IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20397

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee, 

v. 

PERENEAL KIZZEE, 

 Defendant–Appellant. 

Appeal from the United States District Court

for the Southern District of Texas 

Before JONES, SMITH, and PRADO, Circuit Judges. 

EDWARD C. PRADO, Circuit Judge:

Defendant–Appellant Pereneal Kizzee was charged with possession of 

ammunition and firearms by a convicted felon (count one), possession of a 

controlled substance with intent to deliver (count two), and possession of a 

firearm during and in relation to a drug trafficking crime (count three). Kizzee 

pleaded not guilty. At trial, the Government’s key witness was Detective Lance 

Schultz. The prosecutor asked Detective Schultz about questions he posed to a 

criminal suspect, Carl Brown, during an interrogation. In response to 

Detective Schultz’s questions, Brown inculpated Kizzee for distributing 

narcotics. But Brown did not otherwise testify, and he was not subject to crossexamination at trial. Kizzee objected based on hearsay and the Confrontation 

United States Court of Appeals

Fif h Circuit

FILED

December 15, 2017

Lyle W. Cayce

Clerk

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Clause, which the district court overruled. A jury found Kizzee guilty on all 

three counts. On appeal, Kizzee argues that the prosecutor’s questions and 

Detective Schultz’s testimony effectively admitted Brown’s out-of-court 

statements in violation of the Confrontation Clause and the rules on hearsay. 

Because we find that the prosecutor’s questioning of Detective Schultz 

admitted testimonial hearsay in violation of the Confrontation Clause, we 

VACATE Kizzee’s conviction for counts two and three and REMAND for a new 

trial.

I. BACKGROUND

On February 4, 2014, Detective Schultz and his partner, Detective Justin 

Lehman, were conducting surveillance at 963 Trinity Cut Off Drive in 

Huntsville, Texas (the “building” or “house”).1 The officers had previously 

received information suggesting that drugs were being sold at that location, 

and they were aware that Defendant Kizzee was frequently seen there during 

the day. During their surveillance, the officers observed Carl Brown arrive at 

the house, speak with Kizzee on the porch, and depart after two to three 

minutes. Suspecting that Brown had purchased drugs from Kizzee, the officers 

contacted Officer Taylor Wilkins and requested he follow Brown in order to 

develop probable cause and conduct a traffic stop.

Officer Wilkins testified at trial that he stopped Brown after observing a 

traffic violation. Officer Wilkins ordered Brown to exit the vehicle and 

requested permission to search his person, which Brown granted. After 

searching Brown, Officer Wilkins discovered a bag containing 0.54 grams of 

crack cocaine inside the liner of his cap. Officer Wilkins arrested Brown and 

transported him to the police department. At the police department, Detective 

 

1 The structure at 963 Trinity Cut Off Drive was approximately 600 or 700 square 

feet. Although, there were no bedrooms and no kitchen in the structure, it is sometimes 

referred to as Kizzee’s residence or house.

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Schultz questioned Brown. In response to Detective Schultz’s questions, Brown 

stated that he purchased the narcotics found in his hat from Kizzee, and he 

had purchased drugs from Kizzee on previous occasions. Although Brown had 

served as a reliable informant for Schultz in the past, Brown later recanted his 

statements to Detective Schultz, denied implicating Kizzee, and indicated he 

did not want to testify.

After Detective Schultz questioned Brown, he obtained a search warrant 

for the building at 963 Trinity Cut Off Drive. On February 5, 2014, Officer 

Wilkins executed the search warrant with the assistance of other officers, 

including Agent Jared Yates. When the officers arrived, Kizzee opened the 

front door and peeked out of the doorway. Kizzee then shut and locked the door. 

The officers forced their way into the building within 45 seconds, and they 

found Kizzee in the bathroom filling the toilet with water from a five-gallon 

jug. Detective Schultz ordered Kizze to “show me your hands and get on the 

ground.” Kizzee looked at Detective Schultz, but continued to pour water into 

the toilet bowl until Schultz grabbed Kizzee and arrested him. Kizzee was 

removed from the house, searched, and placed in the back of a patrol unit. 

