[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 19

- 13963
Non

- Argument Calendar

____________________
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

____________________ USCA11 Case: 19-13963 Date Filed: 10/21/2021 Page: 1 of 72 Opinion of the Court 19

- 13963

Before W ILLIAM P RYOR , Chief Judge, J ORDAN , and G RANT , Circuit Judges.
PER CURIAM: Jumar Sims appeals his convictions for two counts of distribu ting a substance containing a detectable amount of heroin, 21 U.S.C. § 841(a)(1) , (b)(1)(C) , and for one count of possessin g with intent to distribute more than 50 grams of methamphetamine

. id

. § 841(a)(1) , (b)(1)(A), (b)(1)(C)

. Sims challenges the admi ssion of conversations he had with a confidential source as v iolat ing his right to confront witnesses under the Sixth Amendment

. U.S. Const. amend. VI

. We affirm.

A gents of the Alabama Law Enforcement Agency e mploy ed Cedric Lipscomb, a confidential source, to make three controlled drug purchase s from Sims

. The agents initiated telephone calls for Lipscomb to Sims, which were recorded. The agents also provid e d Lipscomb recording devices that h e used during his transactions with Sims. The agents also surveilled and searched Lipscomb before and after the drug transaction s

. 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 v ideo camera in his vehicle,

w hich recorded him ma king a telephone call to Sims, dr iving to meet Sims, and c ount ing c ash before Sims arrived . Lipscomb USCA11 Case: 19-13963 Date Filed: 10/21/2021 Page: 2 of 719

- 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 remov ing 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, th e video camera record e d Lipscomb calling an officer to

com plain about police surveillance during the transaction and turning over the camera and drugs to an officer

. Forensic test ing confirm ed 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 t o select a site to meet and then the officer s 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 off icers as he turned over the drugs that he bought from Sims

. T esting 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 arrang ed to meet Sims, and Sims responded, “Alright.” After Sims ’s arriv al in the parking lot of the store
, officers placed him under arrest and seized about one kilogram of methamphetamine from his vehicle. Lipscomb pass ed away at a later date

. USCA11 Case: 19-13963 Date Filed: 10/21/2021 Page: 3 of 74 Opinion of the Court 19

- 13963

After indictment
, Sims moved to suppress the video and audio recordings on the ground th ey contained testimonial hearsay
, the admission of which would violate his rights under the Confrontation Clause

. The government respond ed that the recordings did not implicate the Clause because Lipscomb ’s statements were no n

hearsay and Sims’s statements were nontestimonial . The district

court adopted a magistrate judge’s recommendation to den y Sims’s motion for a “blanket exclusion” of the rec ordings 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 di strict
court tol d the jury that it would hear “ a couple of different recording s ” containing “ the voice of

. . . a confidential source ” and a second voice who “ the government [] . . . contend [s]

. . . i s that of the defendant .” The district court instructe d 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 r ecording.” The district court also instructe d 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 acknowledge d that the instruction was “acceptable.”
Sims argues that the admission of the recordings violate d his right s under the Confrontation Clause , which is an issue we review USCA11 Case: 19-13963 Date Filed: 10/21/2021 Page: 4 of 719

- 13963 Opinion of the Court 5

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 stateme nts 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 S ims’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 t he 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

- of

court testimonial statements unless the declarant is unavailable to testify and the defendant had a pr ior 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 f

or use at a later trial.” Underwood , 446 F.3d at 1347. USCA11 Case: 19-13963 Date Filed: 10/21/2021 Page: 5 of 76 Opinion of the Court 19

- 13963

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 ( referencin g Bourjaily v. United States , 483 U.S. 171, 181

– 84 (1987)), we re “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 [we re ] being offered merely to show

co urse of investigation, background, or context” for its actions, b ut the government offered the recordings to assist the jury to understand Sims’s one

- word responses. T he 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 argue s the district court should have USCA11 Case: 19-13963 Date Filed: 10/21/2021 Page: 6 of 719

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assess e d “ each individual statement the Government [sought] to introduce
, ” b ut Sims had notice that he had to “mak[e] specific evidentiary objections at trial concerning individual statements in the recordings

. ” A nd he failed to do so.

We AFFIRM Sims’s conviction s. USCA11 Case: 19-13963 Date Filed: 10/21/2021 Page: 7 of 7