732 F.3d 361 (5th Cir. 2013), 11-51205, United States v. Powell

Docket Nº:11-51205.
Citation:732 F.3d 361
Opinion Judge:EMILIO M. GARZA, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee v. Booker Anderson-Jay POWELL; April Marie Akin, Defendants-Appellants.
Attorney:Joseph H. Gay, Jr., Assistant U.S. Attorney, Ellen A. Lockwood, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee. Donna F. Coltharp, Assistant Federal Public Defender, Federal Public Defender's Office, Western District of Texas, S...
Judge Panel:Before JONES, SMITH, and GARZA, Circuit Judges.
Case Date:October 03, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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732 F.3d 361 (5th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee


Booker Anderson-Jay POWELL; April Marie Akin, Defendants-Appellants.

No. 11-51205.

United States Court of Appeals, Fifth Circuit.

October 3, 2013

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Joseph H. Gay, Jr., Assistant U.S. Attorney, Ellen A. Lockwood, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Donna F. Coltharp, Assistant Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, Margaret Loraine Schmucker, Austin, TX, for Defendants-Appellants.

Appeals from the United States District Court for the Western District of Texas.

Before JONES, SMITH, and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This appeal arises from the conviction and sentencing of Booker Anderson-Jay Powell (" Powell" ) and April Marie Akin (" Akin" ) on charges of conspiracy to possess cocaine base (" crack cocaine" ) with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. On appeal, Akin and Powell challenge the denials of their motions to suppress evidence under the Fourth Amendment, Powell challenges the admission of his co-defendant's inculpatory statements under the Bruton doctrine, Akin challenges the legal sufficiency of the evidence supporting conviction, and Powell challenges his sentence on two grounds— the propriety of a two-level enhancement entered under section 3B1.4 of the United States Sentencing Guidelines, and the substantive reasonableness of the final sentence imposed. For the reasons that follow, we AFFIRM the judgment of the district court.


Akin and Powell were students at Odessa College. They lived together in Odessa and had an infant daughter who was 18-months old at the time of trial. On January 13, 2011, Officer Dwayne Gerber, of the Lubbock Police Department, received a call from Cory Bracy (" Bracy" ), a confidential informant who had worked with Officer Gerber since 2010.1 Gerber testified that he had received credible information from Bracy in the past, but he learned that Bracy had lied to him about whether he was cooking crack cocaine and dealing drugs while serving as an informant. Bracy told Officer Gerber that a man called " Little Book" and a woman who had just left his home had purchased a quantity of crack cocaine and were en route to Midland, where they intended to sell the narcotics. Bracy described the make, possible model, and color of the vehicle. He also recounted the first three characters of the license plate. Bracy did not inform Officer Gerber that he had cooked the

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crack cocaine which " Little Book" had just purchased. Officer Gerber took this information to the Midland Police. He called Detective Marker, conveying the tip he had just received and stating that, in his belief, Bracy was sufficiently reliable for the tip to provide probable cause for a vehicle stop.

Detective Marker and his colleague Sergeant Fain established a surveillance position in Lamesa, Texas— a town on the most direct route between Lubbock and Midland. In time, the officers observed a vehicle matching the description provided by Officer Gerber. They began following the vehicle, each in an unmarked car. The officers followed the vehicle until it reached Midland, verifying its intended destination. The officers observed the vehicle change lanes without signaling and fail to maintain a signal lane of traffic. However, the unmarked cars could not perform a traffic stop, so they contacted the Midland Police to send a marked canine unit. Heeding this call, Officer Welch and his canine, Bruno, joined in the surveillance. Officer Welch observed the vehicle fail to maintain a single lane of traffic, and initiated a vehicle stop.

