U.S. v. Washington, s. 90-3075

• Citation: 952 F.2d 1402,293 U.S.App. D.C. 208
• Decision Date: 27 February 1992
• Docket Number: 90-3077,Nos. 90-3075,s. 90-3075
• Parties: , 34 Fed. R. Evid. Serv. 1190 UNITED STATES of America v. Stephen WASHINGTON, Appellant. UNITED STATES of America v. Christopher JONES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1402

952 F.2d 1402

293 U.S.App.D.C. 208, 34 Fed. R. Evid. Serv. 1190

UNITED STATES of America v. Stephen WASHINGTON, Appellant.

UNITED STATES of America v. Christopher JONES, Appellant.

Nos. 90-3075, 90-3077.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 25, 1991.

Decided Dec. 27, 1991.

Rehearing and Rehearing En Banc

Denied Feb. 27, 1992.

Appeals from the United States District Court for the District of Columbia (89cr00406-05 & 89cr00406-04).

Richard Seligman (appointed by the Court), for appellants in 90-3075 and 90-3077.

Christian Camenisch and Lee H. Karlin were on the brief, for appellant in 90-3075.

Robert A. De La Cruz, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., were on the brief, for appellee.

Before SILBERMAN, D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN. SILBERMAN, Circuit Judge.

Appellants Stephen Washington and Christopher Jones were convicted in a joint trial for drug crimes arising out of their participation in an attempted sale of cocaine to undercover officers. ¹ Both challenge the district judge's decision to allow limited testimony regarding Washington's post-arrest statement. Washington claims that the testimony was improperly restricted because material in his statement that tended to exculpate him was excluded. Jones, on the other hand, asserts that the same testimony about the statement, which allegedly inculpated Jones, violated his Sixth Amendment confrontation right because Washington did not testify and could not be cross-examined. Jones also challenges the admission of out-of-court statements made by Louis Sedgwick, another participant in the offense who did not testify. We reject each of these claims and affirm the judgment of the district court.

I.

The government introduced evidence that two Drug Enforcement Administration special agents arranged with Sedgwick to purchase several ounces of crack cocaine. When the agents arrived at the designated meeting place, Sedgwick and his girlfriend Antoinette Thompson were present. A short time later, Jones pulled up in a Suzuki Sidekick with Washington in the passenger seat. The defendants spoke briefly with Sedgwick and then drove away. Sedgwick told one of the agents, "That's the guy. They're going to get it. They'll be back in ten minutes." The defendants indeed returned within ten minutes, parking across the street from the undercover car. Washington got out of the Suzuki and approached the agents' car. He asked Sedgwick to have the buyers move to another street and returned to the Suzuki when the agents refused. Back in the Suzuki, both Washington and Jones were seen pointing toward surveillance cars parked further down the street. Sedgwick then walked up to the Suzuki and, after further discussion with its occupants, reached into the Suzuki and returned to the undercover car with a brown paper bag that contained three ounces of crack cocaine. At that point the Suzuki pulled away. As it passed by one of the surveillance vehicles, Jones and Washington were seen looking closely at the agent inside. Arrest signals went out, and Jones, Washington, Sedgwick, and Thompson were taken into custody. Jones was searched and found to be in possession of a beeper; a search of the Suzuki recovered a driver's license, insurance registration, and beeper bill with Jones' name on them. Washington, too, was searched and discovered to be holding $350 (which he later claimed to be keeping for a friend) and four small plastic bags of crack cocaine (which he later asserted Jones had given him for accompanying Jones to the attempted sale).

At trial the government called special agent Rick Whisenhunt to testify regarding a post-arrest statement that Washington made to him. The government proposed to omit from direct examination certain parts of Washington's statement in order to avoid incriminating Jones, and the district judge accepted this proposal. Washington's lawyer then advised the court that he planned to cross-examine Whisenhunt about omitted information that tended to exculpate Washington. This material would allegedly support Washington's claims that he did not help to arrange the deal, hesitated to complete it, and acted only on instructions from others at the crime scene. The district judge ruled that Washington's lawyer could bring out this information as long as he avoided "implicating" Jones.

