Terry Brown v. Superintendent Greene SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 14-2655

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TERRY BROWN, a/k/a ANTONIO LAMBERT

v.

SUPERINTENDENT GREENE SCI;

DISTRICT ATTORNEY PHILADELPHIA;

ATTORNEY GENERAL PENNSYLVANIA

Terry Brown,

Appellant

________________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-09-cv-03970)

District Judge: Honorable C. Darnell Jones, II

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Argued June 16, 2016

Before: AMBRO, KRAUSE, and NYGAARD, Circuit Judges

(Opinion filed: August 22, 2016)

Leigh M. Skipper

Chief Federal Defender

Brett G. Sweitzer

Assistant Federal Defender, Chief of Appeals

Arianna J. Freeman (Argued)

Assistant Federal Defender

Federal Community Defender Office for the

Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Susan E. Affronti (Argued)

Chief, Federal Litigation

Ronald Eisenberg

Deputy District Attorney, Law Division

George D. Mosee, Jr.

First Assistant District Attorney

R. Seth Williams

District Attorney

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellees

2

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OPINION THE COURT

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AMBRO, Circuit Judge

This case has a familiar cast of characters: two co-

defendants, a confession, and a jury. And, for the most part, it

follows a conventional storyline. In the opening chapter, one

of the defendants (Miguel Garcia) in a murder case gives a

confession to the police that, in addition to being self-

incriminating, says that the other defendant (Antonio

Lambert1) pulled the trigger. When Lambert and Garcia are

jointly tried in Pennsylvania state court, the latter declines to

testify, thereby depriving the former of the ability to cross-

examine him about the confession. The judge therefore

redacts the confession in an effort to comply with Bruton v.

United States, 391 U.S. 123 (1968). As a result, when the jury

hears Garcia’s confession, Lambert’s name is replaced with

terms like “the other guy.” The idea is that the inability to

cross-examine Garcia is harmless if the jury has no reason to

think that the confession implicates Lambert.

During closing arguments, however, there is a twist

when the prosecutor unmasks Lambert and reveals to the

jurors that he has been, all along, “the other guy.” Now,

instead of a conclusion, we have a sequel. Based on a Sixth

Amendment violation caused by the closing arguments, we

conclude that Lambert is entitled to relief. We therefore

1

In the District Court, Lambert used the name Terry Brown.

However, at the time of the crime he went by Lambert, and he

uses that name in our Court.

3

remand so that the District Court can give Pennsylvania (the

“Commonwealth”) the option either to retry or release him.

I. Background

A. The crime

Mary Edmond2 was shot near a gas station in North

Philadelphia on February 23, 2001, and she died later that day

from her injuries. The police believed that Lambert pulled the

trigger as part of a robbery gone wrong. Earlier in the day,

Garcia and his friend Anthony Cheatham had been driving

around Philadelphia and smoking marijuana in Garcia’s

Monte Carlo. With Garcia at the wheel, the pair picked up

Lambert, and together the three of them drove to North

Philadelphia to buy Xanax pills. Afterward, they drove past

the gas station, and Lambert told Garcia to pull over. From

that point onward, two competing narratives emerge. One

comes from a statement that Cheatham gave the police after

the shooting coupled with his testimony at trial. The second is

from Garcia’s statement to the police, which is at the core of

this appeal. We examine each of the narratives in turn.

Cheatham’s version is that he fell asleep in the car

after taking a Xanax pill. When the trio reached the gas

station, he was “[l]aid back, stretched out” in the back seat.

Lambert and Garcia got out of the car, and although

Cheatham could not see them, he heard a gunshot. When

Lambert and Garcia returned to the car, the latter asked,

“What the fuck did you just do?” Lambert then pointed a gun

at Garcia and ordered him to drive away. Afterward, Lambert

and Garcia dropped Cheatham off at a friend’s house.

Detectives found Cheatham the next morning at his

2

The victim’s last name is spelled both “Edmond” and

“Edmund” in the record.

4

grandmother’s house, and he went with them to police

headquarters, where he was threatened with charges if he did

not cooperate. He gave a statement at that time and later

testified at the joint trial of Lambert and Garcia. He was not

charged in connection with Edmond’s death.

Garcia, meanwhile, had a different story, which he

outlined in a confession3 to the police. In his version, he

stayed in the car while Lambert and Cheatham got out and

approached the victim. Garcia saw a “tussle” and witnessed

the “lady . . . backing up holding her purse.” He continued,

“She yanked back, she resisted and I heard a gunshot.” When

the two companions got back in the car, Lambert said that he

had “banged the bitch” because she “wouldn’t give up her

pocketbook.” This was a preview of Garcia’s defense at trial,

which was that he was merely a bystander to the crime.

Whereas Cheatham’s account cut off shortly after the

shooting, when he got to his friend’s house, Garcia’s version

described additional events. After dropping off Cheatham,

Lambert went with Garcia to the latter’s house. Lambert

pulled out the gun and told Garcia that “you better not ever

cross me or snitch on me because you know what the deal is.”

Garcia understood this to mean that Lambert would kill him.

After seeing the gun, Garcia’s mother asked them to

leave. They drove away, and in the early hours of February 24

the two of them, along with another passenger (not

3

Following the lead of the Pennsylvania Supreme Court, we

style Garcia’s statement a “confession.” The statement was

self-incriminating because it established his presence at the

scene of the crime. We note, however, that it is not a typical

confession in that Garcia, as discussed below, intended it to

be exculpatory.

5

Cheatham), were pulled over. Garcia was driving and

attempted to flee, but the car crashed. According to Garcia,

Lambert threw him the gun and tried to escape on foot.

Garcia, now holding the weapon, attempted to do the same.

Shortly afterward, officers apprehended both of them.

