F I L E D

United States Court of Appeals

Tenth Circuit

OCT 31 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KATRICE LASHAWN GLASS,

Defendant-Appellant.

No. 96-6328

-----------------------------------------------------------------------------------------------------------

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY BURNETT, also known as

Christopher Simmons, also known as

Larry Miller,

Defendant-Appellant.

No. 96-6342

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CR-96-58-M)

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

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

Randal A. Sengel, Assistant U.S. Attorney (Patrick M. Ryan, United States Attorney, with
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him on the briefs), Oklahoma City, Oklahoma, 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 (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. 
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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. 
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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
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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
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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. 
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Three of them implicate the rule announced in Bruton v. United States, 391 U.S. 123

(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 (1965). A unique Confrontation Clause problem

arises during a joint trial when one defendant’s post-arrest statement inculpates a
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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 (1957), the Supreme Court concluded a limiting jury instruction not to use such

statements as evidence against the codefendant cured any potential Sixth Amendment

violation. However, eleven years later, in Bruton, the Court repudiated Delli Paoli and

overruled its conclusion: “A basic premise of the Confrontation Clause, it seems to me, is

that certain kinds of hearsay . . . are at once so damaging, so suspect, and yet so difficult

to discount, that jurors cannot be trusted to give such evidence the minimal weight it

logically deserves, whatever instructions the trial judge might give.” Bruton, 391 U.S. at

138 (Stewart, J. concurring) (citations omitted). The Court concluded the admission of a

nontestifying defendant’s statement implicating a codefendant violates the Sixth

Amendment even with the protection of a limiting instruction. Id. at 126.

Here, it is undisputed a Bruton violation occurred. Ms. Glass’ statement, as

recounted by the testifying officer, directly inculpated Mr. Burnett. Ms. Glass never took

the stand to testify; therefore, Mr. Burnett never had the opportunity to cross-examine the

declarant of that statement. The court’s limiting instruction could not cure the Sixth

Amendment transgression. However, “[t]he mere finding of a violation of the Bruton

rule in the course of the trial . . . does not automatically require reversal of the ensuing

criminal conviction.” Schneble v. Florida, 405 U.S. 427, 430 (1972). Instead, we must
- 9 -

inquire whether the error was harmless. Chapman v. California, 386 U.S. 18, 22 (1967)

(“We conclude that there may be some constitutional errors which in the setting of a

particular case are so unimportant and insignificant that they may, consistent with the

Federal Constitution, be deemed harmless, not requiring the automatic reversal of the

conviction.”). 

To hold an error of constitutional dimension harmless, we must conclude “the

properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the

codefendant’s admission is so insignificant by comparison, that it is clear beyond a

reasonable doubt that the improper use of the admission was harmless error.” Schneble,

405 U.S. at 430. We review the record de novo, United States v. Perdue, 8 F.3d 1455,

1469 (10th Cir. 1993), and our judgment is informed by the context in which the

statement was admitted, how it was used at trial, and how it compares to the properly

admitted evidence. See, e.g., Bond v. Oklahoma, 546 F.2d 1369, 1376 (10th Cir. 1976)

(“[U]se of the confession in argument is also to be considered in judging the effect of the

confession and whether its admission could be held harmless error.”); United States v.

Detrich, 865 F.2d 17, 22 (2d Cir. 1988) (“When the government’s proof relies primarily

on circumstantial evidence, trial errors tend to acquire greater significance. It takes less

to tip the scales.”). 

The jury was instructed to find Mr. Burnett guilty of the charge of aiding and

abetting only if the government had shown beyond a reasonable doubt Mr. Burnett: (1)
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knew the crime charged was to be committed or was being committed; (2) knowingly did

some act for the purpose of aiding and abetting the commission of that crime; and (3)

acted with the intention of causing the crime to be committed. The jury was further

instructed: 

Merely being present at the scene of the crime or merely knowing that a crime is

being committed or is about to be committed is not sufficient conduct for the jury

to find that the defendant aided and abetted the commission of that crime. The

government must prove that Defendant Burnett knowingly associated himself with

the crime in some way as a participant -- someone who wanted the crime to be

committed -- not as a mere spectator.

