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USA v. Randell Thomas, 04-2063.  Thomas appeals his felon in possession of ammunition conviction, 18 USC 922 (g)(1).  At trial, the government played a 911 call   Thomas argues that the playing of the 911 tape violated his Sixth Amendment right to confrontation. 

The Sixth Amendment right to confrontation only applies to the admission of testimonial statements. What distinguishes testimonial from non testimonial statements was recently addressed by the US Supreme Court in Davis v. Washington, 547 USA ____(US June 19, 21006).

Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. 

Statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose of the police interrogation is to establish or prove past events potentially relevant to later criminal prosecutions. 

In short, testimonial statements require cross-examination.  Since the 911 call was not testimonial, the primary purpose was to enable police assistance to meet an ongoing emergency, the 7th Circuit found that the playing of the 911 tape is OK.

USA v. Auzio Hewlett and Alfred Gray, 05-2532 & 05-2583.   Hewlett and Gray appeal their conspiracy to distribute cocaine convictions, 21 USC 841, 846, after a jury trial. 

This is an extremely fact intensive appeal. 

First, Hewlett and Gray state that was an impermissible variance between the charged conspiracy and the proof at trial.  In short, Hewlett and Gray argue that there was not one big conspiracy but three small ones.  Unfortunately, an impermissible variance argument is treated as a sufficiency of evidence argument by the 7th Circuit.  Here, the 7th Circuit finds that there was enough evidence to convict Hewlett and Gray of conspiracy.  Further, the 7th Circuit finds that Hewlett and Gray were not prejudiced by charging one conspiracy instead of three. 

Hewlett and Gray also appeal the answering of a jury question by the district judge.  Instead of answering a simple yes or no question, the district judge gives a supplemental instruction to the jury. 

Supplemental instructions are  reviewed by the 7th Circuit for abuse of discretion.  The 7th Circuit asks:  1.  Does the supplemental instruction fairly and adequately treat the issue? 2.  Is the instruction a correct statement of the law? and 3.  Did court answer the question specifically?”  The 7th Circuit is troubled by the use of the supplemental instruction in this situation.  In the future they advise a simple yes or no answer.  In the end, the 7th Circuit finds as a whole that the supplemental instruction met the above requirements. 

For more about attorney Michael J. Petro, visit