Redacted Accomplice Confession Failed To Cure Confrontation Clause Error

In the trial of a single defendant, the efforts to redact the confession of an accomplice were insufficient to cure a violation of the Confrontation Clause; the trial court confused the Bruton rule, which may permit redacted statements of nontestifying codefendants, in a joint trial; nonetheless, the error was harmless beyond a reasonable doubt, in United States v. Shaw, _ F.3d _ (10th Cir. July 11, 2014) (No. 13-3050)

When an accomplice confession is introduced at a joint trial, the court may take certain steps to mitigate any prejudice against the defendant at trial. Confrontation Clause concerns also arise as the defendant is unable to cross-examine the non-testifying defendant about the statement provided to law enforcement. The misapplication of well-established rules in this area were recently considered by the Tenth Circuit.

Trial Court Proceedings: Admitting Redacted Statement

Defendant Shaw was charged with committing a serious of bank and credit union robberies. Before trial, he moved to exclude the confession of accomplice Beadles to an agent concerning one of the robberies. The trial court denied the motion in limine as long as reference to the defendant’s name was “replaced by a neutral pronoun”. At trial, the agent testified that:

[O]n October 19th, [Beadles] was picked up at the intersection of 10th and Main in Kansas City by this other individual who, like I said, had apparently blackmailed or tried to blackmail Mr. Beadles. This other person picked him up in what Mr. Beadles described as a gray Honda four door with Missouri license plates. They then drove to Topeka, searching for a bank to rob. Mr. Beadles stated that he—I guess because he was comfortable with the Kaw Valley Bank, he’d previously robbed that one, they stopped in the vicinity of that bank near in an alley. They donned these masks that were provided by this other individual. They went in, robbed the Kaw Valley Bank. He said again that he had stood in the doorway while this other person went into the bank, took the—took the money from the drawers, the teller drawers. They then left in the gray Honda, drove back to actually Leavenworth this time. The other person dropped him off at a KMart near where the Grossman Center is, gave Mr. Beadles a cut of the money, about $4,000. They had robbed—robbed the bank, Mr. Beadles had thought about 12,000—12 to $13,000, and this other person gave Beadles $4,000 of that money, and after that, Mr. Beadles had never seen—had not seen this other person since.

Shaw, _ F.3d at _. The jury acquitted the defendant on the robbery charge based on the Beadles confession. However, the defendant was convicted on other robbery counts. On appeal, he challenged the admission of the redacted confession of his accomplice.

Tenth Circuit Review: Confrontation Clause Violation

The Tenth Circuit concluded that the admission of the statement violated the Confrontation Clause and the “Defendant’s motion in limine should have been granted.” Shaw, _ F.3d at _ (citing United States v. Clark, 717 F.3d 790, 814‒15 (10th Cir. 2013) (“[T]he Sixth Amendment preclude[s] the admission of out-of-court statements that are testimonial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.”) (internal quotation marks omitted). The statement was testimonial since it was “made during police interrogation.” Shaw, _ F.3d at _ (citing Crawford v. Washington, 541 U.S. 36, 52–54 (2004)).

Misapplication Of The Bruton Rule

The circuit noted that the error was to rely on Sixth Amendment case law concerning the redaction of co-defendant confessions in joint trials. In Bruton v. United States, 391 U.S. 123, 135-37 (1968), the Supreme Court held that the admission of a co-defendant’s confession implicating the defendant is reversible error where the co-defendant did not testify and the co-defendant and defendant are jointly tried. The replacement of the defendant’s name with a neutral pronoun may be one step to cure a Sixth Amendment violation. Shaw, _ F.3d at _ (citing United States v. Verduzco-Martinez, 186 F.3d 1208, 1214 (10th Cir. 1999) (“[W]here a defendant’s name is replaced with a neutral pronoun or phrase there is no Bruton violation, providing that the incrimination of the defendant is only by reference to evidence other than the redacted statement and a limiting instruction is given to the jury.”)).

The circuit noted that the case did not present a Bruton issue:

This analysis applies, however, only because the statement was admissible against the confessing defendant. In Bruton itself the Court dealt with the confession of a codefendant jointly tried with the defendant challenging the admission of the confession. See 391 U.S. at 137. A trial of a single defendant is different. As we said in United States v. Hill, 901 F.2d 880, 883 (10th Cir. 1990): “Of course, if the district court grants a motion to sever [the trials of the two defendants], Bruton problems will never arise. The only evidence that will be admitted in each trial will be the evidence that is admissible against each particular defendant.”

Redaction of a codefendant’s confession cannot make it admissible against the defendant. Redaction does not override the Confrontation Clause. It is just a tool to remove, in appropriate cases, the prejudice to the defendant from allowing the jury to hear evidence admissible against the codefendant but inadmissible against the defendant. The practice was first approved by the Supreme Court in Richardson v. Marsh, 481 U.S. 200 (1987), which concerned the admission of a confession at a joint trial, see id. at 202. The Court endorsed redaction to preserve the efficiencies and fairness of joint trials. See id. at 209–10. Every published Tenth Circuit opinion applying Richardson has involved a confessing codefendant tried with the defendant. See, e.g., United States v. Green, 115 F.3d 1479, 1480, 1485 (10th Cir. 1997). See generally 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §§ 105.05–105.06 (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2013) (admissibility of evidence in joint trials).

Shaw, _ F.3d at _.

Harmless Error Review

Notwithstanding the constitutional error, the circuit concluded it was harmless beyond a reasonable doubt. Specifically, the inadmissible statement involved a robbery on which the defendant was acquitted. The evidence on the remaining counts of conviction “was very strong.”

Conclusion

The Shaw case provides an interesting misapplication of the replacement tool used to address Confrontation Clause concerns in joint trial. Ultimately, the constitutional error proved to be harmless beyond a reasonable doubt.

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