United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2839

___________

United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the District

Benjamin Matthew Logan, Also * of Minnesota.

Known as Matt Logan, *

*

Appellant. *

___________

Submitted: January 14, 2000

Filed: April 24, 2000

___________

Before WOLLMAN, Chief Judge, and HEANEY, McMILLIAN, RICHARD S.

ARNOLD, BOWMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD

ARNOLD, and MURPHY, Circuit Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Benjamin Matthew Logan appealed from convictions for conspiracy, see 18

U.S.C. § 371, selling firearms without a license, see 18 U.S.C. § 922(a)(1)(A),

§ 924(a)(1)(D), the interstate transportation of stolen firearms, see 18 U.S.C. § 922(j),

§ 924(a)(2), making false statements in firearms transaction records, see 18 U.S.C.

§ 924(a)(1)(A), armed robbery, see 18 U.S.C. § 1951, and using a firearm in a crime
-2-

of violence, see 18 U.S.C. § 924(c). A panel of our court affirmed all of the

convictions except those for armed robbery and using a firearm in a crime of violence;

the panel reversed the latter two convictions on the ground that Mr. Logan's sixth

amendment rights of confrontation were violated during his trial. See United States v.

Al-Muqsit, 191 F.3d 928, 941-45 (8th Cir. 1999), vacated, No. 98-2839 (8th Cir.

Nov. 23, 1999), cert. denied, 120 S. Ct. 548 (1999). We granted the government's

petition for rehearing en banc to consider a single point, viz., whether, in the

circumstances of this case, Mr. Logan was denied his rights under the confrontation

clause when a nontestifying codefendant's statement was admitted into evidence. We

conclude that Mr. Logan's rights were not violated and we therefore affirm the two

remaining convictions.

I.

Mr. Logan's complaint about the way that his trial was conducted centers on the

manner in which the trial court admitted the confession of Zachary Roan, Mr. Logan's

codefendant and alleged accomplice in an armed robbery and a murder. A detective

was allowed to testify that Mr. Roan said that he planned and committed the relevant

robbery with "another individual." Despite the fact that the trial court instructed the

jury not to use the statement as evidence of Mr. Logan's involvement, Mr. Logan

maintains that he was denied his sixth amendment rights of confrontation because

Mr. Roan did not testify.

In support of his contention, Mr. Logan directs our attention to Bruton v. United

States, 391 U.S. 123, 126 (1968), which overturned a conviction because the trial court

admitted, over the defendant's objection, a codefendant's statement that he and the

defendant had committed an armed robbery. The Court held in that case that an

instruction to the jury to disregard the statement to the extent that it implicated the

defendant insufficiently safeguarded the defendant's confrontation rights. Id. at 135-36.

In Richardson v. Marsh, 481 U.S. 200, 208-09, 211 (1987), however, picking up on

a hint dropped in Bruton, the Court approved the admission of a nontestifying
-3-

codefendant's confession that was redacted to eliminate any reference to the defendant's

existence. The Court held that so long as a proper cautionary instruction is given to the

jury, if the confession itself does not implicate the defendant, the fact that it might do

so in light of other evidence introduced at the trial is of no moment. See id. at 208. 

Here, Mr. Logan asserts that replacing his name with the phrase "another

individual" somehow ineluctably led the jury to conclude that he was the person meant.

He says this, evidently, for two reasons. The first is that another confession of

Mr. Roan's was admitted during the trial before the detective testified, and in it

Mr. Roan refused to name his accomplice. Mr. Logan maintains that because in the

redacted statement Mr. Roan said that he committed the crimes with "another

individual," and since there was no reference to a refusal to name the accomplice, the

jury would infer that a name (namely, Mr. Logan's) was purposely redacted from the

second statement.

We are unable to follow the logic of this argument. There is no inconsistency

between a statement that includes a refusal to name an accomplice and a statement that

"another individual" committed a crime. A refusal to name an accomplice necessarily

presupposes the existence of "another individual." Since the two statements are

perfectly consistent, we see no reasonable possibility that a jury would infer that

Mr. Roan had named his accomplice in the second statement but that the name had

been redacted from that statement.

