United States v. Kennedy Polidore , 690 F.3d 705 ( 2012 )

Case: 09-40896 Document: 00511954949 Page: 1 Date Filed: 08/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 13, 2012
No. 09-40896 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENNEDY PAUL POLIDORE,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
GARZA, Circuit Judge:
A jury found the defendant, Kennedy Polidore, guilty of possessing crack
cocaine with the intent to distribute it. On appeal, Polidore contends that
reversible error occurred when portions of two 911 calls were admitted into
evidence. For the following reasons, WE AFFIRM.
I
On the night of Polidore’s arrest, two anonymous 911 calls made by the
same individual alerted the police to possible criminal activity. On the portion
of the first 911 call that was played to the jury after other portions of the call
had been redacted, the following colloquy took place, which started at 12:15 A.M.
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Operator: 911, where is your emergency? Sir, you’re phone is cutting
out. You called about what?
Caller: All of this drug activity over off Sweetgum?
Operator: What address on Sweetgum?
Caller: I’m not gon—Why would I tell you? I’m trying to be
anonymous and get y’all to get these drug dealers from over
here.
Operator: Sir, I’m not giving your name out so give me the information
so that I can send the officers to the right place, where you’re
at.
Caller: It’s a red PT Cruiser. This guy is selling—
Operator: Sir, give me the address.
Caller: 2505 Sweetgum. All this traffic.
Operator: Did you see his license plate number?
Caller: It’s—uh—I know it’s a red PT Cruiser. I—I can go back out
there and get it, but I don’t want him to know that—
Operator: Okay, do you know his name?
Caller: Kennedy Polidore.
Operator: Do you know what kind of drugs he’s selling?
Caller: He’s selling crack.
Operator: Which apartment is he in right now?
Caller: He don’t even live out here. He’s just sitting on the steps.
He’s running in and out, in and out. People coming—
Operator: What’s he wearing tonight?
Caller: Ma’am?
Operator: What’s he wearing tonight?
Caller: He’s got some green shorts on and a white t-shirt. The car is
sitting off of—uh—11th, yeah that’s 11th,
and—uh—Sweetgum.
On the portion of the second 911 that was played to the jury, the following
colloquy took place, which began at 12:24 A.M.
Operator: Phone line 911, where is your emergency?
Caller: Hey, I was the one just called about the drug deal that’s going
down over here on Sweetgum.
Operator: Yes, sir.
Caller: Ok. He’s got the dope in the side door panel.
Operator: The dope’s in the side door panel?
Caller: Yeah. He—the—
Operator: The right or the left side?
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Caller: Uh—of the driver's side—And—but I want them to do it when
they leave here ‘cause he’s for sure got it in the car ‘cause he
didn’t know I was the one called ‘cause I the only one seen it.
Operator: Okay, how did you see it sir?
Caller: I seen him put it in there. I can see it right now.
Operator: Okay, I’m adding the information to the call. Thank you, sir.
Caller: Okay. But would you tell them not to do it here? Cause I
don’t want him to think that I was the one told (inaudible)
pulls off going down the street.
Operator: Ok.
Caller: Thank you.
Operator: You’re welcome.
The two responding police officers later testified that on the night in
question they received a call via radio dispatcher requesting that they respond
to the Monterrey Apartments at 2505 Sweetgum in order to look for “a red PT
Cruiser in the parking lot with a black male occupying the PT Cruiser who was
in the apartment selling narcotics.” When they arrived at the address given by
the 911 caller, they observed a red PT Cruiser, which was parked, unoccupied,
and had its driver’s side window down. Because the dispatcher had informed the
officers that the suspect was keeping some of the narcotics inside a compartment
on the driver’s side of the vehicle, they looked from outside the vehicle and
observed what appeared to be three rocks of crack cocaine in plain view.
The officers further testified that a man then approached them, identified
himself as the 911 caller, and provided them with some information about the
suspect and the PT Cruiser. Believing that the suspect would return to the
unoccupied car, the officers devised a plan whereby one would hide behind a
nearby fence and the other would drive the patrol unit around the corner. About
five minutes later, a black male, dressed in dark-colored shorts and a white
t-shirt, exited the apartment complex and entered the PT Cruiser on the driver’s
side; a female entered the vehicle on the passenger’s side. The officer behind the
fence alerted the officer in the patrol unit via a call on his cell phone. The officer
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in the patrol unit returned to the apartment parking lot, activated his
emergency lights, and followed the PT Cruiser. Once the officer activated his
emergency equipment, the driver of the PT Cruiser accelerated to speeds of 60
to 65 miles per hour before failing to negotiate a turn and ending up in a vacant
lot. As he was running up to the vehicle, the officer saw the driver’s side door
open and the driver stick his arm out and throw something underneath the
vehicle. The driver identified himself as Kennedy Polidore and the officer took
him into custody. After the officer handcuffed Polidore, he discovered what
turned out to be a clear bag of powder cocaine on the driver’s side floorboard.
The officer also retrieved three rocks of crack cocaine from the same place earlier
observed, and once the car was moved by a wrecker, he discovered a clear bag of
crack cocaine on the ground where the car previously stood.1 The officers
testified that, based on their training and experience, the bag of crack cocaine
recovered from underneath the vehicle was a “large amount” and was consistent
with distribution purposes.
Polidore was charged by indictment with one count of possession with
intent to distribute five grams or more but less than 50 grams of a mixture or
substance containing a detectable amount of cocaine base. The Government
subsequently filed a notice and information of prior convictions for purposes of
increased punishment provided by 21 U.S.C. §§ 841(b)(1)(B) and 851. The jury
found Polidore guilty as charged. The district court sentenced him to 137
months of imprisonment, to be followed by eight years of supervised release.
