*

The Honorable Robert J. Jonker, United States District Judge for the Western District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0258p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

v.

DAVID E. BROWN,

 Defendant-Appellee.

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No. 09-5431

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 06-00078-001—Harry S. Mattice, Jr., District Judge.

Argued: August 6, 2010

Decided and Filed: August 24, 2010 

Before: SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*

_________________

COUNSEL

ARGUED: Christopher D. Poole, ASSISTANT UNITED STATES ATTORNEY,

Chattanooga, Tennessee, for Appellant. Mary Ellen Coleman, FEDERAL DEFENDER

SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellee.

ON BRIEF: Debra A. Breneman, ASSISTANT UNITED STATES ATTORNEY,

Knoxville, Tennessee, for Appellant. Mary Ellen Coleman, FEDERAL DEFENDER

SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellee.

1
No. 09-5431 United States v. Brown Page 2

_________________

OPINION

_________________

SUTTON, Circuit Judge. A jury convicted David Brown of being a felon in

possession of a firearm. 18 U.S.C. § 922(g)(1). Brown moved for a post-verdict

judgment of acquittal, arguing that the sole evidence presented against him at trial—his

confession—could not support the jury’s verdict. Invoking the “corroboration rule,” the

district court agreed with Brown and acquitted him. The United States appeals. Because

sufficient independent evidence establishes the trustworthiness of Brown’s statements,

we reverse.

I.

In April 2006, Jason Helms reported that someone had stolen a Glock .40 caliber

pistol and a silver necklace from his home in Cleveland, Tennessee. Helms suspected

that an acquaintance, David Brown, might be the culprit. He relayed his suspicion to

Detective Robert Harbison, who learned that Brown was staying at his cousin’s house

and eventually found Brown sleeping on the couch there. Harbison woke Brown,

identified himself, explained the reason for his visit and asked to speak with him. Brown

consented and the two men went outside, where Helms stood waiting. Helms and

Harbison explained that they did not “want [Brown] to go to jail,” that Helms “just

wanted his gun back” and that, if Brown “[gave] the gun to Mr. Helms,” he could “go

back in[side] and go to sleep.” R.78, 5. Brown responded that he had traded the gun for

methamphetamine in a neighboring county and that he “[could] get the gun back.”

R.78, 5. He refused to divulge to whom he traded the gun or where it might be.

Harbison took Brown to the police station for further questioning. Once there,

Harbison read Brown his Miranda rights, and Brown waived them. Brown gave a taperecorded confession, saying that he entered Helms’ house and stole the Glock .40 and

the silver necklace. He refused once again, however, to disclose who had the gun,

pledging only that he would get it back. Several days later, Brown’s mother called
No. 09-5431 United States v. Brown Page 3

Harbison with a similar promise: She would get the gun and return it. The gun was

never recovered. 

Two months later, a federal grand jury indicted Brown for being a felon in

possession of a firearm on the basis of Brown’s confession that he had taken—and

therefore possessed—Helms’ gun. 18 U.S.C. § 922(g)(1). Detective Carl Maskew

arrested Brown and brought him to the county jail, where he again administered Brown

his Miranda rights. Brown again agreed to speak with Maskew and signed another

waiver form.

This time, Brown’s story changed. He said that he knew nothing about the stolen

gun. During his prior confession, he explained, he was confused as to which gun

Harbison was asking him about. The gun that he traded for methamphetamine, he now

insisted, was not Helms’ Glock .40, but a Glock .22 that he received as payment for

some landscaping work.

Minutes later, Brown revised his story again. Two acquaintances, he said, broke

into Helms’ house and stole the gun and the necklace. They gave Brown the Glock .40

a day or so after the burglary. Brown traded the gun to his cousin Jimmy Chambers for

30 to 40 dollars’ worth of methamphetamine. He told Maskew that “if possible” he

“[would] help try to find” the missing gun. R.78, 25.

Brown went to trial on the felon-in-possession charge. He stipulated that he was

a convicted felon and that the gun at hand had traveled in interstate commerce, leaving

the government to prove that Brown knowingly possessed it. United States v. Campbell,

549 F.3d 364, 374 (6th Cir. 2008). The government played Brown’s tape-recorded

confession for the jury and offered the testimony of Detectives Harbison and Maskew,

who both described their conversations with Brown. Brown testified. He recanted his

confession to Harbison, blaming it on a methamphetamine and morphine binge and

insisting that he could not remember speaking with Harbison. He also disclaimed

making any statements to Maskew and denied that he ever possessed a gun, be it Helms’

Glock .40 or the Glock .22 he referenced during his interview with Maskew. The jury

found him guilty.
No. 09-5431 United States v. Brown Page 4

After his conviction, Brown renewed his motion for a judgment of acquittal

under Rule 29 of the Federal Rules of Criminal Procedure. He argued that the only thing

linking him to the crime was his uncorroborated confession, which by itself could not

sustain the verdict. The district court agreed and acquitted Brown.