Mr. Logan's second contention is equally meritless. He argues that because he

took the stand and admitted that he was present at the robbery and the murder but

maintained that he was coerced, the redacted confession took on added evidentiary

meaning and pointed a finger directly at him. We see the logic of the argument, but we

think that it is expressly foreclosed by Marsh. Although the Court in Marsh, 481 U.S.

at 211 n.5, reserved ruling on the case in which the defendant's existence is adverted

to in some anonymous way, as, for instance, by replacing "the defendant's name ... with
-4-

a ... neutral pronoun," we think that the principles on which Marsh was decided provide

clear guidance on how to resolve the instant difficulty. 

In deciding Marsh, 481 U.S. at 209, the Court expressly rejected the proposition

that the admissibility of the relevant confession was to be judged by "assess[ing] [its]

'inculpatory value' by examining not only the face of the confession, but also all of the

evidence introduced at trial," id. at 205-06, quoting Marsh v. Richardson, 781 F.2d

1201, 1212 (6th Cir. 1986), rev'd, Marsh, 481 U.S. at 200. Indeed, the Court limited

the Bruton rule to "facially incriminating" confessions. Marsh, 481 U.S. at 211. We

think that the Court's comment that any other rule "obviously lends itself to

manipulation by the defense," id. at 209, effectively deals with Mr. Logan's complaint

that to accept the government's argument in this case would penalize him for raising the

defense of coercion and would deter others from doing the same.

In holding that the admissibility of a confession under Bruton is to be determined

by viewing the redacted confession in isolation from the other evidence admitted at

trial, we simply adhere to a view that several of our cases have long since adopted.

See, e.g., United States v. Jones, 101 F.3d 1263, 1270 (8th Cir. 1996), where we

explained that "there is no violation where the confession implicates the defendant only

when linked to other evidence." Numerous opinions from our sister circuits support

this view of the law. See, e.g., United States v. Verduzco-Martinez, 186 F.3d 1208,

1212-15 (10th Cir. 1999); United States v. Lage, 183 F.3d 374, 387-88 (5th Cir. 1999),

cert. denied, 2000 WL 197669, 2000 WL 197670 (U.S. Feb. 22, 2000); United States

v. Sherlin, 67 F.3d 1208, 1215-17 (6th Cir. 1995), cert. denied, 516 U.S. 1082, 517

U.S. 1158 (1996); United States v. Hoac, 990 F.2d 1099, 1105-07 (9th Cir. 1993),

cert. denied, 510 U.S. 1120 (1994); United States v. Williams, 936 F.2d 698, 700-01

(2d Cir. 1991); and United States v. Vogt, 910 F.2d 1184, 1191-92 (4th Cir. 1990),

cert. denied, 498 U.S. 1083 (1991). We think that it is important to bear in mind that

Bruton turned on an uneasiness about the jury's ability to heed a cautionary instruction,

and we are not uneasy about the efficacy of such an instruction when the relevant
-5-

confession itself does not implicate the defendant. We become more firmly attached

to this conviction when we recall that Bruton, 391 U.S. at 135-37, recognized that it

was establishing an exception to the general rule that courts presume that juries follow

the instructions that trial courts give them. 

We think, moreover, that the circumstances here serve to distinguish our case

significantly from Gray v. Maryland, 523 U.S. 185, 188 (1998), where the Court

reversed a conviction because a nontestifying codefendant's statement was admitted

after being redacted by substituting a blank or the word "deleted" for the defendant's

name. We see, first of all, a difference in kind. The confession in Gray, 523 U.S. at

194, had quite obviously been redacted, a circumstance that the Court found pointed

a finger directly at the defendant. In our case, by contrast, there was no indication

whatever that there had been a redaction: Mr. Roan's statement was an oral one, and

the detective simply testified that Mr. Roan said that "another individual" had been in

on the planning and commission of the offense. For all the jury knew, these were

Mr. Roan's actual words, not a modified version of them.

