United States v. Cotton

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 2004
• Docket: 03-60254
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 20, 2004 For the Fifth Circuit Charles R. Fulbruge III Clerk

No. 03-60253

United States of America

Plaintiff-Appellee, v.

J.D. Bell

Defendant-Appellant.

No. 03-60254

Charles Cotton

Appeals from the United States District Court For the Northern District of Mississippi, Aberdeen

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

2 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

1 Neither Bell nor Cotton directly challenge the sufficiency of the evidence supporting their convictions, however, insofar as their arguments can be interpreted as a challenge to the sufficiency of the evidence presented by the government, we are required to “determine whether a rational jury could have found that the evidence established guilt beyond a reasonable doubt on each element of the offense, drawing all reasonable inferences from the evidence and viewing all credibility determinations in the light most favorable to the verdict.” United States v. Solis, 299 F.3d 420, 425 (5th Cir. 2002).

3 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

4 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.

5 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

6 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

7 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 sexual 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 understand there to be a complaint of sexual

assault nor did the doctors find evidence of sexual assault. Jim

was finally examined for evidence of sexual assault on October 28

by Dr. Callahan, but no evidence was found.

George Cotton was examined on October 18 by Dr. Callahan, but

no evidence of sexual assault was found. Ultimately, there was no

medical evidence of sexual assault presented at either trial, but

neither victim was examined for sexual assault until several days

after the alleged sexual assaults and the testimony presented by

the government indicted it was not unusual for no evidence of anal

rape to be found that many days after the alleged incident.

In the trial of J.D. Bell, F.B.I. Special Agent Sypniewski

testified about an interview of Bell that Sypniewski and Choctaw

2 Apparently, Jim’s ability to communicate in English was limited and he could have benefitted from an interpreter who spoke Choctaw.

8 Police Officer Butler conducted on October 25, 2002. Apparently,

Bell at first denied any involvement in the sexual assaults but

ultimately confessed to raping George Cotton. During the interview

the officers told Bell they did not believe him when he stated he

was not involved in the crime and they told Bell that lying to them

could cause Bell to serve jail time. The officers also lied to

Bell, telling him that they had physical evidence linking him to

the assault of George Cotton when they did not.

At the end of the interview, Bell gave a written statement

confessing that “Charles [Cotton] had anal sex [with] Lee Jim, Jr.,

and I had anal sex with George Cotton. Lee Jim and George did not

want this to happen.” Bell stated he felt remorse for his acts.

There was also a longer typewritten statement signed by Bell. In

this statement Bell explained the events of October 14. Bell

stated that: Charles Cotton hit Lee Jim several times after Jim

became upset at Cotton for making fun of him, after Jim was knocked

down to the floor, Cotton pulled down Jim’s pants and underwear and

told Bell, “Watch this, I’m gonna fuck this one,” then Cotton had

anal sex with Jim against Jim’s will and Jim tried to push Cotton

away but Cotton was too strong. Bell stated that he then pulled

George Cotton’s pants and underwear down and had anal sex with

George Cotton who was too intoxicated to make an effort to resist.

Bell also admitted to bringing whiskey to Jim’s house that

afternoon. In his statement Bell said he felt dirty after the

assaults, that he did not mean to hurt George, that he felt bad for

9 George, and that he had never had sex with a man before. Bell also

stated that he did not ejaculate when he raped George. Bell

further stated that Charles Cotton was “crazy and may have sexually

assaulted men before.” Bell said Charles Cotton was laughing about

the assaults immediately after they were finished and that Cotton

had told Bell to keep his mouth shut regarding the assaults. Bell

said he agreed to testify against Cotton and understood that the

interviewers could make no promises in return for Bell’s

cooperation.

Agent Sypniewski was subject to cross-examination concerning

the interview and his report of the interview was entered into

evidence. Bell’s statement and the agent’s testimony verified that

Bell wrote and read English and also understood his rights when

making the statement.

On October 28, 2002, a U.S. Magistrate Judge issued a warrant

for the arrest of Bell and Cotton, who were arrested the next day.

On October 30, 2002, a grand jury returned an indictment charging

Bell and Cotton with sexually abusing the two male Choctaws. On

motion of the government, the U.S. Magistrate Judge detained

Cotton.

Bell filed several pretrial motions, including motions to

suppress his out-of-court confession and to prevent George Cotton

from testifying, arguing that he was incompetent because he could

not hear or speak. Prior to trial, Cotton moved for severance

based on co-defendant Bell’s confession of raping George Cotton.

10 The district court granted Cotton’s motion.

After selecting juries for the two trials, the district court

held a hearing on Bell’s motion to suppress his confession and his

motion to disqualify George Cotton from testifying, which Charles

Cotton joined. The court observed George and the proposed

interpreter, Pauline Cotton, George’s sister. At one point during

the hearing, George Cotton misidentified Bell as the person who

assaulted Lee Jim and Cotton as the person who assault him.

However, after observing George and Pauline, the district court

found George competent and allowed Pauline to serve as his

interpreter. The court also denied the motion to suppress Bell’s

statement, finding the statement was voluntary.

As described supra, at both trials the government presented

the two victims, who testified that they were raped and that each

observed the other being raped. Other witnesses testified to the

scene and to the condition of the two victims.

Both Bell and Cotton attempted to create an alibi. The jury

heard evidence from Cotton’s wife, mother, and two aunts,

attempting to establish that Bell and Cotton were at Cotton’s

mother’s house all afternoon except when they went with Cotton’s

wife to Cotton’s aunt’s house around 4:30 p.m. There was some

other alibi evidence, some of which was conflicting but ultimately

there was a period of time from 2:00 p.m. until 4:30 p.m. where no

alibi was established. The government argued at both trials that

the sexual assaults occurred during this open period of time. Bell

11 and Cotton argued that the testimony the government presented at

Bell’s trial established that the assaults occurred at 2:00 p.m.

and the testimony at Cotton’s trial established that the assaults

occurred at 6:00 p.m.

