United States v. Pereneal Kizzee, 877 F.3d 650

Background

On Feb 4–5, 2014, police surveilled 963 Trinity Cut Off Drive, observed Carl Brown briefly speak with Pereneal Kizzee, then stopped Brown and found 0.54 g crack; Brown was interviewed by Detective Schultz at the station and (according to Schultz) said he bought the drugs from Kizzee.
Schultz relied on Brown’s statements to obtain a search warrant; the search recovered 0.2 g crack in the house, cash, rifles, ammunition, cell phones linking Brown and Kizzee, and other items but little corroborating drug-distribution evidence.
At trial the prosecutor asked Schultz about the specific questions he asked Brown; Schultz answered that he asked those questions (and testified he obtained a warrant after the interview). Defense objected on hearsay and Confrontation Clause grounds; the court overruled.
A jury convicted Kizzee on three counts: felon-in-possession (§ 922(g)(1)), possession with intent to distribute (21 U.S.C. § 841), and § 924(c) gun-in-relation-to-drug-trafficking; sentence 130 months. Kizzee appealed.
The Fifth Circuit held that the prosecutor’s questioning and Schultz’s answers permitted the jury to infer Brown’s out-of-court, testimonial statements identifying Kizzee as his drug source, admitting testimonial hearsay without Brown’s cross-examination.
The court concluded the Confrontation Clause violation was not harmless for counts 2 and 3 (drug-distribution and § 924(c)), vacated those convictions, and remanded for a new trial; the § 922(g) conviction remained intact.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s questioning and officer testimony admitted testimonial out-of-court statements in violation of the Sixth Amendment	Kizzee: prosecutor’s questions and Schultz’s answers implicitly communicated Brown’s testimonial inculpatory statements and deprived Kizzee of confrontation	Government: no testimonial hearsay was introduced; Schultz only testified to his observations and actions; Brown’s statements were not offered for their truth	Held: Yes — the questioning/testimony permitted the jury to infer Brown’s testimonial statements identifying Kizzee, triggering Confrontation Clause protections
Whether the statements were offered for their truth (i.e., used to prove guilt)	Kizzee: testimony was used to show Kizzee was Brown’s drug source and to support intent-to-distribute and § 924(c) counts	Government: testimony only explained why officers obtained a warrant and described Schultz’s conduct; not offered for truth	Held: The testimony exceeded permissible background and was offered for its truth — it implicated Kizzee and was unnecessary to explain investigative acts
Whether the Confrontation Clause was cured by opportunity to cross-examine or witness availability	Kizzee: defense had no prior opportunity to cross-examine Brown and should not be required to call the prosecution’s witness	Government: Brown was available and the defense could have subpoenaed him; Schultz was cross-examined	Held: No cure — Brown was not unavailable, and the possibility that the defense could call him does not constitute a prior opportunity to cross-examine; Schultz’s testimony cannot substitute for Brown’s cross-examination
Whether the Confrontation Clause error was harmless	Kizzee: error was not harmless because Brown’s statements were central and no other direct evidence linked Kizzee to selling drugs	Government: prosecution argued error did not affect substantial rights	Held: Not harmless beyond a reasonable doubt for counts 2 and 3 — Brown’s statements were important and not sufficiently corroborated by other evidence

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (testimonial statements to police require confrontation)
Davis v. Washington, 547 U.S. 813 (police interrogations produce testimonial statements)
Williams v. Illinois, 567 U.S. 50 (out-of-court statements may be used for non-truth purposes but Confrontation Clause applies when used for truth)
Chapman v. California, 386 U.S. 18 (harmless error beyond a reasonable doubt standard)
Taylor v. Cain, 545 F.3d 327 (5th Cir.) (officer testimony recounting statements that inculpate defendant can trigger Confrontation Clause)
Favre v. Henderson, 464 F.2d 359 (5th Cir.) (inference from officer testimony that informant implicated defendant triggers Confrontation protections)
Johnston v. United States, 127 F.3d 380 (5th Cir.) (prosecutor questioning can introduce inadmissible out-of-court accusations)
Duron–Caldera v. United States, 737 F.3d 988 (5th Cir.) (defendant’s burden and harmless-error framework for Confrontation Clause claims)
Polidore v. United States, 690 F.3d 705 (5th Cir.) (preservation and standard of review for Confrontation Clause claims)