Filed: Apr. 20, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 20, 2004 For the Fifth Circuit Charles R. Fulbruge III Clerk No. 03-60253 United States of America Plaintiff-Appellee, v. J.D. Bell Defendant-Appellant. No. 03-60254 United States of America Plaintiff-Appellee, v. Charles Cotton Defendant-Appellant. Appeals from the United States District Court For the Northern District of Mississippi, Aberdeen Before DeMOSS, DENNIS and PRADO, Circuit Judges. DeMOSS, Circ
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 20, 2004 For the Fifth Circuit Charles R. Fulbruge III Clerk No. 03-60253 United States of America Plaintiff-Appellee, v. J.D. Bell Defendant-Appellant. No. 03-60254 United States of America Plaintiff-Appellee, v. Charles Cotton Defendant-Appellant. Appeals from the United States District Court For the Northern District of Mississippi, Aberdeen Before DeMOSS, DENNIS and PRADO, Circuit Judges. DeMOSS, Circu..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS April 20, 2004
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 03-60253
United States of America
Plaintiff-Appellee,
v.
J.D. Bell
Defendant-Appellant.
No. 03-60254
United States of America
Plaintiff-Appellee,
v.
Charles Cotton
Defendant-Appellant.
Appeals from the United States District Court
For the Northern District of Mississippi, Aberdeen
Before DeMOSS, DENNIS and PRADO, Circuit Judges.
DeMOSS, Circuit Judge:
Co-Appellants, J.D. Bell and Charles Cotton, were convicted in
separate jury trials of the crime of aggravated sexual abuse on an
Indian Reservation, pursuant to 18 U.S.C. §§ 1151, 1153(a), 2241(a)
and 2246(2). Their appeals were consolidated by this Court. On
appeal, Bell and Cotton raise one similar issue and several
separate issues. We reject all of Bell’s contentions on appeal and
therefore affirm his conviction. We also reject most of Cotton’s
contentions, however, we hold that Cotton’s Sixth Amendment
Confrontation Clause right was violated but this error was harmless
and therefore we affirm his conviction and sentence.
BACKGROUND
J.D. Bell and Charles Cotton, members of the Mississippi Band
of Choctaw Indians, were charged by Indictment in United States
District Court for the Northern District of Mississippi on October
30, 2002, with two counts of aggravated sexual abuse in violation
of 18 U.S.C. §§ 1151, 1153(a), 2241(a), and 2246(2). Bell and
Cotton were alleged to have sexually abused Lee Jim, Jr., and
George Cotton on October 14, 2002, on the Choctaw Indian
Reservation in Winston County, Mississippi. Prior to trial, Cotton
moved that the court sever the trials and the court granted the
motion. Bell’s jury trial took place in December of 2002, and
Cotton’s trial was held in March of 2003. Both Bell and Cotton
were found guilty of one count of sexual abuse by their respective
juries and convicted and sentenced by the district court.
Although, most of the facts were controverted at both trials, the
following facts were presented to the juries at the two separate
2
trials and could have been relied on by the juries in reaching
their verdicts.1 Facts relevant to a particular issue are outlined
in more detail in each section of the Discussion infra.
Lee Jim, Jr., a 52-year-old Choctaw Indian, testified that he
was mowing the yard of George Cotton on October 14, 2002. George
was apparently observing Jim’s mowing. George Cotton is also a
Choctaw Indian and is deaf and mute. Charles Cotton, one of the
appellants in this consolidated appeal, approached and told Jim and
George to go to Jim’s house. Charles Cotton, his wife, and J.D.
Bell, the other appellant in this consolidated appeal, went to
Jim’s house. They arrived at the house before Jim and George
arrived and entered the house, even though Jim had left the house
locked. According to Jim’s testimony and Bell’s confession, Bell
allegedly brought whiskey with him and after Jim and George
arrived, Charles Cotton instructed Jim to drink whiskey. Jim did
not want to drink whiskey because, he said, he was too hot from
pushing a lawn mower. Charles Cotton forced Jim to play
“quarters,” a drinking game where the loser is forced to drink
while the winner watches. This drinking game went on for hours and
1
Neither Bell nor Cotton directly challenge the sufficiency
of the evidence supporting their convictions, however, insofar as
their arguments can be interpreted as a challenge to the
sufficiency of the evidence presented by the government, we are
required to “determine whether a rational jury could have found
that the evidence established guilt beyond a reasonable doubt on
each element of the offense, drawing all reasonable inferences from
the evidence and viewing all credibility determinations in the
light most favorable to the verdict.” United States v. Solis, 299
F.3d 420, 425 (5th Cir. 2002).
3
it was late afternoon before the game concluded. Jim testified
that he eventually drank half a bottle of whiskey and “got dizzy.”
At Bell’s trial, Jim also testified that Charles Cotton hit Jim on
the side of the head and he then fell down. Apparently, at both
trials Jim testified that Cotton shaved Jim’s eyebrow, took Jim’s
pants off, took Jim’s wallet, then anally raped Jim. Charles
Cotton did this by grabbing Jim around the waist so that Jim felt
he could not get away. As Jim was being raped, he observed J.D.
Bell raping George Cotton. Jim testified that Cotton left semen in
him and around him but there was never any physical evidence of
semen found on Jim or at the scene. Jim also testified that he
observed that George was covered in blood after the assaults but
there was no other testimony of this, other than George’s
testimony, and there was no physical evidence of blood at the
scene.
Jim admitted on cross-examination that he had drank some
antiseptic earlier in that day. Likewise, there was testimony
establishing that Jim and George were low functioning alcoholics
who often drank antiseptic.
George Cotton testified, through the use of his sister,
Pauline Cotton, as an interpreter, on direct examination that after
mowing his lawn, he and Lee Jim went to Jim’s house. There J.D.
Bell, Charles Cotton, and Charles Cotton’s wife joined them.
George testified they drank whiskey and also beer and Charles
Cotton smoked marijuana. George Cotton testified he saw Charles
4
Cotton hit Lee Jim and have sexual contact with Jim.
George Cotton testified that J.D. Bell had raped him that
afternoon. George also testified that he was covered in blood
after the assault. On cross-examination, when confronted with
alleged inconsistencies and a misidentification made during an
earlier competency hearing, George Cotton repeatedly identified
J.D. Bell as the man who raped him.
Both Bell and Charles Cotton attacked Pauline Cotton’s
interpretation of George Cotton’s testimony. Charles Cotton
offered the testimony of Junior Cotton, a next-door neighbor
familiar with George Cotton’s method of communicating. Junior
testified that Pauline had not interpreted George’s testimony
accurately.
The government also presented the testimony of Millie
Chickaway, who testified that her aunt came to get her on the
afternoon of October 14 to take her to Lee Jim’s house. When they
arrived at the house Chickaway heard loud music that was not the
type of music Jim listened to. It had just gotten dark and she
could not see inside the house. When she went inside and turned
the lights on she saw Jim lying face down with his pants and
underwear down around his ankles. According to Chickaway, Jim and
the floor were covered in flour, buttermilk, and cleaning solution.
She also noticed feces around his legs and “buttock area.” She saw
that Jim’s face was swollen and part of his hair was shaved off.
She testified that the house smelled like alcohol and feces.
