United States v. Hamann

Case: 21-50122 Document: 00516317210 Page: 1 Date Filed: 05/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 12, 2022
No. 21-50122 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Kenneth Hamann,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 7:20-CR-187
Before Smith, Costa, and Wilson, Circuit Judges.
Jerry E. Smith, Circuit Judge:
A Texas jury convicted Kenneth Hamann of conspiring to possess
methamphetamine (“meth”) with intent to distribute. But that jury heard
evidence that included the testimonial hearsay of two nontestifying wit-
nesses. Introducing that evidence flouted Hamann’s right to confront the
witnesses against him. So we vacate his conviction and remand.
Today’s decision marks no sea change in our Confrontation Clause ju-
risprudence. In the last fifteen years, we have vacated at least six convictions
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and affirmed at least two writs of habeas corpus for kindred reasons.1 The
most recent of those cases was decided just a year before Hamann’s trial.
There, we reaffirmed what we had said many times: If the government elects
to introduce out-of-court statements to attempt to provide context for its in-
vestigation, its use must be “circumspect” and “limited.” Jones, 930 F.3d
at 377 (quotation omitted). Trial courts must be “vigilant in preventing . . .
abuse” to avoid “the backdoor introduction of highly inculpatory state-
ments.” Id. (quotations omitted). We reaffirm those principles today.
But we are concerned that the government has repeatedly failed to take
the lesson. So let us be unequivocal: It is not “circumspect” to introduce a
statement accusing the defendant of selling “multiple ounces” of meth. Nor
is it “limited” to give a play-by-play account of the defendant selling meth to
a confidential informant. If those uses have any probative value in explaining
why police began an investigation, they “pale in comparison to the risk that
the jury will consider [the statements for their] truth.” Sharp, 6 F.4th at 582.
The Confrontation Clause commands that testimonial evidence be tested “in
the crucible of cross-examination.” Crawford v. Washington, 541 U.S. 36, 61
(2004). Although we decline, once again, to sanction an exception that would
swallow that rule, we remind prosecutors to take note.
1
See United States v. Jones, 930 F.3d 366, 375–81 (5th Cir. 2019); United States v.
Foster, 753 F. App’x 307, 310–15 (5th Cir. 2018); United States v. Kizzee, 877 F.3d 650, 656–
63 (5th Cir. 2017); United States v. Duron-Caldera, 737 F.3d 988, 992–97 (5th Cir. 2013);
Jones v. Cain, 600 F.3d 527, 536–41 (5th Cir. 2010) (habeas); United States v. Tirado-Tirado,
563 F.3d 117, 122–25 (5th Cir. 2009); Taylor v. Cain, 545 F.3d 327, 334–37 (5th Cir. 2008)
(habeas); United States v. Alvarado-Valdez, 521 F.3d 337, 341–43 (5th Cir. 2008); see also
United States v. Sharp, 6 F.4th 573, 581–83 (5th Cir. 2021) (holding that the Confrontation
Clause was violated but finding no plain error where the defendant had failed to raise the
issue before the district court), cert. denied, 142 S. Ct. 1124 (2022).
2
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I.
A.
A grand jury indicted Hamann for conspiracy to “possess with the in-
tent to distribute and [conspiracy to] distribute” meth “[f ]rom on or about
January 1, 2020[,] through on or about February 25, 2020.” That indictment
alleged two prior “serious drug felon[ies]” intended to establish Hamann’s
eligibility for a sentence enhancement for career offenders. Those prior felo-
nies happened on two occasions. The first included three inchoate of-
fenses—attempt to make meth, aiding and abetting the possession of illegal
chemicals and equipment, and aiding and abetting the maintenance of a meth
lab. The second occasion was a conviction for possession of meth with intent
to distribute.
Hamann stood trial on the conspiracy charge. The jury heard from
seven government witnesses—four investigators, two DEA chemists, and
Hamann’s alleged co-conspirator, William Davis. Of those witnesses, the
most relevant to this appeal is Officer Malcolm Stanley, an investigator for
the Midland District Attorney’s Office. But we will recount some of the tes-
timony from other witnesses because it is relevant to determining whether
any Confrontation Clause error was harmless.
