United States v. Vargas: Contextual Use of Informant Recordings Does Not Implicate the Confrontation Clause; Compulsory Process Requires a Plausible Showing of Favorability

Introduction

This commentary examines the Third Circuit’s nonprecedential decision in United States v. Jose L. Vargas (No. 24-2318, Oct. 3, 2025), affirming drug convictions arising from a sting involving recorded calls between the defendant and a cooperating individual, and granting defense counsel’s motion to withdraw under Anders v. California, 386 U.S. 738 (1967).

The appeal centered on three clusters of issues:

Whether appellate counsel’s Anders submission was adequate and whether the record revealed any nonfrivolous appellate issues.
Whether admitting recorded statements of a cooperating informant (who did not testify) violated the Sixth Amendment’s Confrontation Clause, especially in light of Smith v. Arizona, 602 U.S. 779 (2024).
Whether the defendant’s Sixth Amendment compulsory process rights were violated by the informant’s absence (following deportation), and whether the evidence was sufficient to support convictions for conspiracy and attempt to possess with intent to distribute methamphetamine.

The parties were the United States (appellee) and Jose L. Vargas (appellant). The panel (Judges Shwartz, Matey, and Fisher) held argument submission under L.A.R. 34.1(a) and issued a nonprecedential disposition authored by Judge Shwartz.

Summary of the Opinion

Anders Framework: The court granted defense counsel’s Anders motion, concluding that counsel fulfilled the obligations under Third Circuit Local Appellate Rule 109.2(a) and that an independent review of the record revealed no nonfrivolous issues.
Confrontation Clause: No violation occurred because the cooperating informant’s recorded statements were admitted not for their truth, but solely to contextualize the defendant’s own statements. The court cited Smith v. Arizona and United States v. Hendricks to reaffirm the “context-of-conversation” principle.
Compulsory Process: No violation occurred because the defendant failed to make a plausible showing that the absent informant would have offered material and favorable testimony, as required by United States v. Valenzuela-Bernal and Pennsylvania v. Ritchie.
Sufficiency of the Evidence: The convictions for conspiracy and attempted possession with intent to distribute were supported by sufficient evidence under the “bare rationality” standard from United States v. Caraballo-Rodriguez (en banc). Evidence included recorded calls, surveillance corroboration, a paid retrieval effort using a third party, and drug-distribution indicia found on Vargas.
Outcome: Convictions and sentences (mandatory minimum 10 years concurrent on each count under 21 U.S.C. § 841(b)(1)(A)) affirmed; Anders motion granted.

Factual and Procedural Background

While incarcerated, Ramon Medina Colon agreed to cooperate with law enforcement and made recorded calls with Vargas about retrieving a backpack containing drugs from a car. In the calls, the two used coded terms—“papers,” “the book,” “jewelry”—to describe the items. A family member of Colon delivered a backpack to police, who found approximately 2,500 grams of methamphetamine, then replaced the contents with “sham” drugs and staged the backpack in a car.

Police observed Vargas approach the car but find it locked. After another call in which Colon indicated a key was on the tire, Vargas hired Francis Fermin for $200 to retrieve the backpack. Fermin did so and was arrested. Vargas was arrested soon after with about $4,600 in cash, multiple cell phones, and empty zip-top bags. Colon was later deported.

A jury convicted Vargas of (1) attempted possession with intent to distribute 500 grams or more of a substance containing methamphetamine and (2) conspiracy to distribute and possess with intent to distribute 500 grams or more of a substance containing methamphetamine, both under 21 U.S.C. § 846. The district court imposed the statutory mandatory minimum of ten years on each count, concurrent. Vargas appealed; his counsel moved to withdraw under Anders. Vargas also filed a pro se brief.

Analysis

Precedents Cited and Their Influence

Anders v. California, 386 U.S. 738 (1967); Penson v. Ohio, 488 U.S. 75 (1988); Third Circuit L.A.R. 109.2(a); United States v. Youla, 241 F.3d 296 (3d Cir. 2001); United States v. Brookins, 132 F.4th 659 (3d Cir. 2025); United States v. Langley, 52 F.4th 564 (3d Cir. 2022); McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429 (1988)

These cases frame the Anders process: counsel must thoroughly review the record, identify potential issues, and explain why they lack arguable merit; the court then independently reviews the record. Brookins reemphasizes the need to explain why identified issues are frivolous. Langley clarifies that an Anders brief can still be adequate even if it does not canvass every conceivable issue (though discussing likely issues such as sufficiency is “helpful”). McCoy provides the touchstone definition of “frivolous” as lacking any basis in law or fact.