Exclusive of the Bruton statement, the totality of the government’s remaining

evidence against Mr. Burnett, assuming its proper admission, was: (1) he flew on the

same flight as Ms. Glass, his half-sister; (2) when he disembarked from the plane he

repeatedly looked over his shoulder at the other departing passengers; (3) he continued

looking around until he reached the baggage claim area; (4) Mr. Burnett’s luggage

contained men’s clothing, but did not include any underwear or socks; (5) Ms. Glass’

luggage contained men’s underwear and socks; (6) Mr. Burnett apparently lied when he

said he was visiting his grandmother; (7) when Ms. Glass was taken into custody, Mr.

Burnett called her a nickname and said everything would be all right; and, finally, (8) Mr.

Burnett’s fingerprint was found on the inside of a piece of tape used to wrap the cocaine.

Facts (1) - (7), at best, constitute evidence Mr. Burnett and Ms. Glass were

traveling together. However, as the jury was instructed, mere presence at the scene of a
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crime or merely knowing a crime was being committed is not sufficient conduct to find

Mr. Burnett aided and abetted Ms. Glass. 

The only other incriminating evidence is the fingerprint. However, when viewed

in context, the significance of this evidence is ambiguous. Ms. Glass was carrying twelve

bundles of crack cocaine. The officers discovered the cocaine tucked inside athletic

socks, enveloped in freezer bags, and wrapped with multiple strips of “box tape.” Mr.

Burnett’s fingerprint was found near the serrated edge on the adhesive side of a single

piece of tape. While one fingerprint on the end of a piece of tape could indicate Mr.

Burnett taped the package closed, the location could also be indicative of innocent

activities, particularly in light of the absence of Mr. Burnett’s prints on any other surface. 

We believe, in this circumstance, a single fingerprint does not constitute “overwhelming”

evidence supporting a conviction for aiding and abetting. 

The statement attributed to Ms. Glass, “that she had knowingly transported the

narcotics along with [Mr. Burnett] to Oklahoma City,” informed the jury of the

ultimate conclusion they needed to reach to convict Mr. Burnett. Given the statement was

presented to the jury through the first witness and the circumstantial evidence in this case

is not overwhelming, we cannot say beyond a reasonable doubt such a damaging

utterance had “no probable impact on the minds of the jury” and was therefore harmless

error. United States v. Hill, 901 F.2d 880, 885 (10th Cir. 1990).
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2. The remaining Bruton statements.

In their initial interviews with the officers, both Mr. Burnett and Ms. Glass denied

knowing one another. Apparently, the government’s purpose in introducing these

statements was to demonstrate through other evidence the denials were false and

supported an inference of consciousness of guilt. See, e.g., United States v. Ingram, 600

F.2d 260, 262 (10th Cir. 1979). 

In Mr. Burnett’s case, demonstrating his acquaintance with Ms. Glass would have

a two-fold impact. First, it would prove he made false exculpatory statements. Second, it

would constitute strong circumstantial evidence the defendants worked together, thus

supporting the charge Mr. Burnett aided and abetted Ms. Glass. In fact, tying the two

together was critical and necessary to the government’s case. 

Over objection, the government, through a detective’s testimony, introduced Ms.

Glass’ statements. She first told interviewers she and Mr. Burnett were “half-brother and

half-sister.” Later, she named Ruthy Maye Simmons, the woman Mr. Burnett claimed

was his grandmother, as her grandmother. Both of these statements established the

relationship between the codefendants critical to support the aiding and abetting charge

against Mr. Burnett. Yet, both statements are attributable only to Ms. Glass, a

nontestifying codefendant. Therefore, Bruton is once again implicated, and we examine

the admission of the statements for harmless error. Schneble, 405 U.S. at 430. 
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The prosecution contends Bruton is inapplicable because the statements are not

facially inculpatory. The government maintains a mere statement of relationship would

never raise a Bruton issue, relying heavily upon United States v. Arias, 984 F.2d 1139,

1143 (11th Cir. 1993). In that case, husband and wife codefendants each challenged the

admission of the other’s post-arrest statements because they made reference to their

marital status. The court determined Bruton was not implicated, broadly stating “[f]or

Bruton to apply, a codefendant’s statement must be clearly inculpatory standing alone.”