The prosecutor began his opening statement by explaining that police
were trying to execute a search warrant for a motel room in Odessa when they
found Hamann standing outside with Davis. The prosecutor went on to de-
scribe the police’s finding roughly 17 grams of meth inside a truck near
Hamann and about 150 more grams inside Davis’s backpack. He said that
Davis agreed to sell Hamann meth after meeting him while both men were
staying at the motel.
Then the prosecutor backtracked. He told the jurors, “the evidence
you’re going to hear is not going to be confined solely to that because
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obviously there have to be events leading up to the search warrant that caused
the DEA to even be looking at Mr. Hamann.” Those events, he said, included
a “controlled purchase,” where a confidential source bought meth using gov-
ernment money to establish probable cause for the search warrant.
Stanley was the government’s first witness, and he picked up where
the prosecutor left off. He explained that his primary role in the investigation
had been to “cultivate” a relationship with the confidential source (confiden-
tial informant (or “CI”) or confidential source (“CS”)) who did the con-
trolled purchase. He confirmed that the DEA had “conduct[ed] a controlled
purchase from Kenneth Hamann” in early 2020.
Stanley purported to explain how the DEA became interested in
Hamann. He described a confidential source who had “proven reliable for
the DEA in the past.” According to Stanley, that source told him that some-
one nicknamed “Cali” was “moving multiple ounces” of meth. Immediately
after that statement, he explained that other local law enforcement agencies
knew that “Cali” was Hamann. He also said that those other agencies had
heard, from an unknown declarant, that Hamann “was selling narcotics.”
Stanley proceeded to recount the controlled purchase that justified the
search warrant. The first part of that testimony was ordinary. He told the
jury that the investigators thought Hamann was selling drugs from a motel.
He recounted how he prepared the source for the transaction by meeting her
in a parking lot a mile from the motel, giving her cash with recorded serial
numbers, and fitting her with an audio recorder.2 After that, he sent the
source to the motel to buy meth from Hamann.
But then Stanley’s testimony veered off course again. He wasn’t at
2
The audio recorder malfunctioned, so there is no objective record of what hap-
pened during the controlled purchase.
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the motel, nor could he see it, as he explained to the jury. Instead, another
officer—one who never testified—was watching the motel parking lot and
describing what was happening to the other officers over the radio. That fact
didn’t stop Stanley from describing what the source did when she arrived at
the hotel, which Stanley could only have known from the statements of the
other officer and the source.
Stanley gave the jurors the following details: When the source arrived
at the motel, Hamann came out of a room and met her in the parking lot. The
two spoke briefly, then Hamann retreated to his room. The source got out of
her car, went into the same room, and remained there for “five to ten min-
utes.” Meanwhile, several other people entered and exited the room. Then
the source left and met the officers back where they had prepped her.
Stanley said the source gave the officers meth—but less than the of-
ficers had instructed her to buy—and some unspent cash. The police decided
they had enough evidence to get a search warrant. That decision ended Stan-
ley’s involvement, since he was merely the “CI handler” and didn’t partici-
pate in serving the search warrant.
The remaining three police witnesses filled in the rest of the story.
The day after the controlled purchase, officers tried to execute the warrant.
Two officers intended to drive past the motel to make sure it was safe for the
remaining officers to show up. But those officers noticed Hamann standing
in the parking lot, so they audibled. The officers pulled into the parking lot,
parked, walked toward Hamann, and identified themselves. Hamann stood
near the passenger side of a truck. Another man crouched nearby, working
on a motorcycle. The officers thought the men were together. When
Hamann noticed the officers, he reached furtively into the truck.
Police identified the second man as William Davis. They noticed a
backpack resting on the motorcycle. Police asked Davis what was in the bag.
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Davis eventually admitted that it contained meth and a pistol and consented
to police’s searching the bag. Police found meth and a pistol in the bag. Then
they searched the truck that Hamann had reached into and found a much
smaller amount of meth than was in Davis’s bag.
More officers arrived to search Hamann’s motel room, the original ob-
ject of the search warrant. Those officers didn’t find more meth, but they did
find marihuana and a pipe.
