     Case: 11-60051   Document: 00511901113   Page: 1   Date Filed: 06/27/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                  June 27, 2012
                                 No. 11-60051
                                                                 Lyle W. Cayce
                                                                      Clerk
DERRICK BROWN, also known as Derrick Latory Brown,

                                          Petitioner - Appellee

v.

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS; ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI,

                                          Respondents - Appellants


                  Appeal from the United States District Court
                    for the Northern District of Mississippi



Before HIGGINBOTHAM, GARZA, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
        A government informant set up a controlled drug deal with two
unidentified men. Their conversations were recorded and admitted into evidence
at the petitioner’s trial in state court. He was convicted. The Mississippi
Supreme Court upheld the conviction, concluding that the conversations were
not hearsay and did not violate the petitioner’s rights under the Confrontation
Clause. Subsequently, the petitioner successfully pursued collateral relief in
federal district court. We hold that the unidentified men’s recorded statements
were not testimonial, and therefore their admission did not violate the
Confrontation Clause. We reverse.
   Case: 11-60051   Document: 00511901113     Page: 2   Date Filed: 06/27/2012

                                 No. 11-60051

                                       I.
      On November 3, 2003, Antonio Echols, a confidential informant, contacted
the Panola County Narcotics Task Force (“Task Force”) Commander about
buying crack cocaine from Elmer “Little Fudge” Armstrong. Echols had already
spoken with Armstrong, who had put him on a three-way conference call with
two unidentified individuals. The drug deal was to take place at the Wal-Mart
in Senatobia, Mississippi.
      At the Commander’s direction, Echols went to the Task Force office and
called the unidentified individuals to finalize the drug deal. The call was
recorded. The unidentified individuals told Echols that they had only two ounces
of crack cocaine to sell, which Echols agreed to buy. Echols was then searched,
wired, given $1,600 to use in the controlled buy, and dropped off at the
Wal-Mart. Echols waited in the Wal-Mart parking lot for approximately two
hours. While waiting, he made four phone calls to the unidentified individuals
to inquire as to their whereabouts, to decide how specifically they should meet,
and to specify what form of cocaine he wanted to purchase. Although the
unidentified individuals initially told Echols that they were coming in a blue
Monte Carlo, that changed to a white Delta 88. The Task Force recorded the
phone conversations through Echols’s body wire.
      Law enforcement officers providing surveillance and security for the
controlled buy observed a white Delta 88 make its way to the Wal-Mart parking
lot. The petitioner, Derrick Brown, was the driver. Echols got into the back seat
of the car and handed the passenger, Derrick Black, $1,600 in exchange for a
plastic baggie. Law enforcement officers descended on the car and arrested
Brown and Black. The Mississippi Crime Laboratory confirmed that the plastic
baggie contained 1.53 ounces of crack cocaine.
      In subsequent proceedings, neither Echols nor any of the law enforcement
officers identified the individuals with whom Echols spoke on the phone. The
audiotape recordings and transcripts of Echols’s phone conversations were

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admitted into evidence at Brown’s trial in Mississippi state court with that
caveat. Ultimately, a jury found Brown guilty of the sale of cocaine as an aider
and abettor.
       On direct appeal, Brown argued that the recordings and transcripts of
Echols’s phone conversations prior to the drug deal constituted hearsay and that
the trial court’s erroneous admission of this evidence prejudiced his defense and
violated his federal and state constitutional rights to confront adverse
witnesses.1       The intermediate appeals court concluded that the taped phone
conversations constituted hearsay and that admitting them substantially
prejudiced Brown, justifying a new trial.2 It did not reach the question of
whether admitting the taped phone conversations violated Brown’s federal and
state rights of confrontation.3
       The Mississippi Supreme Court reversed, reinstating the trial court’s
judgment.4 It held that the unidentified individuals’ statements in the taped
phone conversations did not constitute hearsay under state law because they
were not offered to prove the truth of the matter asserted.5 It also held that the
trial court’s admission of the taped phone conversations did not violate Brown’s
federal and state constitutional rights to confront and cross-examine adverse
witnesses.6
       After an unsuccessful attempt at state habeas alleging ineffective
assistance of counsel and insufficiency of the evidence, Brown filed the instant


