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Fifth Circuit: Confrontation Clause Violated When Officer’s Testimony Relates Incriminating Information Received From Non-Testifying Informant

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ruled that when a testifying officer relates the statement of a non-testifying confidential informant that facially incriminates a defendant, it violates the defendant’s Sixth Amendment right to confront witnesses against him.

Coy Marshall Jones was arrested on May 3, 2017, due to an investigation into suspected large-scale methamphetamine distribution by Eredy Cruz-Ortiz. Special Agent Royce Clayborne received a tip from a confidential informant that a drug deal would occur in the parking lot of a Valero gas station. A surveillance team observed Jones arrive at the gas station and pull alongside a truck driven by Cruz-Ortiz’s roommate. The two vehicles left the gas station and traveled down County Road 213. Detective Michelle Langham drove by and observed the two vehicles meet for less than a minute in a dirt pull-off on the side of the road and then drive off in opposite directions. Officers followed only Jones’ vehicle. When Jones turned onto County Road 201, Langham instructed a sheriff’s deputy to stop Jones for a traffic violation. When the deputy activated his emergency lights, Jones sped up and passed out of view several times.

No one observed Jones throw anything out of his truck, but when he finally stopped, the windows on both sides of his truck were down. No drugs were found in his truck, but a deputy found a Ziploc bag containing almost a kilo of methamphetamine about one-half mile from where Jones stopped. A fingerprint analysis found no prints matching Jones. He was charged, inter alia, with possession with intent to distribute methamphetamine. 

At trial, agent Clayborne testified on direct examination that the reason Jones was followed and not the other vehicle is the police knew Jones had just received a large amount of methamphetamine. But on cross examination, Clayborne answered affirmatively when defense counsel stated that the police did not see any interaction between Jones and the other driver. Then on re-direct, the prosecutor asked Clayborne how he knew Jones had just received drugs if no one saw any interaction between Jones and the other driver. Clayborne answered: “So once we saw ... what looked like a drug deal, I made a phone call to my confidential source, who made some phone calls himself and got back to me that the deal had happened.” Jones was convicted. On appeal he argued, among other things, that the testimony regarding the confidential informant violated his rights under the Confrontation Clause.

The Fifth Circuit observed, “Police officers cannot, through their trial testimony, refer to the substance of statements given to them by non-testifying witnesses in the course of their investigation, when those statements inculpate the defendant.” Taylor v. Cain, 545 F.3d 327 (5th Cir. 2008). “Where an officer’s testimony leads to the clear and logical conclusion that out-of-court declarants believed and said that the defendant was guilty of the crime charged, Confrontation Clause protections are triggered.” United States v. Kizzee, 877 F.3d 650 (5th Cir. 2017).

The Government conceded that the informant’s statements could not be used as evidence of Jones’ guilt. But the Government argued the statements were introduced, not for their truth that a drug deal transpired, but only to explain the actions of the law enforcement officers. The Court explained: “Testifying officers may refer to out-of-court statements to ‘provide context for their investigation or explain background facts,’ so long as the ‘out-of-court statements are not offered for the truth of the matter asserted therein, but instead for another purpose: to explain the officer’s actions.’” Kizzee.

However, the Court has also made it clear that “[w]hen such evidence comes into play, the prosecution must be circumspect in its use, and the trial court must be vigilant in preventing its abuse.” United States v. Evans, 950 F.2d 187 (5th Cir. 1991). A witness’ statement to police that the defendant is guilty of the crime charged is highly likely to influence the direction of a criminal investigation. But a police officer cannot repeat such out-of-court accusations at trial even if helpful to explain why officers took subsequent actions. Kizzee.

“Statements exceeding the limited need to explain an officer’s actions can violate the Sixth Amendment—where a non-testifying witness specifically links a defendant to the crime, testimony becomes inadmissible hearsay.” Id. The Court concluded that Clayborne’s testimony wherein he stated the confidential informant told him the drug deal had occurred specifically linked Jones to the crime. Accordingly, the Court vacated Jones’ convictions and remanded for further proceedings consistent with its opinion. See: United States v. Jones, 2019 U.S. App. LEXIS 14550 (5th Cir. 2019). 

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