5
Chickaway also testified that George Cotton was sitting under
a counter-top bar making noises and signaling with his hands but
she could not understand him. She testified that George appeared
to be covered in flour and milk as well. Chickaway went to Clay
Wesley’s nearby home to seek assistance.
Wesley testified that he arrived at the scene, shortly after
sunset and probably around 8:00 p.m. He described the scene just
as Chickaway had. Wesley added that he noticed Jim’s head and
eyebrows were shaven. Wesley noticed feces but testified that
Jim’s “rear end was clean.” Wesley tried to communicate with
George, because he was familiar with George’s method of
communicating, but George was so upset and talking with his hands
so fast, Wesley could not understand everything George was trying
to communicate. Wesley testified that he had never seen George so
upset and agitated. Wesley also testified that George’s pants were
undone and his “private part[s]” were showing. Wesley said the
house had a “whiskey smell” and he saw a shot glass on the counter.
On cross-examination he identified the smell as bourbon whiskey,
noting he was familiar with the smell (this testimony is relevant
because there was conflicting testimony as to whether whiskey was
consumed in Lee Jim’s house that afternoon). Wesley called the
police to the scene.
Choctaw police officer Chris John testified that when he
arrived on the scene Lee Jim was unconscious, face down on the
ground with his pants about his ankles. Jim had a bleeding cut
6
above his ear. Officer John observed feces near where Jim was
lying and stated that it appeared someone had poured “milk and
flour all over him.” When Officer John rolled Jim over he observed
that someone had shaved Jim’s eyebrows and some of his hair off.
He noticed Jim’s face was swollen and it appeared that someone had
beaten Jim.
Officer John also observed George and noticed that George’s
eyebrows had been shaven and he had cuts on his head as well. It
appeared someone had also poured milk and flour on George.
Officer John observed three shot glasses and found Jim’s
wallet but saw no money. John described an “awful stench” from the
feces and alcohol. There were no whiskey bottles found at the
scene. There was, however, an empty antiseptic bottle found.
Jim was sent to the hospital that evening for treatment of his
injuries. Clay Wesley took George Cotton to George’s home because
according to Wesley, besides being distraught, George appeared
physically fine.
Jim was examined by Dr. Peters on the evening of the alleged
assault. Medical records in the case established that either Jim
did not complain of sexual assault or Dr. Peters and the nurses
were unable to understand Jim as complaining of sexual assault.
Jim testified that there was no interpreter or family member
present for his medical examination and that he tried to
7
communicate to the medical workers what had happened.2 Dr. Peters
noted that Jim was suffering from the effects of intoxication and
chronic alcoholism. Dr. Peters also noted in his report that Jim
complained of being pushed by his son-in-law. In his testimony,
Jim denied this and said it was a misunderstanding because he did
not even have a son-in-law. According to Dr. Peters, Jim never
complained of being sexual assaulted or of any anal pain. Jim
testified that he complained of anal pain but was misunderstood.
Jim was also examined on October 21 by Dr. Duckworth and Dr. Logan.
The doctors did not understand there to be a complaint of sexual
assault nor did the doctors find evidence of sexual assault. Jim
was finally examined for evidence of sexual assault on October 28
by Dr. Callahan, but no evidence was found.
George Cotton was examined on October 18 by Dr. Callahan, but
no evidence of sexual assault was found. Ultimately, there was no
medical evidence of sexual assault presented at either trial, but
neither victim was examined for sexual assault until several days
after the alleged sexual assaults and the testimony presented by
the government indicted it was not unusual for no evidence of anal
rape to be found that many days after the alleged incident.
In the trial of J.D. Bell, F.B.I. Special Agent Sypniewski
testified about an interview of Bell that Sypniewski and Choctaw
2
Apparently, Jim’s ability to communicate in English was
limited and he could have benefitted from an interpreter who spoke
Choctaw.
8
Police Officer Butler conducted on October 25, 2002. Apparently,
Bell at first denied any involvement in the sexual assaults but
ultimately confessed to raping George Cotton. During the interview
the officers told Bell they did not believe him when he stated he
was not involved in the crime and they told Bell that lying to them
could cause Bell to serve jail time. The officers also lied to
Bell, telling him that they had physical evidence linking him to
the assault of George Cotton when they did not.
At the end of the interview, Bell gave a written statement
confessing that “Charles [Cotton] had anal sex [with] Lee Jim, Jr.,
and I had anal sex with George Cotton. Lee Jim and George did not
want this to happen.” Bell stated he felt remorse for his acts.
There was also a longer typewritten statement signed by Bell. In
this statement Bell explained the events of October 14. Bell
stated that: Charles Cotton hit Lee Jim several times after Jim
became upset at Cotton for making fun of him, after Jim was knocked
down to the floor, Cotton pulled down Jim’s pants and underwear and
told Bell, “Watch this, I’m gonna fuck this one,” then Cotton had
anal sex with Jim against Jim’s will and Jim tried to push Cotton
away but Cotton was too strong. Bell stated that he then pulled
George Cotton’s pants and underwear down and had anal sex with
George Cotton who was too intoxicated to make an effort to resist.
Bell also admitted to bringing whiskey to Jim’s house that
afternoon. In his statement Bell said he felt dirty after the
assaults, that he did not mean to hurt George, that he felt bad for
9
George, and that he had never had sex with a man before. Bell also
stated that he did not ejaculate when he raped George. Bell
further stated that Charles Cotton was “crazy and may have sexually
assaulted men before.” Bell said Charles Cotton was laughing about
the assaults immediately after they were finished and that Cotton
had told Bell to keep his mouth shut regarding the assaults. Bell
said he agreed to testify against Cotton and understood that the
interviewers could make no promises in return for Bell’s
cooperation.
Agent Sypniewski was subject to cross-examination concerning
the interview and his report of the interview was entered into
evidence. Bell’s statement and the agent’s testimony verified that
Bell wrote and read English and also understood his rights when
making the statement.
On October 28, 2002, a U.S. Magistrate Judge issued a warrant
for the arrest of Bell and Cotton, who were arrested the next day.
On October 30, 2002, a grand jury returned an indictment charging
Bell and Cotton with sexually abusing the two male Choctaws. On
motion of the government, the U.S. Magistrate Judge detained
Cotton.
Bell filed several pretrial motions, including motions to
suppress his out-of-court confession and to prevent George Cotton
from testifying, arguing that he was incompetent because he could
not hear or speak. Prior to trial, Cotton moved for severance
based on co-defendant Bell’s confession of raping George Cotton.
10
The district court granted Cotton’s motion.
After selecting juries for the two trials, the district court
held a hearing on Bell’s motion to suppress his confession and his
motion to disqualify George Cotton from testifying, which Charles
Cotton joined. The court observed George and the proposed
interpreter, Pauline Cotton, George’s sister. At one point during
the hearing, George Cotton misidentified Bell as the person who
assaulted Lee Jim and Cotton as the person who assault him.
However, after observing George and Pauline, the district court
found George competent and allowed Pauline to serve as his
interpreter. The court also denied the motion to suppress Bell’s
statement, finding the statement was voluntary.
As described supra, at both trials the government presented
the two victims, who testified that they were raped and that each
observed the other being raped. Other witnesses testified to the
scene and to the condition of the two victims.
