United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 1998 Decided January 5, 1999
No. 97-3143
United States of America,
Appellee
v.
Mark A. Dickerson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(96cr00434-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the brief was A.
J. Kramer, Federal Public Defender.
Gregory G. Marshall, Assistant United States Attorney,
argued the cause for appellee. With him on the brief were
Wilma A. Lewis, United States Attorney, John R. Fisher,
Thomas J. Tourish, Jr., and Sima F. Sarrafan, Assistant
United States Attorneys.
Before: Silberman, Ginsburg, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Appellant was convicted of pos-
sessing a firearm as a convicted felon in violation of 18 U.S.C.
s 922(g)(1) (1994). He appeals his conviction on the ground
that the district court erroneously denied his request for a
jury instruction that his out-of-court statement could not be
used to convict him unless corroborated by substantial inde-
pendent evidence. We affirm the conviction.
I.
Appellant was driving his mother's minivan with two pas-
sengers in Southeast D.C. Officer John Cox noticed an
expired inspection sticker on the minivan and pulled appellant
over. Cox smelled burned marijuana when he approached
the minivan to ask for appellant's license and registration,
and observed what appeared to be loose marijuana on the
floorboard. Cox then called for back-up and ordered all three
individuals from the minivan. The officers discovered a gun,
within appellant's reach from the front seat, located in an
opening in the left wall of the passenger compartment where
a panel had been pried apart about two inches from the metal
frame of the minivan. Appellant was then handcuffed and a
more extensive search of the car uncovered next to the gun
an envelope addressed to "Mark" containing a birthday card
and a photograph of appellant and a woman, as well as
various correspondence marked for appellant in the "map
pocket" on the back of the front passenger seat. As the
officers led appellant from the scene, he asked why he had
been arrested. Upon being told that it was because of the
gun, he said that he had been "hijacked a couple of times,"
but also stated that he did not know the gun was in the
minivan.
The district court denied appellant's motion for a judgment
of acquittal at the close of the government's case. Before
trial, appellant requested that the court give "Redbook"
instruction 2.49, which tells the jury that the defendant
cannot be convicted solely on his own out-of-court statements
unless those statements are corroborated by "substantial
independent evidence of facts or circumstances which tend to
establish the trustworthiness of the statement."1 The district
court declined. Appellant was convicted and sentenced to 40
months of imprisonment.
Appellant challenges his conviction solely on the ground
that the district court erred in rejecting his proposed jury
instruction. He does not dispute that corroborative evidence
was presented--that appellant was driving his mother's car
and that the gun was within his reach and next to his
personal effects--but he claims that the jury was entitled to
decide if the corroborative evidence was sufficient. At cer-
tain points in his brief, appellant argues as if such an instruc-
tion is necessary in all cases involving a defendant's out-of-
court statements. Yet, in other places appellant asserts the
more narrow claim that where the evidence is so weak that
the jury was likely to disregard that evidence and convict
solely on the basis of an out-of-court statement, a corrobora-
tion instruction is required. The government responds that
there is no requirement to give such an instruction in all
cases, and that the district court properly exercised its discre-
tion not to issue an instruction in this case because there was
substantial independent evidence corroborating appellant's
statement.
II.
The Redbook instruction at issue in this appeal derives
from a trio of Supreme Court cases setting forth the federal
rule governing the use of a defendant's out-of-court state-
ments to convict. The rule covers both confessions and
admissions of facts that show essential elements of the crime.
The Court held in pre-Miranda cases that a conviction cannot
rest on a defendant's out-of-court statement made subsequent
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1 Instruction 2.49, Criminal Jury Instructions, Young Lawyers
Section, The Bar Association of the District of Columbia (4th ed.
1993).
to the crime, whether exculpatory or inculpatory, unless the
government produces substantial independent evidence which
would tend to establish the trustworthiness of the statement.
Opper v. United States, 348 U.S. 84, 92-93 (1954); Smith v.
United States, 348 U.S. 147, 155-56 (1954); United States v.