Polidore filed a timely notice of appeal.
II
On appeal, Polidore claims that the district court erred by admitting the
911 recordings into evidence because the recordings contained testimonial
1
At trial, a forensic scientist testified that the substances found in and underneath the
car were cocaine base (0.63 grams and 19.57 grams) and cocaine hydrochloride (27.66 grams).
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hearsay that violated his Sixth Amendment right to be confronted with the
witnesses against him. He asserts that the recordings were prejudicial and
extremely harmful to his defense. Polidore alternatively contends that even if
the caller’s statements were nontestimonial, the district court erred by admitting
the 911 recordings because they contained hearsay that did not fall under any
of the exceptions to the rule against hearsay.2
A
By proper objection, Polidore preserved his claim of error that the
admission of the 911 recordings violated his right to confrontation. Accordingly,
we review the alleged violation of the Confrontation Clause de novo, subject to
a harmless error analysis. United States v. Bell, 367 F.3d 452, 465 (5th Cir.
2004).
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 Clause “applies to
‘witnesses’ against the accused—in other words, those who ‘bear testimony.’”
Crawford v. Washington, 541 U.S. 36, 51 (2004) (citation omitted). “‘Testimony,’
in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose
of establishing or proving some fact,’” id. (citation omitted), a description which
we have held “includes ‘statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would
be available for use at a later trial.’” Brown v. Epps, — F.3d —, 2012 WL
2401670, at *3 (5th Cir. June 27, 2012) (quoting Crawford, 541 U.S. at 52). The
2
Polidore also argues that his case should be remanded to the district court for
resentencing under the Fair Sentencing Act of 2010. However, Polidore was convicted and
sentenced before the effective date of the FSA. In United States v. Doggins, 633 F.3d 379, 384
(5th Cir. 2011), we held that the FSA does not apply retroactively to cases where sentencing
occurred prior to the effective date of the Act. Hence, Polidore’s argument is foreclosed by
circuit precedent.
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Clause’s reach is limited to testimonial statements and “in order for testimonial
evidence to be admissible, the Sixth Amendment ‘demands what the common
law required: unavailability and a prior opportunity for cross-examination.’”
Michigan v. Bryant, 131 S. Ct. 1143, 1153 (2011) (citation omitted).
Although the Supreme Court has declined to “spell out a comprehensive
definition of ‘testimonial,’” it has noted that “‘at a minimum’ it includes ‘prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and
. . . police interrogations.’” Id. (citation omitted) (emphasis added). However,
“not all ‘interrogations by law enforcement officers[]’ are subject to the
Confrontation Clause.” Id. (internal citation omitted).3 For instance, the Court
has held that “interrogations solely directed at establishing the facts of a past
crime, in order to identify (or provide evidence to convict) the perpetrator” fall
squarely within the definition of testimonial hearsay. Davis, 547 U.S. at 826.
By contrast, the Court has singled out interrogations by 911 operators as a form
of interrogation that does not necessarily elicit testimonial statements. Id. at
827 (“A 911 call, on the other hand, and at least the initial interrogation
conducted in connection with a 911 call, is ordinarily not designed primarily to
‘establis[h] or prov[e]’ some past fact, but to describe current circumstances
requiring police assistance.”).
To determine whether a particular interrogation produced testimonial
hearsay, the Court has instructed us to determine “the primary purpose of the
interrogation.” Bryant, 131 S. Ct. at 1155. The Court has not “attempt[ed] to
produce an exhaustive classification of all conceivable statements . . . in response
to police interrogation[ ] as either testimonial or nontestimonial.” Davis, 547
U.S. at 822. But the Court has held that the “basic objective of the
3
We assume that the 911 operators in this case were acting as “agents of law
enforcement when they conduct[ed the] interrogations of [the] 911 caller[]” in this case. See
Davis v. Washington, 547 U.S. 813, 823 n.2 (2006).
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Confrontation Clause . . . is to prevent the accused from being deprived of the
opportunity to cross-examine the declarant about statements taken for use at
trial.” Bryant, 131 S. Ct. at 1155. Accordingly, the Court has directed that if the
primary purpose of an interrogation is to create a record for trial, then its
admission at trial is barred by the Confrontation Clause. Id. By contrast, “when
a statement is not procured with a primary purpose of creating an out-of-court
substitute for trial testimony[,]” it does not fall within the scope of the Clause,
and “the admissibility of [the] statement is the concern of state and federal rules
of evidence, not the Confrontation Clause.” Id.The Court has identified several factors we should consider when deciding
whether the primary purpose of a police interrogation was to create an out-of-
court substitute for trial testimony. Specifically, the Court has considered (1)
whether the declarant “was speaking about events as they were actually
happening, rather than ‘describ[ing] past events,’” Davis, 547 U.S. at 827, (2)
whether a reasonable person in the declarant’s position would have believed that
the declarant was facing an ongoing emergency, see id.; see also Bryant, 131 S.