II.

A dusty doctrine of criminal law—the “corroboration rule”—lies at the heart of

this appeal. Rooted in English common law and embraced by the United States Supreme

Court in the 1950s, the rule says that no one may be convicted of a crime based solely

on his uncorroborated confession. Opper v. United States, 348 U.S. 84, 89, 93 (1954);

see also Smith v. United States, 348 U.S. 147, 156 (1954); United States v. Calderon,

348 U.S. 160, 165 (1954). Early versions of the rule developed in 17th-century England

when a series of suspects confessed to murders, only to have their alleged victims turn

up—alive and well—long after the suspects were imprisoned (or, worse, executed) for

the fictitious crimes. See Thomas A. Mullen, Rule Without Reason: Requiring

Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial

Confession, 27 U.S.F. L. Rev. 385, 399–401 (1993) (citing Perry’s Case, 14 How. St.

Tr. 1311 (1600)). First known as the corpus delicti, or “body of a crime,” rule, the

doctrine guarded against convictions for imaginary crimes by requiring prosecutors to

demonstrate through independent evidence that the crime occurred before they could use

an accused’s own statements to establish guilt. Smith, 348 U.S. at 153–54; see also

United States v. Sterling, 555 F.3d 452, 456 (5th Cir. 2009).

Today’s corroboration rule differs from its predecessor in form but not in

function. Wary that “[the] weakness of the accused under the strain of suspicion” may

cause the accused to give a false, even if voluntary, confession, Opper, 348 U.S. at 90,

the Supreme Court in 1954 embraced a variation on the rule to prevent “errors in

convictions based upon untrue confessions alone,” Smith, 348 U.S. at 153. Unlike the

corpus delicti rule, the government need not introduce evidence independent of the

accused’s confession to establish that the crime occurred. Opper, 348 U.S. at 93. The

government instead generally may satisfy the rule if it introduces “substantial
No. 09-5431 United States v. Brown Page 5

independent evidence which would tend to establish the trustworthiness of the

statement,” id. (emphasis added), an approach that has the virtue of ensuring that these

trustworthiness considerations extend to all confessions, including those in which no one

doubts a crime occurred, only who committed it.

The corroboration requirement, it bears adding, differs from another

requirement—that the confession be voluntary. Voluntariness goes to admissibility,

while corroboration goes to sufficiency. See Smith, 348 U.S. at 153. Federal courts thus

may admit confessions into evidence as voluntary, then later reject them as

uncorroborated on the theory that even voluntary “inculpatory confessions . . . are

frequently unreliable,” and jurors ought not “vote to convict based upon such statements

alone.” United States v. Bryce, 208 F.3d 346, 355 (2d Cir. 1999).

Throughout its tenure, the corroboration rule has received mixed reviews in the

federal courts. As far back as 1918, Judge Learned Hand doubted whether the rule had

“any substantial necessity in justice” but did “not feel at liberty to disregard a principle

so commonly accepted.” Daeche v. United States, 250 F. 566, 571 (2d Cir.). A panel

of our court expressed a similar sentiment two decades later, saying it did not “feel free

to cast [the rule] aside” “because of the fixed rule of most courts that corroboration of

a confession is necessary,” even though it “kn[ew] of no good reason why [properly

obtained confessions] need corroboration.” Anderson v. United States, 124 F.2d 58, 65

(6th Cir. 1941), rev’d on other grounds, 318 U.S. 350 (1943). Even the Supreme Court

did not adopt the rule without reservation. Because the rule “infringe[s] on the province

of the primary finder of facts,” the Court cautioned, “its application should be

scrutinized lest the restrictions it imposes surpass the dangers which gave rise to them.”

Smith, 348 U.S. at 153. 

The passage of time has not diminished ambivalence about the rule. False

confessions, on the one hand, have not disappeared, and they provide a modern

justification for continuing to respect the rule. The emergence of several new criminal

procedure protections over the last several decades, on the other hand, has altered the

role of the rule. Since 1954, the Court has constitutionalized several areas of criminal
No. 09-5431 United States v. Brown Page 6

law, many to the end of preventing false and uncounseled confessions. Not the least of

these are the requirement that law enforcement read custodial suspects their rights before

interrogating them, Miranda v. Arizona, 384 U.S. 436 (1966), the requirement that

interrogations cease upon a suspect’s request for an attorney, Edwards v. Arizona, 451

U.S. 477, 484–85 (1991), and the multi-factor inquiry courts undertake to ensure the

voluntariness of confessions, see, e.g., Withrow v. Williams, 507 U.S. 680, 689 (1993).

