## F I L E D United States Court of Appeals Tenth Circuit NOV 7 2000 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DARYOUSH RAHSEPARIAN, also known as Steve Rahseparian, and ARDASHIR RAHSEPARIAN, also known as Ardie Rahseparian, Defendants-Appellants. Nos. 99-6050 99-6052

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 98-CR-70-A)

Lawrence S. Robbins (Lily Fu Swenson, with him on the briefs), of Mayer, Brown, & Platt, Washington, D.C., for Defendants-Ap pellants. Barbara E. Poarch, Assistant United States Attorney(Patrick M. Ryan, United States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before SEYMOUR , Chief Judge, TACHAand BRISCOE , Circuit Judges.

SEYMOUR , Chief Judge.-2-

After a joint jury trial, co-defendants Ardashir (aka Ardie) and Daryoush (aka Steve), along with Jalal (aka Jack) Rahseparian, were convicted of conspiracy to commit mail fraud, mail fraud, and mo ney laundering. All three appealed. Jack’s appeal is addressed in the compan ion opinion, see United States v. Rahseparian , No. 99-6031 (Nov. 7, 2000). Ardie contends on ap peal that the evidence is insufficient to sustain his conviction. Ardie and Steve contend a new trial is necessary due to the prosecutor’s comment on their failure to testify in violation of Griffin v. California , 380 U.S. 609 (1965). Steve further claims a new trial is required because of certain incriminat ing hearsay statements elicited by the prosecutor in violation of Bruton v. United States , 391 U.S. 123 (1968). We affirm.
I BACKGROUND Ardie and Steve Rahseparian are the sons of Jack Rahseparian. At the time of the conduct for which they were charged, Steve r esided in Altoona, Pennsylvania, Ardie resided in Fort Smith, Arkansas , and Jack resided and worked in Shawnee, Oklahoma. The government conten ded at trial that Ardie and Steve Rahseparian formed Genesis Marketing, a telem arketing company, through which they and their father conspired to commit anddid commit mail fraud from May 1994 to May 1995. The government further succ essfully argued that Ardie,-3-

Steve, and Jack Rahseparian laundered the proceeds from the telemarketing scheme through Jack’s business checking accounts. Brad Russell, the company’s only employee other than the Rahseparians themselves, testified on behalf of the government. Mr. Russell was a personal friend of Ardie. The two worked out of Ardie’s apartment in Fort Smith as the sole telemarketers for Genesis Marketing. Mr. Russ ell testified that he and Ardie would entice customers over the telephone to buy pr oducts, such as water purifiers and “Say No to Drugs” kits, at highly inf lated prices in exchange for a guaranteed valuable prize. Those customers never r eceived their promised prizes, however, and many did not even receive their purcha sed product. It is on this basis that the government argued the Rahseparians c onspired to commit and did commit mail fraud, and that they laundered the proc eeds. Submitting no evidence, the Rahseparians’ defense r elied on the theory that Ardie and Steve never intended to commit fraud but rather intended only to run a legitimate telemarketing business. Thus, the sole issue at trial was the defendants’ intent. To prove this element, the gov ernment offered evidence of the unusual business practices of the Rahseparians, mai nly through the testimony of Mr. Russell regarding the “pitch” he and Ardie usedwhen contacting potential customers. Mr Russell testified that they would be gin a solicitation by giving a false name and informing the potential customer that he or she was selected to1 The possible prizes promised to the customers inclu ded items such as a trip

