No. 96-8653

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

KEVIN D. GRAY, PETITIONER

v.

MARYLAND

ON WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND

BRIEF FOR THE
UNITED STATES AS AMICUS CURIAE
SUPPORTING RESPONDENT

SETH P. WAXMAN
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

MICHAEL R. DREEBEN
Deputy Solicitor General

ROY W. MCLEESE III
Assistant to the Solicitor General

SANGITA K. RAO
Attorney

Department of Justice
Washington, D.C. 20530-0001
(202)514-2217

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QUESTION PRESENTED

    Whether the Confrontation Clause of the Sixth
Amendment precludes the admission at a joint trial of
the confession of a non-testifying co-defendant, where
the jury is instructed not to consider the confession
against the defendant, and the confession is redacted
to replace all incriminating references to the defen-
dant with neutral, non-identifying terms.

(1)

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TABLE OF CONTENTS

Interest of the United States . . . . 1
Statement . . . . 2
Summary of argument . . . . 5
Argument . . . . 7
Admission of the redacted confession of a co-
defendant did not violate petitioner's Confrontation
Clause rights . . . . 7
A. Bruton is a narrow exception to the presumption
  that injuries follow the court's instructions . . . . 7
B. Brutons narrow exception  should not be ex-
  tended to confessions that have been redacted
  to replace all incriminating references to the
  defendant with neutral, non-identifying
  terms . . . . 16
Conclusion . . . . 28

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TABLE OF AUTHORITIES

Cases:

Bruton v. United States, 391 U.S. 123 (1968) . . . . passim
Cruz  v. New York, 481 U. S. 186(1987) . . . . 10
Ewish v. State, 871 P.2d  306(1994), rev'd in part
on other grounds on  rehearing, 904 P.2d 1038
(Nev. 1995) . . . . 24
Foster v. United States, 548 A.2d 1370(D.C.
1988) . . . .  4
Francis v. Franklin, 471 U. S .307 (1985) . . . . 7
Free v. Peters, 12 F.3d 700(7th Cir.1993), cert.
denied, 513 U.S. 967 (1994) . . . . 8
Gacy v. Welborn, 994 F.2d 305(7th Cir.), cert.
denied, 510 U.S. 899 (1993) . . . . 8
Greer v. Miller, 483 U. S. 756 (1987) . . . . 28
Barrington v. California, 395  U.S. 250 (1969) . . . . 18-19
Harris v. New York, 401 U.S. 22.2(1971) . . . . 8-9

(III)

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IV

Cases-Continued:               Page

Jackson v. Denno, 378 U.S. 368 (1964) . . . . 12
Lakeside v. Oregon, 435 U.S. 333 (1978) . . . . 10
Marsh v. Richardson, 781 F.2d 1201 (6th Cir.
1986), rev'd, 481 U.S. 200  (1987) . . . . 13
Marshall v. Lonberger, 459 U.S. 422 (1983) . . . . 9
Miranda v. Arizona, 384 U.S. 436  (1966) . . . . 9
Moran  v. Burbine, 475 U.S. 412  (1986) . . . . 16
People v. Aranda, 407 P.2d 265 (Cal. 1965) . . . . 20
Richardson v. Marsh, 481 U.S. 200 (1987) . . . . passim
Shannon v. United States, 512 U.S. 573 (1994). . . . 7, 10
Spencer v. Texas, 3&5 U.S. 554 (1967) . . . . 8, 9
State v. Corsi, 430 A.2d 210 (NJ. 1981) . . . . 25
Tennessee  v.  Street, 471 U.S. 409  (1985 . . . .  9, 12, 16
United States v. Adams, 74 F.3d 1093 (1lth Cir.
1996) . . . . 18
United States v. Alvarado, 882 F.2d 645 (2d Cir.
1989), cert. denied, 493 U.S. 1071 (1990) . . . . 17
United States v. Applewhite, 72 F.3d 140 (D.C.
Cir. 1995), cert. denied, 116 S. Ct. 1864 (1996) . . . . 17, 22, 28
United States v. Balter, 91 F.3d 427 (3rd Cir.),
cert. denied, 117 S. Ct. 517, 518 (1996) . . . . 24
United States v. Banks, 78 F.3d 1190 (7th Cir.),
cert. granted, vacated, and remanded on other
grounds sub nom. Mills v. United States, 117
S. Ct. 478 (1996), aff'd on remand, No. 94-2788,
1997 WL 450074 (7th Cir. Aug. 8, 1997) . . . . 17, 21
United States v. Belle, 593 F.2d 487 (3d Cir.),
cert. denied, 442 U.S. 911 (1975) . . . . 17
United States v. Gwen, 115 F.3d 1479 (l0th
Cir. 1997), petition for cert. pending,.
No  97-5829 . . . . 17
United States v. Hoac, 990 F.2d 1099 (9th Cir.
1993), cert. denied, 510 U.S. 1120 (1994) . . . . 17
United States v. Jimenez, 77 F.3d 95 (5th Cir.
1996) . . . . 17

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V

Cases-Continued               Page

United States v. Jones, 101 F.3d 1263 (8th Cir.
1996), cert. denied, 117 S. Ct. 1346, 1566 (1997) . . . . 7
United States v. Kamirwki, 692 F.2d 505 (8th Cir.
1982). . . . 23
United States v. Kreiser, 15 F.3d 635 (7th Cir.
1994) . . . . 19
United States v. Long, 900 F.2d 1270 (8th Cir.
1990) . . . . 17, 22
United States v. Myers, 892 F.2d 642 (7th Cir.
1990) . . . .  23
United States v. Olano, 507 U.S. 725 (1993) . . . . 7, 10
United States v. Rimav, 558 F.2d 1271 (6th Cir.),
cert. denied, 434 U.S. 984 (1977) & 435 U.S. 922
(1978) . . . . 24
United States v. Sherlin, 67 F.3d 1208 (6th Cir.
1995), cert. denied, 116 S. Ct. 795, 1548 (1996) . . . . 17
United States v. Smith, 46 F.3d 1223 (lst Cir.),
cert. denied, 116 S. Ct. 176 (1995) . . . . 17
United States v. Strickland, 935 F.2d 822 (7th
Cir.), cert. denied, 502 U.S. 917 (1991) . . . . 23, 26-27
United States v. Tapia, 59 F.3d 1137 (llth Cir.),
cert. denied, 116 S. Ct. 401, 546 (1995) . . . . 18
United States v. Vogt, 910 F.2d 1184 (4th Cir.
1990), cert. denied, 498 U.S. 1083 (1991) . . . . 17
United States v. Washington, 952 F.2d 1402
(D.C. Cir. 1991), cert. denied, 503 U.S. 1009
(1992) . . . . 23, 28
United States v. Williams, 936 F.2d 698 (2d Cir.
1991) . . . . 17
Watkins v. Sowders, 449 U.S. 341 (1981) . . . . 9, 12
Williamson v. United States, 512 U.S. 594 (1994) . . . . 10
.Zafiro v. United States, 506 U.S. 534 (1993) . . . . 10

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VI

Constitution and rules:              Page
U.S. Const,:
Amend. VI (Confrontation Clause) . . . . 11, 25
Amend. XIV . . . . 11
Fed. R. Crim. P. 14 . . . . 10
Fed. R. Evid.:
  Rule 106 . . . . 23
  Rule 801(d)(2) . . . . 10
  Rule 804(b)(3) . . . . 10

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In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-8653

KEVIN D. GRAY, PETITIONER

v.