Then there is the matter of degree. In Gray, 523 U.S. at 188-89, 192, the

redacted written statement (with blanks for the defendant's name) was admitted into

evidence and a witness also read the statement into evidence, saying the word "deleted"

each of the four separate times that he encountered a blank. By contrast, in our case,

the allegedly offending phrase occurred only once, and then only in the mouth of a

witness, not in the less ephemeral and potentially more damaging form of a writing.

This is simply not the kind of statement that is so " 'powerfully incriminating,' " Marsh,

481 U.S. at 208, quoting Bruton, 391 U.S. at 135, that it requires us to abandon the

normal presumption, already alluded to, that juries follow their instructions. In so

holding, we remain faithful to the admonition in Gray, 523 U.S. at 196, that we must

consider "the kind of, not the simple fact of, inference" (emphasis deleted) that the

relevant statement might give rise to.
1Subsequent to the trial, Roan changed his name to Abdul Wahid Al-Muqsit. For

the sake of clarity, I refer to him by the name he used during the crimes and trial.

2

It should be noted that Logan was previously tried for murder by the state of

Minnesota for the same course of conduct. He was acquitted. This federal prosecution

followed.

-6-

Finally, Mr. Logan urges us to hold that our case is controlled by the recent

Supreme Court decision of Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887 (1999).

We decline that invitation because that case involved the admissibility of a confession

of a nontestifying codefendant who implicated the defendant by name, and the Court

rejected the argument that the unredacted statement, admitted as a statement against the

declarant's penal interest, did not violate the defendant's confrontation rights. Id., 119

S. Ct. at 1896-99 (plurality opinion). Our case involves a redacted confession and its

admissibility or not continues to be determined by the principles outlined in Bruton, as

the Court itself noted in Lilly, 119 S. Ct. at 1896 (plurality opinion).

II.

For the reasons indicated, we affirm Mr. Logan's convictions for armed robbery

and for using a firearm in a crime of violence. We also reinstate the earlier panel

opinion to the extent that it is not inconsistent with this opinion.

HEANEY, Circuit Judge, with whom McMILLIAN, RICHARD S. ARNOLD, and

HANSEN, Circuit Judges, join, dissenting.

I believe that this case presents a clear Bruton violation, that the error here is not

harmless, and, therefore, I would reverse the district court.

Benjamin Matthew Logan was tried jointly with Zachary Aaron Roan,1 Karl

Kimpton, and Dennis Kermit Michels on federal charges2 of conspiracy, robbery, use

and carrying of a firearm during a crime of violence, unlicensed dealing in firearms, and
-7-

transportation and receipt of stolen firearms. These charges arose out of the trafficking

of illegal guns from Minnesota to Chicago. Logan, with no prior criminal history, was

convicted and sentenced to 45 years of imprisonment, primarily for the robbery

conviction.

At the defendants' trial, the district court permitted Detective Walsh to testify

that Roan had confessed to committing the robbery of Lloyd's Gun Shop with Logan.

Walsh substituted the words “another individual” or “the other individual” for Logan's

proper name when he testified to Roan's confession. 

On appeal, a panel of this court affirmed Logan's convictions for conspiracy,

unlicensed dealing in firearms, and transportation and receipt of stolen firearms. The

panel reversed his convictions for robbery and for use and carrying of a firearm in a

crime of violence, finding these convictions were based on evidence admitted in

violation of Logan's constitutional rights. See United States v. Al-Muqsit, 191 F.3d

928, 945 (8th Cir. 1999). The panel reviewed the United States Supreme Court's

opinions in 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), and held that Logan's

Sixth Amendment right to confrontation was violated because the minor redactions in

Roan's confession were entirely useless in protecting Logan's rights under the

Constitution. I see no reason to depart from the panel opinion. Indeed, upon further

review I am convinced the panel was correct.

The seminal case on the admissibility of a nontestifying defendant's confession

when it incriminates a codefendant is Bruton v. United States, 391 U.S. 123 (1968).

