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"
How later courts described this case
- 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"
- finding that Confrontation Clause error was not harmless when testimony was referenced in closing arguments and "no other witness in this case could provide testimony from personal knowledge that Kizzee sold drugs"
- holding disputed testimonial statements irrelevant to one of three counts for which defendant was convicted
- holding that a detective's testimony that he was able to obtain a search warrant for the defendant's house after questioning a witness about drug purchases violated the Confrontation Clause
Written by the judges who cited it.
The opinion
Case: 16-20397 Document: 00514275111 Page: 1 Date Filed: 12/15/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-20397 FILED
December 15, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff–Appellee,
v.
PERENEAL KIZZEE,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, SMITH, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Defendant–Appellant Pereneal Kizzee was charged with possession of
ammunition and firearms by a convicted felon (count one), possession of a
controlled substance with intent to deliver (count two), and possession of a
firearm during and in relation to a drug trafficking crime (count three). Kizzee
pleaded not guilty. At trial, the Government’s key witness was Detective Lance
Schultz. The prosecutor asked Detective Schultz about questions he posed to a
criminal suspect, Carl Brown, during an interrogation. In response to
Detective Schultz’s questions, Brown inculpated Kizzee for distributing
narcotics. But Brown did not otherwise testify, and he was not subject to cross-
examination at trial. Kizzee objected based on hearsay and the Confrontation
Case: 16-20397 Document: 00514275111 Page: 2 Date Filed: 12/15/2017
No. 16-20397
Clause, which the district court overruled. A jury found Kizzee guilty on all
three counts. On appeal, Kizzee argues that the prosecutor’s questions and
Detective Schultz’s testimony effectively admitted Brown’s out-of-court
statements in violation of the Confrontation Clause and the rules on hearsay.
Because we find that the prosecutor’s questioning of Detective Schultz
admitted testimonial hearsay in violation of the Confrontation Clause, we
VACATE Kizzee’s conviction for counts two and three and REMAND for a new
trial.
I. BACKGROUND
On February 4, 2014, Detective Schultz and his partner, Detective Justin
Lehman, were conducting surveillance at 963 Trinity Cut Off Drive in
Huntsville, Texas (the “building” or “house”). 1 The officers had previously
received information suggesting that drugs were being sold at that location,
and they were aware that Defendant Kizzee was frequently seen there during
the day. During their surveillance, the officers observed Carl Brown arrive at
the house, speak with Kizzee on the porch, and depart after two to three
minutes. Suspecting that Brown had purchased drugs from Kizzee, the officers
contacted Officer Taylor Wilkins and requested he follow Brown in order to
develop probable cause and conduct a traffic stop.
Officer Wilkins testified at trial that he stopped Brown after observing a
traffic violation. Officer Wilkins ordered Brown to exit the vehicle and
requested permission to search his person, which Brown granted. After
searching Brown, Officer Wilkins discovered a bag containing 0.54 grams of
crack cocaine inside the liner of his cap. Officer Wilkins arrested Brown and
transported him to the police department. At the police department, Detective
The structure at 963 Trinity Cut Off Drive was approximately 600 or 700 square
1
feet. Although, there were no bedrooms and no kitchen in the structure, it is sometimes
referred to as Kizzee’s residence or house.
2
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No. 16-20397
Schultz questioned Brown. In response to Detective Schultz’s questions, Brown
stated that he purchased the narcotics found in his hat from Kizzee, and he
had purchased drugs from Kizzee on previous occasions. Although Brown had
served as a reliable informant for Schultz in the past, Brown later recanted his
statements to Detective Schultz, denied implicating Kizzee, and indicated he
did not want to testify.
After Detective Schultz questioned Brown, he obtained a search warrant
for the building at 963 Trinity Cut Off Drive. On February 5, 2014, Officer
Wilkins executed the search warrant with the assistance of other officers,
including Agent Jared Yates. When the officers arrived, Kizzee opened the
front door and peeked out of the doorway. Kizzee then shut and locked the door.
