Confrontation Clause Error Reversal in Fifth Circuit: Hamman
The Fifth Circuit reversed a conviction for Hamman based on error of confrontation clause. Hamman was charged with conspiracy with intent to possess meth and conspiracy to distribute meth. His indictment also alleged two serious drug felonies for purposes of the career offender enhancement.
He went to trial on the conspiracy charge. During opening arguments, the prosecutor stated the police saw Hamann sitting outside with a co-defendant. Seventeen grams of meth were found in a truck near Hamman. The co-conspirator's backpack also contained 150 grams of meth. The prosecutor said that the co-conspirator agreed to sell to Hamman while they were both staying at the hotel. The prosecutor also claimed said there would be evidence in the form of a controlled purchase. This would be a confidential source using government money to buy the meth. This was used to establish probable cause for the search warrant.
An investigator stated the Drug Enforcement Agency had a confidential, reliable source regarding a "Cali." It was believed that Cali was Hamman. It was reported that Cali was "moving multiple ounces of meth." Other agencies reportedly heard from an unknown declarant that Hamann was "selling narcotics."
The investigator believed that Hamann was selling drugs from a motel. He worked with a confidential informant, meeting her a mile from the motel where Hamman was located. The informant was given cash with recorded serial numbers. An audio recorder was also fitted onto the informant. The informant was sent to the motel to buy meth from Hamann.
The investigator reported being unable to see the transactions at the motel. He said that another officer was watching the motel, describing the incident over the radio. Interestingly, the second office never testified, The investigator described what the confidential source did at the hotel. This would have only been possible from a play-by-play recounting by the officer and the source. The source and Hamman spoke. Hamman went to his room and the source followed. Later, she came out, gave the officers the purchased meth and unspent cash. The police decided that they had enough evidence to get the warrant.
Other officers testified securing a search warrant. They reported approaching Hamman in the parking lot, identifying themselves to Hamman and the co-conspirator. The co-conspirator admitted that he had meth. Both Hamman and the co-conspirator said incriminating things in their interrogation. Hamman indicated that he engaged in meth deals between May and July of 2019, before he met the co-conspirator in this case. The co-conspirator testified at trial that he met Hamann a week before. He reported that Hamann was buying too much meth from him to use on his own.
During closing, the prosecutor argued the police had a confidential source that purchased meth from Hamann. The prosecutor stated the officers had a procedure for cultivating confidential sources. The prosecutor then repeated the story of the controlled purchase. This was used to explain how he would prove his case beyond a reasonable doubt.
The jury found Hamann guilty of conspiring to sell meth with the co-conspirator. Hamman appealed, stating the investigator’s testimony violated his right “to be confronted with the witnesses against him.” As shown relevant here, the testimony included statements of non-testifying witnesses.
HOLDING: The Confrontation Clause Was Violated
The Confrontation Clause:
“When police officers testify about the contents of witnesses’ statements during an investigation, they risk introducing testimonial hearsay evidence. “A statement is testimonial if its ‘primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.’”
Hamman alleged that there were two confrontation clause violations. The first was the confidential source who said that “Cali was moving multiple ounces” of meth and that local police had heard from an unknown declarant that Hamann was dealing. The second was the investigator’s description of the controlled purchase.
The Fifth Circuit indicated that the test was as follows:
“First, did the evidence introduce a testimonial statement by a non-testifying witness? Second, was any such statement offered to prove the truth of the matter asserted? Third, was the non-testifying witness available to testify, or was the defendant deprived of an opportunity to cross-examine him? If the answer to each of those questions is “yes,” the Confrontation Clause was violated.”
Was a Testimonial Statement by a Non-Testifying witness?
As to the statement that “Cali was moving multiple ounces,” while the prosecutor stated that Cali was used instead of Hamman, the court stated that did not matter because the prosecutor and the investigator explained who the informant was referring to. The prosecutor asked the investigator: “So you had information that the defendant Hamann was moving methamphetamine, correct?” The investigator said that they had received information that Hamman was dealing drugs. Even though it was the investigator that linked Cali and Hamann, it was the prosecutor that demonstrated the confidential source, and other police officers believed that Cali/Hamann was doing meth.
As to the investigator’s play-by-play, he did not have eyes on the hotel. “Instead, he listened by radio to another officer describing what was happening and debriefed the source after the sale.” This showed that it was testimonial.
Were Statements for Truth of the Matter Asserted?
The government did not advance a reason for needing these for any other reason other than for the truth of the matter asserted:
“We perceive no reason why the government could not have begun its case-in-chief by explaining that officers arrived at the motel to execute a search warrant and found Hamann and [the co-conspirator] together in the parking lot holding distributable amounts of meth.”
The court also noted the tip was offered for truth of the matter asserted as well:
“But the tip described Hamann’s selling ‘multiple ounces.’ It also described Hamann’s selling meth to the confidential source.…those are powerful links to a meth-dealing conspiracy.
Was there an opportunity to cross-examine the confidential source or the non-testifying officer?
The court noted that there was no opportunity to cross-examine either absent declarant:
“Hamann did not have an opportunity to cross-examine either the confidential source or the non-testifying officer. The government has not disclosed the identity of the confidential source, and there is no indication that Hamann confronted the non-testifying officer in trial-like proceedings. The government has also not shown that either witness was unavailable. So neither necessary condition for absolving the government of its obligation to avoid introducing testimonial hearsay has been satisfied.”
Did this evidence contribute to the conviction?
“Once the defendant makes out a Confrontation Clause violation, the burden shifts to the government to prove that ‘there was no reasonable possibility that the evidence complained of might have contributed to the conviction.’”
The government stated the case against Hamann was otherwise strong because of, in part, his voluntary confession. The government also said the evidence that violated the confrontation clause here was less incriminating because the evidence duplicated other admissible evidence, and the government did not rely on it to prove the conspiracy. Finally, the government said that the testimony did not involve a fact disputed by the defendant.
Court Ruling Points
To the first point, the court said that it is inappropriate to determine if the unchallenged evidence would have been hypothetically enough to convict Hamann in the confrontation clause analysis. Here, that “would require retrying the case on appeal, at best, or engaging in pure speculation, at worst.”
To the second point (the evidence that violated the confrontation clause here was less incriminating because the evidence duplicated other admissible evidence and the government did not rely on it to prove the conspiracy), most of Hamann’s confession concerned meth deals between May and July 2019, well before he met the co-conspirator that is in the indictment.
To the third point, that the testimony did not involve a fact disputed by the defendant, the court stated that is not the test:
[The test is not] “when the officer’s testimony . . . did not involve a fact disputed by the defendant,” as the government claims. [The test is whether] that erroneously introduced evidence is harmless where it can help prove only uncontested elements of the charged offense, not where it can establish only uncontested facts.
Ultimately the court determined that the information violated the confrontation clause, and the district court committed reversible error in admitting it:
“The government has not proven that the challenged evidence could not have contributed to Hamann’s conviction. Stanley’s testimony was relevant to proving that Hamann was involved in a meth-dealing conspiracy, and the government repeatedly referenced the subject matter of his testimony during its opening statement and closing argument. So admitting the evidence that incorporated testimonial hearsay was harmful error.”