United States of America v. THOMAS HINTON aka JAMES KIRKLAND Thomas Hinton

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3803
UNITED STATES OF AMERICA
v.
THOMAS HINTON
aka JAMES KIRKLAND
Thomas Hinton,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 02-cr-00769
(Honorable Eduardo C. Robreno)
Argued November 18, 2004

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Judge Chertoff heard oral argument in this case but resigned*
prior to the time the opinion was filed. The opinion is filed by
a quorum of the panel. 28 U.S.C. § 46(d).
2
Before: SCIRICA, Chief Judge,
McKEE and CHERTOFF , Circuit Judges*
(Filed September 14, 2005 )
EDWARD C. MEEHAN, JR., ESQUIRE (ARGUED)
1420 Walnut Street, Suite 911
Philadelphia, Pennsylvania 19102
Attorney for Appellant
MAUREEN BARDEN, ESQUIRE (ARGUED)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
Thomas Hinton appeals from his conviction for
possession with intent to distribute cocaine base in violation of

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21 U.S.C. § 841(a)(1). Hinton contends the District Court
erroneously permitted the Government to offer as evidence out-
of-court statements made by a witness he never had an
opportunity to cross-examine, depriving him of his Sixth
Amendment right to confrontation.
This case requires us to determine whether the challenged
statements were “testimonial,” as that term is used in Crawford
v. Washington, 541 U.S. 36 (2004), a decision handed down
after trial but during the pendency of this appeal. We hold that
certain statements were improperly admitted, but that any error
was harmless. We will affirm the conviction and vacate his
sentence.
I.
Around 4 a.m. on the morning of August 5, 2001, a 911
operator received a call from a man later identified as Thomas
Mack. Mack claimed that an unknown person brandishing a gun
confronted him on the 600 block of North Brooklyn Street in
West Philadelphia and warned him not to return to the area.
Police Officers Brian Dillard and Albert Cain were
dispatched to the called-in location. Mack joined the officers in
their squad car and they drove around the area looking for the
assailant. On the block where Mack had been threatened, they
spotted Hinton and an unknown companion. Mack pointed to
the two men and stated “There you go.”

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4
The police approached in their vehicle, and the two men
immediately fled. Officer Cain left his car in pursuit of Hinton.
While giving chase, he observed Hinton drop an object that he
later testified appeared to be a gun. Officer Cain eventually
caught up with Hinton and arrested him. A subsequent search
revealed that Hinton was carrying thirty-seven packets of crack
cocaine along with $120, much of it in five-dollar bills. Officers
Cain and Dillard searched the area Hinton had fled and found a
loaded handgun near where Cain observed him dropping an
object. A second handgun was found near the area where
Hinton’s companion, who was never apprehended or identified,
had fled.
Hinton was indicted for possession with intent to
distribute cocaine base in violation of 21 U.S.C. § 841(a)(1),
possession of a firearm in furtherance of a drug trafficking
crime in violation of 21 U.S.C. § 924(c), and possession of a
firearm by a convicted felon in violation of 21 U.S.C. §
922(g)(1). Mack did not testify at Hinton’s trial. The
government never asserted he was unavailable to testify. But
the government sought to introduce Mack’s statements through
the testimony of Officers Dillard and Cain and the 911
recording. Hinton objected, citing the Confrontation Clause of
the Sixth Amendment to the Constitution. See U.S. Const.,
amend. VI, cl. 3. The District Court ruled that Mack’s
statements were admissible under the excited utterance
exception to the hearsay rule, see Fed. R. Evid. 803(2), but did

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5
not specifically address Hinton’s Confrontation Clause
argument.
The jury convicted Hinton of possession with intent to
distribute cocaine base but acquitted him of both firearms
charges. He was sentenced to 216 months in prison. Hinton
filed a timely appeal. We exercise jurisdiction under 28 U.S.C.
§ 1291.
II.
After Hinton’s conviction, the Supreme Court decided
Crawford v. Washington, 541 U.S. 36 (2004). The defendant in
Crawford was convicted of assault for stabbing a man who
allegedly tried to rape his wife. Over the defendant’s objections,
the trial court permitted the prosecution to play a tape-recorded
statement made by the defendant’s wife, who was otherwise
barred from testifying without her husband’s consent under the
state’s marital privilege. As a result, Crawford was never
permitted to cross-examine her about the statements she made
in the tape recording. The trial court nonetheless ruled that the
statement was admissible, finding it qualified as a statement
against penal interest, see Wash. R. Evid. 804(b)(3), and did not
violate Crawford’s Sixth Amendment rights. The Supreme
Court reversed the conviction, holding the statements made by
Crawford’s wife were inadmissible under the Sixth Amendment.
In so doing, the Court partially overruled Ohio v. Roberts,
448 U.S. 56 (1980), which had defined the scope of the
Confrontation Clause for the previous two decades. Under

