U.S. v. Glass

• Decision Date: 31 October 1997
• Docket Number: 96-6342,Nos. 96-6328,s. 96-6328
• Citation: 128 F.3d 1398
• Parties: 47 Fed. R. Evid. Serv. 1427, 97 CJ C.A.R. 2704 UNITED STATES of America, Plaintiff-Appellee, v. Katrice Lashawn GLASS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry BURNETT, also known as Christopher Simmons, also known as Larry Miller, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1398

128 F.3d 1398

47 Fed. R. Evid. Serv. 1427, 97 CJ C.A.R. 2704

UNITED STATES of America, Plaintiff-Appellee, v. Katrice Lashawn GLASS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Larry BURNETT, also known as Christopher Simmons, also known

as Larry Miller, Defendant-Appellant.

Nos. 96-6328, 96-6342.

United States Court of Appeals Tenth Circuit.

Oct. 31, 1997.

Mark J. Kriger, Detroit, MI, for Defendant-Appellant Katrice Lashawn Glass.

Domnick J. Sorise, Clinton Township, MI, for Defendant-Appellant Larry Burnett.

Randal A. Sengel, Assistant U.S. Attorney (Patrick M. Ryan, United States Attorney, with him on the briefs), Oklahoma City, OK, for Plaintiff-Appellee.

Before PORFILIO, BRORBY, and KELLY, Circuit Judges.

PORFILIO, Circuit Judge.

A jury convicted Katrice Lashawn Glass of knowingly and intentionally possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Ms. Glass appeals, among other rulings, the district court's denial of an evidentiary hearing on her motion to suppress evidence. The same jury convicted Larry Burnett of aiding and abetting Ms. Glass in knowingly and intentionally possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Burnett appeals his conviction, arguing in part, (1) testimony elicited at trial in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), was not harmless error; and (2) the district court should have suppressed substantive evidence admitted during trial as the fruit of an allegedly unlawful seizure. We have consolidated Ms. Glass' and Mr. Burnett's separate appeals only for the purpose of disposition. Concluding the Bruton error was not harmless, we reverse the conviction of Mr. Burnett; however, unpersuaded by Ms. Glass' arguments, we affirm her conviction.

I. BACKGROUND

Four Oklahoma City detectives met with drug enforcement agents early one morning at the Will Rogers World Airport in Oklahoma City, Oklahoma. There, the DEA agents informed the detectives a black man and a black woman might be smuggling drugs on a flight arriving from Los Angeles. Drug interdiction officers who had seen the pair in Los Angeles believed the man and woman were traveling companions, although they appeared to be traveling separately. The man and woman had also paid cash for one-way tickets and boarded the plane at the last minute. According to the DEA agents, the man wore tan pants, the woman a yellow-colored outfit. The four detectives went to the gate to await the flight.

Soon after the flight arrived, a black man in tan pants deplaned. Detectives Rivers and Wenthold followed him and observed he had no carry-on luggage, walked alone, and stopped several times to look around. At the baggage claim area, the suspect circled the baggage carousel for a few minutes without picking up any luggage and left the terminal, ultimately standing on the sidewalk by the passenger loading zone.

Meanwhile, the other two detectives, Detectives Leach and Aragon, followed a yellow-clad black woman, one of the last passengers off the plane, through the terminal to the baggage claim area where she picked up two bags. When she stepped outside to the passenger loading zone, she stood only several feet away from the male suspect.

Detectives Rivers and Wenthold approached the male suspect. Rivers identified himself as a drug interdiction officer and asked to speak with the man, explaining to him he was free to leave and was not under arrest. The suspect agreed to speak, and Rivers asked to see his ticket. The suspect showed him a one-way ticket from Los Angeles, paid for with cash. Rivers requested identification, and the suspect produced an identification card bearing a woman's name, which Rivers returned, saying "this couldn't be you, this is a female." The suspect then produced a California driver's license in the name of Larry Miller. Later, through a fingerprint check, the man was identified as Larry Burnett.

After returning the ticket and identification, Detective Rivers told Mr. Burnett the detectives were looking for drugs and asked to pat him down for narcotics. Mr. Burnett put his hands up in the air. Rivers pat-searched him and felt a soft object in a pocket, which Mr. Burnett acknowledged was marijuana. Detectives Rivers and Wenthold arrested him.

Meanwhile, Detectives Leach and Aragon approached the female suspect. Leach engaged the woman in conversation, following essentially the same script Rivers had used with Mr. Burnett. The woman identified herself as Katrice Glass, and the exchange culminated in Ms. Glass' agreeing to a search of her bags.