B. The trial

The Commonwealth charged Lambert and Garcia with

murder (first degree for the former and second degree for the

latter), conspiracy, robbery, and possession of an instrument

of crime. It sought a joint trial in state court for the two

defendants, and Lambert responded with a motion to sever

(i.e., to have a separate trial for each defendant). At the time,

it was clear that the Commonwealth intended to use Garcia’s

confession and that the latter was planning to invoke his Fifth

Amendment rights by not testifying at trial. Lambert’s

counsel argued that the combined effect—the introduction of

the confession without any ability to cross-examine Garcia—

violated the Sixth Amendment’s Confrontation Clause.

The trial judge agreed that the Commonwealth could

not, under those circumstances, introduce a full version of

Garcia’s confession without violating the Confrontation

Clause. As discussed in Part III below, that would have been

a classic violation of the Supreme Court’s Bruton decision.

However, relying on other Supreme Court decisions

interpreting Bruton, the judge determined that the confession

could be redacted in a way that satisfied the Sixth

Amendment, thereby negating the need for separate trials.

Under Bruton, it is proper for the jury to consider the

confession against Garcia; it only becomes problematic to use

it against Lambert. If the confession were redacted so that the

jury did not know it implicated Lambert, the judge reasoned,

the risk of improper use could be contained. On that basis, the

judge denied the motion to sever.

6

With severance off the table, the parties discussed how

to implement the redactions. They ultimately settled on using

terms such as “the other guy,” “one of the guys,” or “the guy

with the gun” to replace Lambert’s name in the confession.4

At trial, a detective read to the jury the redacted confession,

which took the form of questions posed to Garcia and his

answers. Before the reading, the judge instructed the jurors

that the confession “may be considered as evidence only

against [Garcia]” and that they “must not consider the

statement as evidence against defendant Antonio Lambert.”

The following is, for our purposes, the key portion of what

the jury heard. The italicized phrases are replacements for

Lambert’s name.

Q: What happened next?

A: They got in the car and I said what the fuck

happened. One of the guys said I banged the

bitch . . . . She wouldn’t give up her pocketbook

or nothing, so I banged her. . . . I told the first

guy what the fuck, you didn’t tell me you had a

burner.

Q: What is a burner?

A: A gun.

Q: What kind of gun did the first guy have?

A: A .38. He showed it to me in my house after

he shot the lady. After he shot the lady we went

to my house and we went inside. He pulled it

out in the kitchen. I told him to put it away

because my peoples was [sic] there. My mom

4

Cheatham’s name was also replaced with generic identifiers.

7

told me to get the guy out of her house. We left

my house and drove down North Philly.

The disparities between the statements of Cheatham

and Garcia proved to be a delicate needle for the

Commonwealth to thread. It encouraged the jury to believe

Cheatham’s statement in its entirety and to credit all of

Garcia’s story except for the part where he remained in the

car during the shooting while the other two got out. During

closing arguments, when the prosecutor was attempting to

discredit Garcia’s insistence that he did not get out of the car

with Lambert, she made the following statement:

If Garcia had not been part of what happened,

how easy would it have been for him to drop

Lambert off, go home, tell his mother what

happened, pick up the phone and call the police

and say I was just with a guy who shot and

killed somebody? He doesn’t do that. What

does he do [sic] is this, he takes Lambert to his

house. They’re at his house and he says the guy

I’m with brings the gun into my house and I tell

him put it away because my people are there.

Defense counsel, believing that this statement had

effectively nullified one of the redactions and unmasked

Lambert as the person who accompanied Garcia home after

the shooting and pulled out the murder weapon, immediately

requested a sidebar, but the judge permitted closing

arguments to continue. After the prosecutor finished, defense

counsel moved for a mistrial, explaining:

The reason for [the] mistrial is Your Honor will

recall that the Court and counsel went through

painstaking efforts to properly redact Mr.

Garcia’s statement and one of the first things

8

[the prosecutor] did is whip it out and read from

it and tell the jury that Mr. Garcia took Mr.

Lambert back to his house with the gun and

read the entire portion of that statement

implicating Mr. Lambert as the other guy. In

fact, [she] told the jury that Mr. Lambert was

the other guy.

The judge denied the motion. Having lost his request for a

mistrial, defense counsel followed up by asking the judge to

instruct the jury to disregard the unmasking, but he later

abandoned the request after deciding that rehashing the

incident might reinforce in the jurors’ minds the idea that

Lambert was the other guy.5

Before sending the jury to deliberate, the judge

reiterated the instruction given before the redacted confession

was read into evidence: that it could only be used against

Garcia and must not be considered as evidence against

Lambert. Per defense counsel’s request, the judge did so

without calling attention to the slip-up during closing

5

The statement about Lambert going home with Garcia and

brandishing the gun was not the only time the prosecutor used

the confession against Lambert during closing arguments. At

another point, she said: “It’s an old ugly gun, but it worked. It

killed Mary Edmond. It did just what Antonio Lambert

wanted it to do. He managed to shoot her. Why? Because she

didn’t give up her pocketbook. She resisted it. And that’s

exactly what Mr. Garcia said in his statement.” As discussed

below, however, this second instance has not been a focus of

the post-trial litigation. As such, unless otherwise noted, all

references to comments by the prosecutor during closing

arguments pertain to the remarks about Lambert

accompanying Garcia home and pulling out the weapon.

9

arguments. During deliberations, the jurors asked for a copy

of Garcia’s confession. Instead of giving it to them, the judge

had the court reporter read the redacted version. Ultimately,

the jury convicted Lambert on all counts. Meanwhile, it found

Garcia guilty of all charges except the weapon-related count.