Powell, the driver, pulled the vehicle onto the grassy center median of Loop 250 in Midland. Akin and their infant daughter were passengers in the car. Officer Welch testified that he asked Powell to exit the vehicle, frisked him for weapons, and asked Powell to accompany him to the patrol vehicle to discuss the traffic violation where there was less danger from oncoming traffic. Officer Welch testified Powell consented to a search of his pockets for narcotics. He also performed a horizontal gaze nystagmus test and determined Powell was not under the influence. Officer Welch returned to the vehicle to speak with Akin. Approximately ten minutes into the traffic stop, Officer Welch ran Powell's and Akin's names through law enforcement databases to check for warrants. At this point, Officer Welch testified that he asked Powell for consent to search the vehicle, which was given. Powell disputes this fact. Midland Police policy requires occupants be removed from a car before it is searched. There was no safe location at the scene for Akin and her infant daughter to wait during the search. It was a cold winter's evening on the side of a busy Texas state highway. Officer Welch's canine unit could not accommodate the young mother and child and the unmarked vehicles were not on location. Officer Welch called for a back-up vehicle to remedy this problem. They waited 20-30 minutes for its arrival.

During this wait, Powell told Officer Welch that he " was coming from an apartment complex in Midland." However, Powell could not identify the name of the complex or its street location. When the search commenced, Officer Welch and Bruno entered the vehicle. Bruno " alerted" to the backseat of the car. Midland's police dogs are trained by a private company prior to their arrival, then they undergo an additional 20 hours of training with their handler and receive formal certification as a drug detection dog. Bruno was new to the force and had not yet received formal certification. Though his formal certification was received six weeks after the instant search, Officer Welch— who had handled two other drug dogs— testified that Bruno was fully trained. After alerting, Bruno was returned to his kennel. Officer Welch and other officers began searching the car. Detective Marker and Sargent Fain arrived on scene and asked Akin about her whereabouts. According to trial testimony, Akin stated she had come from Lubbock. During the search Powell was placed in handcuffs.

Because of inclement weather and the dangerous location of the vehicle, the officers

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moved the car to the Midland police station to continue the search. According to Detective Marker, although the officers never sought their consent for the move, Akin and Powell did not object. Powell contests this point. At the police station, the officers conducted a more thorough search of the vehicle. Detective Marker reported smelling drugs near the front of the car. The officers pried a button off of the dashboard. With a flashlight they could see drugs and U.S. currency stashed behind the dash. The officers recovered approximately 240 grams of crack cocaine and $1,400 in United States currency. Akin and Powell were interviewed in separate rooms. Detective Marker and Sergeant Fain testified that Akin admitted that she had been to Lubbock to meet with Bracy, also known as " Caine," to pick up crack cocaine.

Officers heard a ringing cell phone during the search of the car. The phone was located between the door and the driver's seat. Powell denied ownership of the phone. Akin claimed the phone belonged to Powell, denying her personal ownership. Later in the evening, officers looked at the phone's contents and identified a series of text messages between Powell and Bracy concerning their trip to Lubbock to purchase crack cocaine. At trial, the district court admitted the drugs, currency, cell phone, text messages and other evidence discovered from the search of the car.

Before trial, Akin and Powell filed motions to suppress evidence obtained during the search of the vehicle, which were denied. Powell filed a pre-trial motion in limine under the Confrontation Clause of the Sixth Amendment to exclude witness testimony about Akin's out of court statements. The district court denied this order but entered an order that the " government will not elicit a response that requires" a witness to make any statement one defendant made concerning the other.

Akin and Powell were tried by jury in a joint trial. Multiple witnesses testified as to Akin's and Powell's involvement in crack cocaine dealing. For example, Taeshiba Bracy, Cory Bracy's sister, testified that she and Powell sold crack cocaine from her beauty salon— approximately two or three kilograms in total. Taeshiba testified that Akin would bring more crack cocaine when she and Powell would exhaust their supply. Ashley Nicole Smith-McDowell testified that she bought crack from Powell since August 2010. Bracy testified that he and Powell would cook crack cocaine together with some frequency. He further stated that Akin would accompany Powell on his trips. Powell elected to testify, Akin did not. At trial, Akin's statements were introduced against her through investigating police officers' testimony. Sergeant Fain testified, " She said that she had been to Lubbock and had met a guy named Caine and picked up some ... cocaine, crack cocaine, was picked up and she drove back to Midland." Detective Marker testified: " Ms. Akin stated that she had traveled from Odessa to Lubbock on this date, the 13th, and had obtained a quantity of crack cocaine ... from somebody named Caine." During his cross-examination, Powell asserted that he did not go to Lubbock on the day in question. In response, the prosecution challenged Powell with Akin's out of court...

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