United States Court of Appeals

For the First Circuit

No. 07-1534

UNITED STATES OF AMERICA,

Appellee,

v.

ANGEL ZAMORA CRUZ-DÍAZ,

Defendant, Appellant.

No. 07-1535

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ ALFREDO AYALA-COLÓN,

Defendant, Appellant.

 

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

 Torruella, Lipez and Howard,

Circuit Judges.

Juan F. Matos De Juan for appellant José Alfredo AyalaColón.
Raymond Rivera Esteves for appellant Angel Zamora Cruz-Díaz.

Mariana E. Bauzá, Assistant United States Attorney with whom

Rosa Emilia Rodriguez-Vélez, United States Attorney and Nelson

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate

Division, were on brief for appellee.

December 18, 2008
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HOWARD, Circuit Judge. After a six-day trial, a jury

convicted Angel Zamora Cruz-Díaz (Cruz) and José Alfredo AyalaColón (Ayala) of conspiring to rob a federally insured bank, 18

U.S.C. § 371 (Count 1), aiding and abetting a bank robbery by use

of a dangerous weapon, 18 U.S.C. § 2113(a), (d) (Count 2), and

aiding and abetting the use of a firearm during and in relation to

a crime of violence, here, a bank robbery, 18 U.S.C. § 924(c)(1)(A)

(Count 3). The district court sentenced Cruz to 183 months'

imprisonment and Ayala to 168 months' imprisonment. Both Cruz and

Ayala appeal their convictions.

Cruz presents three claims. First, he argues that

insufficient evidence supported his conviction for aiding and

abetting the use of a firearm during a crime of violence. He

contends that the government failed to adduce evidence sufficient

to prove that he carried a "real" firearm as required by § 924(c).

Cruz's second and third claims allege prosecutorial misconduct and

erroneous jury instructions.

Ayala presents only one claim, arguing that the court

erred when it admitted his codefendant's out-of-court statement

into evidence. This error, he contends, violated his Sixth

Amendment Confrontation Clause rights. After review of these

claims, we affirm both convictions.
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I. Facts

The facts stated here, which are relevant to Cruz's

sufficiency claim, are presented in the light most favorable to the

jury's verdict. United States v. Cruz-Rodríguez, 541 F.3d 19, 25

(1st Cir. 2008). We add more facts where necessary to our

discussion of the other appellate claims.

On February 17, 2006, two armed men entered a bank in

Puerto Rico shouting, "This is a robbery!" One of the men, later

identified as Cruz, proceeded to the bank's front counter and

demanded the tellers put money in a large, black plastic bag. The

other man, later identified as Ayala, shepherded bank employees to

the front of the bank. Four bank employees testified that Cruz

carried a gun. Collectively, these four employees described the

gun as a "silver," "shiny," "nickel plated" "pistol." Two bank

employees testified that Ayala carried a gun as well, with one

describing it as a "nickel plated," "short barreled" "pistol" and

the other describing it as a "silver handgun."

The tellers complied with Cruz's demand, placing money

inside the bag. After receiving the money, Cruz and Ayala exited

the bank, having been inside between one and two minutes. 

The police received information that Cruz and Ayala were

traveling in a red Mazda. Shortly thereafter, police officers

discovered an abandoned car matching this description. Near the

car, they found Cruz and Ayala. A search of the area yielded a
 The bank's loss was estimated at $45,410.16. 1

 Cruz claims that he moved for a judgment of acquittal on Count 3 2

and that, as a result, the de novo standard of review applies. The

record, however, is clear that Cruz's Rule 29 motion was directed

at Counts 1 and 2. In any event, as our analysis below indicates,

Cruz's sufficiency claim would fail even under the more searching

de novo standard.

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black plastic bag containing money from the bank. A search of 1

the red Mazda produced a bullet casing on the passenger's seat.

The bullet casing corresponded with a nine-millimeter Luger brand

bullet or cartridge. No guns, however, were ever found.

At trial, in addition to introducing testimony from bank

employees and police officers, the government introduced a bank

surveillance video. The video showed Cruz and Ayala entering the

bank brandishing guns. The jury found both defendants guilty on

all three counts. We first address the claims presented by Cruz.

