[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-13963

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JUMAR D. SIMS, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:18-cr-00353-LSC-JEO-1

____________________

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2 Opinion of the Court 19-13963

Before WILLIAM PRYOR, Chief Judge, JORDAN, and GRANT, Circuit 

Judges.

PER CURIAM:

Jumar Sims appeals his convictions for two counts of distributing a substance containing a detectable amount of heroin, 21 

U.S.C. § 841(a)(1), (b)(1)(C), and for one count of possessing with 

intent to distribute more than 50 grams of methamphetamine. id.

§ 841(a)(1), (b)(1)(A), (b)(1)(C). Sims challenges the admission of

conversations he had with a confidential source as violating his 

right to confront witnesses under the Sixth Amendment. U.S. 

Const. amend. VI. We affirm.

Agents of the Alabama Law Enforcement Agency employed 

Cedric Lipscomb, a confidential source, to make three controlled 

drug purchases from Sims. The agents initiated telephone calls for 

Lipscomb to Sims, which were recorded. The agents also provided

Lipscomb recording devices that he used during his transactions 

with Sims. The agents also surveilled and searched Lipscomb before and after the drug transactions.

On January 10, 2018, Lipscomb called Sims, who responded 

“yes” when asked if he could sell Lipscomb an “onion ring or something” after he dropped off his nephew at school the next morning. 

The next day, Lipscomb activated a video camera in his vehicle, 

which recorded him making a telephone call to Sims, driving to 

meet Sims, and counting cash before Sims arrived. Lipscomb 

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19-13963 Opinion of the Court 3

covered the camera when Sims entered the car, but the speaker on 

the camera recorded their discussion about testing drugs. Lipscomb uncovered the camera to show him removing the knot on 

a plastic bag containing a white substance while the sound of 

money being counted could be heard in the background. After 

Sims left, the video camera recorded Lipscomb calling an officer to

complain about police surveillance during the transaction and turning over the camera and drugs to an officer. Forensic testing confirmed that Sims sold Lipscomb 26.7 grams of heroin.

On February 6, 2018, Lipscomb called Sims and stated that 

he would get some money and “come that way tomorrow,” to 

which Sims replied, “Alright.” Officers recorded two telephone 

calls that Lipscomb made to Sims to select a site to meet and then

the officers affixed a recording device to Lipscomb’s clothing. The 

camera on the device malfunctioned, but the speaker on the camera recorded two telephone calls in which Sims changed the site for 

their drug transaction, a short, unintelligible conversation between 

the two men inside Lipscomb’s car, and Lipscomb’s conversation 

with officers as he turned over the drugs that he bought from Sims.

Testing confirmed that Sims sold Lipscomb 27.9 grams of heroin.

On February 22, 2018, Lipscomb recorded a telephone call 

in which he stated he was driving to a Home Depot store where he 

had arranged to meet Sims, and Sims responded, “Alright.” After 

Sims’s arrival in the parking lot of the store, officers placed him under arrest and seized about one kilogram of methamphetamine 

from his vehicle. Lipscomb passed away at a later date.

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After indictment, Sims moved to suppress the video and audio recordings on the ground they contained testimonial hearsay, 

the admission of which would violate his rights under the Confrontation Clause. The government responded that the recordings did 

not implicate the Clause because Lipscomb’s statements were nonhearsay and Sims’s statements were nontestimonial. The district 

court adopted a magistrate judge’s recommendation to deny Sims’s 

motion for a “blanket exclusion” of the recordings and gave him

leave to “mak[e] specific evidentiary objections at trial concerning 

individual statements in the recordings.”

During trial, the district court granted Sims’s request for a 

limiting instruction on the contents of the recordings. The district 

court told the jury that it would hear “a couple of different recordings” containing “the voice of . . . a confidential source” and a second voice who “the government[] . . . contend[s] . . . is that of the 

defendant.” The district court instructed the jury that the statements of “the confidential source is . . . not in and of itself being 

offered for the truth of what the confidential source said” and instead was “offered to set up or explain . . . the answer that other 

individual is giving on the recording.” The district court also instructed the jury that, “[i]f you believe that the other individual is 

the defendant . . ., then you are free to . . . take [his statements] as 

being offered for the truth of the matter asserted.” Sims acknowledged that the instruction was “acceptable.”

Sims argues that the admission of the recordings violated his 

rights under the Confrontation Clause, which is an issue we review 

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de novo. See United States v. Underwood, 446 F.3d 1340, 1345 

(11th Cir. 2006). He also argues that Lipscomb’s statements constitute inadmissible hearsay, which is an evidentiary issue we review 

for abuse of discretion. Id. We address these arguments in reverse.

The district court did not abuse its discretion by classifying 

Lipscomb’s statements as non-hearsay. Hearsay is an out-of-court 

statement made by a declarant that is offered to prove the truth of 

the matter asserted in the statement. Fed. R. Evid. 801(c). Lipscomb’s statements were offered, not for their truth, but to give

context to Sims’s one-word responses. As the district court explained to the jury, Lipscomb’s statements provided “the question 

. . . to understand the answer” from Sims.

Sims argues that the admission of the recordings violated his 

right under the Sixth Amendment as an “accused . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI.

The Confrontation Clause prohibits the introduction of out-ofcourt testimonial statements unless the declarant is unavailable to 

testify and the defendant had a prior opportunity to cross-examine 

the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). 

“Testimony . . . is typically a solemn declaration or affirmation 

made for the purpose of establishing or proving some fact.” Id. at 

51 (internal quotation marks omitted). A declarant “bears testimony” when he makes a statement “under circumstances which 

would lead [him] to believe that the statement would be available 

for use at a later trial.” Underwood, 446 F.3d at 1347.

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The district court did not err by admitting the recorded conversations between Sims and Lipscomb. Because Lipscomb’s statements were offered to make Sims’s responses understandable, the 

statements were admissible as serving a “purpose other than establishing the truth of the matter asserted,” Crawford, 541 U.S. at 59 

n.9. See United States v. Price, 792 F.2d 994, 997 (11th Cir. 1986);

United States v. Augustin, 661 F.3d 1105, 1128 (11th Cir. 2011). And 

the statements Sims “made unwittingly” to Lipscomb as a government informant, see Crawford, 541 U.S. at 58 (referencing Bourjaily v. United States, 483 U.S. 171, 181–84 (1987)), were “clearly 

nontestimonial,” Davis v. Washington, 547 U.S. 813, 825 (2006). 

Sims spoke freely without a reasonable belief that “his statement[s] 

would be available for use at a later trial.” See Underwood, 446 F.3d 

at 1347. Admission of the recordings did not violate Sims’s rights 

under the Confrontation Clause.

Sims also challenges the admission of the recordings on two 

fact-specific grounds, both of which fail. First, Sims argues that the 

district court “simply accept[ed] the Government’s assurances that

[the] out-of-court statements [were] being offered merely to show 

course of investigation, background, or context” for its actions, but

the government offered the recordings to assist the jury to understand Sims’s one-word responses. The district court also instructed 

the jury to consider Lipscomb’s statements “to set up or explain . . . 

[Sims’s] answer,” and we “presume that the jury followed those instructions,” United States v. Roy, 855 F.3d 1133, 1187 (11th Cir. 

2017) (en banc). Second, Sims argues the district court should have 

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assessed “each individual statement the Government [sought] to 

introduce,” but Sims had notice that he had to “mak[e] specific evidentiary objections at trial concerning individual statements in the 

recordings.” And he failed to do so.

We AFFIRM Sims’s convictions. 

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