Police interviewed Hamann in the motel parking lot. Portions of that
recording were played to the jury.3 In that interview, Hamann waived his
rights to silence and counsel. At first, Hamann tried to portray himself as a
mere meth user. But the police hinted that they knew better and alluded to
the controlled purchase. Hamann replied, “Man, you guys are good.” Then
he conceded that he had sold the confidential source meth the day before. He
also admitted to selling some meth the prior summer that he had gotten from
two distributors unrelated to Davis or this case.
Davis testified next. He told the jury that he had met Hamann only
about a week before the men were arrested but that he was too often intoxi-
cated around that time to remember precisely when. Davis said that he met
Hamann because both men were staying at the motel and that Hamann asked
to buy meth after he noticed Davis selling it to other people. Davis reported
selling Hamann two ounces in total—one ounce a few days before the men
were arrested and one ounce the day of that arrest. Davis told the jury that
Hamann was probably buying too much meth to use personally.
After that, the two DEA chemists testified to authenticate exhibits
3
Neither the recording of the interview nor a transcription of it is in the record.
This account is drawn from references in the live testimony and the closing statements to
the interview and the recording.
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showing that the substances attributable to Hamann were high-purity meth.
That brings us to the government’s closing argument, which refer-
enced the controlled buy more than once. The prosecutor’s second sentence
was, “[Police] had a confidential informant, the confidential source, the CS
that you heard about.” He went on to describe the source’s purchasing meth
from Hamann. He returned to that subject a few minutes later and reminded
the jury of the officers’ procedure for “cultivat[ing]” confidential sources.
And he repeated the story of the controlled purchase after announcing that
he was going to demonstrate that he had “proved this case beyond a reasona-
ble doubt.”
The jury convicted Hamann of conspiring with Davis to possess meth
with intent to distribute. The district court then transitioned to the penalty
phase of the bifurcated proceedings. Hamann pleaded “not true” to the in-
dictment’s allegations that he had been convicted of two prior serious drug
felonies. After hearing the testimony of Hamann’s former probation officer,
the jury found that Hamann had been convicted of those offenses.
During sentencing, the district court adopted the presentence report,
which recommended finding that Hamann’s criminal history category was VI
and that his offense level was 37, a calculation that included a career-offender
enhancement. Under that calculation, the Sentencing Guidelines recom-
mended a sentencing range of 360 months to life. The court assigned 360
months.
B.
Hamann appeals that judgment of conviction and sentence on two
grounds. First, he says that Stanley’s testimony, by incorporating the state-
ments of nontestifying witnesses, violated his right to “be confronted with
the witnesses against him.” U.S. Const. amend. VI. Second, he says he
was ineligible for the career-offender sentence enhancement because some of
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his predicate offenses were inchoate crimes, which he maintains are excluded
from consideration by the Guidelines’ text. Hamann presented both of those
challenges to the district court.
Hamann first raised the Confrontation Clause objection in a motion in
limine. He asked the court to “exclude from trial any reference to the state-
ments of other individuals.” The court granted that motion “in its entirety.”
But questions about that motion’s scope lingered. Even by the time of
trial, the court hadn’t decided, for instance, the extent to which evidence re-
garding an earlier controlled purchase from Hamann was admissible. During
the pretrial conference, the prosecutor asked the court whether he could ref-
erence some of Hamann’s prior statements. The court replied, “As long as
you have a good faith belief that that’s coming in.”
So the parties continued to dispute the admissibility of hearsay evi-
dence during the trial. When Stanley related the confidential source’s state-
ment that “Cali was moving multiple ounces” of meth, Hamann objected on
hearsay and Confrontation Clause grounds. The prosecutor replied that the
source’s statement was “not being offered for its truth” but merely to explain
“the steps [the officers] took in [their] investigation.” The court overruled
the objection.
The court sustained other, similar objections. It prevented Stanley
from telling the jury what the source told him about why she didn’t buy as
much meth from Hamann as they had planned. And it didn’t allow him to
provide his understanding of why the source returned some of the money,
either. But generally, the court permitted Stanley to describe in detail the
investigation that led to the search warrant, even though it relied on out-of-
court statements of nontestifying witnesses, on the theory that those state-
ments were not offered “to prove the truth of the matter asserted.”
