United States v. Harrison

• Decision Date: 01 December 2022
• Docket Number: 21-6146
• Citation: 54 F.4th 884
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George HARRISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

54 F.4th 884

UNITED STATES of America, Plaintiff-Appellee,

v.George HARRISON, Defendant-Appellant.

No. 21-6146

United States Court of Appeals, Sixth Circuit.

Decided and Filed: December 1, 2022

ON BRIEF: Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant. Sangita K. Rao, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Emily K. Greenfield, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

Before: SUTTON, Chief Judge; COLE and THAPAR, Circuit Judges.

THAPAR, J., delivered the opinion of the court in which SUTTON, C.J., joined in full and COLE, J., joined in part. COLE, J. (pp. –––– – ––––), delivered a separate opinion concurring in Parts I and II and in the judgment.

THAPAR, Circuit Judge.

George Harrison was convicted of drug and firearms offenses after an informant filmed him selling methamphetamine. He now challenges his conviction and sentence. We affirm.

I.

On three occasions, Harrison sold methamphetamine to B.B., a confidential informant who recorded the transactions on video. Based in part on those videos, police arrested Harrison.

B.B. passed away before trial, so he was unable to testify about the controlled buys. As a substitute, the government played B.B.’s videos of the transactions for the jury, over Harrison's objection, though recordings of statements from B.B. to law-enforcement personnel were excluded on Sixth Amendment grounds. The jury convicted Harrison on three counts of distributing methamphetamine, one count of possessing with intent to sell 500 grams or more of methamphetamine, and one count of being a felon in possession of a firearm.

At sentencing, the district court agreed with the government that Harrison's prior conviction for complicity to commit murder was a serious violent felony, rejecting Harrison's argument to the contrary. Thus, Harrison was subject to a sentencing enhancement, raising his mandatory minimum on the possession-with-intent-to-sell count from ten years to fifteen. 21 U.S.C. § 841. So the district court sentenced Harrison to a total of fifteen years’ imprisonment followed by ten years’ supervised release.

Harrison now appeals. First, he argues that the introduction of B.B.’s videos violated his Sixth Amendment right to confront his accusers. Second, he claims the district court improperly characterized his prior conviction as a violent felony at sentencing.

II.

The Confrontation Clause guarantees every criminal defendant the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. Ordinarily that means the defendant must be permitted to cross-examine the prosecution's witnesses at trial. Delaware v. Fensterer , 474 U.S. 15, 18, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). But when a witness can't testify at trial and hasn't been cross-examined, the Confrontation Clause forbids entry of the witness's statements that are: (1) testimonial and (2) hearsay. United States v. Gibbs , 506 F.3d 479, 486 (6th Cir. 2007).

B.B.’s statements to Harrison and other non-law-enforcement personnel are testimonial. A statement is testimonial when its purpose is to be used against the defendant. Crawford v. Washington , 541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). And we've previously held that since confidential informants’ statements are intended for use against the defendant, they are testimonial. United States v. Cromer , 389 F.3d 662, 670 (6th Cir. 2004).

But B.B.’s statements to Harrison and non-law-enforcement personnel aren't hearsay. Hearsay is generally any statement made out of court that's used in court for its truth. Fed. R. Evid. 801(c)(2). And though B.B.’s statements were made out of court, they weren't used in court for their truth.

In fact, it's not clear from the record that the government used B.B.’s statements at all. True, the videos were admitted into evidence. But B.B.’s statements were only a small part of the videos, and the government didn't make those statements part of its case. Instead, the government focused on Harrison's statements and actions, which are undisputedly admissible, not B.B.’s.

Further, to the extent that B.B.’s statements were used in court, they weren't used for their truth. They were used only to give context to Harrison's admissible words and actions. See United States v. Jones , 205 F. App'x 327, 342 (6th Cir. 2006). For instance, during the second controlled buy, Harrison and B.B. discussed Harrison's methamphetamine. Harrison described where he got the drugs, what they looked like when he received them, and how he handled them before selling them. B.B. compared the vacuum-sealed packaging Harrison's drugs came in with other methods of packaging he'd seen. His statement was about how various drugs were packaged, not about Harrison's drug dealing. And the government didn't offer that statement for its truth; the type of packaging B.B. had seen elsewhere was irrelevant to the government. The government only admitted it as part of a "reciprocal and integrated" conversation in which Harrison described receiving and selling methamphetamine. See Jones , 205 F. App'x at 342.