Calderon, 348 U.S. 160 (1954). The Court explained that the
purpose of the rule, which stemmed from common law, is to
prevent "errors in convictions based upon untrue confessions
alone," Smith, 348 U.S. at 153 (quoting Warszower v. United
States, 312 U.S. 342, 347 (1942)), and that the rule is sup-
ported by a "long history of judicial experience with confes-
sions and [by] the realization that sound law enforcement
requires police investigations which extend beyond the words
of the accused," id. Confessions, it was thought, may be
unreliable because of coercion or inducement and, although
involuntary confessions are excluded from the jury, a sepa-
rate corroboration rule is still necessary. That is because
voluntary statements may be unreliable if "extracted from
one who is under the pressure of a police investigation--
whose words may reflect the strain and confusion attending
his predicament rather than a clear reflection of his past."
The court noted empirical evidence of "false confessions
voluntarily made." Smith, 348 U.S. at 153; Opper, 348 U.S.
at 88.2
It is in the reasoning of these cases that appellant locates
an entitlement to a jury instruction as to the necessity of
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2 Judge Learned Hand doubted as early as 1918 whether the
corroboration rule "has in fact any substantial necessity in justice."
Daeche v. United States, 250 F. 566, 571 (2d Cir. 1918). Suffice it to
say that, post-Miranda, the need for the rule, especially insofar as
it protects against involuntary confessions, is even more questiona-
ble. See, e.g., 1 McCormick on Evidence s 145, at 563 & n.49 (4th
ed. 1992); Thomas A. Mullen, Rule Without Reason: Requiring
Independent Proof of the Corpus Delicti As a Condition of Admit-
ting An Extrajudicial Confession, 27 U.S.F. L. Rev. 385, 401-07
(1993) (discussing various rationales for rule and concluding that
"[i]n every case, the rationale proves too much while the ... rule
delivers too little"). Of course, doubtful though we are that the
Supreme Court would today rule as it did in 1954, we are bound by
those decisions.
corroborating that he had asserted what could be thought a
purpose in possessing the gun--to protect against hijacking--
which of course suggests that he actually possessed the gun.
We begin by dispensing with both appellant's and the govern-
ment's suggestion that there is a meaningful distinction be-
tween requiring a corroboration instruction in all cases and
requiring such an instruction in some, or "close," cases.3 As
we read the governing Supreme Court opinions, no defendant
can be convicted on the basis of an uncorroborated out-of-
court statement, whether that statement is used by the
prosecution to prove a formal element of the crime charged or
a fact subsidiary to proving an element of the crime. See
Smith, 348 U.S. at 155 ("It is the practical relation of the
statement to the Government's case which is crucial, not its
theoretical relation to the definition of the offense."). And if
the requested jury instruction tracks the corroboration re-
quirement, as appellant contends, an instruction theoretically
would be necessary in every case in which the prosecution
relies on a defendant's out-of-court statement. We do not see
a middle ground.
Implicit in appellant's argument is his contention that,
whatever the judge's role in determining the admissibility of
such a statement, the jury must ultimately decide whether
the statement is corroborated as if corroboration were a
separate element of the crime. Although we have decided a
number of corroboration cases without confronting this argu-
ment, see, e.g., United States v. Johnson, 589 F.2d 716, 718-
19 (D.C. Cir. 1978); Smoot v. United States, 312 F.2d 881,
884-85 (D.C. Cir. 1962); Bray v. United States, 306 F.2d 743,
746 (D.C. Cir. 1962), appellant is not the first to advance it.
One of the leading evidence treatises advocates the same
position, see 7 John Henry Wigmore, Evidence in Trials at
Common Law s 2073, at 530-31 (James H. Chadbourn rev.
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3 In this connection, we reject the government's argument that
the standard of review for the latter position is abuse of discretion.
We review all alleged failures to submit a jury instruction de novo,
see Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir.
1993), and review for abuse of discretion only when the challenge is
to the language of the instruction.
1978) ("The judge's ruling [is] provisional only, preliminary to
allowing the case to go to the jury; they in their turn must
conclude, without reference to the judge's ruling, whether the
corroboration exists to satisfy them.") (emphasis in original),
and it has been adopted by one of our sister circuits, see
United States v. Marshall, 863 F.2d 1285, 1288 (6th Cir.
1988), a former member of this court in dissent, see Bowles v.
United States, 439 F.2d 536, 545 n.8 (D.C. Cir. 1970) (Bazelon,
C.J., dissenting) (noting that "[c]onsideration of the 'confes-
sion' is complicated by the fact that the trial judge failed to
instruct the jury" pursuant to the Redbook corroboration
instruction), and state supreme courts applying the common
law rule which Opper and Smith adopted and modified, see,
e.g., People v. Reade, 191 N.E.2d 891, 893-94 (N.Y. 1963).