C. Post-trial proceedings

Lambert appealed his conviction to the Pennsylvania

Superior Court. He argued that the trial judge erred by

denying the motion to sever and that, even if a joint trial were

proper, the comments in the closing arguments constituted

prosecutorial misconduct and deprived him of his

Confrontation Clause rights. A panel of the Court

unanimously agreed with both arguments and ordered a new

trial. The Commonwealth appealed to the Pennsylvania

Supreme Court, which reversed the Superior Court by a 3-2

vote.

In the Pennsylvania Supreme Court’s decision, the

majority rejected the argument that the trial judge was

required to grant Lambert’s motion to sever. It wrote that the

redactions obviated the need for separate trials because

Garcia’s confession “as redacted did not identify [Lambert],

or his role, at all.” Commonwealth v. Brown, 925 A.2d 147,

163 (Pa. 2007). On that basis, it determined that the jury

should be presumed to have obeyed the judge’s instructions to

use the confession as evidence only against Garcia.

Similarly, the majority disagreed with the Superior

Court’s conclusion that the prosecutor’s comments during

closing arguments made a new trial necessary. It agreed with

Lambert that “[t]here is no point in redacting and sanitizing

otherwise inculpatory statements of a non-testifying co-

defendant, to facilitate a joint trial, if that protective measure

approved by the [U.S. Supreme] Court to comport with the

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Confrontation Clause could be deliberately and directly

undone by lawyer commentary.” Id. at 159. And the majority

stressed that it did “not condone the prosecutor’s

misstatement.” Id. at 160. However, it relied on the U.S.

Supreme Court’s decision in Frazier v. Cupp, 394 U.S. 731

(1969), to conclude that the trial judge’s instructions about

how the confession could (and could not be) used were

sufficient and that a new trial was not necessary. We discuss

Frazier, as well as the majority’s reliance on it, in detail in

Parts III and IV of this opinion.

In a dissent joined by then-Chief Justice Cappy, Justice

Baer wrote that the comments during closing arguments

violated the Confrontation Clause and that the jury should be

considered incapable of following the instructions not to use

the confession against Lambert. He wrote that a “defendant

is . . . deprived of his rights under the Confrontation Clause if

an otherwise effective redaction is corrupted by a

prosecutor’s comment[s].” Brown, 925 A.2d at 164 (Baer, J.,

dissenting). He noted that under Bruton Lambert would have

gotten a new trial (and the limiting instructions would have

been considered inadequate) if Garcia’s confession had been

read to the jury without redactions. Justice Baer concluded

that it would be anomalous to reach a different result when a

prosecutor undoes a redaction by revealing the identity of the

person whose name was removed. He admonished that “this

Court should not admit a violation of the fundamental right of

confrontation and cross-examination by means of a back-door

revelation, when Bruton so carefully guards the front door.”

Id. at 166.

After unsuccessfully seeking relief under

Pennsylvania’s Post Conviction Relief Act, Lambert filed a

pro se federal habeas petition in the District Court under 28

U.S.C. § 2254. He raised the severance and prosecutorial

misconduct arguments rejected by the Pennsylvania Supreme

11

Court, as well as a second prosecutorial misconduct claim and

certain claims of ineffective assistance of counsel. The Court

denied the petition. It rejected the arguments not presented to

the Pennsylvania Supreme Court (ineffectiveness of counsel

and the second claim of prosecutorial misconduct) on

procedural grounds. Meanwhile, it denied relief on the merits

on the two issues—severance and the first prosecutorial

misconduct claim—considered by the Pennsylvania Supreme

Court. We granted a certificate of appealability as to these

two claims and appointed counsel to represent Lambert.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.

§ 2254, and we have appellate jurisdiction per 28 U.S.C.

§§ 1291 and 2253. We exercise plenary review over the

District Court’s legal conclusions. Werts v. Vaughn, 228 F.3d

178, 191 (3d Cir. 2000).

Like that Court, our task is to review a state court

decision. As such, the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) also bears on our analysis.

Under AEDPA’s deferential standard of review, if a claim

was “adjudicated on the merits in State court proceedings,”

we can grant relief only if the state court decision “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States,” or “was based on an

unreasonable determination of the facts in light of the

evidence presented” in state court. 28 U.S.C. § 2254(d). The

decision that gets AEDPA deference is the “last reasoned

[one] of the state courts on the petitioner’s claims.” Simmons

v. Beard, 590 F.3d 223, 231–32 (3d Cir. 2009) (internal

quotation marks omitted). Here that is the Pennsylvania

Supreme Court’s reversal of the Superior Court’s judgment.

Because no facts are in dispute, the Pennsylvania Supreme

12

Court’s decision must stand unless it was “contrary to” or an

“unreasonable application of” clearly established federal law.

We can grant relief under the “contrary to” standard

only if “the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.”

Williams v. Taylor, 529 U.S. 362, 413 (2000). Meanwhile, a

decision from a state court “is an unreasonable application of

[the Supreme Court’s] clearly established precedent if it

correctly identifies the governing legal rule but applies that

rule unreasonably to the facts of a particular prisoner’s case.”

White v. Woodall, 134 S. Ct. 1697, 1706 (2014). In this

context, an “unreasonable application . . . must be objectively

unreasonable, not merely wrong; even clear error will not

suffice.” Id. at 1702 (internal quotation marks omitted).

Additionally, a state court applying Supreme Court

cases has no obligation to extend their rationales. Id. at 1706.

At the same time, “AEDPA does not require state and federal

courts to wait for some nearly identical factual pattern before

a legal rule must be applied.” Panetti v. Quarterman, 551

U.S. 930, 953 (2007) (internal quotation marks omitted).

