423 F.3d 355 (3rd Cir. 2005), 03-3803, United States v. Hinton

Docket Nº:03-3803.
Citation:423 F.3d 355
Party Name:UNITED STATES of America v. Thomas HINTON aka James Kirkland Thomas Hinton, Appellant.
Case Date:September 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 355

423 F.3d 355 (3rd Cir. 2005)



Thomas HINTON aka James Kirkland Thomas Hinton, Appellant.

No. 03-3803.

United States Court of Appeals, Third Circuit.

September 14, 2005

Argued November 18, 2004

On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Criminal No. 02-cr-00769, Honorable Eduardo C. Robreno

Page 356

EDWARD C. MEEHAN, JR., ESQUIRE (ARGUED) Attorney for Appellant

MAUREEN BARDEN, ESQUIRE (ARGUED) Office of United States Attorney, Attorney for Appellee

Before: SCIRICA, Chief Judge, McKEE and CHERTOFF[*] , Circuit Judges


SCIRICA, Chief Judge.

Thomas Hinton appeals from his conviction for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Hinton contends the District Court erroneously permitted the Government to offer as evidence out-of-court statements made by a witness he never had an opportunity to cross-examine, depriving him of his Sixth Amendment right to confrontation.

This case requires us to determine whether the challenged statements were "testimonial," as that term is used in Crawford v. Washington, 541 U.S. 36 (2004), a decision handed down after trial but during the pendency of this appeal. We hold that certain statements were improperly admitted, but that any error was harmless. We will affirm the conviction and vacate his sentence.


Around 4 a.m. on the morning of August 5, 2001, a 911 operator received a call from a man later identified as Thomas Mack. Mack claimed that an unknown person

Page 357

brandishing a gun confronted him on the 600 block of North Brooklyn Street in West Philadelphia and warned him not to return to the area.

Police Officers Brian Dillard and Albert Cain were dispatched to the called-in location. Mack joined the officers in their squad car and they drove around the area looking for the assailant. On the block where Mack had been threatened, they spotted Hinton and an unknown companion. Mack pointed to the two men and stated "There you go."

The police approached in their vehicle, and the two men immediately fled. Officer Cain left his car in pursuit of Hinton. While giving chase, he observed Hinton drop an object that he later testified appeared to be a gun. Officer Cain eventually caught up with Hinton and arrested him. A subsequent search revealed that Hinton was carrying thirty-seven packets of crack cocaine along with $120, much of it in five-dollar bills. Officers Cain and Dillard searched the area Hinton had fled and found a loaded handgun near where Cain observed him dropping an object. A second handgun was found near the area where Hinton's companion, who was never apprehended or identified, had fled.

Hinton was indicted for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug trafficking crime in violation of 21 U.S.C. § 924(c), and possession of a firearm by a convicted felon in violation of 21 U.S.C. § 922(g)(1). Mack did not testify at Hinton's trial. The government never asserted he was unavailable to testify. But the government sought to introduce Mack's statements through the testimony of Officers Dillard and Cain and the 911 recording. Hinton objected, citing the Confrontation Clause of the Sixth Amendment to the Constitution. See U.S. Const., amend. VI, cl. 3. The District Court ruled that Mack's statements were admissible under the excited utterance exception to the hearsay rule, see Fed.R.Evid. 803(2), but did not specifically address Hinton's Confrontation Clause argument.

The jury convicted Hinton of possession with intent to distribute cocaine base but acquitted him of both firearms charges. He was sentenced to 216 months in prison. Hinton filed a timely appeal. We exercise jurisdiction under 28 U.S.C. § 1291.


After Hinton's conviction, the Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). The defendant in Crawford was convicted of assault for stabbing a man who allegedly tried to rape his wife. Over the defendant's objections, the trial court permitted the prosecution to play a tape-recorded statement made by the defendant's wife, who was otherwise barred from testifying without her husband's consent under the state's marital privilege. As a result, Crawford was never permitted to cross-examine her about the statements she made in the tape recording. The trial court nonetheless ruled that the statement was admissible, finding it qualified as a statement against penal interest, see wash. R. Evid. 804(b)(3), and did not violate Crawford's Sixth Amendment rights. The Supreme Court reversed the conviction, holding the statements made by Crawford's wife were inadmissible under the Sixth Amendment.

In so doing, the Court partially overruled Ohio v. Roberts, 448 U.S. 56 (1980), which had defined the scope of the Confrontation Clause for the previous two decades. Under Roberts, out-of-court statements bearing "adequate indicia of reliability" were

Page 358

admissible if they either fell within a "firmly rooted hearsay exception" or possessed other "particularized guarantees of trustworthiness." Id. at 66. After canvassing "the historical background of the [Confrontation] Clause," Crawford concluded that the Roberts test was incompatible with the origins of the right to confrontation. Crawford, 541 U.S. at 60. According to Crawford, "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. at 50. Just as the Sixth Amendment grants defendants the right to cross-examine those who testify in court, it prohibits the admission of out-of-court testimony unless "the declarant is unavailable, and . . . the defendant has had a prior opportunity to cross-examine." Id. at 59.1

Thus, a "testimonial" statement is inadmissible absent a showing that the declarant is unavailable and the defendant had a prior opportunity for cross-examination, "regardless of whether the statement at issue falls within a firmly rooted hearsay exception or has a particularized guarantee of trustworthiness." United States v. Hendricks, 395 F.3d 173, 178-79 (3d Cir. 2005); see also Crawford, 541 U.S. at 56 n.7 ("Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse . . . . This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justifiable in other circumstances."). The threshold question in any Confrontation Clause analysis, then, is whether the statement is testimonial.

The Court's use of the term "testimonial" as a limitation on admission of out-of-court statements derives from its definition of a "witness," as that term is used in the Sixth Amendment. The Sixth Amendment grants the accused in a criminal trial the right "to be confronted with the witnesses against him." The term "witnesses," the Court found in Crawford, embraces all those who "bear testimony," whether at trial or outside the courtroom. Crawford, 541 U.S. at 51 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). "Testimony," in turn, is "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id.

Although the Court expressly declined to "spell out a comprehensive definition" of "testimonial," id. at 68, it provided some concrete examples of testimonial evidence. "Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at 68. These examples "are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Id.

Page 359

Without endorsing one specific definition, Crawford also referenced three different "formulations of this core class of 'testimonial' statements": 1) "ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," id. at 51 (quoting Br. for Pet'r 23); 2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," id. at 51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring)); and 3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," id. (quoting Br. for Nat'l Assoc. of Criminal Def. Lawyers et al. as Amici Curiae 3). These three definitions, the Court found, "all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it." Id.

In the wake of Crawford, courts have grappled with the meaning of testimonial hearsay. In United States v. Hendricks, we explored the admissibility of surreptitiously recorded conversations involving several defendants and a confidential informant. 395 F.3d 173 (3d Cir. 2005). In that case, the District Court found the statements were "testimonial" and inadmissible. We reversed, finding the statements at issue "neither fall within nor are analogous to any of the specific examples of testimonial statements mentioned by the Court" and "do not qualify as 'testimonial' under any of the three definitions mentioned by the Court." Id. at 181. We did not articulate a...

To continue reading