# Foster v. United States

> District of Columbia Court of Appeals · October 13, 1988 · 548 A.2d 1370

URL: https://www.frixlaw.com/law-library/cases/9727629

## Case

- **Full name:** Dwight F. FOSTER, Appellant, v. UNITED STATES, Appellee; Albert H. WASHINGTON, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** October 13, 1988
- **Citations:** 548 A.2d 1370; 1988 D.C. App. LEXIS 184; 1988 WL 106965
- **Precedential status:** Published
- **Opinion:** Concurrence by Pryor
- **Judges:** Pryor, Newman, Rogers
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9727629

## How later opinions describe it (automated extraction)

- finding a redacted statement that substituted a neutral reference to a defendant admissible insofar as there existed no substantial risk that the jury will consider the statement
- applying constitutional harmless-error test identified in Chapman v. California, 396 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)
- applying constitutional harmless-error test identified in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)

## Opinion text

PRYOR, Chief Judge,
concurring in the judgment:
I conclude that the trial court did not err in declining severance in this case. Thus, in reaching affirmance, I do not rely on a premise of harmless error.
In Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), the Supreme Court held that a nonconfess-ing defendant’s right of confrontation is violated by the admission, in a joint trial, of a nontestifying codefendant's confession which facially incriminates the defendant. Id. at 126 , 88 S.Ct. at 1622 . The Court explained 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 that failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored,” id. at 135 , 88 S.Ct. at 1627 , and that such a context is presented “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.” Id. at 135-36 , 88 S.Ct. at 1628 . The Court, therefore, concluded that Bruton was denied his constitutional right of confrontation in that case because “the confession added substantial, perhaps even critical, weight to the Government’s case_” Id. at 127-28 , 88 S.Ct. at 1623 .
In Richardson v. Marsh, 481 U.S. 200 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987), the Court revisited the rationale of Bruton and considered whether it requires the exclusion of a nontestifying codefendant’s confession which is redacted to eliminate not only the defendant’s name, but also any reference to the defendant’s existence. The Court reasoned that “with regard to inferential incrimination the judge’s instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget.” Id. 107 S.Ct. at 1707-08 . Although the Court admitted that “it may not always be simple for the members of a jury to obey the instruction that they disregard an incrimi *1381 nating inference,” id. at 1708, it was satisfied that “there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton’s exception to the general rule.” Id. The Court concluded that such a confession falls outside the narrow exception created by Bruton . 1
The question presented for decision in this case is whether the Bruton rule should be extended, in limited circumstances, and on the same rationale, to guard against the use of a nontestifying code-fendant’s statement in which the defendant’s name has been replaced with a symbol or neutral pronoun when that statement, viewed in the context of the total trial evidence, proves powerfully incriminating to the defendant. This approach has sometimes been referred to as contextual analysis or contextual implication. While I do not reject such a concept entirely, 2 I would hesitate to formulate a doctrine that would mandate a severance in cases where the prejudicial impact of the codefendant’s statement is minimal. Bearing in mind the importance of joint trials, and the familiar remedies of redaction and limiting instructions, the requirement that the challenged statement prove “powerfully incriminating” is, and should be, a demanding one.
I, therefore, agree that it is necessary, in certain circumstances, to approve an extension of the Bruton rule. In determining the admissibility of a nontestifying code-fendant’s statement in which the defendant’s name has been replaced with a symbol or neutral pronoun, the trial court should first consider, as a threshold inquiry, whether the jury has to make a substantial inference to identify the defendant as the person mentioned in the statement. When the degree of inference required to link the defendant to the statement is substantial — or, in other words, “[wjhere the context may permit an inculpating inference, but does not compel it,” English v. United States, 620 F.2d 150, 153 (7th Cir.), cert. denied, 449 U.S. 859 , 101 S.Ct. 160 , 66 L.Ed.2d 75 (1980) — it is fair to assume that limiting instructions “may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget.” Richardson v. Marsh, supra, 107 S.Ct. at 1708 ; see West v. United States, 499 A.2d 860, 868 (D.C.1985); United States v. Wingate, 520 F.2d 309, 313 (2d Cir.1975), cert. denied, 423 U.S. 1074 , 96 S.Ct. 858 , 47 L.Ed.2d 84 (1976); United States v. Key, 725 F.2d 1123, 1126 (7th Cir.1984); cf. Carpenter v. United States, 430 A.2d 496, 505 (D.C.) (en banc), cert. denied, 454 U.S. 852 , 102 S.Ct. 295 , 70 L.Ed.2d 143 (1981). In such circumstances, the trial court need go no further and may properly admit the statement. 