youre going to be compensated because you know theres drugs in there. Hes part of it.
To overturn a conviction based on mere fleeting references to out-of-court statements would be tantamount to establishing a rule of per se harm. Our precedents, by contrast, require not just speculation, but a reasonable possibility that the error contributed to the conviction. Meeting that standard requires far more than this case involves. See , e.g. , United States v. London , 746 F. Appx 317, 323, 2018 WL 3933753, at *5 (5th Cir. Aug, 15, 2018) (evidence underscored multiple times throughout trial); Alvarado-Valdez , 521 F.3d at 342 (insistent reliance during closing argument).
4.
Understandably, the dissenting opinion resists the notion that it is applying a standard of per se harm. But consider the proposed theory of harm.
At bottom, the dissenting opinion focuses on a single sentence from the prosecutions rebuttal closing argument to establish a connection between the confidential informant and proving Sarli knew he was carrying drugs: [t]hose factors all go to knowledge and the intent to distribute. Based on this one sentence, the dissenting opinion makes this observation: Evidently, the prosecutor believed the tips implicating Sarli was one factor proving his knowledge and invited the jury to draw that inference. Dis. Op. at 502.
But not once did the prosecutor ever explain to the jury how the tip could possibly help to prove knowledge. To the contrary, the prosecution made clear that it was Sarlis own statements-namely, his dubious cat litter defense-that proved his knowledge. By contrast, nothing in the confidential tip established whether Sarli was a knowing participant or an ignorant, gullible mule-and the prosecutor did not once suggest otherwise.
If we are going to undertake the dramatic step of setting aside a jury verdict and ordering a new trial, we should require more than speculation about what the prosecution might have privately believed. We should require, for example, an actual statement to the jury, explaining how one could reasonably conclude that the tip tends to prove Sarlis knowledge and thereby contributes to his conviction. It is undisputed that no such statement was ever made here.
Our harmless error precedents require a reasonable possibility of taint-not worst case scenarios about what an irrational runaway jury might have done on its own, notwithstanding the arguments actually made by the prosecution. The judgment is affirmed.
STUART KYLE DUNCAN, Circuit Judge, dissenting in part:
I join Part II.A of the majority opinion, which correctly affirms the denial of Sarlis motion to suppress on Fourth Amendment grounds. I respectfully dissent from Part II.B, however, because I would find that admission of the detectives testimony about the confidential informants tip (1) violated the Confrontation Clause and (2) was not harmless error.
I.
Because I disagree with the majority opinions harmless error analysis, see infra , I must first address the prior question of whether admission of the challenged testimony violated the Confrontation Clause. It did.
As the majority recounts, Detective Contreras was allowed to testify he received a tip from a confidential informant that there was a male Hispanic man by the name of Arturo driving a white Avalanche thats [sic ] going to be delivering narcotics. Contreras further explained that, according to the tip, Arturo would deliver the drugs to a specific location (a Bill Millers in the area of Probandt and Highway 90). Based on that tip, surveillance was established that led to Sarlis arrest. Sarlis attorney objected repeatedly to Contrerass testimony on Confrontation Clause grounds but was overruled.
Admission of Contrerass testimony violated the Confrontation Clause because it allowed a police officer to recount an inculpatory testimonial statement by a non-testifying witness whom Sarli never had the chance to cross-examine. See Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; see also, e.g., United States v. Kizzee , 877 F.3d 650 (5th Cir.2017) (explaining that police testimony about the content of statements given to them by witnesses are testimonial under Crawford , and that officers cannot refer to the substance of statements made by a nontestifying witness when they inculpate the defendant) (and collecting decisions). Several sister circuits have correctly held that admission of a confidential informants inculpatory statement under these circumstances implicates the Confrontation Clause. See, e.g., United States v. Shores , 700 F.3d 366, 374 (8th Cir.2012) (explaining that [a] [confidential informants] statement clearly falls within the type of out-of-court statement categorized as testimonial for Confrontation Clause purposes); United States v. Lopez-Medina, 596 F.3d 716, 730 (10th Cir.2010) (same); United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004) (explaining that statements of a confidential informant are testimonial for Confrontation Clause purposes because [t]ips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial); see also 2A WRIGHT, MILLER & MARCUS, FED. PRAC. & PROC. § 412 ([S]tatements by a confidential informant ... are testimonial and therefore subject to exclusion under the Confrontation Clause.).