Bell chose not to testify at his trial. Charles Cotton and

his wife, Phyllis, testified at Cotton’s trial that Lee Jim’s and

George Cotton’s testimony was inaccurate. Charles and Phyllis

testified that Bell, Charles, and Phyllis Cotton went to Jim’s

house that afternoon but Jim and George were already there drinking

antiseptic. Charles and Phyllis further stated that neither they

nor Bell ever entered the house.

At his trial, Charles Cotton also denied the sexual assault

allegations, claiming that he was a heterosexual and his love for

women would prevent him from raping a man. Cotton did, however,

admit that he had in the past shaved off Jim’s eyebrows and hair

and pulled down Jim’s pants, claiming it was “humor.”

After Bell’s trial, the court granted judgment of acquittal as

to Count II of the Indictment, the charge alleging that Bell

sexually abused Lee Jim. The jury convicted J.D. Bell of sexually

abusing George Cotton. After his trial, Bell filed a motion for

judgment of acquittal or, in the alternative, for a new trial. The

district court denied the motion, and on March 6, 2003, the

district court sentenced Bell to, inter alia, 72 months’

incarceration. Bell filed a notice of appeal on March 11, 2003.

After Bell’s trial but before the trial of Charles Cotton, the

12 government requested that the district court immunize Bell and

ordered him to testify in Charles Cotton’s trial. After being

immunized, Bell refused to testify and the district court held that

Bell was unavailable under the Federal Rules of Evidence. The

government then introduced, over Cotton’s objections, a summary of

portions of Bell’s statement, via Agent Sypniewski‘s testimony,

showing: 1) Bell had been advised of his rights and signed a waiver

agreeing to give a statement; 2) Bell had brought whiskey to the

home of Lee Jim on October 14, 2002; 3) Bell had raped George

Cotton that day; and 4) Bell had signed a written statement to that

effect and Bell understood what he was signing. Cotton’s counsel

then cross-examined the agent concern the interview process and the

voluntariness and trustworthiness of the statement.

After Cotton’s trial, the Court acquitted Cotton as to Count

I of his Indictment, the charge for the sexual assault of George

Cotton. The jury convicted Charles Cotton of raping Lee Jim, Jr.

Cotton filed motions for judgment of acquittal and new trial. The

district court denied the motions. On March 6, 2003, the district

court sentenced Cotton to, inter alia, 196 months’ incarceration.

Cotton received an enhanced sentence for causing serious bodily

injury and victimizing a vulnerable person. Cotton filed a notice

of appeal on March 11, 2003.

This Court consolidated the cases for appeal on July 23, 2003.

On appeal, Bell argues that the district court erred in

allowing into evidence his confession because it was not

13 voluntarily given. He also argues that the court erred in

instructing the jury concerning the confession. Cotton argues that

the district court erred in allowing admission of redacted portions

of Bell’s confession because it was hearsay with no applicable

exception and the admission violated Cotton’s Confrontation Clause

rights. He argues that the district court erred in instructing the

jury concerning the confession. Cotton also argues that the court

erred in enhancing his sentence for causing serious bodily injury

and victimizing a vulnerable victim. Both Bell and Cotton argue

that the district court erred in allowing Pauline Cotton, George

Cotton’s sister, to serve as interpreter for George at both trials

because she was biased and unqualified. Both Bell and Cotton also

make a catch-all argument that the cumulative effect of the

district court’s errors denied each a fundamentally fair trial.

DISCUSSION

I. Whether the district court erred in allowing the government to admit J.D. Bell’s confession into evidence at Bell’s trial and in its instruction to the jury concerning the voluntariness of the confession.

A district court’s determination that a confession is

voluntary is a question of law and is reviewed de novo, but the

factual conclusions underlying the determination are reviewed for

clear error. United States v. Garcia Abrego, 141 F.3d 142, 170

(5th Cir. 1998). When a defendant challenges the voluntariness of

a confession, the government must prove its voluntariness by a

14 preponderance of the evidence in order for the confession to be

admissible as substantive evidence at the defendant's criminal

trial. Id. Also, the Supreme Court has held that the admission of

an involuntary confession is trial error subject to a harmless

error analysis. Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

"A confession is voluntary if, under the totality of the

circumstances, the statement is the product of the accused's free

and rational choice." United States v. Broussard, 80 F.3d 1025,

1033 (5th Cir. 1996) In order for a defendant to establish that

his confession was involuntary, he must demonstrate that it

resulted from coercive police conduct and that there was a link

between the coercive conduct of the police and his confession.

Colorado v. Connelly, 479 U.S. 157, 163-65 (1986). This Circuit

has held that trickery or deceit is only prohibited to the extent

that it deprives the defendant of knowledge essential to his

ability to understand the nature of his rights and the consequences

of abandoning them. Soffar v. Cockrell, 300 F.3d 588, 596 (5th

Cir. 2002)(en banc); see also Self v. Collins, 973 F.2d 1198, 1205

(5th Cir. 1992) (finding that mere trickery alone will not

necessarily invalidate a confession).

The district court held an evidentiary hearing at which

Choctaw Police Officer Butler, F.B.I. Special Agent Sypniewski, and

J.D. Bell testified concerning Bell’s October 25, 2002, confession

in which Bell admitted to raping George Cotton. The testimony

established that Bell, a 21-year-old Choctaw Indian with limited

15 education, was taken into custody at approximately 2:30 p.m. on

October 25, but formal interrogation did not start until after 5:00

p.m. Bell’s confession was made shortly before 6:30 p.m. During

the one and a half hours of questioning, Bell first denied that

anyone was raped at Lee Jim’s house that afternoon, then stated he

was there but said that he had left the house to vomit because of

heavy drinking when Charles Cotton raped both victims. Then Bell

changed his story again and stated he had witnessed Charles Cotton

raping both of the victims. During the interrogation, each time

Bell denied raping anyone, the officers stated they did not believe

him. The officers also told Bell that lying to a federal agent was

a crime that could result in five years in jail. The officers also

lied to Bell and told him that they had physical evidence proving

that he had raped George Cotton when they did not have such

evidence. Despite the officers’ statements regarding the possible

imprisonment for lying to a federal officer and the “fake” physical

evidence, Bell still did not confess. The officers both testified

that Bell only confessed because of, as Bell stated, “his feeling

of guilt and remorse” for injuring George Cotton and participating

in a homosexual act. At the hearing, the district court found that

the techniques used by the officers did not overcome Bell’s will

and that Bell voluntarily made the confession. Therefore, the

court allowed the government to introduce the confession into

evidence at Bell’s trial.