3 If, how *1382 ever, the trial court determines that the jury does not have to make a substantial inference, the efficacy of limiting instructions is seriously called into question, 4 and the court should then take the next step and determine whether the consequences of the jury’s failure to follow its instructions will prove vital to the defendant. It is only when the jury does not have to make a substantial inference and the statement constitutes a vitally important part of the government’s case against the defendant, adding “substantial, perhaps even critical, weight to the government’s case,” Bruton, supra, 391 U.S. at 127 , 88 S.Ct. at 1623 , that the risk of jury misconduct is so great, and the consequences of that misconduct so vital to the defendant, that a severance should then be required. See United States v. Wingate, supra, 520 F.2d at 313 (cautionary instructions ineffective under Bruton only where extrajudicial statement clearly inculpatory as to defendant and vitally important to government’s case); United States v. Key, supra, 725 F.2d at 1126 (Bruton violation where confession clearly inculpatory and vital to government’s proof); United States v. Greenleaf, 692 F.2d 182, 189 (1st Cir.1982) (where there existed substantial evidence independent of extrajudicial statement linking defendant to crime, fact that statement corroborated government’s case not enough to satisfy powerfully incriminating standard of Bruton), cert. denied, 460 U.S. 1069 , 103 S.Ct. 1522 , 75 L.Ed.2d 946 (1983); cf. Douglas v. Alabama, 380 U.S. 415, 419 , 85 S.Ct. 1074, 1077 , 13 L.Ed.2d 934 (1965) (nontestifying codefendant’s statement which directly accused defendant of firing shotgun only direct evidence that defendant had done so and coupled with other circumstances “formed crucial link in the proof”); Richardson v. Marsh, supra, 107 S.Ct. at 1712 (Stevens, J., dissenting) (confession, when “[vjiewed in the total context of the trial evidence,” proved critically important since it was only evidence linking respondent with specific intent to kill victims); Marsh v. Richardson, 781 F.2d 1201 , 1210 n. 7 (6th Cir.1986) (statement more likely to be powerfully incriminatory the more directly it implicates defendant and where there is other substantial evidence from which the [guilt of the defendant] might be inferred there is not substantial risk that jury relied on the inadmissible evidence in reaching its verdict (construing United States v. Wingate, supra, 520 F.2d at 314 , and United States ex rel. Nelson v. Follette, 430 F.2d 1055, 1059 (2d Cir.1970), cert. denied, 401 U.S. 917 , 91 S.Ct. 899 , 27 L.Ed. 2818 (1971))), rev’d on other grounds, 481 U.S. 200 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987); United States v. Cleveland, 590 F.2d 24, 29 (1st Cir.1978) (where independent evidence against defendants substantial, admission of confession which did not refer to defendants was not so prejudicial as to mandate a severance); United States v. Belle, supra, 593 F.2d at 501, 508 (Gibbons, J., dissenting) whether redacted codefendant’s confession is particularly significant in prosecution’s case against defendant is factor to be considered in determining existence of Confrontation Clause error). 5
*1383 In light of the presumed efficacy of limiting instructions in cases involving inferential incrimination, see Richardson v. Marsh, supra, 107 S.Ct. at 1707-08 ; supra note 3, and the importance of joint trials, Richardson v. Marsh, supra, 107 S.Ct. at 1708-09 , in my view, application of the Bruton rule in this context “should be confined to those cases where the jury’s ignoring of limiting instructions is most likely to change the verdict, which is to say, those cases where there is the greatest risk that jury misconduct will lead to the conviction 'Of an innocent defendant.” Cruz v. New York, supra, 107 S.Ct. at 1720 n. 2 (White, J., dissenting). In circumstances where the jury does not have to make a substantial inference to link the defendant to the statement, I believe that it is a “reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process,” Richardson v. Marsh, supra, 107 S.Ct. at 1709 , to provide an avenue of relief to a defendant who can demonstrate that because the codefendant’s statement constitutes a vitally important piece of evidence against him, the consequences of the jury’s failure to follow its instructions will, in all probability, result in actual and material prejudice to his case. Cf. United States v. Cleveland, supra, 590 F.2d at 28 (defendant must demonstrate significant degree of prejudice to overcome society’s interest in conducting joint trials); Catlett v. United States, 545 A.2d 1202, 1212 (D.C.1988). 6