Ct. at 1157 & n.8, (3) whether “the nature of what was asked and answered,”
viewed objectively, “was such that the elicited statements were necessary to be
able to resolve the present emergency, rather than simply to learn . . . what had
happened in the past,” Davis, 547 U.S. at 827, and (4) the level of formality of
the interrogation. Id.In this case, however, we cannot resolve this issue by mechanically
applying the above factors. The interrogations in this case do not fit neatly into
the categories contemplated by the limited holdings recently issued by the
Supreme Court. Specifically, given the nature of the interrogations recently
considered by the Court, it has been able to decide whether those interrogations
elicited testimonial hearsay largely based on the existence of an ongoing
emergency. Bryant, 131 S. Ct. at 1162 (“The existence of an emergency or the
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parties’ perception that an emergency is ongoing is among the most important
circumstances that court must take into account in determining whether an
interrogation is testimonial . . . .”). For instance, in Davis the Court was able to
decide the two cases before it primarily by distinguishing between interrogations
intended “to enable police assistance to meet an ongoing emergency” and those
intended to “establish or prove past events potentially relevant to later criminal
prosecution” in the absence of an ongoing emergency:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
547 U.S. at 822.
Here, however, we cannot decide whether the declarant’s statements were
testimonial based primarily on the existence vel non of an ongoing emergency.4
Unlike the declarant’s statements in Bryant or in the two cases decided in Davis,
the primary purpose of the interrogations in this case was neither to “enable
police assistance to meet an ongoing emergency” nor to “establish or prove past
events potentially relevant to later criminal prosecution.” Id. Rather, the
primary purpose of the interrogation was to gather information necessary for the
police to respond to a report of ongoing criminal activity. Although it does
appear that the declarant contemplated that his call could lead to a later
criminal prosecution, he was not making his statements “to establish or prove
past events potentially relevant to later criminal prosecution.” Id. (emphasis
4
We similarly cannot decide this case based predominantly on whether a reasonable
person in the declarant’s position would have believed that there was an ongoing emergency
during the interrogations. See Bryant, 131 S. Ct. at 1157 n.8.
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added). Acknowledging that we must apply the reasoning in the Supreme
Court’s recent precedents to this slightly different context, we conclude that the
declarant’s statements were not testimonial; under the totality of the
circumstances, the primary purpose of the interrogation was not to create an
out-of-court substitute for trial testimony. Bryant, 131 S. Ct. at 1155.
We begin our analysis by considering whether the primary purpose of the
911 operators’ interrogations was to “enable police assistance to meet an ongoing
emergency,” which would render the declarant’s resulting statements
nontestimonial. Davis, 547 U.S. at 822; see Bryant, 131 S. Ct. at 1156 (same).
To make this primary purpose determination, “we objectively evaluate the
circumstances in which the encounter occurs and the statements and actions of
the parties.” Bryant, 131 S. Ct. at 1156. First, we examine the objective facts
regarding the “circumstances in which an encounter occurs—e.g., at or near the
scene of the crime versus at a police station, during an ongoing emergency or
afterwards.” Id. Then we objectively evaluate the “statements and actions of the
parties” to determine “the purpose that reasonable participants would have had,
as ascertained from the individuals’ statements and actions and the
circumstances in which the encounter occurred.” Id.“The existence of an ongoing emergency [or the parties’ perception of an
ongoing emergency] is relevant to determining the primary purpose of the
interrogation because an emergency focuses the participants on something other
than ‘proving past events potentially relevant to later criminal prosecution.’” Id.
at 1157 (citation omitted). Instead, the parties’ belief that there is an ongoing
emergency “focuses them on ‘end[ing] a threatening situation.’” Id. (citation
omitted).
Determining whether the parties believed that an emergency existed and
was ongoing during an interrogation “is a highly context-dependent inquiry.” Id.
at 1158. When making this assessment, it is important to consider the “zone of
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potential victims” presented by the relevant activity. Id. For cases “involving
threats to public safety,” our “assessment of whether an emergency that
threatens the police and the public is ongoing cannot narrowly focus on whether
the threat solely to the first victim has been neutralized because the threat to
the first responders and public may continue.” Id. (citations omitted).
Similarly, “the duration and scope of an emergency may depend in part on the
type of weapon employed.” Id.; see id. at 1164 (noting, in a case involving a gun,
“the implausibility, at least as to certain weapons, of construing the emergency
to last only precisely as long as the violent act itself”).
An objective evaluation of the circumstances in which the 911
interrogations occurred and the statements and actions of the parties leads us
to conclude that, at least by the time of the second 911 call, the primary purpose
of the interrogation was not to enable police assistance to meet an ongoing
emergency.
The objective circumstances of the two 911 interrogations entail an
anonymous 911 caller reporting ongoing street-level drug trafficking to the
police. According to the caller, Polidore was sitting on the steps of a nearby
apartment complex, running in and out of the complex, and selling crack cocaine.
The caller told the operator that Polidore “totes a gun,” but there is no evidence
suggesting that the caller knew the defendant was carrying a gun on the night
in question.5 The caller appears to have made the first call while inside a nearby
building because he told the operator that he “could go back out there and get”
Polidore’s license plate number. Between the first and second calls, the caller
appears to have gone outside and approached Polidore’s car because he informed
the second 911 operator that Polidore was storing the “dope” in “a side door
panel,” that he had seen Polidore put drugs in the door panel, and that he “could
5
The portion of the first call containing this statement was not played to the jury.
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see [the dope] right now.” It is also worth noting that the City of Beaumont had
imposed a curfew at the time of the calls due to a recent hurricane.