Both Bell and Cotton attempted to create an alibi. The jury
heard evidence from Cotton’s wife, mother, and two aunts,
attempting to establish that Bell and Cotton were at Cotton’s
mother’s house all afternoon except when they went with Cotton’s
wife to Cotton’s aunt’s house around 4:30 p.m. There was some
other alibi evidence, some of which was conflicting but ultimately
there was a period of time from 2:00 p.m. until 4:30 p.m. where no
alibi was established. The government argued at both trials that
the sexual assaults occurred during this open period of time. Bell
11
and Cotton argued that the testimony the government presented at
Bell’s trial established that the assaults occurred at 2:00 p.m.
and the testimony at Cotton’s trial established that the assaults
occurred at 6:00 p.m.
Bell chose not to testify at his trial. Charles Cotton and
his wife, Phyllis, testified at Cotton’s trial that Lee Jim’s and
George Cotton’s testimony was inaccurate. Charles and Phyllis
testified that Bell, Charles, and Phyllis Cotton went to Jim’s
house that afternoon but Jim and George were already there drinking
antiseptic. Charles and Phyllis further stated that neither they
nor Bell ever entered the house.
At his trial, Charles Cotton also denied the sexual assault
allegations, claiming that he was a heterosexual and his love for
women would prevent him from raping a man. Cotton did, however,
admit that he had in the past shaved off Jim’s eyebrows and hair
and pulled down Jim’s pants, claiming it was “humor.”
After Bell’s trial, the court granted judgment of acquittal as
to Count II of the Indictment, the charge alleging that Bell
sexually abused Lee Jim. The jury convicted J.D. Bell of sexually
abusing George Cotton. After his trial, Bell filed a motion for
judgment of acquittal or, in the alternative, for a new trial. The
district court denied the motion, and on March 6, 2003, the
district court sentenced Bell to, inter alia, 72 months’
incarceration. Bell filed a notice of appeal on March 11, 2003.
After Bell’s trial but before the trial of Charles Cotton, the
12
government requested that the district court immunize Bell and
ordered him to testify in Charles Cotton’s trial. After being
immunized, Bell refused to testify and the district court held that
Bell was unavailable under the Federal Rules of Evidence. The
government then introduced, over Cotton’s objections, a summary of
portions of Bell’s statement, via Agent Sypniewski‘s testimony,
showing: 1) Bell had been advised of his rights and signed a waiver
agreeing to give a statement; 2) Bell had brought whiskey to the
home of Lee Jim on October 14, 2002; 3) Bell had raped George
Cotton that day; and 4) Bell had signed a written statement to that
effect and Bell understood what he was signing. Cotton’s counsel
then cross-examined the agent concern the interview process and the
voluntariness and trustworthiness of the statement.
After Cotton’s trial, the Court acquitted Cotton as to Count
I of his Indictment, the charge for the sexual assault of George
Cotton. The jury convicted Charles Cotton of raping Lee Jim, Jr.
Cotton filed motions for judgment of acquittal and new trial. The
district court denied the motions. On March 6, 2003, the district
court sentenced Cotton to, inter alia, 196 months’ incarceration.
Cotton received an enhanced sentence for causing serious bodily
injury and victimizing a vulnerable person. Cotton filed a notice
of appeal on March 11, 2003.
This Court consolidated the cases for appeal on July 23, 2003.
On appeal, Bell argues that the district court erred in
allowing into evidence his confession because it was not
13
voluntarily given. He also argues that the court erred in
instructing the jury concerning the confession. Cotton argues that
the district court erred in allowing admission of redacted portions
of Bell’s confession because it was hearsay with no applicable
exception and the admission violated Cotton’s Confrontation Clause
rights. He argues that the district court erred in instructing the
jury concerning the confession. Cotton also argues that the court
erred in enhancing his sentence for causing serious bodily injury
and victimizing a vulnerable victim. Both Bell and Cotton argue
that the district court erred in allowing Pauline Cotton, George
Cotton’s sister, to serve as interpreter for George at both trials
because she was biased and unqualified. Both Bell and Cotton also
make a catch-all argument that the cumulative effect of the
district court’s errors denied each a fundamentally fair trial.
DISCUSSION
I. Whether the district court erred in allowing the government to
admit J.D. Bell’s confession into evidence at Bell’s trial and
in its instruction to the jury concerning the voluntariness of
the confession.
A district court’s determination that a confession is
voluntary is a question of law and is reviewed de novo, but the
factual conclusions underlying the determination are reviewed for
clear error. United States v. Garcia Abrego, 141 F.3d 142, 170
(5th Cir. 1998). When a defendant challenges the voluntariness of
a confession, the government must prove its voluntariness by a
14
preponderance of the evidence in order for the confession to be
admissible as substantive evidence at the defendant's criminal
trial. Id. Also, the Supreme Court has held that the admission of
an involuntary confession is trial error subject to a harmless
error analysis. Arizona v. Fulminante,
499 U.S. 279, 310 (1991).
"A confession is voluntary if, under the totality of the
circumstances, the statement is the product of the accused's free
and rational choice." United States v. Broussard, 80 F.3d 1025,
1033 (5th Cir. 1996) In order for a defendant to establish that
his confession was involuntary, he must demonstrate that it
resulted from coercive police conduct and that there was a link
between the coercive conduct of the police and his confession.
Colorado v. Connelly,
479 U.S. 157, 163-65 (1986). This Circuit
has held that trickery or deceit is only prohibited to the extent
that it deprives the defendant of knowledge essential to his
ability to understand the nature of his rights and the consequences
of abandoning them. Soffar v. Cockrell,
300 F.3d 588, 596 (5th
Cir. 2002)(en banc); see also Self v. Collins,
973 F.2d 1198, 1205
(5th Cir. 1992) (finding that mere trickery alone will not
necessarily invalidate a confession).
The district court held an evidentiary hearing at which
Choctaw Police Officer Butler, F.B.I. Special Agent Sypniewski, and
J.D. Bell testified concerning Bell’s October 25, 2002, confession
in which Bell admitted to raping George Cotton. The testimony
established that Bell, a 21-year-old Choctaw Indian with limited
15
education, was taken into custody at approximately 2:30 p.m. on
October 25, but formal interrogation did not start until after 5:00
p.m. Bell’s confession was made shortly before 6:30 p.m. During
the one and a half hours of questioning, Bell first denied that
anyone was raped at Lee Jim’s house that afternoon, then stated he
was there but said that he had left the house to vomit because of
heavy drinking when Charles Cotton raped both victims. Then Bell
changed his story again and stated he had witnessed Charles Cotton
raping both of the victims. During the interrogation, each time
Bell denied raping anyone, the officers stated they did not believe
him. The officers also told Bell that lying to a federal agent was
a crime that could result in five years in jail. The officers also
lied to Bell and told him that they had physical evidence proving
that he had raped George Cotton when they did not have such
evidence. Despite the officers’ statements regarding the possible
imprisonment for lying to a federal officer and the “fake” physical
evidence, Bell still did not confess. The officers both testified
that Bell only confessed because of, as Bell stated, “his feeling
of guilt and remorse” for injuring George Cotton and participating
in a homosexual act. At the hearing, the district court found that
the techniques used by the officers did not overcome Bell’s will
and that Bell voluntarily made the confession. Therefore, the
court allowed the government to introduce the confession into
evidence at Bell’s trial.
