54 F.4th 884
6th Cir.2022Background
- George Harrison was recorded selling methamphetamine to confidential informant B.B. on three occasions; police arrested him and he was later tried and convicted on multiple drug and firearms counts.
- B.B. died before trial; the government played video recordings of the controlled buys for the jury, but recordings of B.B.’s statements to law enforcement were excluded on Sixth Amendment grounds.
- The jury convicted Harrison of three counts of distribution, one count of possession with intent to sell 500g+ methamphetamine, and one count of being a felon in possession of a firearm.
- At sentencing the district court treated Harrison’s prior Kentucky conviction for complicity to commit murder as a “serious violent felony,” which raised the statutory minimum for the 500g+ count from 10 to 15 years under 21 U.S.C. § 841 and 21 U.S.C. § 802(58).
- Harrison appealed, raising (1) a Confrontation Clause challenge to admission of the informant videos and (2) a challenge to the sentencing enhancement, arguing complicity to commit murder does not meet the elements-clause requirement of “use, attempted use, or threatened use of physical force.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether playing videos of the controlled buys violated the Confrontation Clause by admitting B.B.’s out-of-court statements | B.B.’s statements in the videos were testimonial hearsay and admitted without cross-examination | The videos primarily contained Harrison’s own statements and conduct; B.B.’s statements were not offered for their truth and thus not hearsay/testimonial for Confrontation Clause purposes | No violation; the court held B.B.’s statements were not used for their truth and admission did not breach the Confrontation Clause |
| Whether Kentucky complicity-to-commit-murder conviction is a “serious violent felony” because it has an element of use of physical force | Complicity can be established without the defendant personally using force; thus it does not necessarily have the use-of-force element required by 18 U.S.C. § 3559(c)(2)(F)(ii) | Complicity requires the underlying murder to have occurred and murder necessarily involves the use of physical force, so complicity inherits that element | Affirmed: complicity to commit murder qualifies as a serious violent felony under the elements clause |
| Whether Borden v. United States (recklessness rule) precludes treating Kentucky complicity-to-commit-murder as a violent felony | Borden means crimes that can be committed with reckless mens rea cannot qualify; Kentucky wantonness might be mere recklessness | Kentucky murder requires wantonness manifesting extreme indifference—more culpable than ordinary recklessness—so Borden does not bar the enhancement | Borden does not preclude the enhancement; Kentucky murder’s mental state exceeds mere recklessness and is compatible with the elements clause |
Key Cases Cited
- Delaware v. Fensterer, 474 U.S. 15 (Confrontation Clause generally requires opportunity for cross-examination)
- Crawford v. Washington, 541 U.S. 36 (testimonial statement rule for Confrontation Clause)
- United States v. Gibbs, 506 F.3d 479 (6th Cir.) (testimonial + hearsay framework)
- United States v. Cromer, 389 F.3d 662 (6th Cir.) (informant statements treated as testimonial)
- Descamps v. United States, 570 U.S. 254 (categorical-approach requirement for predicate-offense analysis)
- Castleman v. United States, 572 U.S. 157 (use of force may be indirect; force requirement analysis)
- Johnson v. United States, 559 U.S. 133 (defining physical force in categorical-context analyses)
- Borden v. United States, 141 S. Ct. 1817 (recklessness alone does not satisfy elements-clause use-of-force requirement)
- United States v. Ruska, 926 F.3d 309 (6th Cir.) (interpreting § 3559(c) in line with ACCA and Guidelines analyses)