Appellate Brief

OPINIONS BELOW

The decision of the United States District Court for the Eastern District of Boerum is unreported. The opinion of the United States Court of Appeals for the Fourteenth Circuit is also unreported.

CONSTITUTIONAL PROVISIONS AND STATUTES

The texts of the following constitutional provisions are reproduced in Appendix A: U.S. Const. amend. IV; U.S. Const. amend. V; and U.S. Const. amend. VI.

The texts of the following federal statutes are reproduced in Appendix B: 18 U.S.C. § 371 (2005); 18 U.S.C. § 844(i) (2005); 18 U.S.C. § 2339A (2005); and 18 U.S.C. § 3731 (2005).

STANDARDS OF REVIEW

Where a trial court makes a ruling as a matter of law, the standard of review is de novo. United States v. Gaviria, 116 F.3d 1498, 1531 (D.C. Cir. 1997). Alleged violations of the Sixth Amendment's Confrontation Clause are also reviewed de novo. Lilly v. Virginia, 527 U.S. 116, 136-37 (1999). Likewise, Fifth Amendment questions of self-incrimination are reviewed de novo. United States v. Frazier, 394 F.3d 612, 617 (8th Cir. 2005).

STATEMENT OF THE CASE

Statement of Facts

Respondent, Jordan Dey, is an FBI-suspected terrorist. (R. at 14, 31). On February 21, 2003, Respondent brutally beat his girlfriend and roommate of three years, Vegas Sheridan. (R. at 4, 10, 30). He punched Ms. Sheridan in the face repeatedly and threw her directly into a glass cabinet. (R. at 9). As a result of this violent assault Ms. Sheridan was rendered unconscious, and suffered massive bleeding, a concussion, and two broken ribs. (R. at 9, 33).

The assault occurred because Respondent was upset that Ms. Sheridan had confronted him with portions of his diary indicating that he was planning to commit arson and destroy property that night on behalf of Earth Freedom Unite (EFU). (R. at 4, 34).

Approximately 20 minutes after the assault, Ms. Sheridan regained consciousness and immediately phoned 911 for medical assistance. (R. at 11, 30, 33). Sobbing hysterically, Ms. Sheridan desperately requested help from the 911 operator, Douglas Bishop. (R. at 30). Ms. Sheridan described her condition and provided Mr. Bishop and an EMS Medic with her address for the ambulance. (R. at 30-33). In describing the circumstances of the event, Ms. Sheridan mentioned the diary and indicated that Respondent was currently carrying out his plan to commit arson at Turbo Motors. (R. at 32, 34). The record reveals that throughout the phone conversation Ms. Sheridan was hysterical and her thoughts were incomplete and disjointed. (R. at 30-35).

After the call, Mr. Bishop contacted the office of the Deputy Commissioner of Communications pursuant to the department's "Code Green" program. (R. at 14, 20, 37). Under that program, an alert would appear on an operator's screen when a call was received from a suspected terrorist. (R. at 14). If such an alert appeared, the operator was instructed to treat the call like any other, and then to report it to the Deputy Commissioner upon completion of the call. (R. at 15, 37).

Mr. Bishop also contacted the police and fire departments to alert them of the possible arson in progress. (R. at 20). Unfortunately, when the officers arrived at Turbo Motors they discovered that approximately 20 SUVs had been destroyed by fire. (R. at 4). Respondent was not at the dealership when the officers arrived. (R. at 8). However, he was discovered and arrested a month later at a motel in the Sierra Neila mountains where he was staying under an assumed name. (R. at 8).

Ms. Sheridan is currently unavailable as a witness having died in June 2003, from complications associated with cosmetic surgery unrelated to the injuries she sustained on February 21, 2003. (R. at 41 n.3).

Procedural History

On May 15, 2003, a Grand Jury for the United States District Court for the Eastern District of Boerum charged Respondent with one count of conspiracy to commit arson under 18 U.S.C. § 371, one count of arson under 18 U.S.C. § 844(i), and one count of providing material support to terrorists under 18 U.S.C. § 2339A. (R. at 4-5, 40-41).

On March 15, 2003, a hearing was held in the United States District Court for the Eastern District of Boerum. (R. at 6). At the hearing, the court heard two pre-trial motions on behalf of Respondent: a motion in limine seeking to preclude the admission of the recorded 911 call between Ms. Sheridan and Mr. Bishop and a motion to quash a subpoena duces tecum ordering Respondent to produce his diary. (R. at 7). On March 22, 2003, the district court decided both motions in Respondent's favor. (R. at 28).

On June 16, 2004, the United States of America brought an interlocutory appeal before the United States Court of Appeals for the Fourteenth Circuit pursuant to 18 U.S.C. § 3731, appealing the district court's ruling against the Government on the motion in limine and the motion to quash the subpoena duces tecum. (R. at 38). The court affirmed the district court's decision, ruling, in part, that the statements fail as a matter of law to qualify as excited utterances. (R. at 43). The Fourteenth Circuit also found the statements to be barred by the Confrontation Clause under Crawford v. Washington. (R. at 45). The court further upheld the district court's decision to quash the subpoena duces tecum, finding that Boyd v. United States still governed with respect to the Fifth Amendment's Self-Incrimination Clause. (R. at 49). Accordingly, the court found that the compelled production of Respondent's diary was unconstitutional. (R. at 48).

The United States of America then petitioned for a writ of certiorari to the United States Supreme Court. (R. at 56). On October 6, 2004, this Court granted certiorari. (R. at 56).

SUMMARY OF THE ARGUMENT

This Honorable Court should reverse the United States Court of Appeals for the Fourteenth Circuit and hold that statements made by a domestic violence victim to a 911 operator just 20 minutes after the violent incident do not fail as a matter of law to qualify as excited utterances under Federal Rule of Evidence 803(2). In deciding whether a statement is an excited utterance, courts must determine whether the statement was the product of reflective thought, or, conversely, whether it was made under the stress of the startling event. Naturally, that determination is fact-intensive, so courts apply a totality-of-the-circumstances test and take into consideration a multitude of factors. Two of the many factors courts consider are: 1) the time

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