The officers forced their way into the building within 45 seconds, and they
found Kizzee in the bathroom filling the toilet with water from a five-gallon
jug. Detective Schultz ordered Kizze to “show me your hands and get on the
ground.” Kizzee looked at Detective Schultz, but continued to pour water into
the toilet bowl until Schultz grabbed Kizzee and arrested him. Kizzee was
removed from the house, searched, and placed in the back of a patrol unit.
The officers thoroughly searched the house and surrounding grounds.
The officers took apart the plumbing associated with the toilet and searched
the pipes, but found no evidence of narcotics. Ultimately, the search yielded
less than a gram of crack cocaine, $1,183 in Kizzee’s front pockets, two rifles,
and ammunition. According to Agent Yates, the search of the house revealed
no evidence of crack cocaine use, nothing consistent with drug distribution, and
no proof that Kizzee destroyed any evidence. The officers found a clear plastic
bag containing 0.2 grams of crack cocaine in the overflow of the bathroom sink.
They also found a microwave and several Pyrex dishes and plastic bowls on the
bathroom shelves. Detective Schultz testified that a Pyrex dish and two plastic
bowls contained a white residue on them, but Jennifer Hass, the Government’s
3
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No. 16-20397
expert witness, testified that no controlled substance was detected on these
items. Two .22 caliber rifles were found in the corner of a room in the building.
The officers also found several surveillance cameras still wrapped in plastic in
the box, and a safe containing a money counter. Two additional rifles were
found in a metal shed behind the building. The officers found three mobile
phones in the house. One phone contained two missed calls from Brown’s phone
number, and one outgoing call to Brown’s mobile phone. The calls were all
made before Brown appeared at Kizzee’s house on the day Brown was arrested.
The phone also contained a text message warning of Brown’s arrest.
Kizzee was arrested and charged with possession of ammunition and
firearms by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (count one),
possession of a controlled substance with intent to deliver in violation of 21
U.S.C. §§ 841(a)(1) and 841 (b)(1)(C) (count two), and possession of a firearm
during and in relation to a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A) (count three). Kizzee pleaded not guilty to all three counts.
After unsuccessfully challenging the validity of the search warrant,
Kizzee stood trial. During Detective Schultz’s testimony for the Government,
the prosecutor inquired about Detective Schultz’s questioning of Brown:
Prosecutor: Detective Schultz, did you ask Mr. Brown a series of
questions after you arrived at the police department?
[Schultz]: Yes, sir, I did.
Prosecutor: Did you ask Mr. Brown whether or not he obtained the
narcotics that were discovered in his hat from Pereneal Kizzee?
[Schultz]: Yes, sir, I did.
Prosecutor: Did you ask him if he obtained the narcotics that were
discovered in his hat immediately prior to being stopped?
[Schultz]: Yes, sir.
Prosecutor: Did you ask Mr. Brown whether or not he had seen any
additional narcotics at 963 Trinity Cut Off?
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[Schultz]: Yes.
...
Prosecutor: Did you ask him whether or not he obtained drugs from
Mr. Kizzee on previous occasions?
[Schultz]: Yes, sir.
Prosecutor: Based on your observations the day before that
involved the surveillance at Mr. Kizzee’s residence, the stop by
Officer Taylor [Wilkins], the discovery of narcotics, and your
subsequent interview of Mr. Brown, what did you and Detective
Lehman do?
[Schultz]: I was able to obtain a search warrant for 963 Trinity Cut
Off.
Defense counsel objected to this line of questioning based on hearsay and the
Confrontation Clause, which the district court overruled.
The jury found Kizzee guilty on all three counts. The court sentenced
him to 130 months of imprisonment, consisting of 70 months each as to counts
one and two, running concurrently, followed by a consecutive term of 60
months as to count three. Kizzee timely filed a notice of appeal.