Id. at 1142 (quotations omitted). 

However, Arias is distinguishable. In Arias, the marital relationship was never at

issue. In fact, each defendant’s own statement established the relationship. The court

expounded upon the vast amount of other evidence presented that already established the

relationship, in essence performing a harmless error analysis to bolster its conclusion. 

In this case, the familial relationship was a critical element of the government’s

proof, and Ms. Glass’ statements were the only direct testimonial evidence affirmatively

linking the two defendants. Indeed, the government’s use of the relationship throughout

its closing arguments underscores the importance of the statements. 

The prosecutor argued: “when the man known at that time as Larry Miller was

questioned and he gave a statement, he also stated -- you have this introduced into

evidence -- he had never spoken with the girl before he arrived in Oklahoma City. Again,

obviously a false statement since it is his sister. . . . why the false statements unless the
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two of them are involved in it together?” In fact, the government, in its fifteen minute

closing, used the term “brother” or “sister” over ten times. 

Because the relationship of the defendants was so obviously important to the

prosecution, we cannot say its introduction in violation of Bruton was harmless beyond a

reasonable doubt. To the extent the court’s decision in Arias can be read to require a

different result, we must disagree.

3. The hearsay statement.

Finally, Mr. Burnett claims admission of testimony establishing Ruthy Maye

Simmons was deceased was also reversible error. The officer testified Ms. Glass

informed him Ruthy Maye Simmons was dead. Because the statement was introduced to

establish the truth of that assertion, as applied to Mr. Burnett, the evidence is classic

hearsay. Fed. R. Evid. 801(c). Moreover, the only relevance of the testimony is to

controvert Mr. Burnett’s assertion he was going to visit Ruthy Maye Simmons. The

statement was inadmissable hearsay against Mr. Burnett and irrelevant to the

government’s case against Ms. Glass. However, because we conclude the judgment

against Mr. Burnett must be reversed, we merely note the error here without determining

whether it is reversible.
1

In its written order, the district court found: (1) the encounter between Detective

Wenthold, Detective Rivers, and Larry Burnett was “purely consensual”; (2) Detective

Rivers told Mr. Burnett he was not under arrest and was free to leave; (3) Mr. Burnett

agreed to talk to the officers and gave his consent to be pat-searched; (4) during the

search, Detective Rivers felt what he believed to be a soft baggy and asked Mr. Burnett if

he had drugs on his person; (5) Mr. Burnett replied that he did; (6) marijuana was found,

and Mr. Burnett was arrested. 

The court denied Mr. Burnett’s motion to suppress on the basis of these findings.

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B. The Alleged Fourth Amendment Violation

In a pre-trial motion, Mr. Burnett argued he was illegally seized and moved to

suppress any physical evidence, oral statements, or fruits arising from the seizure. The

district court denied Mr. Burnett’s motion in a written order following an evidentiary

hearing. Mr. Burnett challenges that denial. 

On appeal from the denial of a motion to suppress, we view the evidence in the

light most favorable to the government and accept any factual findings of the district

court unless they are clearly erroneous. United States v. Scroger, 98 F.3d 1256, 1259

(10th Cir. 1996). Although the district court did not make extensive factual findings,1 it

did find Detective Mark Wenthold to be a credible witness. Accordingly, we draw our

facts surrounding Mr. Burnett’s arrest from Wenthold’s testimony. See United States v.

Griffin, 7 F.3d 1512, 1516 (10th Cir. 1993) (“We therefore decide this case on the

assumption the testimony of the police officers was true and we give to this testimony the

benefit of every reasonable inference.”). We review de novo the district court’s
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conclusion of law whether a seizure occurred. United States v. Ward, 961 F.2d 1526,

1534 (10th Cir. 1992).