The officers thoroughly searched the house and surrounding grounds. 

The officers took apart the plumbing associated with the toilet and searched 

the pipes, but found no evidence of narcotics. Ultimately, the search yielded 

less than a gram of crack cocaine, $1,183 in Kizzee’s front pockets, two rifles, 

and ammunition. According to Agent Yates, the search of the house revealed

no evidence of crack cocaine use, nothing consistent with drug distribution, and 

no proof that Kizzee destroyed any evidence. The officers found a clear plastic 

bag containing 0.2 grams of crack cocaine in the overflow of the bathroom sink. 

They also found a microwave and several Pyrex dishes and plastic bowls on the 

bathroom shelves. Detective Schultz testified that a Pyrex dish and two plastic 

bowls contained a white residue on them, but Jennifer Hass, the Government’s 

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expert witness, testified that no controlled substance was detected on these 

items. Two .22 caliber rifles were found in the corner of a room in the building. 

The officers also found several surveillance cameras still wrapped in plastic in 

the box, and a safe containing a money counter. Two additional rifles were 

found in a metal shed behind the building. The officers found three mobile 

phones in the house. One phone contained two missed calls from Brown’s phone 

number, and one outgoing call to Brown’s mobile phone. The calls were all 

made before Brown appeared at Kizzee’s house on the day Brown was arrested.

The phone also contained a text message warning of Brown’s arrest.

Kizzee was arrested and charged with possession of ammunition and 

firearms by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (count one), 

possession of a controlled substance with intent to deliver in violation of 21 

U.S.C. §§ 841(a)(1) and 841 (b)(1)(C) (count two), and possession of a firearm 

during and in relation to a drug trafficking crime in violation of 18 U.S.C. 

§ 924(c)(1)(A) (count three). Kizzee pleaded not guilty to all three counts.

After unsuccessfully challenging the validity of the search warrant, 

Kizzee stood trial. During Detective Schultz’s testimony for the Government, 

the prosecutor inquired about Detective Schultz’s questioning of Brown:

Prosecutor: Detective Schultz, did you ask Mr. Brown a series of 

questions after you arrived at the police department?

[Schultz]: Yes, sir, I did.

Prosecutor: Did you ask Mr. Brown whether or not he obtained the 

narcotics that were discovered in his hat from Pereneal Kizzee?

[Schultz]: Yes, sir, I did.

Prosecutor: Did you ask him if he obtained the narcotics that were 

discovered in his hat immediately prior to being stopped?

[Schultz]: Yes, sir.

Prosecutor: Did you ask Mr. Brown whether or not he had seen any 

additional narcotics at 963 Trinity Cut Off?

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[Schultz]: Yes.

. . .

Prosecutor: Did you ask him whether or not he obtained drugs from 

Mr. Kizzee on previous occasions?

[Schultz]: Yes, sir.

Prosecutor: Based on your observations the day before that 

involved the surveillance at Mr. Kizzee’s residence, the stop by 

Officer Taylor [Wilkins], the discovery of narcotics, and your 

subsequent interview of Mr. Brown, what did you and Detective 

Lehman do?

[Schultz]: I was able to obtain a search warrant for 963 Trinity Cut 

Off.

Defense counsel objected to this line of questioning based on hearsay and the 

Confrontation Clause, which the district court overruled.

The jury found Kizzee guilty on all three counts. The court sentenced 

him to 130 months of imprisonment, consisting of 70 months each as to counts 

one and two, running concurrently, followed by a consecutive term of 60 

months as to count three. Kizzee timely filed a notice of appeal.

II. DISCUSSION

A. Confrontation Clause Violation

On appeal, Kizzee argues that Detective Schultz’s testimony implicitly 

introduced Brown’s out-of-court statements in violation of the Sixth 

Amendment Confrontation Clause and hearsay rules.2 Kizzee properly raised 

a Confrontation Clause objection, thus preserving his claim of error. See United 

States v. Polidore, 690 F.3d 705, 710 (5th Cir. 2012). This Court “review[s] the 

alleged violation of the Confrontation Clause de novo, subject to a harmless 

error analysis.” Id. (citing United States v. Bell, 367 F.3d 452, 465 (5th Cir. 