II. Discussion

A. Cruz

1. Sufficiency claim

Because Cruz failed to move for a judgment of acquittal

on Count 3 -- for aiding and abetting the use of a firearm during

a bank robbery -- we review his sufficiency claim for plain error

only. See United States v. Díaz, 519 F.3d 56, 63 (1st Cir. 2008).2

Under the plain error standard, we will not reverse unless the

allowing the conviction to stand would result in a "clear and gross
 Where preserved, we review a sufficiency claim de novo. Under 3

that standard, we examine the evidence, both direct and

circumstantial, in the light most favorable to the prosecution and

decide whether that evidence, including all plausible inferences

drawn therefrom, would allow a rational factfinder to conclude

beyond a reasonable doubt that the defendant committed the charged

count or crime. See United States v. Fenton, 367 F.3d 14, 18 (1st

Cir. 2004). 

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injustice." United States v. Pratt, 496 F.3d 124, 127 (1st Cir.

2007) (internal quotations omitted).3

Cruz's sufficiency claim focuses on the definition of

"firearm." He starts with the premise that a conviction under 18

U.S.C. § 924(c), requires proof that the defendant used a "real"

firearm when committing the predicate offense. See United States

v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995) (noting that "a toy or

a replica will not do") (quotation omitted). For purposes of §

924(c), a firearm is defined as: 

(A) any weapon (including a starter gun) which

will or is designed to or may readily be

converted to expel a projectile by the action

of an explosive; (B) the frame or receiver of

any such weapon; (C) any firearm muffler or

firearm silencer; or (D) any destructive
 Destructive device is further defined as: 4

(A) any explosive, incendiary, or poison gas -- (i) bomb,

(ii) grenade, (iii) rocket having a propellant charge of

more than four ounces, (iv) missile having an explosive

or incendiary charge of more than one-quarter ounce, (v)

mine, or (vi) device similar to any of the devices

described in the preceding clauses; (B) any type of

weapon (other than a shotgun or a shotgun shell which the

Attorney General finds is generally recognized as

particularly suitable for sporting purposes) by whatever

name known which will, or which may be readily converted

to, expel a projectile by the action of an explosive or

other propellant, and which has any barrel with a bore of

more than one-half inch in diameter; and (C) any

combination of parts either designed or intended for use

in converting any device into any destructive device

described in subparagraph (A) or (B) and from which a

destructive device may be readily assembled. 

Id. § 921(a)(4).

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device. Such term does not include an antique 4

firearm." 

18 U.S.C. § 921(a)(3). 

Armed with this definition, Cruz argues that no

reasonable jury could conclude that he used a "real" firearm in the

robbery. He points to two pieces of evidence to support this

argument. First, one of the bank employees who testified that Cruz

carried a gun later testified on cross-examination that he was not

a "gun inspector" and admitted that he could not tell whether the

gun Cruz carried was real or a toy. Second, Cruz notes that he

confessed to an FBI agent that BB guns had been used in the

robbery.
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When analyzing Cruz's claim, we must keep certain

principles in mind. "Although § 924(c) requires proof that the gun

is real, the government's proof need not 'reach a level of

scientific certainty.'" United States v. Roberson, 459 F.3d 39, 47

(1st Cir. 2006) (citation omitted). Descriptive lay testimony can

be sufficient to prove that the defendant used a real gun. Id.

(citing United States v. Kirvan, 997 F.2d 963, 966-67 (1st Cir.

1993)); Taylor, 54 F.3d at 976 (concluding that the evidence was

sufficient to prove the gun was real where three eyewitnesses to a

bank robbery, who observed the object held by the defendant at

close range, testified that it was a gun).

We find no error at all here, much less plain error. The

record contains evidence, both direct and circumstantial,

sufficient to allow a reasonable jury to conclude that Cruz used a

real firearm during the robbery. The direct evidence included the

testimony of four bank employees. These employees testified that

Cruz held a gun, collectively describing the gun as a "silver,"

"shiny," "nickel plated" "pistol." These descriptions are

consistent with a conclusion that Cruz and Ayala used real guns.

