Mere Presence Not Enough to Sustain Conviction

U.S. v. Summers, 2005 WL 1694031 (7/21/05) - In a Judge Browning case, a reversal for insufficiency of the evidence and the first substantive 10th application of Crawford with a good holding for future cases but of no help to the co-defendant. Following an exegesis on what the improper "piling inference upon inference" means, the 10th holds the government failed to prove the defendant's participation in a bank robbery where the only evidence against the defendant was his presence with the other bank robbers in an apartment where the proceeds were sorted and in a car fleeing the police some time after the robbery. Mere presence, proximity and association is not enough.

The 10th found violative of Crawford the admission of a co-defendant's statement to the police after the officers stopped the fleeing car and arrested the occupants: "How did you guys find us so fast?" First, the 10th found the confrontation clause argument was preserved by counsel's repeated complaints that he couldn't cross-examine the declarant, even though counsel did not explicitly say: "Confrontation Clause." [The words "Confrontation Clause" should immediately follow any hearsay objection to make sure the constitutional issue is preserved!!!]. Second, the question was an assertion the government was attempting to prove the truth of because the declarant's intent was to make an assertion about guilt and wonderment at the ability of the police to apprehend the robbers so quickly, and not exclusively to learn about modern methods of law enforcement. Finally, the statement was testimonial and thus covered by Crawford. A reasonable person in the declarant's position would objectively foresee that his statement might be used in the investigation or prosecution of a crime. Crawford is not limited to formal interrogations. The statement was "loosely akin" to a confession. But, the admission error was harmless beyond a reasonable doubt, given the strength of the government's evidence and the minimal use of the statement by the government.