 

2 The Confrontation Clause and hearsay rules are not coextensive, but they do overlap. 

See Crawford v. Washington, 541 U.S. 36, 51, 53 (2004). This opinion focuses on the 

Confrontation Clause analysis to the extent it is dispositive.

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2004)). The Government has the burden of “defeating [a] properly raised

Confrontation Clause objection by establishing that its evidence is nontestimonial.” United States v. Duron–Caldera, 737 F.3d 988, 993 (5th Cir. 2013)

(alteration in original) (quoting United States v. Jackson, 636 F.3d 687, 695 & 

n.4 (5th Cir. 2011)).

The Confrontation Clause of the Sixth Amendment provides that “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to be confronted 

with the witnesses against him.” U.S. Const. amend. VI. The Confrontation

Clause 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 []

a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 

36, 53–54 (2004). The Supreme Court has defined “testimony” as “[a] solemn 

declaration or affirmation made for the purpose of establishing or proving some 

fact.” Id. at 51 (alteration in original) (citation omitted). But “the Confrontation 

Clause ‘does not bar the use of testimonial statements for purposes other than 

establishing the truth of the matter asserted.’” Williams v. Illinois, 132 S. Ct. 

2221, 2235 (quoting Crawford, 541 U.S. at 59–60 n.9). “Police officers cannot, 

through their trial testimony, refer to the substance of statements given to 

them by nontestifying witnesses in the course of their investigation, when 

those statements inculpate the defendant. When the statement from an out-ofcourt witness is offered for its truth, constitutional error can arise.” Taylor v. 

Cain, 545 F.3d 327, 335 (5th Cir. 2008). We thus examine three issues: first, 

whether the prosecutor’s questioning, combined with Detective Schultz’s 

testimony, introduced a testimonial statement; second, whether the statement 

was offered for its truth, i.e., to show Kizzee’s guilt; and third, whether Brown 

was unavailable to testify and Kizzee had a prior opportunity to cross examine 

him.

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1. Testimonial Statement

We begin our analysis by examining whether the court admitted the 

testimonial statement of a witness who did not appear at trial. Crawford, 541 

U.S. at 53–54. “[A] statement is testimonial if its ‘primary purpose . . . is to 

establish or prove past events potentially relevant to later criminal 

prosecution.’” Duron–Caldera, 737 F.3d at 992–93 (quoting Davis v. 

Washington, 547 U.S. 813, 822 (2006)). Brown’s statements made to Detective 

Schultz while under interrogation by law enforcement are unquestionably 

testimonial hearsay. See Crawford, 541 U.S. at 53 (classifying “interrogations 

by law enforcement” as testimonial hearsay). In Crawford, the Court explained 

that “[s]tatements taken by police officers in the course of interrogations are 

also testimonial under even a narrow standard.” Crawford, 541 U.S. at 52; see 

also Taylor, 545 F.3d at 335–36. The Court reinforced this view in Davis where 

it stated that “[t]he product of [police] interrogation, whether reduced to a 

writing signed by the declarant or embedded in the memory . . . of the 

interrogating officer, is testimonial.” 547 U.S. at 826.

Instead, the Government argues that no statement made by Brown was 

ever introduced at trial, and Detective Schultz testified only as to his own 

observations. After objecting to Detective Schultz’s testimony regarding 

Brown’s interrogation based on hearsay and the Confrontation Clause, counsel 

approached the bench to discuss Brown’s status as a nontestifying witness. The 

prosecutor justified his questioning of Schultz by arguing that “hearsay is an 

out-of-court statement. You are not going to hear this witness utter one single 

word that Carl Brown replied in response to any of the questions. It can’t 

possibly be hearsay.” The Government adopts this argument on appeal, 

arguing that “[n]o statement made by Brown was offered for its truth;” the only 

testimonial statements offered to the jury were Detective Schultz’s own 

statements. 