In the aftermath of these developments, some question whether the corroboration

rule has outlived its utility and ought to be treated as a quaint, though now irrelevant,

reminder of the Court’s pre-Miranda days. See, e.g., United States v. Dalhouse, 534

F.3d 803, 806 (7th Cir. 2008) (“What the rule accomplishes is open to debate.”); United

States v. Dickerson, 163 F.3d 639, 641 & n.2 (D.C. Cir. 1999) (“[We are] doubtful” “that

the Supreme Court would today rule as it did in 1954.”); see also 1 McCormick on

Evidence § 145 (6th ed.) (“[T]he development of . . . Fifth Amendment protections” has

diminished “concerns regarding . . . interrogation practices” as well as “support for the

corroboration requirement.”); 7 Wigmore, Evidence § 2070 p. 510 (Chadbourn rev.

1978) (False confessions of guilt are “exceedingly rare” and the corroboration rule is

often an “obstruction to the course of justice.”); Mullen, supra, at 418 (“[T]he

corroboration requirement” “should be abolished.”). Others say that the rule continues

to provide a real—and necessary—check on false confessions. See Saul M. Kassin, et

al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum.

Behav. 3 (2010); Talia Fisher & Issachar Rosen-Zvi, The Confessional Penalty, 30

Cardozo L. Rev. 871 (2008). Through it all, the Supreme Court has not revisited the rule

since 1954.

Developments in interrogation law provide one source of uncertainty about the

modern role of the rule. Another source is the development of modern sufficiency-ofthe-evidence rules. Years after adopting the corroboration rule, the Supreme Court

recognized that criminal defendants have a due process right to have their convictions

supported by evidence that leaves no reasonable doubt about their guilt. Jackson v.

Virginia, 443 U.S. 307, 316–17 (1979); In re Winship, 397 U.S. 358, 364 (1970).
No. 09-5431 United States v. Brown Page 7

“[V]iewing the evidence in the light most favorable to the prosecution,” the federal

courts now must ensure that the prosecution meets its burden of establishing sufficient

evidence from which “any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis omitted).

There is some tension between Jackson and the corroboration rule. If viewed in the light

most favorable to the prosecution, most confessions by themselves would seem to meet

the Jackson standard, yet a reviewing court nonetheless would have to invalidate the

conviction if no corroborating evidence supported it. Adding to the puzzle is the reality

that the corroboration rule is thought of as a non-constitutional rule. See Jackson, 443

U.S. at 330 n.1 (Stevens, J., concurring); Williams v. Chapleau, No. 97-6015, 2000 U.S.

App. Lexis 195, at *10 (6th Cir. Jan. 4, 2000) (declining to apply the rule to a habeas

claim). Perhaps that is right, and the common law rule merely builds on the due process

constitutional floor (later) established by Jackson. Or perhaps the venerability of the

rule is a constitutional virtue, not just a common law one, making it a component of the

due process protections provided by the Fifth and Fourteenth Amendments. Either way,

there is no getting around the reality that there is tension between the corroboration

common law rule and the Jackson constitutional rule. 

All of this may suggest that the modern justifications for the rule and the scope

of it warrant a reassessment. But, for now, none of this alters our obligation to follow

it. 

 III.

It is one thing to state the corroboration rule (and the purposes it serves) and

another to apply it. Here are the ground rules:

C The independent corroborating evidence “does not” by itself “have to prove the

offense beyond a reasonable doubt, or even by a preponderance.” Smith, 348

U.S. at 156. Nor does it have to prove “each element of the offense charged.”

United States v. Trombley, 733 F.2d 35, 37 (6th Cir. 1984). Rather, “[t]he

purpose of corroboration is” merely “to ensure the reliability of the confession

or admission of the accused.” Id.
No. 09-5431 United States v. Brown Page 8

C When an accused confesses to a crime involving “physical damage to person or

property,” the independent corroborating evidence need only show that the crime

occurred. Wong Sun v. United States, 371 U.S. 471, 489–90 n.15 (1963). The

prosecution need not show that the independent evidence ties the accused to the

crime. Id.; see also United States v. Daniels, 528 F.2d 705, 707–08 (6th Cir.