       1
        Brown v. State, 969 So. 2d 891, 892, 894, 897 (Miss. Ct. App. 2007), rev’d, 969 So. 2d
855 (Miss. 2007) (en banc).
       2
           Id. at 898-99.
       3
           Id. at 899.
       4
           Brown, 969 So. 2d at 857.
       5
           Id. at 861-62.
       6
           Id. at 862-64.

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§ 2254 petition arguing again that the evidence was insufficient to support his
conviction and also that the trial court’s admission of the taped phone
conversations violated his Sixth Amendment rights of confrontation and cross-
examination. The district court rejected Brown’s claim that the evidence was
insufficient to support his conviction,7 but it found Brown’s Confrontation Clause
argument persuasive.8 The district court determined that the taped phone
conversations were “clearly hearsay” and “clearly testimonial” because they were
presented to prove the “gist” of the conversations and to corroborate various
witnesses’ testimony, and also because Brown was denied an opportunity to
confront and cross-examine the unidentified individuals on the recordings.9 As
a result, the district court granted Brown’s § 2254 petition in part, vacated the
state trial court’s judgment, and ordered that Brown be released from custody,
including probation, unless the State were to initiate a new trial within 120
days.10 The State filed a timely notice of appeal, and the district court granted
a stay of its judgment pending appeal.11
                                              II.
       In an appeal from a district court’s grant of habeas relief, we review issues
of law de novo and factual findings for clear error.12 Mixed questions of law and


       7
         Brown v. Epps, 758 F. Supp. 2d 347, 354-56 (N.D. Miss. 2010). Brown does not appeal
the sufficiency ruling.
       8
           Id. at 356-61.
       9
           Id. at 357-58.
       10
         Id. at 361-62. Brown was initially sentenced to 15 years in prison, with 6 years
suspended pending his future good behavior. He was released on parole on February 12, 2009,
and remains under the supervision of the Mississippi Department of Corrections until his
sentence expires on October 18, 2015.
       11
         A certificate of appealability is not required because a representative of Mississippi
is appealing the district court’s grant of habeas relief. See FED. R. APP. P. 22(b)(3); DiLosa v.
Cain, 279 F.3d 259, 262 n.1 (5th Cir. 2002).
       12
            Fratta v. Quarterman, 536 F.3d 485, 499 (5th Cir. 2008).

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fact, such as whether a defendant’s Confrontation Clause rights were violated,
are reviewed de novo “by independently applying the law to the facts found by
the district court, as long as the district court’s factual findings are not clearly
erroneous.”13
       A federal court may not grant a petitioner habeas relief on a claim that
was adjudicated on the merits by the state court unless the state court decision
was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” or (2) “was based
on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.”14 The state court’s factual findings are presumed
correct unless the petitioner rebuts those findings with clear and convincing
evidence.15
       “‘A state court’s decision is contrary to clearly established federal law if it
applies a rule that contradicts the governing law set forth in Supreme Court
cases,’ or if the state court ‘decide[s] a case differently than the United States
Supreme Court previously decided a case on a set of nearly identical facts.’”16 A
state court’s decision is an unreasonable application of clearly established
federal law “if it ‘correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.’”17 An unreasonable
application of clearly established federal law “is different from a merely incorrect
or erroneous application; the state court decision must be an objectively


       13
            Id.
       14
            28 U.S.C. § 2254(d). Section 2254(d)(2) is not implicated here.
       15
            Id. § 2254(e)(1).
       16
         Jones v. Cain, 600 F.3d 527, 535 (5th Cir. 2010) (alteration in original) (citations
omitted) (quoting Fields v. Thaler, 588 F.3d 270, 273 (5th Cir. 2009), and Taylor v. Cain, 545
F.3d 327, 334 (5th Cir. 2008)).
       17
         Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (quoting Penry v. Johnson, 532
U.S. 782, 792 (2001)).