During Bell’s trial, the government called Agent Sypniewski

16 who testified regarding all aspects of the confession and was

subjected to cross-examination regarding the circumstances

surrounding the confession, including the officer’s truthful and

false statements to Bell and the voluntariness of the confession.

At the conclusion of the trial, the court instructed the jury

regarding the confession and voluntariness.3

On appeal, Bell argues that the two interrogation techniques:

informing Bell that if he lied he could go to jail and lying to

Bell about the existence of physical evidence that connected him to

the sexual assault, even if permissible by themselves, when

combined created an impossible situation for Bell to withstand,

thereby forcing Bell to make the confession, even if he was

innocent of the crime confessed.

3 The instruction was patterned after:

§ 1.26. Confession--Statement--Voluntariness (Single Defendant)

In determining whether any statement, claimed to have been made by a defendant outside of court and after an alleged crime has been committed, was knowingly and voluntarily made, you should consider the evidence concerning such a statement with caution and great care, and should give such weight to the statement as you feel it deserves under all the circumstances.

You may consider in that regard such factors as the age, sex, training, education, occupation, and physical and mental condition of the defendant, his treatment while under interrogation, and all the other circumstances in evidence surrounding the making of the statement.

Instruction 1.26, Fifth Circuit Pattern Jury Instructions: Criminal (West 2001).

17 Bell cites no authority for his argument that the officers’

conduct was coercive or that it caused him to make an involuntary

confession. Bell merely makes the circular argument that no matter

what he said in response to the officers’ questions he would be

sent to jail, i.e., whether he admitted to raping George Cotton or

whether he lied to federal officers. This argument, of course,

assumes that denying he committed the rape was actually a lie which

in turn indicates it was not the officers’ techniques that forced

Bell into an impossible position but rather the fact that Bell,

according to his own argument, was not actually innocent.

Likewise, Bell was not forced to either lie or confess, he could

have remained silent.4 Finally, Bell does not articulate how the

officers’ lying about the physical evidence caused his confession

to be involuntary.

The officers’ misrepresentation about the existence of

physical evidence is the only potentially coercive conduct at issue

in this case. The district court at the hearing found that the

conduct did not overcome Bell’s will and that Bell’s confession was

voluntary. Even if the officers’ conduct was coercive, it appears

Bell has not established that there was a link between the

officers’ lying about having physical evidence and Bell’s

confession. Therefore, the district court did not err in allowing

4 Bell ignores the fact that he had the right to remain silent and does not make any arguments implicating a violation of his Miranda rights, other Fifth Amendment rights, or Sixth Amendment rights.

18 the government to present the confession evidence.

Likewise, at trial, Bell’s attorney conducted a rigorous

cross-examination concerning the confession and argued to the jury

that the confession was involuntary. The court instructed the jury

as to the voluntariness question. The jury in making its ultimate

decision must have concluded that the confession was voluntary or

that Bell was guilty without considering the confession.

Therefore, either there was no error concerning the admission of

the confession and the instruction to the jury because the jury

found the confession to be voluntary, or whatever error occurred

was harmless. Accordingly, the district court’s decision to allow

the government to admit the confession into evidence and the

court’s instruction at Bell’s trial are affirmed.

II. Whether the district court erred when it allowed the sister of George Cotton, a deaf and mute victim, to interpret George’s testimony at both trials.

We review the decision to appoint an interpreter for abuse of

discretion. United States v. Ball, 988 F.2d 7, 9 (5th Cir. 1993).

The district court “must take into consideration the unique

circumstances of each case including the interpreter’s interest and

involvement in the case.” Id. at 10. The nature of the witness’s

handicap may make “it necessary for the trial court to appoint

someone familiar with the witness” thus “prevent[ing] the court

from obtaining a wholly disinterested person.” Id. (internal

quotes and citation omitted). The ultimate issue is whether the

19 use of the interpreter “made the trial fundamentally unfair.”

Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989).

George Cotton is deaf and mute. He is able to effectively

communicate through a form of sign language, a system of grunts and

gestures, that is understood by family and friends familiar with

him. The district court held a competency hearing before Bell’s

trial to determine whether George would be able to testify and who

should serve as interpreter when George testified. At the hearing,

Bell and Charles Cotton objected to the use of Pauline Cotton,

George’s sister, as interpreter. The government proposed another

interpreter, Clay Wesley (who also served as a fact witness because

he observed the crime scene the night of the alleged sexual

assaults) which Appellants also objected to. Charles Cotton

offered Junior Cotton as a potential interpreter. Junior knew

George because he was George’s neighbor and he lived with Charles

Cotton’s aunt, who served as an alibi witness for Charles Cotton.

The government objected to the use of Junior because of his

relation to Charles and the fact that he lived with Charles’s aunt.

The district court decided to allow Pauline Cotton to serve as the

interpreter at both Bell’s and Charles Cotton’s trial. Because

Pauline speaks only Choctaw, her interpretation of George’s

testimony was translated into English by a government interpreter.

Both Appellants make several arguments as to why the district

court erred. First, both argue that the Fifth Circuit decision in

Prince v. Beto, which held that the district court erred in

20 appointing the husband of a deaf and mute victim as the interpreter

and reversed the defendant’s conviction, is controlling in this

case. 426 F.2d 875, 876-77 (5th Cir. 1970). In Prince, however,

a panel of this Court held that the husband should have been

prevented from serving as interpreter because the defendant had

proven that the husband attempted to extort money from the

defendant in exchange for the husband attempting to stop the

criminal prosecution against the defendant. Id. at 876. Yet even

the Prince court recognized that in some circumstances it may not

be possible to obtain “a wholly disinterested person” as

interpreter and “ordinarily a husband could qualify as an

interpreter.” Id. at 876-77. The present case is more similar to

United States v. Ball, where the court did allow a family member,

the wife, to interpret for a deaf witness. 988 F.2d at 9. In

Ball, much like in the present case, both sides were allowed to

question the wife with respect to her ability to interpret. Id.

