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
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.
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.
No. 07-60011
A. Motion to Dismiss the Indictment Proctor's first point of error is that the Government's May 2006 indictment for crimes