to Disneyland, a pound of gold, an ancient Spanish coin plaque, an appliance package, or a $3,500 award. The ancient Spanish co in plaque was considerably less valuable and was intended to be the award the customer received. -4- receive one of five prizes, then listing four valua ble prizes and one prize which was always much cheaper in value than the others. 1 Mr. Russell and Ardie would then solicit the customers to purchase certain prod ucts at highly inflated prices in exchange for the prize. Mr. Russell further testif ied that he and Ardie directed customers to send their checks for the purchase pri ce via Federal Express to a mail box located in Shawnee, Oklahoma. The government established that these checks were d eposited into three separate bank accounts: a business checking account at American National Bank in Shawnee, Oklahoma, established in the name of Ja ck Rahseparian’s business; a business checking account at MidFirst Bank in Shawn ee, Oklahoma, also established in the name of Jack’s business; and a j oint checking account at the MidFirst Bank established in the names of Jack and Steve Rahseparian. Moreover, Mr. Russell testified that Jack called Ar die every day or every other day to find out “how many checks to expect and how much they were.” App., vol. II at 546. Mr. Russell also testified that Jack pi cked up those checks from the mailbox and deposited them into his accounts.2 The record is not clear whether the business name w as “The Copy Shop,”

or “the Copy Stop,” and the parties refer to this b usiness under both names. -5- Mr. Russell’s testimony also established that each day after he and Ardie made the solicitations, they would forward informat ion to Steve Rahseparian regarding the customers’ names, the product purchas ed and the amount paid, and which cheaper prize had been mentioned to the custo mer. Steve was supposed to fill the orders and ship the cheap prize from Penns ylvania to the customers. Mr. Russell testified that, after a period, he and Ardi e began receiving complaints from customers that they had not received their pro ducts or their prizes. He also testified that these complaints were reported to St eve. Although some customers ultimately received their purchased products, none received their promised prizes. The government also offered evidence regarding othe r unusual business practices followed by the Rahseparians when conduct ing business through Genesis Marketing, including the use of aliases. T he mail box located in Shawnee where the customers were directed to send their checks was provided by a commercial vendor called “The Copy Stop.” 2The mail box was set up in the name “Steven Woods/Genesis Marketing.” The Copy St op’s records indicated the local contact for the box was a person named “Jack, ” with a local telephone number of Jack Rahseparian’s business. In addition , Genesis Marketing had a toll-free business number which serviced Ardie’s re sidence in Ft. Smith. The-6-

government presented evidence that this number was originally established under the name “Lloyd Woods” and was later changed to “St eve Rah.” Although the actual phone number was assigned to Fort Smith, the bill was sent to and paid for by Steve in Pennsylvania. After hearing all of this evidence and reviewing th e supporting documentary evidence, the jury returned a guilty ve rdict against all three defendants on the sixteen counts of conspiracy to c ommit mail fraud, mail fraud, and money laundering. Steve and Ardie moved for a judgment of acquittal, arguing there was insufficient evidence that they c onspired to or intended to commit mail fraud, or that they intended to commit money laundering. The district court denied the motions, finding with res pect to Steve and Ardie the evidence reflected that Ardie made misrepresentatio ns to potential customers in an effort to receive highly inflated prices for pro ducts and continued the solicitations even after Ardie knew Steve was not s ending the promised prizes, which was sufficient to uphold both of their convic tions on all counts.

II INSUFFICIENCY OF EVIDENCE On appeal, Ardie contends the government failed to present sufficient evidence of their intent to commit these crimes. A ll parties agree that conspiracy,-7-

mail fraud, and money laundering are specific inten t crimes. See United States v. Boyd, 149 F.3d 1062, 1067 (10th Cir. 1998) (money laund ering requires specific intent to launder proceeds from a known unlawful ac tivity); United States v. Smith , 133 F.3d 737, 742 (10th Cir. 1997) (mail fraud re quires specific intent to defraud); United States v. Blair , 54 F.3d 639, 642 (10th Cir. 1995) (conspiracy requires specific intent to further the unlawful ac tivity which is the object of the conspiracy). The government was thus required to p rove Ardie specifically intended to defraud Genesis’ customers, that he mad e an agreement to that end, and that he laundered the proceeds knowing they wer e obtained through an illegal activity. To determine whether evidence is sufficient to upho ld a conviction, “we examine, in a light most favorable to the government, all of the evidence together with the reasonable inferences to be drawn therefro m and ask whether any rational juror could have found the essential eleme nts of the crime beyond a reasonable doubt.” United States v. Aruntunoff , 1 F.3d 1112, 1116 (10th Cir. 1993). Moreover, we “accept the jury’s resolution of conflicting evidence . . . . As long as the possible inferences are reasonable, it was for the jury, not the court, to determine what may have occurred.” United States v. Grissom, 44 F.3d 1507, 1510 (10th Cir. 1995). We will not uphold a conviction, however, that was obtained by nothing more than “piling inference upo n inference,” United States v.-8-