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unreasonable application.”18 To obtain relief under § 2254, the petitioner “must
show that the state court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.”19
                                               III.
       The only question before us is whether the unidentified individuals’
statements in the recorded conversations setting up the drug deal are
testimonial under the Supreme Court’s Confrontation Clause jurisprudence.20
The Confrontation Clause of the Sixth Amendment states that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the




       18
            Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009).
       19
            Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
       20
          The scope of our review bears some explanation, as there are several issues in this
case we need not address. First, we do not decide whether the statements were hearsay. Only
testimonial hearsay implicates the Confrontation Clause. Davis v. Washington, 547 U.S. 813,
823-24 (2006). We conclude that the statements here were nontestimonial, so there is no need
for us to decide whether they were hearsay.
        Second, we need not decide whether a confidential informant’s actions are essentially
actions of the police for purposes of Confrontation Clause analysis. Cf. Davis, 547 U.S. at 823
n.2 (assuming without deciding that the actions of 911 operators are “acts of the police”). The
answer to that question does not affect our conclusion that the statements here were
nontestimonial.
        Third, Brown does not argue that admitting the conversations was so fundamentally
unfair that it violated his constitutional due process rights, and so we do not address that
question. See Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993) (“A state court’s
evidentiary ruling presents a cognizable habeas claim only if it runs afoul of a specific
constitutional right or renders the trial fundamentally unfair.”); cf. Montana v. Egelhoff, 518
U.S. 37, 53 (1996) (plurality opinion) (“[E]rroneous evidentiary rulings can, in combination,
rise to the level of a due process violation.”); Duton v. Evans, 400 U.S. 74, 96-97 (1970)
(Harlan, J., concurring in result) (“[T]he Fifth and Fourteenth Amendments’ commands that
federal and state trials, respectively, must be conducted in accordance with due process of law”
are the “standard[s]” by which to “test federal and state rules of evidence.”).
        Finally, see infra note 37 explaining why our focus is on the unidentified individuals’
statements rather than Echols’s.

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witnesses against him.”21 In Crawford v. Washington,22 the Supreme Court held
that this right is violated when the prosecution introduces “testimonial
statements of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant had a prior opportunity for cross-examination.”23
Because Crawford was decided prior to Brown’s 2005 trial, its rule applies.24
       Only testimonial statements “cause the declarant to be a ‘witness’ within
the meaning of the Confrontation Clause.”25                  “[A] statement that is not
testimonial cannot violate the Confrontation Clause.”26 The Crawford Court
described a testimonial statement as “‘[a] solemn declaration or affirmation
made for the purpose of establishing or proving some fact,’”27 a description which
includes “‘statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for
use at a later trial.’”28         The Court declined “to spell out a comprehensive
definition of ‘testimonial’” but noted that “at a minimum” it includes “prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and


       21
            U.S. CONST. amend. VI.
       22
            541 U.S. 36 (2004).
       23
            Id. at 53-54.
       24
        Cf. Fratta, 536 F.3d at 490 (citing Whorton v. Bockting, 549 U.S. 406 (2007)) (holding
that Crawford does not apply retroactively to cases whose direct appeal became final before
Crawford was decided).
       25
            Davis, 547 U.S. at 821.
       26
            United States v. Vasquez, 234 F. App’x 310, 313 (5th Cir. 2007) (unpublished) (per
curiam); accord Davis, 547 U.S. at 823-24 (answering the question “whether the Confrontation
Clause applies only to testimonial hearsay” in the affirmative because “[a] limitation so clearly
reflected in the text of the constitutional provision must fairly be said to mark out not merely
its ‘core,’ but its perimeter”).
       27
        541 U.S. at 51 (alteration in original) (quoting 2 NOAH WEBSTER, AN AMERICAN
DICTIONARY OF THE ENGLISH LANGUAGE (1828)).
       28
         Id. at 52 (quoting Brief for National Ass’n of Criminal Defense Lawyers et al. as
Amici Curiae at 3, Crawford, 541 U.S. 36 (No. 02-9410)).