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As we held in United States v. Trala, testimonial statements1
are admissible without prior cross-examination if they are not
offered for their truth. See 386 F.3d 536, 544 (3d Cir. 2004)
(“Crawford does not apply where the reliability of testimonial
evidence is not at issue[.]”) (emphasis in original). Furthermore,
the admission of non-testimonial hearsay is still governed by
Roberts. See Crawford, 541 U.S. at 68 (“Where nontestimonial
hearsay is at issue, it is wholly consistent with the Framers’
design to afford the States flexibility in their development of
hearsay law—as does Roberts, and as would an approach that
exempted such statements from Confrontation Clause scrutiny
6
Roberts, out-of-court statements bearing “adequate indicia of
reliability” were admissible if they either fell within a “firmly
rooted hearsay exception” or possessed other “particularized
guarantees of trustworthiness.” Id. at 66. After canvassing “the
historical background of the [Confrontation] Clause,” Crawford
concluded that the Roberts test was incompatible with the
origins of the right to confrontation. Crawford, 541 U.S. at 60.
According to Crawford, “the principal evil at which the
Confrontation Clause was directed was the civil-law mode of
criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused.” Id. at 50. Just
as the Sixth Amendment grants defendants the right to cross-
examine those who testify in court, it prohibits the admission of
out-of-court testimony unless “the declarant is unavailable, and
. . . the defendant has had a prior opportunity to cross-examine.”
Id. at 59.1

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altogether.”)
7
Thus, a “testimonial” statement is inadmissible absent a
showing that the declarant is unavailable and the defendant had
a prior opportunity for cross-examination, “regardless of
whether the statement at issue falls within a firmly rooted
hearsay exception or has a particularized guarantee of
trustworthiness.” United States v. Hendricks, 395 F.3d 173,
178-79 (3d Cir. 2005); see also Crawford, 541 U.S. at 56 n.7
(“Involvement of government officers in the production of
testimony with an eye toward trial presents unique potential for
prosecutorial abuse . . . . This consideration does not evaporate
when testimony happens to fall within some broad, modern
hearsay exception, even if that exception might be justifiable in
other circumstances.”). The threshold question in any
Confrontation Clause analysis, then, is whether the statement is
testimonial.
The Court’s use of the term “testimonial” as a limitation
on admission of out-of-court statements derives from its
definition of a “witness,” as that term is used in the Sixth
Amendment. The Sixth Amendment grants the accused in a
criminal trial the right “to be confronted with the witnesses
against him.” The term “witnesses,” the Court found in
Crawford, embraces all those who “bear testimony,” whether at
trial or outside the courtroom. Crawford, 541 U.S. at 51
(quoting 1 N. Webster, An American Dictionary of the English
Language (1828)). “Testimony,” in turn, is “[a] solemn

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declaration or affirmation made for the purpose of establishing
or proving some fact.” Id.
Although the Court expressly declined to “spell out a
comprehensive definition” of “testimonial,” id. at 68, it provided
some concrete examples of testimonial evidence. “Whatever
else the term covers, it applies at a minimum to prior testimony
at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.” Id. at 68. These examples “are
the modern practices with closest kinship to the abuses at which
the Confrontation Clause was directed.” Id.
Without endorsing one specific definition, Crawford also
referenced three different “formulations of this core class of
‘testimonial’ statements”: 1) “ex parte in-court testimony or its
functional equivalent—that is, material such as affidavits,
custodial examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially,”
id. at 51 (quoting Br. for Pet’r 23); 2) “extrajudicial statements
. . . contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions,” id. at
51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992)
(Thomas, J., concurring)); and 3) “statements that were made
under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for
use at a later trial,” id. (quoting Br. for Nat’l Assoc. of Criminal
Def. Lawyers et al. as Amici Curiae 3). These three definitions,
the Court found, “all share a common nucleus and then define