Fox , 902 F.2d 1508, 1513 (10th Cir. 1990), or where th e evidence raises no more “than a mere suspicion of guilt,” Smith , 133 F.3d at 742. We are not persuaded by Ardie’s argument that the e vidence was insufficient to show his knowing and intentional in volvement in mail fraud. To establish his guilt, the government had to prove: ( 1) Ardie engaged in a scheme or artifice to defraud customers or to obtain money bymeans of false and fraudulent pretenses, representations or promises; (2) Ardie h ad the intent to defraud customers, and (3) Ardie used the United States mai ls or a commercial interstate carrier to facilitate that scheme. See 18 U.S.C. § 1341 (1994); Smith , 133 F.3d at
742. With respect to the mail fraud, the jury heard dire ct testimony from Lorenzo Pitts that Ardie contacted him promising a $300,000 reward for his community involvement with children in exchange fora $2,989 registration fee. Although Mr. Pitts sent the money to Genesis Market ing in Shawnee and it was deposited into Jack’s business accounts, Mr. Pitts never received the promised $300,000. The jury also heard evidence from othercustomers as well as from Mr. Russell that Ardie contacted potential customer s and enticed them to purchase products at highly inflated prices in exchange for a promise of prizes which he knew were not being sent. This evidence was suffic ient for a jury to make the-9-

reasonable inference that Ardie intentionally defrauded Mr. Pitts, as well as the other customers. See Smith , 133 F.3d at 743. Under 18 U.S.C. § 371, a conviction for conspiracy requires the government to prove: (1) the defendant’s agreement with another person to violate the law; (2) his knowledge of the essential objective of the conspiracy; (3) his knowing and voluntary involvement; and (4) interdependence among the alleged coconspirators. See United States v. Edwards , 69 F.3d 419, 430 (10th Cir. 1995). Stated simply, Ardie’s conviction for consp iracy required the government to prove Ardie had an explicit or implicit agreement with Steve or Jack to commit mail fraud. In this regard, the government present ed abundant evidence of the collaboration between Ardie and Steve on how Genesi s Marketing was to be run. The inference that they explicitly or implicitly ag reed to defraud customers was a reasonable one for the jury to make. Ardie cites us to United States v. Migliaccio , 34 F.3d 1517 (10th Cir. 1994), for the proposition that where the evidence only shows the defendants were involved in a lawful business activity togethe r, it is insufficient for the jury to infer a criminal agreement. In contrast to the facts in Migliaccio , however, the jury here was presented with evidence permitting th e reasonable inference that Ardie knew Genesis Marketing was not a lawful busin ess. Genesis Marketing’s support services were set up under various aliases, its income was sent to a distant-10-

location unconnected in any way with its business o perations, its profits were deposited into checking accounts also unrelated to the business, and customers were constantly notifying Ardie that they were not receiving their products or their prizes. See , e.g. , United States v. Gray , 105 F.3d 956, 965 (5th Cir. 1997) (sufficient evidence to uphold conviction for mail fraud and conspiracy where organizer of fraudulent telemarketing scheme concea led his role through the use of false identities, aliases, and intermediaries). In short, there was ample evidence from which a reasonable jury could infer that Ardie knew the business in which he was involved was unlawful, and that Ardie and Steve made a criminal agreement to commit mail fraud through Genesis Mark eting. The holding of Migliaccio simply does not apply in these circumstances. The jury also heard sufficient evidence to allow itto convict Ardie of money laundering. To establish his guilt for moneylaundering under 18 U.S.C. § 1956, the government was required to prove: (1) Ard ie knowingly conducted a financial transaction; (2) he knew the funds repres ented proceeds of an unlawful activity; (3) the funds actually did represent the proceeds of the unlawful activity; and (4) the transaction was designed to conceal the nature, location, source ownership or control of the proceeds. 18 U.S.C. § 1956(a)(1)(B)(i) (1994). The evidence presented showed that Ardie had the income from the mail fraud sent to a mail box in Shawnee where his father would pick i t up and deposit it into-11-

