the Confrontation Clause. See United States v. Mayberry, 540 F.3d 506, 515 (6th Cir.2008). In determining whether statements are testimonial, we ask whether the declarant “intend[ed] to bear testimony against the accused.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004). This, in turn, depends on “whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.” Id. Because O’Reilly did not know that his statements were being recorded and because it is clear that he did not anticipate them being used in a criminal proceeding against Johnson, they are not testimonial, and the Confrontation Clause does not apply. See United States v. Johnson, 440 F.3d 832, 843 (6th Cir.2006) (<HOLDING>); see also United States v. Mooneyham, 473 F.3d
holding that bruton does not apply to nontestimonial codefendant statements holding that an unwitting declarants secretly recorded statements to a close friend were nontestimonial holding that driving records were nontestimonial holding statements by coconspirator nontestimonial and thus admissible holding declarants statements to 911 operator were not testimonial when defendant was still present during phone call