FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD LEE MASON,  No. 04-17330

Petitioner-Appellant, D.C. No.

v.  CV-03-00450-FCD/

M. YARBOROUGH,

JFM

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

February 16, 2006—San Francisco, California

Filed May 5, 2006

Before: J. Clifford Wallace, Michael Daly Hawkins, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Hawkins;

Concurrence by Judge Wallace

5101
COUNSEL

Matthew Alger, Clovis, California, for the appellant. 

Justain P. Riley, Deputy Attorney General, Sacramento, California, for the appellee. 

OPINION

HAWKINS, Circuit Judge: 

Petitioner-Appellant Richard Lee Mason (“Mason”) seeks

habeas corpus review of his state court convictions arising out

of two separate shooting incidents in Stockton, California, one

resulting in first-degree murder charges. Mason’s fundamenMASON v. YARBOROUGH 5103
tal contention here is that the admission of the fact that a coparticipant made a statement to law enforcement, but not the

content of that statement, violated his confrontation rights.

Exercising our jurisdiction under 28 U.S.C. § 1291, as constrained by 28 U.S.C. § 2254(d)(1),1

 we affirm the district

court’s denial of habeas relief. 

In the early morning hours of May 26, 1996, and twice

again later that night, the home of Debra Aguilera was struck

by gunfire. A few days prior, Mason was seen in the passenger seat of a maroon BMW owned by Alder Fenton, displaying a handgun and bragging to Fenton’s brother Jeremiah:

“Tell Ray I have something for him.” Jeremiah knew “Ray”

referred to Raymond Munoz, Ms. Aguilera’s oldest son, who

was in the house at the time of the shooting and who had been

involved in an altercation with Mason some six months earlier. 

Later the same evening, neighbors of Sally Purcell heard a

man yelling, “Mike,” outside the Purcell house, followed by

several gunshots fired in rapid succession and then a car

speeding away. Michael Kolkhurst, a man Mason believed

had molested his stepsister, was living with Ms. Purcell. Startled awake by the gunfire, Purcell, who had been asleep in

another room, found Kolkhurst lying in bed and covered in

blood. Efforts by paramedics called to the scene failed to

revive Kolkhurst, and he died from his wounds. 

A few weeks later, Valerie Cole, the mother of one of

Mason’s friends, found Mason asleep in her son’s car outside

her home. Mason explained that he was sleeping there out of

fear that the police were looking for him. Mason asked Cole

1To grant habeas relief, a federal court must find that the state court’s

decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of

the United States.” Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1). 

5104 MASON v. YARBOROUGH
to call a friend of hers at the sheriff’s department to see if

there were any warrants out for his arrest. When Cole asked

why, Mason said he had shot someone in Stockton, aiming for

the man’s knees and instead hitting him in the chest. Mason

added that there was someone with him that night who may

have “snitched” on him. Cole made the requested call, which

eventually led to Mason’s arrest. 

At Mason’s trial, the prosecution called Stockton Police

Detective Richard Salsedo. The detective had interviewed

Alder Fenton in the course of the investigation. Critical to

Mason’s claim is the following passage from Detective Salsedo’s testimony: 

Q. And did you take a — did you take a statement

from him [Alder Fenton]? 

A. Yes, I took a seven-hour statement from him. 

Q. And after you took the seven-hour statement did

you place him [Alder Fenton] under arrest? 

A. Yes I did. 

Mr. Himelblau [the prosecutor]: No further questions. 

Mr. Hickey [defense counsel]: I’m going to object

to the last, it’s irrelevant and hearsay and ask it to be

stricken from the record. 

The Court: Overruled. 

Mr. Hickey: Thank you. 

[1] It is this testimony that Mason claims violated his confrontation rights. Specifically, he claims that the admission of

the fact of Fenton’s statement, under these circumstances, was

MASON v. YARBOROUGH 5105
essentially the same as admitting its content, thus violating the

clearly established principle of Bruton v. United States, 391

U.S. 123 (1968), that the admission of a non-testifying codefendant’s “powerfully incriminating extrajudicial statement”

violates a defendant’s Sixth Amendment right to confront his

accuser. Id. at 135-36. 