II. DISCUSSION
A. Confrontation Clause Violation
On appeal, Kizzee argues that Detective Schultz’s testimony implicitly
introduced Brown’s out-of-court statements in violation of the Sixth
Amendment Confrontation Clause and hearsay rules. 2 Kizzee properly raised
a Confrontation Clause objection, thus preserving his claim of error. See United
States v. Polidore, 690 F.3d 705, 710 (5th Cir. 2012). This Court “review[s] the
alleged violation of the Confrontation Clause de novo, subject to a harmless
error analysis.” Id. (citing United States v. Bell, 367 F.3d 452, 465 (5th Cir.
2The Confrontation Clause and hearsay rules are not coextensive, but they do overlap.
See Crawford v. Washington, 541 U.S. 36, 51, 53 (2004). This opinion focuses on the
Confrontation Clause analysis to the extent it is dispositive.
5
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No. 16-20397
2004)). The Government has the burden of “defeating [a] properly raised
Confrontation Clause objection by establishing that its evidence is non-
testimonial.” United States v. Duron–Caldera, 737 F.3d 988, 993 (5th Cir. 2013)
(alteration in original) (quoting United States v. Jackson, 636 F.3d 687, 695 &
n.4 (5th Cir. 2011)).
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The Confrontation
Clause bars the admission of “testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the defendant had []
a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S.
36, 53–54 (2004). The Supreme Court has defined “testimony” as “[a] solemn
declaration or affirmation made for the purpose of establishing or proving some
fact.” Id. at 51 (alteration in original) (citation omitted). But “the Confrontation
Clause ‘does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.’” Williams v. Illinois, 132 S. Ct.
2221, 2235 (quoting Crawford, 541 U.S. at 59–60 n.9). “Police officers cannot,
through their trial testimony, refer to the substance of statements given to
them by nontestifying witnesses in the course of their investigation, when
those statements inculpate the defendant. When the statement from an out-of-
court witness is offered for its truth, constitutional error can arise.” Taylor v.
Cain, 545 F.3d 327, 335 (5th Cir. 2008). We thus examine three issues: first,
whether the prosecutor’s questioning, combined with Detective Schultz’s
testimony, introduced a testimonial statement; second, whether the statement
was offered for its truth, i.e., to show Kizzee’s guilt; and third, whether Brown
was unavailable to testify and Kizzee had a prior opportunity to cross examine
him.
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No. 16-20397
1. Testimonial Statement
We begin our analysis by examining whether the court admitted the
testimonial statement of a witness who did not appear at trial. Crawford, 541
U.S. at 53–54. “[A] statement is testimonial if its ‘primary purpose . . . is to
establish or prove past events potentially relevant to later criminal
prosecution.’” Duron–Caldera, 737 F.3d at 992–93 (quoting Davis v.
Washington, 547 U.S. 813, 822 (2006)). Brown’s statements made to Detective
Schultz while under interrogation by law enforcement are unquestionably
testimonial hearsay. See Crawford, 541 U.S. at 53 (classifying “interrogations
by law enforcement” as testimonial hearsay). In Crawford, the Court explained
that “[s]tatements taken by police officers in the course of interrogations are
also testimonial under even a narrow standard.” Crawford, 541 U.S. at 52; see
also Taylor, 545 F.3d at 335–36. The Court reinforced this view in Davis where
it stated that “[t]he product of [police] interrogation, whether reduced to a
writing signed by the declarant or embedded in the memory . . . of the
interrogating officer, is testimonial.” 547 U.S. at 826.
Instead, the Government argues that no statement made by Brown was
ever introduced at trial, and Detective Schultz testified only as to his own
observations. After objecting to Detective Schultz’s testimony regarding
Brown’s interrogation based on hearsay and the Confrontation Clause, counsel
approached the bench to discuss Brown’s status as a nontestifying witness. The
prosecutor justified his questioning of Schultz by arguing that “hearsay is an
out-of-court statement. You are not going to hear this witness utter one single
word that Carl Brown replied in response to any of the questions. It can’t
possibly be hearsay.” The Government adopts this argument on appeal,
arguing that “[n]o statement made by Brown was offered for its truth;” the only
testimonial statements offered to the jury were Detective Schultz’s own
statements.