To be sure, the Confrontation Clause is not implicated when out-of-court statements are offered, not for the truth they assert, but for other purposes-such as to provide context for [an] investigation or explain background facts, especially where a defendant challenges the adequacy of an investigation. Kizzee , 877 F.3d at 659 (citing United States v. Smith , 822 F.3d 755, 761 (5th Cir.2016) ; United States v. Carrillo , 20 F.3d 617, 619 (5th Cir.1994) ; United States v. Castro-Fonseca , 423 F. Appx 351, 353 (5th Cir.2011) ). The government invokes that exception here, claiming testimony about the tip was needed to rebut Sarlis argument that the officers made rookie mistakes. But Contreras could have explained the circumstances leading to Sarlis arrest without divulging the details from the tip (i.e. , Sarlis first name, his ethnicity, his sex, the car he was driving, and the fact that he would be delivering narcotics to a specific location). What we have previously said about such statements applies here: Statements exceeding the limited need to explain an officers actions can violate the Sixth Amendment, particularly where a nontestifying witness specifically links a defendant to the crime[.] Kizzee , 877 F.3d at 659-60 (citations omitted).
In sum, I would find that admission of Detective Contrerass testimony about the confidential informants out-of-court statements violated the Confrontation Clause.
II.
The majority opinion recites the correct harmless error standard for cases where evidence is introduced in violation of the Confrontation Clause: [T]here must be [no] reasonable possibility that the evidence complained of might have contributed to the conviction. Maj. Op. at 496 (quoting United States v. Alvarado-Valdez , 521 F.3d 337, 341 (5th Cir.2008) ). But the majority concludes the government has met this admittedly demanding burden [f]or one simple reason: The prosecutions case turned on statements made by in-court witnesses and not on any out-of-court statement. Maj. Op. at 496. I respectfully disagree.
First, the majority opinion underestimates how important the inadmissible testimony was to the governments case. The majority states there was only a small number of fleeting references to out-of-court statements by the confidential informant. Id. at 498. That is mistaken. Far from making fleeting references to the tip, the prosecutor featured it as the first point in her opening statement. Immediately after greeting the jury, the prosecutor stated:
This is a very simple case. It occurs when Detective Contreras received information that an individual named Sarli, driving a white Avalanche, was distributing methamphetamine .
And the prosecutor returned to the tip in her rebuttal closing:
The case started as a narcotics investigation. Detective Contreras received information from a confidential informant. Based on that information , what he did was look for an Avalanche, a white Avalanche, which is a vehicle that the person transporting to deliver [sic ] the drugs was operating. He identified the person as Arturo.
It is no answer that these references merely established a chronology of events. Maj. Op. at 498. As already explained, the prosecutor could have easily established what triggered the investigation in purely generic terms (i.e. , This all started because of a tip that led the police to surveil and arrest Sarli.). But the prosecutor did far more: she divulged details from a nontestifying witness [that] specifically link[ed] [Sarli] to the crime, Kizzee , 877 F.3d at 659-60 (brackets added), in both opening and closing statements.
We have consistently refused to find harmless error where the prosecutor emphasized the inadmissible testimony in closing argument. See Alvarado-Valdez , 521 F.3d at 342 (given governments insistent reliance on the [challenged] testimony in its closing argument, ... we cannot say the [Confrontation Clause] error was harmless); Tirado-Tirado , 563 F.3d at 126 (in light of governments emphasis in closing argument on tainted testimony, finding reasonable possibility that [testimony] might have contributed to [defendants ] conviction); Jackson , 636 F.3d at 697 (government put great importance on tainted evidence [i]n both its case in chief and its closing argument and therefore cannot conclusively show evidence did not contribute to conviction); see also, e.g., Foster , 910 F.3d at 821-22 (explaining that Alvarado-Valdez ... concluded that the governments significant reliance on inadmissible testimony during closing argument made it impossible for the court to determine if the jury would have convicted based on other testimony or evidence) (citing Alvarado-Valdez , 521 F.3d at 342-43 ); Kizzee , 877 F.3d at 662 (The importance of [challenged] testimony to the prosecutions case can be underscored if it is referenced in closing statements.). This case falls squarely in line with those precedents: indeed, here the government emphasized the inadmissible testimony in opening and closing. As a result, I cannot see how the government can conclusively show that the tainted evidence did not contribute to [Sarlis] conviction, because the governments [opening and] closing argument[s] relied on that very evidence. Alvarado-Valdez , 521 F.3d at 342-43.