I therefore conclude that admission of Washington’s redacted statements did not violate Foster’s right of confrontation. Although it is likely that, given the independent trial evidence, the jury did not have to make a substantial inference to connect Foster to those statements, the consequences of the jury’s failure to follow its instructions would not have proved vital to Foster since the statements merely corroborated the testimony of the governments witnesses and thus did not “add substantial, perhaps even critical, weight to the government’s case.” Bruton, supra, 391 U.S. at 127 , 88 S.Ct. at 1623 .
. Having reached this result, it was then unnec- ■ essary for the Court to consider whether the consequences of the jury’s failure to follow its instructions would have proved vital to the defendant.
. The type of incrimination at issue in this case, although inferential in nature, is different from that considered by the Richardson Court. An extrajudicial statement in which the defendant’s name has been replaced with a symbol or neutral pronoun lies somewhere on the center of the Bruton-Richardson spectrum since, although the defendant is not expressly named, the presence of the pronoun or symbol may alert the jury to the fact that another individual is involved, and when the statement is considered with other trial evidence, the jury may improperly infer that the defendant is that individual. See United States v. Petit, 841 F.2d 1546, 1556 (11th Cir.), cert. denied, — U.S.-, 108 S.Ct. 2906 , 101 L.Ed.2d 938 (1988); Lyle v. Koehler, 720 F.2d 426, 434-35 (6th Cir.1983); United States v. Gonzalez, 555 F.2d 308, 316-17 (2d Cir.1977); Serio v. United States, 131 U.S.App.D.C. 38, 39 , 401 F.2d 989, 990 (1968); cf. United States v. Garcia, 836 F.2d 385, 390 (8th Cir.1987); Clark v. Maggio, 737 F.2d 471, 477 (5th Cir.1984), cert. denied, 470 U.S. 1055 , 105 S.Ct. 1761 , 84 L.Ed.2d 823 (1985); United States v. Burke, 700 F.2d 70, 85 (2d Cir.), cert. denied 464 U.S. 816 , 104 S.Ct. 72 , 78 L.Ed.2d 85 (1983); but see United States v. Belle, 593 F.2d 487 (3d Cir.1979). In certain cases, the independent trial evidence may make it "as clear as pointing and shouting that the person referred to [is] the [defendant],” Harrington v. California, 395 U.S. 250, 253 , 89 S.Ct. 1726, 1728 , 23 L.Ed.2d 284 (1969), and for this reason it cannot fairly be said that limiting instructions will always prove effective.
.If the jury follows its instructions, there is "no error, constitutional or otherwise.” Cruz v. New York, 107 S.Ct. 1714, 1719 (1987) (White, J„ dissenting); see Richardson v. Marsh, supra.
. Although Richardson specifically left open the question whether the Bruton rule requires the exclusion of "a confession in which the defendant’s name has been replaced with a symbol or neutral pronoun,” id. 107 S.Ct. at 1709 n. 5, the Court, in its discussion of the efficacy of limiting instructions, spoke in terms of “inferential incrimination” and "linkage evidence." Thus, because we deal here with inferential, rather than explicit, incrimination, I believe that the assumption that jurors will follow their instructions continues to obtain, although with a lesser degree of certainty, in cases where no substantial inference is required to link the defendant to a neutral reference contained in the statement of a nontestifying codefendant.
. I disagree with the majority that the second prong of the test set forth in United States v. Gonzalez, supra, is actually a harmless error inquiry. A Bruton error is harmless only if the independent evidence against the defendant is overwhelming. Harrington v. California, 395 U.S. 250, 253-54 , 89 S.Ct. 1726, 1728 , 23 L.Ed.2d 284 (1969). Whether the confession constitutes a vitally important part of the government’s case against the defendant is not necessarily relevant to whether any error is harmless, but rather, to whether the consequences of the jury’s failure to follow its instructions will prove "so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton, supra, 391 U.S. at 135 , 88 *1383 S.Ct. at 1627 ; see Wapnick v. United States, 406 F.2d 741 (2d Cir.1969).
Thus, adoption of the second prong of the Gonzalez test is consistent with the rationale of Bruton which "has always required trial judges to answer the question whether a particular confession is or is not ‘powerfully incriminating’ on a case-by-case basis." Richardson v. Marsh, supra, 107 S.Ct. at 1710 (Stevens, J., dissenting).
. I note that a confession may be vital to the government’s case even though the independent evidence of guilt is sufficient to sustain a conviction of the defendant.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9727629. Public record. Not legal advice.