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This Court has recognized that police testimony about the content of
statements given to them by witnesses are testimonial under Crawford;
officers cannot refer to the substance of statements made by a nontestifying
witness when they inculpate the defendant. See Taylor, 545 F.3d at 335; Favre
v. Henderson, 464 F.2d 359, 362 (5th Cir. 1972). Where an officer’s testimony
leads “to the clear and logical inference that out-of-court declarants believed
and said that [the defendant] was guilty of the crime charged,” Confrontation
Clause protections are triggered. Favre, 464 F.2d at 364. In Favre, we reasoned
that “[a]lthough the officer never testified to the exact statements made to him
by the informers, the nature of the statements . . . was readily inferred.” Id. at
362. Officer testimony regarding statements made by witnesses is thus
inadmissible where it allows a jury to reasonably infer the defendant’s guilt.
Similarly, a prosecutor’s questioning may introduce a testimonial statement
by a nontestifying witness, thus implicating the Confrontation Clause. See
United States v. Johnston, 127 F.3d 380, 393–95. (5th Cir. 1997); Favre, 464
F.2d at 364; c.f. Gochicoa v. Johnson, 118 F.3d 440, 445–46 (5th Cir. 1997), cert
denied, 522 U.S. 1121 (1998). This is true where “the jury would reasonably
infer that information obtained in an out of court conversation between a
testifying police officer and an informant . . . implicated a defendant in
narcotics activity.” Johnston, 127 F.3d at 395.
Here, Detective Schultz’s testimony introduced Brown’s out-of-court
testimonial statements by implication. At trial, the prosecutor asked Detective
Schultz the specific questions he posed to Brown, and the content of this
testimony implicitly revealed Brown’s statements. See Taylor, 545 F.3d at 336.
Officer testimony that allows a fact-finder to infer the statements made to
him—even without revealing the content of those statements—is hearsay if
“offered to establish identification, guilt, or both.” Favre, 464 F.2d at 362. The
prosecutor’s questions explicitly identified Kizzee by name, linking him to the
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substance of Brown’s interrogation. In fact, the prosecutor’s questions
appeared designed to elicit hearsay testimony without directly introducing
Brown’s statements. Brown’s statements were testimonial because they were
made under interrogation, and the primary purpose of that interrogation was
to establish “past events potentially relevant to later criminal prosecution.”
Davis, 547 U.S. at 822. Brown identified Kizzee as his drug source. Although
the Government did not introduce the exact statements made by Brown’s, the
nature of his statements was readily inferred.
The Government cites two cases in support of its argument that no
statement by Brown was introduced at trial: United States v. Flores, 286 F.
App’x 206 (5th Cir. 2008); United States v. Lopez-Moreno, 420 F.3d 420 (5th
Cir. 2005). But these cases are inapposite; they address whether the admission
of non-assertive conduct by a nontestifying witness triggered a defendant’s
Confrontation Clause rights. It is true, as the Government argues, that where
the content of a statement is not disclosed, the Confrontation Clause may not
be violated. See United States v. Castro–Fonseca, 2011 WL 1549213 (5th Cir.
Feb. 1, 2011); Foy v. Donnelly, 959 F.2d 1307, 1312–13 (5th Cir. 1992). The
Sixth Amendment protection is not triggered where the content of out-of-court
statements is not revealed, and the statements at issue do not imply a
defendant’s guilt. See Castro–Fonseca, 2011 WL 1549213, at *2; Foy, 959 F.2d
at 1313. But in this case, Detective Schultz’s testimony conveyed critical
substance about Brown’s statements, inculpating Kizzee by name and
implying his guilt in the crime charged.