The Supreme Court has not applied its “ongoing emergency” analysis to
a similar case: i.e., where a 911 caller reports an ongoing drug trafficking crime
and asks the police to come stop it. But we do not need to categorically analyze
the circumstances under which a drug trafficking crime can constitute an
“ongoing emergency” in order to decide the issue in this case. Rather, although
we note that similar circumstances could in some cases give rise to a 911
interrogation that has a primary purpose of enabling police assistance to meet
an ongoing emergency, see United States v. Ibarra-Sanchez, 199 F.3d 753, 761
(5th Cir. 1999) (holding, in another context, that “[r]arely are concerns for officer
safety more paramount than during the stop of a vehicle suspected of
transporting drugs”), the statements and actions of the 911 caller during the
second call dispel any notion that, by that time, the primary purpose of the
interrogation was to enable police assistance to meet an ongoing emergency.
The Court has held that statements made on 911 calls are ordinarily not
testimonial because “[a] 911 call . . . and at least the initial interrogation
conducted in connection with a 911 call, is ordinarily not designed primarily to
establish or prove some past fact, but to describe current circumstances
requiring police assistance.” Davis, 547 U.S. at 827 (internal quotation marks
omitted). The Court qualified this holding, however, by concluding that where
a declarant’s “statements were neither a cry for help nor the provision of
information enabling officers immediately to end a threatening situation, the
fact that they were given at an alleged crime scene and were ‘initial inquiries’
is immaterial.” Id. at 832.
Here, even if the caller’s statements on the first 911 call were responses
to “initial inquiries” that were necessary to inform the responding officers what
they needed to know in order to “assess the situation, the threat to their own
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safety, and possible danger to the [public],” the caller’s statements on the second
call were “neither a cry for help nor the provision of information enabling officers
immediately to end a threatening situation.” Id. (emphasis added); see id. at 828(holding that the primary purpose of an interrogation can evolve once the initial
purpose has been achieved).
For instance, during the second call, the caller asked the operator on two
occasions to tell the police not to arrest Polidore until he left his location near
the apartment complex.6 Although the caller’s request to allow Polidore to leave
the area before his arrest reflects an understandable desire to remain
anonymous, it also shows that the caller was not requesting immediate
assistance to end a threatening situation. When a 911 interrogation “elicit[s]
statements . . . necessary to be able to resolve [a] present emergency,” Davis, 547
U.S. at 827, the 911 caller does not ask the operator to tell the police to wait to
arrest a suspect until he voluntarily leaves the scene of the reported activity. Cf.
United States v. Thomas, 453 F.3d 838, 844 (7th Cir. 2006) (holding that a 911
caller’s statements were nontestimonial when the caller stated that “[t]here is
somebody shot outside, somebody needs to be sent over here, and there’s
somebody runnin’ around with a gun, somewhere”); United States v. Arnold, 486
F.3d 177, 189 (6th Cir. 2007) (en banc) (“The fear that the district court noted in
Gordon’s voice communicated that she was scarcely concerned with testifying to
anything but simply was seeking protection from a man with a gun who had
killed before and who had threatened to kill again.”). Moreover, the fact that the
911 caller placed a second call to the operator only to inform the police that
Polidore was storing drugs in a door panel of his vehicle further establishes that,
6
The caller stated: (1) “But I want [the police] to do it when they leave here because
he’s for sure got it in the car because he doesn’t know that I was the one that called because
I was the only one seen it[;]” and (2) “[b]ut would you tell [the police] not to do it here? Cause
I don’t want him to think that I was the one told when he pulls off going down the street.”
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by the time of the second call, the primary purpose of the interrogation had
evolved beyond the information “needed to address the exigency of the moment.”
Davis, 547 U.S. at 828 (citation omitted).
In sum, an objective examination of the 911 caller’s “statements and
actions” does not indicate that “the primary purpose of the interrogation” was
to “enable police assistance to meet an ongoing emergency.” Bryant, 131 S. Ct.
at 1156 (internal quotation marks and citation omitted). In particular, the
caller’s statements and actions during the second 911 call reveal that “the
information [he] knew at the time of the [call] would [not have led] a reasonable
person to believe that there was an emergency,” as the Supreme Court has
presently defined the term. Id. at 1157 n.8. Between the first and the second
call, the caller appeared to have (1) moved to a location where he could see
Polidore place drugs in a side door panel of his car and then (2) approached
Polidore’s vehicle to a position where he could see the drugs in the side door
panel.7 As stated previously, the caller asked the operator on two occasions
during the second call to wait to arrest Polidore until he left the apartment
complex. The caller’s willingness to approach the reported activity and to allow
it to continue until Polidore voluntarily drove away from the complex indicates
that a reasonable person in his position would not have thought that the
situation constituted an emergent threat to himself, the public, or responding
officers. See id. at 1158 (“An assessment of whether an emergency that
threatens the police and public is ongoing cannot narrowly focus on whether the
threat solely to the first victim has been neutralized because the threat to the
first responders and public may continue.”); id. (“[W]hether an emergency exists
7
The caller stated, “[h]e’s got the dope in the side door panel.” He then asked the police
to wait to arrest Polidore until he left the scene, explaining “he’s for sure got it in the car
‘cause he didn’t know I was the one called ‘cause I the only one seen it.” When the operator
asked the caller how he was able to see the drugs, the caller responded, “I seen him put it in
there. I can see it right now.”
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and is ongoing is a highly context-dependent inquiry.”) (citation omitted).
Accordingly, we conclude that the primary purpose of the 911 operator’s
interrogation, at least during the second 911 call, was not “to enable police
assistance to meet an ongoing emergency.” Davis, 547 U.S. at 822.
However, this conclusion is not “dispositive of the testimonial inquiry.”