Ultimately, the Ball court found that the longstanding relationship

between the wife and the witness made the wife qualified to serve

as interpreter. Id. In the present case, Pauline Cotton had no

personal knowledge of the events at issue, and the circumstances of

George’s method of communication made it impossible to find an

interpreter who was not a family member or close friend of George.

Therefore, Appellants’ arguments that Pauline should have been

excluded because she was George’s sister fail.

Second, both Bell and Charles Cotton claim the use of Pauline

21 Cotton as an interpreter violated the Court Interpreters Act,

28 U.S.C. § 1827. Bell argues that only qualified interpreters can

be used. The Act, however, specifically allows for an exception

when no qualified interpreter is available. 28 U.S.C. § 1827(b)(2)

Charles Cotton claims that Pauline Cotton’s non-continuous

translation of George’s answers was constitutionally unfair and

also violated the Act. “[W]ord for word translation” is the

“general standard,” however, “minor deviations from this standard

will not necessarily contravene a defendant’s constitutional

rights” and in “certain circumstances even ‘summary translations’”

would be permissible. United States v. Joshi, 896 F.2d 1303, 1309

& n.6 (11th Cir. 1990) (citation omitted). The issue is ultimately

whether the use of the interpreter “made the trial fundamentally

unfair.” Valladares, 871 F.2d at 1566. And because interpreters

present numerous trial difficulties, “the trial judge, who is in

direct contact with” the witnesses, Appellants, and the

interpreters “must be given wide discretion.” Id. Here, because

of the unique method used by George to communicate and the lack of

other options, the district court allowed George to testify via

Pauline’s interpretation and permitted Appellants to attack the

testimony and interpretation. Therefore, there was no violation of

the Court Interpreters Act.

Third, Bell also claims his confrontation rights were

violated. Bell, however, was able to cross-examine George Cotton

and therefore his rights were not violated. Bell also claims

22 George Cotton was not competent, under the Rules of Evidence, to

testify.5 The Federal Rules of Evidence, however, state that

“[e]very person is competent to be a witness except as otherwise

provided in these rules” and the Rules do not provide that deaf and

mute individuals are somehow lacking in competency to be witnesses

in federal court. Fed. R. Evid. 601. Therefore, these arguments

also fail.

The district court did not abuse its discretion in allowing

Pauline Cotton to serve as interpreter but rather allowed the

juries to make whatever determinations they believed fair. George

Cotton was subject to cross-examination in both Bell’s and Charles

Cotton’s trial. Also, Charles Cotton presented testimony from

Junior Cotton, the person Charles proposed should serve as

interpreter, as to the alleged erroneous interpretation conducted

by Pauline. The juries heard evidence and arguments that Pauline

Cotton loved her brother and wanted his attackers to be punished.

The court instructed both juries that they were to judge George

Cotton’s testimony and the interpretation thereof and give whatever

weight they deemed appropriate to the evidence. Accordingly, the

5 Bell cites an Eighth Circuit case, Anderson v. Franklin County, Mo., 192 F.3d 1125 (8th Cir. 1999), for the proposition that a deaf and mute who does not know a standardized system of sign language can be found not competent to testify. Id. at 1129. The holding of the Eighth Circuit in Anderson, however, was that there was no “clear and prejudicial abuse of discretion” by the district court when it excluded the videotape testimony of a deaf and mute witness after determining the testimony was not reliable. Id. The Eighth Circuit noted that the testimony would have been “largely, if not totally, cumulative.” Id. at 1130.

23 decision of the district court to allow Pauline Cotton to serve as

interpreter at both trials was not an abuse of discretion and is

affirmed.

III. Whether the district court erred in allowing the government to introduce portions of J.D. Bell’s statement into evidence at Charles Cotton’s trial and in its instruction to the jury concerning the statement.

Whether the admission of objected-to evidence under

Rule 804(b)(3), Federal Rules of Evidence, was proper is a mixed

question of law and fact; the factual determinations are reviewed

for clear error and the legal issues are reviewed de novo. See

United States v. Bagley, 537 F.2d 162, 166 (5th Cir. 1976).

Alleged violations of the Confrontation Clause are reviewed denovo,

but are subject to a harmless error analysis. United States v.

McCormick, 54 F.3d 214, 219 (5th Cir. 1995).

Co-Appellant, J.D. Bell, was convicted of raping George Cotton

prior to Charles Cotton’s trial. For Charles Cotton’s trial, the

government sought and obtained an order immunizing Bell’s

testimony. Bell refused to testify and was held in contempt for

refusing to testify. The government then introduced a summation of

only part of Bell’s statement, via Agent Sypniewski‘s testimony.

Specifically, Agent Sypniewski testified that: 1) Bell had been

advised of his rights and signed a waiver agreeing to give a

statement (the written waiver was also introduced into evidence as

an exhibit); 2) Bell had brought whiskey to the home of Lee Jim on

October 14, 2002; 3) Bell had raped George Cotton that day; and

24 4) Bell had signed a written statement to that effect and Bell

understood what he was signing. The testimony introduced did not

mention Charles Cotton nor was any of Bell’s written statement

actually introduced as an exhibit. Cotton’s counsel then cross-

examined Agent Sypniewski regarding the interview of Bell, the lack

of a videotape record of the interview, the statement made, and

Bell’s claim that the statement was coerced.

On appeal, Charles Cotton claims the admission of the agent’s

testimony concerning the statement is hearsay subject to no

exception and violates the Confrontation Clause. Cotton also

claims the district court, sua sponte, was required to give a

limiting instruction to the jury when the statement was introduced

into evidence and that the court did not properly instruct the jury

concerning the statement before the jury deliberated.

The hearsay and Confrontation Clause determinations are

separate issues, yet courts analyzing these issues have applied the

same “particularized guarantees of trustworthiness” test for each.