We disagree with appellant. We agree generally with the
First Circuit, see United States v. Singleterry, 29 F.3d 733,
736 (1st Cir. 1994), that the jury need not be separately
instructed on the issue for it is akin to other admissibility
issues, and therefore the trial judge alone decides whether
the corroboration test has been met. The corroboration rule
is undeniably, in part, a rule governing the admissibility of a
defendant's out-of-court statements, see Opper, 348 U.S. at 90
(comparing out-of-court statements to hearsay because nei-
ther have the "compulsion of the oath nor the test of cross-
examination"); Singleterry, 29 F.3d at 737; Smoot, 312 F.2d
at 884. And it is well settled that preliminary facts relating
to the admissibility of evidence are questions for the court
and not for the jury. See Lego v. Twomey, 404 U.S. 477, 489-
90 (1972). There is, moreover, nothing exceptional about a
court deciding a question such as corroboration or trustwor-
thiness without the jury, and in other contexts such decisions
are routine. See, e.g., United States v. Laing, 889 F.2d 281,
287 (D.C. Cir. 1989) (cautionary accomplice instruction unnec-
essary where court first concludes that the accomplice testi-
mony is materially corroborated); Fed. R. Evid. 804(b)(3)
(confession by non-accused that exculpates the accused is not
admissible unless "corroborating circumstances clearly indi-
cate the trustworthiness of the statement"). There is no
reason to think that courts are any less equipped to identify
the "substantial independent evidence" necessary for corrobo-
ration.
To be sure, the corroboration requirement has also been
described as a rule governing the sufficiency of the evidence.
See Warszower, 312 U.S. at 347-48; Singleterry, 29 F.3d at
738; United States v. Bukowski, 435 F.2d 1094, 1106 n.7 (7th
Cir. 1970). Although the Opper Court did liken the rule to an
admissibility requirement, see Opper, 348 U.S at 90, it also
noted that the statement--without corroboration--was com-
petent evidence. And in the two companion cases the Court
assumed that the statements without corroboration were ad-
missible, see Smith, 348 U.S. at 155; Calderon, 348 U.S. at
161. The Court's treatment of the issue has caused some
confusion, but we think the Court created something of a
hybrid rule having elements both of admissibility and suffi-
ciency. Although the statement would normally be admissi-
ble under rules of evidence, because of ancient common law
concerns, more is required before the trial judge can allow
the case to go to the jury. Still, that does not mean that the
jury's role is modified.
We think it telling that in each of the Supreme Court's
principal corroboration cases, the Court resolved the corrobo-
ration question on its own without any mention at all of the
necessity of jury reconsideration. See Opper, 348 U.S. at 92-
94; Smith, 348 U.S. at 150-59; Calderon, 348 U.S. at 161-69.
The Court treated corroboration essentially as a duty im-
posed upon courts to ensure that the defendant is not convict-
ed on the basis of an uncorroborated out-of-court-statement.4
If the Court thought the jury played a necessary supplemen-
__________
4 The court in Singleterry did note however that an otherwise
admissible out-of-court statement under Opper may be inadmissible
under Fed. R. Evid. 403 if its probative value is substantially
outweighed by the danger of unfair prejudice. See Singleterry, 29
F.3d at 738-39. We agree with the First Circuit that the district
court may have a "continuing duty to police the jury's consideration
of a confession's probative value," a duty that is discharged by the
court's own reconsideration of its corroboration decision or through
a cautionary instruction to the jury to treat even a corroborated
tary role in making the corroboration determination, the
Court certainly could not have affirmed the convictions based
solely on its own judgment that sufficient corroborative evi-
dence existed, without first considering whether the jury had
been instructed to do the same. In this light, appellant's
observation that the Court described the rule as a "restriction
on the power of the jury to convict," Smith, 348 U.S. at 153, is
hardly persuasive. After all, the requirement for sufficient
evidence to convict is itself a limitation on the jury's power,
but no one thinks it follows from this that the jury must be
given an opportunity to reconsider for itself the judge's
decision on a motion for judgment of acquittal.