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This Court has recognized that police testimony about the content of 

statements given to them by witnesses are testimonial under Crawford; 

officers cannot refer to the substance of statements made by a nontestifying 

witness when they inculpate the defendant. See Taylor, 545 F.3d at 335; Favre 

v. Henderson, 464 F.2d 359, 362 (5th Cir. 1972). Where an officer’s testimony 

leads “to the clear and logical inference that out-of-court declarants believed 

and said that [the defendant] was guilty of the crime charged,” Confrontation 

Clause protections are triggered. Favre, 464 F.2d at 364. In Favre, we reasoned 

that “[a]lthough the officer never testified to the exact statements made to him 

by the informers, the nature of the statements . . . was readily inferred.” Id. at 

362. Officer testimony regarding statements made by witnesses is thus 

inadmissible where it allows a jury to reasonably infer the defendant’s guilt.

Similarly, a prosecutor’s questioning may introduce a testimonial statement 

by a nontestifying witness, thus implicating the Confrontation Clause. See 

United States v. Johnston, 127 F.3d 380, 393–95. (5th Cir. 1997); Favre, 464 

F.2d at 364; c.f. Gochicoa v. Johnson, 118 F.3d 440, 445–46 (5th Cir. 1997), cert 

denied, 522 U.S. 1121 (1998). This is true where “the jury would reasonably

infer that information obtained in an out of court conversation between a 

testifying police officer and an informant . . . implicated a defendant in 

narcotics activity.” Johnston, 127 F.3d at 395. 

Here, Detective Schultz’s testimony introduced Brown’s out-of-court 

testimonial statements by implication. At trial, the prosecutor asked Detective 

Schultz the specific questions he posed to Brown, and the content of this 

testimony implicitly revealed Brown’s statements. See Taylor, 545 F.3d at 336. 

Officer testimony that allows a fact-finder to infer the statements made to 

him—even without revealing the content of those statements—is hearsay if 

“offered to establish identification, guilt, or both.” Favre, 464 F.2d at 362. The

prosecutor’s questions explicitly identified Kizzee by name, linking him to the 

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substance of Brown’s interrogation. In fact, the prosecutor’s questions 

appeared designed to elicit hearsay testimony without directly introducing 

Brown’s statements. Brown’s statements were testimonial because they were 

made under interrogation, and the primary purpose of that interrogation was 

to establish “past events potentially relevant to later criminal prosecution.” 

Davis, 547 U.S. at 822. Brown identified Kizzee as his drug source. Although 

the Government did not introduce the exact statements made by Brown’s, the 

nature of his statements was readily inferred.

The Government cites two cases in support of its argument that no 

statement by Brown was introduced at trial: United States v. Flores, 286 F. 

App’x 206 (5th Cir. 2008); United States v. Lopez-Moreno, 420 F.3d 420 (5th 

Cir. 2005). But these cases are inapposite; they address whether the admission 

of non-assertive conduct by a nontestifying witness triggered a defendant’s 

Confrontation Clause rights. It is true, as the Government argues, that where 

the content of a statement is not disclosed, the Confrontation Clause may not 

be violated. See United States v. Castro–Fonseca, 2011 WL 1549213 (5th Cir. 

Feb. 1, 2011); Foy v. Donnelly, 959 F.2d 1307, 1312–13 (5th Cir. 1992). The

Sixth Amendment protection is not triggered where the content of out-of-court 

statements is not revealed, and the statements at issue do not imply a 

defendant’s guilt. See Castro–Fonseca, 2011 WL 1549213, at *2; Foy, 959 F.2d

at 1313. But in this case, Detective Schultz’s testimony conveyed critical 

substance about Brown’s statements, inculpating Kizzee by name and 

implying his guilt in the crime charged. 