In Bruton, two defendants, Evans and Bruton, were tried jointly for armed postal

robbery. Although Evans did not testify at trial, a postal inspector testified that Evans

confessed that he and Bruton committed the robbery. At the end of the trial, the court

instructed the jury not to use Evans' confession as evidence of Bruton's guilt, despite

the fact that Evans named Bruton as his accomplice. See id. at 124-25, 134 n.10. The
-8-

Court held that in a joint trial, the admission of a nontestifying defendant's confession

that inculpates a codefendant violates the codefendant's Confrontation Clause rights.

“Despite the concededly clear instructions to the jury to disregard Evans' inadmissible

hearsay evidence inculpating [Bruton], in the context of a joint trial we cannot accept

limiting instructions as an adequate substitute for [Bruton]'s constitutional right of

cross-examination. The effect is the same as if there had been no instruction at all.”

Id. at 137. 

In Richardson v. Marsh, 481 U.S. 200 (1987), the Court again took up the issue

of the admission of one defendant's confession in a joint trial. The defendant's

confession in Marsh did not facially incriminate the codefendant, as it had been

redacted to omit any reference to the codefendant. The Court recognized the difference

between the case before it and Bruton: where Bruton involved a confession that was

unredacted and facially incriminated a codefendant, in Marsh, nothing in the confession

even alluded to the codefendant's existence. It was only through other evidence

introduced by the codefendant that she was linked to the confession. See id. at 203-04.

Holding that no violation occurred, the Court intimated that the proper inquiry in

considering Bruton issues was whether a defendant's confession incriminated a

codefendant on its face. See id. at 211.

Had Marsh been the last time the Court spoke on this issue, the majority's

opinion would be more persuasive. However, in concluding that “the admissibility of

a confession under Bruton is to be determined by viewing the redacted confession in

isolation from the other evidence admitted at trial,” ante at 4, the majority ignores the

tenets of Gray v. Maryland, 523 U.S. 185 (1998), a case with similar facts and the most

recent source of Supreme Court authority on this issue. 

In Gray, the issue was precisely the same one we take up, that is, whether a

nontestifying defendant's confession, redacted only to omit the codefendant's name, is

admissible in the joint trial of the defendant and the codefendant. The Gray Court held
-9-

that such a redaction violated Bruton, backing away from the narrow, “four-corners”

analysis that the majority now endorses. See id. at 195-96. In Gray, the codefendant's

name was replaced with a blank space. See id. at 192. The Court acknowledged that

Marsh appeared to place “outside the scope of Bruton's rule those statements that

incriminate inferentially,” and that “the jury must use inference to connect the statement

in this redacted confession with the defendant.” Id. at 195. However, as further stated

by the Court: 

inference pure and simple cannot make the critical difference, for if it did,

then [Marsh] would also place outside Bruton's scope confessions that use

shortened first names, nicknames, descriptions as unique as the redhaired, bearded, one-eyed man-with-a-limp, and perhaps even full names

of defendants who are always known by a nickname.

Id. (citation and internal quotations omitted). Marsh did not indicate that inference

itself is the critical point; rather, we are directed to consider “the kind of, not the

simple fact of, inference.” Id. at 196. If the redacted confession still leads the jury,

making ordinary inferences, directly to the codefendant, a Bruton violation has

occurred. See id.; United States v. Gonzalez, 183 F.3d 1315, 1322-23 (11th Cir.

1999) (finding Bruton violation where government redacted defendant's confession to

refer to codefendant only by description, even though description could only be verified

through other evidence); see also United States v. Long, 900 F.2d 1270, 1279-80 (8th

Cir. 1990) (concluding Bruton violation occurred when defendant's redacted statement

referred to codefendant only as “someone” but other evidence “led the jury straight to

the conclusion that 'someone' referred to [the codefendant]”).

In this case, there was an abundance of evidence linking Logan to Roan's

redacted confession. Unlike the defendant in Marsh, all reference to Logan was not

deleted. Rather, in relating the substance of Roan's confession, Detective Walsh
3

Indictments, of course, are not evidence. Thus, when the indictment linked

Logan to the confession, he was not being linked by other trial evidence, but rather by

the ordinary inferences a juror would be expected to make immediately upon hearing

the redacted confession. See Gray, 523 U.S. at 196.