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9
the Clause’s coverage at various levels of abstraction around it.”
Id.
In the wake of Crawford, courts have grappled with the
meaning of testimonial hearsay. In United States v. Hendricks,
we explored the admissibility of surreptitiously recorded
conversations involving several defendants and a confidential
informant. 395 F.3d 173 (3d Cir. 2005). In that case, the
District Court found the statements were “testimonial” and
inadmissible. We reversed, finding the statements at issue
“neither fall within nor are analogous to any of the specific
examples of testimonial statements mentioned by the Court” and
“do not qualify as ‘testimonial’ under any of the three
definitions mentioned by the Court.” Id. at 181. We did not
articulate a definition of “testimonial.” But we noted that “the
very purpose of Title III intercepts is to capture conversations
that the participants believe are not being heard by the
authorities and will not be available for use in a prosecution.”
Id. As such, we found surreptitiously recorded conversations
more similar to “a casual remark” than a “formal statement.” Id.
(quoting Crawford, 541 U.S. at 51).
Hendricks did not require us to settle upon a definition of
testimonial. But underpinning our discussion of surreptitiously
recorded conversations was an appreciation of the third
formulation of “testimonial” offered by the Court in Crawford:
“statements that were made under circumstances which would
lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” In many

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10
instances, statements made to authorities for use in investigating
and prosecuting a crime constitute the type of statements which
lie at the core of the concern expressed by the Confrontation
Clause.
In these kinds of cases, we believe application of
Crawford’s third and broadest formulation of “testimonial” will
ensure compliance with the Confrontation Clause. We find the
Sixth Circuit’s reasoning instructive:
[This] broader definition “is necessary to ensure
that the adjudicative system does not effectively
invite witnesses to testify in informal ways that
avoid confrontation.” The Crawford Court found
the absence of an oath not to be determinative in
considering whether a statement is testimonial. .
. . [T]he danger to a defendant might well be
greater if the statement introduced at trial, without
a right of confrontation, is a statement
volunteered to police rather than a statement
elicited through formalized police interrogation.
One can imagine the temptation that someone
who bears a grudge might have to volunteer to
police, truthfully or not, information of the
commission of a crime, especially when that
person is assured he will not be subject to
confrontation. . . . If the judicial system only
requires cross-examination when someone has
formally served as a witness against a defendant,

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11
then witnesses and those who deal with them will
have every incentive to ensure that testimony is
given informally.
United States v. Cromer, 389 F.3d 662, 674-75 (6th Cir. 2004)
(internal citations omitted). Moreover, where an objective
witness reasonably anticipates that a given statement will be
used at a later trial, that statement is likely testimony in the sense
that it is offered to establish or prove a fact. See Crawford, 541
U.S. at 51. As such, absent unavailability and a prior
opportunity for cross-examination, it must be subjected to the
strictures of the Confrontation Clause. Id. at 68 (“Where
testimonial evidence is at issue, however, the Sixth Amendment
demands what the common law required: unavailability and a
prior opportunity for cross-examination.”)
The Court of Appeals for the Second Circuit has
reasoned similarly, finding that “the [Crawford] Court would
use the reasonable expectation of the declarant as the anchor of
a more concrete definition of testimony.” United States v.
Saget, 377 F.3d 223, 229 (2d Cir. 2004). And the Sixth Circuit
has adopted a similar definition of testimony: “The proper
inquiry, then, is whether the declarant intends to bear testimony
against the accused. That intent, in turn, may be determined by
querying whether a reasonable person in the declarant’s position
would anticipate his statement being used against the accused in
investigating and prosecuting the crime.” Cromer, 389 F.3d at
675; see also United States v. Summers, 414 F.3d 1287, 1302
(10th Cir. 2005) (“We conclude that the ‘common nucleus’