The Government’s argument also disregards the fact that a prosecutor’s 

questions may trigger the Confrontation Clause by revealing to the jury that a 

nontestifying witness conveyed incriminating information. See Johnston, 127 

F.3d at 394. The question in this case is not whether Detective Schultz 

explicitly introduced Brown’s out-of-court statements, but whether Brown’s 

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out-of-court statements were readily inferred from Detective Schultz’s 

testimony. See, e.g., Taylor, 545 F.3d at 336; United States v. RodriguezMartinez, 480 F.3d 303, 308 (5th Cir. 2007); Favre, 464 F.2d at 362. This 

approach is consistent with the law of other circuits. See United States v. 

Meises, 645 F.3d 5, 21 (1st Cir. 2011) (“If what the jury hears is, in substance, 

an untested, out-of-court accusation against the defendant, particularly if the 

inculpatory statement is made to law enforcement authorities, the defendant’s 

Sixth Amendment right to confront the declarant is triggered.”); Ocampo v. 

Vail, 649 F.3d 1098, 1108 (9th Cir. 2011) (“[I]n-court descriptions of out-ofcourt statements . . . are ‘statements’ and can violate the Confrontation 

Clause, if the requisite requirements are otherwise met.”); Ryan v. Miller, 303 

F.3d 231, 249 (2d Cir. 2002) (“If the substance of the prohibited testimony is 

evident even though it was not introduced in the prohibited form, the 

testimony is still inadmissible.”); Mason v. Scully, 16 F.3d 38, 43 (2d Cir. 1994) 

(“The fact that the content of [the co-conspirator’s] statement to [the detective] 

was not revealed in detail was immaterial, for the plain implication that the 

prosecutor sought to elicit . . . was that the conversation . . . led the police to 

focus on [the defendant].”).

The content of Brown’s statements could be readily inferred from the 

prosecutor’s questions and Detective Schultz’s testimony. Detective Schultz’s 

testimony revealed the substance of Brown’s statements inculpating Kizzee, 

leading to the clear and logical inference that Brown believed and said that 

Kizzee was the source of his drugs. Thus, the prosecutor’s questioning of 

Detective Schultz introduced testimonial statement for purposes of the 

Confrontation Clause.

2. Statement Offered for its Truth

Next, we consider whether Brown’s statements introduced at trial 

through Detective Schultz’s testimony were offered for their truth: to prove 

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Kizzee’s guilt in the crime charged. The Confrontation Clause does not apply 

to out-of-court statements offered into evidence for a purpose other than 

establishing the truth of the matter asserted. See Williams, 132 S. Ct. at 2235; 

Crawford, 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 

(1985)); Taylor, 545 F.3d at 335. 

The Government argues that Schultz’s statements were limited to his 

own knowledge and actions, and they explained the basis for obtaining a 

warrant. According to the Government, Detective Schultz is permitted to 

testify about what he saw, what happened to Brown on February 4, and 

Schultz’s actions based on what he learned from Brown and other sources. The 

Government characterizes Detective Schultz’s testimony as follows: 

The substance of Schultz’s testimony was that he saw Brown 

arrive at Kizzee’s, buy drugs, and then leave. Immediately after 

that, Brown was arrested and found in possession of drugs. Schultz 

and Lehman obtained a search warrant and found drugs, drug 

paraphernalia, ammunition, firearms at Kizzee’s house the next 

day. This is what Schultz saw and heard on February 4 and 5, 

rather than inadmissible hearsay.

Thus, according to the Government, Brown’s statements were not offered to 

show Kizzee’s guilt, but for a constitutionally permissible, nonhearsay purpose. 

Kizzee argues that a reasonable jury could only have understood Schultz’s 

testimony to communicate that Brown identified Kizzee as his drug source. 

Because the prosecutor’s implicit statements suggested Kizzee’s guilt and were 

not necessary to explain Schultz’s actions, we find that Detective Schultz’s 

testimony introduced Brown’s statements for their truth.

Testifying officers may provide context for their investigation or explain 

“background” facts. See United States v. Smith, 822 F.3d 755, 761 (5th Cir. 