Harrison hasn't pointed to any of B.B.’s statements in the videos that were used for their truth. And since there is no indication in the record that the government offered any of B.B.’s statements for their truth, Harrison hasn't shown a Confrontation Clause violation.

Harrison disagrees, reasoning that hearsay is an out-of-court statement offered "for the truth of the matter asserted," that "the matter asserted" by the government at trial was Harrison's guilt, and that B.B.’s statements were offered as part of the case to prove Harrison's guilt. Thus, Harrison argues B.B.’s statements were hearsay. Harrison is right that we often characterize hearsay as a statement offered to establish "the truth of the matter asserted." See Crawford , 541 U.S. at 60 n.9, 124 S.Ct. 1354. But "the matter asserted" means the matter asserted by the statement , not the matter asserted by the government . See United States v. King , 865 F.3d 848, 850–51 (6th Cir. 2017). Indeed, almost any out-of-court statement the government offers in court is admitted to prove the government's case in some way. Otherwise, there would be no reason to introduce the statement at all.

Because B.B.’s statements in the videos weren't offered for their truth, they weren't hearsay. So their introduction into evidence didn't violate Harrison's rights under the Confrontation Clause.

III.

Harrison also argues that the district court improperly enhanced his sentence based on his prior Kentucky conviction for complicity to commit murder. Specifically, he contends that complicity to commit murder isn't a "serious violent felony" because it doesn't involve the "use, attempted use, or threatened use of force." See 18 U.S.C. § 3559(c)(2)(F)(ii). We disagree.

A.

First, some background. One of Harrison's convictions was for possession of methamphetamine with intent to sell. The statutory minimum penalty for that offense is typically ten years’ imprisonment. 21 U.S.C. § 841. But when, as here, the conviction involves 500 grams or more of a mixture containing methamphetamine, and the defendant has a prior conviction for a "serious violent felony," then the statutory minimum increases to fifteen years. Id.

A "serious violent felony" includes any offense described by 18 U.S.C. § 3559(c)(2).¹ 21 U.S.C. § 802(58). As relevant here, section 3559(c)(2) defines "serious violent felony" as any offense with a maximum sentence of ten years or more that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 3559(c)(2)(F)(ii). Harrison doesn't dispute that complicity to commit murder has a maximum sentence greater than ten years. So the enhancement applies if complicity to commit murder "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id.

In deciding this issue, we're obligated to apply the categorical approach. So the facts underlying Harrison's complicity conviction don't matter; instead, we ask whether the elements of Kentucky's complicity statute include the use of force. See Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). One of the requirements of a conviction for complicity is that the underlying offense actually occurs. See Ky. Rev. Stat. § 502.020(1) (complicity liability only once the "offense [is] committed"); id. § 502.020(2) (requiring proof of the criminal result). So the elements of complicity to commit murder include the elements of murder. Id. § 507.020(1). Thus, we look to the elements of both complicity and murder to find the use-of-force requirement.

B.

With all that in mind, the question we ask under the categorical approach is: Is it possible to be found guilty of complicity to commit murder without proof of any "use of physical force"?

No. Complicity to commit murder always requires the use of physical force, because murder always requires the use of physical force. A person is only guilty of murder in Kentucky if he causes the death of another, either intentionally or by "wantonly engag[ing] in conduct which creates a grave risk of death." See Ky. Rev. Stat. § 507.020. And a person can't cause the death of another intentionally or wantonly without using physical force.

A victim dies only if some "physical force" damages his body so severely that the body no longer functions. That physical force—the physical force exerted on the body to cause injury—is what courts look to when categorizing crimes of violence. See Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ; Raybon v. United States , 867 F.3d 625, 632 (6th Cir. 2017). The physical force exerted on the body isn't always the same as the force applied directly by the criminal. For instance, a shooting involves physical force not because of the force it takes for the shooter to pull the trigger,...