On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Criminal No. 02-cr-00769 (Honorable Eduardo C. Robreno).
The opinion of the court was delivered by: Scirica, Chief Judge.
Before: SCIRICA, Chief Judge, McKEE and CHERTOFF*fn1, Circuit Judges
Thomas Hinton appeals from his conviction for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Hinton contends the District Court erroneously permitted the Government to offer as evidence outof-court statements made by a witness he never had an opportunity to cross-examine, depriving him of his Sixth Amendment right to confrontation.
This case requires us to determine whether the challenged statements were "testimonial," as that term is used in Crawford v. Washington, 541 U.S. 36 (2004), a decision handed down after trial but during the pendency of this appeal. We hold that certain statements were improperly admitted, but that any error was harmless. We will affirm the conviction and vacate his sentence.
Around 4 a.m. on the morning of August 5, 2001, a 911 operator received a call from a man later identified as Thomas Mack. Mack claimed that an unknown person brandishing a gun confronted him on the 600 block of North Brooklyn Street in West Philadelphia and warned him not to return to the area.
Police Officers Brian Dillard and Albert Cain were dispatched to the called-in location. Mack joined the officers in their squad car and they drove around the area looking for the assailant. On the block where Mack had been threatened, they spotted Hinton and an unknown companion. Mack pointed to the two men and stated "There you go."
The police approached in their vehicle, and the two men immediately fled. Officer Cain left his car in pursuit of Hinton. While giving chase, he observed Hinton drop an object that he later testified appeared to be a gun. Officer Cain eventually caught up with Hinton and arrested him. A subsequent search revealed that Hinton was carrying thirty-seven packets of crack cocaine along with $120, much of it in five-dollar bills. Officers Cain and Dillard searched the area Hinton had fled and found a loaded handgun near where Cain observed him dropping an object. A second handgun was found near the area where Hinton's companion, who was never apprehended or identified, had fled.
Hinton was indicted for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug trafficking crime in violation of 21 U.S.C. § 924(c), and possession of a firearm by a convicted felon in violation of 21 U.S.C. § 922(g)(1). Mack did not testify at Hinton's trial. The government never asserted he was unavailable to testify. But the government sought to introduce Mack's statements through the testimony of Officers Dillard and Cain and the 911 recording. Hinton objected, citing the Confrontation Clause of the Sixth Amendment to the Constitution. See U.S. Const., amend. VI, cl. 3. The District Court ruled that Mack's statements were admissible under the excited utterance exception to the hearsay rule, see Fed. R. Evid. 803(2), but did not specifically address Hinton's Confrontation Clause argument.
The jury convicted Hinton of possession with intent to distribute cocaine base but acquitted him of both firearms charges. He was sentenced to 216 months in prison. Hinton filed a timely appeal. We ...