USA v. Holmes

• Decision Date: 02 September 2010
• Docket Number: No. 09-2789.,09-2789.
• Citation: 620 F.3d 836
• Parties: UNITED STATES of America, Appellee, v. Carlos M. HOLMES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

620 F.3d 836

UNITED STATES of America, Appellee,

v.Carlos M. HOLMES, Appellant.

No. 09-2789.

United States Court of Appeals,Eighth Circuit.

Submitted: April 12, 2010.

Filed: Sept. 2, 2010.

COPYRIGHT MATERIAL OMITTED.

Robert P. Taaffe, Jr., argued, St. Louis MO, for Appellant.

Thomas Joseph Mehan, AUSA, argued, St. Louis, MO, for Appellee.

Before LOKEN, HANSEN, and MELLOY, Circuit Judges.

HANSEN, Circuit Judge.

Carlo Holmes ¹ appeals his convictions, following a jury trial, for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count 1), and for possessing with intent to distribute in excess of five grams of crack cocaine, 21 U.S.C. § 841(a)(1) (Count 2). Holmes raises a Confrontation Clause challenge to the admission of statements by a confidential informant through another witness, and he asserts that the Government's evidence was insufficient to establish his guilt on both counts, entitling him to a judgment of acquittal. We affirm the drug conviction under Count 2, but we reverse and remand the felon-in-possession conviction under Count 1.

I.

Holmes was arrested during an attempt by the St. Louis Metropolitan Police Department to execute a search warrant on a residence located at 4458 Anderson Avenue in St. Louis, Missouri. Officer Robert Singh obtained the search warrant based on a tip by a confidential informant (CI) that Holmes was selling drugs from the residence, coupled with surveillance Officer Singh conducted to verify the tip. Officer Singh verified that the mother of Holmes' children lived at the residence with his children, and he observed Holmes at the residence on two different occasions while performing surveillance of the residence. On both occasions, Officer Singh observed Holmes engage in conduct consistent with selling drugs to individuals who stopped at the residence for a short period of time.

After obtaining the search warrant, Officer Singh drove by the residence prior to attempting to execute it and saw Holmes outside. Officer Singh met with other officers to stage the execution of the search warrant, but Holmes left in a car prior to their approach to the house. Officers in unmarked vehicles followed Holmes until he stopped and got out of the car. Upon seeing Officer Singh exit his vehicle and realizing he was a police officer, Holmes dropped a baggie containing over six grams of crack cocaine and ran. Officers pursued and caught Holmes.

Officer Singh arrested Holmes and read him his Miranda ² rights, after which Holmes told Officer Singh that he first thought he was being followed by rival gang members, but then he ran when he realized it was the police because he had crack cocaine. Holmes provided Officer Singh with a key to the Anderson Avenue residence, and the officers returned and conducted a search, using the key to enter the unoccupied house. During the search, officers recovered a revolver, a sawed off shotgun, a .40 caliber magazine for a semi-automatic handgun, drug paraphernalia, and surveillance equipment.

Officer Singh questioned Holmes at the police station about the guns and the equipment found at the residence. Holmes told Officer Singh that he had the guns for protection from a rival gang, a member of which had shot his cousin a few weeks earlier. Officers verified the shooting in their reporting system and verified the violence between the rival gangs mentioned by Holmes.

Holmes proceeded to trial on the drug and firearm charges, focusing his defense on his claim that he did not live at the Anderson Avenue residence that was the focus of the investigation and search warrant. A jury convicted him of both counts, and Holmes received a sentence of 120 months, the statutory mandatory minimum sentence on the drug count. Holmes appeals his convictions.

II.

“The Confrontation Clause bars ‘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.’ ” United States v. Spencer, 592 F.3d 866, 878 (8th Cir.2010) (quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). We review de novo Holmes' constitutional challenge. See id. During trial, the Government asked Officer Singh on redirect examination to read from the search warrant application concerning statements told to Officer Singh by a CI. Holmes challenges that evidence as violating his right to confront the witnesses against him-namely the CI-as secured by the Confrontation Clause of the Sixth Amendment. The CI did not appear at trial, and Holmes did not have a prior opportunity to cross-examine the CI.