What began as a consensual encounter, Mr. Burnett contends, escalated into a

seizure when Rivers asked to pat-search Mr. Burnett for drugs, after identifying himself

as a drug interdiction officer looking for narcotics. Mr. Burnett argues any reasonable

person who was the object of such a focused inquiry would not feel free to leave. Under

this theory, Mr. Burnett was therefore the subject of a Terry stop, an investigative

detention for which the officers were required to have reasonable suspicion. See United

States v. Sokolow, 490 U.S. 1, 7 (1989) (“[T]he police can stop and briefly detain a

person for investigative purposes if the officer has a reasonable suspicion supported by

articulable facts that criminal activity ‘may be afoot . . . .’") (quoting Terry v. Ohio, 392

U.S. 1, 30 (1968)). In addition, Mr. Burnett contends because no reasonable suspicion

existed for this detention, the stop was illegal and tainted any consent he might have

given for the subsequent search. United States v. Blanco, 844 F.2d 344, 350 (6th Cir.

1988); United States v. Grant, 920 F.2d 376, 388 (6th Cir. 1990). Because we conclude

the encounter between Mr. Burnett, Detective Rivers, and Detective Wenthold remained

consensual until his arrest, we need not reach these latter arguments.

“So long as a reasonable person would feel free ‘to disregard the police and go

about his business,’ the encounter is consensual and no reasonable suspicion is required. 

The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual
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nature.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (citation omitted). We analyze

whether a reasonable subject would feel free to leave under a totality of the circumstances

test. United States v. Lambert, 46 F.3d 1064, 1067-68 (10th Cir. 1995) (“Whether a

police-citizen encounter constitutes a seizure turns on a consideration of ‘all the

circumstances surrounding the encounter to determine whether the police conduct would

have communicated to a reasonable person that the person was not free to decline the

officers’ requests or otherwise terminate the encounter.’” (quoting Bostick, 501 U.S. at

439)). 

In determining whether a defendant was seized, we have considered it significant

the encounter occurred in a confined or nonpublic space, United States v. Griffin, 7 F.3d

1512, 1518-19 (10th Cir. 1993); United States v. Bloom, 975 F.2d 1447, 1453-54 (10th

Cir. 1992); Ward, 961 F.2d at 1531; the officers confronting the subject were armed or

uniformed, Bloom, 975 F.2d at 1454; more than one officer confronted the subject,

Bloom, 975 F.2d at 1454; Ward, 961 F.2d at 1533; the officers exhibited an intimidating

or coercive demeanor, Griffin, 7 F.3d at 1519; Ward, 961 F.2d at 1533; and the officers

asked the subject potentially incriminating questions, Griffin, 7 F.3d at 1519; Ward, 961

F.2d at 1534; Bloom, 975 F.2d at 1454. However, this court has steadfastly refused to

view any one of these factors as dispositive. See, e.g., Griffin, 7 F.3d at 1518 (“In the

past, we have avoided hardline rules to govern [seizure] analysis, and our opinion today

should not be interpreted as an exhaustive announcement”; see also United States v.
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Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc) (noting “only in rare instances will

any one factor produce an inexorable conclusion that a seizure has occurred” and

overruling any implication from previous cases that police-citizen encounters occurring in

train compartments are necessarily seizures).

Here, the officers did not confront Mr. Burnett in a confined space. The encounter

occurred on a public sidewalk by a passenger loading zone. The officers were not

uniformed and did not display their weapons. There is no evidence the officers’ conduct

was menacing or coercive, and they promptly returned Mr. Burnett’s ticket and

identification after examining them. In short, none of the usual factors indicating a

person has been seized exist in this case, except for the officers’ conduct indicating Mr.

Burnett was the subject of a focused inquiry. To hold a seizure occurred in this case,

therefore, we must be willing to adopt a per se rule that a seizure occurs when a person

has become the specific target of a police officer’s inquiry and is asked to consent to a

search, even though the surrounding circumstances do not indicate an atmosphere of

coercion.