Bryant, 131 S. Ct. at 1160; see id. (“[W]hether an ongoing emergency exists is
simply one factor—albeit an important factor—that informs the ultimate inquiry
regarding the ‘primary purpose’ of an interrogation.”). In Bryant, the Court
specifically noted that “there may be other circumstances, aside from ongoing
emergencies, when a statement is not procured with a primary purpose of
creating an out-of-court substitute for trial testimony.” Id. at 1155. We conclude
that the 911 caller’s statements in this case were primarily procured for such a
purpose.
Here, the declarant called 911 to report ongoing street-level drug
trafficking and to request that the police be dispatched to arrest Polidore while
he had crack cocaine in his possession. Thus, unlike the interrogations in
Crawford and Hammon,8 which produced testimonial statements, the declarant
in this case was not “describing past events.”9 Davis, 547 U.S. at 827 (citation
omitted) (emphasis added); see Hammon, 547 U.S. at 829 (holding that “[i]t is
entirely clear from the circumstances that the interrogation was part of an
investigation into possibly criminal past conduct”); id. at 830 (distinguishing the
interrogation in Hammon from that in Davis because the interrogator in
Hammon “was not seeking to determine (as in Davis) ‘what is happening,’ but
rather ‘what happened’”). The primary purpose of the 911 interrogations in this
8
In Davis, the Court also decided Hammon v. Indiana, 547 U.S. 813, 829–32 (2006).
9
This is true at least for the portions of the calls that were played to the jury. In
portions of the calls redacted from the recordings that were played to the jury the caller
referred to prior crimes of the defendant.
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case was not “to establish or prove past events potentially relevant to later
criminal prosecution.” Id. at 822. Accordingly, the fact that the 911 calls were
“neither a cry for help nor the provision of information enabling officers
immediately to end a threatening situation,” does not necessarily render the
declarant’s statements testimonial. Cf. Bryant, 131 S. Ct. at 1154–55 (internal
quotation marks and citation omitted).
Thus, to decide this issue, we must consider the circumstances under
which a 911 interrogation involving reported ongoing criminal activity, absent
an ongoing emergency,10 has a “primary purpose of creating an out-of-court
substitute for trial testimony.” Id. at 1155. However, we need not categorically
address the standards that should apply in such cases in order to determine that
the primary purpose of the 911 interrogations in this case was not to create a
substitute for trial testimony. Specifically, given the nature of the ongoing
criminal activity and the caller’s request for assistance from the police, a
reasonable person in the caller’s position would not have thought that his
statements were creating an out-of-court substitute for trial testimony. See
Brown, — F.3d —, 2012 WL 2401670, at *3 (holding that testimonial statements
include statements made under circumstances “which would lead an objective
witness reasonably to believe that the statement would be available for use at
a later trial”).
As an initial matter, we determine that the nature of the reported ongoing
criminal activity is relevant to determining the primary purpose of the
interrogation. Here, the nature of the reported ongoing criminal
10
We note that our conclusion that these circumstances did not present an “ongoing
emergency” is based on the Court’s current precedents, which may be subject to change. See
Williams v. Illinois, 132 S. Ct. 2221, 2242 n.13 (2012) (noting, when discussing the Court’s
post-Crawford precedents that, “[e]xperience might yet show that the holdings in those cases
should be reconsidered for the reasons, among others, expressed in the dissents the decisions
produced[;] [t]hose decisions are not challenged in this case and are to be deemed binding
precedents, but they can and should be distinguished on the facts here”).
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No. 09-40896
activity—possession with intent to distribute—was such that the police could
obtain sufficient evidence to establish Polidore’s guilt simply by responding to
the call and pulling him over while he was in possession of a “large amount” of
crack cocaine. United States v. Kaufman, 858 F.2d 994, 1000 (5th Cir. 1988)
(holding that possession with intent to distribute can be proved based on a
defendant’s possession of “a larger quantity than an ordinary user would possess
for personal consumption”); see United States v. Hernandez-Beltran, 867 F.2d
224, 226–27 (5th Cir. 1989) (same). Under these circumstances, a reasonable
person in the 911 caller’s position would have concluded that his statements
were not being prepared for use at trial: either the police would promptly
respond and arrest Polidore with a significant amount of crack cocaine in his
possession, thereby giving the authorities sufficient evidence to convict the
defendant of a crime without the caller’s statements, or the police would not
arrive in time to arrest Polidore and the caller’s statements would have been of
little use. We do not mean to suggest that the caller knew the elements of the
charged offense, but the caller in this case clearly understood that the police’s
arrest of Polidore in possession of a “large amount” of crack cocaine would be
sufficient to prove a criminal offense. In sum, due to the nature of the reported
criminal activity—an ongoing possession offense—a reasonable person in the
caller’s position would not have thought that his statements (a) reporting
ongoing street-level drug trafficking to 911 and (b) asking that the police be
promptly dispatched to ensure Polidore’s arrest while in possession of crack
cocaine, were being taken as an “out-of-court substitute for trial testimony.”
Bryant, 131 S. Ct. at 1155.11
11
Contrary to the dissent’s assertion, we have not “all but declared an end to
Confrontation Clause applicability to declarations that report ongoing crimes.” Dissent at 2.
Instead, our holding is limited to statements where a declarant requests immediate police
assistance to stop an ongoing crime whose nature is such that a reasonable person would not
have thought that his statements were being taken as an “out-of-court substitute for trial
16
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No. 09-40896
Moreover, although the Court implied in Davis that a 911 call “provid[ing]
a narrative report of a crime absent any imminent danger” would yield
testimonial statements, 547 U.S. at 827, the calls in this case do not meet that
description. The 911 caller did not merely provide a narrative report of the
crime “for the purpose of establishing or proving some fact.” Bryant, 131 S. Ct.
at 1153 (citation omitted). Rather, the caller reported an ongoing drug
trafficking crime to the police, gave the police the requisite information to stop
that offense, and asked for the police to be promptly dispatched to stop the crime
as it continued. See United States v. Davis, 666 F.2d 195, 199 (5th Cir. Unit B
1982) (holding that possession with intent to distribute is a continuing offense).