During the penalty phase, Hamann also objected to the career-
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offender enhancement. He said the court couldn’t count his convictions for
inchoate offenses as predicate crimes. The court overruled the objection
because it understood it to be foreclosed by United States v. Lightbourn,
115 F.3d 291, 293 (5th Cir. 1997).
II.
We consider Hamann’s challenges de novo because he timely presented
them to the trial court. Alvarado-Valdez, 521 F.3d at 341; United States v.
Cortez-Gonzalez, 929 F.3d 200, 203 (5th Cir. 2019).
A.
We ask three questions to determine whether admitted evidence vio-
lated the Confrontation Clause: First, did the evidence introduce a testimo-
nial statement by a nontestifying witness? Second, was any such statement
offered to prove the truth of the matter asserted? Third, was the nontestifying
witness available to testify, or was the defendant deprived of an opportunity
to cross-examine him? If the answer to each of those questions is “yes,” the
Confrontation Clause was violated. Kizzee, 877 F.3d at 656–61. If the Con-
frontation Clause was violated, we determine whether the conviction should
be vacated by asking whether the government has proven that the error was
harmless. Alvarado-Valdez, 521 F.3d at 341.
1.
When police officers testify about the contents of witnesses’ state-
ments during an investigation, they risk introducing testimonial hearsay evi-
dence. “A statement is testimonial if its ‘primary purpose is to establish or
prove past events potentially relevant to later criminal prosecution.’” Kizzee,
877 F.3d at 656 (quoting Duron-Caldera, 737 F.3d at 992–93) (alterations
adopted). When a witness’s statements at trial implicate a nontestifying de-
clarant’s statements, the content is testimonial if it “lead[s] to the clear and
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logical inference” that the declarant believed that the defendant committed
the charged offense. Id. at 658.
Hamann challenges Stanley’s testimony under those principles. We
separately analyze two aspects of Stanley’s testimony. The first concerns his
statements that the source told him that “Cali was moving multiple ounces”
of meth and that local police had heard from an unknown declarant that
Hamann was dealing drugs. The second aspect pertains to Stanley’s descrip-
tion of the controlled purchase.
On the first aspect, the government has two responses. It first points
out that the tip “did not directly identify” Hamann because it used the nick-
name “Cali.” It also says the “jury could link ‘Cali’ to the defendant only by
evaluating the testimony of an available witness”—Stanley. Our decisions in
Jones and Kizzee foreclosed those rebuttals.
It does not matter that the declarant used the name “Cali” instead of
“Hamann” because Stanley and the prosecutor “eliminated all doubt” about
whom the informant referred to. Jones, 930 F.3d at 377 (quotation omitted).
The jury scarcely needed to “infer[ ]” anything. Kizzee, 877 F.3d at 658.
Stanley introduced the source’s statement in response to the question, “Why
was the DEA looking to conduct a controlled purchase from the defendant,
Mr. Hamann?” After the court overruled Hamann’s objection, the prosecu-
tor replied, “So you had information that the defendant Hamann was moving
methamphetamine, correct?” Then Stanley explained that he spoke to other
local police—more nontestifying declarants—who “immediately knew” that
Cali was Hamann and told Stanley that “they had received information”—
from still more nontestifying declarants—that Hamann was dealing drugs.
That context “blatantly linked” Hamann to the drug sales. Jones,
930 F.3d at 377 (quotation omitted and alteration adopted). The government
cannot pretend that it did not spoon-feed Cali’s identity to the jury.
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Nor is it relevant that Stanley, a testifying witness, linked Cali and
Hamann. That was also true in Kizzee, 877 F.3d at 657–58, and Jones,
930 F.3d at 376–77. To avoid introducing testimonial evidence by implication,
Stanley needed to stick to matters within his personal knowledge. But he
didn’t do that. He and the prosecutor demonstrated that the confidential
source and other police officers believed that Cali/Hamann was dealing
meth. In doing so, they introduced testimonial evidence from those non-
testifying witnesses.