MARYLAND

ON WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND

BRIEF FOR THE
UNITED STATES AS AMICUS CURIAE
SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

    This case presents the question whether, under
Bruton v. United States, 391 U.S. 123 (1968), and
Richardson v. Marsh, 481 U.S. 200 (1987), a court may
admit at a joint trial the confession of a non-testifying
co-defendant, where the jury is instructed not to
consider the confession against the defendant, and the
confession is redacted to replace all incriminat-
ing references to the defendant with neutral, non-
identifying terms. The proper application of Bruton
and Richardson is a frequently recurring issue in
federal criminal trials, and the United States partici-

(1)

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2

pated as amicus curiae in Richardson. The Court's
resolution of the question presented in this case will
have a substantial effect on federal criminal practice.

STATEMENT

    1. On November 10, 1993, petitioner and five other
young men beat Stacey Williams to death. J.A. 89.
Based on information from eyewitnesses to the
beating, the police identified three suspects: Anthony
Bell, petitioner Kevin Gray, and Jacquin Vanlanding-
ham. III  Tr. 15-16. The police therefore obtained ar-
rest warrants for Bell and petitioned  Vanlandingham
had been fatally shot within days of the beating. Id.
16-17 J.A. 89.
    Bell was arrested first, and he gave a written state-
ment naming himself, Vanlandingham, and petitioner
as participants in the beating. J.A. 89. Bell also indi-
cated that "a few other guys," or "[a]bout six guys" in
total, were involved in the beating. J.A. 55-56. When
petitioner was later arrested, he claimed to have been
on the telephone at the time of the beating. 111 Tr. 38.
Petitioner and Bell were scheduled for a joint trial.
J.A. 89, Petitioner moved to sever his trial from
Bell's or, in the alternative, to exclude Bell's confes-
sion from evidence. J.A. 4-9, The trial court denied
the motions, but ordered that Bell's confession be
redacted to exclude the names of petitioner and
Vanlandingham. J.A. 7-9.
    At trial, the State's witness Tracy Brumfield testi-
fied that she saw petitioner, Vanlandingham, and ten
other young men chasing the victim down the street.
J.A. 82-83. State witness Shay Yarberough, who
saw the beating itself, gave the following account: Six
people were involved in the attack. Vanlandingham
lifted the victim over his head and dropped him to the

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sidewalk, and petitioner unsuccessfully attempted the
same maneuver. Petitioner, Bell, Vanlandingham,
and three others repeatedly kicked the victim in the
head and body. J.A. 89-90.
    Bell did not testify, but his confession was read to
the jury with the words "deleted" or "deletion" sub-
stituted for the names of petitioner and Vanlanding-
ham. J.A. 10-12. A written copy of the redacted con-
fession was also admitted into evidence, with blank
white spaces substituted for the names of petitioner
and Vanlandingham. J.A. 65-68. Before the confession
was read to the jury, the trial court instructed the
jury that the confession was admitted only against
Bell and was not to be considered as evidence against
petitioner. J.A. 10.
    Petitioner testified in his own defense. He claimed
that he was on a public phone with his girlfriend
during the beating. J.A. 90. Petitioner's girlfriend
testified that petitioner had called her from a public
telephone and cemented to her that Vanlandingham
was fighting. Ibid. Two other defense witnesses tes-
tified that they had witnessed various parts of
the beating, and that petitioner was not involved at
that time, but was rather at a nearby telephone booth.
J.A. 90 (Lamont Matthews); III Tr. 110-112, 116-118
(Renardo Gardner).
    The jury found petitioner guilty of involun-
tary manslaughter. J.A. 90.  He was sentenced to ten
years' imprisonment with all but seven years sus-
pended. Ibid.
    2. Petitioner appealed, and the Maryland Court of
Special Appeals reversed his conviction. J.A. 87. The
court held that the introduction of Bell's redacted
confession violated petitioner's Confrontation Clause
rights under Bruton v. United States, 391 U.S. 123

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4

(1968), even though the jury had been instructed not
to consider the confession against petitioner. J.A. 83-
85.  In the court's view, the "instant case represents a
point on the continuum between Bruton and Richard-
son [v, Marsh, 481 U.S. 200 (1987)] `where one cannot
have the requisite degree of assurance that the jury
will not  improperly consider  the evidence in deciding
the guilt  of  the defendant against. whom the evidence
is not admissible despite a proper limiting instruc-
tion.'" J.A. 84 (quoting Foster v. United States, 548
A.2d 1370,1378  (D.C. 1988)).  The court reasoned that
despite the redaction of petitioner's name, "[i]n the
context of other evidence * * * the jury need only
have taken a short step in inferring that [petitioner]
was one Of those involved. * * * Therefore, there
existed a `substantial risk' that the jury considered
the statement in deciding [petitioner's] guilt." J.A.
83-84.
    3. The State of Maryland appealed, and the Court
of Appeals of Maryland reinstated petitioner's con-
viction. J.A. 89. That court ruled that admission of a
non-testifying co-defendant's redacted confession vio-
lates a defendant's Confrontation Clause rights only
if, in the context of all of the evidence introduced at
trial, the redacted confession compels a direct infer-
ence that the co-defendant originally incriminated the
defendant. J.A. 101. The could explained that unless
"[t]he compulsion to make the impermissible infer-
ence [is] compelling, inevitable, and subject to little or
no debate[,] * * * the general and strong presump-
tion that jurors follow their instructions is not over-
come, and the requirements of Bruton are therefore
satisfied." J.A. 101-102.
    Applying that test, the court noted that the evi-
dence in the present case established that at least six

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5

individuals were involved in the attack on the dece-
dent. The deleted names in Bell's confession "could
have been any one of at least four other individuals[,] a
fact emphasized by the State[s] attorney no less than
three times during her final summation." J.A. 106.
Accordingly, the court held that the evidence at trial
did not compel the inference that Bell's confession
had named petitioner, and therefore no Bruton viola-
tion occurred. ibid.