Mr. Burnett cites a number of cases to support his claim a police officer’s

particularized interest in an individual may so change the nature of a consensual

encounter that a reasonable person would not feel free to leave when asked to consent to a

search. See United States v. Bloom, 975 F.2d 1447 (10th Cir. 1992); United States v.

White, 890 F.2d 1413 (8th Cir. 1989); United States v. Jaramillo, 891 F.2d 620 (7th Cir.
- 19 -

1989); United States v. Nunley, 873 F.2d 182 (8th Cir. 1989); United States v. Gonzales,

842 F.2d 748 (5th Cir. 1988), overruled on other grounds by United States v. Hurtado,

905 F.2d 74 (5th Cir. 1990) (en banc); United States v. Berry, 670 F.2d 583 (5th Cir.

1982) (en banc). Many of these cases, particularly those of the Eighth and Fifth Circuits,

give great weight in their seizure analysis to a police officer’s asking directly

incriminating and focused questions, almost to the point of adopting the per se rule urged

upon us here. See, e.g., Berry, 670 F.2d at 597 (discussing factors to be considered in

seizure analysis and stating “[s]tatements which intimate that an investigation has focused

on a specific individual easily could induce a reasonable person to believe that failure to

cooperate would lead only to formal detention”); White, 890 F.2d at 1416 (when an

officer told subject he had been stopped because he exhibited characteristics displayed by

drug couriers, a seizure had occurred because the subject could reasonably believe he

“‘was the particular focus of a narcotics investigation,’ and was not free to go” (quoting

Nunley, 873 F.2d at 184-85)). To the extent these Eighth and Fifth Circuit cases present

a per se rule that a person is seized when a police officer’s conduct suggests a person is

the particular focus of an investigation and the officer asks the subject to consent to a

search, we decline to follow them. Although particularized focus is certainly a factor to

be considered, the per se rule urged on us here would be inconsistent with our precedent. 

United States v. Bloom, 975 F.2d 1447 (10th Cir. 1992), cited by Mr. Burnett,

belies the occurrence of a seizure in this case. In Bloom, the defendant was confronted in
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a private train compartment by two special DEA agents, one of whom was uniformed and

visibly armed. The agents identified themselves, told Mr. Bloom they had experienced

problems with people transporting drugs on the train, and asked if he was carrying drugs. 

When Mr. Bloom denied having any, the agents asked if he would voluntarily consent to

a search of his luggage to verify that claim. We held the consensual encounter became a

seizure when the agents asked Mr. Bloom to consent to a search of his luggage. Id. at

1455. Our holding, however, was expressly driven by the totality of the circumstances: 

The focused and incriminating questions and search consent request rose to the level of a

seizure because Mr. Bloom’s egress was blocked by two officers, one of whom was

armed and uniformed, and the entire encounter took place in a confined, non-public

space. Id. Even with the presence of these factors, however, Bloom was a close case. 

See id. at 1451; see also Little, 18 F.3d at 1503 (overruling Bloom to the extent it implied

location of an encounter alone could produce a seizure). In contrast, we see no ground to

find a seizure occurred here, where the encounter was in an unconfined, public place and

where the officers involved were neither uniformed nor visibly armed.

United States v. Carhee, 27 F.3d 1493 (10th Cir. 1994), is also instructive. In

Carhee, two officers acting on a tip approached Mr. Carhee, identified themselves, and

asked if they could talk to him. Mr. Carhee agreed. When the officers asked for

identification, Mr. Carhee stated he did not have any. The officers asked where Mr.

Carhee had come from and he answered, Memphis, although the ticket he produced was
2Defendant maintains trial counsel did object to the introduction of the fingerprint

card with the name Chris Simmons. However, the record reflects trial counsel merely

objected to admission of the card as “evidence of another crime.” To placate this fear, the

(continued...)

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written in the name of Raymond Jones and identified his point of origin as Los Angeles. 

