Terry Brown v. Superintendent Greene SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 14-2655
________________

TERRY BROWN, a/k/a ANTONIO LAMBERT

v.

SUPERINTENDENT GREENE SCI;
DISTRICT ATTORNEY PHILADELPHIA;
ATTORNEY GENERAL PENNSYLVANIA

Terry Brown,
Appellant
________________

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-09-cv-03970)
District Judge: Honorable C. Darnell Jones, II
________________

Argued June 16, 2016

Before: AMBRO, KRAUSE, and NYGAARD, Circuit Judges

(Opinion filed: August 22, 2016)
Leigh M. Skipper
Chief Federal Defender
Brett G. Sweitzer
Assistant Federal Defender, Chief of Appeals
Arianna J. Freeman (Argued)
Assistant Federal Defender
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

Counsel for Appellant

Susan E. Affronti (Argued)
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney, Law Division
George D. Mosee, Jr.
First Assistant District Attorney
R. Seth Williams
District Attorney
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107

Counsel for Appellees

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 ________________

OPINION THE COURT
________________

AMBRO, Circuit Judge

This case has a familiar cast of characters: two co-
defendants, a confession, and a jury. And, for the most part, it
follows a conventional storyline. In the opening chapter, one
of the defendants (Miguel Garcia) in a murder case gives a
confession to the police that, in addition to being self-
incriminating, says that the other defendant (Antonio
Lambert1) pulled the trigger. When Lambert and Garcia are
jointly tried in Pennsylvania state court, the latter declines to
testify, thereby depriving the former of the ability to cross-
examine him about the confession. The judge therefore
redacts the confession in an effort to comply with Bruton v.
United States, 391 U.S. 123 (1968). As a result, when the jury
hears Garcia’s confession, Lambert’s name is replaced with
terms like “the other guy.” The idea is that the inability to
cross-examine Garcia is harmless if the jury has no reason to
think that the confession implicates Lambert.

During closing arguments, however, there is a twist
when the prosecutor unmasks Lambert and reveals to the
jurors that he has been, all along, “the other guy.” Now,
instead of a conclusion, we have a sequel. Based on a Sixth
Amendment violation caused by the closing arguments, we
conclude that Lambert is entitled to relief. We therefore

1
In the District Court, Lambert used the name Terry Brown.
However, at the time of the crime he went by Lambert, and he
uses that name in our Court.

3
remand so that the District Court can give Pennsylvania (the
“Commonwealth”) the option either to retry or release him.

I. Background

A. The crime

Mary Edmond2 was shot near a gas station in North
Philadelphia on February 23, 2001, and she died later that day
from her injuries. The police believed that Lambert pulled the
trigger as part of a robbery gone wrong. Earlier in the day,
Garcia and his friend Anthony Cheatham had been driving
around Philadelphia and smoking marijuana in Garcia’s
Monte Carlo. With Garcia at the wheel, the pair picked up
Lambert, and together the three of them drove to North
Philadelphia to buy Xanax pills. Afterward, they drove past
the gas station, and Lambert told Garcia to pull over. From
that point onward, two competing narratives emerge. One
comes from a statement that Cheatham gave the police after
the shooting coupled with his testimony at trial. The second is
from Garcia’s statement to the police, which is at the core of
this appeal. We examine each of the narratives in turn.

Cheatham’s version is that he fell asleep in the car
after taking a Xanax pill. When the trio reached the gas
station, he was “[l]aid back, stretched out” in the back seat.
Lambert and Garcia got out of the car, and although
Cheatham could not see them, he heard a gunshot. When
Lambert and Garcia returned to the car, the latter asked,
“What the fuck did you just do?” Lambert then pointed a gun
at Garcia and ordered him to drive away. Afterward, Lambert
and Garcia dropped Cheatham off at a friend’s house.
Detectives found Cheatham the next morning at his

2
The victim’s last name is spelled both “Edmond” and
“Edmund” in the record.

4
grandmother’s house, and he went with them to police
headquarters, where he was threatened with charges if he did
not cooperate. He gave a statement at that time and later
testified at the joint trial of Lambert and Garcia. He was not
charged in connection with Edmond’s death.

Garcia, meanwhile, had a different story, which he
outlined in a confession3 to the police. In his version, he
stayed in the car while Lambert and Cheatham got out and
approached the victim. Garcia saw a “tussle” and witnessed
the “lady . . . backing up holding her purse.” He continued,
“She yanked back, she resisted and I heard a gunshot.” When
the two companions got back in the car, Lambert said that he
had “banged the bitch” because she “wouldn’t give up her
pocketbook.” This was a preview of Garcia’s defense at trial,
which was that he was merely a bystander to the crime.

Whereas Cheatham’s account cut off shortly after the
shooting, when he got to his friend’s house, Garcia’s version
described additional events. After dropping off Cheatham,
Lambert went with Garcia to the latter’s house. Lambert
pulled out the gun and told Garcia that “you better not ever
cross me or snitch on me because you know what the deal is.”
Garcia understood this to mean that Lambert would kill him.

After seeing the gun, Garcia’s mother asked them to
leave. They drove away, and in the early hours of February 24
the two of them, along with another passenger (not

3
Following the lead of the Pennsylvania Supreme Court, we
style Garcia’s statement a “confession.” The statement was
self-incriminating because it established his presence at the
scene of the crime. We note, however, that it is not a typical
confession in that Garcia, as discussed below, intended it to
be exculpatory.

