United States v. Powers
500 F.3d 500, 2007 WL 2609241, 2007 U.S. App. LEXIS 21824 (2007)
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Rule of Law:
Out-of-court statements made by a confidential informant to law enforcement for the primary purpose of investigating and prosecuting a crime are testimonial. Their admission at trial through the testimony of a police officer violates the defendant's Sixth Amendment Confrontation Clause right if the informant does not testify, but such a violation is subject to harmless error analysis.
Facts:
- In September 2004, a Source of Information (SOI) notified a narcotics task force that Jethro Rene Powers was trafficking in significant quantities of cocaine.
- At the direction of the police, the SOI called Powers and arranged to purchase two kilograms of cocaine from him in the parking lot of a Circuit City store in Detroit.
- The SOI, along with undercover Officer Keely Cochran, traveled to the location, while Officer Michael Patti performed surveillance from a nearby site.
- Powers and the SOI exchanged several recorded cell phone calls, in which Powers stated he was in possession of one kilogram of cocaine and was driving a white van.
- Powers and the SOI then agreed to move the transaction location to a nearby Home Depot parking lot.
- At the Home Depot, Powers maneuvered his white van alongside the car occupied by the SOI and Officer Cochran.
- Before any transaction occurred, police officers stopped the van, arrested Powers, and discovered approximately one kilogram of powder cocaine in the vehicle.
Procedural Posture:
- Jethro Rene Powers was prosecuted by the United States in the U.S. District Court for the Eastern District of Michigan.
- During the trial, the court admitted testimony from police officers recounting out-of-court statements made by a non-testifying Source of Information (SOI) over defense counsel's Confrontation Clause objections.
- A jury returned a verdict finding Powers guilty of possession with intent to distribute a controlled substance.
- The district court sentenced Powers to sixty-three months' incarceration.
- Powers, as Defendant-Appellant, appealed his conviction to the U.S. Court of Appeals for the Sixth Circuit.
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Issue:
Does the admission of a non-testifying confidential informant's out-of-court statements to police, which identify the defendant, his vehicle, and his alleged criminal history, violate the defendant's Sixth Amendment right to confrontation?
Opinions:
Majority - Algenon L. Marbley
Yes, the admission of the informant's statements violates the defendant's Sixth Amendment right to confrontation. Statements made by a confidential informant to police for the primary purpose of establishing past events relevant to a later criminal prosecution are testimonial. Under Crawford v. Washington, such testimonial statements are inadmissible unless the declarant is available for cross-examination. The court reasoned that the informant's statements—describing Powers's background, identifying his van, and identifying him as the target—were not made during an ongoing emergency, as in Davis v. Washington, but were made to law enforcement for the purpose of investigating and building a case against Powers. Citing its own precedent in United States v. Cromer, the court held that tips from confidential informants that accuse someone of a crime are testimonial in nature. However, the court concluded that this constitutional violation was harmless error. The evidence against Powers, including his own recorded statements, the officers' direct observations, and the discovery of cocaine in his van, was so overwhelming that the admission of the informant's statements did not affect the outcome of the trial.
Analysis:
This decision reinforces the principle from United States v. Cromer that statements from confidential informants to law enforcement are generally considered testimonial under the Crawford v. Washington framework. It clarifies that the 'ongoing emergency' exception articulated in Davis v. Washington is narrow and does not apply to planned law enforcement operations like sting operations where there is no imminent threat of harm. The case is most significant for its application of the harmless error doctrine, demonstrating that even a clear Confrontation Clause violation will not result in a reversal of conviction if the prosecution can show beyond a reasonable doubt that the error did not contribute to the jury's verdict due to other overwhelming evidence of guilt.