In fact, they are nearly identical to the descriptions provided by

bank employees who testified in Kirvan. In that case in which one

of the witnesses described the item held by the defendant as a

"silver," "shiny," "handgun," we held that the government

introduced sufficient evidence that the gun used in the robbery was
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real. 997 F.2d at 966-67. Moreover, none of the witnesses in this

case, all of whom had ample time to view the gun, described it as

a BB or toy gun. See Taylor, 54 F.3d at 976. In addition to this

eyewitness testimony, the government also introduced a surveillance

video showing Ayala and Cruz entering the bank and holding what

appeared to be weapons. Although the videotape did not give the

jury the superior vantage point that the bank tellers had, this

additional evidence did allow the jurors to see for themselves what

the witnesses had observed. 

Finally, the jury also had circumstantial evidence to

draw upon in concluding that Cruz possessed a real firearm. Two

pieces of evidence stand out. First, the bank employees all

responded as if the guns held by both Cruz and Ayala were real,

complying with the requests made by the robbers. The jury could

have reasonably inferred, based on the reactions from the employees

in combination with the eyewitness testimony, that Cruz and Ayala

carried real firearms. Second, the police discovered a bullet

casing in the vehicle used by Cruz and Ayala that corresponded with

a real firearm. In our view, this circumstantial evidence, taken

together with the direct evidence recounted above, supported the

jury's verdict on Count 3. 

Our conclusion that sufficient evidence underlies Count

3 is not undermined by the evidence Cruz directs to our attention

-- a witness's expressed uncertainty regarding whether the gun Cruz
 The prosecutor stated: 5

And the evidence clearly shows on the video both

individuals were possessing firearms and the bank tellers

who they approached, as well as another person who

testified here said that without a doubt that those

individuals had firearms. 

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held was real and Cruz's alleged confession to an FBI agent that BB

guns were used in the robbery. The wavering testimony of the one

bank teller must be placed in context. Three other bank tellers

expressed no such uncertainty. As for Cruz's statement to the FBI,

it does not merit overturning the verdict. In addition to being

self-serving, the statement was never admitted into evidence.

2. Prosecutorial Misconduct

Cruz claims that the government committed prosecutorial

misconduct during its closing argument, warranting a new trial.

Specifically, he maintains that the prosecutor inaccurately

recounted the facts in the record and therefore prejudiced the

outcome of the case. 

Cruz focuses on the prosecutor's statement recapping the

testimony of various bank tellers. The prosecutor, Cruz notes,

told the jury that the bank tellers testified that Cruz and Ayala

carried "firearms." Cruz argues that this was inaccurate because 5

the tellers never used the term "firearms" in their testimony.

Rather, the tellers used the words "pistol" and "handgun" to

describe the objects held by Cruz and Ayala. The prosecutor's
 As was the case with his sufficiency claim, Cruz contends that he 6

preserved his claim of prosecutorial misconduct and that we should

review the prosecutor's statement de novo. After review of the

record, we disagree. 

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paraphrasing was prejudicial, Cruz contends, because "[n]ot all

handguns are firearms." 

Where an improper statement has been made, we typically

ask whether the statement "so poisoned the well" that a new trial

is merited. United States v. Carpenter, 494 F.3d 13, 23 (1st Cir.

2007). But because Cruz did not object to the prosecutor's

statement at trial, our review is only for plain error. United

States v. Vanvliet, 542 F.3d 259, 270 (1st Cir. 2008).6

We find no plain error. To begin, the prosecutor's

paraphrasing did not plainly result in a factual inaccuracy.

Although Cruz claims that "not all handguns are firearms," a

handgun, according to its dictionary definition, is "a firearm (as

a revolver or pistol) designed to be held and fired with one hand."

See Merriam-Webster's Collegiate Dictionary 525 (10th ed. 2001);

see also United States v. McKeeve, 131 F.3d 1, 14 (1st Cir. 1997)

("[A] comment by counsel in the course of jury summation that

merely recounts properly admitted testimony, accurately and without

embellishment or distortion, cannot constitute reversible error.")

