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Police testimony about a 911 call was inadmissible hearsay in U.S. v Nelson. The defendant’s conviction as a felon in possession of a firearm was reversed.

Police Officers’ Testimony about 911 Call Ruled Inadmissible

In U.S. v. Nelson, the defendant appealed his conviction for being a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g). This Sixth Circuit Court of Appeals opinion was released on August 7, 2013.

In 2009, two officers responded to an anonymous 911 call indicating that a black man with an afro was riding a bicycle and carrying a pistol. One officer arrived and conversed with the suspect who matched the description. After talking with the officers, he attempted to ride off on his bicycle. Then the defendant reached into his waistband and threw an object in the bushes. One officer believed the object to be a gun and followed the defendant who eventually fled on foot. The defendant was arrested and officers searched him and found bullets in his pockets. Officers then searched the bushes and found a loaded gun.

The defendant was charged with being a convicted felon in possession of a firearm under 18 U.S.C. § 922(g). He filed a pretrial motion to stop the government from sharing any testimony regarding the 911 caller’s description on the theory that this evidence was inadmissible hearsay. The district court denied the motion.

The main question at trial was whether the defendant possessed a gun. The district court allowed the government to introduce the testimony of five officers, telling details of what the dispatcher described about the suspect. The court accepted the argument that this was admissible as background information. However, the court also gave the jury a limiting instruction after the testimony. The defendant was convicted and sentenced to 84 months in prison.

The evidence should not have been used

On appeal, the defendant challenged the sufficiency of the evidence and argued that police officer testimony regarding the 911 dispatch call, which was prejudicial hearsay, should not have been admitted. The Court found that the police testimony about the call was offered to prove the truth of the statements made, that the defendant had a gun, instead of merely showing background. Therefore the evidence should not have been used because of the Federal Rules of Evidence (FRE) 801(c)(2) and 802.

The Court stated that it would have been sufficient for the jury to hear a basic statement describing that the officers received a 911 call without the caller’s description, which would have avoided the prejudicial effect while still providing the jury with background information to show why the police acted as they did.

The Court further found the admission of the hearsay was not harmless because the error more probably than not materially affected the resulting verdict. Five different officers testified, inviting the jury to find that man who matched the defendant’s exact description of who was spotted holding a gun. This was prejudicial because it went to the core of the only disputed issue for the jury to resolve. Moreover, the limiting instructions did not cure the prejudice in this case.

Therefore, the Court stated the admission of the hearsay alone required reversal. Although the Court indicated there was sufficient evidence to support the verdict. Additionally, it noted that the district court correctly denied the defendant’s motion to suppress the gun and ammunition and his proposed jury instruction concerning police negligence.

In conclusion, the judgment was vacated and the case remanded for further proceedings.

The attorneys at The Kronzek Firm PLC, defend federal gun charges statewide.

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