UNITED STATES of America, Appellee, v. Benjamin Matthew LOGAN, Also Known as Matt Logan, Appellant, 210 F.3d 820

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 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, - U.S. -, 120 S.Ct. 548, 145 L.Ed.2d 426 (1999). We granted the government's petition for rehearing en bane 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, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which overturned a conviction because the trial court admitted, over the defendant's objection, a codefend-ant'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, 88 S.Ct. 1620. In Richardson v.

Marsh, 481 U.S. 200, 208-09, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), however, picking up on a hint dropped in Bruton, the Court approved the admission of a nontestifying 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, 107 S.Ct. 1702. 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, 107 S.Ct. 1702, 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 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, 107 S.Ct. 1702, 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, 107 S.Ct. 1702, quoting Marsh v. Richardson, 781 F.2d 1201, 1212 (6th Cir.1986), rev'd, Marsh, 481 U.S. at 200, 107 S.Ct. 1702. Indeed, the Court limited the Bru,ton, rule to "facially incriminating" confessions. Marsh, 481 U.S. at 211, 107 S.Ct. 1702.

We think that the Court's comment that any other rule "obviously lends itself to manipulation by the defense," id. at 209, 107 S.Ct. 1702, 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 Brutom 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, - U.S. -, 120 S.Ct. 1179, 145 L.Ed.2d 1086 (2000), - U.S. -, 120 S.Ct. 1180, 145 L.Ed.2d 1086 (2000); United States v.

Sherlin, 67 F.3d 1208, 1215-17 (6th Cir.1995), cert. denied, 516 U.S. 1082, 116 S.Ct. 795, 133 L.Ed.2d 744 (1996); 517 U.S. 1158, 116 S.Ct. 1548, 134 L.Ed.2d 650 (1996); United States v. Hoac, 990 F.2d 1099, 1105-07 (9th Cir.1993), cert. denied, 510 U.S. 1120, 114 S.Ct. 1075, 127 L.Ed.2d 392 (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, 111 5.Ct. 955, 112 L.Ed.2d 1043 (1991).

We think that it is important to bear in mind that Bratom 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 confession itself does not implicate the defendant. We become more firmly attached to this conviction when we recall that Braton, 391 U.S. at 135-37, 88 S.Ct. 1620, 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, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), where the Court reversed a conviction because a nontestifying code-fendant’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, 118 S.Ct. 1151, 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, 118 S.Ct. 1151, 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, 107 S.Ct. 1702, quoting Bruton, 391 U.S. at 135, 88 S.Ct. 1620, 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, 118 S.Ct. 1151, that we must consider “the kind of, not the simple fact of, inference” (emphasis deleted) that the relevant statement might give rise to. 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, 144 L.Ed.2d 117 (1999). We decline that invitation because that case involved the admissibility of a confession of a nontestifying codefend-ant 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.