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present in the formulations which the Court considered centers
on the reasonable expectations of the declarant. It is the
reasonable expectation that a statement may be later used at trial
that distinguishes the flippant remark, proffered to a casual
acquaintance . . . from the true testimonial statement.”); United
States v. Pugh, 405 F.3d 390, 399 (6th Cir. 2005) (finding
declarant’s positive identification of defendant to be
“testimonial” because it was given during a police interrogation,
was made to a government officer, and because “any reasonable
person would assume that a statement that positively identified
possible suspects in a picture of the crime scene would be used
against those suspects in either investigating or prosecuting the
offense”); Horton v. Allen, 370 F.3d 75, 83-84 (1st Cir. 2004)
(defendant’s private conversation with friend, previously
admitted under state-of-mind exception, held to be non-
testimonial because it was private, did not involve formalized
documents, was not made under examination, and was not made
“under circumstances in which an objective person would
reasonably believe that the statement would be available for use
at a later trial”) (quotations omitted).
Accordingly, statements made under circumstances that
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial are
testimonial. In the absence of a showing that the declarant is
unavailable and that the defendant had an opportunity for cross-
examination, admission of such statements will violate the
Confrontation Clause of the Sixth Amendment.

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See Lopez v. State, 888 So. 2d 693, 700 (Fl. Dist. Ct. App.2
2004) (holding that accusation made by victim to police at the
scene of the crime was testimonial because declarant “surely
must have expected that the statement he made to [the officer]
might be used in court against the defendant. He knew [the
officer] was a policeman who was on the scene in an official
capacity to investigate a reported crime.”). Other state courts
have held that statements made at the scene of the crime are not
necessarily testimonial. See, e.g., Hammon v. State, 829 N.E.2d
444, 446 (Ind. 2005) (holding that “statements to investigating
officers in response to general initial inquiries are
13
III.
Hinton contends that Mack’s identification of Hinton
while in the police cruiser was testimonial under Crawford. We
agree. Mack’s statement falls within Crawford’s third
formulation of testimony—statements that would lead an
objective witness reasonably to believe the statement would be
available for use at trial.
Mack positively identified Hinton as his assailant to two
police officers, while riding in a police cruiser in pursuit of the
suspect. Mack made the statement with knowledge that the
officers were acting in their official capacity and investigating
the reported crime. An “objective witness” reasonably would
have believed that his identification (and accusation) to the
police in this context served the purpose of incriminating Hinton
and would be available for use at trial. Cf. Pugh, 405 F.3d at2

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nontestimonial but statements made for purposes of preserving
the accounts of potential witnesses are testimonial”);
Commonwealth v. Gray, 867 A.2d 560, 577 (Pa. Super. Ct.
2005) (holding that excited utterances made to the police by
witnesses at the scene of the crime were not testimonial because
the declarant is not subject to police interrogation and volunteers
the information in effort to remedy a “perceived emergency, not
to create a record against another for use in a future
prosecution”).
As a practical matter, the 911 call was less significant in3
light of Mack’s live testimony in the police cruiser.
14
399 (holding that positive identification of accused is
testimonial).
Mack’s statement constitutes testimony under Crawford.
Because there was no showing that Mack was unavailable and
that Hinton had an opportunity to cross examine him, its
admission was error.
IV.
Hinton also challenges the admission of Mack’s 911
telephone call, which was played for the jury. Hinton argues3
the telephone call is testimonial under Crawford and should not
have been admitted.
The most likely reason for a 911 call is for health or
safety, seeking assistance for the caller or other parties. But

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In exceptional circumstances there may be specific4
information bearing upon the caller’s motive to bear testimony
that might make application of Crawford’s third formulation
appropriate. See, e.g., Cromer, 389 F.3d at 675 (“One can
imagine the temptation that someone who bears a grudge might
have to volunteer to police, truthfully or not, information of the
commission of a crime, especially when that person is assured
he will not be subject to confrontation.”). We find such
circumstances absent in this case.
15
there may be other reasons to make a 911 call, such as providing
information to aid in the investigation and potential prosecution
of a crime.
We find less helpful Crawford’s third formulation of
“testimonial” in the context of Mack’s call to 911. Generally
911 calls do not provide detailed information about the caller.
Often 911 callers remain anonymous, confounding the court’s
ability to draw conclusions about whether an objective witness
in similar circumstances would have intended to bear testimony.
To the extent information is known, it is often that the caller is
the victim of a crime, seeking police assistance. See, e.g.,
Leavitt v. Arave, 383 F.3d 809, 830 n.22 (9th Cir. 2004)
(holding 911 call non-testimonial where the victim “sought [the
police’s] help in ending a frightening intrusion into her home”).4
This was the case here—Mack reported that someone had pulled

