Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

MEMORANDUM^* 

John and Joseph Kasparoff appeal their convictions for conspiracy to defraud the government, in violation of 18 U.S.C. § 371, making a false statement on a matter within federal jurisdiction, in violation of 18 U.S.C. § 1001, and submitting a false claim to the government, in violation of 18 U.S.C. § 287. We affirm their convictions.

* The Kasparoffs' sole claim on appeal is that their rights under the Confrontation Clause were violated by the admission at their joint trial of redacted statements made by Harold Geyer, a nontestifying codefendant.

* The Kasparoffs argue that the admission of Geyer's redacted testimony constituted error under Bruton v. United States, 391 U.S. 123 (1968).¹  Bruton holds that "a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant." Richardson v. Marsh, 481 U.S. 200, 207 (1987) (citing Bruton, 391 U.S. at 135-136). We review this question de novo. United States v. Yarbrough, 852 F.2d 1522, 1536 (9th Cir.), cert. denied, 488 U.S. 866, 109 S. Ct. 171, 102 L. Ed. 2d 140 (1988).

The Kasparoffs allege that Bruton error occurred in two respects. First, they argue that Super K and the Kasparoffs were so closely linked in the eyes of the jury that any reference to the former was necessarily a reference to the latter, and was therefore "facially incriminating" within the meaning of Bruton. Second, John Kasparoff argues that the redaction of Geyer's testimony failed to satisfy Bruton since his references to "other people [who] were going to cooperate" and " [getting] the least of anyone in the whole situation" (emphasis added) implicitly incriminated the Kasparoffs. We disagree with both contentions.

Under the narrowing construction given it in Marsh, Bruton properly applies only where the nontestifying codefendant's confession " 'expressly implicat [es]' " the defendant or is " 'powerfully incriminating.' " Id. at 208 (quoting Bruton, 391 U.S. at 124 n. 1, and at 135). As we noted in United States v. Yarbrough, "Bruton does not require that all extrajudicial statements or confessions not be used in a joint trial. Rather, only those statements that 'clearly inculpate' the defendant or are 'powerfully incriminating' implicate the 'Bruton rule.' " 852 F.2d 1522, 1537 (9th Cir.) (citing Marsh, 481 U.S. at 208), cert. denied, 488 U.S. 866, 109 S. Ct. 171, 102 L. Ed. 2d 140 (1988). In that situation, it is doubtful that "the jury can possibly be expected to forget [the confession] in assessing the defendant's guilt." Marsh, 481 U.S. at 208.

Bruton is thus a "narrow exception" to the general rule that jurors follow their instructions. Id. at 207. It is inapplicable in cases where the confession is not "incriminating on its face," but becomes "so only when linked with evidence introduced later at trial." Id. at 208. In those situations, "it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, [but] there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton [ ]." Marsh, 481 U.S. at 208. Consistent with this view of Bruton, the Marsh Court went on to hold that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to her existence." Id. at 211 (footnote omitted).

We hold that neither Geyer's general references to Super K nor his specific allusion to "what was going on at Super K" violated Bruton since any reference to the Kasparoffs, by name or otherwise, had been completely redacted; the Kasparoffs were therefore never "expressly implicate [d]." See Marsh, 481 U.S. at 211; Yarbrough, 852 F.2d at 1537 (statement totally redacted to prevent reference to codefendants does not violate Bruton) . The fact that the Kasparoffs were closely associated with Super K does not suggest a different result. References to Super K could only incriminate them if the jury considered evidence other than that contained in the statements themselves, such as the Kasparoffs' control over Super K or their alleged involvement in the fraudulent billings. Marsh makes clear that this is an insufficient basis for a Bruton violation. 481 U.S. at 208; see also United States v. Sherlock, 865 F.2d 1069, 1080 (9th Cir. 1989) (no Bruton error where statement does not implicate defendant unless linked with other evidence introduced at trial). Any risk of Bruton error was further minimized by the thorough and repeated admonitions the district judge gave the jury, instructing them that the statements could be used only against Geyer. See Marsh, 481 U.S. at 211; Yarbrough, 852 F.2d at 1537 (instructions to jury support finding of no Bruton error).

We also reject John Kasparoff's argument that Geyer's references to "anyone," and "other people" violated Bruton since they are "symbol [s] or neutral pronouns" that implicated the Kasparoffs. First, neither of these terms, in the context in which they were used, were substituted for the Kasparoffs. Second, even if they had been, they were not "facially incriminating," and thus did not run afoul of Bruton. See Marsh, 481 U.S. at 208; United States v. Vasquez, 874 F.2d 1515, 1518 (11th Cir. 1989) (" [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.") (footnote omitted), cert. denied, 110 S. Ct. 845, 107 L. Ed. 2d 840 (1990).² 

B

As a second basis for his Confrontation Clause claim, Joseph Kasparoff alleges that Geyer's statements do not meet the criteria for admission of a coconspirator's hearsay statement set forth in Dutton v. Evans, 400 U.S. 74 (1970). Dutton and its progeny, however, address the use of hearsay declarations against another codefendant or coconspirator. Since the government in this case offered Geyer's statements against Geyer alone, and the jury was instructed to use them only for that purpose, Dutton is inapplicable.

C

John Kasparoff argues that the district court abused its discretion in denying his in limine motion to exclude the Geyer statements and a motion for a new trial based upon those admissions. In the absence of a Bruton error, both motions were meritless and were properly denied by the trial court.

II

The Kasparoffs' convictions are AFFIRMED.