                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________            U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                  November 7, 2006
                                No. 03-12483                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                      D. C. Docket No. 00-08161-CR-KLR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

GEORGE BILLINGSLEA,

                                                              Defendant-Appellant.
                           _______________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (November 7, 2006)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     This case is before us again for consideration in light of Davis v.
Washington, 547 U.S. __, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). We

previously affirmed George Billingslea’s conviction for bank robbery in violation

of 18 U.S.C. § 2113 (a), (d). See United States v. Billingslea, No. 03-12483 (11th

Cir. May 5, 2004); see also, United States v. Billingslea, No. 03-12483 (11th Cir.

Sept. 19, 2005) (on remand from the Supreme Court, affirming Billingslea’s

sentence in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.

Ed. 2d 621 (2005)). The Supreme Court has now vacated our most recent decision

and remanded the case for consideration in light of its decision in Davis.

      The Confrontation Clause of the Sixth Amendment ensures the right of a

defendant to confront the witnesses against him. It 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.”

Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d

177 (2004). Only testimonial statements by a witness are subject to the

Confrontation Clause. Davis, 547 U.S. at __, 126 S. Ct. at 2273.

      In Davis, the Supreme Court determined when “‘statements taken by police

officers in the course of interrogations’” qualified as “‘testimonial’ statements.”

Id. (quoting Crawford, 541 U.S. at 52, 124 S. Ct. at 1364). The Court ruled that

“[s]tatements are nontestimonial when made in the course of police interrogation



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under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency.” Id.

(emphasis added). For example, the Court ruled that a witness’s statements to a

911 operator (who was acting as a law enforcement agent) describing an ongoing

domestic disturbance and identifying her assailant were nontestimonial. Id. at __,

126 S. Ct. at 2276-77. The operator’s interrogation of the witness was not “solely

directed at establishing the facts of a past crime, in order to identify (or provide

evidence to convict) the perpetrator.” Id. at __, 126 S. Ct. at 2276. Rather, the

interrogation was made “to describe current circumstances requiring police

assistance.” Id. The witness did not appear at trial, but a recording of the 911 call

was admitted into evidence over the defendant’s objection. Id. at __, 126 S. Ct. at

2271. The Court affirmed the defendant’s conviction, ruling that, because the

witness’s statements were nontestimonial, the Confrontation Clause did not bar

their admission. Id. at __, 126 S. Ct. at 2277-78.

      By contrast, statements “are testimonial when the circumstances objectively

indicate that there is no such ongoing emergency, and that the primary purpose of

the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” Id. at __, 126 S. Ct. at 2273 (emphasis added). For

example, a witness’s statements to a police officer describing a domestic



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disturbance that already had ended were testimonial, and therefore subject to the

Confrontation Clause. Id. at __, 126 S. Ct. at 2278. The police officer’s

“interrogation was part of an investigation into possibly criminal past conduct . . .

.” Id. “There was no emergency in progress . . . .” Id. Again, the witness did not

appear at trial, but her statements were admitted over the defendant’s objections

through the testimony of the interrogating police officer. Id. at __, 126 S. Ct. at

2272. The Court reversed the defendant’s conviction, ruling that admission of the

testimonial statements violated his Confrontation Clause rights under those

circumstances. Id. at __, 126 S. Ct. at 2278-79.

      The instant case arose out of a bank robbery at the federally-insured

Washington Mutual Bank in Boynton Beach, Florida, on November 27, 2001.

Billingslea and three others robbed the bank and then fled by car, and later on foot.

Billingslea was alleged to have passed by a fruit stand while fleeing the scene of

the robbery. Later, during police investigation, the fruit stand owner, Robert

Desjardins, identified Billingslea as the man who passed by his stand. A detective

prepared a six-person photo spread to show Desjardins, who immediately pointed

to Billingslea’s photograph, and said, “that’s him.” Desjardins died in a car

accident before Billingslea’s trial, but his photo identification of Billingslea was

admitted into evidence to obtain the conviction.



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      On appeal, Billingslea argued that admission of the deceased witness’s photo

identification of him was plain error because the witness was not available to

testify at trial and because there was insufficient indicia of reliability to support

admission of the testimony. In light of Davis, we now agree. The circumstances

objectively indicate that Desjardin’s photo identification of Billingslea was

testimonial. The detective’s interrogation of Desjardin, including the display of the

photographs to try to identify Billingslea, was part of an official police

investigation into past criminal conduct. See id. There was no ongoing

emergency, but instead the detective prepared the photo spread to try to identify the

defendant as one of the robbers fleeing the scene of the crime. See id. Indeed, the

“primary purpose of the interrogation [was] to establish or prove past events

potentially relevant to later criminal prosecution.” See id. at __, 126 S. Ct. at 2274.

The Confrontation Clause barred admission of the testimonial identification of

Billingslea because, even though the witness “was unavailable to testify” at trial,

Billingslea did not have “a prior opportunity for cross-examination.” See

Crawford, 541 U.S. at 53-54, 124 S. Ct. at 1365. We therefore vacate our prior

opinion and remand the case to the district court for a new trial.

      Based on our decision to remand this case for a new trial, we need not rule

on another issue raised by Billingslea–whether the district court erred in allowing a



                                            5
pregnant witness who lived in South Carolina to testify at trial via satellite

transmission. Billingslea argued that the testimony violated his Sixth Amendment

right to confront the witnesses against him and that the court should have

compelled the witness to travel, delayed the trial until her pregnancy came to term,

or compelled the government to proceed without her testimony. We note that if

this issue is raised again at a new trial, the district court should consider the

admission of such testimony in light of our en banc decision in United States v.

Yates, 438 F.3d 1307 (11th Cir. 2006) (en banc). In Yates, we ruled that a district

court’s decision to permit live testimony, via two-way video transmission, of a

witness in a foreign country violated the defendants’ Confrontation Clause rights.

438 F.3d at 1309. We reversed for a new trial, reasoning that “denial of [the]

[d]efendants’ Sixth Amendment rights to face-to-face confrontation was not

necessary to further an important public policy . . . .” Id. at 1318. The district

court should determine whether, based on our ruling in Yates, the pregnant

witness’s testimony by satellite would violate the Confrontation Clause.

      REVERSED and REMANDED.




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