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In a recent decision, the Court of Appeals for the Eighth5
Circuit held that statements made during a 911 call were non-
testimonial. See United States v. Brun, 416 F.3d 703, 707 (8th
Cir. 2005). The court based its decision, in part, on observations
about statements in 911 calls: “[they occur] moments after the
criminal offense and under the stress of that event . . . [and] do
not fit within the definitions or the examples of ‘testimonial’
statements.” Id. (quotations omitted).
16
a gun on him, gave a description of his assailant, and asked for
police assistance.5
Nor do the other Crawford formulations of “testimonial”
seem to fit Mack’s statements. Mack’s statements made during
the 911 call neither fall within nor are analogous to any of the
specific examples of testimonial statements mentioned in
Crawford. Mack’s statements in his call were neither prior
testimony at a preliminary hearing, prior testimony before a
grand jury, prior testimony at a former trial, nor a police
interrogation. See Crawford, 541 U.S. at 68.
In our view, Mack’s statements during the 911 call were
non-testimonial and their admission, therefore, was not error.
V.
Our conclusion, however, does not end the analysis.
Because the decision to admit Mack’s statements in the police
cruiser was “simply an error in the trial process itself” rather
than a “structural defect affecting the framework within which

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the trial proceeds,” we may affirm if the error was harmless. See
Arizona v. Fulminante, 499 U.S. 279, 310 (1991); see also
United States v. Henry, 282 F.3d 242, 251 (3d Cir. 2002)
(harmless error analysis appropriate when defendant objects at
trial); Fed. R. Crim. P. 52(a).
As the government points out, Hinton was acquitted on
both firearms charges. Therefore, we must determine what
impact the erroneous admission of Mack’s statements had on the
jury’s decision to convict Hinton for drug possession with intent
to distribute. If we conclude beyond a reasonable doubt that the
jury verdict on the charge for possession with intent to distribute
would have been the same—had Mack’s statements not been
admitted—then we must affirm the conviction.
Mack never stated that he had observed drugs on Hinton
or suspected him to be engaged in selling drugs. The only
evidence presented was that Hinton, when arrested, was found
with thirty-seven packets of crack cocaine as well as numerous
five-dollar bills. A government expert, Philadelphia Police
Detective Christopher Lee, testified that such a large number of
packets is strong evidence of dealing rather than simple
possession, and that five dollars is the going price for a packet
of crack.
Nonetheless, Hinton argues that, because Detective Lee
testified that sellers of drugs frequently carry firearms, Mack’s
testimony may have contributed to the jury’s decision to convict
Hinton for drug possession with intent to distribute rather than

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simple possession. We disagree. There was credible evidence
that Hinton was carrying a gun, as two separate firearms were
found at the scene and Officer Cain testified that he observed
Hinton drop an object that appeared to be a gun.
Furthermore, we do not believe the same jury that
acquitted Hinton of the two gun charges nonetheless convicted
him of drug possession with intent to distribute based on its
belief that Hinton was carrying a gun. As Detective Lee
testified, gun possession is simply one indicator of drug dealing.
Other evidence provided much stronger support for the
prosecution’s contention that Hinton was a drug seller rather
than a mere drug user. Thirty-seven packets of cocaine together
with $120 in small bills were more than sufficient to prove
beyond a reasonable doubt that Hinton possessed drugs with the
intent to distribute. Therefore, admission of Mack’s statements
was harmless error.
VI.
Hinton challenges his sentence under United States v.
Booker, 543 U.S. - -, 125 S. Ct. 738 (2005). Having determined
that the sentencing issues Hinton raises are best determined by
the District Court in the first instance, we will vacate the
sentence and remand for resentencing in accordance with
Booker.

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VII.
For the reasons set forth, we will affirm Hinton’s
judgment of conviction. We will vacate his sentence and
remand for resentencing.

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