Idaho v. Wright, 497 U.S. 805, 814-15 (1990) (noting that the

“hearsay rules and the Confrontation Clause are generally designed

to protect similar values” but cautioning against equating the two

as equals).

Rule 804(b)(3) of the Federal Rules of Evidence provides in

pertinent part:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . . (3) Statement against interest. A

25 statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Fed. R. Evid. 804(b)(3). Restated, the rule requires: the

declarant be unavailable, the statement must subject the declarant

to criminal liability such that a reasonable person would not have

made the statement unless he believed it to be true, and the

statement must be corroborated by circumstances clearly indicating

trustworthiness. United States v. Sarmiento-Perez, 633 F.2d 1092,

1101 (5th Cir. 1981) (citations omitted).

The Sixth Amendment guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend. VI.

The Confrontation Clause, however, does not require the exclusion

of any statement made by a declarant who is not present. Ohio v.

Roberts, 448 U.S. 56, 66 (1980). Rather, a statement can be

admitted by showing the declarant is unavailable and that the

statement “bears adequate ‘indicia of reliability.’” Id.

In the present case, the first two requirements of Rule

804(b)(3) and the first requirement of the Confrontation Clause are

satisfied. The district court declared Bell unavailable after he

26 had been granted immunity yet refused to testify. Also the

district court found that in his statement used at Cotton’s trial,

Bell admits to a crime so far out of the ordinary, homosexual rape,

that no reasonable person would have made the statement unless it

was true.

There are two methods for satisfying the third requirement of

Rule 804(b)(3), which is also similar to the second requirement of

the Confrontation Clause, i.e., the trustworthiness of the

statement. United States v. Flores, 985 F.2d 770, 775 (5th Cir.

1993). If the hearsay statements are admitted under a “firmly

rooted exception” to the hearsay rule, trustworthiness is presumed.

Lilly v. Virginia, 527 U.S. 116, 124-25 (1999); see also Roberts,

448 U.S. at 66. If not, the statements must bear adequate “indicia

of reliability,” such that “adversarial testing would be expected

to add little, if anything, to the statements’ reliability.”

Lilly, 527 U.S. at 124-25; see also Roberts, 448 U.S. at 66.

The Supreme Court has stated that although some statements

that fall within the declaration-against-penal-interest concept may

be inherently reliable, the concept itself "defines too large a

class for meaningful Confrontation Clause analysis." Lee v.

Illinois, 476 U.S. 530, 544 n.5 (1986). Therefore, each category

of statements that falls within the exception must be analyzed to

determine whether statements in that category are inherently

reliable. More recently in Lilly v. Virginia, the Supreme Court

issued a plurality opinion which followed Lee’s framework of

27 dividing statements into categories. 527 U.S. at 127. The

plurality determined that admission of the entire statement of an

accomplice that contained portions which inculpated the accomplice

and the defendant on trial was “inherently unreliable.” Id. at

131. Similarly, this Circuit held in United States v. Flores, a

decision prior to Lilly, that "a confession by an accomplice

inculpating a defendant that is being offered as a declaration

against penal interest is not a firmly rooted exception" to the

hearsay rule, and thus not inherently reliable. Flores, 985 F.2d

at 775; see also United States v. Dean, 59 F.3d 1479, 1493 (5th

Cir. 1995). Accordingly, as per Lilly and Flores, the statement at

issue in this case cannot be presumed trustworthy because it does

not fit within a firmly rooted hearsay exception.

Because this type of hearsay statement does not fit within a

firmly rooted exception, then the required “indicia of reliability”

must be shown from "particularized guarantees of trustworthiness."

Flores, 985 F.2d at 774-75 (citing Wright, 448 U.S. at 65). The

Supreme Court in Wright held that these "particularized guarantees

of trustworthiness" include only the relevant circumstances "that

surround the making of the statement and that render the declarant

particularly worthy of belief." Wright, 497 U.S. at 819.

Corroborating evidence may not be considered because it "would

permit . . . bootstrapping on the trustworthiness of other evidence

28 at trial." Id. at 823.6

Again, a panel of this Circuit in Flores held that “statements

accusatory of another taken by law enforcement personnel with a

view to prosecution” should “generally be regarded as inadmissable

under the Confrontation Clause” because they are “inherently

unreliable.” Flores, 985 F.2d at 780. This holding, although

concerned with the admission of an entire statement that was taken

from grand jury testimony provided by a co-defendant who had plead

the Fifth Amendment and was therefore unavailable to testify at a

joint trial, likely limits our inquiry in the present case.7

Because of the holding in Flores, we must conclude that the

statement admitted here was also “inherently unreliable.”

6 The Confrontation Clause analysis excludes corroborating evidence because the rationale for allowing the evidence is "that the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation." Wright, 497 U.S. at 819 (quoting from 5 J. Wigmore, Evidence § 1420, p. 251 (J. Chadbourn ed., rev. 1974)). In other words, the evidence may only be admitted if it is "so trustworthy that adversarial testing would add little to its reliability." Id. at 821 The hearsay rule supports the values of the Confrontation Clause; however, in this Circuit if the Confrontation Clause is not implicated and the concern is only whether the statement is within the hearsay exception, the district court can properly consider any corroborating circumstances that clearly indicate that the statement is trustworthy. Dean, 59 F.3d at 1493. 7 The government in its argument only cites but does not discuss Flores, a decision that likely controls the resolution of this issue in this case. Rather, the government’s argument continually cites and relies on United States v. Vernor, 902 F.2d 1182 (5th Cir. 1990), a case this Circuit said in Flores was likely overruled by the Supreme Court’s holding in Wright and therefore explicitly overruled by the Flores decision. 985 F.2d at 774-75.

