United States v. Cooper

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 17, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
____________________
No. 02-60701
____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
BILLY D COOPER, also known as Sealed Defendant 1, also known
as “Rabbit”
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
Cause No. 4:01-CR-8-ALL
_________________________________________________________________
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Defendant–Appellant, Billy D. Cooper, was convicted of (1)
conspiracy to commit: carjacking in violation of 18 U.S.C.
§ 2119(3), use of a firearm in relation to a crime of violence in
violation of 18 U.S.C. § 924(c), and transportation of a stolen
vehicle in interstate commerce in violation of 18 U.S.C. § 2312,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
all in violation of 18 U.S.C. § 371 (count one); (2) carjacking in
violation of 18 U.S.C. §§ 2119(3) and 2 (count two); (3) use of a
firearm in relation to a crime of violence (carjacking) in
violation of 18 U.S.C. §§ 924(c) and 2 (count three); (4)
transportation of a stolen vehicle in interstate commerce in
violation of 18 U.S.C. §§ 2312 and 2 (count four); and (5) being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (count five).
On appeal, Cooper argues that the district court erred in
denying his motion to suppress his confessions given on August 20,
1999 (including a videotaped confession) for the reason that the
confessions were not made voluntarily. The district court
conducted thorough evidentiary hearings on the admissibility of the
confessions. The district court’s findings, which were based on
credibility determinations, that Cooper’s arrest was valid and his
confessions were voluntary and knowing, were amply supported by the
record.
Cooper also challenges the district court’s decision to admit
the videotaped statement of Cooper’s co-defendant, James Frye,
whose case had been severed from Cooper’s. Cooper objected at
trial to the admission of Frye’s statement, pursuant to FED. R.
EVID. 801(d)(2)(E), arguing that it was not made in furtherance of
the conspiracy. This claim is not raised on appeal. Instead,
Cooper focuses exclusively on the second objection he made in
federal district court, his argument that introduction of Frye’s
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statement violates the Confrontation Clause. Cooper cites Bruton
v. United States, 391 U.S. 123 (1968), in support of this claim.
“This court has interpreted Bruton to provide that a defendant’s
Sixth Amendment right to confrontation is violated when (1) several
co-defendants are tried jointly, (2) one defendant’s extrajudicial
statement is used to implicate another defendant in the crime, and
(3) the confessor does not take the stand and is thus not subject
to cross-examination.” United States v. Jobe, 101 F.3d 1046, 1066
(5th Cir. 1996) (quotations and citations omitted). Bruton clearly
does not apply since Fry and Cooper were tried separately. Nor is
it clear that Cooper even tried to call Frye as a witness to
question him about the statement. Cooper’s argument that the
admission of Frye’s videotaped statement deprived him of his right
to confront Frye is meritless.
Finally, Cooper challenges the sufficiency of the evidence to
support his conviction of carjacking in violation of 18 U.S.C.
§ 2119(3). There is more than enough evidence to support that
conviction.
The judgment of conviction and sentence of Cooper are
AFFIRMED.
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