[DO NOT PUBLISH]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
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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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