(citation omitted)).

Moreover, the prosecutor's use of the word "firearm" did

not prejudice Cruz. The district court gave two instructions to
 We note that Cruz does not argue that the "without a doubt" 7

language in the prosecutor's closing argument was problematic.

Accordingly, this argument is waived. United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990).

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the jury that safeguarded against any potential prejudice. First,

the court emphasized that the prosecutor's closing argument was not

evidence. United States v. Bey, 188 F.3d 1, 8 (1st Cir. 1999)

(concluding that prosecutor's inaccurate recounting of evidence

during closing argument did not prejudice the defendant where "the

district court explicitly cautioned the jury that it could not

consider the arguments of counsel as evidence against [the

defendant]"); see also United States v. Brandao, 539 F.3d 44, 64

(1st Cir. 2008). And second, during jury instructions the court

related the legal definition of the word "firearm" to the jury.

So, however the prosecutor paraphrased the testimony of the bank

tellers, it was ultimately and clearly up to the jury to conclude

whether the guns used qualified as firearms.7

3. Jury instruction

Finally, Cruz claims that the court issued erroneous jury

instructions. Specifically, Cruz asserts that the court's failure

to define "dangerous weapon" when instructing the jury on Count 2

led the jury to believe that it could convict Cruz on Count 3 if it

found that Cruz used a "dangerous weapon" during the robbery. On

the contrary, he asserts, to convict him on Count 3 the jury had to

find that he used a "firearm." The difference between a "firearm"
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and a "dangerous weapon" is important, Cruz argues, because

although a BB gun or even a toy gun may qualify as a "dangerous

weapon" under 18 U.S.C. § 2113(d) (Count 2), neither would qualify

as a "firearm" under 18 U.S.C. § 924(c) (Count 3). Compare Kirvan,

997 F.2d at 966 (noting that, under § 924(c), "a toy or replica

will not do") (citation omitted) with United States v. Cannon, 903

F.2d 849, 854-55 (1st Cir. 1990) (concluding that, under § 2113(d),

a toy gun may qualify as a dangerous weapon).

Because Cruz did not object to the court's instructions

at trial, our review is again for plain error. United States v.

González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006) (observing that

this standard is "exceedingly difficult to satisfy in jury

instruction cases") (internal quotation marks omitted). In

assessing whether jury instructions were erroneous in the first

place, we review them as a whole to determine if they "adequately

explained the law or whether they tended to confuse or mislead the

jury on the controlling issues." Id.

We find no error in the court's instructions, much less

plain error. The court appropriately instructed the jury regarding

the definition of firearm. The court instructed the jury that, for

purposes of Count 3, the firearm count, it must find that Cruz used

a "firearm" during the robbery, and defined a firearm as "any

weapon which will or is designed to or may readily be converted to

expel a projectile by the actions of an explosive." In so doing,
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the court made plain to the jury that it could not convict Cruz on

Count 3 if it found that he used a toy gun or BB gun during the

robbery.

B. Ayala

We turn now to Ayala's sole claim. Ayala argues that the

court erred when it allowed an FBI agent to testify regarding an

out-of-court statement made to authorities by his codefendant,

Cruz. The court allowed the agent to testify about Cruz's

statement after Ayala's counsel, via cross-examination, questioned

a Puerto Rico police officer about the failure of the police to

pursue various investigatory options after it detained the two

defendants.

The agent, who was the "case agent" for the

investigation, explained that the FBI and Puerto Rico police failed

to pursue certain investigatory options because they believed they

had captured the right suspects. In doing so, the agent referred

to Cruz's out-of-court statement while testifying that:

I became aware at the time of the detention of

the two defendants that [Cruz] had stated to

[the officer] who gained custody of him, that

. . . 'the money is over there in a black bag,

we already threw away the weapons,' and

something to the effect of, 'we're screwed,

less than five minutes and they caught us.'

