### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 07-60011

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENDRICK FITZGERALD PROCTOR, also known as Kendrick Shavers, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi

Before GARWOOD, JOLLY, and STEWART, Circuit Judges. PER CURIAM: Kendrick Fitzgerald Proctor (“Proctor”) was convicted by a jury oftheft of

a firearm, possession of a stolen firearm, and felon in possession of a firearm. He appeals these convictions, arguing that the indictment should have been dismissed based on unnecessary delay and that the district court’s admission of

a 911 tape-recording violated his right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND On August 4, 2001, Proctor’s brother, Rodriguez “Yo gi” Proctor (“Yogi”) and Bobby Fairley (“Fairley”) went toa nightclub together in Biloxi, Mississippi. Yogi had driven and Fairley left hisgun, a .38special revolver, on thedashboard United States Court of Appeals

Fifth Circuit 

### F I L E D October 22, 2007 Charles R. Fulbruge III ClerkNo. 07-60011

2 of Yogi’s car. Upon leaving the nightclub, Yogi introduced Fairley to Proctor, and all three walked to Yogi’s car. Yogi then opened the passenger door for Fairley, at which point Proctor grabbed Fairley’s gun which was in plain view

on the console of the car. Fairley protested that the gun belonged to him, but Proctor began “cussing” and fired the gun twice into the ground near Fairley’s foot. Proctor took off running with the gun. Yogi called 911, and reported that his brother had taken a gun, fired it twice into the ground, and that he believed Proctor had run back into the nightclub. The police arrived on the scene and canvassed the area for Proctor. An officer spotted Proctor, and pursued Proctor

on foot. Proctor fired at the officer, and the officer fired back, striking Proctor. On May 11, 2006, Proctor was charged in a three-count indictment with various firearms-related offenses under 18 U.S.C. § § 922 & 924. On August 10, 2006, Proctor moved to dismiss the indictment under both Federal Rule of Criminal Procedure 48(b) and the Due Process Clause ofthe Fifth Amendment, arguing that the government waited an unreasonable amount of time before bringing the prosecution. The district court denied the motion in an unwritten order. A one-day trial was held on August 23, 2006. During the trial, the Government offered intoevidence a tape-recording ofthe 911 call made by Yogi. The tape contained the entire exchange between Yogi and the 911 operator, set out here: OPERATOR: BILOXI POLICE AND FIRE. R. PROCTOR: CAN YOU HAVE A POLICE ON NINE AND MAIN I

MEAN ON MAIN STRE ET IN FRONT OF INEZ PLEASE? OPERATOR: WHAT’S GOING ON? R. PROCTOR: WHAT’S GOING ON IS MY LITTLE BROTHER JUST

TOOK A GUN OUT OF MY CAR BELONG TO SOMEBODY ELSE AND SHOT IT IN THE GROUNDNo. 07-60011

3 TWICE A N D HE A CONVICTED FELON AND HIS NAME IS KENDRICK. OPERATOR: HE SHOT IT IN THE GROUND TWICE? R. PROCTOR: YES MA’AM. TWICE. OPERATOR: AND IT’S YOUR BROTHER? R. PROCTOR: YES MY LITTLE BROTHER. OPERATOR: WHERE’S HE AT NOW? R. PROCTOR: I DON’T KNOW I THINK HE’S UPSTAIRS IN THIS

CLUB, BUT Y’ALL KNOW HIM RE AL GOOD HIS NAME IS KENDRICK PROCTOR. OPERATOR: JIMMY PROCTOR? R. PROCTOR: KENDRICK PROCTOR. OPERATOR: KENDRICK PROCTOR? R. PROCTOR: YES MA’AM, HE ’S BEEN IN THE PENITENTIARY

SO HE AIN’T SUPPOSED TO POSSESS NO GUN, IT WASN’T NONE OF MY GUN . . . OPERATOR: AND HE’S IN THE CLUB WITH THE GUN NOW? R. PROCTOR: YES MA’AM HE WAS IN THE CLUB. OPERATOR: WHAT’S HE WEARING? R. PROCTOR: UM, HE HAD A CAP, A WHITE SHIRT, AND I THINK

SOME BROWN PANTS, THEY KNOW HIM. OPERATOR: OKAY, WHY DID HE TAKE THE GUN OUT, DO YOU

KNOW? R. PROCTOR: HE TOOK THE GUN OUT OF MY CAR. OPERATOR: WHY? R. PROCTOR: BE CAUSE THAT MY LITTLE BROTHER, YOU

KNOW HE COME TO MY CAR AND HE JUST TOOK THE GUN AND I SAID MAN, GIVE THAT MAN TH AT GUN BACK AND HE SAY HOW ‘BOUT ME I THOUGHT YOU AND ME WERE BROTHERS HE TALKING ABOUT BITCH BROTHERS, AND SHOT IT IN THE GROUND TWICE.No. 07-60011