[2] Bruton’s protection, however, does not extend to all

such statements. Richardson v. Marsh, 481 U.S. 200, 211

(1987), specifically exempts a statement, not incriminating on

its face, that implicates the defendant only in connection to

other admitted evidence. On the other hand, the mere removal

of a codefendant’s name from a statement that obviously

refers to the defendant, does not insulate the statement from

Bruton scrutiny. Gray v. Maryland, 523 U.S. 185, 193-96

(1998). 

[3] The statement here seems closer to Richardson than

Gray for at least two reasons. First, Fenton’s statement to

Detective Salsedo does not mention Mason at all. In fact,

because its content never came into evidence, as far as the

jury was concerned, it mentioned no one at all. For all the jury

knew, Fenton confessed to his own involvement in the shootings and was arrested. Second, as Gray itself notes, the facts

that would have allowed the jury to infer that Fenton’s statement implicated Mason came through other, properly admitted evidence, particularly through Cole’s testimony of what

Mason told her. Gray, 523 U.S. at 195 (“Richardson placed

outside the scope of Bruton’s rule those statements that

incriminate inferentially.”); see also United States v. Sherlock,

962 F.2d 1349, 1360-61 (9th Cir. 1992) (as amended) (codefendant’s statement redacted to exclude defendant’s name and

incriminating only in light of other evidence). 

We are not persuaded to the contrary by Mason v. Scully,

16 F.3d 38, 40-41 (2d Cir. 1994), a pre-AEDPA decision,

where the officer testified that, after a conversation with a

codefendant, the police began looking for the defendant.

5106 MASON v. YARBOROUGH
There, the Second Circuit determined that the only inference

the jury could draw is that the statement implicated the defendant and thus violated Bruton. Id. at 43-44. Here, the only

immediate step taken by the officer hearing the statement was

to arrest its maker. In another pre-AEDPA decision, Foy v.

Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992), the Fifth Circuit found no Bruton violation where the officer testified he

sought an arrest warrant for the defendant after conducting an

investigation that included taking a codefendant’s statement.2

[4] Moreover, there is a real question whether the Confrontation Clause protections apply to Detective Salsedo’s testimony, because it is not at all clear that Alder Fenton was a

“witness against” Mason as that term has been defined by the

Supreme Court. 

[5] In Crawford v. Washington, 541 U.S. 36 (2004), the

Supreme Court evaluated the meaning of the Clause, concluding that “ ‘witnesses’ against the accused . . . [means] those

who ‘bear testimony.’ ” 541 U.S. at 51. “ ‘Testimony,’ in

turn, is typically, ‘[a] solemn declaration or affirmation made

for the purpose of establishing or proving some fact.’ ” Id. at

51 (citation omitted). Because Fenton’s words were never

admitted into evidence, he could not “bear testimony” against

Mason. 

[6] For all these reasons, we cannot say that the California

Court of Appeal’s application of Bruton to these facts was

contrary to clearly established Supreme Court law or that it

2Mason argues that Richardson’s exception of inferentially incriminating statements from the application of Bruton is expressly conditioned on

the giving of a limiting instruction to the jury. Whatever strength that

argument might ordinarily have, we cannot consider it here because

Mason never requested such an instruction at trial and the Certificate of

Appealability he obtained for this appeal does not raise the issue of a state

trial court’s sua sponte duty to give a limiting instruction in such a circumstance. Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005). 

MASON v. YARBOROUGH 5107
applied that law in an objectively unreasonable way. We

therefore affirm the district court’s denial of habeas relief. 

AFFIRMED. 

WALLACE, Senior Circuit Judge, concurring in the judgment: 

I agree with the majority’s ultimate conclusion that Mason

is not entitled to habeas relief. Because I disagree with much

of the majority’s analysis, I write separately. Under the applicable Supreme Court precedents, Fenton was not a “witness

against” Mason, and thus Mason’s allegations fall entirely

outside of the protections of the Confrontation Clause of the

Sixth Amendment. However, unlike the majority, I do not

believe that Bruton v. United States, 391 U.S. 123 (1968),

Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v.

Maryland, 523 U.S. 185 (1998) are applicable to this appeal.

I.

The Confrontation Clause guarantees “the accused the right

. . . to be confronted with the witnesses against him . . . .” U.S.

