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Click here for the full text of this decision FACTS:On Aug. 4, 2001, Kendrick Fitzgerald Proctor, his brother Rodriguez “Yogi” Proctor and Bobby Fairley went to a nightclub together in Biloxi, Miss. Yogi had driven, and Fairley left his gun, a .38 special revolver, on the dashboard of Yogi’s car. Upon leaving the nightclub, Yogi introduced Fairley to Proctor, and all three walked to Yogi’s car. Yogi then opened the passenger door for Fairley, at which point Kenneth grabbed Fairley’s gun which was in plain view on the console of the car. Fairley protested that the gun belonged to him, but Kenneth began “cussing” and fired the gun twice into the ground near Fairley’s foot. Kenneth took off running with the gun. Yogi called 911 and reported that his brother had taken a gun and fired it twice into the ground, adding that he believed Proctor had run back into the nightclub. The police arrived on the scene and canvassed the area for Kenneth. An officer spotted Kenneth and pursued Kenneth on foot. Kenneth fired at the officer, and the officer fired back, striking Proctor. On May 11, 2006, authorities charged Kenneth in a three-count indictment with various firearms-related offenses under 18 U.S.C. ��922 and 924. On Aug. 10, 2006, Kenneth moved to dismiss the indictment under both Federal Rule of Criminal Procedure 48(b) and the due process clause of the Fifth Amendment, arguing that the government waited an unreasonable amount of time before bringing the prosecution. The district court denied the motion in an unwritten order. A one-day trial was held on Aug. 23, 2006. During the trial, the government offered into evidence a tape-recording of the 911 call made by Yogi. The tape contained the entire exchange between Yogi and the 911 operator. The government did not call Yogi as a witness at trial. Kenneth made a timely objection to the introduction of the tape-recording based on the confrontation clause, arguing that the 911 call was testimonial under the 2004 U.S. Supreme Court decision in Crawford v. Washington. The district court overruled the objection. The jury found Kenneth guilty on all counts, and the district court sentenced him to 135 months of imprisonment. HOLDING:Affirmed. First, Kenneth argued was that the government’s May 2006 indictment for crimes that occurred nearly five years earlier violated his Fifth Amendment due process rights and, therefore, the district court should have granted his motion to dismiss the indictment. Kenneth, the court stated, could not rely solely on the passage of time to establish bad faith or improper purpose. Instead, the court stated that the due process clause required dismissal of an indictment filed within the statute of limitations only if the defendant showed that the government’s delay in bringing the indictment was a deliberate device to gain an advantage. Kenneth, the court stated, failed to point to anything in the record that shows the government delayed the indictment to gain such a tactical advantage. Thus, the court rejected his invitation to infer bad faith simply from the fact of the delay. In addition, the court found that Kenneth failed to show that he was actually prejudiced by the pre-indictment delay. Kenneth contended that he was prejudiced because his brother, Yogi, was no longer available to testify. The court noted, however, that Kenneth did not allege that Yogi’s testimony would have been exculpatory or that it would have aided the defense. Kenneth also argued that the use of the tape-recorded 911 call at his trial was a violation of his Sixth Amendment right to confrontation under Crawford. Kenneth asserted that the tape-recording contained inflammatory and highly prejudicial information that should have been excluded, because it was testimonial in nature. The court disagreed and found that Yogi’s statements to the 911 operator were nontestimonial. Yogi’s call to 911, the court stated, was made immediately after Proctor grabbed the gun and fired it twice. During the course of the call, he recounted what just happened, gave a description of his brother, indicated his brother’s previous criminal history and the fact that his brother may have been under the influence of drugs. The court found that the call enabled the police to deal appropriately with the situation that was unfolding. Because the tape-recording of the 911 call was nontestimonial, it did not implicate Proctor’s right to confrontation, and its admission was not in error, the court stated. OPINION:Per curiam; Garwood, Jolly and Stewart, JJ.

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