1 Proctor concedes that Rule 48(b) applies only to post-arrest delay in bringing a case to trial; it does not apply to pre-indictment delay ifthe defendant has not been arrested. See United Statesv. Stumpf , 827 F.2d 1027, 1029 (5th Cir. 1987). Thus, on appeal, Proctor bases his request for relief on only the Due Process Clause of the Fifth Amendment. 4 OPERATOR: OKAY, AND YOU DON’T KNOW WHY, HE WASN’T

GOING AFTER SOMEBODY, WAS HE? R. PROCTOR: MA’AM, HE JUST, I DON’T KNOW WHAT’S WRONG

WIT H HIM, MA’AM, MY MOMMA THINK HE’S ON COCAINE, SO THAT’S PROBABLY WHAT’S WRONG WITH HIM, BUT HE A CONVICTED FELON, HE AIN’T SUPPOSED TO POSSESS NO GUN. OPERATOR: OKAY, ALRIGHT, WELL THEY’RE ON THE . . . R. PROCTOR: AND HE SHOT IT IN THE GROUND TWICE AND I

CAN SHOW WHERE HE SHOT IT. OPERATOR: WHAT’S YOUR NAME? R. PROCTOR: OKAY MY NAME IS RODRIGUEZ PROCTOR. OPERATOR: RODRIGUEZ? OKAY, WELL STAY OUTSIDE AND

WAIT FOR THE POLICE, OKAY? R. PROCTOR: YES MA’AM. OPERATOR: ALRIGHT. R. PROCTOR: OKAY. OPERATOR: THANK YOU. BYE. Yogi was not called as a witness at trial. Proctor made a timely objection to the introduction of the tape-recording based on the Confrontation Clause, arguing that the 911 call was testimonial under Crawford v. Washington, 541 U.S. 36 (2004). The district court overruled the objection. The jury found Proctor guilty

on all counts, and the district court sentenced him to 135 months of imprisonment. II. DISCUSSION Proctor appeals both the denial of his motion to dismiss the indictment1 and the admission of the 911 call as evidence at trial.No. 07-60011

5 A. Motion to Dismiss the Indictment Proctor’s first point of error is that the Government’s May 2006 indictment for crimes that occurred four years and nine months earlier violates his Fifth Amendment due process rightsand, therefore, thedistrict court should have granted his motion todismiss the indictment. The district court’s findings offact are reviewed for clear error; its conclusions of laware reviewed de novo. United States v. Avants, 367 F.3d 433, 441 (5th Cir. 2004). For preindictment delay to violate due process, the accused must show both that the delay “was intentionally brought about by the Government for the purpose ofgaining some tactical advantage over the accused in the contemplated prosecution or for some other bad faith purpose” and that thedelay “caused actual, substantial prejudice to his defense.” United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc). Proctor argues that the Government’s bad faith “is evident from the fact that theGovernment had all theevidence to prosecute” approximately four years and nine months before filing the indictment. Proctor cannot rely solely on the passage oftime to establish bad faith or improper purpose. See, e.g. Crouch, 84 F.3d at 1510 (the statute oflimitations, not the due process clause, provides the primary protection against pre-indictment delay). Instead, the Due Process Clause requiresdismissal ofan indictment filed within thestatuteoflimitations only if the defendant shows that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage. Id. at 1510. Proctor hasfailed to point toanything in the record that shows the Government delayed the indictment to gain such a tactical advantage, and we reject his invitation to infer bad faith simply from the fact of the delay. In addition, Proctor has not shown that he was actually prejudiced by the pre-indictment delay. Proctor contends that he was prejudiced because his brother, Yogi, was no longer available to testify. However, Proctor does notNo. 07-60011

2 Proctor alleges in hisbriefthat thedistrict court’sdenial ofthe motion in an unwritten order was“particularly erroneousin light ofthefact that Mr. Proctor moved, in thealternative, for discovery on the issue ofpre-indictment delay.” This court has rejected the notion that an assertion ofpre-indictment delay automatically triggers the right to discovery and a hearing. See United States v. Mulderig, 120 F.3d 534, 540 (5th Cir. 1997). We have held that “an in camera inspection by a district judge is a reasonable procedure and is protective of the defendant’s rights.” I d. (internal quotations and citations omitted). Proctor presents no argument to this court regarding theadequacy or inadequacy ofany in camera inspection that may have been conducted. 6 allege that Yogi’s testimony would have been exculpatory or that it would have aided the defense. See United States v. Bezborn, 21 F.3d 62, 66 (5th Cir. 1994) (rejecting defendant’sclaim ofprejudice from unavailability of a witness because of defendant’s failure to show that the witness’s testimony would have been exculpatory). Therefore, Proctor has failed to show he was actually prejudiced, and we reject his contention that the pre-indictment delay violated his right to due process under the Fifth Amendment. 2 B. Admission of Tape-Recording of 911 Call Proctor also argues that the use of the tape-recorded 911 call at his trial