SUM MARY OF ARGUMENT

    It is "the almost invariable assumption of the law
that jurors follow their instructions." Shannon v.
United States, 512 U.S. 573, 585 (1994) (quoting
Richardson v. Marsh, 481 U.S. 200, 206 (1987)). This
Court has applied that principle in a wide variety of
contexts, including those in which the instructions at
issue required the jury not to consider, or to limit its
consideration of, powerfully incriminating evidence.
In Bruton v. United States, 391 U.S. 123 (1968), this
Court recognized a narrow exception to that princi-
ple. The Bruton Court held that a non-testifying co-
defendant's confession that on its face powerfully
incriminated another defendant could not be admitted
at a joint trial. The Court explained that a jury could
not be expected to follow an instruction to disregard
the facially incriminating confession of the co-
defendant in considering the ease against the other
defendant. 391 U.S. at 126.
    In Richardson, this Court emphasized that Bruton
was a "narrow" decision that turned on its "precise
facts." 481 U.S. at  207,211.  The Court in Richardson
declined to extend Bruton to exclude co-defendant
confessions that had been redacted to eliminate any
reference to the name or existence. of the defendant.

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6

The Court recognized that, in context with the other
evidence admitted at trial, such a co-defendant con-
fession might incriminate the defendant if the jury
violated its instructions. When a co-defendant's con-
fession is only contextually incriminating, as opposed
to incriminating on its face, however, "there does not
exist the overwhelming probability" of the jury's
inability to follow a limiting instruction "that is the
foundation of  Brutons  exception to the general rule."
Id. at 208. The `Court in Richardson also emphasized
that the "practical effects" of a contrary holding
would be intolerable. Id. at 208-210.
    Richardson's reasoning fully applies to co-
defendant confessions that are redacted to replace all
incriminating references to another defendant with
neutral, non-identifying terms Such confessions do
not have the same immediate and dramatic impact on
the jury as a facially incriminating confession such
as that at issue in Bruton.  As in Richardson, limit-
ing instructions can be trusted to dissuade jurors
from "entering onto the path of inference" to deter-
mine whether  such  confessions  would incriminate the
other  defend and if connected to other evidence at trial.
481 U.S. at 208.
    The practical effects of a contrary conclusion
would be no more acceptable in the present context
than they were in Richardson. In Richardson, the
Court noted that a contextual approach to the admis-
sibility of redacted confessions would make it impos-
sible to determine the admissibility of such confes-
sions until the close of evidence, or would require
pretrial hearings that would be burdensome and
possibly inadequate in any event. The Court also
rejected the alternatives of severance or forgoing use
of the co-defendant's confession altogether. The same

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7

considerations apply to confessions redacted to re-
place the defendant's name with neutral pronouns or
deletions. A rule that made the admissibility of such
confessions turn on the evidence admitted at trial
would make prediction of the admissibility of a con-
fession equally perilous, and pretrial hearings would
be no less time-consuming and no more foolproof or
feasible.  Nor are the alternatives of requiring sever-
ance or prohibiting the use of co-defendant confes-
sions at joint trials any more palatable in this con-
text. Accordingly, the balance here should be struck
in favor of the general rule that juries follow limiting
instructions, just as it was in Richardson.

ARGUMENT

ADMISSION OF THE REDACTED CONFESSION
OF & CO-DEFENDANT  DID  NOT  VIOLATE PETI-
TIONER'S CONFRONTATION CLAUSE RIGHTS

    A. Bruton Is A Narrow Exception To The
         Presumption That Juries Follow The Court's
         Instructions

    1. It is "the almost invariable assumption of the
law that jurors follow their instructions." Shannon
v. United States, 512 U.S. 573, 585 (1994) (quoting
Richardson, 481 U.S. at 206). See also, e.g., United
States v. Olano, 507 U.S. 725, 740 (1993) ("[We] pre-
sum[e] that jurors, conscious of the gravity of their
task, attend closely the particular language of the
trial court's instructions in a criminal case and strive
to understand, make sense of, and follow the instruc-
tions given them.") (quoting Francis  v. Franklin, 471
U.S. 307,324 n.9 (1985)).
As this Court explained in Richardson, this rule
"is a pragmatic one, rooted less in the absolute
certitude that the presumption is true than in the

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8

belief that it represents a reasonable practical ac-
commodation of the interests of the state and the
defendant in the criminal justice process." 481 U.S.
at 211.1 Accordingly, the Court has adhered to the
rule in a wide variety of contexts, including those in
which the instructions at issue required the jury not.
to consider, or to limit its consideration of, powerfully
incriminating evidence.  For example, in Harris v.

___________________(footnotes)        

    1 Petitioner's amicus, the National Association of Criminal
Defense Lawyers, et al. (NACDL), refers in passing to social-
science literature generally questioning the ability of jurors to
understand and follow instructions. NACDL Amicus Br. 4 n.3.
The cited materials do not specifically address the issue in the
present case, i.e., the efficacy of limiting instructions in
dissuading jurors from considering evidence that, through a
chain of inference, could incriminate a defendant.  To the ex-
tent that amicus NACDL seeks to cast general doubt on the
assumption that jurors understand and follow their instruc-
tions, this Court has emphasized that rejection of this assump-
tion "would make inroads into th[e] entire complex code of
state criminal evidentiary law, and would threaten other large
areas of trial jurisprudence." Spencer v. Texas, 385 U.S. 554,
562 (1967).  See also Gacy v. Welborn, 994 F.2d 305, 313 (7th
Cir.) ("[The] presumption that jurors understand and follow
their instructions * * * is not a bursting bubble, applicable
only in the absence of better evidence.  It is a rule of law-a
description of the premises underlying the jury system, rather
than a proposition about jurors' abilities and states of mind."),
cert. denied, 510 U.S. 899 (1993). "For this reason and because
of concerns about methodological flaws, courts have questioned
whether social-science literature similar to that cited by amicus
NACDL is relevant to the proper resolution of particular legal
issues. See, e.g., Free v. Peters, 12 F.3d 700, 704-706 (7th Cir.
1993) (rejecting social-science study purporting to demonstrate
that jurors were not able to understand particular Illinois jury
instruction; study was methodologically flawed and shed little
light on likely performance of real juries), cert. denied, 513
US. 967 (1994).