In Ayala's view, the court's decision to admit Cruz's

out-of-court statement into evidence violated his Confrontation

Clause rights as defined by the Supreme Court's decisions in
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Crawford v. Washington, 541 U.S. 36 (2004) and Bruton v. United

States, 391 U.S. 123 (1968). Ayala argues that the Court should

have avoided a Crawford or Bruton problem by either suppressing the

statement or severing his trial from Cruz's. We review this claim

de novo. United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir.

2008). 

"The Confrontation Clause guarantees a criminal defendant

the right 'to be confronted with the witnesses against him.'"

United States v. Rodríguez-Duran, 507 F.3d 749, 768 (1st Cir. 2007)

(quoting U.S. Const. amend. VI). Ayala says that his right of

confrontation has been infringed under both Crawford and Bruton.

As we explain more fully below, however, the admission of Cruz's

out-of-court statement offended neither Crawford nor Bruton for two

reasons. First, the statement was not offered for its truth --

that is, to prove that the money was in the bag, that they were

"screwed" or even that the defendants were the true culprits -- but

rather to explain why the FBI and police did not pursue other

investigatory options after apprehending the defendants. And

second, Ayala's trial strategy opened the door to the statement's

admission.

1. Crawford

We start with the Supreme Court's decision in Crawford,

which held that the Confrontation Clause prohibits the admission of

testimonial hearsay into evidence against the defendant unless the
 Both parties agree that Cruz's statement is "testimonial" in 8

nature.

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declarant is unavailable to testify at trial and the defendant had

a prior opportunity to cross-examine him. United States v. Earle,

488 F.3d 537, 542 (1st Cir. 2007) (citing Crawford, 541 U.S. at

68). It follows, then, that even where a declarant's out-of-court

statement is testimonial, the statement may nevertheless be 8

admitted into evidence if one of the following three circumstances

exists: (1) the statement is not hearsay in that it is being

admitted for a purpose other than establishing the truth of the

matter asserted; (2) the declarant testifies at trial; or (3) the

defendant had a prior opportunity to cross-examine the declarant

and the declarant is unavailable. United States v. Maher, 454 F.3d

13, 19-20 (1st Cir. 2006); see also Crawford, 541 U.S. at 53-54, 59

n.9.

In his Crawford-based confrontation clause argument,

Ayala presses two points: that the testimony was hearsay and, even

if the government offered a non-hearsay basis for admitting the

statement, that basis was pretextual.

First, Ayala contends that the court violated Crawford

because none of the circumstances noted above existed. The

government argues the contrary, contending that Cruz's statement

was not hearsay because it was not admitted to prove the truth of

the matter asserted.
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We agree that Cruz's confession was not hearsay. As

Federal Rule of Evidence 801(c) provides: "[h]earsay is a

statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the

matter asserted." Fed. R. Evid. 801(c). Out-of-court statements

offered not to prove the truth of the matter asserted but merely to

show context -- such as a statement offered for the limited purpose

of showing what effect the statement had on the listener -- are not

hearsay. United States v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001)

(noting a statement "offered to show the effect of the words spoken

on the listener (e.g., to supply a motive for the listener's

action)" is not hearsay) (citation omitted); see also United States

v. Castro-Lara, 970 F.2d 976, 981 (1st Cir. 1992); 4 Stephen A.

Saltzburg et al., Federal Rules of Evidence Manual § 801.02[1][f]

(9th ed. 2006) ("If a statement is offered for its effect on the

listener, in order to explain the listener's conduct, it does not

matter whether the declarant is telling the truth.").

Here, the government introduced Cruz's confession to

explain why the authorities cut short their investigation into the

robbery, specifically, why they did not take fingerprints or DNA

evidence from the red Mazda. The district court drove this point

home to the jury on two separate occasions. Prior to admitting the

statement, the court told the jury:

[The FBI agent] is going to testify as to

actions he took in his investigation of this
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case, based upon information he received. And

what I'm going to instruct you is that his

testimony concerning what he did, the actions

he took, because of information [he] had, is

not being presented to you to consider the

truthfulness of the defendant's statement in

any way whatsoever. You're instructed not to

consider the statement he's going to testify

about as evidence on any of the counts or

against the defendants of any of the counts

charged in the indictment.