Rather, “state courts must reasonably apply the rules squarely

established by [the Supreme] Court’s holdings to the facts of

each case.” White, 134 S. Ct. at 1706 (internal quotation

marks omitted). In determining whether they have done so,

we are guided by the specificity of the Supreme Court rule

they are applying. Under that metric, the “more general the

rule, the more leeway [state] courts have in reaching

outcomes in case-by-case determinations.” Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004).

Even if we conclude that a state court decision is

improper under these standards, we must also examine

13

whether the error was harmless. An error-infected state court

conviction can stand on habeas review if the mistake did not

have a “substantial and injurious effect or influence in

determining the jury’s verdict.” Bond v. Beard, 539 F.3d 256,

276 (3d Cir. 2008) (quoting Brecht v. Abrahamson, 507 U.S.

619, 637 (1993)) (internal quotation marks omitted). Because

the Pennsylvania Supreme Court denied relief on the merits

without addressing harmlessness, there is no ruling on that

subject to which we must defer. As a result, our harmlessness

review is plenary. See Davis v. Ayala, 135 S. Ct. 2187, 2198

(2015); Fry v. Pliler, 551 U.S. 112, 121–22 (2007).

III. Bruton and Its Progeny

The Sixth Amendment guarantees a criminal defendant

the right “to be confronted with the witnesses against him.”

U.S. Const. amend. VI. And a “major reason underlying [this]

rule is to give a defendant charged with [a] crime an

opportunity to cross-examine the witnesses against him.”

Pointer v. Texas, 380 U.S. 400, 406–07 (1965). Occasionally,

however, the right to cross-examine runs headlong into

another constitutional right: the Fifth Amendment’s

protection against self-incrimination. See U.S. Const. amend.

V (providing that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself”).6 A classic

example is our situation here. The Sixth Amendment gives

Lambert the right to cross-examine Garcia about his

confession, but the Fifth Amendment allows Garcia to refuse

to take the stand. The Supreme Court has dealt with different

6

The Confrontation Clause and the privilege against self-

incrimination both apply to proceedings in state courts. See

Cruz v. New York, 481 U.S. 186, 189 (1987) (Confrontation

Clause); Malloy v. Hogan, 378 U.S. 1, 6 (1964) (self-

incrimination).

14

variations on this theme, and four of its decisions—Bruton;

Frazier; Richardson v. Marsh, 481 U.S. 200 (1987); and Gray

v. Maryland, 523 U.S. 185 (1998)—guide our analysis. We

discuss each in turn.

In Bruton, two defendants (Evans and Bruton) were

tried together for an armed postal robbery. Evans, who had

given a confession that also implicated Bruton, opted not to

take the stand, but the jury heard his confession in full,

unredacted form through a postal inspector’s testimony. The

trial judge instructed the jury that the confession could be

used against Evans but not against Bruton. The Supreme

Court held that the reading of the confession was a

Confrontation Clause violation and that limiting instructions

were incapable of curing it. 391 U.S. at 135–36.

It based its conclusion on the cognitive dissonance that

results from asking jurors to consider a confession only

against one defendant. It wrote that “there are some contexts

in which the risk that the jury will not, or cannot, follow

instructions is so great, and the consequences of failure so

vital to the defendant, that the practical and human limitations

of the jury system cannot be ignored.” Id. at 135. It

continued:

Such a context is presented here, where the

powerfully incriminating extrajudicial

statements of a codefendant, who stands

accused side-by-side with the defendant, are

deliberately spread before the jury in a joint

trial. Not only are the incriminations

devastating to the defendant but their credibility

is inevitably suspect, a fact recognized when

accomplices do take the stand and the jury is

instructed to weigh their testimony carefully

given the recognized motivation to shift blame

15

onto others. The unreliability of such evidence

is intolerably compounded when the alleged

accomplice, as here, does not testify and cannot

be tested by cross-examination. It was against

such threats to a fair trial that the Confrontation

Clause was directed.

Id. at 135–36 (footnote omitted).

The next year, the Court decided Frazier, which

involved two cousins (Frazier and Rawls) who were jointly

indicted. Rawls pled guilty and gave a confession that also

incriminated Frazier, who elected to proceed to trial. Though

Frazier’s lawyer told the prosecutor that Rawls intended to

invoke the Fifth Amendment if called, the prosecutor believed

he would cooperate and previewed his expected testimony to

the jury. That “summary [of the expected testimony] was not

emphasized in any particular way,” and it “took only a few

minutes to recite.” 394 U.S. at 733. After Rawls eventually

asserted the Fifth Amendment, Frazier argued that there was a

Bruton violation because the substance of the incriminating

statement had been put in front of the jury without an

opportunity for cross-examination. The Court disagreed and

concluded that, unlike in Bruton, limiting instructions “were

sufficient to protect [Frazier’s] constitutional rights.” Id. at

735. Importantly, at no point during the trial was the jury read

Rawls’ confession. Rather, it only heard the outline of what

Rawls was expected to say if he testified.

In rejecting Frazier’s argument, the Court highlighted

four differences between that case and the typical Bruton

scenario. First, the jury was exposed to a paraphrased version

of Rawls’ account rather than a verbatim confession. Id.

Second, the account was introduced during opening

statements rather than through witness testimony. Id. Third,

only one defendant was on trial, so the “jury was not being

16

asked to perform the mental gymnastics of considering an

incriminating statement against only one of two defendants in

a joint trial.” Id. And finally, “Rawls’ statement was not a

vitally important part of the prosecution’s case.” Id.

The Court noted that it is common for a party not to be

able to produce all the evidence promised in an opening

statement and that “[c]ertainly not every variance between the

advance description and the actual presentation constitutes

reversible error . . . when a proper limiting instruction has

been given.” Id. at 736. However, it “may be that some

remarks included in an opening or closing statement could be

so prejudicial that a finding of error, or even constitutional

error, would be unavoidable.” Id.