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9

New York, 401 U.S. 222 (1971), the Court held that, if
a proper limiting instruction is given, a defendant's
credibility may be impeached with statements taken
in violation of Miranda v. Arizona, 384 U.S. 436
(1966), even though such statements are inadmissible
as direct evidence of guilt. Harris necessarily rests
on the view that the jury can be presumed to follow
such a limiting instruction, and therefore to use the
defendant's own confession solely for impeachment
purposes and not as substantive evidence of the defen-
dant's guilt.  Accord Tennessee v. Street, 471 U.S. 409,
414-416 (1985) (jury can be presumed to follow instruc-
tion to consider non-testifying co-defendant's confes-
sion solely for purpose of assessing defendant's claim
that his own confession was coerced).
   Similarly, in Marshall v. Lonberger, 459 U.S. 422,
438 n.6 (1983), and Spencer v. Texas, 385 U.S. 554, 559-
569 (1967), the Court held that juries could be pre-
sumed to follow instructions requiring them to con-
sider evidence of a defendant's prior convictions
solely in considering sentence enhancement and not
in determining guilt or innocence.  See also Watkins
v. Sowders, 449 U.S. 341, 347 (1981) (juries could be
presumed to follow instructions telling them to dis-
regard inadmissible eyewitness evidence).
Thus, almost without exception, this Court has
rejected claims that limiting or cautionary instruc-
tions are constitutionally inadequate to protect
against the prejudicial potential of evidence placed
before the jury in a criminal trial. As this Court
stated in rejecting a defendant's claim that juries
should not be given a cautionary instruction concern-
ing the defendant's failure to testify "The peti-
tioner's argument would require indulgence in [the]
very doubtful assumption * * * that the jurors  will

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10

totally disregard the instruction, and affirmatively
give weight to what they have been told not to
consider at all. Federal constitutional law cannot rest
on [a] speculative assumption] so dubious as th[is]."
Lakeside v. Oregon, 435 U.S. 333,340 (1978)?
    2. In Bruton, this Court established a "narrow
exception" to the general rule that juries are pre-
sumed to follow their instructions. Richardson, 481
U.S. at 207.  At issue in Bruton was a confession by
Bruton's co-defendant, Evans. The confession, in
which Evans admitted that he and Bruton had com-
mitted an armed postal robbery, was admitted into
evidence against Evans at a joint trial. 391 U.S. at
124. Although Evans's confession was admissible
against Evans as an "admission by a party-opponent,
Fed. R. Evid. 801(d)(2), it was concededly inadmissible
hearsay as to Bruton.3  391 U.S. at 128  n.3.  Because

___________________(footnotes)
                            
    2 The Court has ruled similarly when considering various
non-constitutional claims resting on the contention that juries
would not follow their instructions.  See, e.g., Shannon v.
United States, 512 U.S. at 584 (jury can be presumed to follow
instruction not to consider possible punishment when reaching
verdict, even where insanity defense has been raised] United
States v. Olano, 507 U.S. at 740 (jury can be presumed to have
followed instruction that alternates not participate in delibera-
tions); Zafiro v. United States, 506 U.S. 534, 539,540-541 (1993)
(in context of defense motions to sever pursuant to Fed. R.
Crim. P. 14, "limiting instructions] often will suffice to cure
any risk of prejudice").
    3 Confessions  made by a non-testifying co-defendant  may  in
some circumstances be admissible against both the codefendant
and other defendants. See Williamson v. United States, 512
U.S. 594, 603 (1994) (self-incriminating portions of confessions
may be admissible as statements against penal interest, Fed. R.
Evid. 804(b)(3)); Cruz v. New York, 481 U.S. 186, 193-194
(1987) (non-testifying co-defendant's confession might be admis-

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Evans did not testify at trial, the admission of his
confession against Bruton would have violated
Bruton's rights under the Confrontation Clause of
the Sixth Amendment, made applicable to the States
through the Fourteenth Amendment. Richardson,
481 U.S. at 206.
    In an effort to avoid any Confrontation Clause
problem, the trial court instructed the jury that it
could consider Evans's confession solely against
Evans, and that it should disregard the confession in
determining Bruton's guilt or innocence.  Bruton, 391
U.S. at 125 &  n.2. Applying the presumption that the
jury followed the limiting instruction, "no question
would [have] arise[n] under the Confrontation Clause,
because by hypothesis the case [would have been]
treated as if the confessor made no statement incul-
pating the nonconfessor." Bruton, 391 U.S. at 126.
The Court held in Bruton, however, 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.
    Such a context is presented here, where the
    powerfully incriminating extrajudicial state-
    ments of a codefendant, who stands accused side-
    by-side with the defendant, are deliberately
    spread before the jury in a joint trial.
    Id. at 135-136 (citations omitted). In that context, the
    Court concluded that it could not "accept limiting

sible against defendant in some circumstances).  In the pres-
ent case, as in Bruton, no argument was made that the non-
testifying co-defendant's confession was admissible, in whole or
in part, against the complaining defendant.

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12

instructions as an adequate substitute for [Bruton's]
constitutional right of cross-examination." Id. at 137.
The Court therefore reversed Bruton's conviction!
Ibid. 
    Bruton did not cast doubt on the general rule that
juries are presumed to follow their instructions. To
the contrary, the Court "agree[d] that there are many
circumstances in which this reliance [on the rule that
jurors are presumed to follow their instructions] is
justified." 391 U.S. at 135. The Court's subsequent
decisions have confirmed the narrow scope of the
decision in Bruton. See pp. 7-10, supra. In one of
those decisions, moreover, the Court specifically
noted that the "assumption that jurors are able to
follow the court's instructions fully applies when
rights guaranteed by the Confrontation Clause are at
issue." Street, 471 U.S. at 415 n.6. The most impor-
tant illustration of the limited nature of the holding
in Bruton, however, is this Court's decision in
Richardson.
    3. Richardson involved an armed robbery and
double murder committed by three people Marsh,
Williams, and Martin. Richardson, 481 U.S. at 202.

___________________(footnotes)
                                      
     4 Bruton relied heavily on Jackson v. Denno, 378 U.S. 368
(1964), in which the Court held unconstitutional the practice of
leaving to the jury the question whether a defendant's confes-
sion was involuntary.  Jackson, like Bruton, turned on the
Court's concern that limiting instructions might be inadequate
in a specific context to prevent juries from considering power-
fully incriminating evidence.  See Watkins v. Sowders, 447
U.S. at 347 The Court in Jackson did reject the usual pre-
sumption that a jury can he relied upon to determine issues
according to the trial judge's instructions, but the Court did so
because of the peculiar problems the issue of the voluntariness
of a confession presents.").

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13

Marsh and Williams were tried together.  Williams
had made a post-arrest statement implicating all
three participants.   At trial, Williams declined to
testify, but his confession was admitted into evidence
with a limiting instruction that it was not to be
considered against Marsh.  The confession was also
redacted to eliminate any reference to Marsh's .
existence or her role in the crime.  Id. at 203.
Nonetheless, when linked to other evidence intro-
duced at trial, the confession incriminated Marsh as
to the critical element of intent? Id. at 206.  The
Sixth Circuit reversed Marsh's conviction, holding
that "in determining whether Bruton bars the admis-
sion of a nontestifying codefendant's confession, a
court must assess the confession's `inculpatory value'
by examining not only the face of the confession, but
also all of the evidence introduced at trial." Id. at 205-
206 (citing Marsh v. Richardson, 781 F.2d 1201, 1212
(6th Cir. 1986)).
    This Court reversed, specifically rejecting the
Sixth Circuit's "contextual implication" or "eviden-
tiary linkage" approach to the resolution of Bruton
questions. 481 U.S. at 206-211. The Court first ex-
plained  that  the decision in Bruton  represented only a
"narrow exception" to the principle that jurors follow
their instructions. Id. at 207. The confession in
Richardson fell "outside th[at] narrow exception,"

___________________(footnotes)

    5 Williams's confession described a conversation Williams
had with Martin as they drove to the scene of the crime,
during which Martin said that he would have to kill the victims
after the robbery. Although the redacted confession did not
mention that Marsh was also in the car during this time, Marsh
took the stand and testified that she was in the back seat of the
car as the three of them drove to the scene of the crime.
Richardson, 481 U.S. at 204.

