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 of theft 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 “Yogi” Proctor (“Yogi”)

and Bobby Fairley (“Fairley”) wentto a nightclub together in Biloxi, Mississippi.

Yogi had driven and Fairley left his gun, a .38 special revolver, on the dashboard

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2007

Charles R. Fulbruge III

Clerk
No. 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 of the 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 into evidence a tape-recording of the 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 STREET 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 GROUND
No. 07-60011

3

TWICE AND 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 REAL 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: BECAUSE THAT MY LITTLE BROTHER, YOU

KNOW HE COME TO MY CAR AND HE JUST TOOK

THE GUN AND I SAID MAN, GIVE THAT MAN

THAT 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 if the defendant has not been arrested. See

United States v. 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

WITH 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 rights and,therefore,the district court should

have granted his motion to dismiss the indictment. The district court’s findings

of fact are reviewed for clear error; its conclusions of law are 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 of gaining some

tactical advantage over the accused in the contemplated prosecution or for some

other bad faith purpose” and thatthe delay “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

thatthe Government had allthe evidence to prosecute” approximately four years

and nine months before filing the indictment. Proctor cannot rely solely on the

passage of time to establish bad faith or improper purpose. See, e.g. Crouch, 84

F.3d at 1510 (the statute of limitations, not the due process clause, provides the

primary protection against pre-indictment delay). Instead, the Due Process

Clause requires dismissal of an indictmentfiled within the statute of limitations

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

has failed to point to anything 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 not
No. 07-60011

2 Proctor alleges in his briefthatthe district court’s denial ofthe motion in an unwritten

order was “particularly erroneous in light ofthe factthat Mr. Proctor moved,in the alternative,

for discovery on the issue of pre-indictment delay.” This court has rejected the notion that an

assertion of pre-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.” Id. (internal quotations and citations omitted). Proctor presents no

argument to this court regarding the adequacy or inadequacy of any 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’s claim of prejudice 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 of his 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 know him real good;” (3) “he’s been in the

penitentiary;” and (4) “he’s on cocaine.” Because Proctor objected to the

admission of the 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. AMEND. 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“is typically a solemn declaration or affirmation made for the purpose

of establishing 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 Davis v. 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 of police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to enable police

assistance to meet an ongoing emergency.” Id. 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 past events potentially relevantto later criminal prosecution.”

Id. The 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.” Id. However, the Court cautioned that a

conversation which begins as an interrogation to determine the need for

emergency assistance can “evolve into testimonial statements once that purpose

has been achieved.” Id. 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 an
No. 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 answers were frantic. In conclusion, the Court held

that the circumstances 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 the facts ofthis case in light of Davis, Yogi’s statements to the 911

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.” Id. at 2276. Proctor argues that the emergency

had already passed, because he had run away with the weapon at the time ofthe

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 off with 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 to confront 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 that
No. 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 States v. Thomas, 453 F.3d 838, 844 (7th Cir. 2006) (concluding that

tape-recording 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.