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. . . police interrogations.”29 The Court subsequently clarified that a statement
is not testimonial if it is procured for the primary purpose of allowing police to
assist in an ongoing emergency or if it is procured under other circumstances
where the primary purpose is not to create an out-of-court substitute for trial
testimony.30 In determining whether such circumstances exist, courts consider
whether the individual “was speaking about events as they were actually
happening, rather than ‘describ[ing] past events’”; whether the statements
enabled police to resolve an ongoing emergency; and whether the statements
were made in a formal setting.31 The Court has emphasized that “[a]n objective
analysis of the circumstances of an encounter and the statements and actions of
the parties to it provides the most accurate assessment of the ‘primary purpose
of the interrogation.’”32
       No controlling authority specifies whether an unidentified declarant’s
statements to an undercover officer or confidential informant prior to an arrest
are testimonial, but persuasive authorities all point in the same direction. In
Davis, the Supreme Court observed in dicta that statements made unwittingly
to a government informant were “clearly nontestimonial.”33 In an unpublished
decision, United States v. Vasquez, this Court relied on the Supreme Court’s
observation in Davis to conclude that an unindicted coconspirator’s statements
made unwittingly to an undercover officer were not testimonial because there
was nothing in the record to suggest that the coconspirator was aware that his


       29
            Id. at 68.
       30
            See Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011) (citing Davis, 547 U.S. at 822).
       31
        Davis, 547 U.S. at 827 (alteration in original) (quoting Lilly v. Virginia, 527 U.S. 116,
137 (1999) (plurality opinion)); see id. at 826-28.
       32
         Bryant, 131 S. Ct. at 1156; see also Williams v. Illinois, No. 10-8505, slip op. at 31
(U.S. June 18, 2012) (plurality opinion) (discussing the objective “primary purpose” test).
       33
        547 U.S. at 825 (citing Bourjaily v. United States, 483 U.S. 171, 181-84 (1987)).
Crawford also cites Bourjaily with some approval. 541 U.S. at 58.

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conversations were being recorded.34 Likewise, relying on Crawford, Davis, and
Vasquez, several district courts in this Circuit have held that statements
unknowingly made to an undercover officer, confidential informant, or
cooperating witness are not testimonial in nature because the statements “are
not made under circumstances which would lead an objective witness to
reasonably believe that the statements would be available for later use at
trial.”35 Many other Circuits have come to the same conclusion, and none
disagree.36 In sum, courts that have addressed similar questions would probably
agree that the phone conversations in this case were nontestimonial.37