Next up is Richardson. At a joint trial for co-

defendants Marsh and Williams, the prosecution introduced

the latter’s confession. Williams did not testify, and the judge

instructed the jury not to use his confession against Marsh.

The confession recounted, among other things, an

incriminating conversation that took place in a car carrying

Marsh, Williams, and Martin (who was charged alongside the

other two but was a fugitive at the time of trial). Unlike in

Bruton, however, the confession was redacted before being

read to the jury. The redactions did not, as did ours, merely

replace the other defendant’s name with generic terms.

Rather, the confession “was redacted to omit all reference” to

Marsh or her role in the crime. 481 U.S. at 203. Thus, the

version that the jury heard placed Martin and Williams in the

car but did not mention a third person being there.

The potential problem arose when Marsh took the

stand and testified that she was in the car with Martin and

Williams. Her argument was that, although Williams’

redacted confession did not implicate her on its own, the

combination of the confession (which described an

17

incriminating conversation in the car) and her testimony

(which put her in the car) created an intolerable risk that the

jury would be unable to follow the limiting instruction. In

other words, the concern was that the jury impermissibly

would use the confession against her by determining that she

heard the conversation.

The Court rejected this argument, concluding that

when a “confession [is] not incriminating on its face” toward

a co-defendant and “bec[omes] so only when linked with

evidence introduced later at trial,” it is “a less valid

generalization that the jury will not likely obey the [limiting]

instruction.” Id. at 208. As a result, it is presumed able to

consider the confession to determine the speaker’s, but not

the co-defendant’s, guilt. The Court summarized its holding

as follows: “[T]he Confrontation Clause is not violated by the

admission of a nontestifying codefendant’s confession with a

proper limiting instruction when, as here, the confession is

redacted to eliminate not only the defendant’s name, but any

reference to his or her existence.” Id. at 211.

That holding, however, did not end the case. That is

because, during closing arguments, the prosecutor encouraged

the jury to do precisely what Marsh feared would happen and

what the limiting instruction was meant to avoid—to assume,

based on the combination of the confession and her

testimony, that she heard the incriminating conversation. The

Court described this as seeking “to undo the effect of the

limiting instruction” and called it an “error.” Id. Because

Marsh’s lawyer did not object to the prosecutor’s comments,

the Court remanded for a determination of whether they

nonetheless could serve as a basis for relief. Id.

The final piece of the puzzle is Gray, which falls

somewhere between Bruton and Richardson. As in

Richardson and unlike in Bruton, the confession was

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redacted. But whereas the redactions in Richardson removed

all reference to the co-defendant’s existence, the co-

defendant’s name in Gray merely was replaced with a blank

space or the word “deleted.” For instance, the jury heard that

“Me, deleted, deleted, and a few other guys” committed a

crime. 523 U.S. at 196. The Court held that, when a name is

replaced “with an obvious indication of deletion,” Bruton

applies and no limiting instructions can be sufficient. Id. at

192.

It noted that, as in Richardson, the jury would need to

make inferences for the confession to become incriminating

(in Richardson by linking the confession to testimony and in

Gray by divining the identity of the blanked-out name).

However, it concluded that “inference pure and simple cannot

make the critical difference, for if it did, then Richardson

would also place outside Bruton’s scope confessions that use

shortened first names, nicknames, descriptions as unique as

the ‘red-haired, bearded, one-eyed man-with-a-limp,’ and

perhaps even full names of defendants who are always known

by a nickname.” Id. at 195 (citation omitted). Maintaining

that its approach was not overly burdensome, the Court

implied that it might have been permissible to replace “Me,

deleted, deleted, and a few other guys” (the example from

above) with “Me and a few other guys,” thereby making the

inference less obvious. Id. at 196.

In sum, there are some cases (Bruton and Gray) where

no limiting instruction can cure the harm that comes from the

jury’s exposure to an incriminating confession. Meanwhile, in

other situations (Frazier and Richardson) we can assume that

the jury is capable of following instructions. We must now

consider on which side of the line our case falls.

19

IV. The Bruton Violation in Lambert’s Trial

Lambert has two arguments for why his trial violated

Bruton. First, he contends that it and its progeny required

severance of his trial from Garcia’s. He claims this is a

straightforward application of our Bruton-based decisions in

Vazquez v. Wilson, 550 F.3d 270 (3d Cir. 2008); Eley v.

Erickson, 712 F.3d 837 (3d Cir. 2013); and Washington v.

Sec’y Pa. Dep’t of Corr., 801 F.3d 160 (3d Cir. 2015). Next,

he asserts that, even assuming a joint trial was permissible, a

Bruton violation occurred during closing arguments because

of the prosecutor’s comments. He labels this a prosecutorial

misconduct claim.7 We agree with this second argument and

conclude, without deciding whether the denial of the

severance request was proper, that the comments during

closing arguments violated Bruton.

7

At the outset of this appeal, there appeared to be

disagreement about whether this claim is properly before us.

“Before a federal court may grant habeas relief to a state

prisoner, the prisoner must exhaust his remedies in state

court. In other words, the state prisoner must give the state

courts an opportunity to act on his claims before he presents

those claims to a federal court in a habeas petition.”

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To ensure

that state courts have this opportunity, the petitioner’s claims

must be “fairly presented” to them. Picard v. Connor, 404

U.S. 270, 275 (1971). This means that the petitioner must put

before the state courts the “substantial equivalent” of the

claims pursued in federal court. Id. at 278. In his brief,

Lambert, in addition to arguing that the prosecutor’s

comments violated Bruton, also invoked the Supreme Court’s

standards for prosecutorial misconduct from Donnelly v.

