CA5: SW affidavit at trial violated confrontation

The government violated the confrontation clause by putting into evidence a search warrant affidavit to seek to give context to the CS’s dealings with defendant. If that’s so important, then the government should call him. United States v. Hamann, 2022 U.S. App. LEXIS 13014 (5th Cir. May 12, 2022). Excellent discussion of informant hearsay and confrontation, and, in part:

The government must advance a specific reason why it needs to provide inculpatory “context” for its investigation. For instance, it may do so if the defendant opens the door by “challeng[ing] the adequacy of [the] investigation.” 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 statement[s]” and call them nonhearsay context because their value for that purpose “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 disagrees. It urges that Stanley’s testimony was “for the purpose of explaining law enforcement’s investigation and did not point specifically to the defendant.” (quotation omitted). We agree with Hamann.

The challenged evidence linked Hamann to a meth-dealing conspiracy. 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.