During cross-examination of Whisenhunt, the jury learned, inter alia, that Washington expressed hesitation about the deal, that he refused to transfer the cocaine, and that he only got out of the Suzuki because someone else told him to do so. Jones' lawyer objected to this line of questioning on the ground that it tended to inculpate Jones, even though Jones had not been referred to by name. When the district judge admonished Washington's counsel to exercise caution, Washington's counsel requested severance in order to permit him to elicit Washington's statement to Whisenhunt that Jones had picked him up at a playground near the crime scene at about three o'clock in the afternoon and invited him to go for a ride. The request was denied, as were requests for severance made by counsel for both defendants at the close of Whisenhunt's testimony.

II.

Washington argues that the district judge precluded him from placing before the jury exculpatory parts of his post-arrest statement in violation of his Sixth Amendment confrontation right, his Fifth Amendment right to due process, and the rule of completeness. The argument is unpersuasive because Washington was able to present the allegedly exculpatory material during cross-examination. ² The district judge essentially prevented Washington only from naming Jones, a limitation that was designed to protect Jones and that did not materially affect Washington's defense. See United States v. Tarantino, 846 F.2d 1384, 1400 (D.C.Cir.) (per curiam) (upholding restriction on cross-examination to avoid unfair prejudice to codefendant when the probative value of the excluded evidence was slight), cert. denied, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988).

We do not think, therefore, that Washington was denied " 'a meaningful opportunity to present a complete defense.' " Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984)). And redaction of a confession violates the rule of completeness only if the redacted version "distorts the meaning of the statement or excludes information substantially exculpatory of the defendant." United States v. Kaminski, 692 F.2d 505, 522 (8th Cir.1982). Whisenhunt testified to all of the substantially exculpatory portions of Washington's statement. Indeed, substantially inculpatory information--such as Washington's admission that Jones paid him in cocaine for his participation in the deal--was never introduced. If selective use of the statement distorted its meaning at all, the distortion appears to have been in Washington's favor.

III.

Jones raises the more difficult argument. He relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1986)--which held that a defendant is deprived of his Sixth Amendment confrontation right when he is incriminated by the introduction of a nontestifying codefendant's confession at their joint trial--to argue that Whisenhunt's testimony regarding Washington's statement violated his Sixth Amendment rights. Jones points to Whisenhunt's testimony on cross and redirect that Washington said that "an individual who was at the scene requested that he transfer the brown paper bag," that "others at the scene urged him to give the drugs to somebody else," that Washington only got out of the Suzuki "at the insistence of others who were at the scene," that "he hesitated or ... was directed to get out," and that "those drugs were in the truck before [Washington] ever got into that Suzuki." Jones also claims that the district judge erred in not immediately cautioning the jury to consider this testimony only against Washington.

There can be no dispute that Whisenhunt's testimony concerning Washington's statement tended to incriminate Jones. But Bruton, particularly as it was subsequently interpreted in Richardson v Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), applies only to a codefendant's statement that "expressly implicat[es]" the defendant. Bruton, 391 U.S. at 124 n. 1, 88 S.Ct. at 1621 n. 1. Such evidence is thought to be so incriminating that it constitutes an exception to the general proposition that a judge's limiting instruction will prevent any improper use of the statement by the jury. Id. at 135-36, 88 S.Ct. at 1627-28. As Richardson made clear, the Bruton exception is a narrow one; it applies only to "facially incriminating" confessions that by definition " 'powerfully incriminat[e]' " the defendant and that can be distinguished from statements that become incriminatory only when linked with other evidence introduced at trial. Richardson, 481 U.S. at 207-08, 107 S.Ct. at 1707-08 (quoting Bruton, 391 U.S. at 135, 88 S.Ct. at 1627). Because jurors are more likely able to obey an instruction to disregard evidence "[w]here the necessity of such linkage is involved," id. 481 U.S. at 208, 107 S.Ct. at 1708, Richardson held that constitutional requirements are met when the nontestifying codefendant's statement is "redacted to eliminate not only the defendant's name, but any reference to his or her existence," and a proper limiting instruction is given. Id. at 211, 107 S.Ct. at 1709.

The Court, however, reserved the question presented here: whether a redacted statement that uses a "symbol or neutral pronoun" ³ rather than the defendant's name may be introduced (even though it still can be said to refer to the defendant's existence). Id. at 211 n....