During Bell’s trial, the government called Agent Sypniewski
16
who testified regarding all aspects of the confession and was
subjected to cross-examination regarding the circumstances
surrounding the confession, including the officer’s truthful and
false statements to Bell and the voluntariness of the confession.
At the conclusion of the trial, the court instructed the jury
regarding the confession and voluntariness.3
On appeal, Bell argues that the two interrogation techniques:
informing Bell that if he lied he could go to jail and lying to
Bell about the existence of physical evidence that connected him to
the sexual assault, even if permissible by themselves, when
combined created an impossible situation for Bell to withstand,
thereby forcing Bell to make the confession, even if he was
innocent of the crime confessed.
3
The instruction was patterned after:
§ 1.26. Confession--Statement--Voluntariness (Single
Defendant)
In determining whether any statement, claimed to
have been made by a defendant outside of court and after
an alleged crime has been committed, was knowingly and
voluntarily made, you should consider the evidence
concerning such a statement with caution and great care,
and should give such weight to the statement as you feel
it deserves under all the circumstances.
You may consider in that regard such factors as the
age, sex, training, education, occupation, and physical
and mental condition of the defendant, his treatment
while under interrogation, and all the other
circumstances in evidence surrounding the making of the
statement.
Instruction 1.26, Fifth Circuit Pattern Jury Instructions:
Criminal (West 2001).
17
Bell cites no authority for his argument that the officers’
conduct was coercive or that it caused him to make an involuntary
confession. Bell merely makes the circular argument that no matter
what he said in response to the officers’ questions he would be
sent to jail, i.e., whether he admitted to raping George Cotton or
whether he lied to federal officers. This argument, of course,
assumes that denying he committed the rape was actually a lie which
in turn indicates it was not the officers’ techniques that forced
Bell into an impossible position but rather the fact that Bell,
according to his own argument, was not actually innocent.
Likewise, Bell was not forced to either lie or confess, he could
have remained silent.4 Finally, Bell does not articulate how the
officers’ lying about the physical evidence caused his confession
to be involuntary.
The officers’ misrepresentation about the existence of
physical evidence is the only potentially coercive conduct at issue
in this case. The district court at the hearing found that the
conduct did not overcome Bell’s will and that Bell’s confession was
voluntary. Even if the officers’ conduct was coercive, it appears
Bell has not established that there was a link between the
officers’ lying about having physical evidence and Bell’s
confession. Therefore, the district court did not err in allowing
4
Bell ignores the fact that he had the right to remain silent
and does not make any arguments implicating a violation of his
Miranda rights, other Fifth Amendment rights, or Sixth Amendment
rights.
18
the government to present the confession evidence.
Likewise, at trial, Bell’s attorney conducted a rigorous
cross-examination concerning the confession and argued to the jury
that the confession was involuntary. The court instructed the jury
as to the voluntariness question. The jury in making its ultimate
decision must have concluded that the confession was voluntary or
that Bell was guilty without considering the confession.
Therefore, either there was no error concerning the admission of
the confession and the instruction to the jury because the jury
found the confession to be voluntary, or whatever error occurred
was harmless. Accordingly, the district court’s decision to allow
the government to admit the confession into evidence and the
court’s instruction at Bell’s trial are affirmed.
II. Whether the district court erred when it allowed the sister of
George Cotton, a deaf and mute victim, to interpret George’s
testimony at both trials.
We review the decision to appoint an interpreter for abuse of
discretion. United States v. Ball, 988 F.2d 7, 9 (5th Cir. 1993).
The district court “must take into consideration the unique
circumstances of each case including the interpreter’s interest and
involvement in the case.”
Id. at 10. The nature of the witness’s
handicap may make “it necessary for the trial court to appoint
someone familiar with the witness” thus “prevent[ing] the court
from obtaining a wholly disinterested person.”
Id. (internal
quotes and citation omitted). The ultimate issue is whether the
19
use of the interpreter “made the trial fundamentally unfair.”
Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989).
George Cotton is deaf and mute. He is able to effectively
communicate through a form of sign language, a system of grunts and
gestures, that is understood by family and friends familiar with
him. The district court held a competency hearing before Bell’s
trial to determine whether George would be able to testify and who
should serve as interpreter when George testified. At the hearing,
Bell and Charles Cotton objected to the use of Pauline Cotton,
George’s sister, as interpreter. The government proposed another
interpreter, Clay Wesley (who also served as a fact witness because
he observed the crime scene the night of the alleged sexual
assaults) which Appellants also objected to. Charles Cotton
offered Junior Cotton as a potential interpreter. Junior knew
George because he was George’s neighbor and he lived with Charles
Cotton’s aunt, who served as an alibi witness for Charles Cotton.
The government objected to the use of Junior because of his
relation to Charles and the fact that he lived with Charles’s aunt.
The district court decided to allow Pauline Cotton to serve as the
interpreter at both Bell’s and Charles Cotton’s trial. Because
Pauline speaks only Choctaw, her interpretation of George’s
testimony was translated into English by a government interpreter.
Both Appellants make several arguments as to why the district
court erred. First, both argue that the Fifth Circuit decision in
Prince v. Beto, which held that the district court erred in
20
appointing the husband of a deaf and mute victim as the interpreter
and reversed the defendant’s conviction, is controlling in this
case. 426 F.2d 875, 876-77 (5th Cir. 1970). In Prince, however,
a panel of this Court held that the husband should have been
prevented from serving as interpreter because the defendant had
proven that the husband attempted to extort money from the
defendant in exchange for the husband attempting to stop the
criminal prosecution against the defendant.
Id. at 876. Yet even
the Prince court recognized that in some circumstances it may not
be possible to obtain “a wholly disinterested person” as
interpreter and “ordinarily a husband could qualify as an
interpreter.”
Id. at 876-77. The present case is more similar to
United States v. Ball, where the court did allow a family member,
the wife, to interpret for a deaf
witness. 988 F.2d at 9. In
Ball, much like in the present case, both sides were allowed to
question the wife with respect to her ability to interpret.
Id.
Ultimately, the Ball court found that the longstanding relationship
between the wife and the witness made the wife qualified to serve
as interpreter.
Id. In the present case, Pauline Cotton had no
personal knowledge of the events at issue, and the circumstances of
George’s method of communication made it impossible to find an
interpreter who was not a family member or close friend of George.
Therefore, Appellants’ arguments that Pauline should have been
excluded because she was George’s sister fail.
Second, both Bell and Charles Cotton claim the use of Pauline
21
Cotton as an interpreter violated the Court Interpreters Act,
28 U.S.C. § 1827. Bell argues that only qualified interpreters can
be used. The Act, however, specifically allows for an exception
when no qualified interpreter is available. 28 U.S.C. § 1827(b)(2)
Charles Cotton claims that Pauline Cotton’s non-continuous
translation of George’s answers was constitutionally unfair and
also violated the Act. “[W]ord for word translation” is the
“general standard,” however, “minor deviations from this standard
will not necessarily contravene a defendant’s constitutional
rights” and in “certain circumstances even ‘summary translations’”
would be permissible. United States v. Joshi, 896 F.2d 1303, 1309
& n.6 (11th Cir. 1990) (citation omitted). The issue is ultimately
whether the use of the interpreter “made the trial fundamentally
unfair.”