       34
            234 F. App’x at 314.
       35
          United States v. Brown, No. 10-100-BAJ-SCR, 2011 WL 576901, at *5 (M.D. La. Feb.
9, 2011); see also United States v. Gilmore, No. 10-00200-02, 2012 WL 1577242, at *1 (W.D.
La. May 3, 2012); United States v. Ngari, No. 10-60-JJB, 2011 WL 5196538, at *7 (M.D. La.
Oct. 31, 2011); United States v. Stevens, 778 F. Supp. 2d 683, 691 (W.D. La. 2011); Laurent v.
Tanner, No. 10-1175, 2010 WL 5141871, at *19-20 (E.D. La. Nov. 4, 2010) (magistrate judge’s
report and recommendation), approved and adopted, 2010 WL 5151613 (E.D. La. Dec. 8, 2010).
       36
         See United States v. Dale, 614 F.3d 942, 956 (8th Cir. 2010); United States v. Smalls,
605 F.3d 765, 778 (10th Cir. 2010); United States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009);
United States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008); United States v. Udeozor, 515 F.3d
260, 269-70 (4th Cir. 2008); United States v. Underwood, 446 F.3d 1340, 1347-48 (11th Cir.
2006); United States v. Hendricks, 395 F.3d 173, 182-84 (3d Cir. 2005); United States v. Saget,
377 F.3d 223, 229-30 (2d Cir. 2004).
       37
          In determining whether statements in a recorded conversation involving a
confidential informant are testimonial, some courts have drawn a distinction between the
informant’s statements and the unwitting target’s statements. Compare, e.g., United States
v. Gaytan, 649 F.3d 573, 579 (7th Cir. 2011) (finding an informant’s recorded statements
setting up a drug bust to be testimonial), with United States v. Tolliver, 454 F.3d 660, 665 (7th
Cir. 2006) (finding the taped statements of a sting operation’s target to be nontestimonial).
See generally Hendricks, 395 F.3d at 182 & n.9 (finding “some appeal” in treating a
confidential informant’s statements as testimonial). In this case, Brown’s focus is on the
unidentified individuals rather than Echols, as Echols appeared as a witness at trial.
Accordingly, we need not address the distinction. We note, however, that even if Echols had
not appeared at trial, his statements might have been admissible to put the unidentified
individuals’ statements into context and to make them intelligible to the jury. See Gaytan, 649
F.3d at 579-80; United States v. Moore, 365 F. App’x 800, 802 (9th Cir. 2010) (unpublished
memorandum opinion); Tolliver, 454 F.3d at 666; Hendricks, 395 F.3d at 184.

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       That is no coincidence: the convergence results from the straightforward
application of Crawford and its progeny. Even if the Supreme Court has not
comprehensively demarcated “testimonial statements,” every indicator that the
Court has ascribed to them do not apply to the statements at issue here. The
conversations did not consist of solemn declarations made for the purpose of
establishing some fact.38 Rather, the exchange was casual, often profane, and
served the purpose of selling cocaine. Nor were the unidentified individuals’
statements made under circumstances that would lead an objective witness
reasonably to believe that they would be available for use at a later trial.39 To
the contrary, the statements were furthering a criminal enterprise; a future trial
was the last thing the declarants were anticipating. Moreover, they were
unaware that their conversations were being preserved, so they could not have
predicted that their statements might subsequently become “available” at trial.40
The unidentified individuals’ statements were obviously not “prior testimony at
a preliminary hearing, before a grand jury, or at a former trial.”41 They also
were not part of a formal interrogation about past events—the conversations
were informal cell-phone exchanges about future plans—and their primary
purpose was not to create an out-of-court substitute for trial testimony.42
Applying to this case an image from Justice Scalia’s majority opinion in Davis,
“[n]o ‘witness’ goes into court to proclaim” that he will sell you crack cocaine in




       38
            See Crawford, 541 U.S. at 51.
       39
            See id. at 52.
       40
           See Watson, 525 F.3d at 589; Tolliver, 454 F.3d at 665; Underwood, 446 F.3d at 1347
(“Had [the defendant] known that [the confidential informant] was a confidential informant,
it is clear that he never would have spoken to her in the first place.”).
       41
            Crawford, 541 U.S. at 68.
       42
            See Davis, 547 U.S. at 822, 826-27; see also Bryant, 131 S. Ct. at 1155.

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a Wal-Mart parking lot.43 An “objective analysis” would conclude that the
“primary purpose” of the unidentified individuals’ statements was to arrange the
drug deal.44 Their purpose was “not to create a record for trial and thus is not
within the scope of the [Confrontation] Clause.”45            We conclude that the
statements were nontestimonial.
      Because we so conclude, it is apparent that the Mississippi Supreme
Court’s Sixth Amendment ruling was not “contrary to” or “an unreasonable
application of clearly established Federal law, as determined by the Supreme
Court.”46 Brown has established no basis for granting federal habeas relief.
                                            IV.
      The judgment of the district court is REVERSED.




      43
           Davis, 547 U.S. at 828.
      44
           Bryant, 131 S. Ct. at 1156-57.
      45
           Id. at 1155.
      46
           28 U.S.C. 2254(d)(1).

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