U.S. v. Proctor
Decision Date | 22 October 2007 |
Docket Number | No. 07-60011.,07-60011. |
Citation | 505 F.3d 366 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kendrick Fitzgerald PROCTOR, also known as Kendrick Shavers, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Gaines H. Cleveland, Ruth R. Morgan (argued), Asst. U.S. Attys., Annette Williams, Gulfport, MS, for U.S.
Ellen Maier Allred (argued), Gulfport, MS, for Proctor.
Appeal from the United States District Court for the Southern District of Mississippi.
Before GARWOOD, JOLLY and STEWART, Circuit Judges.
Kendrick Fitzgerald Proctor ("Proctor") was convicted by a jury of theft of a firearm, possession of a stolen firearm, and felon in possession of a firearm. He appeals these convictions, arguing that the indictment should have been dismissed based on unnecessary delay and that the district court's admission of a 911 tape-recording violated his right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We affirm.
On August 4, 2001, Proctor's brother, Rodriguez "Yogi" Proctor ("Yogi") and Bobby Fairley ("Fairley") went to a nightclub together in Biloxi, Mississippi. Yogi had driven and Fairley left his gun, a .38 special revolver, on the dashboard of Yogi's car. Upon leaving the nightclub, Yogi introduced Fairley to Proctor, and all three walked to Yogi's car. Yogi then opened the passenger door for Fairley, at which point Proctor grabbed Fairley's gun which was in plain view on the console of the car. Fairley protested that the gun belonged to him, but Proctor began "cussing" and fired the gun twice into the ground near Fairley's foot. Proctor took off running with the gun. Yogi called 911, and reported that his brother had taken a gun, fired it twice into the ground, and that he believed Proctor had run back into the nightclub. The police arrived on the scene and canvassed the area for Proctor. An officer spotted Proctor, and pursued Proctor on foot. Proctor fired at the officer, and the officer fired back, striking Proctor.
On May 11, 2006, Proctor was charged in a three-count indictment with various firearms-related offenses under 18 U.S.C. § § 922 & 924. On August 10, 2006, Proctor moved to dismiss the indictment under both Federal Rule of Criminal Procedure 48(b) and the Due Process Clause of the Fifth Amendment, arguing that the government waited an unreasonable amount of time before bringing the prosecution. The district court denied the motion in an unwritten order.
A one-day trial was held on August 23, 2006. During the trial, the Government offered into evidence a tape-recording of the 911 call made by Yogi. The tape contained the entire exchange between Yogi and the 911 operator, set out here:
Yogi was not called as a witness at trial. Proctor made a timely objection to the introduction of the tape-recording based on the Confrontation Clause, arguing that the 911 call was testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The district court overruled the objection. The jury found Proctor guilty on all counts, and the district court sentenced him to 135 months of imprisonment.
Proctor appeals both the denial of his motion to dismiss the indictment1 and the admission of the 911 call as evidence at trial.
Proctor's first point of error is that the Government's May 2006 indictment for crimes that occurred four years and nine months earlier violates his Fifth Amendment due process rights and, therefore, the district court should have granted his motion to dismiss the indictment. The district court's findings of fact are reviewed for clear error; its conclusions of law are reviewed de novo. United States v. Avants, 367 F.3d 433, 441 (5th Cir.2004). For preindictment delay to violate due process, the accused must show both that the delay "was intentionally brought about by the Government for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution or for some other bad faith purpose" and that the delay "caused actual, substantial prejudice to his defense." United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir.1996) (en banc).
Proctor argues that the Government's bad faith "is evident from the fact that the Government had all the evidence to prosecute" approximately four years and nine months before filing the indictment. Proctor cannot rely solely on the passage of time to establish bad faith or improper purpose. See, e.g. Crouch, 84 F.3d at 1510 ( ). Instead, the Due Process Clause requires dismissal of an indictment filed within the statute of limitations only if the defendant shows that the Government's delay in bringing the indictment was a deliberate device to gain an advantage. Id. at 1510. Proctor has failed to point to anything in the record that shows the Government delayed the indictment to gain such a tactical advantage, and we reject his invitation to infer bad faith simply from the fact of the delay.
In addition, Proctor has not shown that he was actually prejudiced by the pre-indictment delay. Proctor contends that he was prejudiced because his brother, Yogi, was no longer available to testify. However, Proctor does not allege that Yogi's testimony would have been exculpatory or that it would have aided the defense. See United States v. Beszborn, 21 F.3d 62, 66 (5th Cir.1994) ( ). Therefore, Proctor has failed to show he was actually prejudiced, and we reject his contention that the pre-indictment delay violated his right to due process under the Fifth Amendment.2
Proctor also argues that the use of the tape-recorded 911 call at his trial was a violation of his Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He asserts that the tape-recording contained inflammatory and highly prejudicial information that should have been excluded because it was testimonial in nature. Specifically, he contests the admission of the following statements made by Yogi: (1) Proctor "took the gun out of my car belong [sic] to someone else;" (2) "y'all know him real good;" (3) "he's been in the penitentiary;" and (4) "he's on cocaine." Because Proctor objected to the admission of the 911 tape on confrontation grounds, this court reviews his claim of error de novo. See, e.g., United States v. Fields, 483 F.3d 313, 326 (5th Cir.2007).
The Sixth Amendment to the Constitution states that in all "criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. AMEND. VI. In Crawford v. Washington, the Supreme Court held that the right to confrontation bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." 541 U.S. at 53-54, 124 S.Ct. 1354. The Court declined to provide a comprehensive definition of "testimonial," but noted that a testimonial statement "is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact" and "includes statements that were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for later use at trial." Id. at 51-52, 124 S.Ct. 1354 (citations omitted).
In Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 2276, 165 L.Ed.2d 224 (2006), the Supreme Court...
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