Additionally, when issuing the final jury instructions,

the court emphasized that the jury was not to consider Cruz's

statement "for the truth of the matter asserted therein and . . .

must only consider it for the limited purpose of providing a

context for [the] decision not to send the fingerprint evidence to

the laboratory for processing."

We now turn to the second part of Ayala's Crawford

argument. He contends, citing Maher, 454 F.3d 13, that the

Crawford inquiry does not end merely because the government

advances a non-hearsay based justification for offering the

declarant's statement. Rather, we must satisfy ourselves that the

government's justification for offering the declarant's statement

is not pretextual. Pursuing this further, Ayala argues that the

record indicates that the government's purported non-hearsay based

justification for offering Cruz's confession masked an attempt to

circumvent Crawford. 

In Maher, we acknowledged that if the government needs

only to identify a non-hearsay based reason for introducing the
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statement it could circumvent Crawford's constitutional rule as

well as the hearsay rule. 454 F.3d at 22; see also United States

v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) ("Allowing agents to

narrate the course of their investigations, and thus spread before

juries damning information that is not subject to crossexamination, would go far toward abrogating the defendant's rights

under the sixth amendment and the hearsay rule."). Therefore, as

was the case in Maher, when an out-of-court statement is

purportedly offered into evidence as non-hearsay -- for example, to

provide context for police action or inaction -- we are concerned

about whether the stated purpose for introducing the evidence masks

an attempt to evade Crawford and the normal restrictions on

hearsay. Maher, 454 F.3d at 22-23 (noting that "[t]he dividing

line often will not be clear between what is true background to

explain police conduct (and thus an exception to the hearsay rule

and thus an exception to Crawford) and what is an attempt to evade

Crawford and the normal restrictions on hearsay" and warning

prosecutors against "back-door attempts" to get statements by nontestifying declarants before a jury). 

In this case, after analyzing how Cruz's confession came

to be admitted into evidence, we are satisfied that no pretext was

afoot and that the government did not attempt an end-run around

Crawford and the hearsay rules. 
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Cruz's confession was the subject of a suppression

hearing held in the midst of the trial. During this hearing,

Ayala sought to suppress the admission of Cruz's confession,

arguing that it created a potential Bruton problem. The prosecutor

informed both the court and the defendant that he did not intend to

introduce Cruz's confession in the government's case-in-chief. The

government did, however, reserve the right to present the

confession for purposes of rebuttal.

At trial, Ayala's counsel opened the door to the FBI

agent's testimony, pointedly cross-examining a police officer about

the decision not to pursue certain investigatory opportunities

after apprehending the defendants. Counsel focused on potential

fingerprint and DNA evidence the police could have gathered from

the red Mazda and sent for analysis. In total, Ayala's counsel

identified "eleven missed opportunities" to tie Cruz to the red

Mazda. Faced with this line of questioning, the government sought

to introduce the FBI agent's testimony to explain why the FBI and

police did not lift forensic evidence from the car. 

Ayala argues that the government's true motive in

admitting the agent's testimony was to march out Cruz's confession,

making Ayala guilty by association in the process. In support of

this argument, Ayala relies heavily on the fact that the government

introduced the substance of the confession rather then constructing

a less-prejudicial narrative. Specifically, he suggests that if
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the government merely wanted to explain why the FBI and police

failed to conduct a more thorough investigation it could have had

the agent testify in a manner that entirely avoided referencing

Cruz's confession. As an example, Ayala argues that the agent

could have testified that the government chose to truncate the

investigation "because of information [the agent had]."

We do not think the government's failure to present a

more sanitized narrative reveals a motive to undercut Crawford.