1976) (When a suspect confesses to a bank robbery, showing that a bank robbery

occurred satisfies the corroboration requirement.). 

C But when an accused confesses to a crime for which there is “no tangible injury”

and “it cannot be shown that [a] crime has been committed without identifying

the accused,” Smith, 348 U.S. at 154, “the corroborative evidence must implicate

the accused,” Wong Sun, 371 U.S. at 489–90 n.15 (citations omitted); see also

United States v. Shunk, 881 F.2d 917, 920–21 (10th Cir. 1989) (Statement of gun

seller that defendant bought a gun from him is sufficient corroborating evidence

to convict the defendant of being a felon in possession of a firearm.).

C And for either type of crime, “one available mode of corroboration is for the

independent evidence to bolster the confession itself and thereby prove the

offense ‘through’ the statements of the accused.” Smith, 348 U.S. at 156. If, for

example, a defendant admits that he drove a car that had an illegal sawed-off

shotgun in its trunk, it is sufficient for the independent corroborating evidence

to show that he drove that particular car. Cf. United States v. Davis, 459 F.2d

167, 171 (6th Cir. 1972).

Did “substantial independent evidence” corroborate Brown’s confession?

Brown confessed on two separate occasions to possessing Helms’ Glock .40, saying to

Harbison that he obtained the gun by robbing Helms’ house and to Maskew that two

acquaintances gave him the gun after they robbed Helms’ house. Despite Brown’s

wavering over who committed the robbery, both statements have several unifying

themes: (1) Helms’ Glock .40 had been stolen from Helms’ house, along with a silver

necklace; (2) Brown at some point acquired the Glock .40; and (3) Brown sold the Glock

.40 for methamphetamine. Independent evidence—Harbison’s testimony about the
No. 09-5431 United States v. Brown Page 9

police report—corroborates point one: A Glock .40 and a silver necklace were stolen

from Helms’ house. R.78, 2, 8 (Helms “filed an offense report reporting that his

residence had been broke[n] into,” and “a Glock .40 caliber pistol was taken, and, also,

a chain, some kind of jewelry.”). And independent corroboration of one part of the

statement may corroborate the entire statement, including the part in which Brown

admits possessing a firearm. See Smith, 348 U.S. at 156; United States v. Deville, 278

F.3d 500, 506 (5th Cir. 2002); Trombley, 733 F.2d at 37–38. The independently

established fact that certain specified items were stolen from Helms’ house thus lends

support to Brown’s confession that he possessed the gun.

Brown takes issue with the corroborating effect of the independent evidence

establishing the robbery at Helms’ house, saying that “proof that the burglary occurred”

would corroborate his statements only if “Brown [had] been charged with burglary.”

Brown Br. 13. Not so. Independent proof that the burglary occurred, it is no doubt true,

would corroborate Brown’s confession to burglary. But that is not all. The same

independent proof also corroborates Brown’s statement as a whole, including his

admission to possessing a firearm. Smith, 348 U.S. at 156; Opper, 348 U.S. at 93.

Viewing the evidence in the light most favorable to the prosecution, a rational juror

reasonably could accept Brown’s first Mirandized statement, in which he confessed to

robbing Harbison’s home and to stealing the gun, as truthful and reject his second, more

convoluted confession as unreliable. Once a rational juror accepted the truth of Brown’s

confession to the burglary—a part of the confession that all agree was adequately

corroborated by the reality that the burglary occurred—it takes but a small step to

conclude that Brown possessed the firearm. Brown offers no explanation how he could

steal something yet never “possess” it. Nor can we think of one, at least when it comes

to thefts committed by a single robber.

United States v. Calhoun, No. 92-2011, 1993 WL 280324 (6th Cir. July 26,

1993), is not to the contrary. In an unpublished, per curiam decision, Calhoun held that,

when a defendant confesses to drug possession as well as to drug conspiracy,

independent corroboration of one crime (possession) does not by itself “permit[] the use
No. 09-5431 United States v. Brown Page 10

of the confession to prove” another crime (conspiracy). Id. at *3. Yet the corroborating

evidence there—that the police found a “small amount” of drugs near Calhoun—did not

indicate that Calhoun was also involved in a conspiracy, as opposed to merely being a

recent purchaser of drugs. Id. Here, the corroborating evidence—that the type of gun

stolen from Helms’ house was the type Brown admitted to possessing—“implicate[s]”

Brown in the charged crime. Wong Sun, 371 U.S. at 489–90 n.15. The independent

evidence provided sufficient corroboration.

IV.

For these reasons, we reverse the district court’s judgment of acquittal and

remand the case for further proceedings.