Const. Amend. VI. Thus, as a threshold matter, there must be

a “witness[ ] against” the accused for the Confrontation

Clause to be invoked properly. In the most recent Supreme

Court precedent, Crawford v. Washington, 541 U.S. 36

(2004), the Supreme Court considered three possible meanings of this clause. The Court stated that “[o]ne could plausibly read ‘witnesses against’ a defendant to mean those who

actually testify at trial, those whose statements are offered at

trial, or something in-between . . . .” Id. at 42-43 (citations

omitted). Notably, not even the most expansive possibility

(“those whose statements are offered at trial”) includes situations where the fact that a person made a statement, without

any content of that statement, was admitted into evidence.

5108 MASON v. YARBOROUGH
The Court ultimately settled on a definition that was “something in-between” and held “ ‘witnesses’ against the accused

. . . [means] those who ‘bear testimony.’ ” Id. at 51 (citation

omitted). “ ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or

proving some fact.’ ” Id. (citation omitted). 

Although Crawford was decided after Mason’s conviction

became final, intervening precedents are applied retroactively

against habeas petitioners. See Lockhart v. Fretwell, 506 U.S.

364, 372-73 (1993). This is because “[a] federal habeas petitioner has no interest in the finality of the state-court judgment under which he is incarcerated: Indeed, the very purpose

of his habeas petition is to overturn that judgment.” Id. at 373.

Furthermore, this court has held that Crawford is fully retroactive. See Bockting v. Bayer, 399 F.3d 1010, 1012-13 (9th

Cir. 2005), amended by 408 F.3d 1127, reh’r en banc denied,

418 F.3d 1055 (2005); but see id. at 1024-30 (Wallace, J. dissenting). 

If Fenton’s statement to the police had been admitted into

evidence, it would unambiguously have been testimonial

under Crawford, requiring Mason to have an opportunity to

cross-examine Fenton regardless of whether a hearsay exception applied. Crawford, 541 U.S. at 52, 68. However, because

the content of Fenton’s statement was never admitted into evidence, the California Court of Appeal did not unreasonably

apply Supreme Court precedents when it held that Mason’s

claim lacked merit because “Alder Fenton’s confession was

not admitted into evidence.” [ER tab 8, page 9] It is not an

unreasonable application of federal law, as set out by Crawford, to hold that a person did not “bear testimony” when

none of his words were ever introduced into evidence. Therefore, Mason cannot obtain habeas relief under 28 U.S.C.

§ 2254(d). 

The majority appears to concede that this analysis is feasible when it states that “there is a real question whether the

MASON v. YARBOROUGH 5109
Confrontation Clause protections apply to Detective Salsedo’s

testimony.” Maj. op. at 5107. I go further: I believe this is the

only proper basis to decide this appeal. As I discuss below,

the majority’s application of Bruton, Richardson, and Gray to

single defendant trials creates a grave danger that our jurisprudence will permit admission of evidence in clear violation

of Crawford, as long as it is not “powerfully incriminating”

or only “incriminate[s] inferentially.” I now explain why. 

II.

I do not concur in the majority’s application of Bruton,

Richardson, and Gray. All of these cases address the issue of

whether an admission admitted against one defendant is also

deemed to be a “witness[ ] against” the co-defendant, thus

invoking the protections of the Confrontation Clause. Because

Mason was tried alone, these precedents plainly do not apply.

The admission of the fact of Fenton’s statement must either

not, by itself, make Fenton a “witness[ ] against” Mason, or

else it is a testimonial statement by Fenton requiring a full

opportunity for cross-examination. See Crawford, 541 U.S. at

52, 68. The majority cannot use Bruton, Richardson, and

Gray to hold that the statement was admitted only against a

co-defendant, because there were none at Mason’s trial. 

In Bruton, an out-of-court admission by Bruton’s codefendant, Evans, was admitted into evidence in the joint trial.