2016). Such out-of-court statements are not offered for the truth of the matter

asserted therein, but instead for another purpose: to explain the officer’s 

actions. See Castro–Fonseca, 2011 WL 1549213, at *2; United States v. Carrillo, 

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20 F.3d 617, 619 (5th Cir. 1994). These statements often provide necessary 

context where a defendant challenges the adequacy of an investigation. But 

absent such claims, there is a questionable need for presenting out-of-court 

statements because the additional context is often unnecessary, and such 

statements can be highly prejudicial. See 2 McCormick on Evidence § 249 (7th 

ed. 2013) (citation omitted) (“The need for this evidence is slight, and the 

likelihood of misuse great.”). Statements exceeding the limited need to explain 

an officer’s actions can violate the Sixth Amendment—where a nontestifying 

witness specifically links a defendant to the crime, testimony becomes 

inadmissible hearsay. See Taylor, 545 F.3d at 335; Johnston, 127 F.3d at 394 

(“The more directly an out-of-court statement implicates the defendant, the 

greater the danger of prejudice.”); United States v. Evans, 950 F.2d 187, 191 

(5th Cir. 1991); United States v. Hernandez, 750 F.2d 1256, 1257 (5th Cir. 

1985); United States v. Gomez, 529 F.2d 412, 416-17 (5th Cir. 1976); see also 

United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). Questions by 

prosecutors can also trigger Confrontation Clause violations. See Johnston, 127 

F.3d at 402–03; Favre, 464 F.2d at 362–64; Meises, 645 F.3d at 21–23. A 

prosecutor may violate the Confrontation Clause by introducing an out-of-court 

statement, even indirectly, if offered for its truth by suggesting a defendant’s 

guilt. See Johnston, 127 F.3d at 394–95. In Hernandez, 750 F.2d at 1257–58. 

In this case, the prosecutor’s questions and Detective Schultz’s 

subsequent testimony exceeded the scope required to explain Detective 

Schultz’s actions. Detective Schultz’s testimony left the jury with the 

impression that Brown’s statements were instrumental in obtaining a search 

warrant. While Detective Schultz no doubt observed this interrogation, his 

observations cannot serve as a justification to circumvent constitutional 

protections; testimony introducing out-of-court statements by a nontestifying 

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witness can result in a violation of the Confrontation Clause.3 Admitting 

testimony regarding Brown’s interrogation was not necessary to explain 

Detective Schultz’s actions; there was minimal need for Detective Schultz to 

explain the details forming the basis of the search warrant. Detective Schultz 

could have merely explained that he obtained a warrant to search Kizzee’s 

property following Brown’s arrest. In fact, the Government’s characterization 

of Detective Schultz’s testimony on appeal does just this, omitting that the 

prosecutor questions Detective Schultz regarding Brown’s interrogation. 

Detective Schultz’s testimony was not limited to merely explaining his 

actions; it showed that Brown bought drugs from Kizzee, and Kizzee had more

at the house. Testimony regarding questions posed to Brown was not 

necessary. Other circumstantial evidence and Detective Schultz’s observations 

would have been sufficient to explain his investigatory actions and provide 

background information. Thus, Brown’s out-of-court statements inculpating 

Kizzee were introduced for their truth—to show Kizzee’s guilt in the crime 

charged.

3. Unavailable Witness and Prior Opportunity to Cross-Examine

Even if a testimonial statement is admitted against a defendant at a 

criminal trial, the Sixth Amendment is not violated if both the declarant is 

unavailable to testify and the defendant had a prior opportunity to crossexamine him or her. Crawford, 541 U.S. at 53–54. The Government suggests 

that Kizzee had an opportunity to cross-examine Brown because he could have 

 

3 In support of its argument, the Government offers two cases holding that law 

enforcement officers may testify about their own observations. See United States v. Potwin, 

136 F. App’x 609 (5th Cir. 2005); United States v. Gauthier, 2001 WL 85819 (5th Cir. Jan. 15, 

2001). These cases are inapposite; neither involves law enforcement officer testimony 

regarding the substance of statements made in the course of interrogation. See Potwin, 136 

F. App’x at 611; Gauthier, 2001 WL 85819, at *1. In this case, Detective Schultz questioned 

Brown, and Brown provided answers in the form of statements, implicating Kizzee.

