IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 22, 2007
No. 07-60011 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENDRICK FITZGERALD PROCTOR,
also known as Kendrick Shavers,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:
Kendrick Fitzgerald Proctor (“Proctor”) was convicted by a jury of theft of
a firearm, possession of a stolen firearm, and felon in possession of a firearm.
He appeals these convictions, arguing that the indictment should have been
dismissed based on unnecessary delay and that the district court’s admission of
a 911 tape-recording violated his right of confrontation under Crawford v.
Washington, 541 U.S. 36 (2004). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 4, 2001, Proctor’s brother, Rodriguez “Yogi” Proctor (“Yogi”)
and Bobby Fairley (“Fairley”) went to a nightclub together in Biloxi, Mississippi.
Yogi had driven and Fairley left his gun, a .38 special revolver, on the dashboard
No. 07-60011
of Yogi’s car. Upon leaving the nightclub, Yogi introduced Fairley to Proctor,
and all three walked to Yogi’s car. Yogi then opened the passenger door for
Fairley, at which point Proctor grabbed Fairley’s gun which was in plain view
on the console of the car. Fairley protested that the gun belonged to him, but
Proctor began “cussing” and fired the gun twice into the ground near Fairley’s
foot. Proctor took off running with the gun. Yogi called 911, and reported that
his brother had taken a gun, fired it twice into the ground, and that he believed
Proctor had run back into the nightclub. The police arrived on the scene and
canvassed the area for Proctor. An officer spotted Proctor, and pursued Proctor
on foot. Proctor fired at the officer, and the officer fired back, striking Proctor.
On May 11, 2006, Proctor was charged in a three-count indictment with
various firearms-related offenses under 18 U.S.C. § § 922 & 924. On August 10,
2006, Proctor moved to dismiss the indictment under both Federal Rule of
Criminal Procedure 48(b) and the Due Process Clause of the Fifth Amendment,
arguing that the government waited an unreasonable amount of time before
bringing the prosecution. The district court denied the motion in an unwritten
order.
A one-day trial was held on August 23, 2006. During the trial, the
Government offered into evidence a tape-recording of the 911 call made by Yogi.
The tape contained the entire exchange between Yogi and the 911 operator, set
out here:
OPERATOR: BILOXI POLICE AND FIRE.
R. PROCTOR: CAN YOU HAVE A POLICE ON NINE AND MAIN I
MEAN ON MAIN STREET IN FRONT OF INEZ
PLEASE?
OPERATOR: WHAT’S GOING ON?
R. PROCTOR: WHAT’S GOING ON IS MY LITTLE BROTHER JUST
TOOK A GUN OUT OF MY CAR BELONG TO
SOMEBODY ELSE AND SHOT IT IN THE GROUND
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TWICE AND HE A CONVICTED FELON AND HIS
NAME IS KENDRICK.
OPERATOR: HE SHOT IT IN THE GROUND TWICE?
R. PROCTOR: YES MA’AM. TWICE.
OPERATOR: AND IT’S YOUR BROTHER?
R. PROCTOR: YES MY LITTLE BROTHER.
OPERATOR: WHERE’S HE AT NOW?
R. PROCTOR: I DON’T KNOW I THINK HE’S UPSTAIRS IN THIS
CLUB, BUT Y’ALL KNOW HIM REAL GOOD HIS
NAME IS KENDRICK PROCTOR.
OPERATOR: JIMMY PROCTOR?
R. PROCTOR: KENDRICK PROCTOR.
OPERATOR: KENDRICK PROCTOR?
R. PROCTOR: YES MA’AM, HE’S BEEN IN THE PENITENTIARY
SO HE AIN’T SUPPOSED TO POSSESS NO GUN, IT
WASN’T NONE OF MY GUN . . .
OPERATOR: AND HE’S IN THE CLUB WITH THE GUN NOW?
R. PROCTOR: YES MA’AM HE WAS IN THE CLUB.
OPERATOR: WHAT’S HE WEARING?
R. PROCTOR: UM, HE HAD A CAP, A WHITE SHIRT, AND I THINK
SOME BROWN PANTS, THEY KNOW HIM.
OPERATOR: OKAY, WHY DID HE TAKE THE GUN OUT, DO YOU
KNOW?
R. PROCTOR: HE TOOK THE GUN OUT OF MY CAR.
OPERATOR: WHY?
R. PROCTOR: BECAUSE THAT MY LITTLE BROTHER, YOU
KNOW HE COME TO MY CAR AND HE JUST TOOK
THE GUN AND I SAID MAN, GIVE THAT MAN
THAT GUN BACK AND HE SAY HOW ‘BOUT ME I
THOUGHT YOU AND ME WERE BROTHERS HE
TALKING ABOUT BITCH BROTHERS, AND SHOT IT
IN THE GROUND TWICE.