Second, the majority opinion incorrectly asserts that the prosecution never drew a connection between the confidential information and Sarlis knowledge that he was carrying drugs. Maj. Op. at 498. To the contrary, in her rebuttal closing the prosecutor (1) brought up the tip (Detective Contreras received information from a confidential informant.); (2) recounted the inculpatory details (He identified the person as Arturo. It was to happen on Probandt at the Bill Millers ... a place ... notorious for drug dealers); (3) described Sarlis stop as consistent with whats been told to the detective before; and (4) concluded that [t]hose factors all go to knowledge and the intent to distribute[.] (emphasis added). Evidently, the prosecutor believed the tips implicating Sarli was one factor proving his knowledge and invited the jury to draw that inference. That explains why she raised the point in rebutting the defenses closing argument that Sarli didnt know that was drugs, and they didnt show it. I thus disagree with the majority that the prosecutor did not attempt[ ] to insinuate that the tip established Sarlis knowledge. Maj. Op. at 498. Moreover, it is speculative to assert, as the majority opinion does, that nothing in the information provided by the confidential source established that Sarli knew he was transporting methamphetamine. Id . at 497. The detective testified the informant told him about a male Hispanic man by the name of Arturo driving a white Avalanche thats [sic ] going to be delivering narcotics. From that testimony, the jury could have readily inferred Sarli knew he was carrying narcotics. At a minimum, there is a reasonable possibility that the out-of-court statement might have contributed to Sarlis conviction, meaning the government cannot show harmless error. Alvarado-Valdez , 521 F.3d at 341.
Third, the majority opinion points to in-court testimony separate from the inadmissible testimony from which the jury could have inferred Sarlis knowledge. See Maj. Op. at 497-98 (discussing (1) Sarlis admission he was paid for the admittedly unusual task of transporting a box of cat litter; (2) the large quantity of meth; (3) testimony about Sarlis nervous behavior; and (4) testimony that Sarli began weeping, said he was afraid of going to prison, and claimed his wife was innocent). But the majority asks the wrong question. The question is not whether there was sufficient untainted evidence to convict Sarli, but whether the government demonstrate[d] beyond a reasonable doubt that the tainted evidence did not contribute to [Sarlis] conviction. Alvarado-Valdez , 521 F.3d at 342 (emphasis and brackets added). Our precedents have rejected this mere sufficiency-of-the-untainted -evidence analysis in Confrontation Clause cases. Lowery v. Collins , 988 F.2d 1364, 1373 (5th Cir.1993). For instance, in Alvarado-Valdez -after noting that the prosecution relied on the tainted evidence in its closing-we explained that [t]here is no way to determine whether the jury would have convicted [the defendant] purely on the basis of [someone elses] testimony or of any of the other evidence, because doing so would require retrying the case on appeal, at best, or engaging in pure speculation, at worst. Id. at 343.
The majority opinion insists that the prosecution did not need the substance of the confidential informants tip to connect Sarli to the crime and that the jury had ample evidence to convict Sarli independent of the detectives illicit testimony about the tip. Maj. Op. at 496, 497, 498. Whether or not that is true, it is precisely the kind of analysis our precedents instruct us not to undertake in assessing harm from introduction of testimony in violation of the Confrontation Clause. Instead, the reviewing court must concentrate on the evidence that violated [the defendants] confrontation right, not the sufficiency of the evidence remaining after excision of the tainted evidence. Lowery , 988 F.2d at 1373.
In sum, I would find that the Confrontation Clause violation was not harmless and that Sarli is therefore entitled to a new trial.
I respectfully dissent.
See also, e.g., United States v. Tirado-Tirado , 563 F.3d 117, 126 (5th Cir.2009) (asking whether government can prove there is no reasonable possibility that the improperly admitted evidence might have contributed to the conviction); United States v. Jackson , 636 F.3d 687, 697 (5th Cir.2011) (asking whether the government can conclusively show that the tainted evidence did not contribute to the conviction ) (quoting Alvarado-Valdez , 521 F.3d at 342-43 ); Kizzee , 877 F.3d at 661 (same); United States v. Foster , 910 F.3d 813, 821 (5th Cir.2018) (same) (citing Alvarado-Valdez , supra ).
That is why finding harm here would not establish[ ] a rule of per se harm, as the majority opinion claims. Maj. Op. at 499. Had the prosecutor avoided mentioning the tainted testimony in her opening and closing arguments, the government would have an easier time meeting its harmless error burden.
See, e.g., Rhodes v. Dittmann , 903 F.3d 646, 665-66 (7th Cir.2018), rehg denied (Oct. 10, 2018) (explaining that harmless error review is not the same as a review for whether there was sufficient evidence at trial to support a verdict); see also Foster , 910 F.3d at 821 (explaining that, in the Confrontation Clause context, [o]ur focus is on the possibility of harm arising from [the tainted testimony] and not necessarily on the possibility of its relationship to other evidence ) (quoting Alvarado-Valdez , 521 F.3d at 342 ) (brackets added).
See also Foster , 910 F.3d at 821-22 (rejecting governments argument that it meets it[s] [harmless error] burden by pointing to other evidence in the record to support conviction); Kizzee , 877 F.3d at 662 (While other circumstantial evidence implicated [defendant] and corroborated [the inadmissible] out-of-court statements, we find this evidence is insufficient to show harmless error beyond a reasonable doubt.); Jackson , 636 F.3d at 697 (concluding government cannot show harmless error [i]n light of [its] reliance on tainted evidence, and notwithstanding the other evidence implicating [defendant] in the conspiracy).