United States v. Cromer

MARBLEY, District Judge.

Defendant-Appellant, Sean Lamont Cromer, appeals his conviction by a jury for possession of cocaine with intent to distribute. On appeal, Cromer asserts the following grounds for reversal: (1) there was insufficient evidence to support his conviction; (2) the district court plainly erred by allowing a witness to testify about hearsay statements made by a confidential informant (“CI”) indicating that Cromer was involved in drug activity; (3) the district court erred by not requiring the production of the CI after admitting the hearsay statements made by the CI; and (4) the district court erred by allowing Cromer to cross-examine a witness without giving him Faretta warnings. Jurisdiction is proper under 28 U.S.C. § 1291. For the following reasons, Cromer's conviction is REVERSED and this case is REMANDED for additional proceedings in accordance with this opinion.

I. BACKGROUND

A. Procedural History

On June 6, 2001, a grand jury . . . returned a two-count indictment against Cromer based upon the results of a search conducted pursuant to a warrant on March 8, 2001, at a residence located at 3284 Buchanan Avenue in Wyoming, Michigan (the “Buchanan residence”). Count I charged Cromer with being a felon in possession of a firearm “[o]n or about March 8, 2001,” in violation of 18 U.S.C. §§ 922(g)(1), 921(a), and 924(a)(1). Count II charged Cromer with “knowingly, intentionally and unlawfully possess[ing] with intent to distribute ... cocaine,” in violation of 21 U.S.C. § 841(a) and (b)(1)(C). On July 10, 2001, a grand jury returned a superseding indictment, adding a third count based upon a firearm found at the time of Cromer's arrest, on May 24, 2001. Count III thus charged Cromer with being a felon in possession of a firearm “[o]n or about May 24, 2001.”

At the beginning of Cromer's first trial, the district court granted Cromer's oral motion to sever the drug charge from the firearms charges and proceeded to try Cromer solely upon the drug charge. Cromer's first trial on the possession with intent to distribute charge was held on January 15, 2002, through January 18, 2002, and resulted in a hung jury. The court declared a mistrial on January 23, 2002. Cromer's second trial on the drug charge was held on May 21, 2002, through May 24, 2002. Cromer moved for a judgment of acquittal at the close of the government's case and then again moved for a judgment of acquittal at the close of all the evidence. Both motions were denied. The jury found Cromer guilty of the drug charge. Subsequently, Cromer and the government entered into a plea agreement regarding the two firearms charges, whereby Cromer agreed to plead guilty to the felon in possession charge contained in Count III and the government agreed to dismiss the felon in possession charge contained in Count I.

The district court sentenced Cromer to 294 months of imprisonment on Count II, the drug charge, and 96 months of imprisonment on Count III, the firearms charge. On November 21, 2002, Cromer filed a timely notice of appeal of his judgment of conviction on the possession with intent to distribute cocaine charge. In his plea agreement, Cromer waived the right to appeal his conviction and sentence on the felon in possession charge contained in Count III, and he does not raise any issues on appeal regarding his conviction or sentence on that charge.

B. Factual Background

1. Evidence of Cromer's Guilt

On March 8, 2001, a search warrant was executed at the Buchanan residence, during the course of which the following incriminating evidence was discovered:

(1) a “pocket tech digital scale,” rolling paper, and razor blades in a kitchen cupboard;

(2) a shoe box containing a pan and knife covered in cocaine residue, a small bag of suspected marijuana, a small bag of cocaine, and small baggies in a cupboard or pantry;

(3) two electric mixers-one that had cocaine residue on it and one that did not have any cocaine residue on it-in a kitchen cupboard;

(4) $8,500 in cash inside an oven mitt that was resting between the refrigerator and its handle;

(5) a loaded gun in the basement;

(6) a large glass tube containing cocaine residue in a hidden corner of a kitchen cabinet;

(7) a coffee grinder caked with cocaine residue; and

(8) some apparent drug tabulations, mixed in with thirty to forty documents that appeared to be Cromer's.