Although the situation did not present an “ongoing emergency,” the caller was
nevertheless “seeking aid, not telling a story about the [present] or the past.”
Davis, 547 U.S. at 828, 831 (emphasis added).12
An objective analysis of the statements of the 911 operators and the
statements and actions of the caller confirm that the purpose of the interrogation
was not to elicit statements for use at trial. Bryant, 131 S. Ct. at 1155. The
questions posed by the 911 operators reflect an intent to gather the information
responding officers would need to investigate and, if necessary, stop reported
ongoing street-level drug trafficking; the operators’ questions were not intended
“simply to learn (as in Crawford) what had happened in the past,” nor posed in
a manner that the caller would “necessarily ha[ve] prosecution in mind when
[]he answer[ed].” Id. at 1160–61 (citation omitted).
testimony.” Id.12
To be sure, certain statements made by the 911 caller did concern past criminal
activity committed by Polidore. However, the district court properly redacted those portions
of the calls and did not play them at trial. See Davis, 547 U.S. at 829 (noting that courts
“should redact or exclude the portions of any statement that have become testimonial”).
17
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No. 09-40896
Similarly, although the 911 caller appeared to have understood that his
comments would start an investigation that could lead to a criminal prosecution,
the primary purpose of his statements was to request police assistance in
stopping an ongoing crime and to provide the police with the requisite
information to achieve that objective. Like a statement made to “resolve an
ongoing emergency,” the caller’s “purpose [was] not to provide a solemn
declaration for use at trial, but to bring to an end an ongoing [drug trafficking
crime],” Williams v. Illinois, 132 S. Ct. 2221, 2243 (2012) (citing Bryant, 131 S.
Ct. at 1155), even though the crime did not constitute an “ongoing emergency.”
See id. The 911 caller “simply was not acting as a witness; []he was not
testifying. What []he said was not ‘a weaker substitute for live testimony’ at
trial.” Davis, 547 U.S. at 828 (citation omitted). In other words, the caller’s
statements were not “ex parte communication[s]” that created “evidentiary
products” that “aligned perfectly with their courtroom analogues.” Id. As in
Davis, “[n]o ‘witness’ goes into court” to report that a man is currently selling
drugs out of his car and to ask the police to come and arrest the man while he
still has the drugs in his possession. See id. (“No ‘witness’ goes into court to
proclaim an emergency and seek help.”); see also United States v. Brun, 416 F.3d
703, 707 (8th Cir. 2005) (“A 911 call is usually made because the caller wants
protection from an immediate danger, not because the 911 caller expects the
report to be used later at trial with the caller bearing witness—rather, there is
a cloak of anonymity surrounding 911 calls that encourages citizens to make
emergency calls and not fear repercussion.”) (citation omitted).13
13
We also conclude that the relative informality of the two interrogations supports our
holding that the caller lacked testimonial intent. Bryant, 131 S. Ct. at 1160. The questioning
occurred before the police arrived and proceeded in a relatively “disorganized fashion,” as the
caller interrupted the operators’ questions to (a) provide additional information and (b)
attempt to ensure that the police would not arrest Polidore until after he left the apartment
complex. These facts “make this case distinguishable from the formal station-house
interrogation in Crawford.” Id. (citation omitted).
18
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No. 09-40896
The dissent, citing one of our sister circuits and an influential
commentator, contends that statements made to the authorities with a full
understanding that the authorities will use them to investigate and prosecute
a crime are testimonial, regardless of whether those statements concern an
ongoing or past crime. Dissent at 2; see United States v. Cromer, 389 F.3d 662,
674 (6th Cir. 2004) (holding that “[s]tatements ‘made to the authorities who will
use them in investigating and prosecuting a crime, . . . made with the full
understanding that they will be so used,’ are precisely the sort of accusatory
statements the Confrontation Clause was designed to address”) (quoting Richard
D. Friedman, Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011,
1025 (1998)). That may well be a useful general standard to employ when
considering whether a given statement to authorities was testimonial. Bryant,
131 S. Ct. at 1166 (noting that certain circumstances can render a statement
testimonial if the declarant was “focused . . . on the possible future prosecutorial
use of his statements”).
Under the limited circumstances of this case, however, we conclude that
the caller’s statements were nontestimonial even if the caller clearly understood
that his call would “initiate investigative and prosecutorial machinery.” United
States v. Hadley, 431 F.3d 484, 506 n.17 (6th Cir. 2005) (citation omitted). As
we have previously discussed, the declarant (1) called 911 to report that Polidore
was selling drugs while sitting on the steps of an apartment building and storing
the drugs in his car, (2) asked the operator to dispatch the police to arrest
Polidore while he was still in possession of crack cocaine, and (3) asked the
operator to tell the police not to arrest Polidore until he voluntarily drove down
the street. A reasonable person in the caller’s position would not have thought
his statements were being prepared for use at trial; thus, we conclude that the
19
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No. 09-40896
primary purpose of the 911 calls was not to create an out-of-court substitute for
trial testimony. Bryant, 131 S. Ct. at 1155.14
Accordingly, the 911 caller’s statements did not constitute testimonial
hearsay, and the admissibility of the statements was “the concern of . . . federal
rules of evidence, not the Confrontation Clause.” Id.B
Polidore also objected to the 911 recordings at trial on the grounds that
they contained hearsay; accordingly, we review the court’s decision to admit the
recordings over his objection for an abuse of discretion. United States v.