The Government’s argument also disregards the fact that a prosecutor’s
questions may trigger the Confrontation Clause by revealing to the jury that a
nontestifying witness conveyed incriminating information. See Johnston, 127
F.3d at 394. The question in this case is not whether Detective Schultz
explicitly introduced Brown’s out-of-court statements, but whether Brown’s
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out-of-court statements were readily inferred from Detective Schultz’s
testimony. See, e.g., Taylor, 545 F.3d at 336; United States v. Rodriguez-
Martinez, 480 F.3d 303, 308 (5th Cir. 2007); Favre, 464 F.2d at 362. This
approach is consistent with the law of other circuits. See United States v.
Meises, 645 F.3d 5, 21 (1st Cir. 2011) (“If what the jury hears is, in substance,
an untested, out-of-court accusation against the defendant, particularly if the
inculpatory statement is made to law enforcement authorities, the defendant’s
Sixth Amendment right to confront the declarant is triggered.”); Ocampo v.
Vail, 649 F.3d 1098, 1108 (9th Cir. 2011) (“[I]n-court descriptions of out-of-
court statements . . . are ‘statements’ and can violate the Confrontation
Clause, if the requisite requirements are otherwise met.”); Ryan v. Miller, 303
F.3d 231, 249 (2d Cir. 2002) (“If the substance of the prohibited testimony is
evident even though it was not introduced in the prohibited form, the
testimony is still inadmissible.”); Mason v. Scully, 16 F.3d 38, 43 (2d Cir. 1994)
(“The fact that the content of [the co-conspirator’s] statement to [the detective]
was not revealed in detail was immaterial, for the plain implication that the
prosecutor sought to elicit . . . was that the conversation . . . led the police to
focus on [the defendant].”).
The content of Brown’s statements could be readily inferred from the
prosecutor’s questions and Detective Schultz’s testimony. Detective Schultz’s
testimony revealed the substance of Brown’s statements inculpating Kizzee,
leading to the clear and logical inference that Brown believed and said that
Kizzee was the source of his drugs. Thus, the prosecutor’s questioning of
Detective Schultz introduced testimonial statement for purposes of the
Confrontation Clause.
2. Statement Offered for its Truth
Next, we consider whether Brown’s statements introduced at trial
through Detective Schultz’s testimony were offered for their truth: to prove
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Kizzee’s guilt in the crime charged. 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. See Williams, 132 S. Ct. at 2235;
Crawford, 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414
(1985)); Taylor, 545 F.3d at 335.
The Government argues that Schultz’s statements were limited to his
own knowledge and actions, and they explained the basis for obtaining a
warrant. According to the Government, Detective Schultz is permitted to
testify about what he saw, what happened to Brown on February 4, and
Schultz’s actions based on what he learned from Brown and other sources. The
Government characterizes Detective Schultz’s testimony as follows:
The substance of Schultz’s testimony was that he saw Brown
arrive at Kizzee’s, buy drugs, and then leave. Immediately after
that, Brown was arrested and found in possession of drugs. Schultz
and Lehman obtained a search warrant and found drugs, drug
paraphernalia, ammunition, firearms at Kizzee’s house the next
day. This is what Schultz saw and heard on February 4 and 5,
rather than inadmissible hearsay.
Thus, according to the Government, Brown’s statements were not offered to
show Kizzee’s guilt, but for a constitutionally permissible, nonhearsay purpose.
Kizzee argues that a reasonable jury could only have understood Schultz’s
testimony to communicate that Brown identified Kizzee as his drug source.
Because the prosecutor’s implicit statements suggested Kizzee’s guilt and were
not necessary to explain Schultz’s actions, we find that Detective Schultz’s
testimony introduced Brown’s statements for their truth.
Testifying officers may provide context for their investigation or explain
“background” facts. See United States v. Smith, 822 F.3d 755, 761 (5th Cir.
