Officer's Testimony That Non-Testifying CI Identified Defendant at Crime Scene Violated Confrontation Clause, Error Not Harmless

United States v. Rodriguez-Martinez, No. 05-11384 (5th Cir. Jan. 12, 2007) (per curiam) (Garwood, Dennis, Owen)*

Officer Cedillo was running a CI. The CI made arrangements with "Jorge," over the course of several phone conversations, for delivery of 15 kilos of cocaine. "Officer Cedilo listened to some of the calls through the informant's speaker-phone." Jorge called the CI on the agreed-upon date of delivery, and told the CI that he was in a gray minivan with his girlfriend at a Denny's. The police, along with the CI, set up surveillance on the Denny's. They saw Rodriguez and three others get into the minivan and drive off. An officer pulled over the van and ultimately found 12 kilos of cocaine in hidden compartments in the van.

Rodriguez was charged with possession of more than 5 kilos of cocaine with intent to distribute (21 U.S.C. §§ 841(a)(1), (b)(1)(A)). The trial evidently centered on whether Rodriguez was "Jorge."

[Officer Cedillo] testified that he had “substantial contact and time to listen to [Jorge’s] voice” and that Rodriguez-Martinez’s voice “sound[ed] similar to the voice that belonged to Jorge on the other end of the cell phone.” Over hearsay and Confrontation Clause objections, Officer Cedillo testified that the informant pointed to Rodriguez-Martinez in the Denny’s parking lot and said, “[T]hat’s Jorge, the guy I’ve been talking to.”

Slip op. at 3.

Rodriguez pressed the Confrontation Clause issue on appeal, arguing that Officer Cedillo's testimony about the CI's out-of-court identification was testimonial hearsay barred by Crawford v. Washington. The Government conceded that point, so the more significant issue was whether the error was harmless. The court held that it was not:

The informant’s out-of-court statement was the only evidence that definitively identified Rodriguez-Martinez as the drug source. Only one other witness, Officer Cedillo, testified that Rodriguez-Martinez “sounded similar” to the drug source. Other circumstantial evidence connects Rodriguez-Martinez to the drug source, but Rodriguez-Martinez presented a “logically possible and not implausible account” for this evidence because it also points to Alberto Mendoza as the drug source. The scales simply do not tip in favor of the Government on the record before us. Since the informant’s identification of Rodriguez-Martinez as the drug source was particularly important to the Government’s case, we declineto interpret any adverse influence its admission had on the jury as harmless beyond a reasonable doubt. Accordingly, Rodriguez-Martinez is entitled to a new trial.

Slip op. at 8.

Rodriguez also argued that the evidence was insufficient to support his conviction. The court disagreed, holding that the evidence was sufficient even without the out-of-court ID. So Rodriguez gets a new trial instead of a judgment of acquittal.

*It appears that the court granted Rodriguez's motion to publish this originally unpublished opinion.