## Facts

- Officers conducted surveillance of a small building in Texas associated with suspected drug trafficking and observed Pereneal Kizzee there.
- Carl Brown arrived, spoke briefly with Kizzee, and left; officers suspected a drug transaction.
- After a traffic stop, officers found 0.54 grams of crack cocaine hidden in Brown’s cap; Brown was arrested.
- During custodial questioning, Brown told a detective he had obtained the drugs from Kizzee, that Kizzee had more drugs at the building, and that Brown had bought drugs from Kizzee before.
- Relying in part on Brown’s interrogation statements, police obtained and executed a warrant for the building, forced entry, and found Kizzee inside.
- Officers recovered firearms, ammunition, crack cocaine, and items associated with drug distribution.
- Kizzee was tried for (1) felon in possession of firearms/ammunition, (2) possession with intent to distribute, and (3) possessing a firearm during and in relation to a drug trafficking crime.
- Brown did not testify at trial; the prosecutor instead questioned the detective about what he asked Brown, eliciting “yes” answers that allowed the jury to infer Brown’s accusations.
- Over hearsay and Sixth Amendment objections, the district court admitted the testimony as “course of investigation” background, and the jury convicted Kizzee on all counts.

## Issues

1. Whether the government violated the Sixth Amendment Confrontation Clause by eliciting an officer’s testimony that effectively conveyed a non-testifying witness’s custodial-interrogation statements identifying the defendant as a drug dealer.
2. If a Confrontation Clause violation occurred, whether the error was harmless as to each count of conviction.

## Decision

- The Fifth Circuit held that the questioning admitted testimonial hearsay in violation of the Confrontation Clause.
- The court ruled the error was not harmless as to the drug-trafficking count and the related § 924(c) count.
- The court vacated the convictions on counts two and three and remanded for a new trial on those counts.
- The court affirmed the felon-in-possession conviction because independent evidence supported it.

## Legal Principles

- Statements made during custodial police interrogation for prosecutorial purposes are testimonial, and their admission for truth requires unavailability plus a prior opportunity for cross-examination.
- The Confrontation Clause analysis focuses on substance, not formal phrasing; indirect presentation that allows the jury to infer an absent declarant’s accusation can be unconstitutional.
- “Course of investigation” testimony is impermissible when used as a conduit to place testimonial accusations before the jury to prove guilt.
- The prosecution bears the burden of producing its testimonial witnesses; the availability of a defense subpoena does not cure a Confrontation Clause violation.
- Confrontation Clause errors require count-specific harmless-error review; relief may be limited to the counts materially affected by the improper evidence.

## Conclusion

The Fifth Circuit concluded that the government violated the Confrontation Clause by using an officer’s “background” testimony to communicate an absent witness’s custodial-interrogation accusations, and it vacated the drug-related convictions while leaving the felon-in-possession conviction intact because it was supported by independent evidence.


United States v. Kizzee, 877 F.3d 650 (5th Cir. 2017)