DeChristoforo, 416 U.S. 637 (1974), and Darden v.

20

We start from the undisputed premise, stated by the

Pennsylvania Supreme Court, that “[t]here is no point in

redacting and sanitizing otherwise inculpatory statements of a

non-testifying co-defendant, to facilitate a joint trial, if that

protective measure approved by the [U.S. Supreme] Court to

comport with the Confrontation Clause could be deliberately

and directly undone by lawyer commentary.” Brown, 925

A.2d at 159. Indeed, the Pennsylvania Supreme Court

conceded that, under the right circumstances, there could be a

Bruton violation based on an “argument by counsel

concerning Bruton-redacted evidence.” Id. at 160. As an

example, it imagined a scenario where a prosecutor tells the

jury: “You heard the co-defendant’s confession, which also

described the actions of someone he identified only as ‘the

other guy;’ well, I’m here to tell you that ‘the other guy’ he

was speaking of was the defendant and we just changed the

wording of the statement.” Id. at 159 (internal quotation

marks omitted).

The Pennsylvania Supreme Court is correct, of course,

that those circumstances would violate Bruton. Were it

Wainwright, 477 U.S. 168 (1986). Those cases held that

improper comments by prosecutors result in constitutional

error when they “so infect[] the trial with unfairness as to

make the resulting conviction a denial of due process.”

Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643)

(internal quotation marks omitted). The Commonwealth

correctly notes that Lambert did not present an argument

based on this standard to the state courts. However, as

discussed below, we resolve this claim based only on Bruton

and its progeny. Because the Commonwealth agreed at oral

argument that a Bruton-based attack on the prosecutor’s

comments was in front of the state courts, the fair

presentation requirement does not create any obstacles here.

21

otherwise, Bruton would mean little. There would be no point

in redacting confessions only to have the identities of the co-

defendants blatantly unmasked. And we know from Gray that

Bruton is not so easily defeated. Otherwise, the Supreme

Court would not have gone out of its way to say that Bruton

cannot be circumvented by replacing somebody’s name with

an obvious identifier (such as the “red-haired, bearded, one-

eyed man-with-a-limp”). Gray, 523 U.S at 195 (internal

quotation marks omitted). Indeed, we discern no difference in

effect between the situation in Bruton, where the jury heard

an unredacted statement naming the co-defendant, and one

where the jury hears a redacted statement but is later told to

whom the redactions refer.

If there were any doubt as to the applicability of

Bruton to the Pennsylvania Supreme Court’s hypothetical,

Richardson eliminated it. On the one hand, Richardson made

clear that a properly redacted confession does not violate the

Confrontation Clause when linked with other admissible

evidence. Yet it also established that a prosecutor’s

inadmissible use of a confession during closing arguments

runs afoul of Bruton. That is because it is “error” for a

prosecutor “to undo the effect of the limiting instruction.” 481

U.S. at 211.

We part company, however, with the Pennsylvania

Supreme Court with regard to the three attempts it made to

distinguish our case from its hypothetical example. First, it

implied that a prosecutor’s unmasking of a co-defendant must

be done “deliberately” for Bruton to come into play. Brown,

925 A.2d at 159. Any such requirement of intentional conduct

would be contrary to clearly established Supreme Court law.

Specifically, the Court in Frazier said that “we do not believe

that the prosecutor’s good faith, or lack of it, is controlling in

determining whether a defendant has been deprived of the

right of confrontation.” 394 U.S. at 736. Here, though there is

22

no evidence that the prosecutor acted in bad faith, that is

irrelevant for constitutional purposes. Indeed, the

Commonwealth conceded (as it must) during oral argument

before us that the Pennsylvania Supreme Court erred by

suggesting that intent matters.

Second, we disagree that the statement needs to be as

conspicuous as the example presented by the Pennsylvania

Supreme Court, where the prosecutor tells the jury that the

confession had been redacted and had previously included the

co-defendant’s name. During closing arguments, the

prosecutor revealed that Garcia took Lambert to his house,

where the latter pulled out the murder weapon. Thus, the

prosecutor’s comments conveyed a message—that Lambert

was the person whose name was withheld in the redacted

confession—as clearly as would have been the case in the

example used by the Pennsylvania Supreme Court.8

8

If there had been other evidence that Lambert went home

with Garcia and took out the murder weapon, the prosecutor

properly could have relied on that in closing arguments as

long as she did not also encourage the jury to use the redacted

confession against Lambert. The Commonwealth argues that

this is the case here. It says that the prosecutor was not

undoing the redactions but instead was encouraging the jury

to draw inferences from other evidence in the record.

However, the Pennsylvania Supreme Court rejected this

argument and found that “Garcia’s statement was the only

source suggesting that Garcia took [Lambert] to his house.”

Brown, 925 A.2d at 156 n.5. Under AEDPA, this factual

determination is “presumed to be correct,” 28 U.S.C.

§ 2254(e)(1), and there is no reason here to set aside that

presumption.

23

Moreover, Richardson forecloses the Pennsylvania

Supreme Court’s analysis. As discussed, a redacted

confession in that case described a conversation that took

place in a car, and Marsh admitted that she was in that same

car. The prosecutor put these two facts together in closing

arguments and asked the jury to draw the inference that

Marsh heard the conversation. That is much less direct than

our case, where the prosecutor did more than merely argue an

inference and instead recounted the confession as though

Lambert’s name had been in it all along. Though the

prosecutor in Richardson did not unmask Marsh as a

passenger in the car—Marsh did that herself through her

testimony—the Court nonetheless found a Confrontation

Clause error. 481 U.S. at 211. The only reason why the Court

remanded rather than granting relief directly was the failure

of defense counsel to object during closing arguments—a

failure not present here.

