U.S. v. Powers, 06-1684.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation500 F.3d 500
Docket NumberNo. 06-1684.,06-1684.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jethro Rene POWERS, Defendant-Appellant.
Decision Date12 September 2007
500 F.3d 500
UNITED STATES of America, Plaintiff-Appellee,
Jethro Rene POWERS, Defendant-Appellant.
No. 06-1684.
United States Court of Appeals, Sixth Circuit.
Argued: July 24, 2007.
Decided and Filed: September 12, 2007.

[500 F.3d 502]

ARGUED: Jonathan M. Epstein, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Jennifer Peregord Sinclair, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Jonathan M. Epstein, Bradley R. Hall, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Jennifer Peregord Sinclair, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: COLE and GILMAN, Circuit Judges; MARBLEY, District Judge.*

[500 F.3d 503]


ALGENON L. MARBLEY, District Judge.

Defendant-Appellant Jethro Rene Powers appeals his conviction for possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). The Sixth Amendment's Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), requires that a defendant be able to confront his accuser if the accuser's "testimonial" statements are introduced at trial. Powers contends that the district court violated his Sixth Amendment rights by allowing police officers to testify regarding statements made by their Source of Information ("SOI")1 relating to "Powers's drug-selling background, the type and weight of the narcotics, the identification of the vehicle driven by Powers, the time and location of meeting places and most importantly, the SOI's eventual identification of Powers." (Def.'s Brief at 5.) The Government did not call the SOI as a witness at trial and thus, Defendant could not cross-examine him.

Defendant also contends that the district court abused its discretion and acted in a biased manner when it consistently interrupted, derided, and truncated defense counsel's cross-examination of witnesses. Defendant asks this Court to reverse his conviction and remand this case for a new trial. For the reasons discussed below, we AFFIRM Defendant's conviction.


The relevant facts are not disputed.

On December 15, 2004, after a trial lasting slightly longer than a day, a jury in the Eastern District of Michigan returned a guilty verdict against Defendant for violating 21 U.S.C. § 841(a)(1), after finding that he possessed, with the intent to distribute, approximately one kilogram of cocaine.

In September 2004, the SOI notified a narcotics task force consisting of officers from the Drug Enforcement Agency ("DEA"), Michigan State Police, and Detroit Police Department that Defendant was trafficking in significant quantities of cocaine. Subsequently, the task force set up a sting operation targeting Defendant on September 20, 2004. At the direction of the police, the SOI called Defendant and arranged to purchase two kilograms of cocaine from him in the parking lot of a Circuit City store in Detroit, Michigan. The SOI, along with Michigan State Police undercover Officer Keely Cochran ("Officer Cochran"), traveled to the location of the transaction. Detroit Police Officer Michael Patti ("Officer Patti") performed surveillance from a nearby site.

The SOI exchanged several cellular telephone calls with Defendant, some of which the SOI recorded using a police-issued earpiece recorder. The recordings indicate that Defendant was in possession of one kilogram of cocaine and was attempting to procure another kilogram to satisfy the amount that the SOI requested. On the recordings, Defendant also stated that he was driving a white van. Approximately an hour-and-a-half later, Defendant and the SOI agreed to move the location of the transaction to the nearby Home Depot parking lot because the Circuit City store was about to close. Subsequently, Defendant maneuvered his white van along side the car occupied by the SOI and Officer Cochran. Without the SOI and Defendant engaging in a drug transaction, police officers stopped the van, arrested Defendant, and discovered approximately one kilogram of powder cocaine in the vehicle.