Smith v. Arizona, 602 U.S. 779 (2024); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005)

Smith reconfirms that the Confrontation Clause bars testimonial hearsay when offered for the truth without prior cross-examination, but not when a statement is offered for a non-truth purpose (e.g., to provide context). Hendricks, a Third Circuit case, articulates the integrated-conversation principle: where the defendant’s recorded statements are admitted, the informant’s side may be played as needed for context without violating confrontation rights, provided it is not admitted for the truth of the matter asserted.

Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Valenzuela-Bernal, 458 U.S. 858 (1982); United States v. Schaefer, 709 F.2d 1383 (11th Cir. 1983); Orie v. Sec’y Pa. Dep’t of Corr., 940 F.3d 845 (3d Cir. 2019)

These authorities define the compulsory process right: the defendant must make a plausible showing that the absent witness’s testimony would be both material and favorable. Mere speculation that the testimony “could conceivably benefit” the defense is insufficient. Courts routinely reject claims premised on hypothesized favorable testimony with no record basis.

United States v. Caraballo-Rodriguez, 726 F.3d 418 (3d Cir. 2013) (en banc); United States v. Hayward, 359 F.3d 631 (3d Cir. 2004); Alleyne v. United States, 570 U.S. 99 (2013)

Caraballo-Rodriguez supplies the “bare rationality” standard for sufficiency: reviewing courts must uphold the verdict if any rational trier of fact could find the elements beyond a reasonable doubt. Hayward lays out attempt elements (intent plus substantial step). Alleyne requires that facts increasing mandatory minimums be found by a jury beyond a reasonable doubt, relevant because the drug quantity threshold triggered § 841(b)(1)(A)’s ten-year minimum.

Legal Reasoning

1) Anders Adequacy and Independent Review

Applying L.A.R. 109.2(a) and Youla, the court first evaluated counsel’s Anders brief. Counsel reported a full review of the record and explained why the two principal issues the client wanted raised (Confrontation Clause and compulsory process) lacked merit. The panel deemed the submission adequate under Brookins. The court noted it would have been helpful for counsel to address sufficiency-of-the-evidence directly but, under Langley, the omission did not render the brief inadequate. The court then independently canvassed the record and found no nonfrivolous issues.

2) Confrontation Clause and Recorded Informant Statements

Vargas argued that his inability to cross-examine the cooperating informant, Colon (who did not testify), violated the Confrontation Clause because the jury heard Colon’s recorded statements. The panel rejected the claim on two grounds:

First, Colon did not testify, and agents did not relay his statements through testimony; instead, the jury heard recordings of reciprocal conversations between Colon and Vargas.
Second, consistent with Smith and Hendricks, Colon’s recorded statements were admitted not for their truth, but to provide context for Vargas’s statements and actions. Because the statements were admitted for a non-truth purpose, the Confrontation Clause was not implicated.

This reasoning harmonizes modern confrontation jurisprudence: testimonial statements offered for their truth trigger the Clause; statements employed for context do not. The court’s analysis underscores careful evidentiary framing by the prosecution and trial courts to ensure such statements are limited to contextual purposes.

3) Compulsory Process and the Absent (Deported) Witness

Vargas contended that the deportation and resulting absence of Colon violated his compulsory process rights. Under Valenzuela-Bernal and Ritchie, the defense must present a plausible showing that the missing witness would offer material and favorable testimony. The record offered no basis to believe Colon would help the defense; to the contrary, he cooperated with law enforcement to set up the transaction. Citing the Eleventh Circuit’s Schaefer decision, the panel emphasized that defendants cannot simply hypothesize favorable testimony; some concrete record foundation is required. The claim was therefore frivolous.

4) Sufficiency of the Evidence: Conspiracy and Attempt

Even though defense counsel did not press a sufficiency challenge, the panel addressed Vargas’s pro se sufficiency arguments. Applying Caraballo-Rodriguez’s deferential “bare rationality” standard, the court concluded that a rational jury could find:

Conspiracy: A unity of purpose, intent to achieve a common unlawful goal (drug distribution), and an agreement—evidenced by the recorded calls coordinating the pickup of a drug-stuffed backpack, the use of coded terminology consistent with concealment, and delegation of pickup to Fermin for $200.
Attempt: Intent to engage in the proscribed conduct and a substantial step corroborating that intent—evidenced by Vargas’s approach to the car, his recruitment of Fermin to retrieve the backpack, and the possession of cash, multiple phones, and empty baggies indicative of distribution activity. Under Hayward, these facts suffice to corroborate criminal intent and substantial step.

The panel also dismissed Vargas’s suggestion that “jewelry” references supported a benign interpretation, noting the broader context of coded language (“papers,” “book,” “documents”) and deferring to the jury’s reasonable inference that the speakers were concealing drug discussions.

5) Other Pro Se Points

The court observed that Vargas received the missing-witness instruction he sought, rendering that claim meritless, and reiterated that ineffective-assistance-of-counsel claims are ordinarily reserved for collateral proceedings, not direct appeal.