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14

because it "was not incriminating on its face, and
became so only when linked with evidence introduced
later at trial." Id. at 208.
     As the Court explained, "[specific testimony that
`the defendant helped me commit the crime' is more
vivid than inferential incrimination, and hence more
difficult to thrust out of mind." 481 U.S. at 208. In
contrast, "with regard to inferential incrimination
the judge's instruction may well be successful in dis-
suading the jury from entering onto the path of infer-
ence in the first place, so that there is no incrimina-
tion to forget." Ibid. Thus, "[w]here the necessity of
[inferential] linkage is involved, it is a less valid
generalization that the jury will not likely obey the
instruction to disregard the evidence." Ibid. The
Court concluded that, "[i]n short, while it may not
always be simple for the members of a jury to obey the
instruction that they disregard an incriminating
inference, 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."
Ibid. 
    The Court in Richardson also emphasized that its
conclusion rested significantly on the "practical ef-
fects" of adopting a "contextual implication" ap-
proach. 481 U.S. at 208-210.  The Court's main con-
cern was that adopting such an approach would make
it impossible "to predict the admissibility of a con-
fession in advance of trial," since the trial judge
would presumably be obliged to "assess at the end of
each trial whether, in light of all of the evidence, a
nontestifying codefendant's confession has been. so
`powerfully incriminating' that a new, separate trial
is required for the defendant." Id. at 209. Such an
approach "obviously lends itself to manipulation by

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15

the defense-and even without manipulation will
result in numerous mistrials and appeals."  Ibid.
Moreover, pretrial hearings to attempt to predict the
outcome of a "contextual implication" analysis would
be "time consuming and obviously far from foolproof,"
and would require that the prosecution and the de-
fense reveal the evidence they planned to introduce at
trial, a procedure that was of doubtful feasibility in
light of the limited scope of pretrial discovery under
the Federal Rules of Criminal Procedure. Ibid.
The Court also rejected as unacceptably costly two
other ways of avoiding the risks of reversal under a
"contextual implication" approach: requiring sever-
ance in all cases involving a confession by one of the
defendants, or prohibiting the use of co-defendant
confessions at joint trials. 481 U.S. at 209-210. Joint
trials, the Court pointed out, "play a vital role in the
criminal justice system." 6 Id. at 209. The cost of pro-
hibiting the use of co-defendant confessions would
also be "too high, since confessions `are more than

___________________(footnotes)

6 As the Court explained,
  
  It would impair both the efficiency and the fairness of
  the criminal justice system to require, in all these cases
  of joint crimes where incriminating statements exist,
  that prosecutors bring separate proceedings, presenting
  the same evidence again and again, requiring victims
  and witnesses to repeat the inconvenience (and some-
  times trauma) of testifying, and randomly favoring the
  last-tried defendants who have the advantage of know-
  ing the prosecution's case beforehand.  Joint trials gener-
  ally serve the interests of justice by avoiding inconsis-
  tent verdicts and enabling more accurate assessment of
  relative culpability -advantages which sometimes oper-
  ate to the defendant's benefit.
  481 U.S. at 210.

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16

merely "desirable"; they are essential to society's
compelling interest in finding, convicting, and
punishing those who violate the law.'" Id. at 210
(quoting Moran v. Burbine, 475 U.S. 412,426 (1986)).

    B. Bruton's Narrow Exception Should Not Be
         Extended To Confessions That Have Been
         Redacted To  Replace  All Incriminating
         References To The Defendant With Neutral,
         Non-Identifying Terms

    The issue in this case is one the Court expressly
left open in Richardson, 481 U.S. at 211 n.5: whether
the narrow exception created in Bruton extends to
cases in which a non-testifying co-defendant's confes-
sion has been redacted to replace all incriminating
references to the defendant with neutral, non-
identifying terms. Richardson makes clear that the
resolution of this issue turns on the balance between
two factors: the risk that a jury would disregard a
proper limiting instruction, and the "practical
effects" of a rule that would hold such redaction
insufficient. 481 U.S. at 208, 211.  See also Street, 471
U.S. at 415 ("[T]he question is * * * whether, in
light of the competing values at stake, we may rely on
the crucial assumption that the jurors followed the
instructions given them by the trial judge.") (internal
quotation marks omitted). The balance should be
struck here as it was in Richardson. A non-testifying
co-defendant's confession redacted to replace all in-
criminating references to the defendant with neutral,
non-identifying terms is admissible at a joint trial,
because it does not create an "overwhelming prob-
ability" that a jury would disregard a limiting
instruction, and the "practical effects" of adopting a

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17

"contextual implication" approach would be as unac-
ceptable as  they were in Richardson.7

___________________(footnotes)

     7 That is the view of the overwhelming majority of the
federal courts of appeals. See United States v. Williams, 936
F.2d 698, 700-701 (2d Cir. 1991); United States v. Vogt, 910
F.2d l184, l191-l192(4th Cir. 1990), cert. denied, 498 U.S. 1083
(1991); United States v. Jimenez, 77 F.3d 95, 98-99 (5th Cir.
1996); United  States v. Sherlin, 67 F.3d 1208, 1215-1216 (6th
Cir. 1995), cert. denied, 116 S. Ct. 795, 1548 (1996); United
States v. Banks, 78 F.3d 1190, 1200 (7th Cir.), cert. granted,
vacated, and remanded on other grounds, sub nom. Mills v.
United States, 117 S. Ct. 478(1996), aff'd on remand, No. 94-
2788, 1997 WL 450074 (7th Cir. Aug. 8, 1997); United States v.
Jones, 101 F.3d 1263, 1269-1270 (8th Cir. 1996), cert. denied, 117
S. Ct. 1346,1566(1997); United States v. Hoac, 990 F.2d 1099,
1105-1106 (9th Cir. 1993), cert. denied, 510 U.S. 1120 (1994);
United States v. Green, 115 F.3d 1479, 1483-1486 (l0th Cir.
1997), petition for  cert.  pending,  No. 97-5829.  Two  of these cir-
cuits, however, generally insist that redaction be performed in
such a way that the jury would not realize that the confession
had been redacted. See, e.g., United States v. Long, 900 F.2d
1270, 1280 (8th Cir. 1990); United  States  v. Alvarado, 882 F.2d
645, 653 (2d Cir. 1989), cert. denied, 493 U.S. 1071(1990). See
also pp. 21-22 n.11, infra. The D.C. Circuit and the First Cir-
cuit have expressly described the issue as open. See United
States  v. Applewhite, 72 F.3d 140, 145-146 (D.C. Cir. 1995),
cert. denied, 116S. Ct. 1864 (1996); United States v. Smith, 46
F.3d  1223, 1228  n.1 (lst Cir.), cert. denied, 116 S. Ct. 176 (1995).
The Third Circuit does not appear to have addressed the ques-
tion since Richardson was decided, although a pre-Richardson
case decided by that court sitting in bane rejected a "contextual
implication" approach. United States v. Belle, 593 F.2d 487,
494 ("In short, evidentiary linkage or contextual implication
may not be utilized to convert a non-Bruton admissible state-
ment into a Bruton inadmissible statement?'), cert. denied, 442
U.S. 911 (1979). Only the Eleventh Circuit has explicitly
adopted a form of "contextual implication" analysis, holding
that a redacted confession that refers to other defendants only
through the use of neutral, non-identifying terms will violate