The officers asked Mr. Carhee if he was carrying narcotics into Oklahoma City. He said

he was not. They requested permission to search his luggage. He agreed. They found

nothing in the bag. The officers asked if there was anything in Carhee’s briefcase. He

said, no. Upon request, Mr. Carhee consented to a search of the briefcase, but it was

locked. Mr. Carhee said the briefcase belonged to someone else and he did not know the

combination. The officers told Mr. Carhee they would detain the bag for a dog sniff. We

held a seizure occurred when the briefcase was detained--not when the officers asked Mr.

Carhee for permission to search his bag. Id. at 1497. We are not persuaded the events in

the instant case implicate the Fourth Amendment any more than those that occurred prior

to the seizure of the briefcase in Carhee.

C. The Government’s Use of Aliases

During trial, the prosecution elicited repeated references to Mr. Burnett’s aliases

through testimony of an arresting officer, testimony of a fingerprint technician, and 

introduction of a fingerprint card. Mr. Burnett urges the prejudicial effect of the

admission of these various aliases also warrants reversal of his conviction. Because trial

counsel failed to object to the admission of the aliases, we review for plain error. United

States v. Micheltree, 940 F.2d 1329, 1333-34 (1991).2 
2

(...continued)

court allowed redaction of the card which apparently satisfied trial counsel, who replied

“[t]hat would work.” Counsel made no further objections.

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A defendant’s use of an alias to conceal his identity from law enforcement officers

is relevant as proof of consciousness of guilt. United States v. Hooks, 780 F.2d 1526,

1532 (10th Cir. 1986). However, Fed. R. Evid. 403 counsels, even if relevant, the

probative value of the evidence may be outweighed by its prejudicial effect. Neither at

trial nor on appeal did Mr. Burnett challenge the introduction of his indictment which

specifically listed his aliases. Because this information was already before the jury in the

indictment, introduction of the aliases in testimony could not have been unduly

prejudicial. 

D. The Court’s Restriction of Time for Closing Arguments 

Mr. Burnett claims the district court abused its discretion by limiting defense

counsel’s time for closing argument. He asserts that ten minutes did not afford counsel an

opportunity to make all legally tenable arguments. Ms. Glass also asserts this claim, and

our disposition is equally applicable to her.

“The presiding judge must be and is given great latitude in controlling the duration

and limiting the scope of closing summations.” Herring v. New York, 422 U.S. 853, 862

(1975); Cole v. Tansy, 926 F.2d 955, 958 (10th Cir. 1991). Here, the issues conveyed to

the jury were not complex, and the entire trial on a two-count indictment lasted two days. 

We do not believe a ten minute time limitation on closing arguments an abuse of
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discretion in this situation. See, e.g., United States v. Sotelo, 97 F.3d 782, 793 (5th Cir.

1996) (limiting closing argument to ten minutes for each defendant in case covering a sixyear period and involving multiple conspiracies, 40 witnesses, 133 exhibits, a twelvecount indictment, and 22 pages of jury instructions was not abuse of discretion).

E. Cumulative Error

Finally, Mr. Burnett argues the cumulative effect of the errors asserted above

requires reversal. Because we have determined the Bruton errors standing alone require

reversal, we need not address this argument.

III. KATRICE GLASS

A. Evidentiary Hearing on the Motion to Suppress

Ms. Glass filed a motion to suppress physical evidence and testimony arising from

her seizure at Will Rogers World Airport. In the brief supporting her motion to suppress,

Ms. Glass noted “[t]he facts of this matter are quite simple,” and adopted a portion of

Detective Leach’s grand jury testimony. While Ms. Glass argued extensively her

“seizure” was not supported by reasonable suspicion, she set forth no facts and made no

argument in support of the contention a seizure had occurred. The district court denied

her motion to suppress without an evidentiary hearing. She now appeals that denial.
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We review a trial court’s denial of an evidentiary hearing on a motion to suppress

for abuse of discretion. United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir.

