United States v. Briscoe

CUDAHY, Circuit Judge,

concurring:

I concur in the judgment and write separately only with respect to Section III(G) of the majority’s very thorough opinion. In my view, Bello’s statement to Customs Inspector McCarthy on its face implicated Usman, and its admission into evidence therefore violated Usman’s confrontation clause rights under Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968). Although Bello did not refer to Usman by name, the pronoun “we” served the same function. It was certainly clear to the jury, as it was to Customs Inspector McCarthy, that “we” referred to Bello, Usman and Aderemi Adefuye. Further, a jury could easily infer that the antecedent of “this” (in the sentence, “We were only to bring this from New York to Chicago.”) was the heroin itself, not the containers. The plain import of Bello’s statement ascribes knowledge and intent to Usman. Such evidence is precisely the type that concerned the Supreme Court in Bruton and, more recently, in Cruz v. New York, 481 U.S. 186 , 107 S.Ct. 1714 , 95 L.Ed.2d 162 (1987).

In Cruz , the Court considered the applicability of Bruton to cases involving so-called “interlocking confessions,” in which non-testifying co-defendants make pretrial confessions that implicate each other. Writing for the Court, Justice Scalia observed:

While the “devastating” practical effect was one of the factors that Bruton considered in assessing whether the Confrontation Clause might sometimes require departure from the general rule that jury instructions suffice to exclude improper testimony, 391 U.S., at 136 [ 88 S.Ct. at 1628 ], it did not suggest that the existence of such an effect should be assessed on a case-by-case basis. Rather, that factor was one of the justifications for excepting from the general rule the entire category of codefendant confessions that implicate the defendant in the crime.

481 U.S. at 191 , 107 S.Ct. at 1718 (emphasis added).

The majority declines to recognize a Bru-ton problem here because it does not view Bello’s statement as “powerfully incriminating” in light of the other evidence establishing Usman’s knowing possession of and intent to transport heroin. This approach is not open to us in light of the Supreme Court’s admonition in Cruz against undertaking a subjective assessment of the degree to which a particular co-defendant confession “devastates” the defendant’s case. With greatest respect to the majority, I see no difference between “devastating” and “powerfully incriminating” in this context. The proper criterion for determining whether a Bruton problem exists is whether the implication of a co-defendant is “facial” — as by naming Usman or using the equivalent pronoun “we.”

Apparently in support of its view that Bello’s statement was not “powerfully incriminating” against Usman, the majority cites Richardson v. Marsh, 481 U.S. 200 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987), a case also authored by Justice Scalia and decided the same day as Cruz . In Rich *1524 ardson, however, the trial court redacted all references to Marsh before admitting her co-defendant’s confession. Marsh complained that when coupled with her own testimony, which placed her at the scene of events described in the co-defendant’s confession, the redacted statement still violated Bruton . The Court rejected this contention, holding that “the confession was not incriminating on its face, and became so only when linked with evidence later introduced at trial (the defendant’s own testimony).” 481 U.S. at 208, 107 S.Ct. at 1707 (emphasis added). In sharp contrast to the Richardson scenario, Bello’s statement in this case was introduced through the customs officer who had just finished testifying about the post-arrest investigation of Bello, Usman and Aderemi Adefuye. Bello’s statement, through the use of the pronoun “we,” did incriminate Usman (and Aderemi) 1 on its face and cannot fairly be considered a “neutral pronoun.” 2 Cf. Monachelli v. Warden, SCI Graterford, 884 F.2d 749, 752-53 (3d Cir.1989) (statement by non-testifying co-defendant inculpated defendant by use of terms “my brother” and “he” and therefore violated Bruton); United States v. Bennett, 848 F.2d 1134 , 1141-42 & n. 8 (11th Cir.1988) (“Far from being neutral, the pronoun ‘they’ clearly referred to [defendants].”).

Despite this disagreement, I am in complete accord with the majority's conclusion that, in any event, the Bruton violation was harmless. Bello’s statement was merely cumulative of properly admitted evidence establishing Usman’s knowing and intentional possession of heroin. I would affirm Usman’s conviction on this basis.

. As noted by the majority, the evidence of Ad-eremi’s possession of the heroin discovered in the post-arrest investigation was suppressed because it was obtained coercively in violation of the Fourth Amendment. Therefore, we are concerned only with whether the admission of Bel-lo's statement violated Usman’s confrontation clause rights.

. The majority correctly indicates the Supreme Court's express reservation on the admissibility of a non-testifying co-defendant’s confession "in which the defendant’s name has been replaced with a symbol or neutral pronoun." See Richardson, 481 U.S. at 211 n. 5, 107 S.Ct. at 1709 n. 5. I cannot agree with the majority's conclusion, however, that "we” is "neutral" in the context of this case.