Although we think the Court's actual application of the rule
in the Opper trio is decisive, we note that none of the
authorities cited above in support of jury reconsideration
attempt to justify that position. We agree with the First
Circuit that no persuasive justification exists. See Singleter-
ry, 29 F.3d at 738; see also D'Aquino v. United States, 192
F.2d 338, 357 (9th Cir. 1951); State v. Weller, 644 A.2d 839,
841-42 (Vt. 1994); Watkins v. Commonwealth, 385 S.E.2d 50,
55 (Va. 1989); McCormick s 145, at 564. Indeed, the Su-
preme Court rejected a similar argument for jury reconsider-
ation even where a constitutional right (the Fifth Amendment
right not to be convicted based on an involuntary confession)
was at stake, dispensing with the notion that juries are
somehow better suited than judges to make the determina-
tion. See Lego, 404 U.S. at 489-90. It follows a fortiori that
jury reconsideration is not required where the protection
stems from a judicially created evidentiary rule. We think it
also fairly obvious that one of the main purposes of the
corroboration rule, upon which appellant relies heavily in his
brief--protecting the defendant from a jury too credulous to
evaluate confessions objectively, see Smith, 348 U.S. at 153--
is ill-served, indeed disserved, by asking the jury to deter-
__________
out-of-court statement critically. Id. We emphasize, however, that
these kinds of supervisory decisions lie within the district court's
discretion. See United States v. Lee, 506 F.2d 111, 120 (D.C. Cir.
1974).
mine for itself whether a confession is trustworthy enough to
consider. See Corey J. Ayling, Comment, Corroborating
Confessions: An Empirical Analysis of Legal Safeguards
Against False Confessions, 1984 Wis. L. Rev. 1121, 1140-41;
Developments in the Law--Confessions, 79 Harv. L. Rev. 938,
1081-82 (1966).5
None of this precludes the jury from independently assess-
ing the weight it wishes to attribute to the out-of-court
statement. See Lego, 404 U.S. at 486 ("[J]uries [are] at
liberty to disregard confessions that are insufficiently corrob-
orated or otherwise deemed unworthy of belief."); Singleter-
ry, 29 F.3d at 739. The jury's role is not to reconsider the
judge's corroboration determination under Opper, but rather
to determine for itself whether an out-of-court statement,
though meeting Opper's requirement, is sufficiently trustwor-
thy to convince the jury, in conjunction with any other
evidence, of the defendant's guilt beyond a reasonable doubt.
We think that the standard reasonable doubt instruction is
adequate to inform the jury of this role. See id.; D'Aquino,
192 F.2d at 357. In so holding, we follow the Court's
cautionary advice that "application [of the rule] should be
scrutinized lest the restrictions it imposes surpass the dan-
gers which gave rise to them." Smith, 348 U.S. at 153.6
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5 The proposed corroboration instruction is quite different,
therefore, from the cautionary instruction sometimes required in
cases involving accomplice testimony. A defendant can be convict-
ed solely on the basis of an uncorroborated accomplice's testimony.
Lee, 506 F.2d at 118. We have held that, in certain circumstances,
it may be error for a district court to decline to instruct the jury to
treat that kind of uncorroborated testimony with caution and to
scrutinize it with care. See id. Although there is a justifiable
worry that without such an instruction the jury will not consider the
possibility that the accomplice is trying to secure lenient treatment
through his testimony, see id. at 119, we do not ask the jury to
determine for itself whether it should be allowed to convict based on
that testimony.
6 It is true that in the voluntariness context, Congress now
requires the district court, after concluding that a confession is
voluntary, to "permit the jury to hear relevant evidence on the issue
* * * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.
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of voluntariness and [to] instruct the jury to give such weight to the
confession as the jury feels it deserves under all the circumstances."
18 U.S.C. s 3501(a) (1994); Lego, 404 U.S. at 486 n.14. And courts
have held that it can be reversible error for a district court not to
give such an instruction. See United States v. Bernett, 495 F.2d
943, 962 (D.C. Cir. 1974); see also United States v. Iwegbu, 6 F.3d
272, 274 (5th Cir. 1993). We think the federal statute mandating an
instruction to the jury sufficiently distinguishes this situation from
the one at issue in this case. In any event, we note that such an
instruction is more akin to a credibility or cautionary instruction
than it is to the reconsideration instruction requested by appellant.