500 F.3d 504

At trial, the Government called three witnesses: Officer Patti, Officer Cochran, and Agent Ponman.2 During their testimony, Officers Patti and Cochran offered information learned from and statements made by the SOI, some of which were direct quotes from the SOI and some of which represented information that the officers learned only through their interactions with the SOI. The district court admitted these statements over a myriad of hearsay objections and two Confrontation Clause objections because it found that, in general, these statements were "not offered for the truth of the matter stated." The objectionable information learned from the SOI can be divided into three main categories: (1) background information on the Defendant—i.e, that Defendant was a well-known cocaine dealer—ostensibly admitted to show why the officers undertook the sting operation; (2) the SOI's identification of the white van as Defendant's vehicle; and (3) the SOI's identification of Defendant.3

During the course of the trial, the court interjected twenty-six times during the one-hundred seventeen minutes defense counsel spent cross-examining the Government's witnesses.4 Most of these interjections can be characterized as the court's sua sponte objections to the relevance of defense counsel's questions or the court's attempt to curtail counsel's continued desire to ask duplicative questions. On some occasions, the court commented that it did not see the relevance of defense counsel's line of questioning, and on others, the court simply told counsel to "go on to something else."5 In addition, after defense counsel questioned Officer Cochran regarding the telephone calls that the SOI did not record, the court commented that: "I think this witness is testifying honestly with regard to what he knows and doesn't know. I don't think this is impeaching. I don't think it's a credibility question, and I would like to you go on to something else." (J.A. 270.) Moreover, on two different occasions, the court threatened to impose sanctions against defense counsel if he did not cease certain lines of questioning. After the jury returned a guilty verdict against Defendant, the district court sentenced him to sixty-three months' incarceration, the bottom of the applicable Sentencing Guidelines range.

A. Confrontation Clause

Defendant asks this Court to review the admission of the SOI's statements de novo. The Government concedes that de novo review is normally the appropriate standard by which to review a Confrontation Clause challenge, but claims that because

500 F.3d 505

Defendant did not object to each instance in which the district court admitted information learned from the SOI into evidence, plain-error review should apply.

Generally, we review alleged violations of the Confrontation Clause de novo. United States v. Robinson, 389 F.3d 582, 592 (6th Cir.2004). If, however, a defendant does not object to an error in the district court, plain-error review applies. Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."); United States v. Hadley, 431 F.3d 484, 498 (6th Cir.2005) ("Because Defendant raised only a hearsay objection to these statements at trial, and did not challenge their admissibility on constitutional grounds, our review here is governed by the plain error standard."). In conducting such a review, we reverse only when we conclude that there is an: "(1) `error,' (2) that is `plain,' and (3) that `affect[s] substantial rights.'" Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citations omitted). If we determine that these three criteria are met, we "may then exercise [our] discretion to notice a forfeited error, but only if . . . the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 467, 117 S.Ct. 1544.

Defendant specifically raised a Confrontation Clause objection twice during the trial. He objected on constitutional grounds when Officer Patti testified regarding the SOI's identification of the white van and again when Officer Patti testified that the SOI identified Defendant as the target of the sting operation. Therefore, by the Government's own acknowledgment, we are obligated to review Defendant's second and third categories of objections—the SOI's identification of the white van and his identification of Defendant —de novo.

The question remains, however, whether the plain error standard or the de novo standard should apply to the first category of admitted material, i.e., the SOI's description of Defendant's prior criminal activities. Defendant argues that the plain error standard is inappropriate because his repeated hearsay objections were specific enough to put the trial court on notice of its alleged error. Hadley plainly rejects this argument. 431 F.3d at 498. Defendant further asserts that because the district court repeatedly silenced defense counsel before he could articulate the basis for his various objections, we must apply heightened scrutiny to our review. Defendant's argument has merit. Once he objected to the out-of-court statements on the basis of the Confrontation Clause, and the district court denied the objection, it would have proven fruitless to re-object on the same basis each time a witness proffered the SOI's out-of-court statements. Moreover, subsequent to Defendant's Confrontation Clause objections, the district court consistently overruled Defendant's objections without giving him an opportunity to state the legal basis for these objections. Defendant's first objection under the Confrontation Clause, however, came substantially after Officer Patti testified regarding the SOI's knowledge of...

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