U.S. v. Bell

• Decision Date: 20 April 2004
• Docket Number: No. 03-60254.,No. 03-60253.,03-60253.,03-60254.
• Citation: 367 F.3d 452
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J.D. BELL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Charles Cotton, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

367 F.3d 452

UNITED STATES of America, Plaintiff-Appellee, v. J.D. BELL, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Charles Cotton, Defendant-Appellant.

No. 03-60253.

No. 03-60254.

United States Court of Appeals, Fifth Circuit.

April 20, 2004.

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Paul David Roberts, Asst. U.S. Atty. (argued), Oxford, MS, for Plaintiff-Appellee.

Kenneth Harold Coghlan (argued), Rayburn Law Firm, Oxford, MS, for Bell.

John James Fraiser, III (argued), Choctaw Legal Defense, Choctaw, MS, for Cotton.

Appeals from the United States District Court for the Northern District of Mississippi.

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 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 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 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.

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 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 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 sexually 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...