29 In the present case the government argues that the summary of

a portion of Bell’s statement that was admitted did not inculpate

Cotton because it made no mention of Cotton and only inculpated

Bell in regards to bringing whiskey to Lee Jim’s house and raping

George Cotton. The government’s argument is essentially that the

statement does not accuse Cotton of anything and therefore is not

even hearsay and presents no Confrontation Clause problem. This

semantic argument fails for two reasons. First, the statement is

hearsay whether or not it accuses Cotton of wrongdoing because it

is an out of court statement offered to prove the truth of the

matter asserted. Fed. R. Evid. 801(c). Second, as to whether

there is a Confrontation Clause problem, even the portions of the

statement that were admitted inculpate Cotton or they would not

have been relevant and therefore not admitted, and as such, their

admission presents a Confrontation Clause issue. Cotton claimed,

inter alia, at his trial that there was no whiskey at Lee Jim’s

house, that no one was raped, and that he was not involved with

anything that happened to George Cotton. The summary of a portion

of Bell’s statement was inculpatory to Charles Cotton in regard to

these claims insofar as the statement contradicts Cotton’s

arguments.

The district court found Bell’s statement to be trustworthy

and allowed it to be admitted despite acknowledging that the

statement may not fit within a firmly rooted exception. It is not

clear why the district court found the statement to be trustworthy

30 and it is also unclear whether or not the district court

impermissibly considered corroborating evidence. In its denial of

Cotton’s motion for acquittal, the district court states that

unlike the statement in Lilly, Bell’s statement did not attempt to

shift blame and therefore could be considered trustworthy. Citing

Lilly, 527 U.S. at 139. But even had the district court not

considered corroborating evidence, the Flores holding appears to

foreclose the admission of the redacted statement in this case and

therefore no inquiry into whether the statement has "particularized

guarantees of trustworthiness" is necessary.

Further, it simply is not clear based on this record whether

the statement has "particularized guarantees of trustworthiness."

Cotton argues that Bell’s statement is exactly the type of

statement that is considered unreliable because of the

circumstances under which it was made, i.e., a police investigation

of an accomplice who may be trying to curry favor or shift blame

with the information he is giving. The government, impermissibly

relying on corroborating evidence, insists the statement is

trustworthy. Viewing the entire statement and the circumstances

under which it was made, it does appear that Bell was attempting to

shift some of the blame to Cotton, indicating Cotton was the leader

or instigator.8 In fact, before Bell admitted to raping George, he

8 We note, it is not just the portions of the statement that are offered into evidence that are considered when the court is determining the trustworthiness of the statement, the redacted portions are considered as well. See United States v. Alvarez,

31 claims in his statement that Charles Cotton raped both George and

Lee Jim. In the statement Bell also says that Charles Cotton is

“crazy and may have sexually assaulted men before.” On the other

hand, it does not appear the statement was made to curry favor with

the investigating officers but rather because, according to the

investigating officers and portions of Bell’s own statement, Bell

felt remorse for his acts. Nonetheless, insofar as this statement

is governed by the holding in Flores and therefore inadmissible, we

are prevented from having to decide this issue anyway.

Because the evidence was improperly admitted, we must

determine if the error was harmless. McCormick, 54 F.3d at 219.

“For an appellate court to find that a violation of a federal

constitutional right is harmless, it must be convinced beyond a

reasonable doubt that the error was harmless in light of the other

evidence presented at trial.” United States v. Vejar-Urias, 165

F.3d 337, 340 (5th Cir. 1999).

The testimony of Agent Sypniewski was related to the issues of

whiskey and the rape of George Cotton. After the government rested

and before Charles Cotton presented his defense, Cotton’s counsel

motioned the district court for judgment of acquittal as to both

counts of the Indictment. The court granted judgment of acquittal

as to Count I, which was the charges relating to George Cotton,

including the aiding and abetting charge. Therefore, the portions

584 F.2d 694, 701 (5th Cir. 1978).

32 of Bell’s statement that were admitted had become, by judgment of

acquittal, irrelevant. In fact, following the judgment of

acquittal, Cotton’s counsel, outside the presence of the jury,

asked for the testimony relating the Bell’s statement to be

stricken due to its lack of relevancy. Accordingly, any error that

occurred in admitting the testimony was harmless insofar as the

testimony was related to a count of the indictment that Cotton was

ultimately acquitted of. Further, insofar as the objected to

evidence remained relevant after the judgment of acquittal, the

record indicates the information in the portions of Bell’s

statement that were admitted had already been brought out via the

testimony of the victim, Lee Jim, as well as through George

Cotton’s testimony. Accordingly, admission of the testimony

summarizing portions of Bell’s statement was harmless error and

therefore the jury verdict is affirmed.

Charles Cotton also argues that the district court erred by

not, sua sponte, issuing a limiting instruction when Bell’s

statement was introduced and by not properly instructing the jury

before it deliberated. This Court reviews Appellant’s claims

regarding jury instructions by determining “whether the court’s

charge, as a whole, is a correct statement of the law and whether

it clearly instructs jurors as to the principles of the law

applicable to the factual issues confronting them.” United States

v. Wise, 221 F.3d 140, 147 (5th Cir. 2000). Where no objection is

made or no request for a jury instruction is given, the Fifth

33 Circuit reviews such claims for plain error. United States v.

Iwegbu, 6 F.3d 272, 274 (5th Cir. 1993).

Cotton’s argument claiming error fails for several reasons.

First, the district court did issue an instruction concerning the

voluntariness of the statement prior to deliberation.9 Second,

Cotton erroneously cites several cases for his argument that a

limiting instruction had to be issued to cure any Confrontation

Clause violation when the statement was admitted into evidence.

This argument is erroneous because if there was a Confrontation

Clause violation, a limiting instruction would not ameliorate the

constitutional problem—the evidence was either permissible or not.

Bruton v. United States, 391 U.S. 123, 136-37 (1968); United States

v. Jobe, 101 F.3d 1046, 1067 (5th Cir. 1996). Third, at the jury

instruction conference, Cotton’s counsel was very active in helping

craft the instructions and specifically discussed with the judge an

instruction addressing the admitted testimony concerning Bell’s

statement. The district court judge stated that he thought any

instruction would unnecessarily draw attention to the testimony and

Cotton’s counsel seemed to agree. Therefore, there was no error in

the instructions.