different checking accounts, none of which were con nected with Genesis Marketing. The jury could make the reasonable infe rence from this evidence that these transactions were designed to “conceal the nature, location, source ownership or control of the proceeds” of the income from Genesis Marketing. Consequently, the district court properly denied St eve and Ardie Rahseparian’s motions for judgment of acquittal.

III GRIFFIN CHALLENGE
In Griffin v. California , 380 U.S. 609 (1965), the Supreme Court held that the Fifth Amendment privilege against self-incrimin ation prohibits a prosecutor from commenting on a defendant’s invocation of his right not to testify. See id. at 615. The Griffin rule is violated when a prosecutor uses language w hich is “manifestly intended” to be a comment on the defend ant’s failure to testify or “of such character that the jury would naturally and ne cessarily” take it to be such a

comment. United States v. Barton , 731 F.2d 669, 674 (10th Cir. 1984) (quoting Knowles v. United States , 224 F.2d 168, 170 (10th Cir. 1955)). During closing arguments in this case, the prosecut or told the jurors they would have to use their common sense to infer a cri minal agreement between the Rahseparians “[b]ecause here we don’t have an insi de person, we don’t have one-12-

of the three members here at the counsel table.” App., vol. III at 743. The Rahseparians contend this was a comment by the pros ecutor on the exercise of their Fifth Amendment rights in violation of Griffin . The government argues the prosecutor was merely asking the jurors to infer a criminal agreement based on the evidence presented. At most, the comment was a imed only at the conspiracy charge. The prosecutor’s closing argument spanned twenty pa ges of transcript, most of which went to the conspiracy charge. Regarding the agreement element of conspiracy, the prosecutor told the jurors they cou ld find such an agreement absent express proof as long as they believed there was an understanding between the Rahseparians to commit mail fraud. She outline d the evidence presented regarding the mailbox, the Federal Express account, the 1-800 telephone number, and the products that were ordered. On the eighth transcribed page of her argument, she returned to the issue of the requiredcriminal agreement and reiterated that the government was not required to prove a formal agreement. It was in this context that the prosecutor made the co mment in question: The Court instructed you not to leave your common s ense at home, and I would ask you to do the same thing, particularly when we talk about the area here of an agreement and what these defendants agreed upon. Because here we don’t have an inside person, we don ’t have one of the three members here at the counsel table. Here is what I would like you to do is use your common sens e, and as I go through these items, to think, is it reasonable that these defendants-13-

wouldn’t have talked to each other, that they would n’t have come to some type of agreement or understanding.

Id. at 743 (challenged comment emphasized). The prose cutor then discussed in detail all of the evidence referred to above, and c ompleted her argument as to the conspiracy charges by asserting, “[t]here had to have been discussions, and the evidence, you may infer, is that these defendants d id indeed have an agreement. And this agreement was to engage in criminal activity.” Id. at 748. Her argument went on to cover the charges of mail fraud and mone y laundering before concluding seven transcribed pages later. In response to the Rahseparians’ objections, the di strict court held the challenged statement was not a comment on the defen dants’ failure to testify, but rather a concession of a flaw in the government’s c ase caused by the lack of direct testimony evidencing a criminal agreement. The district court pointed to the full context of the prosecutor’s argument in support of this interpretation. See App., vol. I, at 198. The district court denied co unsel’s request for a curative instruction. In its subsequent written order overruling the objection, the court stated that even assuming this comment was intendedor was taken by the jury as a comment on the defendants’ failure to testify, it s normal instructions to the jury on the defendant’s right to remain silent made the isolated comment harmless. See id. We have consistently held that a prosecutor may com ment on the lack of evidence in a case, see, e.g. , United States v. Gomez-Olivas , 897 F.2d 500, 503 (10th Cir. 1990) (prosecutor is allowed considerabl e latitude in commenting on evidence and arguing inferences therefrom), as long as she does not comment on-14-