Watkins, 591 F.3d 780, 786 (5th Cir. 2009).
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Id. (citation omitted); see FED. R. EVID. 801 (defining hearsay).
“Testimony not used to establish the truth of the assertion . . . ‘does not fall
under the proscriptions against the use of hearsay.’” Watkins, 591 F.3d at 786(quoting United States v. Vizcarra–Porras, 889 F.2d 1435, 1439 (5th Cir. 1989)).15
14
Contrary to the dissent’s assertion, we do not hold that a statement is
“nontestimonial solely on the basis that it prompts police action.” Dissent at 2. Rather, the
nature of the reported ongoing criminal activity and the fact that the caller asked the police
to immediately respond to end the ongoing offense are critical components of our analysis.
We also do not intend to “accelerat[e] the dismantling of Crawford.” Id. at 1. Instead,
we have merely applied the reasoning from the Supreme Court’s recent precedents
interpreting the Confrontation Clause to a different context.
15
Similarly, we note that “the Confrontation Clause ‘does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.’” Williams,
132 S. Ct. at 2235 (quoting Crawford, 541 U.S. at 59–60 n.9); see United States v. Holmes, 406
F.3d 337, 349 (5th Cir. 2005) (same). “Instead, to constitute a Confrontation Clause violation,
‘the statement must be used as hearsay—in other words, it must be offered for the truth of the
matter asserted.’” United States v. Davis, 577 F.3d 660, 670 (6th Cir. 2009) (citations omitted);
see Williams, 132 S. Ct. at 2228 (holding that an expert’s “testimony d[id] not violate the
Confrontation Clause because that provision has no application to out-of-court statements that
are not offered to prove the truth of the matter asserted”).
20
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No. 09-40896
Federal Rule of Evidence 802 bars hearsay testimony unless a federal statute,
the Federal Rules of Evidence, or other rules prescribed by the Supreme Court
provide otherwise.16 See United States v. Moore, 748 F.2d 246, 248 (5th Cir.
1984) (“Hearsay is generally inadmissible unless it fits within one of the
exceptions listed in Fed. R. Evid. 803 and 804.”) (citation omitted).
At trial, the district court overruled Polidore’s hearsay objection, finding
that the statements in the 911 calls were being offered for what prompted the
officers to go to the location and investigate in the first place, not for the truth
of the matter asserted. The district court alternatively found that the
statements, if hearsay, were admissible as an excited utterance or as a
statement of the caller’s then existing mental, emotional, or physical condition.
See FED. R. EVID. 803(2),(3).
On appeal, the Government maintains that the 911 calls were not offered
for the truth of the matter asserted but instead to “explain the dispatch of the
officers to Polidore’s location, their focus on the PT Cruiser, the subsequent
discovery of crack cocaine, their willingness to talk to a person on the scene that
identified himself as the caller, and their belief that the suspect would return to
the PT Cruiser.” Alternatively, the Government asserts that the present-sense
impression exception to the hearsay rule applies because the statements in the
911 calls “were made contemporaneous[ly] with the caller’s observations of the
events that he reported to the dispatcher” and because “the scene of the crime
was consistent with that information.”
We need not address whether the Government offered the caller’s
statements for the truth of the matter asserted because we conclude that even
16
We note that “[a] new version of the Federal Rules of Evidence went into effect on
December 1, 2011 as part of the Federal Rules Style Project.” See United States v. Jean-
Guerrier, 666 F.3d 1087, 1091 n.2 (8th Cir. 2012). Because changes made under the project
“are intended to be stylistic only,” see FED. R. EVID. 801–803 advisory committee’s note, we will
quote the new version of the Rules.
21
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if they were hearsay, the statements fell within the present sense impression
exception to the rule against hearsay.17 Rule 803(1) provides that hearsay
statements “describing or explaining an event or condition, made while or
immediately after the declarant perceived it,” “are not excluded by the rule
against hearsay, regardless of whether the declarant is available as a witness.”
FED . R. EVID. 803(1). The basis for this hearsay exception “relies on the
contemporaneousness of the event under consideration and the statement
describing that event. Because the two occur almost simultaneously, there is
almost no ‘likelihood of [a] deliberate or conscious misrepresentation.’” Rock v.
Huffco Gas & Oil Co., 922 F.2d 272, 280 (5th Cir. 1991) (citations omitted).
Here, the caller made his statements to 911 as he was observing Polidore’s
actions or shortly thereafter. For instance, less than ten minutes after placing
the first call, the caller observed Polidore place drugs in a side door panel of his
vehicle and placed a second call while he was still observing the drugs “right
now.” Because (1) the caller’s statements described and explained events that
he personally witnessed and (2) the caller made the statements
contemporaneously with his observation of the events—i.e., while he was
observing the events or very soon thereafter—we hold that the statements were
admissible as present sense impression under Rule 803(1). Id. (citations
omitted); see United States v. Jackson, 204 F.3d 1118, 1999 WL 1330689, at *8
(5th Cir. Dec. 17 1999) (unpublished) (holding that a district court did not
commit reversible error by admitting a tape and transcript of 911 calls, which
17
However, we note that as a practical matter, the 911 recordings were admitted for
all purposes in front of the jury: that is, the jury was never informed of the limited purpose for
which the Government intended to offer the recordings. Defense counsel never requested that
the jury be so informed or requested that the district court give the jury a limiting instruction
under Federal Rule of Evidence 105. See Savoie v. Otto Candies, Inc., 692 F.2d 363, 370 (5th
Cir. 1982) (holding that when a party fails to request a Rule 105 limiting instruction, “simply
having taken the position that the evidence was admissible for no purpose whatever and the
jury should be instructed to totally disregard it for any purpose[,] [a]ny error in this regard
was accordingly waived”) (internal citation omitted).