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called him as a witness by subpoenaing him. The Government argues that it 

offered to stay the trial while he did so, but Kizzee refused. Thus, according to 

the Government, Kizzee had a prior opportunity to cross-examine Brown. The 

Government also repeatedly suggests that cross-examining Detective Schultz 

was sufficient because this case does not involve statements by out-of-court 

declarants; Schultz was a witness against Kizzee, he was present at trial, and 

he was subject to cross-examination. On the other hand, Kizzee argues that 

Brown’s statements were admitted at trial, and he questions Brown’s 

credibility as a witness. He further contends that it should not be incumbent 

on the defense to produce witnesses for the Government; to suggest otherwise 

misunderstands the burden of proof in a criminal case. 

We agree. The fact that a defendant could call a witness cannot fairly 

constitute a prior opportunity to cross-examine that witness. Otherwise, a 

prosecutor could introduce hearsay statements by any available witness 

merely by proposing that the defense could call them instead. Even if Kizzee 

had a prior opportunity to examine Brown, Brown was not unavailable as 

defined by the Federal Rules of Evidence. See Fed. R. Evid. 804(a) (listing 

criteria for being unavailable as a witness). In fact, the Government concedes 

that “Brown was not unavailable as a witness. The United States had 

subpoenaed Brown, but elected not to call him.” The Government did not offer 

any reason why it did not elect to call Brown as a witness, only that it was “not 

interested in having [Brown].” Finally, a police officer’s testimony is no 

substitute for a nontestifying declarant and does not cure a Sixth Amendment 

violation. See Davis, 547 U.S. at 826; Ocampo, 649 F.3d at 1113. Thus, we find 

that Kizzee’s Sixth Amendment right to confront adverse witnesses at trial was 

violated by Detective Schultz’s testimony when the prosecutor implicitly 

introduced Brown’s out-of-court statements.

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B. Harmless Error

Kizzee argues that the error in admitting Brown’s statements in 

violation of the Confrontation Clause and hearsay rules was not harmless. 

According to Kizzee, he was not permitted to cross-examine Brown about his 

out-of-court statements, which were critical to the Government’s case. Kizzee 

similarly questions the reliability of Brown as a witness. Kizzee also argues 

that no other witness in this case could provide testimony from personal 

knowledge about Kizzee’s drug sales. The Government only argues that Kizzee 

cannot show that the admission of hearsay affected his substantial rights.

Confrontation Clause violations and errors in the admission of hearsay 

evidence are subject to review for harmless error. Polidore, 690 F.3d at 710; 

United States v. El-Mezain, 664 F.3d 467, 494 (5th Cir. 2011). A defendant 

deprived of the right to confront adverse witnesses is entitled to a new trial 

unless the Government proves harmless error beyond a reasonable doubt. 

Duron–Caldera, 737 F.3d at 996; Rodriguez-Martinez, 480 F.3d at 308. 

Harmless error means that “there is [no] reasonable possibility that the 

evidence complained of might have contributed to the conviction.” Chapman v.

California, 386 U.S. 18, 24 (1967). We find that the Government failed to show 

that the statements did not contribute to Kizzee’s conviction beyond a 

reasonable doubt.4 This Court considers five factors when evaluating whether 

an error was harmless: (1) “the importance of the witness’ testimony in the 

prosecution’s case,” (2) “whether the testimony was cumulative,” (3) “the 

 

4 Kizzee was convicted of three counts: possession of ammunition and firearms by a 

convicted felon in violation of 18 U.S.C. § 922(g)(1) (count one), possession of a controlled 

substance with intent to deliver in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C) (count 

two), and possession of a firearm during and in relation to a drug trafficking crime in violation 

of 18 U.S.C. § 924(c)(1)(A) (count three). The testimonial statements at issue in this case 

pertained to Kizzee’s role in distributing a controlled substance, implicating counts two and 

three. The statements were not relevant to count one. Kizzee’s conviction for possession of 

ammunition and firearms by a convicted felon is thus undisturbed by our ruling. 