At trial, the government introduced evidence that Cromer's fingerprints were found on the mixer with the cocaine residue, the gun, and a Pyrex dish with no cocaine residue; that Cromer had spent at least some time at the residence for the stated purpose of house sitting; that the interior of the Buchanan residence was consistent with the sort of “stash house” often used by distributors of crack cocaine; and that Cromer, when he was arrested, had on his person almost $4,000 in cash for which he provided inconsistent explanations. [The government also introduced the hearsay evidence described in the discussion below] . . .

II. ANALYSIS

Cromer argues that his conviction cannot stand for the following reasons: (1) there was insufficient evidence to support his conviction; (2) the district court plainly erred by allowing a witness to testify about hearsay statements made by a confidential informant (“CI”) implicating Cromer in drug activity; (3) the district court erred by not requiring the production of the CI after admitting the hearsay statements made by the CI; and (4) the district court erred by allowing Cromer to cross-examine a witness without giving Faretta warnings.

. . .

A. Confrontation Clause

The Confrontation Clause of the Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. Prior to Crawford v. Washington, the admissibility of out-of-court statements under the Confrontation Clause was governed by Ohio v. Roberts . . . According to Roberts, an unavailable witness's out-of-court statement could be admitted against the accused if the statement had adequate indicia of reliability. . . A statement was considered to have sufficient indicia of reliability if it either fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.”

Crawford involved a tape-recorded statement given by the defendant's wife to the police describing the stabbing with which the defendant was charged. Pursuant to the state marital privilege, the defendant's wife did not testify at trial, so the defendant had no opportunity to cross-examine her. The statement nevertheless was admitted at trial, over the defendant's objections, because the trial court determined that the statement had “particularized guarantees of trustworthiness.” . . .

The Supreme Court, in Crawford, introduced a fundamental re-conception of the Confrontation Clause. The Court reaffirmed the importance of the confrontation right and introduced a distinction between testimonial and nontestimonial statements for Confrontation Clause purposes: “Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ ” . . . The Court based this distinction on the word “witnesses” in the Clause, which refers to those who “bear testimony.” . . .Ultimately, the Court's holding was that testimonial, out-of-court statements offered against the accused to establish the truth of the matter asserted may only be admitted where the declarant is unavailable and where the defendant has had a prior opportunity to cross-examine the declarant. . . While the Court declined to “spell out a comprehensive definition of ‘testimonial,’” it stated that the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” . . . The Court found that the defendant's wife's tape-recorded statement was “testimonial under any definition,” and accordingly reversed the defendant's conviction. . .

There are three categories of statements in the case sub judice that the Confrontation Clause arguably should have excluded. First is the testimony provided by O'Brien in the government's case-in-chief in which O'Brien describes the commencement of the investigation based on information she and her partner had regarding the Buchanan residence. Second is testimony O'Brien provided on direct examination relating to information she had before the search on a man nicknamed “Nut.” Third is O'Brien's testimony, given on redirect examination, in which she furnishes and discusses the physical description given to her by the CI. The description was for an alleged drug distributor operating out of the Buchanan residence. O'Brien stated on redirect, and the government argued in closing, that the description more closely matched Cromer than Hatcher.

At trial, Cromer did not object to any of these statements. When an appellant fails to object to an error in the district court, this Court reviews for plain error. Fed.R.Crim.P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.”). . .

The threshold determination that we must make is whether the statements of a confidential informant to police are “testimonial” in nature. While the Crawford Court did not provide a comprehensive definition of “testimonial,” it did provide some guidance in the matter. For example, the Court noted that “testimony” may be defined as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” . . . The Court emphasized that, “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” . . . The Court mentioned various formulations that had been proposed to define the class of “testimonial” statements but found no need to choose among those formulations since “[s]tatements taken by police officers in the course of interrogations,” such as the defendant's wife's tape-recorded statement, are “testimonial under even a narrow standard.” . . . (“Police interrogations bear a striking resemblance to examinations by justices of the peace in England.”).

The Court examined the historical underpinnings of the Confrontation Clause, concluding that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” . . . The Court detailed one of the “most notorious instances of civil-law examination”-the 1603 trial of Sir Walter Raleigh for treason. . . There, Lord Cobham, Raleigh's alleged accomplice, had implicated Raleigh in an examination before the Privy Council and in a letter. Raleigh argued that Cobham had lied to save himself and demanded the right to confront his accuser face-to-face. Raleigh's judges refused to call Cobham to appear, and Raleigh was found guilty and sentenced to death. Out of such abuses was the English right of confrontation, used as a model for our Confrontation Clause, born.