In terms of applying this clearly established Supreme

Court precedent, our opinion in Vazquez provides useful

guidance.9 There, as here, the prosecutor, without going so far

as telling the jury that the confession had been redacted to

omit the co-defendant’s name, “effectively eliminated the

redaction” through a slip of the tongue during closing

9

We do not rely on Vazquez as having created clearly

established law, as only Supreme Court cases can do that for

AEDPA purposes. Rather, we look to it to determine the

principles that we have determined previously to be clearly

defined by Supreme Court cases. Cf. Marshall v. Rodgers,

133 S. Ct. 1446, 1450 (2013) (noting that “an appellate panel

may, in accordance with its usual law-of-the-circuit

procedures, look to circuit precedent to ascertain whether it

has already held that the particular point in issue is clearly

established by Supreme Court precedent”).

24

arguments while paraphrasing the confession. 550 F.3d at

275. Though we granted relief on other grounds, we also

interpreted Bruton to leave “no doubt” that the comments

during closing arguments were “a grave and probably fatal

constitutional violation.” Id. at 283 n.14. There was “no

difference between the admission of [the] unredacted

statement” at the outset and a situation where the prosecutor

negates the redactions during arguments. Id.; see also Fowler

v. Ward, 200 F.3d 1302, 1311 (10th Cir. 2000) (noting that it

would “squarely violate[]” the Confrontation Clause even to

“suggest” that a redacted confession implicated a co-

defendant), overruled on other grounds by Slack v. McDaniel,

529 U.S. 473 (2000).

Finally, we disagree with the Pennsylvania Supreme

Court’s reliance on Frazier as a means of escaping Bruton’s

command. As discussed, the Court in Frazier gave four

reasons for its conclusion. None apply here. The first and

second factors are that the prosecutor in Frazier 1)

summarized a confession that 2) was never actually read—

redacted or otherwise—to the jury. Here the jury heard a full

reading of the redacted confession and then had the redactions

compromised during closing arguments. This difference is

critical. The task of the jury in Frazier was merely to pretend

that there was no confession. By contrast, the jury here was

asked to consider the confession, but only against Garcia,

when the prosecutor effectively said during closing arguments

that it also implicated Lambert. That is the situation Bruton

describes as “intolerabl[e].” 391 U.S. at 136.

Meanwhile, the third Frazier factor—that there was

only one defendant on trial, so the “jury was not being asked

to perform the mental gymnastics of considering an

incriminating statement against only one of two defendants in

a joint trial,” 394 U.S. at 735—is not present here because

there was a joint trial and jurors were told that they had to

25

limit their use of the confession to one defendant. Once again,

this places us squarely within Bruton and its warning that

“there are some contexts in which the risk that the jury will

not, or cannot, follow instructions is so great, and the

consequences of failure so vital to the defendant, that the

practical and human limitations of the jury system cannot be

ignored.” 391 U.S. at 135.

The final factor in Frazier was that the evidence was

not “vitally important” to the prosecution’s case. 394 U.S. at

735. As discussed below in explaining why the error was not

harmless, the evidence here was crucial to the

Commonwealth’s case.

Properly understood, then, Frazier does not carry the

day for the Commonwealth. Frazier made clear that not all

mistakes in opening or closing statements are Bruton

violations. But it never said (or even implied) that Bruton has

a back door that allows prosecutors to do what the Supreme

Court has expressly forbidden—dangle an incriminating

statement in front of jurors, tell them it implicates a particular

defendant, and then expect that they will not use it against

that person.

We therefore hold, as a matter of clearly established

Supreme Court law, that the prosecutor’s comments violated

the Confrontation Clause. There are some circumstances

when the prosecution can commit what otherwise would be a

constitutional violation but nonetheless escape a mistrial

through limiting instructions. However, in cases falling within

the ambit of Bruton and its progeny, limiting instructions

cannot cure the error. See Bruton, 391 U.S. at 135–36. This is

such a case. In deciding otherwise, the Pennsylvania Supreme

Court acted contrary to U.S. Supreme Court law by

apparently requiring prosecutors to act in bad faith for

26

protections to arise, and it misapplied Bruton, Frazier,

Richardson, and Gray by not requiring a mistrial.

V. Harmlessness

Having found an error, we next consider whether it

was harmless. To determine whether the Bruton violation had

a “substantial and injurious effect or influence” on the

outcome, Bond, 539 F.3d at 276 (internal quotation marks

omitted), we must look at the evidence that the jury properly

could have considered against the defendant. Here the

Commonwealth’s case against Lambert rested almost entirely

on Cheatham’s testimony. Indeed, Cheatham was the only

witness with admissible testimony about what Lambert did at

the gas station. And, because Garcia had the gun at the time

of the arrest, Cheatham provided the only admissible link

between Lambert and the murder weapon. But, as noted

below, Cheatham had substantial flaws as a witness. Hence

we conclude that the Bruton error was not harmless.

Cheatham’s own testimony undercut his reliability and

usefulness as a witness. By his own admission, he was

impaired from marijuana and Xanax. As a result, he was

asleep shortly before the crime. And, more importantly, he

said he stayed in the back seat the whole time. His most

powerful statement is that he saw Lambert and Garcia get out

of the car and, when they got back in, Lambert pointed a gun

at Garcia and ordered him to drive. But Cheatham never

claimed to witness the robbery or the murder as they took

place.

Another red flag is that Cheatham added key details to

his narrative between when he gave a statement to the police

and when he testified. For instance, the part about Lambert

pointing the gun at Garcia emerged for the first time in court.

During cross-examination, Cheatham admitted that he had not

27

included that detail when talking to detectives the day after

the crime.