2016). Such out-of-court statements are not offered for the truth of the matter
asserted therein, but instead for another purpose: to explain the officer’s
actions. See Castro–Fonseca, 2011 WL 1549213, at *2; United States v. Carrillo,
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20 F.3d 617, 619 (5th Cir. 1994). These statements often provide necessary
context where a defendant challenges the adequacy of an investigation. But
absent such claims, there is a questionable need for presenting out-of-court
statements because the additional context is often unnecessary, and such
statements can be highly prejudicial. See 2 McCormick on Evidence § 249 (7th
ed. 2013) (citation omitted) (“The need for this evidence is slight, and the
likelihood of misuse great.”). Statements exceeding the limited need to explain
an officer’s actions can violate the Sixth Amendment—where a nontestifying
witness specifically links a defendant to the crime, testimony becomes
inadmissible hearsay. See Taylor, 545 F.3d at 335; Johnston, 127 F.3d at 394
(“The more directly an out-of-court statement implicates the defendant, the
greater the danger of prejudice.”); United States v. Evans, 950 F.2d 187, 191
(5th Cir. 1991); United States v. Hernandez, 750 F.2d 1256, 1257 (5th Cir.
1985); United States v. Gomez, 529 F.2d 412, 416-17 (5th Cir. 1976); see also
United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). Questions by
prosecutors can also trigger Confrontation Clause violations. See Johnston, 127
F.3d at 402–03; Favre, 464 F.2d at 362–64; Meises, 645 F.3d at 21–23. A
prosecutor may violate the Confrontation Clause by introducing an out-of-court
statement, even indirectly, if offered for its truth by suggesting a defendant’s
guilt. See Johnston, 127 F.3d at 394–95. In Hernandez, 750 F.2d at 1257–58.
In this case, the prosecutor’s questions and Detective Schultz’s
subsequent testimony exceeded the scope required to explain Detective
Schultz’s actions. Detective Schultz’s testimony left the jury with the
impression that Brown’s statements were instrumental in obtaining a search
warrant. While Detective Schultz no doubt observed this interrogation, his
observations cannot serve as a justification to circumvent constitutional
protections; testimony introducing out-of-court statements by a nontestifying
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witness can result in a violation of the Confrontation Clause. 3 Admitting
testimony regarding Brown’s interrogation was not necessary to explain
Detective Schultz’s actions; there was minimal need for Detective Schultz to
explain the details forming the basis of the search warrant. Detective Schultz
could have merely explained that he obtained a warrant to search Kizzee’s
property following Brown’s arrest. In fact, the Government’s characterization
of Detective Schultz’s testimony on appeal does just this, omitting that the
prosecutor questions Detective Schultz regarding Brown’s interrogation.
Detective Schultz’s testimony was not limited to merely explaining his
actions; it showed that Brown bought drugs from Kizzee, and Kizzee had more
at the house. Testimony regarding questions posed to Brown was not
necessary. Other circumstantial evidence and Detective Schultz’s observations
would have been sufficient to explain his investigatory actions and provide
background information. Thus, Brown’s out-of-court statements inculpating
Kizzee were introduced for their truth—to show Kizzee’s guilt in the crime
charged.
3. Unavailable Witness and Prior Opportunity to Cross-Examine
Even if a testimonial statement is admitted against a defendant at a
criminal trial, the Sixth Amendment is not violated if both the declarant is
unavailable to testify and the defendant had a prior opportunity to cross-
examine him or her. Crawford, 541 U.S. at 53–54. The Government suggests
that Kizzee had an opportunity to cross-examine Brown because he could have
3 In support of its argument, the Government offers two cases holding that law
enforcement officers may testify about their own observations. See United States v. Potwin,
136 F. App’x 609 (5th Cir. 2005); United States v. Gauthier, 2001 WL 85819 (5th Cir. Jan. 15,
2001). These cases are inapposite; neither involves law enforcement officer testimony
regarding the substance of statements made in the course of interrogation. See Potwin, 136
F. App’x at 611; Gauthier, 2001 WL 85819, at *1. In this case, Detective Schultz questioned
Brown, and Brown provided answers in the form of statements, implicating Kizzee.
