United States v. Peterson

140 F.3d 819, 98 Cal. Daily Op. Serv. 2349, 48 Fed. R. Serv. 1294, 98 Daily Journal DAR 3237, 1998 U.S. App. LEXIS 6444, 1998 WL 142341
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 31, 1998
DocketNo. 97-10128
StatusPublished
Cited by55 cases

This text of 140 F.3d 819 (United States v. Peterson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Peterson, 140 F.3d 819, 98 Cal. Daily Op. Serv. 2349, 48 Fed. R. Serv. 1294, 98 Daily Journal DAR 3237, 1998 U.S. App. LEXIS 6444, 1998 WL 142341 (9th Cir. 1998).

Opinion

TASHIMA, Circuit Judge:

Wayne Peterson appeals the district court’s denial of his motion for a new trial. Peterson was convicted of conspiring with a codefendant to distribute methamphetamine. The codefendant did not testify, but his confession was read into evidence at their joint trial. All references to Peterson had been redacted and replaced with “person X.” In light of Gray v. Maryland, — U.S. -, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), we reverse and remand for a new trial.

I. FACTUAL BACKGROUND

Peterson and his codefendant, Oscar Luna, were convicted of conspiracy to distribute methamphetamine. Oscar Luna had made several post-arrest statements to the government which directly implicated Peterson. Before trial, the prosecutor and Peterson’s counsel agreed to redact Peterson’s name from Oscar Luna’s post-arrest statements and replace it with “person X.” During dosing argument, the prosecutor argued that Peterson was “person X.” The prosecutor also read from a police report that had not been admitted into trial. After he was convicted, Peterson moved for a new trial.

The district court concluded that the prosecutor had erred in referring to Peterson during his closing argument as “person X,” but concluded that the Bruton error was harmless beyond a reasonable doubt. The court also concluded that reading from the unadmitted police report was harmless.

[821]*821II. STANDARD OF REVIEW

We review a district court’s denial of a motion for a new trial pursuant to Fed. R.Crim.P. 33 for an abuse of discretion. United States v. Young, 17 F.3d 1201, 1203 (9th Cir.1994). Alleged violations of the Confrontation Clause, however, are reviewed de novo. United States v. George, 960 F.2d 97, 99 (9th Cir.1992).

The denial of a motion for a new trial based on prosecutorial misconduct is reviewed for an abuse of discretion. United States v. Sayetsitty, 107 F.3d 1405, 1408 (9th Cir.1997). Peterson had the burden of showing that it is “more probable than not that the misconduct materially affected the verdict.” United States v. Hinton, 31 F.3d 817, 824 (9th Cir.1994) (citation omitted).

III. DISCUSSION

A. The Bruton Violation

In this case, there was clearly a Bruton violation. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court ruled that a defendant is deprived of his Sixth Amendment right of confrontation when a facially incriminating confession of a nontestifying eodefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. Id. at 126, 88 S.Ct. at 1622-23. The Court stated:

[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.

Id. at 135-36, 88 S.Ct. at 1627-28 (citations omitted).

In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176, (1987), the Court held that admission of a nontestifying codefendant’s confession mth a proper limiting instruction does not violate the Confrontation Clause, if the confession is redacted to eliminate not only the defendant’s name, but any reference to her or his existence. Id. at 211, 107 S.Ct. at 1709. In a footnote, the Court stated: “We express no opinion on the admissibility of a confession in which the defendant’s name has been replaced with a symbol or a neutral pronoun.” Id. at 211 n. 5,107 S.Ct. at 1709 n. 5.

After Richardson, we held that redacting a confession by replacing the defendant’s name with a neutral pronoun did not violate Bruton. United States v. Enriquez-Estrada, 999 F.2d 1355 (9th Cir.1993). We there agreed with the proposition that:

[T]he admission in a joint trial of a codefendant’s confession that is redacted to substitute a neutral pronoun or other general word for the name of the complaining defendant does not violate Bruton so long as the confession does not compel a direct implication of the complaining defendant.

Id. at 1359 (quoting United States v. Vasquez, 874 F.2d 1515, 1518 (11th Cir.1989)). In Enriquez-Estrada, the codefendant’s statements were redacted and the term “individuals” substituted for the name of the other two codefendants. The redaction read that “individuals,” not Jorge and Donald, were at a house under police surveillance “taking care of marijuana.” Id.

We read Gray v. Maryland to severely limit our holding in Enriquez-Estrada. In Gray, the Court held that redactions that replace a name with an obvious blank space, a word such as “deleted,” or a symbol or other obvious indication of alteration so closely resemble Bruton’s unredacted statements as to warrant the same legal results. — U.S. at-, 118 S.Ct. at 1152. The Court reasoned that a jury will often realize that such a redacted confession refers specifically to the defendant, and an obvious deletion may call the jurors’ attention specifically to the removed name and encourage speculation about the reference. Id. at-, 118 S.Ct. at 1152. The Court concluded that “Bruton’s protected statements and statements redacted to leave a blank space or some other similarly obvious alteration, func[822]*822tion the same way grammatically. They are directly accusatory.” Id.

The Court did note that redactions which do not lead to the inference that a specific person was named and the identity of that person protected through redaction may be appropriate. For example, in Gray, the question was “Who was in the group that beat Stacey?” The inappropriate redacted answer was read as: “Me, deleted, deleted, and a few other guys.” An appropriate redaction, the Court suggested, would have been: “Me and a few other guys.” Id. at -, 118 S.Ct. at 1157.

Gray clarifies that the substitution of a neutral pronoun or symbol in place of the defendant’s name is not permissible if it is obvious that an alteration has occurred to protect the identity of a specific person. Therefore, Enriquez-Estrada, to the extent it suggests the contrary, has been overruled by Gray.

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140 F.3d 819, 98 Cal. Daily Op. Serv. 2349, 48 Fed. R. Serv. 1294, 98 Daily Journal DAR 3237, 1998 U.S. App. LEXIS 6444, 1998 WL 142341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-peterson-ca9-1998.