Given the tenor of Ayala's cross-examination about the authorities'

failure to investigate further, the use of the generalized

narrative Ayala suggests would have come at an unjustified cost to

the government. During cross-examination, Ayala's counsel painted

a picture of police and FBI ineptitude, observing that the

government missed eleven opportunities to tie Ayala to the car, and

thus, to the crime. Generalized testimony limited to an

explanation such as "we stopped investigating because of

information received," without any context, would not have

sufficiently rebutted Ayala's line of questioning. While there can

be circumstances under which Confrontation Clause concerns prevent

the admission of the substance of a declarant's out-of-court

statement where a less prejudicial narrative would suffice in its

place, this is not such a case.
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2. Bruton 

A Bruton claim arises in a narrower set of circumstances

than does a Crawford claim, specifically, involving the admission

of a non-testifying codefendant's out-of-court statement during a

joint trial for the purpose of proving the truth of the matter

asserted. See Tennessee v. Street, 471 U.S. 409, 413 (1985).

It is well established that a codefendant's out-of-court

statement is admissible against that codefendant as a "party

admission." Fed. R. Evid. 801(d)(2); United States v. Vega Molina,

407 F.3d 511, 519 (1st Cir. 2005). But that same statement is

inadmissible hearsay and raises Confrontation Clause concerns with

respect to another defendant being prosecuted in a joint trial.

Id. (citing Crawford, 541 U.S. at 51-52, 68). 

A trial judge may attempt to avoid any hearsay or

Confrontation Clause problems by instructing the jury not to

consider the statements against any defendant other than the

codefendant-declarant. Vega Molina, 407 F.3d at 510; see also

Richardson v. Marsh, 481 U.S. 200, 206 (1987) ("Ordinarily, 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.

This accords with the almost invariable assumption of the law that

jurors follow their instructions.") (citation omitted). As Bruton

holds, however, such a limiting instruction will not effectively
 Typically, courts allowing introduction of the co-defendant's 9

out-of-court statement seek to mitigate its inculpatory impact by

redacting from the statement "the [defendant's] name and any

reference, direct or indirect, to his or her existence." Molina,

407 F.3d at 519 (citing Marsh, 481 U.S. at 211).

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remedy hearsay and Confrontation Clause problems if the

codefendant's statement is "so powerfully inculpating of the other

defendants that there would be substantial doubt as to whether the

jury could abide by a limiting instruction." Vega Molina, 407 F.3d

at 519 (explaining further that a statement is "powerfully

inculpating" where it is "inculpatory on its face") (citing Bruton,

391 U.S. at 135-37).9

Importantly though, Bruton's conditional bar on the

admission of a codefendant's statement during a joint trial

operates on a key premise -- that the statement is being offered to

prove the truth of the matter asserted. See Street, 471 U.S. at

413. Where the codefendant's statement is not being offered to

prove the truth of the matter asserted, a court may, in certain

circumstances, admit the statement provided it gives a limiting

instruction explaining the limited purpose the statement serves.

Id. at 414; Furr v. Brady, 440 F.3d 34, 39 (1st Cir. 2006).

The Supreme Court's post-Bruton decision in Street is the

exemplar. In that case, the Court held that the district court's

admission of a non-testifying codefendant's out-of-court confession

did not raise a Confrontation Clause problem because of "[t]he

nonhearsay aspect of [the codefendant's] confession." Street, 471
-24-

U.S. at 414. The Court noted that the government offered the

confession "not to prove what happened at the murder scene but to

prove what happened when [Street, the defendant, later]

confessed."). Id. The Court went on to observe that the

government introduced the codefendant's confession to rebut

Street's testimony that his own confession was coerced and,

importantly, that no alternative short of admitting the

codefendant's statement along with the limiting instruction would

have served the government's interest. Id. at 415 (noting that the

confession could not be "edited to reduce the risk of jury misuse

without detracting from the alleged purpose for which the

confession was introduced") (quotation omitted).

This case fits comfortably within the rule of Street.

Here, as explained above, the district court admitted Cruz's outof-court statement not to prove the truth of the matter asserted

but to rebut Ayala's attempt to cast doubt on the integrity of the

government's investigatory efforts. The district court instructed

the jury as to the limited nature of the statement's admission.

And the government's interest in introducing the substance of the

confession, rather than a more sanitized narrative, was both

legitimate and strong.

III. Conclusion

For the reasons provided above, the convictions are

affirmed.

AFFIRMED.