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called him as a witness by subpoenaing him. The Government argues that it
offered to stay the trial while he did so, but Kizzee refused. Thus, according to
the Government, Kizzee had a prior opportunity to cross-examine Brown. The
Government also repeatedly suggests that cross-examining Detective Schultz
was sufficient because this case does not involve statements by out-of-court
declarants; Schultz was a witness against Kizzee, he was present at trial, and
he was subject to cross-examination. On the other hand, Kizzee argues that
Brown’s statements were admitted at trial, and he questions Brown’s
credibility as a witness. He further contends that it should not be incumbent
on the defense to produce witnesses for the Government; to suggest otherwise
misunderstands the burden of proof in a criminal case.
We agree. The fact that a defendant could call a witness cannot fairly
constitute a prior opportunity to cross-examine that witness. Otherwise, a
prosecutor could introduce hearsay statements by any available witness
merely by proposing that the defense could call them instead. Even if Kizzee
had a prior opportunity to examine Brown, Brown was not unavailable as
defined by the Federal Rules of Evidence. See Fed. R. Evid. 804(a) (listing
criteria for being unavailable as a witness). In fact, the Government concedes
that “Brown was not unavailable as a witness. The United States had
subpoenaed Brown, but elected not to call him.” The Government did not offer
any reason why it did not elect to call Brown as a witness, only that it was “not
interested in having [Brown].” Finally, a police officer’s testimony is no
substitute for a nontestifying declarant and does not cure a Sixth Amendment
violation. See Davis, 547 U.S. at 826; Ocampo, 649 F.3d at 1113. Thus, we find
that Kizzee’s Sixth Amendment right to confront adverse witnesses at trial was
violated by Detective Schultz’s testimony when the prosecutor implicitly
introduced Brown’s out-of-court statements.
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B. Harmless Error
Kizzee argues that the error in admitting Brown’s statements in
violation of the Confrontation Clause and hearsay rules was not harmless.
According to Kizzee, he was not permitted to cross-examine Brown about his
out-of-court statements, which were critical to the Government’s case. Kizzee
similarly questions the reliability of Brown as a witness. Kizzee also argues
that no other witness in this case could provide testimony from personal
knowledge about Kizzee’s drug sales. The Government only argues that Kizzee
cannot show that the admission of hearsay affected his substantial rights.
Confrontation Clause violations and errors in the admission of hearsay
evidence are subject to review for harmless error. Polidore, 690 F.3d at 710;
United States v. El-Mezain, 664 F.3d 467, 494 (5th Cir. 2011). A defendant
deprived of the right to confront adverse witnesses is entitled to a new trial
unless the Government proves harmless error beyond a reasonable doubt.
Duron–Caldera, 737 F.3d at 996; Rodriguez-Martinez, 480 F.3d at 308.
Harmless error means that “there is [no] reasonable possibility that the
evidence complained of might have contributed to the conviction.” Chapman v.
California, 386 U.S. 18, 24 (1967). We find that the Government failed to show
that the statements did not contribute to Kizzee’s conviction beyond a
reasonable doubt. 4 This Court considers five factors when evaluating whether
an error was harmless: (1) “the importance of the witness’ testimony in the
prosecution’s case,” (2) “whether the testimony was cumulative,” (3) “the
4 Kizzee was convicted of three counts: possession of ammunition and firearms by a
convicted felon in violation of 18 U.S.C. § 922(g)(1) (count one), possession of a controlled
substance with intent to deliver in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C) (count
two), and possession of a firearm during and in relation to a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1)(A) (count three). The testimonial statements at issue in this case
pertained to Kizzee’s role in distributing a controlled substance, implicating counts two and
three. The statements were not relevant to count one. Kizzee’s conviction for possession of
ammunition and firearms by a convicted felon is thus undisturbed by our ruling.