Bruton, 391 U.S. at 124. That admission “powerfully

incriminat[ed]” Bruton by name. Id. at 135-36. Although the

jury was given a limiting instruction that it could only consider the confession against Evans, the Supreme Court held

that “the introduction of Evans’ confession posed a substantial

threat to [Bruton’s] right to confront the witnesses against

him, and this is a hazard [the Court] cannot ignore.” Id. at

137. Thus, Evans was effectively deemed to be a witness

against Bruton, as well as himself, and because of the nature

of the confession, this could not be overcome by a limiting

5110 MASON v. YARBOROUGH
instruction. As such, Bruton’s Confrontation Clause rights

were violated. Id. at 135-37. 

Richardson also involved a joint trial of two defendants

(Marsh and Williams). Richardson, 481 U.S. at 202. The confession of the co-defendant, Williams, was introduced into

evidence. Id. at 203. That confession, unlike the one at issue

in Bruton, was redacted so that it contained no reference to

Marsh. Id. In addition, the jury was “admonished not to use

it in any way against respondent.” Id. at 204. 

The Court in Richardson held that “[o]rdinarily, a witness

whose testimony is introduced at a joint trial is not considered

to be a witness ‘against’ a defendant if the jury is instructed

to consider that testimony only against a codefendant.” Id.

at 206 (emphasis added). The Court based this holding in part

on “the almost invariable assumption of the law that jurors

follow their instructions . . . .” Id. (citations omitted). Thus,

the Court held that the redaction and limiting instructions

effectively prevented Williams from being a “witness against”

Marsh, and therefore the protections of the Confrontation

Clause were not at issue. 

Gray also addressed a confession by one defendant in a

joint trial. Gray, 523 U.S. at 188. The redacted admission of

Gray’s co-defendant (Bell) was introduced into evidence and

a limiting instruction was given. Id. at 188-89. However, the

redaction merely “substitut[ed] for the defendant’s name in

the confession a blank space or the word ‘deleted.’ ” Id. at

188. There the Court held that “[t]he blank space in an obviously redacted confession also points directly to the defendant, and it accuses the defendant in a manner similar to

Evans’ use of Bruton’s name or to a testifying codefendant’s

accusatory finger.” Id. at 194. Thus, the confession fell

“within the class of statements to which Bruton’s protections

apply.” Id. at 197. Therefore, the Supreme Court implicitly

held that Bell’s confession made Bell a witness against Gray,

entitling him, under Bruton, to confront Bell. 

MASON v. YARBOROUGH 5111
Read properly, Bruton, Richardson, and Gray all address

the question of when an admission by one defendant can be

considered a “witness” against another defendant. In the case

before us, however, there cannot be any doubt against whom

the evidence was introduced, as Mason was the only defendant on trial. If Fenton’s redacted statement had been entered

into evidence, he unquestionably would have been a “witness

against” Mason. Here, because Fenton’s statement was made

to the police during the course of interrogation, it would

clearly be testimonial, see Crawford, 541 U.S. at 52, and, if

admitted into evidence, would require an opportunity for

cross-examination, regardless of whether any hearsay exceptions applied. Id. at 68-69. This is not the case, however,

because Fenton’s statement (redacted or otherwise) was never

entered into evidence. 

Because Mason was tried separately, Bruton, Richardson,

and Gray do not apply. Any evidence produced at trial was

introduced against Mason. Because Fenton did not “bear testimony” of any kind against Mason, he was a “witness[ ]

against” Mason. As such, the protections of the Confrontation

Clause are not at issue, and the state courts did not unreasonably apply Supreme Court precedent in holding as much. 

If Fenton had been a witness against Mason, however, neither redaction nor a limiting instruction could have relieved

the state of its obligation to provide Mason an opportunity to

cross-examine Fenton. The majority’s application of Richardson would appear to be squarely at odds with Crawford by

potentially allowing testimonial statements to be admitted

without cross-examination against a defendant tried separately, as long as the statement was not facially incriminating.

III.

Because Fenton did not “bear testimony,” he was not a

“witness[ ] against” Mason, and hence the protections of the

Confrontation Clause do not apply. This should be the end of

5112 MASON v. YARBOROUGH
the analysis. The majority errs in relying upon Bruton, Richardson, and Gray, which do not apply to this appeal as Mason

was tried alone. Mason’s claim must stand or fall on whether

Fenton was a witness against him. 

Because I agree that the district court properly denied

habeas relief, I concur in the judgment.

MASON v. YARBOROUGH 5113