The same is true of Stanley’s account of the controlled purchase. The
government says Stanley’s testimony on that point “consisted only of his ob-
servations of the confidential source’s actions.” And it maintains that
Hamann cannot point to an identifiable statement by a nontestifying declar-
ant in Stanley’s testimony. The first contention inaccurately describes Stan-
ley’s testimony, and the second contention is irrelevant.
It’s true that if Stanley had provided only his own observations, there
would be no Confrontation Clause problem. But Stanley was unequivocal:
He “didn’t personally have eyes on the hotel” where the controlled purchase
happened. Instead, he listened by radio to another officer describing what
was happening and debriefed the source after the sale. A man who listened
to a Dodgers game on the radio and spoke to a friend who attended the game
doesn’t have personal knowledge of the game’s winner; Vin Scully and the
friend do. That man couldn’t testify about the game without relying on the
accuracy of third parties’ observations, and neither could Stanley testify
about the controlled purchase without doing the same.
The question is not whether Hamann can identify a particular state-
ment made by a nontestifying declarant, but whether the officer’s testimony
“allows a fact-finder to infer the statements made to him.” Kizzee, 877 F.3d
at 657. That inference is undeniable here because Stanley described the
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controlled purchase in detail despite admitting to the jury that he had not wit-
nessed it personally. Stanley described Hamann’s behavior precisely, includ-
ing where he was before the source arrived, what he did once she got his at-
tention, where he went with her, how long he remained in the room with her,
and with whom else he or she may have interacted during that time. If he
were testifying from personal knowledge, all he could have said is that he gave
the source money and instructions to buy meth from Hamann and that she
returned with less meth than expected and change.
So Stanley’s statements created the “clear and logical inference that
out-of-court declarants believed and said that [Hamann] was guilty of the
crime charged.” Kizzee, 877 F.3d at 657 (quotation omitted and alterations
adopted). That’s true even though the statements directly implicated
Hamann only in the possession and sale of meth, while he was charged with
conspiracy, a crime with different elements.4
A clear and logical implication can exist without direct proof of each
element of the offense. The possession and sale of lots of meth strongly sug-
gests participation in a drug conspiracy. Indeed, that was the government’s
own theory of the case. In his closing argument, the prosecutor told the jury,
“As soon as [Hamann] buys a distributable amount [of meth] from William
Davis, there is an agreement. There is . . . a conspiracy.” Accordingly, Stan-
ley’s testimony implied that nontestifying declarants believed that Hamann
was part of a drug conspiracy.
Both challenged aspects of Stanley’s testimony—his accounts of the
4
“To prove conspiracy to possess and distribute a controlled substance, the govern-
ment must show beyond a reasonable doubt (1) the existence of an agreement between two
or more persons to violate narcotics laws; (2) the defendant’s knowledge of the agreement;
and (3) his voluntary participation in the conspiracy.” United States v. Valdez, 453 F.3d 252,
256–57 (5th Cir. 2006).
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statements attributing prior meth sales to Hamann and his description of the
controlled purchase—were testimonial. So we proceed to ask whether they
were offered to prove the truth of the matters asserted.
2.
Evidence can be relevant for multiple purposes. Ordinarily, when ev-
idence is admissible for one purpose but not for another, the court may admit
it but must instruct the jury not to consider it for an improper purpose if the
opposing party requests the instruction.5 Under the guise of explaining why
police began their investigation or conducted it a certain way, the government
from time to time has tried to exploit the concept of multiple relevancies to
introduce evidence highly probative of guilt. See Sharp, 6 F.4th at 582; Jones,
930 F.3d at 377; Kizzee, 877 F.3d at 659. For instance, the government might
respond to an objection to a police officer’s statement, “Bubbles—a confi-
dential informant who has proved highly reliable in the past—told me that
Bird shot Gant with a shiny little pistol” by proclaiming that it merely wished
to explain why it began investigating Bird.
Officers can sometimes provide “background information to explain
the[ir] actions” without introducing hearsay. United States v. Carrillo,
20 F.3d 617, 619 (5th Cir. 1994). But we have not been so easily misguided by
the government’s purported desire to give the jury context. We do not accept
the bare recitation of that motive as a substitute for cross-examination—the
“only indicium of reliability sufficient to satisfy constitutional demands.”