Additional guidance may be found by looking to the sources upon which the Crawford Court relied in framing its re-definition of the Confrontation Clause. For example, the Court cites to works by two leading constitutional scholars-Professor Akhil Reed Amar of Yale Law School and Professor Richard Friedman of University of Michigan Law School-both of whom have been closely associated with the testimonial approach to the Confrontation Clause. Professor Amar contends that the Clause encompasses “those ‘witnesses' who testify either by taking the stand in person or via government-prepared affidavits, depositions, videotapes, and the like.” . . . Professor Friedman, in contrast, urges a broader definition of “testimonial” that would include any statement “made in circumstances in which a reasonable person would realize that it likely would be used in investigation or prosecution of a crime.” . . . Based on his proposed definition, Friedman offers five rules of thumb:

“A statement made knowingly to the authorities that describes criminal activity is almost always testimonial. A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made to the authorities or not. If, in the case of a crime committed over a short period of time, a statement is made before the crime is committed, it almost certainly is not testimonial. A statement made by one participant in a criminal enterprise to another, intended to further the enterprise, is not testimonial. And neither is a statement made in the course of going about one's ordinary business, made before the criminal act has occurred or with no recognition that it relates to criminal activity.”

. . .

Since Crawford, other Circuits have begun to work toward developing a more comprehensive definition of “testimonial.” . . . In United States v. Silva, . . . the Seventh Circuit denounced the practice of law enforcement officials, under the guise of demonstrating the reason for a particular investigation, testifying at trial as to statements made by confidential informants. The court strongly suggested that statements by a CI are testimonial in nature:

“Under the prosecution's theory, every time a person says to the police “X committed the crime,” the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one's accusers. . .”

We find the definition of “testimonial” proposed by Professor Friedman to be both well-reasoned and wholly consistent with the purpose behind the Confrontation Clause. As emphasized by Crawford, the Confrontation Clause refers to those who bear testimony against an accused. Statements “made to the authorities who will use them in investigating and prosecuting a crime, ... made with the full understanding that they will be so used,” are precisely the sort of accusatory statements the Confrontation Clause was designed to address. . . Certainly Lord Cobham, who accused Sir Walter Raleigh of treason, fell into this category.

Professor Friedman's definition is somewhat broader than Professor Amar's definition, which would implicate the Confrontation Clause only in the instance of formalized statements-such as affidavits, depositions, and government-prepared recordings-made directly to the authorities. As explained by Professor Friedman, however, the broader definition “is necessary to ensure that the adjudicative system does not effectively invite witnesses to testify in informal ways that avoid confrontation.” . . . The Crawford Court found the absence of an oath not to be determinative in considering whether a statement is testimonial. . . We are unable to discern how the additional formalities identified by Professor Amar are necessary components of a testimonial statement.

Indeed, the danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation. Professor Friedman's concern becomes especially meaningful in such a context. If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally. [Footnote 5] The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime.


=====FOOTNOTE 5=====

Professor Friedman gives the example of a private rape counselor who is able to assure a victim that she may give a videotaped statement, without going under oath, that will be provided to prosecutors and used against the perpetrator with little risk that she will have to testify in court and face cross-examination.

=====Footnote End=====

Considered within such a framework, statements of a confidential informant are testimonial. Indeed, such statements fall squarely within Professor Friedman's paradigm: “A statement made knowingly to the authorities that describes criminal activity is almost always testimonial.” . . . Tips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial. The very fact that the informant is confidential- i.e., that not even his identity is disclosed to the defendant-heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for cross-examination would make a mockery of the Confrontation Clause. . .

Given that statements by a confidential informant are testimonial and thus are subject to the dictates of the Confrontation Clause, the next question is whether any of the testimony provided by O'Brien implicates the Clause. For purposes of this analysis, the objectionable statements made by O'Brien may be divided into three categories. The first set of objectionable testimony was provided in the following exchange in O'Brien's direct examination:

Q ....

Were you in charge of the investigation that led to charges against Sean Cromer?

A Yes.

Q What was your role in that?