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No. 07-60011
OPERATOR: OKAY, AND YOU DON’T KNOW WHY, HE WASN’T
GOING AFTER SOMEBODY, WAS HE?
R. PROCTOR: MA’AM, HE JUST, I DON’T KNOW WHAT’S WRONG
WITH HIM, MA’AM, MY MOMMA THINK HE’S ON
COCAINE, SO THAT’S PROBABLY WHAT’S WRONG
WITH HIM, BUT HE A CONVICTED FELON, HE
AIN’T SUPPOSED TO POSSESS NO GUN.
OPERATOR: OKAY, ALRIGHT, WELL THEY’RE ON THE . . .
R. PROCTOR: AND HE SHOT IT IN THE GROUND TWICE AND I
CAN SHOW WHERE HE SHOT IT.
OPERATOR: WHAT’S YOUR NAME?
R. PROCTOR: OKAY MY NAME IS RODRIGUEZ PROCTOR.
OPERATOR: RODRIGUEZ? OKAY, WELL STAY OUTSIDE AND
WAIT FOR THE POLICE, OKAY?
R. PROCTOR: YES MA’AM.
OPERATOR: ALRIGHT.
R. PROCTOR: OKAY.
OPERATOR: THANK YOU. BYE.
Yogi was not called as a witness at trial. Proctor made a timely objection to the
introduction of the tape-recording based on the Confrontation Clause, arguing
that the 911 call was testimonial under Crawford v. Washington, 541 U.S. 36
(2004). The district court overruled the objection. The jury found Proctor guilty
on all counts, and the district court sentenced him to 135 months of
imprisonment.
II. DISCUSSION
Proctor appeals both the denial of his motion to dismiss the indictment1
and the admission of the 911 call as evidence at trial.
1
Proctor concedes that Rule 48(b) applies only to post-arrest delay in bringing a case
to trial; it does not apply to pre-indictment delay if the defendant has not been arrested. See
United States v. Stumpf, 827 F.2d 1027, 1029 (5th Cir. 1987). Thus, on appeal, Proctor bases
his request for relief on only the Due Process Clause of the Fifth Amendment.
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No. 07-60011
A. Motion to Dismiss the Indictment
Proctor’s first point of error is that the Government’s May 2006
indictment for crimes that occurred four years and nine months earlier violates
his Fifth Amendment due process rights and, therefore, the district court should
have granted his motion to dismiss the indictment. The district court’s findings
of fact are reviewed for clear error; its conclusions of law are reviewed de novo.
United States v. Avants, 367 F.3d 433, 441 (5th Cir. 2004). For preindictment
delay to violate due process, the accused must show both that the delay “was
intentionally brought about by the Government for the purpose of gaining some
tactical advantage over the accused in the contemplated prosecution or for some
other bad faith purpose” and that the delay “caused actual, substantial prejudice
to his defense.” United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en
banc).
Proctor argues that the Government’s bad faith “is evident from the fact
that the Government had all the evidence to prosecute” approximately four years
and nine months before filing the indictment. Proctor cannot rely solely on the
passage of time to establish bad faith or improper purpose. See, e.g. Crouch, 84
F.3d at 1510 (the statute of limitations, not the due process clause, provides the
primary protection against pre-indictment delay). Instead, the Due Process
Clause requires dismissal of an indictment filed within the statute of limitations
only if the defendant shows that the Government’s delay in bringing the
indictment was a deliberate device to gain an advantage. Id. at 1510. Proctor
has failed to point to anything in the record that shows the Government delayed
the indictment to gain such a tactical advantage, and we reject his invitation to
infer bad faith simply from the fact of the delay.
In addition, Proctor has not shown that he was actually prejudiced by the
pre-indictment delay. Proctor contends that he was prejudiced because his
brother, Yogi, was no longer available to testify. However, Proctor does not
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No. 07-60011
allege that Yogi’s testimony would have been exculpatory or that it would have
aided the defense. See United States v. Bezborn, 21 F.3d 62, 66 (5th Cir. 1994)
(rejecting defendant’s claim of prejudice from unavailability of a witness because
of defendant’s failure to show that the witness’s testimony would have been
exculpatory). Therefore, Proctor has failed to show he was actually prejudiced,
and we reject his contention that the pre-indictment delay violated his right to
due process under the Fifth Amendment.2
B. Admission of Tape-Recording of 911 Call
Proctor also argues that the use of the tape-recorded 911 call at his trial
was a violation of his Sixth Amendment right to confrontation under Crawford
v. Washington, 541 U.S. 36 (2004). He asserts that the tape-recording contained
inflammatory and highly prejudicial information that should have been excluded
because it was testimonial in nature. Specifically, he contests the admission of
the following statements made by Yogi: (1) Proctor “took the gun out of my car
belong [sic] to someone else;” (2) “y’all know him real good;” (3) “he’s been in the
penitentiary;” and (4) “he’s on cocaine.” Because Proctor objected to the
admission of the 911 tape on confrontation grounds, this court reviews his claim
of error de novo. See, e.g., United States v. Fields, 483 F.3d 313, 326 (5th Cir.
