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 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 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 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 ...