## Facts

- David Buskirk was shot and killed outside his home in Savannah, Georgia, on June 1, 2004.
- Police interviewed 16-year-old Kelly Bigham on June 23, 2004; the interview was videotaped.
- In the interview, Bigham stated she sold Deon Monroe Jones a .38 revolver and that Jones drove her to an area where he shot a white man; she identified the street where Buskirk lived and reenacted the shooting sequence.
- In a later state murder trial, Bigham claimed limited memory; after viewing the video, she testified that if she said it on the video, it reflected what she remembered at the time and was true and accurate to the best of her knowledge then.
- In federal court, a superseding indictment charged Jones with four counts under 18 U.S.C. § 922(g): two counts for knowing possession of a firearm and ammunition on June 1, 2004 (as a felon and as a user of controlled substances), and two counts for knowing possession of ammunition on June 18, 2004 (as a felon and as a user of controlled substances).
- On June 18, 2004, police searched Jones’s bedroom at his mother’s house and found twelve .38-caliber rounds and four .44-caliber rounds.
- At the second federal trial, the district court admitted Bigham’s videotaped interview as a recorded recollection, and the jury convicted Jones on all four counts.

## Issues

1. Whether Bigham’s videotaped police interview was properly admitted as a recorded recollection under Federal Rule of Evidence 803(5).
2. Whether admitting the videotaped, testimonial statements violated the Sixth Amendment Confrontation Clause under Crawford when the witness claimed memory loss at trial.
3. Whether the evidence was sufficient to support each § 922(g) conviction, particularly the June 1 firearm-and-ammunition counts.
4. Whether the sentence could stand after any reversal of counts of conviction.

## Decision

- The Eleventh Circuit affirmed the evidentiary ruling admitting the videotape under Rule 803(5).
- The court held the Confrontation Clause was satisfied because Bigham appeared at trial, testified under oath, and was subject to cross-examination despite her claimed memory loss.
- The court reversed the two June 1, 2004 firearm-and-ammunition convictions (Counts 1 and 2) for insufficient evidence.
- The court affirmed the two June 18, 2004 ammunition convictions (Counts 3 and 4).
- The court vacated the sentence and remanded for resentencing on the remaining counts.

## Legal Principles

- A record qualifies as a recorded recollection under Federal Rule of Evidence 803(5) when the witness once had knowledge, now lacks sufficient recollection to testify fully and accurately, the record was made or adopted when the matter was fresh, and the witness testifies the record accurately reflected her knowledge at the time.
- A videotaped statement may be treated as a recorded recollection when the Rule 803(5) requirements are met.
- The Confrontation Clause is generally satisfied when the declarant appears at trial, is sworn, and is subject to cross-examination; a witness’s claimed memory loss does not, by itself, bar admission of prior testimonial statements.
- Sufficiency review requires evidence from which a rational jury could find each element beyond a reasonable doubt; if evidence does not support a particular count, that conviction must be reversed even if key evidence was properly admitted.
- When some counts are reversed, the sentence may be vacated and the case remanded for resentencing on the remaining convictions.

## Conclusion

The court upheld admission of a videotaped police interview as a recorded recollection and found no Sixth Amendment violation because the witness testified and could be cross-examined, but it reversed two § 922(g) convictions for insufficient proof of June 1 firearm possession, affirmed the June 18 ammunition convictions, and remanded for resentencing.


United States v. Jones, 601 F.3d 1247 (11th Cir. 2010)