-10-

consistently referred to Logan as “another individual” or “the other individual” instead

of using Logan's proper name. 

When Walsh referred to this “other individual,” it was clear he was talking about

Logan. At the very outset of Logan's joint trial, the district court informed the jury of

the nature of the indictments. Roan and Logan were the only defendants charged with

the robbery of Lloyd's Gun Shop. Therefore, when Walsh referred to “another

individual” who helped in the robbery, it was apparent even without other inferential

evidence3 that the mystery person was Logan; he was the only other person charged

with robbery. As such, a juror who “wonders to whom the [redaction] might refer need

only lift his eyes to [the codefendant] sitting at counsel table, to find what will seem the

obvious answer.” Gray, 523 U.S. at 193.

I find the redaction in Logan's case to be different from those we have

recognized as acceptable in the past. We have allowed the admission of a defendant's

confession in a joint trial where references to numerous actors were replaced by “we”

or “they.” See United States v. Edwards, 159 F.3d 1117, 1125-26 (8th Cir. 1998). In

Edwards, the redactions did not “lead the jury directly to a nontestifying declarant's

codefendant.” Id. at 1125. A similar situation was presented in United States v. Jones,

101 F.3d 1263 (8th Cir. 1996), where a codefendant's name was replaced with “we”

and “they.” There, we recognized that replacing proper names with pronouns may be

acceptable where the pronouns “could have referred to anyone or any group of

individuals acting with [the defendant],” and did not lead the jury directly to the

codefendant. Id. at 1270. Terms such as “we” or “they” are terms of indefinite number
4The government argues that such a policy would inevitably result in skewed

evidence. However, it must be remembered that but for the joint trial, the evidence

would not be admitted in the codefendant's trial at all. Thus, to the extent the evidence

-11-

and are more ambiguous than terms such as “another individual” or “the other

individual.”

Further, the majority's reliance on Jones, United States v. Williams, 936 F.2d 698

(2d Cir. 1991), United States v. Vogt, 910 F.2d 1184 (4th Cir. 1990), United States v.

Sherlin, 67 F.3d 1208 (6th Cir. 1995), and United States v. Hoac, 990 F.2d 1099 (9th

Cir. 1993), is misplaced. Each case was decided before the Supreme Court's decision

in Gray. To the extent that they stand for the proposition that a Bruton violation occurs

only when a nontestifying defendant's confession facially incriminates a codefendant,

Gray forecloses such a narrow analysis.

Finding a Bruton violation where Roan's confession was redacted to refer to

Logan as “another individual” or “the other individual” is consistent with recent

decisions of other circuits. “Clearly, the use of [the defendant]'s confession with the

word 'another' in place of [the codefendant]'s name falls within the class of statements

described in Gray as violative of Bruton.” United States v. Eskridge, 164 F.3d 1042,

1044 (7th Cir. 1998); see also United States v. Peterson, 140 F.3d 819, 822 (9th Cir.

1998) (holding Bruton violation occurred where defendant's confession was redacted

to refer to codefendant as “person X” because defendant was clearly “pointing an

accusatory finger at someone and it was not difficult for the jury to determine that that

person was the other defendant on trial”).

Marsh teaches that when Bruton issues loom, an acceptable way to reconcile

preference for joint trials with Bruton's constitutional mandate is to simply remove all

reference to the codefendant in the defendant's confession. See Marsh, 481 U.S. at

211. I adhere to this approach.4
is skewed, it is skewed so as to remain constitutionally admissible. If the government

finds such a circumstance untenable, it can opt to try the defendants separately. The

preference for judicial efficiency may not extend so far as to trample a defendant's

constitutional right to confront his accusers.

-12-

This case presents a clear Bruton violation. I continue to believe that the error

in admitting Roan's confession was not harmless, for the reasons stated in the panel

opinion. See United States v. Al-Muqsit, 191 F.3d 928, 943-45. I would reverse

Logan's convictions for robbery and for use and carrying of a firearm in a crime of

violence and remand for resentencing on the remaining convictions. Accordingly, I

respectfully dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.