Crawford, 541 U.S. at 69. So even if the government is correct that evidence
is relevant to explain its investigative choices, we consider that evidence to be
offered for the truth of the matters asserted if it “specifically links a defendant
5
See Fed. R. Evid. 105; United States v. Umawa Oke Imo, 739 F.3d 226, 234 (5th
Cir. 2014).
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to the crime.” Jones, 930 F.3d at 377 (quoting Kizzee, 877 F.3d at 659).
We have also repeatedly warned the government against “[b]ackdoor-
ing highly inculpatory hearsay via an explaining-the-investigation rationale.”
Sharp, 6 F.4th at 582. Those warnings predate even Crawford, which height-
ened courts’ scrutiny of evidence incorporating nontestifying witnesses’ tes-
timonial statements. In United States v. Evans, 950 F.2d 187, 191 (5th Cir.
1991), we explained that such evidence is “inadmissible hearsay if it . . . points
directly at the defendant and his guilt”; we admonished the government to
be “circumspect in its use” and “trial court[s] [to] be vigilant in preventing
its abuse.” And we have long recognized that “testimony tend[ing] to point
directly to a [defendant’s guilt is] purely hearsay evidence of that fact.”
United States v. Gomez, 529 F.2d 412, 416 (5th Cir. 1976); see also Brown v.
United States, 202 F.2d 474, 475 (5th Cir. 1953). Despite our litany of epistles
on the subject, we were forced last year to describe violations of those princi-
ples as “a recurring problem.” Sharp, 6 F.4th at 582.
The government must advance a specific reason why it needs to pro-
vide inculpatory “context” for its investigation. For instance, it may do so if
the defendant opens the door by “challeng[ing] the adequacy of [the] investi-
gation.” Kizzee, 877 F.3d at 659. Otherwise, there is no reason why it cannot
begin its account by explaining that it got a search warrant or that “a tip
prompted” it to begin investigating a suspect. Sharp, F.4th at 582. Or, if it
wishes to include the specifics of the tip, it is always free to call the tipster to
testify. But it may not introduce “highly inculpatory out-of-court state-
ment[s]” and call them nonhearsay context because their value for that pur-
pose “pale[s] in comparison to the risk that the jury will consider” them for
the truth of the matters asserted. Id.
Hamann says that’s what happened here. He maintains that Stanley’s
testimony specifically linked him to the crime charged. The government
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disagrees. It urges that Stanley’s testimony was “for the purpose of explain-
ing law enforcement’s investigation and did not point specifically to the de-
fendant.” (quotation omitted). We agree with Hamann.
The challenged evidence linked Hamann to a meth-dealing conspir-
acy. It tended to prove that he sold several ounces—some before and some
after meeting Davis—because Davis testified that he had sold Hamann only
one ounce before the day he was arrested. But the tip described Hamann’s
selling “multiple ounces.” It also described Hamann’s selling meth to the
confidential source. For the reasons we described earlier, those are powerful
links to a meth-dealing conspiracy.
The government has not advanced any reason for needing inculpatory
evidence to bolster the credibility of its investigation. Hamann has never con-
tended that the investigation was inadequate. We perceive no reason why the
government could not have begun its case-in-chief by explaining that officers
arrived at the motel to execute a search warrant and found Hamann and Davis
together in the parking lot holding distributable amounts of meth. The gov-
ernment’s inculpatory prequel was “unnecessary” and “highly prejudicial.”
Kizzee, 877 F.3d at 659. It was far from “circumspect” and “limited.” Jones,
930 F.3d at 377 (quotations omitted).
So as far as the Confrontation Clause is concerned, Stanley’s chal-
lenged testimony was offered for the truth of the matters asserted. We pro-
ceed to ask whether Hamann had an opportunity to cross-examine the confi-
dential source and the nontestifying officer and, if so, whether those wit-
nesses were unavailable to testify.
3.