Valladares, 871 F.2d at 1566. And because interpreters
present numerous trial difficulties, “the trial judge, who is in
direct contact with” the witnesses, Appellants, and the
interpreters “must be given wide discretion.”
Id. Here, because
of the unique method used by George to communicate and the lack of
other options, the district court allowed George to testify via
Pauline’s interpretation and permitted Appellants to attack the
testimony and interpretation. Therefore, there was no violation of
the Court Interpreters Act.
Third, Bell also claims his confrontation rights were
violated. Bell, however, was able to cross-examine George Cotton
and therefore his rights were not violated. Bell also claims
22
George Cotton was not competent, under the Rules of Evidence, to
testify.5 The Federal Rules of Evidence, however, state that
“[e]very person is competent to be a witness except as otherwise
provided in these rules” and the Rules do not provide that deaf and
mute individuals are somehow lacking in competency to be witnesses
in federal court. Fed. R. Evid. 601. Therefore, these arguments
also fail.
The district court did not abuse its discretion in allowing
Pauline Cotton to serve as interpreter but rather allowed the
juries to make whatever determinations they believed fair. George
Cotton was subject to cross-examination in both Bell’s and Charles
Cotton’s trial. Also, Charles Cotton presented testimony from
Junior Cotton, the person Charles proposed should serve as
interpreter, as to the alleged erroneous interpretation conducted
by Pauline. The juries heard evidence and arguments that Pauline
Cotton loved her brother and wanted his attackers to be punished.
The court instructed both juries that they were to judge George
Cotton’s testimony and the interpretation thereof and give whatever
weight they deemed appropriate to the evidence. Accordingly, the
5
Bell cites an Eighth Circuit case, Anderson v. Franklin
County, Mo., 192 F.3d 1125 (8th Cir. 1999), for the proposition
that a deaf and mute who does not know a standardized system of
sign language can be found not competent to testify.
Id. at 1129.
The holding of the Eighth Circuit in Anderson, however, was that
there was no “clear and prejudicial abuse of discretion” by the
district court when it excluded the videotape testimony of a deaf
and mute witness after determining the testimony was not reliable.
Id. The Eighth Circuit noted that the testimony would have been
“largely, if not totally, cumulative.”
Id. at 1130.
23
decision of the district court to allow Pauline Cotton to serve as
interpreter at both trials was not an abuse of discretion and is
affirmed.
III. Whether the district court erred in allowing the government to
introduce portions of J.D. Bell’s statement into evidence at
Charles Cotton’s trial and in its instruction to the jury
concerning the statement.
Whether the admission of objected-to evidence under
Rule 804(b)(3), Federal Rules of Evidence, was proper is a mixed
question of law and fact; the factual determinations are reviewed
for clear error and the legal issues are reviewed de novo. See
United States v. Bagley, 537 F.2d 162, 166 (5th Cir. 1976).
Alleged violations of the Confrontation Clause are reviewed denovo,
but are subject to a harmless error analysis. United States v.
McCormick,
54 F.3d 214, 219 (5th Cir. 1995).
Co-Appellant, J.D. Bell, was convicted of raping George Cotton
prior to Charles Cotton’s trial. For Charles Cotton’s trial, the
government sought and obtained an order immunizing Bell’s
testimony. Bell refused to testify and was held in contempt for
refusing to testify. The government then introduced a summation of
only part of Bell’s statement, via Agent Sypniewski‘s testimony.
Specifically, Agent Sypniewski testified that: 1) Bell had been
advised of his rights and signed a waiver agreeing to give a
statement (the written waiver was also introduced into evidence as
an exhibit); 2) Bell had brought whiskey to the home of Lee Jim on
October 14, 2002; 3) Bell had raped George Cotton that day; and
24
4) Bell had signed a written statement to that effect and Bell
understood what he was signing. The testimony introduced did not
mention Charles Cotton nor was any of Bell’s written statement
actually introduced as an exhibit. Cotton’s counsel then cross-
examined Agent Sypniewski regarding the interview of Bell, the lack
of a videotape record of the interview, the statement made, and
Bell’s claim that the statement was coerced.
On appeal, Charles Cotton claims the admission of the agent’s
testimony concerning the statement is hearsay subject to no
exception and violates the Confrontation Clause. Cotton also
claims the district court, sua sponte, was required to give a
limiting instruction to the jury when the statement was introduced
into evidence and that the court did not properly instruct the jury
concerning the statement before the jury deliberated.
The hearsay and Confrontation Clause determinations are
separate issues, yet courts analyzing these issues have applied the
same “particularized guarantees of trustworthiness” test for each.
Idaho v. Wright, 497 U.S. 805, 814-15 (1990) (noting that the
“hearsay rules and the Confrontation Clause are generally designed
to protect similar values” but cautioning against equating the two
as equals).
Rule 804(b)(3) of the Federal Rules of Evidence provides in
pertinent part:
(b) Hearsay exceptions. The following are not excluded
by the hearsay rule if the declarant is unavailable as a
witness: . . . . (3) Statement against interest. A
25
statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to
civil or criminal liability, or to render invalid a claim
by the declarant against another, that a reasonable
person in the declarant's position would not have made
the statement unless believing it to be true. A
statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
Fed. R. Evid. 804(b)(3). Restated, the rule requires: the
declarant be unavailable, the statement must subject the declarant
to criminal liability such that a reasonable person would not have
made the statement unless he believed it to be true, and the
statement must be corroborated by circumstances clearly indicating
trustworthiness. United States v. Sarmiento-Perez, 633 F.2d 1092,
1101 (5th Cir. 1981) (citations omitted).
The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI.
The Confrontation Clause, however, does not require the exclusion
of any statement made by a declarant who is not present. Ohio v.
Roberts, 448 U.S. 56, 66 (1980). Rather, a statement can be
admitted by showing the declarant is unavailable and that the
statement “bears adequate ‘indicia of reliability.’”
Id.
In the present case, the first two requirements of Rule
804(b)(3) and the first requirement of the Confrontation Clause are
satisfied. The district court declared Bell unavailable after he
26
had been granted immunity yet refused to testify. Also the
district court found that in his statement used at Cotton’s trial,
Bell admits to a crime so far out of the ordinary, homosexual rape,
that no reasonable person would have made the statement unless it
was true.
There are two methods for satisfying the third requirement of
Rule 804(b)(3), which is also similar to the second requirement of
the Confrontation Clause, i.e., the trustworthiness of the
statement. United States v. Flores, 985 F.2d 770, 775 (5th Cir.
1993). If the hearsay statements are admitted under a “firmly
rooted exception” to the hearsay rule, trustworthiness is presumed.
Lilly v. Virginia,
527 U.S. 116, 124-25 (1999); see also
Roberts,
448 U.S. at 66. If not, the statements must bear adequate “indicia
of reliability,” such that “adversarial testing would be expected
to add little, if anything, to the statements’ reliability.”
Lilly, 527 U.S. at 124-25; see also
Roberts, 448 U.S. at 66.
The Supreme Court has stated that although some statements
that fall within the declaration-against-penal-interest concept may
be inherently reliable, the concept itself "defines too large a
class for meaningful Confrontation Clause analysis." Lee v.