Nestled among the male underwear and male socks in Ms. Glass' bags, Detective Leach uncovered twelve bars of crack cocaine, each one placed in a plastic bag, wrapped tightly with clear plastic tape, and tucked into a sock. The total weight was later found to be 5900 grams. Leach and Aragon arrested Ms. Glass immediately.

En route to the drug interdiction unit's offices for further questioning, Mr. Burnett called Ms. Glass a nickname and told her everything would be all right. Once there, the detectives searched Mr. Burnett more thoroughly and discovered a baggage claim check. The detectives reclaimed the bag, which contained shirts and pants, but no underwear or socks. Mr. Burnett professed not to know Ms. Glass and said he was traveling to Oklahoma City to visit his grandmother, Ruthy Maye Simmons.

During her separate interrogation, Ms. Glass also professed not to know Mr. Burnett claiming she had seen him for the first time on the plane. After further questioning, Ms. Glass relented and told the detectives Mr. Burnett was her half-brother and Ruthy Maye Simmons was her grandmother, who had died five years before.

Subsequently, in pretrial motions, Mr. Burnett and Ms. Glass sought to suppress the fruits of their respective searches. The district court denied Ms. Glass' motion summarily from the bench without an evidentiary hearing. In a written order following an evidentiary hearing, the district court also denied Mr. Burnett's motion.

Ms. Glass and Mr. Burnett were tried together. The prosecution's case consisted primarily of testimony by Detectives Leach and Rivers, each testifying to their respective arrests and interrogations of Ms. Glass and Mr. Burnett. Because the government had found no cocaine in Mr. Burnett's possession, the government's aiding and abetting case against Mr. Burnett hinged on establishing the relationship between Mr. Burnett and Ms. Glass. One-half hour into the trial, Detective Leach testified Ms. Glass had told him "she had knowingly transported the narcotics along with [Mr. Burnett] to Oklahoma City." This testimony elicited an objection and a motion for a mistrial from Mr. Burnett's counsel. The court overruled the objection and denied the motion, but gave a limiting instruction to the jury. The court also admitted Ms. Glass' statements regarding her relationship to Mr. Burnett and Ruthy Maye Simmons.

The only physical evidence against Mr. Burnett was a single fingerprint found on the adhesive side of a piece of tape wrapped around one of the twelve bundles of cocaine. At both opening and closing arguments, the prosecution stressed the familial relationship between Mr. Burnett and Ms. Glass and the apparent inconsistencies in their post-arrest statements. The jury convicted Ms. Glass of possession with intent to distribute and convicted Mr. Burnett of aiding and abetting. The court sentenced Ms. Glass to 188 months and Mr. Burnett to 292 months in prison. This appeal ensued.

II. LARRY BURNETT

A. Ms. Glass' Statements

Mr. Burnett challenges the introduction at trial of four of his codefendant's postarrest statements introduced into evidence through the testimony of an arresting officer. Three of them implicate the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). One of them raises a hearsay problem.

1. The first statement--Bruton.

Early in the trial, the first witness, Detective Leach, volunteered, in the presence of the jury: "As I was saying, yes, it did come to light by Ms. Glass that she knew Larry Burnett--a/k/a Chris Simms, Chris Simmons, Larry Miller--that she had knowingly transported the narcotics along with him to Oklahoma City." (emphasis added). Mr. Burnett's counsel immediately objected and requested a mistrial, arguing the officer's testimony implicated his client in violation of Bruton. The court denied the request and instead instructed the jury to consider the statement attributed to Ms. Glass only against Ms. Glass and not against Mr. Burnett, her codefendant. At the close of the government's case, and again after conviction, the defendant sought relief for the Bruton violation. The district court denied both motions, concluding "any statement of defendant Glass was minor compared to the overwhelming evidence presented against defendant Burnett." Mr. Burnett challenges this conclusion on appeal.

The Sixth Amendment secures to a criminal defendant the right to confront the witnesses presented against him. The Confrontation Clause ensures a defendant charged with a crime will have an opportunity to cross-examine the witnesses against him. Pointer v. Texas, 380 U.S. 400, 406-07, 85 S.Ct. 1065, 1069-70, 13 L.Ed.2d 923 (1965). A unique Confrontation Clause problem arises during a joint trial when one defendant's post-arrest statement inculpates a codefendant. If the declarant exercises her Fifth Amendment right not to testify, the implicated codefendant is unable to exercise his Sixth Amendment right to cross-examine and confront her inculpatory statements. In Delli Paoli v. United States, 352 U.S. 232, 239-42, 77 S.Ct. 294, 298-300, 1 L.Ed.2d 278 (1957), the Supreme Court concluded a limiting jury instruction not to use such statements as evidence against the codefendant cured any potential ...