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United States v. Kizzee

United States Court of Appeals, Fifth Circuit

December 15, 2017

UNITED STATES OF AMERICA, 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 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 ...

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