United States v. Bernard Eugene McKinney, II, 713 F. App'x 910

In Nov. 2014 McKinney participated in a scheme cashing counterfeit checks drawn on Transportation Services; six counterfeit checks totaling about $89,000 were cashed by various payees (including McKinney, McNeil, Freeman, and Alexis Price).
Surveillance, phone records, and cooperating witness testimony (McNeil, Freeman) connected McKinney to the scheme; Freeman and McNeil testified about cashing checks for or with McKinney, and recorded calls captured McKinney admitting he gave checks to others.
Inspector Roger Mayhew interviewed McKinney twice (one unrecorded; one videotaped). In the taped May 6, 2015 interview Mayhew posed questions referencing statements allegedly by Alexis Price and confronted McKinney with phone records placing him near a bank when Price cashed a check.
At trial the government played the videotaped interview; McKinney objected that Mayhew’s questions repeating Price’s alleged statements were testimonial hearsay in violation of the Sixth Amendment Confrontation Clause and Rule 801/802.
A jury convicted McKinney of five counts of bank fraud and two counts of aggravated identity theft; McKinney appealed arguing the admission of Mayhew’s references to Price violated the Confrontation Clause and hearsay rules.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mayhew’s questions/statements referencing Price were testimonial hearsay barred by the Sixth Amendment	Government: Mayhew’s remarks were not offered for their truth but to provide context for McKinney’s own admissions and to challenge his inconsistent denials	McKinney: Mayhew’s repeated references to Price amounted to testimonial out-of-court statements by Price; McKinney lacked opportunity to cross-examine Price, so admission violated Confrontation Clause and hearsay rules	Court: Statements were not offered for truth but to contextualize McKinney’s responses, thus not testimonial hearsay or hearsay under Rule 801(c); admission did not implicate Confrontation Clause and was not reversible error; any error would be harmless given overwhelming evidence

Crawford v. Washington, 541 U.S. 36 (establishes that testimonial out-of-court statements are admissible only if declarant is unavailable and defendant had prior opportunity to cross-examine)
Michigan v. Bryant, 562 U.S. 344 (police-interrogation statements are generally testimonial absent an ongoing emergency)
United States v. Curbelo, 726 F.3d 1260 (11th Cir.) (Confrontation Clause analysis requires assessing whether statements are testimonial)
United States v. Jimenez, 564 F.3d 1280 (11th Cir.) (statements admitted for non-truth purposes do not violate Confrontation Clause)
United States v. Charles, 722 F.3d 1319 (11th Cir.) (distinguishes testimonial inquiry from hearsay analysis)
United States v. Caraballo, 595 F.3d 1214 (11th Cir.) (standard of review for Confrontation Clause and evidentiary rulings)
United States v. Carter, 776 F.3d 1309 (11th Cir.) (harmless-error review for Confrontation/Hearsay challenges)