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18

    1. The confession at issue in Bruton directly and
expressly incriminated the complaining defendant.
Bruton turns critically on the concern that jurors
cannot reasonably be expected to "thrust out of mind"
such "vivid" and "powerfully incriminating" evidence
when assessing the guilt of the complaining defen-
dant. Richardson, 481 U.S. at 208. The confession at
issue in Richardson, in contrast, made no reference
to the complaining defendant, and incriminated her
only when considered in connection with other evi-
dence introduced at the trial. Ibid. In that context,
the Court held, a limiting instruction "may well be
successful in dissuading the jury from entering onto
the path of inference in the first place."  Ibid.  Confes-
sions in which all incriminating references to the
complaining defendant are replaced with neutral, non-
identifying terms are comparable in effect to the con-
fession at issue in  Richardson. 8

___________________(footnotes)

Bruton if other evidence "compels a direct implication of the
complaining defendants]."  United States v. Tapia, 59 F.3d
1137, 1142  n.5 (internal quotation  marks omitted), cert. denied,
116 S. Ct. 401, 546 (1995).  A  recent decision, however, suggests
that the Eleventh Circuit's position with respect to "contextual
implication" may not be entirely clear. See United States v.
Adams , 74 F.3d. 1093, 1098-1O99 (1996) (in case where non-
testifying co-defendant's confession contained express refer-
ence to defendant Adams, but reference was not facially
incriminating, no Bruton error "No Bruton violation occurred
because the statement was not facially incriminating. It was
not facially incriminating because the reference to the bank
account required linkage to other evidence.").
    8 Amicus NACDL suggests that confessions redacted in
that way might still be easily connected to the complaining
defendant, because they might contain incriminating refer-
ences to him in the form of initials, nicknames, or physical
descriptions. Br. 11 (citing Barrington v. California, 395 US.

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19

    Such confessions do not have the immediate and
dramatic impact of a facially incriminating confes-
sion.  Rather, before a jury could use such a confes-
sion to incriminate a complaining defendant, the jury
would have to review the confession's descriptions of
the conduct of the unidentified person or persons,
compare those descriptions with the testimony of
other witnesses about what the complaining defen-
dant said and did, and determine whether and to what
extent the actions of any of the unidentified persons
recounted in the confession coincide with the evi-
dence about the role of the complaining defendant.
Refraining from that form of deductive reasoning is
no more difficult than the task demanded of jurors by
many  limiting  instructions. 9  As in Richardson, there

___________________(footnotes)

250, 253 (1969) (assuming Bruton violation where confessions of
non-testifying co-defendants referred to defendant not by
name, but as "white guy," and described defendant's age,
height weight., and hair color)). The lower courts have been
alert to that concern, however, and in general have appropri-
ately required that all references that readily identify and
incriminate the complaining defendant-including names,
nicknames, initials, and physical descriptions-be replaced with
neutral, non-identifying terms.  See, e.g., United States v.
Kreiser, 15 F.3d 635, 639 (7th Cir. 1994) ("Simply put, there is
no Bruton problem when the substitution-here, the word
`source'-does not identify the nonconfessing codefendant by
race, age, size, or any other means except (though not relevant
here) gender.").
    9 Even where the inference is relatively obvious, jurors
cannot draw it without speculating about the identities of
unnamed actors or filling in the blanks of the confession, and,
contrary to their instructions, then applying that "restored"
confession in considering the case against the defendant. In
any event, often, as here, such lines of inference would be quite
unrewarding.  Although Bell's redacted confession would have
permitted the jury to conclude that Bell had named at least

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20

is therefore no sufficient reason to believe that. a
limiting instruction will prove inadequate to dissuade
jurors from engaging in that analytical process.'"
Redacted confessions that are not facially incrimi-
nating differ from the confession at issue in Bruton
in another critical respect. In Bruton, the Court was
concerned that a jury would be unable to follow a
limiting instruction that required it simultaneously
to consider a confession to determine the wilt of one
defendant but ignore it as to another defendant whom
it directly and powerfully incriminated. 391 U.S. at
131 ("A jury cannot determine that a confes-
sion is true insofar as it admits that A has committed
criminal acts with B and at the same time effectively
ignore the inevitable conclusion that B has committed
some specific people who participated with him, the actions
attributed to those people did not coincide in any distinctive
way with the government's evidence against petitioner.  More
generally, the issue for the jury in this case was whether it
should believe the government witnesses, who identified peti-
tioner as one of the individuals involved in the beating, or the
defense witnesses, who placed him elsewhere.  The jury would
have had no way of knowing whether Bell named petitioner as
one of those individuals thus giving an account consistent
with the testimony of the government witnesses-or whether
he did not-thus giving an account consistent with the testi-
mony of the defense witnesses.

___________________(footnotes)

    10 A different conclusion might obtain if a prosecutor di-
rectly informed the jury, for example in closing argument,
that a redacted confession had originally named the defendant.
Cf. Richardson, 481 U.S. at 211. Contrary to the behated asser-
tion of petitioner and his amicus [Pet. Br. 17 NACDL Amicus
Br. 13-14), nothing of the sort occurred in the present case. In
the disputed remark, to which no objection was made, the
prosecutor simply summarized the evidence against petitioner
and Bell she did not explicitly suggest that Bell's confession
originally named petitioner. IV Tr. 123.

