United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the court is the Government's Motion for
Pre-Trial Ruling Regarding the Admission of Certain Intrinsic
and Extrinsic Evidence at Trial (Doc. 28). The
Government seeks to admit, as intrinsic evidence,
investigative background information concerning a cooperating
witness ("CW"). Defendant opposes the Motion (Doc. 34).
The Court held a hearing on this matter. For the reasons that
follow, the Government's request is
undercover police investigation ultimately led to the
issuance of a search warrant for a house located in Baton
Rouge. (Doc. 28-1 at p. 1). During the
search, officers found a number of drugs in a bedroom
allegedly used by Defendant. (Doc. 28-1 at p. 2). Defendant
faces three charges: possession with intent to distribute a
substance containing heroin, possession with intent to
distribute marijuana, and possession with intent to
distribute 500 grams or more of a substance containing
methamphetamine, all in violation of 21 U.S.C. §
841(a)(1). (Doc. 4 at pp. 1-2).
Government seeks to introduce background information
concerning the events leading up to the execution of the
search warrant on Defendant's residence. (Doc. 28-1 at
3). The most consequential of which are statements made by a
CW who will not testify at trial. Specifically, the
Government wishes to elicit testimony that a CW informed
officers that a black male, in his mid-to-late thirties,
known as "Dirt, " and residing at a certain address
in Baton Rouge, was selling drugs from his residence. (Doc.
28-1 at p. 1). It seeks to offer statements about the
investigative process that officers used to identify two
individuals at the address who fit the CW's description.
(Doc. 28-1 at p. 1). It further seeks to proffer testimony
concerning the showing of photographs to the CW and the CW
identifying Defendant from those photographs. (Doc. 28-1 at
p. 1). Finally, it requests to introduce
testimony that a CW performed a controlled drug purchase at
the house, which resulted in a search warrant. (Doc. 28-1 at
pp. 1-2). The Government argues that such evidence is mere
background information necessaiy to complete the story. See,
e.g., United States v. Coleman, 78 F.3d 154, 156
(5th Cir. 1996).
insists that much of the evidence would be hearsay. (Doc. 34
at pp. 3-4). Moreover, Defendant argues that information
provided to the Government by the CW would be testimonial in
nature and therefore violate the Confrontation Clause of the
Sixth Amendment. (Doc. 34 at p. 4).
the Government is correct that it may introduce information
that explains why the Government began an investigation,
see United States v. Parker, 133 F.3d 322, 328 (5th
Cir. 1988), the Government does not have unfettered
discretion to introduce otherwise impermissible testimony,
see United States v. Sudeen, 434 F.3d 384, 389 (5th
Cir. 2005). The Government relies heavily on United
States v. Carrillo, 20 F.3d 617 (5th Cir. 1994), for the
proposition that the Court should allow in information from
the CW to come in as background information and not exclude
it on hearsay grounds. In Carrillo, an anonymous
complaint indicated that an individual named "Tito"
was selling drugs out of a house. Id. at 619. As a
result, a detective-who testified at trial-performed an
undercover drug buy at the location. Id. During the
drug buy, the detective asked two men for "Tito"
and the men directed the detective to Carrillo, whom he later
identified by looking at a police "mug book."
Id. The Fifth Circuit ruled that the anonymous call
and the two men pointing to Carrillo were not introduced for
the truth of the matter asserted. Id. at 319-320.
Rather, the statements were presented to explain why the
detective went to that location and why he asked for a man
named "Tito." Id. Importantly, it does not
appear that the Government ever attempted to prove that
Carrillo went by the nickname "Tito" in order to
prove that he was in fact the person dealing drugs.
the breath of the information from a non-testifying witness
and the purpose for which it is being introduced
distinguishes Carrillo. At a hearing, the Government
indicated that it intends to link the nickname
"Dirt" to the Defendant at trial. Considering that
the Government seeks to prove that the man named
"Dirt" possessed drugs, this testimony is more than
mere background information about the investigation. It is
being introduced for the truth of the matter asserted, that
the man nicknamed "Dirt" sold drugs. See
Fed. R. Evid. 801(c), 802; United States v.
Hernandez, 750 F.2d 1256, 1257 (5th Cir. 1985).
Similarly, the Government would have an identification of the
Defendant through a line-up, and an identification of the
Defendant during a controlled purchase come into evidence to
demonstrate that the drugs found belonged to
testimony by an officer about the conversations he had with
the CW would run afoul of the Confrontation Clause. See
United States u. Duron Caldera, 737 F.3d 988, 992
(5th Cir. 2013) (providing that the Confrontation clause bars
"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" (quoting Crawford, 541 U.S.
at 53-54)). "Police officers cannot, through their trial
testimony, refer to the substance of statements given to them
by nontestifying witnesses in the course of their
investigation, when those statements inculpate the
defendant." Taylor v. Cain, 545 F.3d 327, 335
(5th Cir. 2008). The CW's statements to law enforcement,
identifying Defendant through his past conduct are
testimonial in nature and therefore implicate the
Confrontation Clause. See Brown v. Epps, 686 F.3d
281, 286-87 (5th Cir. 2012)
IT IS ORDERED that the Government's
Motion (Doc. 28) is DENIED.