In summary, the district court erred in allowing Bell’s

statement to be admitted at Cotton’s trial because it did not

9 The instruction given was adapted from Instruction 1.26, Fifth Circuit Pattern Jury Instructions: Criminal (West 2001). See Footnote 3.

34 satisfy the Rule 804(b)(3) hearsay exception requirements and

because it violated the Confrontation Clause; however, the error

was harmless. There was no error concerning the jury instruction.

Accordingly, Cotton’s conviction is affirmed.

IV. Whether the district court erred in sentencing Charles Cotton.

We review the sentencing court’s factual findings for abuse of

discretion and the application of the United States Sentencing

Guidelines de novo. United States v. Scurlock, 52 F.3d 531, 539

(5th Cir. 1995). If the district court’s findings are “plausible”

in light of a review of the record as a whole, we will affirm. Id.

Charles Cotton argues that the district court erred when it

enhanced by two-levels his sentence for inflicting “serious bodily

injury” under § 2A3.1(b)(4)(B) of the Sentencing Guidelines. He

also argues that the district court erred in enhancing his sentence

for victimizing a vulnerable person.

Section 2A3.1(b)(4) provides for a two-level enhancement if

“the victim sustained serious bodily injury.” That term is defined

in § 1B1.1, Application Note 1(I) as “injury . . . requiring

medical intervention such as surgery, hospitalization, or physical

rehabilitation.” At the scene of the crime, the Choctaw police

officer determined that Lee Jim needed to be taken to the hospital

because of his physical condition. It is undisputed that he

remained hospitalized overnight with a variety of medical

complaints.

35 Further, § 1B1.1 Application Note 1(I) also instructs that

“serious bodily injury” is deemed to have occurred if the offense

involved conduct constituting criminal sexual abuse under 18 U.S.C.

§ 2241 or § 2242. Cotton was convicted under 18 U.S.C. § 2242,

which is captioned “Aggravated sexual abuse.”

Inconsistently, however, § 2A3.1 Application Note 1, explains

that the term “serious bodily injury,” for that section “means

conduct other than criminal sexual abuse, which already is taken

into account in the base offense level.” It is not clear how this

inconsistency is to be worked out. Nonetheless, in the present

case there was additional evidence, other than the rape, that Jim’s

face was swollen as though he had been beaten and this is

sufficient for the two-level enhancement for inflicting serious

bodily injury.10 Therefore, the district court did not err in

enhancing Cotton’s sentence for causing serious bodily injury.

A sentencing court is required to make particularized findings

on any disputed issue arising from the Presentencing Report

(“PSR”). United States v. Hooten, 942 F.2d 878, 881 (5th Cir.

1991). Cotton disputed the PSR’s classification of Lee Jim as a

vulnerable victim and its recommendation that Cotton’s sentence be

10 Cotton cites United States v. Guy, 282 F.3d 991, 997 (8th Cir. 2002) (vacating a sentence and remanding to the district court to determine if there was serious bodily injury apart from the sexual abuse), for the proposition that his sentence cannot be enhanced. In Guy, unlike in the present case, the sexual abuse was not reported until months later and there was no independent evidence of serious bodily injury. Id. at 992.

36 enhanced two levels for victimizing a vulnerable person. The

district court heard evidence at trial of Lee Jim’s alcoholism, his

inability to communicate with others, and his financially

vulnerable condition. The court also heard testimony of Cotton

forcing Jim to drink and then hitting Jim about the head, raping

him, and leaving him face down with his pants around his ankles

covered in flour and milk. Further, Cotton himself offered

testimony that he had humiliated Lee Jim for fun on previous

occasions. Also, the court observed at sentencing:

The Court heard testimony in the case relative to the victim, Mr. Jim, [and] had an opportunity to observe him. I think the proof in the case was the defendant himself admitted on previous occasion he pulled [Mr. Jim’s] pants down, admitted he shaved his eyebrows and whatnot. That just doesn’t sound to me like a man who can fend for himself.

Accordingly, the district court did make particularized findings to

support the enhancement for victimizing a vulnerable person and the

record as a whole supports these findings as plausible. Therefore,

the district court did not err in enhancing Charles Cotton’s

sentence and the entirety of the sentence is affirmed.

Finally, both Bell and Cotton raise a final issue, claiming

that due to the numerous errors made by the district court there

was cumulation of error denying each a fundamentally fair trial.

These arguments are essentially a summation of Bell’s and Cotton’s

arguments concerning the other issues on appeal and some additional

complaints as to the appropriateness of closing argument statements

37 made by the prosecution that Appellants often tried to humiliate

the victims.

The cumulative error doctrine provides relief only when

constitutional errors so “fatally infect the trial” that they

violated the trial’s “fundamental fairness.” Derden v. McNeel,

978 F.2d 1453, 1457 (5th Cir. 1992) (en banc). Appellants’

cumulative error arguments are rejected because we have determined

the district court did not err or, alternatively, whatever errors

did occur were harmless. Further, the evidence presented to the

juries was found to be sufficient and Appellants had ample

opportunity to point out any insufficiency. Finally, any

statements made about Appellants in closing arguments, although

potentially unflattering, were not false and were in fact supported

by the evidence submitted to the jury. See United States v. Ivy,

929 F.2d 147, 153 (5th Cir. 1991) (holding that unflattering

characterizations of the defendant do not require a new trial when

such descriptions are supported by the evidence). Therefore, there

was no cumulative error.

CONCLUSION

Having carefully reviewed the record of this case, the

parties’ respective briefing and arguments, for the reasons set

forth above, we affirm the convictions and sentences of Bell and

Cotton. The decisions of the district court in regard to Appellant

J.D. Bell are affirmed because the district court did not err in

38 allowing Bell’s confession to be introduced into evidence or in

allowing Pauline Cotton to serve as interpreter for George Cotton

at Bell’s trial. Therefore, the jury verdict convicting Bell is

affirmed. Likewise, the decision of the district court in

allowing Pauline Cotton to serve as interpreter for George Cotton

at Charles Cotton’s trial is affirmed. The decision of the

district court in allowing portions of J.D. Bell’s statement to be

admitted at Charles Cotton trial, however, was error and violated

Cotton’s Confrontation Clause rights. This error, however, was

harmless and therefore the jury verdict convicting Cotton is

affirmed. Finally, we also affirm the district court’s sentencing

of Cotton because the district court properly applied the

Sentencing Guidelines and did not abuse its discretion in enhancing

Cotton’s sentence.