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21

those same criminal acts with A.") (quoting People v.
Aranda, 407 P.2d 265,272 (Cal. 1965)). No comparable
problem exists with respect to redacted confessions
that are not facially incriminating. In this case, for
example, the jury could easily use Bell's confession to
determine Bell's guilt without attempting to deter-
mine whether, considered in light of the other trial
evidence, that confession might have implications for
petitioner.
    For these reasons, confessions that are not facially
incriminating do not present the "overwhelming
probability" that jurors could not follow a limiting in-
struction that was the basis of the ruling in Bruton.
Richardson, 481 U.S. at 208. See, e.g., United States
v. Banks, 78 F.3d 1190, 1199-1200 (7th Cir.) ("[ T]hese
nonspecific references to other, nameless actors do
not present the type of `facially incriminating' refer-
ences that the Supreme Court found in Bruton to
warrant a departure from the general presumption
that juries follow- their limiting instructions."), cert.
granted, vacated, and  remanded on other grounds  sub
nom. Mills v. United States, 117 S. Ct. 478 (1996), aff'd
on remand, No. 94-2788, 1997 WL 450074 (7th Cir. Aug.
8, 1997). 11

___________________(footnotes)

    11 In arguing that redactions that replace all incriminating
references are inadequate, petitioner and his amicus focus
primarily on redactions that use substitute neutral terms such
as "deleted," thereby alerting the jury that names have been
redacted from the non-testifying co-defendant's confession.
Pet. Br. 15 NACDL Amicus Br. 11-12, 1415. Petitioner is not
in a position to complain about that aspect of the redaction of
Bell's confession. The trial court made clear its willingness to
redact the confession in this case to remove all references to
petitioner, and invited petitioner to make suggestions about the
manner of the redaction. 6/17/94 Tr. 52. Although petitioner

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22

    2. The holding in Richardson also reflects the
Court's conclusion that making the admissibility of
redacted confessions turn on the evidence admitted at
trial would have unacceptable "practical effects." 481
U.S. at 208-210. The practical costs of a contextual
approach are equally unacceptable in the present
setting.
    In some cases, a non-testifying co-defendant's con-
fession can appropriately be redacted to remove any
references to the actions of other defendants.  Often,
objected generally to the admission of the confession, even in
redacted form ( Tr. 33-33 IV Tr. 133), he never suggested
that the redaction was problematic because it indicated to the
jury that redaction had occurred.
    More generally, although accomplishing redaction in a way
that is not apparent to the jury may be desirable and feasible in
some circumstances, it will not always be For example, such
redaction may be infeasible in cases involving audiotaped or
videotaped statements. In any event, the mere fact that the
jury would be aware that redaction has occurred does not
create an "overwhelming probability" that the jury would
disregard a limiting instruction. See, e.g., United States v.
Applewhite, 72 F.3d 140, 145-146 (D.C. Cir. 1995) (no Bruton
violation although jury was aware that non-testifying co-
defendant's confession had been redacted to remove name of
confederate, and other pieces of evidence permitted inference
that redacted name was defendant's), cert. denied, 116 S. Ct..
1864 (1996).  Although some courts have thought it important
to prevent the jury from realizing that redaction has occurred,
see, e.g., United States v. Long, 900 F.2d 1270, 1280 (8th Cir.
1990), it is not apparent why the likelihood of jury speculation
about the identity of unnamed persons would turn materially
on whether the confession was originally ambiguous or subse-
quently redacted.  Any remaining concern about the jury's
knowledge of the redaction could be addressed by a instruction
specifically directing the jury not to speculate about t-he
reasons for the redaction.

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23

however, such redaction would render the redacted
confession confusing or even misleading.12  In this
case, for example, it is difficult to-imagine how Bell's
confession could have been redacted to remove all
incriminating references to anyone other than Bell
without leaving the confession unintelligible or po-
tentially misleading as to Bell's involvement.  That
may be why amicus NACDL-although professing ad-
herence to a rule flatly prohibiting references to
anyone other than the declarant-does not attempt to
perform such a redaction on Bell's confession in this
case, instead proposing a redaction that includes
numerous incriminating references to others, and
simply uses plural pronouns (such as "we") rather
than "deleted" or "deletion." NACDL Amicus Br. 16-
18, App. A1-A2.

___________________(footnotes)

    12 See, e.g., United  States v. Strickland,  935 F.2d 822, 826
(7th Cir.) ("For example, under the defendants' rule, neutral
pronouns could not be substituted for a declarant's repeated
references to his cohorts even where, as here, the omission of
such pronouns would render the statement meaningless-
indeed, the more detailed and incriminating the statement, the
more meaningless it would become."), cert. denied, 502 U.S.
917 (1991); United States v. Myers, 892 F.2d 642, 647-648 (7th
Cir. 1990) ("Deleting all reference to another person would
have made [the non-testifying co-defendant's] statement confus-
ing, in light of the evidence that he did not act alone. Perhaps
in some eases the reference could be deleted without confusion,
and if so that might be the better course; it would not have
been here."); United States v. Washington, 952 F.2d 1402, 1404
(D.C. Cir. 1991) (redaction of non-testifying co-defendant's con-
fession would violate rule of completeness, Fed. R. Evid. 106,
"if the redacted version `distorts the meaning of the statement
or excludes information substantially exculpatory of the [non-
testifying co-defendant.]'") (quoting United States v. Kamin-
ski, 692 F.2d 505, 522 (8th Cir. 1982)), cert. denied, 503 U.S.
1009 (1992).

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24

These recurring concerns both explain and justify
the widespread practice in the federal courts of re-
dacting confessions to retain references to the com-
duct of other defendants but to remove the names of,
and other identifying incriminating references to,
other defendants. In cases where such redactions are
used, the practical costs of adopting a "contextual
implication" approach would be identical to those
found too high in Richardson.  A contextual approach
would make prediction of the admissibility of a con-
fession equally perilous, and pretrial hearings would
be no less time-consuming and no more foolproof or
feasible.  Nor are the alternatives of severance or pro-
hibiting the use of co-defendant confessions at joint
trials any more palatable here than in Richardson. 13

___________________(footnotes)

    13 Amicus NACDL refers in passing to the possibility of
using multiple juries to try a single case. Br. 16. That sugges-
tion was made to the Court in Richardson (Resp. Br. at 44)
(No. 85-1433), and was implicitly rejected as an adequate
alternative.  Federal and state courts have generally been quite
skeptical about that relatively untried technique.  See, e.g.,
United States v. Baiter, 91 F.3d 427, 434-435 n.2 (3d Cir.
(technique is "costly and unwieldy"), cert. denied, 117S. Ct.
517,518(1996> United States v. Rimar, 558 F.2d 1271, 1273
(6th Cir.) (technique resulted in "instances of confusion,"
including "misstatements of the judge or defense counsel in
referring to the attorneys or their clients by the wrong names,
or confusing momentarily which jury was sitting in which
case: and "the trial took somewhat longer than the nature of
the charges might suggest was necessary"), cert. denied, 434
U. S. 984(1977) & 435  U.S. 922(1978); . State, 871 F.2d
306, 313-314 (1994) ("The case at hand illustrates that the
device can become a breeding ground for confusion in process
and results alike. What should have been a relatively simple
trial took four weeks to conduct in the lower court. * * * The
length of the trial, the curious results of the verdicts, and the
length of this appeal indicate that the multiple jury process