1995). The defendant bears the burden of showing there are material facts in dispute, and

an evidentiary hearing is only required when the motion to suppress “raise[s] factual

allegations that are ‘sufficiently definite, specific, detailed, and nonconjectural to enable

the court to conclude that contested issues of fact going to the validity of the search are in

issue.’” Id. (quoting United States v. Walczak, 995 F.2d 852, 856 (9th Cir. 1986)).

Our review of the record reveals no abuse of discretion. Ms. Glass’ motion to

suppress contains no factual allegations going to the issue of whether she was seized

illegally, let alone factual allegations that are “definite, specific, detailed, [or]

nonconjectural.” Rather, by adopting Detective Leach’s factual testimony as her own, she

implied there was no dispute over the facts and the only issue was their legal significance. 

It was within the district court’s discretion to find Ms. Glass had failed to meet her burden

of showing facts justifying an evidentiary hearing and that the facts as stipulated did not

justify suppression.

B. The Coercion Jury Instruction

As a principal element of her defense, Ms. Glass maintained she transported the

narcotics under duress and coercion. Factual support, she argues, is in the testimony of

one of the arresting officers.

Q: What did she say when you interviewed her?
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A: She said that she was in possession of this bag because she feared for

the safety of her child, as well as her safety. She told me that she

was in her apartment in Los Angeles when an individual came to her

door . . . . After entering the apartment, he stated that he had a job

for her to do. She had observed a gun during this conversation. She

stated that she asked him to leave and he refused. He said that he

told her she was going to do this job or her child would be killed, as

well as herself.

Ms. Glass urges the trial court improperly instructed the jury on her coercion and

duress defense. We need not reach the merits of Ms. Glass’ argument because we

conclude she was not entitled to the instruction in the first instance. 

To be entitled to a coercion instruction, the defendant must make a threshold

showing of (1) immediate threat of death or bodily injury; (2) a well-grounded fear the

threat will be carried out; and (3) no reasonable opportunity to escape the threatened

harm. United States v. Scott, 901 F.2d 871, 873 (10th Cir. 1990). According to Ms.

Glass’ own statement, the man who allegedly threatened her life and the life of her child

left her apartment immediately after making the threat. He did not return for

approximately thirty minutes. Upon his return, he drove her to the airport and left. The

man did not accompany Ms. Glass on the plane from Los Angeles to Dallas, or from

Dallas to Oklahoma City. At no time prior to her arrest in Oklahoma City did Ms. Glass

attempt to contact law enforcement authorities. Her own statements, therefore,

demonstrate the absence of the necessary element that she had no opportunity to escape

the threatened harm. Having failed to make the third showing required of her, Ms. Glass

was not entitled to the instruction in the first instance. Id. (“[A] defendant who fails to
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present sufficient evidence to raise a triable issue of fact concerning the absence of any

reasonable opportunity to escape the threatened harm is not entitled to an instruction on

the defense of coercion.”).

C. Hearsay

Ms. Glass urges the Bruton statements establishing her relationship with Mr.

Burnett were inadmissable hearsay in her case. Admittedly, those statements only have

relevance in establishing Ms. Glass made false exculpatory responses to the officers when

she denied knowing Mr. Burnett. However, assuming they were inadmissable hearsay,

their admission cannot constitute reversible error here when the defendant was

apprehended carrying a suitcase containing approximately twelve pounds of crack

cocaine.

D. Cumulative Error

Finally, Ms. Glass argues the cumulative effect of the errors urged above mandates

reversal. Cumulative error analysis aggregates all errors individually found to be

harmless and analyzes whether their cumulative effect is such that collectively the errors

have affected the defendant’s substantial rights. United States v. Rivera, 900 F.2d 1462,

1470 (10th Cir. 1990) (en banc). Here, we have at most uncovered one harmless error,

and, hence, have nothing to aggregate. 
- 27 -

IV. CONCLUSION

The judgment against Mr. Burnett is REVERSED, and the case is REMANDED

for further proceedings. The judgment against Ms. Glass is AFFIRMED.