the failure of the defendant to provide such evidence, see Knowles v. United States , 224 F.2d 168, 170 (10th Cir. 1955) (“[I]t is perf ectly proper to comment on the lack of evidence if [the prosecutor] didn’t comment on the failure of the defendant to give it.”). The circuit courts that h ave been presented with comments such as the one challenged here have spliton whether they are improper comments under the Griffin rule or permissible statements regarding the lack of direct evidence. For example, in Jacobs v. United States , 395 F.2d 469 (8th Cir. 1968), four co-defendants were tried for conspiracy to violate bankruptcy laws and commit mail fraud. They offered no testimony in their def ense. During rebuttal arguments, the prosecutor asserted, “Where is [the missing merchandise]. . . . [T]here are only four people in this room that know– just four – and they are not about to tell us.” Id. at 477. The Eighth Circuit held that this commentwas a proper rebuttal comment to the defense’s attack on the lack of direct testimony on the issue and not a Griffin violation. See id. In United States v. Griggs , 735 F.2d 1318 (11th Cir. 1984), on the other hand, the prose cutor argued to the jury in closing, “[defense counsel] asked you to assume that [element of the defense] even though the defendant has not testified about it.” Id. at 1320. The Eleventh Circuit found the comment “an unmistakable referenc e to Griggs’ exercise of his fifth amendment privilege. The jury could not have failed to comprehend the remark in any other way.” Id. at 1324. In Berryman v. Colbert , 538 F.2d 1247 (6th Cir. 1976), the prosecutor mad e similar comments that were held impermissible under the Griffin rule. The defendants there were convicted in state court of r obbery, conspiracy to commit-15-

robbery, and murder. In closing arguments, the pro secutor stated, “we are relying almost entirely upon circumstantial evidence. Nobo dy was there when the robbery took place. Nobody that we can bring here to testify. The defendants here, yes, but we can’t get them to testify.” Id. at 1249. The Sixth Circuit found the comment “to be in square violation of Griffin v. California .” Id. at 1250. This court has found more benign “innuendos” than these to be violations of Griffin . In Barton , we held the prosecutor impermissibly commented onthe defendants’ failure to testify by merely pointing t o certain facts which were not explained, when those facts could only be explained by the defendants. See Barton , 731 F.2d at 674; see also Knowles , 224 F.2d at 170 (assuming without deciding that such a comment was improper). The pr osecutor here not only pointed to the lack of direct evidence of the agree ment, a fact only the Rahseparians would have evidence of, but further sp ecifically stated the government did not have testimony from the defendants as to that fact. “The prosecution is entitled to refer to the fact t hat the defense has failed to rebut a natural inference that may be drawn from the facts in evidence.” Griggs , 735 F.2d at 1323. In this case, the prosecutor certainly could have permissibly argued to the jury that it should infer there was an agreement. “Arguing inferences is standard business among lawyers, which Griffin does not forbid.” Gomez-Olivas , 897 F.2d at 503. The prosecutor here went one st ep further, however. Rather than merely argue the inferences w hich could reasonably be drawn from the evidence, she asserted that the infe rence should be made precisely because the defendants did not testify. This comme nt teeters on the fine line-16-