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25

     3. Perhaps because a "contextual implication" ap-
proach cannot be squared with. Richardson, amicus
NACDL proposes instead a bright-line rule that it
contends would `be easy to administer: Any use of a
redacted confession that refers to the existence of a
defendant other than the declarant offends the Con-
frontation Clause. NACDL Amicus Br. 16-18. That
proposal is without merit.
    It is difficult to tell precisely what amicus  NACDL
is advocating. On one hand, amicus  NACDL  says that
what is required is redaction that "eliminate[s] any
reference to the co-defendant." NACDL  Amicus Br.
18. On the other hand, amicus NACDL states that
the trial court could properly have redacted Bell's
confession so as to leave intact references to peti-
tioner, so long as those references were found only in
plural pronouns. Id. at 18, App. A1-A2. 14
should be engaged with great caution."), rev'd in part on other
grounds on rehearing, 904 P.2d 1038 (Nev. 1995); State v.
Corsi, 430 A.2d 210, 213 (N.J. 1981) ("The reason for the lack
of widespread adoption of this technique [i.e., the use of
multiple juries] would appear to be the belief that application of
appropriate safeguards necessary to protect the rights of
defendants in such a trial would be more time consuming than
if separate trials were ordered. In addition, inherent in such a
complicated procedure is the greatly enhanced possibility of
error. It seems clear, therefore, that such procedure remains
the rare exception rather than the rule.").
144 Amicus NACDL's suggestion that the redaction it pro-
poses would have solved any Confrontation Clause problem
directly contradicts the position taken by petitioner in the trial
court.  6/17/94 Tr. 46, 53-55 (counsel for petitioner opposes
admission of confession in redacted form, arguing that sever-
ance or exclusion was required if there was any reference to
fact that group was involved in beating).

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26

    However amicus NACDL's rule is understood, it is
foreclosed by Richardson. Amicus NACDL admits
that. its rule would require courts to find Confronta-
tion Clause violations even in cases where "the likeli-
hood that a jury will draw an inculpatory link between
the accused and a co-defendant's confession is re-
mote." NACDL Amicus Br. 19.  Richardson,  how-
ever, held that the admission of a non-testifying co-
defendants  confession will violate the Confrontation
Clause rights of a defendant only if there is an
"overwhelming probability" that jurors will be unable
to follow an instruction requiring that they consider
the confession only against the declarant.  481 U.S. at
208.  The proposal of amicus  NACDL amounts to a broad
prophylactic rule, to be imposed upon the States as a
matter of federal constitutional law, that would often
be impossible to meet without rendering confessions
confusing, misleading, or meaningless.  The effect
therefore would be to require severance (or prohibi-
tion of the use of co-defendant confessions) in many
cases, to ensure against potential Confrontation
Clause violations in a few. Richardson makes clear
that the costs of such an approach are "too high." 481
U.S. at  210. 15  See also United States v. Strickland ,

___________________(footnotes)

    15 Amicus NACDL suggests that the unacceptable conse-
quences of the rule it proposes could be mitigated through
application of the harmless-error doctrine. Br. 19-20.  Applica-
tion of that doctrine, however, would do little to reduce the
untoward effects of the proposed rule.  The harmless-error
doctrine would permit an appellate court to affirm if a trial
court failed to apply the proposed prophylactic rule but there
was no real threat to the defendant's Confrontation Clause
rights. It would not. however, reduce the unacceptable costs
that would be imposed when trial courts complied with the

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27

935   F.2d  822,825-826 (7th Cir.) ("Defendants proffer a
rule whereby a nontestifying codefendant's statement
should always be redacted to omit any and all refer-
ences to codefendants on trial. * * * Such a rule;
while easy to apply, would unduly handcuff the gov-
ernment's ability to introduce admissible confessions
and statements against a declarant in a joint trial."),
cert. denied, 502 U.S. 917 (1991).
    4. In sum, the logic of Richardson compels the
conclusion that the Confrontation Clause is not
violated by the admission at a joint trial of a non-
testifying co-defendant's confession that has been
redacted to replace all incriminating references to
other defendants with neutral, non-identifying terms.
Confessions that are redacted in this way are not
facially incriminating. Rather, they become so only if
the jury draws inferences, based on other evidence at
trial, to surmise the identity of unnamed persons
who are discussed in the co-defendant's confessions.
Whether those inferences are subtle or obvious,
juries can be trusted to comply with instructions
directing them to consider such confessions only
against the declarant and not to use such a recon-
structed confession against the other  defendants

___________________(footnotes)

prophylactic rule and unnecessarily ordered severance or
prohibited the use of co-defendant confessions.
    16 Although it affirmed petitioner's conviction, the Mary-
land Court of Appeals adopted a "contextual implication"
approach, holding that Braton would be violated if, in the
context of the other evidence at trial, a redacted confession
gave rise to a "compulsion to make the impermissible infer-
ence" that was "compelling, inevitable, and subject to little or
no debate." J.A. 101. The Maryland Court of Special Appeals
also adopted a "contextual implication" approach, but chose a
looser formulation, holding that Bruton is violated if there is a

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28

CONCLUSION

    The judgment of  the Court of Appeals  of  Maryland
should be affirmed.

Respectfully submitted.

SETH P. WAXMAN
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

MICHAEL R. DREEBEN
Deputy Solicitor General

ROY W. MCLEESE III
Assistant to the Solicitor
General

SANGITA K RAO
Attorney
SEPTEMBER 1997

"substantial risk" that the jury would draw an incriminating
inference from the redacted confession, considered in light of
the other evidence at trial. J.A. 83. For the reasons stated in
text, both variants are incompatible with the logic of
Richardson. The looser formulation adopted by the Court of
Special Appeals, however, is particularly untenable. Richards
son held that the rule of Bruton applies only where there is an
"overwhelming probability" that the jury could not follow a
limiting instruction. 481 U.S. at   208. See also Greer v. Miller,
483 U.S. 756, 766 n.8 (1987). In light of that holding, any
"contextual implication" approach would necessarily be limited
to cases in which the context essentially compelled the jury to
connect the redacted confession with the complaining defen-
dant.  See, e.g., United States v. Applewhite, 72 F.3d 140, 145
(D.C. Cir. 1995) [T]he logic of Richardson precludes applica-
tion of Bruton codefendant's redacted statement that is
less incriminating than one that creates an inevitable associa-
tion.'") (quoting United States v. Washington, 952 F.2d 1402,
1406 (D.C. Cir. 1991), cert. denied, 503 U.S. 1009 (1992)), cert..
denied, 116 S. Ct. 1864 (1996).