Not Plain Error to Admit Non-Testifying Co-Defendant’s Confession to Cellmate (Most Circuits Limit Bruton to Testimonial Statements)

United States v. Vasquez, No. 12-41194 (5th Cir. Sept. 3, 2014) (Davis, Smith, Benavides)

Defendants Vasquez and Echeverria were jointly tried for conspiracy to possess methamphetamine with intent to distribute.  The first trial ended in a mistrial.  In the second trial, the Government introduced new evidence consisting of (1) Defendant Echeverria’s confession to a cellmate that both he and Defendant Vasquez participated in the conspiracy, and (2) Defendant Vasquez’s prior drug trafficking conviction.  

On plain error review, the panel found that admission of Defendant Echeverria’s jailhouse confession through the testimony of the cellmate did not violate Bruton or Crawford even though Defendant Echeverria did not testify.  The panel cited First, Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuit cases that limit Bruton to testimonial statements only, and Defendant Vasquez never disputed that Defendant Echeverria’s jailhouse confession was non-testimonial. 

Defendant Vasquez also challenged the admission of his prior conviction for possession of heroin under Federal Rule of Evidence 404(b).  The Government presented evidence of this conviction through the testimony of the California police officer who made the 1998 arrest and testified that Defendant Vasquez “look[ed] just like the pictures” of the individual convicted in California.  In other words, the officer had no personal recollection of Defendant Vasquez and was relying on the information in the file.  The panel found this to be sufficient evidence that Defendant Vasquez committed the prior bad act.

Both defendants argued on appeal that the evidence was insufficient to show that they were knowing participants in the conspiracy, but they both failed to renew their motions for judgment of acquittal at the close of trial.  So, the convictions could only be reversed if the convictions constituted “a manifest miscarriage of justice,” and the panel found that they did not.

Convictions and sentences affirmed.