* Pursuant to 5 TH C IR

. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circu mstances set forth in 5 T H C IR

. R.

47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

July 17, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

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. § 2312,2

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 viole nce (carjacking) in

violation of 18 U.S.C. §§ 924(c) and 2 (count three); (4)

transportation of a stolen vehicle in inter state 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 confes sion) for the reason that the

confess ions 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 v ideotaped 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, pursua nt to F E D

. R.

E VID

. 801(d)(2)(E), arguing that it was not made in furtherance of

the conspiracy. This claim is not raised on a ppeal. Instead,

Cooper focuses exclusively on the second objection he made in

federal district court, his argument that intro duction of Frye’s3

statement violates the Confrontation Clause. Cooper cites Bruton

v. United States

, 391 U.S. 123 (1968), in support of this claim.

“This court has int erpreted B ruton 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.” U nited States v. Jobe

, 101 F.3d 1046, 1066

(5th Cir. 1996) (quotations and citations omitted). B ruton clearly

does not apply since Fry and Cooper were tried separately. Nor is

it clear that Coope r 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.