between an impermissible comment on the defendants’ failure to testify and a permissible comment on the lack of evidence in a ca se. We are likewise in equipose as to how the jury musthave necessarily taken this statement. The Rahseparians argue this remarksuggested to the jurors that inculpatory evidence was kept from them due to the Rahseparians failure to testify. We do not agree that such a negative infe rence is a necessary result of this comment. The prosecutor argued to the jury th at an inference must be made because there was no direct testimony, which is notunconstitutional. She contended the only reasonable inference to be made in light of all the evidence was that there was a criminal agreement. Her chall enged comment standing alone, however, allowed the jury to make any infere nce, including that there was no criminal agreement. Determining whether this comment violated the Const itution is problematic in light of the fact that the prosecutor’s comment was situated within lengthy but focused arguments regarding the inferences to be ma de from the evidence presented, and the meaning of the comment is unclear. Given its context and in light of the evidence against Steve and Ardie, we a re convinced that even if there was error, it was harmless beyond a reasonable doub t. The Supreme Court has directed that where the prose cutor makes an impermissible statement under Griffin , the government must “prove beyond a reasonable doubt that the error . . . did not contr ibute to the verdict obtained” to maintain the conviction against the accused. Chapman v. California , 386 U.S.18, 24 (1967). When conducting a harmless error analys is, we review the entire record. See United States v. Hasting , 461 U.S. 499, 509 n.7 & 510.-17-

The Rahseparians argue that the prosecutor’s comments here went to the pivotal inferences the jury must have made to convi ct them. As such, the comments necessarily were the basis on which the ju rors found them guilty. They additionally argue that in light of the circumstant ial nature of the case against them, the comments cannot be found harmless beyond a reasonable doubt. The government argues that because the jury was adequat ely instructed on the weight to be given closing arguments, the government’s bur den of proof, and the defendant’s right to remain silent, the single, iso lated comment challenged by the Rahseparians could not have infected the jury’s del iberations. Because the comment here was pointed to the conspir acy charges, our harmless error analysis is complicated by the fact that the evidence as to the criminal conspiracy was entirely circumstantial. In Chapman , the Supreme Court held it could not find the prosecutor’s impermissib le statements harmless beyond a reasonable doubt where all of the evidence in the case was circumstantial. The prosecutor there, however, was working under the Ca lifornia constitutional provision struck down in Griffin which allowed such commentary. Chapman , 386 U.S. at 19. Thus, the Court was dealing with a cas e where both the prosecutor’s comments and the trial court’s jury instructions “c ontinuously and repeatedly” impressed upon the jury that they should draw infer ences in favor of the state due to the defendants’ silence. See id. at 25. The state’s case coupled this continuous reliance on the defendants’ silence as evidence of guilt with “a reasonably strong ‘circumstantial web of evidence.’” Id. The Court concluded that looking solely to the circumstantial evidence presented, “honest, fair-minded jurors might very well have brought in not-guilty verdicts.” Id. at 25-26. The Court held that under-18-

these circumstances it was completely impossible to find beyond a reasonable doubt the error did not contribute to the defendants convictions. See id. at 26. In Berryman , 538 F.2d 1247, the defendant had been convicted o f murder and conspiracy to commit robbery. The conspiracy c onviction there was supported by a substantial amount of direct evidenc e, whereas the murder conviction was based entirely on circumstantial evi dence. After finding the prosecutor’s statements at trial impermissible under Griffin , the Sixth Circuit held the error harmless beyond a reasonable doubt as to the conspiracy conviction since the proof there was “direct, positive and undisputed.” Id. at 1250. The court held to the contrary on the murder convictionstating: although we recognize that an appropriate cautionary instruction on the right of the defendant to remain silent was giv en, we do not feel that it could have cured the effect of the prejudic ial and improper comment above as to the murder charge. The proofs of appellant's participation in the murder itself arise solely fro m circumstance and inference. In such a case properly termed "weak" b y the District Judge we cannot consider the prosecutorial miscondu ct to be harmless beyond reasonable doubt. Id. This court has also stated that the entirely circum stantial nature of the government’s case normally weighs against a finding of harmless error. See Velarde v. Shulsen , 757 F.2d 1093, 1095 (10th Cir. 1985). In Velarde , we held the prosecution’s impermissible comments on the def endant’s post-arrest silence (so-called “Doyle” errors) not harmless because the trial lasted only one morning,3 Instruction No. 6 stated:

The burden of proving a defendant guilty beyond a r easonable doubt that rests upon the government and never shif ts throughout the trial. The law does not require a defendant to prove innocence or to produce any evidence. He may rely on evidenc e brought out on cross-examination of witnesses for the government, or the presumption of innocense, or the weakness of the go vernment’s case, or favorable inferences casting doubt on guil t, or any of these. Instruction No. 8 stated: . . . You are to consider only the evidence in the case; but, in your evaluation of the evidence, you are not limite d to the bald statements of witnesses. In considering the eviden ce and in determining the issues in this case, you should bri ng to your aid the general knowledge that you possess, your (continued...) -19- the prosecution’s case was entirely circumstantial, and the trial court did not give a curative instruction. See id. at 1095-96. Although the convictions in the present case were b ased on circumstantial evidence, the trial was not short. The Rahseparian ’s joint trial consisted of three full days of testimony, and one full day of closing arguments and instructions, with the jury returning a guilty verdict on all cou nts the fifth day. Despite the circumstantial nature of the government’s case, we are convinced that the trial and particularly the lengthy closing arguments duri ng which the prosecutor directed most of her comments towards the reasonabl e inferences that should be drawn from the evidence made any Griffin error harmless. In this case the district court instructed the juryon the weight to be given closing arguments, the government’s burden of proof , and the defendants’ right to remain silent. See Jury Instructions, app., vol. I, at 51, 53, 58. 3 In United States3 (...continued)

understanding of the ways of the world, and your co mmon sense. Instruction No. 13 stated: The Constitution of the United States grants to a d efendant the right to remain silent. No inference of guilt may be drawn by any juror from the fact that a defendant does not t ake the witness stand and testify. It is the government’s obligation to prove guilt and a defendant has no obligation to sp eak. Further, during deliberation, no juror may make anyreference to a defendant’s decision not to testify. -20- v. Hernandez-Muniz , 170 F.3d 1007, 1011-12 (10th Cir. 1999), we held that a single, vague reference to the defendant’s failure to testify was not plain error where the trial court instructed the jury on the de fendant’s Fifth Amendment rights. See also Jacobs , 395 F.2d at 477-78 (jury instructions held to rem ove any possible prejudice stemming from Griffin error). Similarly, the jury instructions here help to convince us that, given the evidence i n this case, the allegedly erroneous comment was harmless beyond a reasonable doubt.-21- IV BRUTON CHALLENGE
In Bruton v. United States , 391 U.S. 123 (1968), the Supreme Court held that in a joint trial, one defendant’s “powerfully incriminating extrajudicial statements” regarding a co-defendant violate the co -defendant’s Sixth Amendment rights, despite instructions to the jury to disregard that evidence when determining guilt. Id. at 1628. Steve Rahseparian contends such an error occurred here. We review this legal issue de novo

. See United States v. Verduzco-Martinez , 186 F.3d 1208, 1212 (10th Cir. 1999). During the government’s case in chief, IRS Agent Sh aron Morisette testified that Ardie indicated he was initially rel uctant to enter into business with Steve because “[Ardie] said that he didn’t trust hi s brother.” App., vol. III at 658. The district court immediately asked the jury to le ave the courtroom, and during sidebar held the statement was in violation of the Bruton rule. Defense counsel moved for a mistrial, or in the alternative that th e court instruct the jury to disregard the statement. The court denied the requ est for a mistrial but struck the statement from the record, instructed the jury to d isregard the statement, and then polled each juror individually to ascertain if he o r she could follow the curative instruction. Steve Rahseparian argues that OfficerMorisette’s statement was covered by the protection of Bruton because it was critical to the prosecution’s-22-