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presence or absence of evidence corroborating or contradicting the testimony
of the witness on material points,” (4) “the extent of cross-examination
otherwise permitted,” and (5) “the overall strength of the prosecution’s case.”
Duron–Caldera, 737 F.3d at 996 (citations omitted).
The Government referenced Detective Schultz’s testimony and Brown’s
interrogation in its closing statement. The importance of testimony to the
prosecution’s case can be underscored if it is referenced in closing statements.
United States v. Alvarado-Valdez, 521 F.3d 337, 342–43 (5th Cir. 2008) (“Our
task would be difficult were it not for the government’s insistent reliance on
the testimony in its closing argument, in light of which we cannot say the error
was harmless.”). Brown’s statements also secured a search warrant for Kizzee’s
property. And they were crucial to establishing that Kizzee intended to sell or
distribute the 0.2 grams of crack found in the house. With evidence that Brown
obtained the drugs from Kizzee, the Government could establish Kizzee as a
drug dealer rather than possessor. No other testimony was presented to
connect Kizzee to Brown as the source of Brown’s drugs. See Rodriguez-
Martinez, 480 F.3d at 308 (finding harmful error where an informant’s out-of-
court statement was the only evidence definitively identifying defendant as the
drug source). And Brown was not presented as a witness at trial; Kizzee did
not have a prior opportunity to cross-examine a key witness for the
Government whose testimony was vital to the Government’s case. Yet Brown
was available as a witness; the Government subpoenaed Brown, but did not
offer any reason for not electing to call him.
While other circumstantial evidence implicated Kizzee and corroborated
Brown’s out-of-court statements, we find this evidence is insufficient to show
harmless error beyond a reasonable doubt. Detective Schultz testified that the
Kizzee’s property was known for drug transactions, and he regularly saw drug
traffickers at the address in question. He also observed Brown briefly speak to
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No. 16-20397
Kizzee at the address, and he identified their interaction as a drug transaction
based on his experience. After stopping and searching Brown, another officer
found Brown to be in possession of crack cocaine. Schultz also testified that
Kizzee was present at the house, and cell-phone logs linked Kizzee to Brown.
Kizzee was found with $1,183 in his front pockets. Officers also found guns and
ammunition in the house, as well as apparently new surveillance cameras. But
other evidence on the record contradicts Brown’s statements. Only 0.2 grams
were found in the house, less than the 0.54 grams found on Brown’s person.
Dishes found in the house had no evidence of any controlled substance when
tested. And other officers testified that nothing was found in Kizzee’s house
that was consistent with using or distributing narcotics. There was also no
evidence recovered to indicate that Kizzee destroyed any evidence in the house.
This circumstantial evidence offered by the Government is inconclusive at best,
and the prejudice caused by the prosecutor’s improper questioning is more
likely to have contributed to Kizzee’s conviction. Thus, the Government’s has
not shown beyond a reasonable doubt that the admission of Brown’s
statements was harmless error.
As Kizzee argues, no other witness in this case could provide testimony
from personal knowledge that Kizzee sold drugs. Brown’s testimony was
crucial to establishing Kizzee’s guilt. But Kizzee questions Brown’s credibility
as a witness, and Brown denies ever making the statements attributed to him
in the warrant application. The only remaining evidence establishing Kizzee
as a drug dealer was circumstantial. And the remaining circumstantial
evidence does not appear to be enough to show that “there is [no] reasonable
possibility that the evidence complained of might have contributed to the
conviction.” Chapman, 386 U.S. at 24. Thus, we conclude that the violation of
Kizzee’s Sixth Amendment right was not harmless.
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III. CONCLUSION
For the foregoing reasons, we find that the introduction of Brown’s out-
of-court statements through the prosecutor’s questioning of Detective Schultz
admitted testimonial hearsay in violation of the Confrontation Clause. As a
result, we VACATE Kizzee’s conviction for counts two and three and REMAND
for a new trial.
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