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presence or absence of evidence corroborating or contradicting the testimony 

of the witness on material points,” (4) “the extent of cross-examination 

otherwise permitted,” and (5) “the overall strength of the prosecution’s case.”

Duron–Caldera, 737 F.3d at 996 (citations omitted).

The Government referenced Detective Schultz’s testimony and Brown’s 

interrogation in its closing statement. The importance of testimony to the 

prosecution’s case can be underscored if it is referenced in closing statements. 

United States v. Alvarado-Valdez, 521 F.3d 337, 342–43 (5th Cir. 2008) (“Our 

task would be difficult were it not for the government’s insistent reliance on 

the testimony in its closing argument, in light of which we cannot say the error 

was harmless.”). Brown’s statements also secured a search warrant for Kizzee’s 

property. And they were crucial to establishing that Kizzee intended to sell or 

distribute the 0.2 grams of crack found in the house. With evidence that Brown 

obtained the drugs from Kizzee, the Government could establish Kizzee as a 

drug dealer rather than possessor. No other testimony was presented to 

connect Kizzee to Brown as the source of Brown’s drugs. See RodriguezMartinez, 480 F.3d at 308 (finding harmful error where an informant’s out-ofcourt statement was the only evidence definitively identifying defendant as the 

drug source). And Brown was not presented as a witness at trial; Kizzee did 

not have a prior opportunity to cross-examine a key witness for the 

Government whose testimony was vital to the Government’s case. Yet Brown 

was available as a witness; the Government subpoenaed Brown, but did not 

offer any reason for not electing to call him. 

While other circumstantial evidence implicated Kizzee and corroborated

Brown’s out-of-court statements, we find this evidence is insufficient to show 

harmless error beyond a reasonable doubt. Detective Schultz testified that the 

Kizzee’s property was known for drug transactions, and he regularly saw drug 

traffickers at the address in question. He also observed Brown briefly speak to 

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Kizzee at the address, and he identified their interaction as a drug transaction 

based on his experience. After stopping and searching Brown, another officer 

found Brown to be in possession of crack cocaine. Schultz also testified that 

Kizzee was present at the house, and cell-phone logs linked Kizzee to Brown. 

Kizzee was found with $1,183 in his front pockets. Officers also found guns and 

ammunition in the house, as well as apparently new surveillance cameras. But 

other evidence on the record contradicts Brown’s statements. Only 0.2 grams 

were found in the house, less than the 0.54 grams found on Brown’s person. 

Dishes found in the house had no evidence of any controlled substance when 

tested. And other officers testified that nothing was found in Kizzee’s house 

that was consistent with using or distributing narcotics. There was also no 

evidence recovered to indicate that Kizzee destroyed any evidence in the house. 

This circumstantial evidence offered by the Government is inconclusive at best, 

and the prejudice caused by the prosecutor’s improper questioning is more 

likely to have contributed to Kizzee’s conviction. Thus, the Government’s has 

not shown beyond a reasonable doubt that the admission of Brown’s 

statements was harmless error.

As Kizzee argues, no other witness in this case could provide testimony 

from personal knowledge that Kizzee sold drugs. Brown’s testimony was 

crucial to establishing Kizzee’s guilt. But Kizzee questions Brown’s credibility 

as a witness, and Brown denies ever making the statements attributed to him 

in the warrant application. The only remaining evidence establishing Kizzee 

as a drug dealer was circumstantial. And the remaining circumstantial 

evidence does not appear to be enough to show that “there is [no] reasonable 

possibility that the evidence complained of might have contributed to the 

conviction.” Chapman, 386 U.S. at 24. Thus, we conclude that the violation of 

Kizzee’s Sixth Amendment right was not harmless.

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III. CONCLUSION

For the foregoing reasons, we find that the introduction of Brown’s outof-court statements through the prosecutor’s questioning of Detective Schultz 

admitted testimonial hearsay in violation of the Confrontation Clause. As a 

result, we VACATE Kizzee’s conviction for counts two and three and REMAND 

for a new trial.

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