case, inculpatory towards him, and allowed the juryto infer he is the type of person who would have the intent to commit fraud an d launder money, the key issues in this case. We are not convinced the statement here is one to which the narrow Bruton rule applies. In Bruton , the Supreme Court held that the co-defendant’s confession, which directly implicated Mr. Bruton an d was hearsay as to him, was so powerfully incriminating that the Court could no t disregard the substantial risk the jury would consider the testimony despite instructions not to do so. See
Bruton , 391 U.S. at 126-28, 135. However, the Court caut ioned against a broad application of its holding, stating that in many ca ses the jury can and will follow the trial judge’s instructions to disregard the information. See id. at 135; Richardson v. Marsh , 481 U.S. 200, 207 (1987) ( Bruton ’s holding is a narrow exception to the general principle that jurors will follow their instructions).
Bruton applies only in those few contexts where the statem ent is so inculpatory as to the defendant that the “practical and human limi tations of the jury system cannot be ignored.” Bruton , 391 U.S. at 135. The Supreme Court has rejected extending the Bruton rule to statements that are not directly inculpatory but only inferentially incriminating. See Richardson , 481 U.S. at 208. In Richardson , Ms. Richardson and Mr. Williams were co-defendants in a joint trial. Mr. Williams confessed to robbery and-23-

murder and admitted to discussing the crimes while driving in a car prior to committing them. That confession did not refer in any way to Ms. Richardson and was admitted into evidence. Later in the trial , testimony revealed Ms. Richardson was in the car while the conversation to ok place. In holding that
Bruton did not apply to Mr. Williams’ confession, the Cou rt stated:

Where the necessity of such linkage is involved, itis a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that“the defendant helped me commit the crime” is more vivid than infe rential incrimination, and hence more difficult to thrust o ut of mind. . . . [W]ith regard to inferential incrimination the judg e’s instruction may well be successful in dissuading the jury from ente ring onto the path of inference in the first place, so that there is n o incrimination to forget. Id. at 208. See also Gray v. Maryland , 523 U.S. 185, 195 (1998) (“ Richardson placed outside the scope of Bruton ’s rule those statements that incriminate inferentially.”); United States v. Chatman , 994 F.2d 1510, 1513 (10th Cir. 1993) (inferential incrimination argument unavailing to show Bruton violation); United States v. Markopoulos , 848 F.2d 1036, 1039 (10th Cir. 1988) (same). The statement at issue here, that Ardie did not trust h is brother Steve, is at most inferentially incriminating. This conclusion is supported by Gray , where the Court determined whether a statement made by a co-defendant was accusatory a s opposed to inferentially incriminating by assessing how direct and “vivid” the statement was and how4Steve also argues that even if the Bruton and Griffin errors were harmless

by themselves, cumulatively they were prejudicial. Because we conclude no Bruton error was committed, a cumulative error analysis i s inappropriate. See United States v. Rivera , 900 F.2d 1462, 1470-71 (10th Cir. 1990). -24- quickly the jury could make a negative inference from it. See Gray , 523 U.S. 196. Only where the inculpatory inference can be m ade immediately in the mind of a reasonable juror is the statement protected by Bruton and any curative instruction insufficient. See id. Certainly the immediate inference from Ardie’s sibling mistrust is not his brother’s intent to com mit criminal acts. Steve Rahseparian contends his brother’s mistrust w as “critical” to the government’s case, relying on United States v. Glass , 128 F.3d 1398 (10 th Cir. 1997). In Glass , we held Bruton applied to a co-defendant’s statement to police that was not facially or directly inculpatory but r evealed the familial relationship between the defendants, a fact critical to the pros ecution’s case. Contrary to the situation in Glass , Ardie’s initial feelings towards his brother were not “obviously important” to the government’s case. See id. at 1405. For these reasons, we are persuaded the district co urt’s curative action, which struck the statement from the record and instructed the jurors to disregard it, cured any possible prejudice it may have caused Steve. 4-25- V
CONCLUSION For the reasons stated above, we AFFIRM Steve and Ardie Rahseparian’s convictions on all counts.