2007).
The Sixth Amendment to the Constitution states that in all “criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. CONST. AMEND. VI. In Crawford v. Washington,
2
Proctor alleges in his brief that the district court’s denial of the motion in an unwritten
order was “particularly erroneous in light of the fact that Mr. Proctor moved, in the alternative,
for discovery on the issue of pre-indictment delay.” This court has rejected the notion that an
assertion of pre-indictment delay automatically triggers the right to discovery and a hearing.
See United States v. Mulderig, 120 F.3d 534, 540 (5th Cir. 1997). We have held that “an in
camera inspection by a district judge is a reasonable procedure and is protective of the
defendant’s rights.” Id. (internal quotations and citations omitted). Proctor presents no
argument to this court regarding the adequacy or inadequacy of any in camera inspection that
may have been conducted.
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No. 07-60011
the Supreme Court held that the right to confrontation bars the “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.” 541 U.S. at 53-54. The Court declined to provide a
comprehensive definition of “testimonial,” but noted that a testimonial
statement “is typically a solemn declaration or affirmation made for the purpose
of establishing or proving some fact” and “includes statements that were made
under circumstances that would lead an objective witness reasonably to believe
that the statement would be available for later use at trial.” Id. at 51-52
(citations omitted).
In Davis v. Washington, 126 S. Ct. 2266, 2276 (2006), the Supreme Court
considered whether an interrogation that occurred during a 911 call produced
testimonial statements. The Court held that “[s]tatements are nontestimonial
when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.” Id. Conversely, 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. The Court noted that a 911 call “is ordinarily not designed primarily to
establish or prove some past fact, but to describe current circumstances
requiring police assistance.” Id. However, the Court cautioned that a
conversation which begins as an interrogation to determine the need for
emergency assistance can “evolve into testimonial statements once that purpose
has been achieved.” Id. at 2277. The Court then examined the 911 call in
question, and held that the trial court’s admission of the 911 recording did not
violate the Confrontation Clause. The Court noted that: (1) the caller was
describing the events as they were happening; (2) the caller was facing an
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No. 07-60011
ongoing emergency; (3) the nature of what was asked and answered was
necessary to resolve the present emergency rather than learn what happened in
the past; and (4) the caller’s answers were frantic. In conclusion, the Court held
that the circumstances of the interrogation on the 911 recording indicate that
the caller was not testifying as a witness, but rather was enabling police
assistance to meet an ongoing emergency. Id.
Viewing the facts of this case in light of Davis, Yogi’s statements to the 911
operator were nontestimonial. Yogi’s call to 911 was made immediately after
Proctor grabbed the gun and fired it twice. During the course of the call, he
recounts what just happened, gives a description of his brother, indicates his
brother’s previous criminal history, and the fact that his brother may be under
the influence of drugs. All of these statements enabled the police to deal
appropriately with the situation that was unfolding. The statements about
Proctor’s possession of a gun indicated Yogi’s understanding that Proctor was
armed and possibly dangerous. The information about Proctor’s criminal history
and possible drug use necessary for the police to respond appropriately to the
emergency, as it allowed the police to determine “whether they would be
encountering a violent felon.” Id. at 2276. Proctor argues that the emergency
had already passed, because he had run away with the weapon at the time of the
911 call and, therefore, the 911 conversation was testimonial. It is hard to
reconcile this argument with the facts. During the 911 call, Yogi reported that
he witnessed his brother, a felon possibly high on cocaine, run off with a loaded
weapon into a nightclub. This was an ongoing emergency–not one that had
passed. Proctor’s retreat into the nightclub provided no assurances that he
would not momentarily return to confront Yogi and Fairley. Further, Yogi could
have reasonably feared that the people inside the nightclub were in danger.
Overall, a reasonable viewing of the 911 call is that Yogi and the 911 operator
were dealing with an ongoing emergency involving a dangerous felon, and that
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No. 07-60011
the 911 operator’s questions were related to the resolution of that emergency.
Because the tape-recording of the 911 call is nontestimonial, it does not
implicate Proctor’s right to confrontation, and its admission was not in error.
See United States v. Thomas, 453 F.3d 838, 844 (7th Cir. 2006) (concluding that
tape-recording of 911 call from an anonymous caller is nontestimonial and,
therefore, does not implicate the Confrontation Clause).
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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