Illinois, 476 U.S. 530, 544 n.5 (1986). Therefore, each category
of statements that falls within the exception must be analyzed to
determine whether statements in that category are inherently
reliable. More recently in Lilly v. Virginia, the Supreme Court
issued a plurality opinion which followed Lee’s framework of
27
dividing statements into categories. 527 U.S. at 127. The
plurality determined that admission of the entire statement of an
accomplice that contained portions which inculpated the accomplice
and the defendant on trial was “inherently unreliable.”
Id. at
131. Similarly, this Circuit held in United States v. Flores, a
decision prior to Lilly, that "a confession by an accomplice
inculpating a defendant that is being offered as a declaration
against penal interest is not a firmly rooted exception" to the
hearsay rule, and thus not inherently reliable.
Flores, 985 F.2d
at 775; see also United States v. Dean,
59 F.3d 1479, 1493 (5th
Cir. 1995). Accordingly, as per Lilly and Flores, the statement at
issue in this case cannot be presumed trustworthy because it does
not fit within a firmly rooted hearsay exception.
Because this type of hearsay statement does not fit within a
firmly rooted exception, then the required “indicia of reliability”
must be shown from "particularized guarantees of trustworthiness."
Flores, 985 F.2d at 774-75 (citing
Wright, 448 U.S. at 65). The
Supreme Court in Wright held that these "particularized guarantees
of trustworthiness" include only the relevant circumstances "that
surround the making of the statement and that render the declarant
particularly worthy of belief."
Wright, 497 U.S. at 819.
Corroborating evidence may not be considered because it "would
permit . . . bootstrapping on the trustworthiness of other evidence
28
at trial." Id. at 823.6
Again, a panel of this Circuit in Flores held that “statements
accusatory of another taken by law enforcement personnel with a
view to prosecution” should “generally be regarded as inadmissable
under the Confrontation Clause” because they are “inherently
unreliable.” Flores, 985 F.2d at 780. This holding, although
concerned with the admission of an entire statement that was taken
from grand jury testimony provided by a co-defendant who had plead
the Fifth Amendment and was therefore unavailable to testify at a
joint trial, likely limits our inquiry in the present case.7
Because of the holding in Flores, we must conclude that the
statement admitted here was also “inherently unreliable.”
6
The Confrontation Clause analysis excludes corroborating
evidence because the rationale for allowing the evidence is "that
the statement offered is free enough from the risk of inaccuracy
and untrustworthiness, so that the test of cross-examination would
be a work of supererogation." Wright, 497 U.S. at 819 (quoting
from 5 J. Wigmore, Evidence § 1420, p. 251 (J. Chadbourn ed., rev.
1974)). In other words, the evidence may only be admitted if it is
"so trustworthy that adversarial testing would add little to its
reliability."
Id. at 821 The hearsay rule supports the values of
the Confrontation Clause; however, in this Circuit if the
Confrontation Clause is not implicated and the concern is only
whether the statement is within the hearsay exception, the district
court can properly consider any corroborating circumstances that
clearly indicate that the statement is trustworthy.
Dean, 59 F.3d
at 1493.
7
The government in its argument only cites but does not
discuss Flores, a decision that likely controls the resolution of
this issue in this case. Rather, the government’s argument
continually cites and relies on United States v. Vernor, 902 F.2d
1182 (5th Cir. 1990), a case this Circuit said in Flores was likely
overruled by the Supreme Court’s holding in Wright and therefore
explicitly overruled by the Flores
decision. 985 F.2d at 774-75.
29
In the present case the government argues that the summary of
a portion of Bell’s statement that was admitted did not inculpate
Cotton because it made no mention of Cotton and only inculpated
Bell in regards to bringing whiskey to Lee Jim’s house and raping
George Cotton. The government’s argument is essentially that the
statement does not accuse Cotton of anything and therefore is not
even hearsay and presents no Confrontation Clause problem. This
semantic argument fails for two reasons. First, the statement is
hearsay whether or not it accuses Cotton of wrongdoing because it
is an out of court statement offered to prove the truth of the
matter asserted. Fed. R. Evid. 801(c). Second, as to whether
there is a Confrontation Clause problem, even the portions of the
statement that were admitted inculpate Cotton or they would not
have been relevant and therefore not admitted, and as such, their
admission presents a Confrontation Clause issue. Cotton claimed,
inter alia, at his trial that there was no whiskey at Lee Jim’s
house, that no one was raped, and that he was not involved with
anything that happened to George Cotton. The summary of a portion
of Bell’s statement was inculpatory to Charles Cotton in regard to
these claims insofar as the statement contradicts Cotton’s
arguments.
The district court found Bell’s statement to be trustworthy
and allowed it to be admitted despite acknowledging that the
statement may not fit within a firmly rooted exception. It is not
clear why the district court found the statement to be trustworthy
30
and it is also unclear whether or not the district court
impermissibly considered corroborating evidence. In its denial of
Cotton’s motion for acquittal, the district court states that
unlike the statement in Lilly, Bell’s statement did not attempt to
shift blame and therefore could be considered trustworthy. Citing
Lilly, 527 U.S. at 139. But even had the district court not
considered corroborating evidence, the Flores holding appears to
foreclose the admission of the redacted statement in this case and
therefore no inquiry into whether the statement has "particularized
guarantees of trustworthiness" is necessary.
Further, it simply is not clear based on this record whether
the statement has "particularized guarantees of trustworthiness."
Cotton argues that Bell’s statement is exactly the type of
statement that is considered unreliable because of the
circumstances under which it was made, i.e., a police investigation
of an accomplice who may be trying to curry favor or shift blame
with the information he is giving. The government, impermissibly
relying on corroborating evidence, insists the statement is
trustworthy. Viewing the entire statement and the circumstances
under which it was made, it does appear that Bell was attempting to
shift some of the blame to Cotton, indicating Cotton was the leader
or instigator.8 In fact, before Bell admitted to raping George, he
8
We note, it is not just the portions of the statement that
are offered into evidence that are considered when the court is
determining the trustworthiness of the statement, the redacted
portions are considered as well. See United States v. Alvarez,
31
claims in his statement that Charles Cotton raped both George and
Lee Jim. In the statement Bell also says that Charles Cotton is
“crazy and may have sexually assaulted men before.” On the other
hand, it does not appear the statement was made to curry favor with
the investigating officers but rather because, according to the
investigating officers and portions of Bell’s own statement, Bell
felt remorse for his acts. Nonetheless, insofar as this statement
is governed by the holding in Flores and therefore inadmissible, we
are prevented from having to decide this issue anyway.
Because the evidence was improperly admitted, we must
determine if the error was harmless. McCormick, 54 F.3d at 219.
“For an appellate court to find that a violation of a federal
constitutional right is harmless, it must be convinced beyond a
reasonable doubt that the error was harmless in light of the other
evidence presented at trial.” United States v. Vejar-Urias,
165
F.3d 337, 340 (5th Cir. 1999).