22
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No. 09-40896
were made seconds after the callers escaped from the trunk of a car, and the
Government had argued, in part, that the calls contained present sense
impressions).18
Accordingly, we conclude that the district court did not abuse its discretion
by admitting the 911 calls into evidence.19
III
For the foregoing reasons, both the conviction and sentence are
AFFIRMED.
18
We note that Polidore could have claimed on appeal that the district court erred by
admitting the 911 recordings because their probative value was substantially outweighed by
a danger of unfair prejudice pursuant to Federal Rule of Evidence 403. Because the 911
recordings directly implicated him in the alleged crimes, Polidore could have potentially
argued that the district court’s decision to admit the evidence constituted reversible error. See
United States v. Carrillo, 20 F.3d 617, 620 (5th Cir. 1994) (“The more directly an out-of-court
declaration implicates the defendant, the greater the danger of prejudice. Conversely, when
the statement does not directly implicate the defendant, the probative value outweighs the
prejudicial effect.”) (citations omitted). But although Polidore raised an objection under Rule
403 at trial, he has failed to brief such a claim on appeal, thereby waiving it. See McGowan
v. Thaler, 675 F.3d 482, 498 (5th Cir. 2012) (holding that unbriefed issues are waived).
19
Polidore has also filed, pro se, a motion for the court to consider whether he was
denied the right to counsel of his choice in the district court. However, we deny Polidore’s pro
se motion as unauthorized. See 5TH CIR. R. 28.6 (“Unless specifically directed by court order,
pro se motions, briefs or correspondence will not be filed if the party is represented by
counsel.”).
23
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No. 09-40896
Leslie H. Southwick, Circuit Judge, dissenting:
I agree with the majority that Confrontation Clause guidance from the
Supreme Court is undergoing change. Where I disagree is that I believe we
should not reach a conclusion that reduces the protections of the Sixth
Amendment further than the Court has thus far permitted. The majority is
accelerating the dismantling of Crawford v. Washington, 541 U.S. 36 (2004).
That is neither our role nor a desirable result.
The majority extends the ruling of the Supreme Court in Michigan v.
Bryant, 131 S. Ct. 1143, 1160 (2011). “[T]he statements and actions of both the
declarant and interrogators provide objective evidence of the primary purpose
of the interrogation.” Bryant, 131 S. Ct. at 1160. Polidore argues that the
primary purpose of the telephone caller’s statements was testimonial because
the caller wanted police to stop “all this drug activity.” The defendant also
argues that “[t]he inquiry by the operator as to who is selling drugs and the type
of drug is only relevant to later criminal prosecution.” See Davis v. Washington,
547 U.S. 813, 822 (2006).
The declarant had witnessed frequent drug dealing. His statements taken
in context of the entire 911 call suggested an intent to further a later criminal
prosecution. For example, the declarant stated he was “trying to be anonymous
and get you all to get these drug dealers from over here.”1 The declarant’s
primary purpose may have been stopping “all this drug activity over off
Sweetgum” by having the defendant arrested without the declarant’s needing to
identify himself. It is not enough that the 911 operator wanted to assess the
situation and obtain as much information as possible about Polidore. The
operator was aiding the first responders. Bryant, 131 S. Ct. at 1161. The
declarant’s motives, not those of the operator, create the problem here.
1
This part of the call was not played for the jury.
24
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No. 09-40896
“Statements ‘made to the authorities who will use them in investigating
and prosecuting a crime, . . . made with the full understanding that they will be
so used,’ are precisely the sort of accusatory statements the Confrontation
Clause was designed to address.” United States v. Cromer, 389 F.3d 662, 674
(6th Cir. 2004) (quoting Richard D. Friedman, Confrontation: The Search for
Basic Principles, 86 Geo. L. J. 1011, 1025 (1998)) (omission in original). “One
can imagine the temptation that someone who bears a grudge might have to
volunteer to police, truthfully or not, information of the commission of a crime,
especially when that person is assured he will not be subject to confrontation.”
Id. at 675. The majority rejects the application of this rationale on the basis that
the declarant knew his call would prompt police action. Yet surely that is the
usual reason for 911 calls. I read Davis to require more than a call “to provide
a narrative report of a crime absent any imminent danger”; what that opinion
relied on was the fact the “call was plainly a call for help against bona fide
physical threat.” Davis, 547 U.S. at 827. The majority reads more recent
caselaw to reject this guidance. I would not.
The majority has taken from Bryant a holding that the lack of an ongoing
emergency does not make a declarant’s statement per se testimonial, and all but
declared an end to Confrontation Clause applicability to declarations that report
ongoing crimes. While I agree that Bryant requires we look at more than the
absence of an ongoing emergency, I do not see a basis for finding a statement
nontestimonial solely on the basis that it prompts police action. Indeed, this
caller gave some indications of his animus specifically towards Polidore and
towards drug dealers generally. Confrontation is the constitutional protection
defendants have to explore known and unknown motives. With respect, I believe
the majority errantly removes that needed protection here.
25