Part of Holmes' defense at trial was that he did not live at the house where the guns were found and that was the target of the investigation, and he tried to create reasonable doubt about his connection to the activities at the house. At the time of his arrest, Holmes was living at the St. Louis Community Release Center (a halfway house), and he was released daily to attend work. During the trial, Holmes' attorney questioned Officer Singh on cross-examination about his knowledge of Holmes' connection to the Anderson Avenue residence. At one point, defense counsel asked Officer Singh, “So the only information that you had was this CrimeMATRIX information based upon his prior arrests.” (Trial Tr. vol. I at 146.) Officer Singh responded, “And the information that I received.” ( Id.)

On redirect, the Government attempted to establish that Officer Singh had received information connecting Holmes to the Anderson Avenue residence, and the prosecuting attorney asked Officer Singh to read from the affidavit he had prepared to accompany the application for a search warrant. As soon as Officer Singh read, “The CI informed me that there was a black male with the nickname of Carlo” ( id. at 177), Holmes' counsel objected as violating Holmes' rights to confrontation. The district court overruled the objection, noting that Holmes' counsel had opened the door to evidence of what information the officer had connecting Holmes to the residence. Officer Singh then read several paragraphs from the affidavit into the record. As it pertains to information received from the CI, Officer Singh read the following:

The CI informed me that there is a black male with a nickname of Carlo distributing crack cocaine and cocaine from his residence located at 4458 Anderson, and is in possession of a handgun. The CI described Carlo as a black male approximately 25 to 30 years of age, approximately five feet nine inches tall to six feet tall, slim build, and having a light complexion.

( Id. at 178-79.) The Government asked Officer Singh to read other paragraphs, including, in relevant part, “The CI was shown a picture of Carlo Holmes and verified him as being Carlo,” ( id. at 179), and “On today's date, August 12, 2008, I was contacted by the CI who stated that they had been inside of 4458 Anderson within the past 24 hours. The CI stated that they observed Carlo in possession of crack cocaine, cocaine, and a handgun,” ( id. at 180).

As made clear in Crawford, the Confrontation Clause applies only to testimonial hearsay statements. Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (“This focus [on testimonial statements] also suggests that not all hearsay implicates the Sixth Amendment's core concerns.”). “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Testimonial statements include statements made in the course of police interrogation where the “primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822, 126 S.Ct. 2266. The statements made by the CI to Officer Singh that led to Officer Singh's further investigation of Holmes clearly fall within the class of statements considered testimonial. See United States v. Lopez-Medina, 596 F.3d 716, 730 (10th Cir.2010) (“A confidential informant's statements to a law enforcement officer are clearly testimonial.”).

Crawford is also limited to hearsay evidence-that is, evidence offered to prove the truth of the matter asserted. See Spencer, 592 F.3d at 879 (explaining that “[s]tatements providing context for other admissible statements are not hearsay because they are not offered for their truth,” and thus their admission “does not offend the Confrontation Clause because the declarant is not a witness against the accused” (internal marks omitted)). The Government argues that Officer Singh's statements concerning what the CI told him are not hearsay because they were offered to show Officer Singh's knowledge and to establish the propriety of the investigation, not for the truth of what the CI said. We have said that out-of-court statements are not hearsay if they are offered “ ‘to explain the reasons for or propriety of a police investigation.’ ” United States v. Malik, 345 F.3d 999, 1001 (8th Cir.2003) (quoting United States v. Davis, 154 F.3d 772, 778 (8th Cir.1998)). This type of evidence will be allowed into evidence to explain a police investigation, however, only when the propriety of the investigation is at issue in the trial. Id. at 1001-02; see also United States v. Maher, 454 F.3d 13, 22 (1st Cir.2006) (“The [G]overnment's articulated justification-that any statement by an informant to police which sets context for the police investigation is not offered for the truth of the statement and thus not within Crawford-is impossibly overbroad” and has an “added bite” where it is used in an attempt “to circumvent Crawford's constitutional rule”); United States v. Silva, 380 F.3d 1018, 1020 (7th Cir.2004) (“Allowing agents to narrate the course of their investigations, and thus spread before juries damning information...