The government may introduce testimonial evidence from a non-
testifying declarant when both (1) the declarant is unavailable to testify and
(2) the defendant already had an opportunity to cross-examine her. Kizzee,
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877 F.3d at 660; Crawford, 541 U.S. at 53–54. A declarant is considered
unavailable when the government fails to procure him after a good-faith,
reasonable effort. Tirado-Tirado, 563 F.3d at 123. A defendant has had an
opportunity to cross-examine a declarant when he has confronted the
declarant “under circumstances closely approximating those that surround
the typical trial,” such as testimony given “under oath” and while the
defendant is “represented by counsel.” California v. Green, 399 U.S. 149, 165
(1970).6 A defendant is not afforded the opportunity to cross-examine a
witness just because he could have called the same witness to testify even
though the state did not. Kizzee, 877 F.3d at 661.
Hamann did not have an opportunity to cross-examine either the con-
fidential source or the nontestifying officer. The government has not dis-
closed the identity of the confidential source, and there is no indication that
Hamann confronted the nontestifying officer in trial-like proceedings. The
government has also not shown that either witness was unavailable. So nei-
ther necessary condition for absolving the government of its obligation to
avoid introducing testimonial hearsay has been satisfied.
Accordingly, Hamann has established that Stanley’s testimony vio-
lated the Confrontation Clause. His conviction must be vacated unless the
government can demonstrate that the error was harmless.
4.
Once the defendant makes out a Confrontation Clause violation, the
burden shifts to the government to prove that “there was no reasonable pos-
sibility that the evidence complained of might have contributed to the
6
See also Tirado-Tirado, 563 F.3d at 123 n.3 (“Crawford did not change the definition
of ‘unavailability’ for Confrontation Clause purposes; pre-Crawford cases on this point
remain good law.”).
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conviction.” Alvarado-Valdez, 521 F.3d at 341 (alteration adopted) (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)). In deciding whether the
jury’s verdict was “surely unattributable to the error,”7 we focus on the harm-
fulness of the challenged evidence. Jones, 930 F.3d at 379. That is, we do not
ask whether the “evidence remaining after excision of the tainted evidence”
was sufficient to convict the defendant. Id. (quotation omitted).
To decide how harmful the challenged evidence was, we consider how
it was used. If the government relied on the violative testimony in its closing
argument, we are more likely to conclude that the error was harmful. Al-
varado-Valdez, 521 F.3d at 342. If the government makes only “fleeting refer-
ences” to the unconstitutional evidence, we are less likely to find harm.
United States v. Sarli, 913 F.3d 491, 498 (5th Cir. 2019). And erroneously-
introduced evidence is not harmful where it is relevant only to prove an ele-
ment of the offense that the defendant does not contest. Id. at 496–97. Con-
versely, it is harmful where it “directly inculpated [the defendant] in [a] con-
tested element of [the offense].” Jones, 930 F.3d at 380.
The government seeks to carry its burden via three contentions. First,
it observes that the case against Hamann was otherwise “strong”—not least
because of his “voluntary confession.” Second, it says that this case is differ-
ent from Alvarado-Valdez, Taylor, Kizzee, and Jones because the violative ev-
idence here was less incriminating than in those cases. That’s so, it claims,
because the challenged evidence just duplicated other admissible evidence
and because the government didn’t rely on it “to prove the charged conspir-
acy.” Third, it urges that this case is like Sarli because the challenged testi-
mony “did not involve a fact disputed by the defendant.”
The government’s first contention is inapt. As we have explained, our
7
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).
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precedents foreclose consideration of whether the unchallenged evidence
would hypothetically have been enough to convict Hamann. Doing so
“would require retrying the case on appeal, at best, or engaging in pure spec-
ulation, at worst.” Alvarado-Valdez, 521 F.3d at 343.
The government’s second contention is wrong. While it’s true that
Hamann admitted to buying and selling meth, that didn’t make Stanley’s tes-
timony “irrelevant.” Hamann was indicted for a meth conspiracy that
formed “on or about January 1, 2020[,] through on or about February 25,
2020.” But most of Hamann’s confession concerned meth deals between
May and July 2019, well before he met Davis. Otherwise, he confessed only
to selling meth to the confidential source during the controlled purchase, not
to dealing “multiple ounces” before that day that would have been relevant
to his conspiracy with Davis.
