United States v. Briscoe
896 F.2d 1476 (1990)
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Rule of Law:
The admission of a non-testifying co-defendant's confession that does not facially incriminate the defendant by name, and only becomes incriminating when linked with other evidence, does not violate the defendant's Sixth Amendment Confrontation Clause rights under Bruton v. United States.
Facts:
- Based on wiretap information, DEA agents arrested Adekunle Adefuye and three female couriers, Sherifat Usman, Fadeke Bello, and Aderemi Adefuye, at O'Hare International Airport in Chicago.
- The three couriers were taken to a hospital where x-rays revealed that each woman had a foreign object in her pelvic area.
- After agents stated they had a court order, Bello and Usman each removed an egg-shaped object containing heroin from their vaginas.
- Following the removal of the packages, Bello made a statement to United States Customs Inspector Mary McCarthy.
- Bello stated: 'We were given tickets in Lagos [Nigeria] to go to New York. We did not carry this through U.S. Customs. Three other females carried it. We were only to bring this from New York to Chicago.'
- At their joint trial, where Bello did not testify, Inspector McCarthy recounted Bello's statement to the jury.
- Usman's counsel objected to the admission of the statement, arguing it implicated Usman and violated her Sixth Amendment right to confront witnesses.
Procedural Posture:
- A federal grand jury returned a second superseding indictment charging twenty-five individuals, including defendants Sherifat Usman and Fadeke Bello, with various federal narcotics violations.
- Usman and Bello, along with thirteen other defendants, were tried jointly before a jury in U.S. District Court (trial court).
- During the trial, the court admitted co-defendant Bello's post-arrest statement over an objection from Usman's counsel that it violated her Sixth Amendment confrontation rights.
- The court denied Usman's subsequent motion for a mistrial.
- The jury returned a verdict finding Usman and Bello guilty of conspiracy and possession with intent to distribute heroin.
- Fourteen convicted defendants, including Usman and Bello, filed a consolidated appeal to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does the admission of a non-testifying co-defendant's post-arrest statement, which uses the pronoun 'we' to refer to a group that includes the defendant, violate the defendant's Sixth Amendment Confrontation Clause rights under Bruton v. United States?
Opinions:
Majority - Judge Coffey
The admission of the co-defendant's statement does not violate the defendant's Confrontation Clause rights. A co-defendant's statement that does not directly implicate the defendant does not trigger the Bruton rule. Here, Bello's statement did not name Usman and the reference to 'we' was not considered a direct implication, as it could have referred to Bello and Aderemi but not necessarily Usman. The court reasoned that the statement was not 'powerfully incriminating' on its face because it did not concede knowledge of the heroin, which was the central disputed issue. It only became incriminating when 'linked' with other evidence, which, under Richardson v. Marsh, does not constitute a Bruton violation. Finally, even if admitting the statement was an error, it was harmless given the other substantial evidence of Usman's guilt, including testimony that she had been a courier on prior smuggling trips.
Concurring - Judge Cudahy
While agreeing with the ultimate outcome of affirming the conviction, Judge Cudahy believed the admission of the co-defendant's statement did violate the defendant's Confrontation Clause rights. The pronoun 'we' was not neutral and served the same function as naming Usman, as it was clear to the jury who 'we' referred to. The statement was facially incriminating because it ascribed knowledge and intent to Usman. The majority erred by engaging in a case-by-case assessment of how 'powerfully incriminating' the statement was in light of other evidence, an approach rejected by the Supreme Court in Cruz v. New York. The proper test is whether the implication is facial, which it was here. However, the constitutional error was harmless because Bello's statement was merely cumulative of other properly admitted evidence that overwhelmingly established Usman's guilt.
Analysis:
This decision clarifies the Seventh Circuit's application of the Bruton rule, establishing a high bar for what constitutes a facially 'powerfully incriminating' statement from a non-testifying co-defendant. The court's holding reinforces the principle from Richardson v. Marsh that a statement is not inadmissible simply because it becomes incriminating when linked with other trial evidence. The split between the majority and concurrence highlights the ongoing judicial tension over how to treat confessions that use pronouns or other indirect references, with the majority favoring a narrower interpretation of Bruton that requires a more direct, explicit implication of the defendant.