A My partner and I, Officer Galloway, back in January of 2001, had information about 3284 Buchanan. And we began an investigation about this residence being associated with selling drugs.

Q By investigating the place, did you come up with enough information that a state court judge gave you an order to go and have the place searched?

A Yes.

Cromer's Confrontation Clause rights were not violated by this testimony. This exchange at least arguably did not even put before the jury any statements made by the CI. . . Even if testimonial statements of an out-of-court declarant were revealed by this testimony, Cromer's confrontation right was not implicated because the testimony was provided merely by way of background. . . The Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” . . . Any out-of-court statements alluded to by O'Brien at this juncture served the purpose of explaining how certain events came to pass or why the officers took the actions they did. Because the statements were not offered to establish the truth of the matter asserted, the Confrontation Clause does not apply.

The second category of testimony that potentially violated the Confrontation Clause includes O'Brien's statements, also provided on direct examination, regarding information about a person nicknamed “Nut.” When asked what names she had, prior to executing the search, of persons involved with illegal activities at the Buchanan residence, O'Brien replied, “Well, the focus of our investigation were [sic] for two subjects: one being a person nicknamed Nut, which is Mr. Sean Cromer. The second individual who was the subject of this investigation was Quincy Hatcher.” This testimony was not offered merely to explain why a government investigation was undertaken or to demonstrate the effect of the out-of-court statements on the officers. . . Rather, the purpose of this testimony could only have been to help establish that the person nicknamed “Nut” or “Peanut,” which the prosecution demonstrated elsewhere in the trial was Sean Cromer's nickname had been involved with the illegal drug activity occurring at the Buchanan residence.

Crawford held that when testimonial, out-of-court statements of an unavailable declarant are offered to prove the truth of the matter asserted, the admission of those statements violates the Confrontation Clause unless the defendant has had an opportunity to cross-examine the declarant. O'Brien's testimony about “Nut” is distinguishable from her earlier background testimony for several reasons. Not only did the testimony about “Nut” more clearly place before the jury information provided by a CI, but this second category of testimony also implicated Cromer in a way that went “to the very heart of the prosecutor's case.” . . . In the earlier testimony, O'Brien had merely stated that she “had information” about the Buchanan residence that led her to begin an investigation. O'Brien thus alluded, in the vaguest possible terms, to the statements made to her by a CI; she also manifestly linked those out-of-court statements with action taken by her and her partner. Furthermore, that brief explanation for why the government began its investigation of the Buchanan residence at least arguably provided some assistance to the jury in understanding the background of the case.

O'Brien's testimony about “Nut,” by contrast, explicitly, albeit not directly, informed the jury that someone had implicated Nut in illegal activities. The prosecutor attempted to link this statement by a CI with an action taken by O'Brien; however, any such linkage is a sham. [Footnote 8] The central issue at Cromer's trial was not whether illegal activity occurred at the Buchanan residence, but whether Cromer knowingly participated in that illegal activity. The evidence on this point was so tenuous that the jury in Cromer's first trial was unable to convict him. [Footnote 9] Because there was no dispute as to the subjects of the government's investigation or the reason those subjects were believed to be involved, evidence that the government focused its investigation on Nut is helpful to the jury only insofar as it relates to the difficult question of whether Cromer was involved in the illegal activity. . . In other words, we are forced to conclude that the purpose of this testimony was to establish the truth of the matter asserted: to prove that Cromer was, indeed, involved in the illegal activity, as stated by the CI. Because there was a testimonial, out-of-court statement, offered to establish the truth of the matter asserted, and Cromer was provided no opportunity to cross-examine the CI, Cromer's Sixth Amendment confrontation right was violated by the introduction of this second set of testimony.

=====FOOTNOTE 8=====

The government's counsel, rather than asking O'Brien what information she had about suspects, asked her what suspects she told the officers conducting the search to be on the lookout for.

=====Footnote End=====


=====FOOTNOTE 9=====

The evidence of Cromer's guilt boils down to the following: (1) Cromer had spent some amount of time in the Buchanan residence; (2) alleged drug tabulations were found among paperwork containing Cromer's name; (3) Cromer's fingerprint was found on a mixer that had cocaine residue; (4) Cromer's fingerprint was found on a loaded gun in the basement of the Buchanan residence; and (5) Cromer had almost $4,000 in cash on his person when he was arrested, over two months after the raid on the Buchanan residence.