The testimony of Agent Sypniewski was related to the issues of
whiskey and the rape of George Cotton. After the government rested
and before Charles Cotton presented his defense, Cotton’s counsel
motioned the district court for judgment of acquittal as to both
counts of the Indictment. The court granted judgment of acquittal
as to Count I, which was the charges relating to George Cotton,
including the aiding and abetting charge. Therefore, the portions
584 F.2d 694, 701 (5th Cir. 1978).
32
of Bell’s statement that were admitted had become, by judgment of
acquittal, irrelevant. In fact, following the judgment of
acquittal, Cotton’s counsel, outside the presence of the jury,
asked for the testimony relating the Bell’s statement to be
stricken due to its lack of relevancy. Accordingly, any error that
occurred in admitting the testimony was harmless insofar as the
testimony was related to a count of the indictment that Cotton was
ultimately acquitted of. Further, insofar as the objected to
evidence remained relevant after the judgment of acquittal, the
record indicates the information in the portions of Bell’s
statement that were admitted had already been brought out via the
testimony of the victim, Lee Jim, as well as through George
Cotton’s testimony. Accordingly, admission of the testimony
summarizing portions of Bell’s statement was harmless error and
therefore the jury verdict is affirmed.
Charles Cotton also argues that the district court erred by
not, sua sponte, issuing a limiting instruction when Bell’s
statement was introduced and by not properly instructing the jury
before it deliberated. This Court reviews Appellant’s claims
regarding jury instructions by determining “whether the court’s
charge, as a whole, is a correct statement of the law and whether
it clearly instructs jurors as to the principles of the law
applicable to the factual issues confronting them.” United States
v. Wise, 221 F.3d 140, 147 (5th Cir. 2000). Where no objection is
made or no request for a jury instruction is given, the Fifth
33
Circuit reviews such claims for plain error. United States v.
Iwegbu, 6 F.3d 272, 274 (5th Cir. 1993).
Cotton’s argument claiming error fails for several reasons.
First, the district court did issue an instruction concerning the
voluntariness of the statement prior to deliberation.9 Second,
Cotton erroneously cites several cases for his argument that a
limiting instruction had to be issued to cure any Confrontation
Clause violation when the statement was admitted into evidence.
This argument is erroneous because if there was a Confrontation
Clause violation, a limiting instruction would not ameliorate the
constitutional problem—the evidence was either permissible or not.
Bruton v. United States, 391 U.S. 123, 136-37 (1968); United States
v. Jobe,
101 F.3d 1046, 1067 (5th Cir. 1996). Third, at the jury
instruction conference, Cotton’s counsel was very active in helping
craft the instructions and specifically discussed with the judge an
instruction addressing the admitted testimony concerning Bell’s
statement. The district court judge stated that he thought any
instruction would unnecessarily draw attention to the testimony and
Cotton’s counsel seemed to agree. Therefore, there was no error in
the instructions.
In summary, the district court erred in allowing Bell’s
statement to be admitted at Cotton’s trial because it did not
9
The instruction given was adapted from Instruction 1.26,
Fifth Circuit Pattern Jury Instructions: Criminal (West 2001). See
Footnote 3.
34
satisfy the Rule 804(b)(3) hearsay exception requirements and
because it violated the Confrontation Clause; however, the error
was harmless. There was no error concerning the jury instruction.
Accordingly, Cotton’s conviction is affirmed.
IV. Whether the district court erred in sentencing Charles Cotton.
We review the sentencing court’s factual findings for abuse of
discretion and the application of the United States Sentencing
Guidelines de novo. United States v. Scurlock, 52 F.3d 531, 539
(5th Cir. 1995). If the district court’s findings are “plausible”
in light of a review of the record as a whole, we will affirm.
Id.
Charles Cotton argues that the district court erred when it
enhanced by two-levels his sentence for inflicting “serious bodily
injury” under § 2A3.1(b)(4)(B) of the Sentencing Guidelines. He
also argues that the district court erred in enhancing his sentence
for victimizing a vulnerable person.
Section 2A3.1(b)(4) provides for a two-level enhancement if
“the victim sustained serious bodily injury.” That term is defined
in § 1B1.1, Application Note 1(I) as “injury . . . requiring
medical intervention such as surgery, hospitalization, or physical
rehabilitation.” At the scene of the crime, the Choctaw police
officer determined that Lee Jim needed to be taken to the hospital
because of his physical condition. It is undisputed that he
remained hospitalized overnight with a variety of medical
complaints.
35
Further, § 1B1.1 Application Note 1(I) also instructs that
“serious bodily injury” is deemed to have occurred if the offense
involved conduct constituting criminal sexual abuse under 18 U.S.C.
§ 2241 or § 2242. Cotton was convicted under 18 U.S.C. § 2242,
which is captioned “Aggravated sexual abuse.”
Inconsistently, however, § 2A3.1 Application Note 1, explains
that the term “serious bodily injury,” for that section “means
conduct other than criminal sexual abuse, which already is taken
into account in the base offense level.” It is not clear how this
inconsistency is to be worked out. Nonetheless, in the present
case there was additional evidence, other than the rape, that Jim’s
face was swollen as though he had been beaten and this is
sufficient for the two-level enhancement for inflicting serious
bodily injury.10 Therefore, the district court did not err in
enhancing Cotton’s sentence for causing serious bodily injury.
A sentencing court is required to make particularized findings
on any disputed issue arising from the Presentencing Report
(“PSR”). United States v. Hooten, 942 F.2d 878, 881 (5th Cir.
1991). Cotton disputed the PSR’s classification of Lee Jim as a
vulnerable victim and its recommendation that Cotton’s sentence be
10
Cotton cites United States v. Guy, 282 F.3d 991, 997 (8th
Cir. 2002) (vacating a sentence and remanding to the district court
to determine if there was serious bodily injury apart from the
sexual abuse), for the proposition that his sentence cannot be
enhanced. In Guy, unlike in the present case, the sexual abuse was
not reported until months later and there was no independent
evidence of serious bodily injury.
Id. at 992.
36
enhanced two levels for victimizing a vulnerable person. The
district court heard evidence at trial of Lee Jim’s alcoholism, his
inability to communicate with others, and his financially
vulnerable condition. The court also heard testimony of Cotton
forcing Jim to drink and then hitting Jim about the head, raping
him, and leaving him face down with his pants around his ankles
covered in flour and milk. Further, Cotton himself offered
testimony that he had humiliated Lee Jim for fun on previous
occasions. Also, the court observed at sentencing:
The Court heard testimony in the case relative to the
victim, Mr. Jim, [and] had an opportunity to observe him.
I think the proof in the case was the defendant himself
admitted on previous occasion he pulled [Mr. Jim’s] pants
down, admitted he shaved his eyebrows and whatnot. That
just doesn’t sound to me like a man who can fend for
himself.
Accordingly, the district court did make particularized findings to
support the enhancement for victimizing a vulnerable person and the
record as a whole supports these findings as plausible. Therefore,
the district court did not err in enhancing Charles Cotton’s
sentence and the entirety of the sentence is affirmed.
Finally, both Bell and Cotton raise a final issue, claiming
that due to the numerous errors made by the district court there
was cumulation of error denying each a fundamentally fair trial.
These arguments are essentially a summation of Bell’s and Cotton’s
arguments concerning the other issues on appeal and some additional
complaints as to the appropriateness of closing argument statements
37
made by the prosecution that Appellants often tried to humiliate
the victims.