was a violation ofhis Sixth Amendment right to confrontation under Crawford

v. Washington, 541 U.S. 36 (2004). He asserts that the tape-recording contained inflammatory and highly prejudicial information that should have been excluded because it was testimonial in nature. Specifically, he contests the admission of the following statements made by Yogi: (1) Proctor “took the gun out of my car belong [sic] to someone else;” (2) “y’all knowhim real good;” (3) “he’s been in the penitentiary;” and (4) “he’s on cocaine.” Because Proctor objected to the admission ofthe 911 tape on confrontation grounds, this court reviews his claim of error de novo. See, e.g., United States v. Fields, 483 F.3d 313, 326 (5th Cir. 2007).The Sixth Amendment to the Constitution states that in all “criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him.” U.S. CONST

. A MEND

. VI. In Crawford v. Washington,No. 07-60011

7 the Supreme Court held that the right to confrontation bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for crossexamination.” 541 U.S. at 53-54. The Court declined to provide a comprehensive definition of “testimonial,” but noted that a testimonial statement “istypically a solemn declaration or affirmation madefor the purpose ofestablishing or proving some fact” and “includes statements that were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for later use at trial.” Id. at 51-52 (citations omitted). In Davisv. Washington, 126 S. Ct. 2266, 2276 (2006), the Supreme Court considered whether an interrogation that occurred during a 911 call produced testimonial statements. The Court held that “[s]tatements are nontestimonial when made in the course ofpolice interrogation under circumstancesobjectively indicating that the primary purpose of the interrogation is to enable police assistanc

e to meet an ongoing emergency.” I d. Conversely, statements “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove pasteventspotentially relevant tolater criminal prosecution.” Id. T he Court noted that a 911 call “is ordinarily not designed primarily to

establish or prove some past fact, but to describe current circumstances requiring police assistance.” I d. However, the Court cautioned that a conversation which begins as an interrogation to determine the need for emergency assistancecan “evolve intotestimonial statementsonce that purpose has been achieved.” I d. at 2277. The Court then examined the 911 call in question, and held that the trial court’s admission of the 911 recording did not violate the Confrontation Clause. The Court noted that: (1) the caller was describing the events as they were happening; (2) the caller was facing anNo. 07-60011

8 ongoing emergency; (3) the nature of what was asked and answered was necessary to resolve the present emergency rather than learn what happened in the past; and (4) the caller’s answerswere frantic. In conclusion, the Court held that the circ

umstances of the interrogation on the 911 recording indicate that the caller was not testifying as a witness, but rather was enabling police assistance to meet an ongoing emergency. Id. Viewing thefactsofthiscase in light ofDavis, Yogi’sstatementstothe911 operator were nontestimonial. Yogi’s call to 911 was made immediately after Proctor grabbed the gun and fired it twice. During the course of the call, he recounts what just happened, gives a description of his brother, indicates his brother’s previous criminal history, and the fact that his brother may be under the influence of drugs. All of these statements enabled the police to deal appropriately with the situation that was unfolding. The statements about Proctor’s possession of a gun indicated Yogi’s understanding that Proctor was armed and possibly dangerous. The information about Proctor’s criminal history and possible drug use necessary for the police to respond appropriately to the

emergency, as it allowed the police to determine “whether they would be encountering a violent felon.” I d. at 2276. Proctor argues that the emergency had already passed, because he had run away with theweapon at the timeofthe 911 call and, therefore, the 911 conversation was testimonial. It is hard to reconcile this argument with the facts. During the 911 call, Yogi reported that he witnessed his brother, a felon possibly high on cocaine, run offwith a loaded weapon into a nightclub. This was an ongoing emergency–not one that had passed. Proctor’s retreat into the nightclub provided no assurances that he would not momentarily return toconfront Yogi and Fairley. Further, Yogi could have reasonably feared that the people inside the nightclub were in danger. Overall, a reasonable viewing of the 911 call is that Yogi and the 911 operator

were dealing with an ongoing emergency involving a dangerous felon, and thatNo. 07-60011

9 the 911 operator’s questions were related to the resolution of that emergency. Because the tape-recording of the 911 call is nontestimonial, it does not implicate Proctor’s right to confrontation, and its admission was not in error. See United Statesv. Thomas, 453 F.3d 838, 844 (7th Cir. 2006) (concluding that tape-recordi ng of 911 call from an anonymous caller is nontestimonial and, therefore, does not implicate the Confrontation Clause). III. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED.