Prosecutor Violated Bruton by Cross-Examining Defendant with Non-Testifying Co-Defendant’s Statements

United States v. Powell, No. 11-51205 (Oct. 3, 2013) (Jones, Smith, Garza)

Both Powell and Akin went to trial on charges of conspiracy to possess crack cocaine with intent to distribute and possession with intent to distribute.  The crack cocaine was discovered pursuant to a legitimate traffic stop and tip from an informant.  Akin made inculpatory statements after her arrest that the Government introduced at trial through the testimony of officers.  Akin did not testify, but Powell did.  During cross-examination of Powell, the prosecutor repeatedly asked Powell to explain Akin’s inculpatory statements.

The panel held that the introduction of Akin’s statements did not violate Bruton v. United States, 391 U.S. 123 (1968), because the statements “did not clearly refer to [Powell] and could only be linked [to him] through additional evidentiary material.”  The statements only focused on Akin’s personal actions and personal knowledge about the crack cocaine.  However, the panel held that the use of Akin’s statements against Powell through cross-examination violated Bruton and the Confrontation Clause because Akin did not testify, so Powell could not confront the witness against him.  The cross-examination “drew the jury’s attention to Akin’s statements and used her statements against” Powell thereby “significantly increas[ing] the danger of improper use” of the statements.  The Bruton error did not mandate reversal, though, because it was harmless given the weight of other evidence against Powell.

The panel also analyzed Powell’s and Akin’s suppression arguments but held that the duration of the stop did not violate Terry because officers had reasonable suspicion that Powell and Akin were transporting cocaine (based on the informant’s tip that contained very specific details) and that the intrusive search of the vehicle was based on probable cause (also the informant’s tip that was gradually corroborated by the officers’ investigation).

Lastly, the panel affirmed Powell’s sentence as reasonable and also the U.S.S.G § 3B1.4 use of a minor enhancement.  The panel reiterated that the test of whether the enhancement applies is purpose-driven:  whether the defendant took “‘some affirmative action to involve the minor in the offense’” and “‘used the minor to avoid detection.’”  (quoting United States v. Mata, 624 F.3d 170, 175 (5th Cir. 2010)).  Here, Powell decided to take the minor on a previously-planned drug trafficking trip.  The panel recognized a plausible explanation for the minor’s presence in the vehicle other than to avoid detection: both parents were young, in the vehicle, and without means for childcare.  However, Powell told the traffic officers that he was returning from picking up his child, which the panel took to “demonstrate use of a minor to avoid detection and provide the additional circumstantial evidence necessary under Mata” for the enhancement.