United States v. Jumar D. Sims

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13963
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUMAR D. SIMS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:18-cr-00353-LSC-JEO-1
____________________
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2 Opinion of the Court 19-13963
Before WILLIAM PRYOR, Chief Judge, JORDAN, and GRANT, Circuit
Judges.
PER CURIAM:
Jumar Sims appeals his convictions for two counts of distrib-
uting a substance containing a detectable amount of heroin, 21
U.S.C. § 841(a)(1), (b)(1)(C), and for one count of possessing with
intent to distribute more than 50 grams of methamphetamine. id.§ 841(a)(1), (b)(1)(A), (b)(1)(C). Sims challenges the admission of
conversations he had with a confidential source as violating his
right to confront witnesses under the Sixth Amendment. U.S.
Const. amend. VI. We affirm.
Agents of the Alabama Law Enforcement Agency employed
Cedric Lipscomb, a confidential source, to make three controlled
drug purchases from Sims. The agents initiated telephone calls for
Lipscomb to Sims, which were recorded. The agents also provided
Lipscomb recording devices that he used during his transactions
with Sims. The agents also surveilled and searched Lipscomb be-
fore and after the drug transactions.
On January 10, 2018, Lipscomb called Sims, who responded
“yes” when asked if he could sell Lipscomb an “onion ring or some-
thing” after he dropped off his nephew at school the next morning.
The next day, Lipscomb activated a video camera in his vehicle,
which recorded him making a telephone call to Sims, driving to
meet Sims, and counting cash before Sims arrived. Lipscomb
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19-13963 Opinion of the Court 3
covered the camera when Sims entered the car, but the speaker on
the camera recorded their discussion about testing drugs. Lip-
scomb uncovered the camera to show him removing the knot on
a plastic bag containing a white substance while the sound of
money being counted could be heard in the background. After
Sims left, the video camera recorded Lipscomb calling an officer to
complain about police surveillance during the transaction and turn-
ing over the camera and drugs to an officer. Forensic testing con-
firmed that Sims sold Lipscomb 26.7 grams of heroin.
On February 6, 2018, Lipscomb called Sims and stated that
he would get some money and “come that way tomorrow,” to
which Sims replied, “Alright.” Officers recorded two telephone
calls that Lipscomb made to Sims to select a site to meet and then
the officers affixed a recording device to Lipscomb’s clothing. The
camera on the device malfunctioned, but the speaker on the cam-
era recorded two telephone calls in which Sims changed the site for
their drug transaction, a short, unintelligible conversation between
the two men inside Lipscomb’s car, and Lipscomb’s conversation
with officers as he turned over the drugs that he bought from Sims.
Testing confirmed that Sims sold Lipscomb 27.9 grams of heroin.
On February 22, 2018, Lipscomb recorded a telephone call
in which he stated he was driving to a Home Depot store where he
had arranged to meet Sims, and Sims responded, “Alright.” After
Sims’s arrival in the parking lot of the store, officers placed him un-
der arrest and seized about one kilogram of methamphetamine
from his vehicle. Lipscomb passed away at a later date.
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4 Opinion of the Court 19-13963
After indictment, Sims moved to suppress the video and au-
dio recordings on the ground they contained testimonial hearsay,
the admission of which would violate his rights under the Confron-
tation Clause. The government responded that the recordings did
not implicate the Clause because Lipscomb’s statements were non-
hearsay and Sims’s statements were nontestimonial. The district
court adopted a magistrate judge’s recommendation to deny Sims’s
motion for a “blanket exclusion” of the recordings and gave him
leave to “mak[e] specific evidentiary objections at trial concerning
individual statements in the recordings.”
