Kenneth Hamann was convicted of conspiring to possess methamphetamine with intent to distribute. But the jury heard evidence that included the testimonial hearsay of two non-testifying witnesses. The issue was whether this evidence flouted Hamann’s right to confront witnesses against him. The Fifth Circuit said it did.

If the government elects to introduce out-of-court statements to attempt to provide context for its investigation, its use must be “circumspect” and “limited.” Trial courts must be “vigilant in preventing . . . Abuse” to avoid “the back door introduction of highly inculpatory statements.”

It is not “circumspect” to introduce a statement accusing the defendant of selling “multiple ounces” of meth. Nor is it “limited” to give a play-by-play account of the defendant selling meth to a confidential informant. If those uses have any probative value in explaining why police began an investigation, they “pale in comparison to the risk that the jury will consider [the statements for their] truth.”

Here, the prosecutor began his opening statement by explaining that police were trying to execute a search warrant for a motel room when they encountered Hamann standing outside with another individual named Davis. He went on to describe the police’s finding of 17 grams of meth inside a truck near Hamann and another 150 grams in Davis’s backpack. He said Davis had agreed to sell Hamann the meth after meeting him.

The prosecutor then backtracked and explained that there had to be events leading up to the search warrant. Those events, he said, included a controlled buy where a controlled source had bought meth to establish probable cause for the warrant.

The government’s first witness picked up where the prosecutor left off. He was the confidential source’s handler and confirmed that the DEA conducted a controlled buy from Hamann with him. He also provided background facts about how the confidential source had come to know of Hamann. He recounted the controlled buy that led to the warrant and how he had prepared the confidential source for the transaction. He explained he didn’t actually see the confidential source perform the buy, but recounted what other officers had told him. The government called three other officers who filled in the story of the controlled buy, and background facts about the execution of the warrant.

The government called Davis to testify against Hamann, and also a chemist. In closing argument, the prosecutor recalled the controlled buy more than once. He described the controlled buy in detail.

Hamann was convicted and sentenced to 360 months.

The Confrontation issue was whether the trial court’s permitting of the government’s first witness to describe in detail the investigation that led to the search warrant, even though it relied on out-of-court statements of non-testifying witnesses, violated Hamann’s constitutional rights even though they were not offered “to prove the truth of the matter asserted.”

The court explained, “When police officers testify about the contents of witnesses’ statements during an investigation, they risk introducing testimonial hearsay evidence. A statement is testimonial if its ‘primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.’” When a witness’s statements at trial implicate a non-testifying declarant’s statements, the content is testimonial if if “lead[s] to the clear and logical inference” that the declaration believed that the defendant committed the charged offense.

The government’s witness had testified that the confidential source had told him that “Cali,” a nickname for Hamann, was “moving multiple ounces.” This, the court said, showed that he and the prosecutor demonstrated that the confidential source and other police officers believed that Hamann was dealing meth. In doing so, they introduced testimonial evidence from non-testifying witnesses. The same was true of the witness’s summary of the controlled buy. His statements created the “clear and logical inference that out-of-court declarants believed and said that [Hamann] was guilty of the crime charged.” So even if the government was correct that this evidence was relevant to explain its investigative choices, it no doubt was offered for the truth of the matters asserted because it “specifically [linked Hamann] to the crime.”

The government must advance a specific reason why it needs to pro- vide inculpatory “context” for its investigation. For instance, it may do so if the defendant opens the door by “challeng[ing] the adequacy of [the] investi- gation.” Otherwise, there is no reason why it cannot begin its account by explaining that it got a search warrant or that “a tip prompted” it to begin investigating a suspect. Or, if it wishes to include the specifics of the tip, it is always free to call the tipster to testify. But it may not introduce “highly inculpatory out-of-court state- ment[s]” and call them nonhearsay context because their value for that pur- pose “pale[s] in comparison to the risk that the jury will consider” them for the truth of the matters asserted.

Hamann established that the government’s first witness violated the Confrontation Clause. The government did not prove that the challenged evidence could not have contributed to Hamann’s conviction. Thus, the court vacated his conviction.

United States v. Hamann