United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
government charged defendant Gabriel Brown with bank robbery,
18 U.S.C. § 2113(a), and carrying a firearm during and
in relation to/possessing a firearm in furtherance of a crime
of violence, 18 U.S.C. § 924(c). The case is set for
trial on April 29, 2019, and the parties have filed several
motions in limine. I address herein the government's
motion in limine seeking admission of a 911 call.
government alleges that on December 4, 2018, defendant
entered the Landmark Credit Union, jumped over the teller
counter and took money, then fled the bank. Police responded
to a silent alarm and 911 call from the bank, and, using data
from a GPS tracker hidden in the stolen money, located
defendant, who led them on a high speed car chase, before
fleeing on foot. After defendant was taken into custody, the
police found a revolver on the driver's side floorboard
of the getaway car. As the parties have indicated in their
submissions and at previous hearings, the disputed issues for
trial will be whether the government can establish that
defendant took the money by means of
“intimidation” on the § 2113 count, and
whether the government can establish the necessary connection
between the firearm and the robbery on the § 924(c)
government seeks an order permitting it to play at trial the
911 call made after the robbery. The government argues that
the caller's statements constitute present sense
impressions, Fed.R.Evid. Evid 803(1), or excited utterances,
Fed.R.Evid. 803(2), and are thus exempt from the general rule
barring admission of hearsay, see Fed.R.Evid. 802.
The government further argues that the call was made in
response to an ongoing emergency and thus does not contain
“testimonial” statements for purposes of the
Confrontation Clause. See Davis v. Washington, 547
U.S. 813, 827 (2006). The government contends that the call
is substantive evidence that defendant committed the charged
offenses on December 4, 2018. Alternatively, the call could
be offered, not to prove the truth of the matters asserted,
but merely to provide background information on the events of
that day and to explain why the police responded. (R. 19 at
several reasons, I deny the government's motion.
the government fails to address the fact that the call
appears to contain hearsay within hearsay. See
Fed.R.Evid. 805; see also United States v. Borrasi,
639 F.3d 774, 780 (7th Cir. 2011) (“[C]ourts
may not permit the introduction of hearsay contained within
hearsay unless each layer is properly admitted under
an exception to Rule 802.”). At several points the
caller appears to ask others to provide information about the
robbery and the robber, which the caller then relays to the
911 dispatcher. Perhaps the statements from the others could
be admitted under the same hearsay Rules, but the government
has not attempted to make that showing.
given the fact that the caller relies on others for
information, it is unclear what, if anything, she personally
observed. See United States v. Boyce, 742 F.3d 792,
797 (7th Cir. 2014) (holding that for the present
sense impression exception to apply “the speaker must
have personally perceived the event or condition
described”). The excited utterance exception is
somewhat broader, see id. at 798, and the fact that
the caller answered questions, rather than giving a
spontaneous narrative, does not preclude application of that
exception, see United States v. Joy, 192 F.3d 761,
767 (7th Cir. 1999). Nevertheless, the context of
this call, in which there appears to be a relatively composed
exchange of information between the caller, others present on
the scene, and the 911 dispatcher, the level of excitement
necessary for admission under Rule 803(2) is lacking.
while the government seeks admission under Rules 803(1) and
(2), it fails to present a convincing argument on the basic
issue of relevance. See Fed.R.Evid. 401. As
indicated above, based on the parties' submissions and
statements at previous hearings, it will likely not be
disputed that on December 4, 2018, defendant entered the
bank, took money, and left, and that the police responded.
The persons inside the bank who witnessed defendant's
conduct can testify as to what they saw. The government does
not persuasively explain how playing a call relaying previous
statements about what these people saw would assist the jury.
Nor does the government explain why it is necessary to play
the call (rather than soliciting live testimony from
officers) in order to advise the jury of the police response.
Whatever marginal relevance the call may have is outweighed
by the danger of wasting time and needlessly presenting
cumulative evidence. See Fed.R.Evid.
IT IS ORDERED that the government's motion in
limine for pre-trial admission of 911 call (R. 19) is denied.