During trial, the district court granted Sims’s request for a
limiting instruction on the contents of the recordings. The district
court told the jury that it would hear “a couple of different record-
ings” containing “the voice of . . . a confidential source” and a sec-
ond voice who “the government[] . . . contend[s] . . . is that of the
defendant.” The district court instructed the jury that the state-
ments of “the confidential source is . . . not in and of itself being
offered for the truth of what the confidential source said” and in-
stead was “offered to set up or explain . . . the answer that other
individual is giving on the recording.” The district court also in-
structed the jury that, “[i]f you believe that the other individual is
the defendant . . ., then you are free to . . . take [his statements] as
being offered for the truth of the matter asserted.” Sims acknowl-
edged that the instruction was “acceptable.”
Sims argues that the admission of the recordings violated his
rights under the Confrontation Clause, which is an issue we review
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19-13963 Opinion of the Court 5
de novo. See United States v. Underwood, 446 F.3d 1340, 1345
(11th Cir. 2006). He also argues that Lipscomb’s statements consti-
tute inadmissible hearsay, which is an evidentiary issue we review
for abuse of discretion. Id. We address these arguments in reverse.
The district court did not abuse its discretion by classifying
Lipscomb’s statements as non-hearsay. Hearsay is an out-of-court
statement made by a declarant that is offered to prove the truth of
the matter asserted in the statement. Fed. R. Evid. 801(c). Lip-
scomb’s statements were offered, not for their truth, but to give
context to Sims’s one-word responses. As the district court ex-
plained to the jury, Lipscomb’s statements provided “the question
. . . to understand the answer” from Sims.
Sims argues that the admission of the recordings violated his
right under the Sixth Amendment as an “accused . . . to be con-
fronted with the witnesses against him.” U.S. Const. amend. VI.
The Confrontation Clause prohibits the introduction of out-of-
court testimonial statements unless the declarant is unavailable to
testify and the defendant had a prior opportunity to cross-examine
the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004).
“Testimony . . . is typically a solemn declaration or affirmation
made for the purpose of establishing or proving some fact.” Id. at
51 (internal quotation marks omitted). A declarant “bears testi-
mony” when he makes a statement “under circumstances which
would lead [him] to believe that the statement would be available
for use at a later trial.” Underwood, 446 F.3d at 1347.
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6 Opinion of the Court 19-13963
The district court did not err by admitting the recorded con-
versations between Sims and Lipscomb. Because Lipscomb’s state-
ments were offered to make Sims’s responses understandable, the
statements were admissible as serving a “purpose other than estab-
lishing the truth of the matter asserted,” Crawford, 541 U.S. at 59
n.9. See United States v. Price, 792 F.2d 994, 997 (11th Cir. 1986);
United States v. Augustin, 661 F.3d 1105, 1128 (11th Cir. 2011). And
the statements Sims “made unwittingly” to Lipscomb as a govern-
ment informant, see Crawford, 541 U.S. at 58 (referencing Bour-
jaily v. United States, 483 U.S. 171, 181–84 (1987)), were “clearly
nontestimonial,” Davis v. Washington, 547 U.S. 813, 825 (2006).
Sims spoke freely without a reasonable belief that “his statement[s]
would be available for use at a later trial.” See Underwood, 446 F.3d
at 1347. Admission of the recordings did not violate Sims’s rights
under the Confrontation Clause.
Sims also challenges the admission of the recordings on two
fact-specific grounds, both of which fail. First, Sims argues that the
district court “simply accept[ed] the Government’s assurances that
[the] out-of-court statements [were] being offered merely to show
course of investigation, background, or context” for its actions, but
the government offered the recordings to assist the jury to under-
stand Sims’s one-word responses. The district court also instructed
the jury to consider Lipscomb’s statements “to set up or explain . . .
[Sims’s] answer,” and we “presume that the jury followed those in-
structions,” United States v. Roy, 855 F.3d 1133, 1187 (11th Cir.
2017) (en banc). Second, Sims argues the district court should have
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19-13963 Opinion of the Court 7
assessed “each individual statement the Government [sought] to
introduce,” but Sims had notice that he had to “mak[e] specific ev-
identiary objections at trial concerning individual statements in the
recordings.” And he failed to do so.
We AFFIRM Sims’s convictions.