And Cheatham had a powerful motive to implicate

Lambert. The former escaped charges by convincing

detectives that he had remained in the car while Lambert and

Garcia got out. Garcia was telling an entirely different story

in which he was merely present for a crime committed by

Lambert and Cheatham. And Cheatham only gave his

statement after being told he would be charged with a crime if

he did not cooperate. This would give the jury reason to view

Cheatham’s testimony skeptically.

The Commonwealth admits that Cheatham is a flawed

witness but gives us three reasons why it thinks the error was

nonetheless harmless. They do not persuade us. First, it

argues that the convictions of both Lambert and Garcia mean

that the jury must have believed Cheatham (despite his

weaknesses) and disbelieved Garcia. The consequence, in the

Commonwealth’s view, is that it would not matter if it

became obvious that the redacted confession implicated

Lambert because the jury rejected Garcia’s narrative.

We agree that the jury, in convicting Garcia,

apparently credited Cheatham’s account that Lambert and

Garcia got out of the car rather than Garcia’s story that

Lambert and Cheatham did so. But it does not follow that the

jurors necessarily disbelieved the other portions of Garcia’s

confession that implicated Lambert as the shooter. These

parts, which the jury was not supposed to use against

Lambert, reinforced rather than contradicted Cheatham’s

spotty testimony. Hence we cannot say that the jury, once

aware during closing arguments that Garcia’s confession

28

incriminated Lambert, did not make significant use of that

information.10

Next, the Commonwealth notes that the unmasking of

Lambert happened during a part of the closing arguments

when the prosecutor was asking the jury to find Garcia guilty.

Specifically, she was discussing Garcia’s story that Lambert

and Cheatham committed the crime. If that were true, the

prosecutor asked, why did Garcia bring one of the criminals

to his home afterward rather than dropping him off and

calling the police? It was in this context that she used

Lambert’s name, rather than a generic identifier, and revealed

that he was the one who went home with Garcia. Essentially,

the Commonwealth’s argument is that, based on the structure

of the closing arguments, the jury would not have been

tempted to use the information against Lambert. However, as

discussed below, the information was quite harmful to

Lambert, and we cannot realistically assume that the jury

ignored it.

The Commonwealth’s final argument is that the

details that the prosecutor improperly revealed—Lambert

accompanying Garcia home and pulling out the gun—did not

add much to the case against Lambert because they related to

events after the shooting. That misses the point. If the

redactions were ever effective—a question we do not

decide—it would be because they effectively encrypted the

confession by obscuring from the jury part of its meaning.

During closing arguments, the prosecutor essentially gave the

10

The jury’s request to see the confession during

deliberations also lends possible support to the notion that

jurors relied on it to convict Lambert. Nonetheless, we do not

know what motivated the request, and we need not give it any

particular import in reaching our conclusion.

29

jury the key to break the encryption. And, in doing so, she

revealed far more to the jury than Garcia’s statement that

Lambert came home with him.

As noted above but repeated here for convenience, the

key portion of the confession (with the replacements shown in

italics) is:

Q: What happened next?

A: They got in the car and I said what the fuck

happened. One of the guys said I banged the

bitch . . . . She wouldn’t give up her pocketbook

or nothing, so I banged her. . . . I told the first

guy what the fuck, you didn’t tell me you had a

burner.

Q: What is a burner?

A: A gun.

Q: What kind of gun did the first guy have?

A: A .38. He showed it to me in my house after

he shot the lady. After he shot the lady we went

to my house and we went inside. He pulled it

out in the kitchen. I told him to put it away

because my peoples was [sic] there. My mom

told me to get the guy out of her house. We left

my house and drove down North Philly.

Once the jury knew that Lambert was the person who

went to Garcia’s house, it could follow the story

backward to learn that Lambert was the one with the

“burner” and was therefore the person who shot the

victim. We are thus unconvinced by the

30

Commonwealth’s attempt to minimize the importance

of the unmasking.

Lambert has argued in federal court that the

harmfulness of the error was compounded by the

prosecutor’s flouting of the redactions at another point

in her closing arguments. As discussed, see supra n.5,

apart from the comments about Lambert

accompanying Garcia home, she also told the jury:

“It’s an old ugly gun, but it worked. It killed Mary

Edmond. It did just what Antonio Lambert wanted it to

do. He managed to shoot her. Why? Because she

didn’t give up her pocketbook. She resisted it. And

that’s exactly what Mr. Garcia said in his statement.”

The Commonwealth says that this argument is

procedurally defaulted because Lambert did not

explicitly reference these other remarks in state court.

However, we need not weigh in because, for the

reasons we have explained above, we conclude that the

error would not have been harmless even if the

prosecutor had not made these other comments.

Ultimately, given the significance of Garcia’s

confession to the Commonwealth’s case, Cheatham’s

potential unreliability, and the absence of other

evidence identifying Lambert as the shooter, we

believe that the prosecutor’s unmasking of him as “the

other guy” had a “substantial and injurious effect” and

that relief is therefore warranted. Bond, 539 F.3d at

276 (internal quotation marks omitted).

VI. Conclusion

We expect that this case will be the exception

rather than the norm. The potential for constitutional

error could have been mitigated at the outset by

31

granting the motion to sever the trials. After settling on

a joint trial, the Commonwealth could have, during

closing arguments, guarded more carefully against the

special risks posed by redacted confessions. Having

failed to do so, it nonetheless could have avoided a

mistrial had the mistake been of the variety that

Frazier says can be cured through limiting

instructions. And even after missing these first three

safety valves, the Commonwealth could have escaped

this result had the error been harmless.

Here, however, the prosecutor’s comments

created a Bruton violation that was not harmless. We

therefore reverse the order of the District Court and

remand with instructions for it to grant Lambert’s

petition and require the Commonwealth either to

release him or retry him within a specified and

reasonable time period.

32