=====Footnote End=====

The third category of objectionable testimony is O'Brien's testimony on redirect examination regarding the physical description provided by the CI. As we have already established, the out-of-court statements of the CI were testimonial in nature, and Cromer had no opportunity to cross-examine the CI. Moreover, the physical description was provided to the jury for the purpose of establishing the truth of the matter asserted-that Cromer, who met the description, had participated in the illegal activity at the Buchanan residence. [Footnote 10] The only question regarding this third set of testimony is whether the fact that Cromer opened the door to this testimony somehow acts to preclude the testimony from violating the Confrontation Clause. The government argues that any error in the admission of this testimony is error that Cromer invited or provoked as part of a failed defense strategy and, thus is not reversible error. As Crawford demonstrates, however, the Confrontation Clause, when properly applied, is not dependent upon “the law of Evidence for the time being.” . . .

=====FOOTNOTE 10=====

Any potential doubts about whether these statements were offered for the truth of the matter asserted is resolved by the prosecutor's closing argument, wherein the government's counsel argued that Cromer was guilty because he matched the description offered by the CI.

=====Footnote End=====

As a matter of modern evidence law, the district court may well have been correct in admitting O'Brien's redirect testimony about the description provided by the informant since Cromer, on cross-examination, had opened the door to the subject by asking about that description. [Footnote 11] . . . By questioning [the agent's] motives, [defendant's] counsel was attempting to further his own theory that [defendant] was framed.... On redirect examination the government merely clarified the basis for [the agent's] suspicion of [the defendant].” . . . Cromer and his counsel, on cross-examination, introduced the existence of an informant and a description provided by that informant in an attempt to discredit the government's case by emphasizing the limited information tying Cromer to the Buchanan residence prior to the execution of the warrant. Even after Cromer was warned that this line of questioning would open the door to allow the government to question O'Brien about the exact content of the informant's statements, Cromer continued in his attempt to establish that the informant's statement did not describe him. On redirect examination, the government merely clarified the precise nature of the description provided by the CI.

=====FOOTNOTE 11=====

We need not devote much attention to the question of whether the Confrontation Clause was violated by any of the evidence admitted during O'Brien's cross-examination since “a party may not complain on appeal of errors that he himself invited or provoked.” Harvis v. Roadway Express, Inc., 923 F.2d 59, 60 (6th Cir.1991).

=====Footnote End=====

The pertinent question, however, is not whether the CI's statements were properly admitted pursuant to “the law of Evidence for the time being.” . . . Rather, the relevant inquiry is whether Cromer's right to confront the witnesses against him was violated by O'Brien's redirect testimony. If there is one theme that emerges from Crawford, it is that the Confrontation Clause confers a powerful and fundamental right that is no longer subsumed by the evidentiary rules governing the admission of hearsay statements. Thus, the mere fact that Cromer may have opened the door to the testimonial, out-of-court statement that violated his confrontation right is not sufficient to erase that violation. In this, too, we agree with Professor Friedman, who has postulated that a defendant only forfeits his confrontation right if his own wrongful conduct is responsible for his inability to confront the witness. . . If, for example, the witness is only unavailable to testify because the defendant has killed or intimidated her, then the defendant has forfeited his right to confront that witness. A foolish strategic decision does not rise to the level of such misconduct and so will not cause the defendant to forfeit his rights under the Confrontation Clause. O'Brien's redirect testimony relating the CI's physical description therefore violated Cromer's right of confrontation.

The only question remaining in our Confrontation Clause analysis is whether the two violations of the Clause that we have identified amounted to plain error. We already have found that there was error. In light of Crawford, the error is “plain.” Based on Crawford 's affirmation of the importance of the constitutional right of confrontation, we readily can determine that Cromer's substantial rights were affected by these violations. In the context of a case as close as this one on the central issue of whether the defendant was involved in any illegal drug activities, the admission of these statements directly tying Cromer to the crime likely impacted the outcome of the trial. Because this plain error compromised the fairness and integrity of Cromer's trial, we REVERSE the judgment of the district court and REMAND this case for a new trial in accordance with this opinion.