In any event, that reasoning strays too close to the impermissible con-
tention that the government had enough other evidence to convict Hamann
anyway. Stanley’s testimony was relevant because it tended to prove that
Hamann was involved in a meth-dealing conspiracy, and that fact makes it
more likely that introducing it was harmful error.
The government also made more than “fleeting references” to the vio-
lative evidence in its opening statement and closing argument. Sarli, 913 F.3d
at 498. Indeed, the prosecutor began his closing by describing the controlled
purchase and referencing the confidential source, and he recounted those
details early in his opening statement. In his closing statement, the prosecu-
tor even returned to the controlled purchase as his first piece of evidence that
he had “proved this case beyond a reasonable doubt.” The government thus
relied on the subject of the challenged testimony to prove its case, which is
enough under our precedents, even if the government had other ways of
establishing the same facts.
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No. 21-50122
The government’s third contention misconstrues Sarli. That case did
not hold that an error is harmless “when the officer’s testimony . . . did not
involve a fact disputed by the defendant,” as the government claims. As we
reaffirmed in Jones, 930 F.3d at 380, Sarli held that erroneously introduced
evidence is harmless where it can help prove only uncontested elements of the
charged offense, not where it can establish only uncontested facts.
That distinction is critical. The defendant in Sarli acknowledged that
he was carrying drugs but maintained that he didn’t know that he was carrying
drugs. Sarli, 913 F.3d at 497. The tip that may have violated the Confronta-
tion Clause had nothing to do with Sarli’s knowledge; it could have estab-
lished only his possession. Id. at 496. What mattered was not that the fact of
possession was undisputed but that the evidence could not have helped the
government convict Sarli where the trial’s sole purpose was to persuade the
jury that Sarli knew he had drugs.
That’s not true here. The government says that “Stanley’s testimony
concerning the informant’s tip had nothing to do with establishing an agree-
ment or conspiracy.” Not only is that wrong, but it also contradicts the gov-
ernment’s theory of the case. The prosecutor declared during his closing ar-
gument,
[C]onspiracy to possess with intent to distribute is how drug
dealers are typically charged. . . . The defendant was not cook-
ing his own meth. . . . As soon as he agrees to buy that meth-
amphetamine from somebody up higher in the chain to resell it,
there is a conspiracy. As soon as he buys a distributable amount
from William Davis, there is an agreement. There is . . . a
conspiracy.
As we have explained, the fact that a defendant is capable of moving “multiple
ounces” of meth strongly suggests that he is part of a drug-dealing conspir-
acy. So unlike in Sarli, and like in Jones, 930 F.3d at 380, the violative evi-
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No. 21-50122
dence “directly inculpated” Hamann in a “contested element” of the of-
fense: “the existence of an agreement between two or more persons to violate
narcotics laws,” Valdez, 453 F.3d at 256–57.
In fact, this case is precisely like Jones, where the defendant was also
charged with conspiracy to possess meth with intent to distribute. We con-
cluded that the putative conspiracy was “closely linked to Jones’s alleged
methamphetamine purchases” and so could not be distinguished from his
conviction for possession. Id. at 380. We thus held that the government had
not satisfied the “no ‘reasonable possibility’” standard regarding that of-
fense. Id. at 381 (quoting Chapman, 386 U.S. at 24). So too here.
The government has not proven that the challenged evidence could
not have contributed to Hamann’s conviction. Stanley’s testimony was rele-
vant to proving that Hamann was involved in a meth-dealing conspiracy, and
the government repeatedly referenced the subject matter of his testimony
during its opening statement and closing argument. So admitting the evi-
dence that incorporated testimonial hearsay was harmful error.
B.
Because Hamann’s conviction cannot stand, we do not reach his claim
that the district court erred in applying the career-offender sentencing en-
hancement. But we observe that Hamann acknowledges that his claim is fore-
closed by precedent.8 He seeks only to “preserve[ ] this challenge for
Supreme Court review.”
* * *
The judgment of conviction is VACATED and REMANDED.
8
United States v. Kendrick, 980 F.3d 432, 444 (5th Cir. 2020), cert. denied, 141 S. Ct.
2866 (2021); Lightbourn, 115 F.3d at 293.
20