The cumulative error doctrine provides relief only when
constitutional errors so “fatally infect the trial” that they
violated the trial’s “fundamental fairness.” Derden v. McNeel,
978 F.2d 1453, 1457 (5th Cir. 1992) (en banc). Appellants’
cumulative error arguments are rejected because we have determined
the district court did not err or, alternatively, whatever errors
did occur were harmless. Further, the evidence presented to the
juries was found to be sufficient and Appellants had ample
opportunity to point out any insufficiency. Finally, any
statements made about Appellants in closing arguments, although
potentially unflattering, were not false and were in fact supported
by the evidence submitted to the jury. See United States v. Ivy,
929 F.2d 147, 153 (5th Cir. 1991) (holding that unflattering
characterizations of the defendant do not require a new trial when
such descriptions are supported by the evidence). Therefore, there
was no cumulative error.
CONCLUSION
Having carefully reviewed the record of this case, the
parties’ respective briefing and arguments, for the reasons set
forth above, we affirm the convictions and sentences of Bell and
Cotton. The decisions of the district court in regard to Appellant
J.D. Bell are affirmed because the district court did not err in
38
allowing Bell’s confession to be introduced into evidence or in
allowing Pauline Cotton to serve as interpreter for George Cotton
at Bell’s trial. Therefore, the jury verdict convicting Bell is
affirmed. Likewise, the decision of the district court in
allowing Pauline Cotton to serve as interpreter for George Cotton
at Charles Cotton’s trial is affirmed. The decision of the
district court in allowing portions of J.D. Bell’s statement to be
admitted at Charles Cotton trial, however, was error and violated
Cotton’s Confrontation Clause rights. This error, however, was
harmless and therefore the jury verdict convicting Cotton is
affirmed. Finally, we also affirm the district court’s sentencing
of Cotton because the district court properly applied the
Sentencing Guidelines and did not abuse its discretion in enhancing
Cotton’s sentence.
AFFIRMED.
39
DENNIS, Circuit Judge, concurring in affirming the conviction and
sentence of J. D. Bell, but dissenting from the affirmance of the
conviction and sentence of Charles Cotton.
I concur in the affirmance of the conviction and sentence of
J. D. Bell and join fully in the panel opinion with respect to his
case.
I respectfully dissent from the majority’s affirmance of the
conviction and sentence of Charles Cotton. The majority’s opinion
with respect to Charles Cotton is correct and well done in every
respect except its determination that the violation of Cotton’s
constitutional right under the Fourteenth and Sixth Amendments to
be confronted with the witnesses against him was harmless error.
When there is a violation of a criminal defendant’s federal
constitutional right, the court of appeals must reverse the
conviction and sentence unless the government proves beyond a
reasonable doubt that the error was harmless in light of the other
evidence presented at trial. Chapman v. California, 386 U.S. 18,
24 (1967). A Confrontation Clause violation is not harmless unless
“there [is] no reasonable possibility that the tainted evidence
might have contributed to the jury’s verdict of guilty.” Lowery v.
Collins,
988 F.2d 1364, 1373 (5th Cir. 1993); Chapman, 386 U.S. at
at 23-24.
Judged against these standards, the Confrontation Clause
violation in this case was not harmless. There is a reasonable
-40-
possibility that Bell’s statement might have contributed to the
jury’s guilty verdict. The district court overruled the
defendant’s objection and permitted the prosecution to present the
testimony of Officer Sypniewski that Bell had given the police a
written statement in which he admitted bringing whiskey to Lee
Jim’s house and raping George Cotton there. This statement, which
was against Bell’s penal interest, tended to corroborate Lee Jim’s
testimony that after he, George Cotton, Bell, and Charles Cotton
had imbibed of the whiskey which Bell and Charles Cotton brought to
Lee’s house, Charles Cotton raped Lee Jim, while Bell raped George
Cotton. The statement of Bell, as testified to by officer
Sypniewski, flatly contradicted the testimony of Charles Cotton and
his wife Phyllis, who both stated that neither Charles Cotton nor
Bell entered Lee Jim’s home, brought whiskey there, or drank with
Lee Jim or George Cotton there on the day of the alleged rapes.
Further, the impact of the statement was not insignificant,
but rather was magnified, in light of the evidence or lack of
evidence at trial. The prosecution was unable to introduce any
medical or physical evidence that Lee Jim had ever been raped.
Thus, without the unconstitutional introduction of Bell’s
statement, the prosecution would have been forced to rely solely on
the testimony of Lee Jim and George Cotton to prove the rape
allegations. George Cotton’s speech impediment and the drunkenness
of both him and Lee Jim at the time of the alleged crime
significantly impaired their ability to provide clearly credible
-41-
eyewitness testimony directly tending to show that Charles Cotton
raped Lee Jim.
Lee Jim, a self-acknowledged alcoholic, admitted that he was
intoxicated on the day and at the time of the alleged rape. In
fact, he was in such a state of intoxication that during the 45
minutes when Millie Chickaway, Clay Wesley, and Chris John were in
his home, he did not stir from the prone position in which he was
found. Further, although he was taken to the hospital soon after
the alleged incident to have other injuries tended to, the
prosecution introduced no evidence that he complained of rape that
night. He did not complain of rape until more than a week after
the incident, too long afterwards for a doctor to determine whether
there had been medical evidence of a rape on the night in question.
George Cotton is a deaf-mute who was also intoxicated the day
of the incident. He was forced to convey his evidence through his
own improvised hand signals to his sister, Pauline Cotton, because
he does not know any recognized form of sign language. Because she
was deficient in English, Pauline Cotton’s interpretation of George
Cotton’s hand signals had to be conveyed in Choctaw to a Choctaw-
English translator. Pauline Cotton admitted before the jury that
she was a biased witness and defense witness Junior Cotton
testified that her translation was inaccurate and that several
times she coached George as to the signaled answers he should
provide. Although the district court did not abuse its discretion
in allowing the prosecution to use Pauline as an interpreter,
-42-
George Cotton’s sui generis deaf-mute sign language, the doubt cast
upon the veracity of Pauline’s translation of it into Choctaw, and
George Cotton’s drunkenness at the time of the alleged offense
would allow a reasonable jury to discount his testimony.
The testimony of the remaining three witnesses, Chickaway,
Wesley, and John did not add much, if anything, to the
prosecution’s case. These witnesses arrived at Jim’s home sometime
after the alleged unlawful conduct occurred. Although they were
able to testify that Lee Jim was found in a prone position, none of
these witnesses could place Charles Cotton at the alleged crime
scene, much less testify that Charles Cotton raped Lee Jim.
Considering the foregoing frailties in the prosecution’s
evidence, without Bell’s statement which flatly contradicted the
testimony of Charles Cotton and his wife and placed him at the
scene at the time of the alleged crime, the prosecution’s case
against Charles Cotton would have been much weaker. There was no
medical evidence that a rape had occurred, there was no physical
evidence placing Charles Cotton inside Lee Jim’s home, and there
was no clearly credible eyewitness testimony as to what occurred in
Lee Jim’s home on the day of the alleged incident.
The government must prove that the error was harmless beyond
a reasonable doubt, meaning that there is no reasonable possibility
that the tainted evidence might have contributed to the jury’s
verdict of guilty. Considering the weaknesses in the prosecution’s
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evidence, I do not believe the government has proven beyond a
reasonable doubt that the unconstitutional admission of Bell’s
statement was harmless. On the contrary, I think there clearly is
a reasonable possibility that the tainted evidence might have made
the difference in at least one juror’s vote and therefore might
have contributed to the verdict of guilty.
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