Impact and Practical Implications

Although the disposition is nonprecedential under Third Circuit I.O.P. 5.7, it signals several important practice points across evidence, constitutional criminal procedure, and appellate practice:

Confrontation Clause—Contextual Use of Informant Statements:
- Post-Smith v. Arizona, the Third Circuit continues to recognize that informant statements in recorded conversations may be admitted to provide context for the defendant’s own admissions, without violating confrontation principles, so long as the statements are not admitted for their truth.
- Prosecutors should carefully articulate, and trial courts should enforce, the limited purpose of such admissions. Although not discussed here, a contemporaneous limiting instruction is often advisable to further insulate the record.
Compulsory Process—Plausible Showing Required:
- Defendants challenging the absence of a witness (including a deported witness) must proffer a plausible, record-grounded showing that the witness would offer material and favorable testimony. Conclusory or speculative assertions will not suffice.
- For the government, when a cooperating witness may be deported, it remains prudent to document efforts to preserve testimony and to evaluate exculpatory value, but Valenzuela-Bernal’s standard puts the initial burden on the defense to show materiality and favorability.
Sufficiency of the Evidence—Coded Language and Circumstantial Proof:
- Caraballo-Rodriguez’s “bare rationality” standard remains a formidable barrier to sufficiency challenges in narcotics cases. Coded language, corroborated by surveillance and possession of distribution paraphernalia, can easily clear the rationality threshold.
- Sting operations using sham narcotics typically do not undermine attempt convictions; the key is intent and substantial step, not the presence of actual contraband.
Anders Submissions—Third Circuit Expectations:
- Brookins underscores that Anders briefs must both reflect thorough record review and explain why potential issues are frivolous. While not required, the Vargas panel’s note that addressing sufficiency is “helpful” is a practical signal for defense counsel drafting Anders briefs.
- The court will still independently review the record, and may consider pro se filings, but adequate Anders briefing remains essential.

Complex Concepts Simplified

Anders Brief: When appellate counsel believes an appeal is frivolous, Anders allows counsel to seek withdrawal while submitting a brief flagging any potential issues and explaining why they lack merit. The appellate court then independently reviews the record to protect the defendant’s rights.
Frivolous Issue: An issue lacking any basis in law or fact; if an issue is “arguable,” the appeal is not frivolous.
Confrontation Clause: Bars admission of testimonial statements offered for their truth when the declarant is unavailable and the defendant lacked prior cross-examination. Statements admitted for context—not for truth—do not trigger the Clause.
Compulsory Process: Guarantees defendants the ability to summon witnesses in their favor. To claim a violation due to an absent witness, the defendant must plausibly show the witness’s testimony would be both material (likely to affect the outcome) and favorable (helpful to the defense).
Attempt: Requires intent to commit the crime and a substantial step toward completing it; possession of sham drugs does not preclude attempt if the defendant believed the drugs were real and took meaningful steps toward possession.
Conspiracy: Requires an agreement, unity of purpose, and intent to achieve an unlawful objective. It can be proven through circumstantial evidence such as coordinated communications and actions.
“Bare Rationality” (Sufficiency): On appeal, the verdict stands if any rational juror could find guilt beyond a reasonable doubt when viewing evidence in the government’s favor; appellate courts do not reweigh credibility or substitute their inferences for the jury’s.
Missing-Witness Instruction: Tells jurors they may infer that a party’s failure to call a witness within its control suggests the testimony would not favor that party; its availability depends on the circumstances and control over the witness.
Mandatory Minimum: Certain drug quantities trigger statutory minimum sentences (here, ten years under § 841(b)(1)(A)), which must be supported by jury-found facts beyond a reasonable doubt under Alleyne.

Conclusion

United States v. Vargas is a careful application of settled doctrine rather than a departure from it. The Third Circuit reaffirms that:

Informant statements in recorded calls may be admitted to provide context for a defendant’s admissions without violating the Confrontation Clause, consistent with Smith v. Arizona and United States v. Hendricks.
A compulsory process challenge fails absent a plausible, record-based showing that an absent witness would offer material and favorable testimony.
Under Caraballo-Rodriguez’s deferential standard, circumstantial evidence—coded communications, corroborative surveillance, transactional conduct, and distribution indicia—supports conspiracy and attempt verdicts.
Anders briefs must reflect thorough review and reasoned explanation; while not mandatory, addressing sufficiency is a prudent practice.

Although nonprecedential, the opinion offers clear guidance to trial courts and practitioners on evidentiary framing of recorded informant conversations, the burden for compulsory process claims involving absent or deported witnesses, and the practical demands of Anders briefing in the Third Circuit. The court’s disposition underscores that, when appropriately constrained to context, informant recordings are admissible without implicating confrontation concerns, and that speculative assertions cannot sustain constitutional challenges or disrupt jury verdicts supported by rational inferences from the evidence.