39 DENNIS, Circuit Judge, concurring in affirming the conviction and

sentence of J. D. Bell, but dissenting from the affirmance of the

conviction and sentence of Charles Cotton.

I concur in the affirmance of the conviction and sentence of

J. D. Bell and join fully in the panel opinion with respect to his

case.

I respectfully dissent from the majority’s affirmance of the

conviction and sentence of Charles Cotton. The majority’s opinion

with respect to Charles Cotton is correct and well done in every

respect except its determination that the violation of Cotton’s

constitutional right under the Fourteenth and Sixth Amendments to

be confronted with the witnesses against him was harmless error.

When there is a violation of a criminal defendant’s federal

constitutional right, the court of appeals must reverse the

conviction and sentence unless the government proves beyond a

reasonable doubt that the error was harmless in light of the other

evidence presented at trial. Chapman v. California, 386 U.S. 18,

24 (1967). A Confrontation Clause violation is not harmless unless

“there [is] no reasonable possibility that the tainted evidence

might have contributed to the jury’s verdict of guilty.” Lowery v.

Collins, 988 F.2d 1364, 1373 (5th Cir. 1993); Chapman, 386 U.S. at

at 23-24.

Judged against these standards, the Confrontation Clause

violation in this case was not harmless. There is a reasonable

-40- possibility that Bell’s statement might have contributed to the

jury’s guilty verdict. The district court overruled the

defendant’s objection and permitted the prosecution to present the

testimony of Officer Sypniewski that Bell had given the police a

written statement in which he admitted bringing whiskey to Lee

Jim’s house and raping George Cotton there. This statement, which

was against Bell’s penal interest, tended to corroborate Lee Jim’s

testimony that after he, George Cotton, Bell, and Charles Cotton

had imbibed of the whiskey which Bell and Charles Cotton brought to

Lee’s house, Charles Cotton raped Lee Jim, while Bell raped George

Cotton. The statement of Bell, as testified to by officer

Sypniewski, flatly contradicted the testimony of Charles Cotton and

his wife Phyllis, who both stated that neither Charles Cotton nor

Bell entered Lee Jim’s home, brought whiskey there, or drank with

Lee Jim or George Cotton there on the day of the alleged rapes.

Further, the impact of the statement was not insignificant,

but rather was magnified, in light of the evidence or lack of

evidence at trial. The prosecution was unable to introduce any

medical or physical evidence that Lee Jim had ever been raped.

Thus, without the unconstitutional introduction of Bell’s

statement, the prosecution would have been forced to rely solely on

the testimony of Lee Jim and George Cotton to prove the rape

allegations. George Cotton’s speech impediment and the drunkenness

of both him and Lee Jim at the time of the alleged crime

significantly impaired their ability to provide clearly credible

-41- eyewitness testimony directly tending to show that Charles Cotton

raped Lee Jim.

Lee Jim, a self-acknowledged alcoholic, admitted that he was

intoxicated on the day and at the time of the alleged rape. In

fact, he was in such a state of intoxication that during the 45

minutes when Millie Chickaway, Clay Wesley, and Chris John were in

his home, he did not stir from the prone position in which he was

found. Further, although he was taken to the hospital soon after

the alleged incident to have other injuries tended to, the

prosecution introduced no evidence that he complained of rape that

night. He did not complain of rape until more than a week after

the incident, too long afterwards for a doctor to determine whether

there had been medical evidence of a rape on the night in question.

George Cotton is a deaf-mute who was also intoxicated the day

of the incident. He was forced to convey his evidence through his

own improvised hand signals to his sister, Pauline Cotton, because

he does not know any recognized form of sign language. Because she

was deficient in English, Pauline Cotton’s interpretation of George

Cotton’s hand signals had to be conveyed in Choctaw to a Choctaw-

English translator. Pauline Cotton admitted before the jury that

she was a biased witness and defense witness Junior Cotton

testified that her translation was inaccurate and that several

times she coached George as to the signaled answers he should

provide. Although the district court did not abuse its discretion

in allowing the prosecution to use Pauline as an interpreter,

-42- George Cotton’s sui generis deaf-mute sign language, the doubt cast

upon the veracity of Pauline’s translation of it into Choctaw, and

George Cotton’s drunkenness at the time of the alleged offense

would allow a reasonable jury to discount his testimony.

The testimony of the remaining three witnesses, Chickaway,

Wesley, and John did not add much, if anything, to the

prosecution’s case. These witnesses arrived at Jim’s home sometime

after the alleged unlawful conduct occurred. Although they were

able to testify that Lee Jim was found in a prone position, none of

these witnesses could place Charles Cotton at the alleged crime

scene, much less testify that Charles Cotton raped Lee Jim.

Considering the foregoing frailties in the prosecution’s

evidence, without Bell’s statement which flatly contradicted the

testimony of Charles Cotton and his wife and placed him at the

scene at the time of the alleged crime, the prosecution’s case

against Charles Cotton would have been much weaker. There was no

medical evidence that a rape had occurred, there was no physical

evidence placing Charles Cotton inside Lee Jim’s home, and there

was no clearly credible eyewitness testimony as to what occurred in

Lee Jim’s home on the day of the alleged incident.

The government must prove that the error was harmless beyond

a reasonable doubt, meaning that there is no reasonable possibility

that the tainted evidence might have contributed to the jury’s

verdict of guilty. Considering the weaknesses in the prosecution’s

-43- evidence, I do not believe the government has proven beyond a

reasonable doubt that the unconstitutional admission of Bell’s

statement was harmless. On the contrary, I think there clearly is

a reasonable possibility that the tainted evidence might have made

the difference in at least one juror’s vote and therefore might

have contributed to the verdict of guilty.

-44-