5
Cheatham), were pulled over. Garcia was driving and
attempted to flee, but the car crashed. According to Garcia,
Lambert threw him the gun and tried to escape on foot.
Garcia, now holding the weapon, attempted to do the same.
Shortly afterward, officers apprehended both of them.

B. The trial

The Commonwealth charged Lambert and Garcia with
murder (first degree for the former and second degree for the
latter), conspiracy, robbery, and possession of an instrument
of crime. It sought a joint trial in state court for the two
defendants, and Lambert responded with a motion to sever
(i.e., to have a separate trial for each defendant). At the time,
it was clear that the Commonwealth intended to use Garcia’s
confession and that the latter was planning to invoke his Fifth
Amendment rights by not testifying at trial. Lambert’s
counsel argued that the combined effect—the introduction of
the confession without any ability to cross-examine Garcia—
violated the Sixth Amendment’s Confrontation Clause.

The trial judge agreed that the Commonwealth could
not, under those circumstances, introduce a full version of
Garcia’s confession without violating the Confrontation
Clause. As discussed in Part III below, that would have been
a classic violation of the Supreme Court’s Bruton decision.
However, relying on other Supreme Court decisions
interpreting Bruton, the judge determined that the confession
could be redacted in a way that satisfied the Sixth
Amendment, thereby negating the need for separate trials.
Under Bruton, it is proper for the jury to consider the
confession against Garcia; it only becomes problematic to use
it against Lambert. If the confession were redacted so that the
jury did not know it implicated Lambert, the judge reasoned,
the risk of improper use could be contained. On that basis, the
judge denied the motion to sever.

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 With severance off the table, the parties discussed how
to implement the redactions. They ultimately settled on using
terms such as “the other guy,” “one of the guys,” or “the guy
with the gun” to replace Lambert’s name in the confession.4
At trial, a detective read to the jury the redacted confession,
which took the form of questions posed to Garcia and his
answers. Before the reading, the judge instructed the jurors
that the confession “may be considered as evidence only
against [Garcia]” and that they “must not consider the
statement as evidence against defendant Antonio Lambert.”
The following is, for our purposes, the key portion of what
the jury heard. The italicized phrases are replacements for
Lambert’s name.

Q: What happened next?

A: They got in the car and I said what the fuck
happened. One of the guys said I banged the
bitch . . . . She wouldn’t give up her pocketbook
or nothing, so I banged her. . . . I told the first
guy what the fuck, you didn’t tell me you had a
burner.
Q: What is a burner?

A: A gun.

Q: What kind of gun did the first guy have?

A: A .38. He showed it to me in my house after
he shot the lady. After he shot the lady we went
to my house and we went inside. He pulled it
out in the kitchen. I told him to put it away
because my peoples was [sic] there. My mom

4
Cheatham’s name was also replaced with generic identifiers.

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 told me to get the guy out of her house. We left
my house and drove down North Philly.

The disparities between the statements of Cheatham
and Garcia proved to be a delicate needle for the
Commonwealth to thread. It encouraged the jury to believe
Cheatham’s statement in its entirety and to credit all of
Garcia’s story except for the part where he remained in the
car during the shooting while the other two got out. During
closing arguments, when the prosecutor was attempting to
discredit Garcia’s insistence that he did not get out of the car
with Lambert, she made the following statement:

If Garcia had not been part of what happened,
how easy would it have been for him to drop
Lambert off, go home, tell his mother what
happened, pick up the phone and call the police
and say I was just with a guy who shot and
killed somebody? He doesn’t do that. What
does he do [sic] is this, he takes Lambert to his
house. They’re at his house and he says the guy
I’m with brings the gun into my house and I tell
him put it away because my people are there.

Defense counsel, believing that this statement had
effectively nullified one of the redactions and unmasked
Lambert as the person who accompanied Garcia home after
the shooting and pulled out the murder weapon, immediately
requested a sidebar, but the judge permitted closing
arguments to continue. After the prosecutor finished, defense
counsel moved for a mistrial, explaining:

The reason for [the] mistrial is Your Honor will
recall that the Court and counsel went through
painstaking efforts to properly redact Mr.
Garcia’s statement and one of the first things

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 [the prosecutor] did is whip it out and read from
it and tell the jury that Mr. Garcia took Mr.
Lambert back to his house with the gun and
read the entire portion of that statement
implicating Mr. Lambert as the other guy. In
fact, [she] told the jury that Mr. Lambert was
the other guy.

The judge denied the motion. Having lost his request for a
mistrial, defense counsel followed up by asking the judge to
instruct the jury to disregard the unmasking, but he later
abandoned the request after deciding that rehashing the
incident might reinforce in the jurors’ minds the idea that
Lambert was the other guy.5

Before sending the jury to deliberate, the judge
reiterated the instruction given before the redacted confession
was read into evidence: that it could only be used against
Garcia and must not be considered as evidence against
Lambert. Per defense counsel’s request, the judge did so
without calling attention to the slip-up during closing

5
The statement about Lambert going home with Garcia and
brandishing the gun was not the only time the prosecutor used
the confession against Lambert during closing arguments. At
another point, she said: “It’s an old ugly gun, but it worked. It
killed Mary Edmond. It did just what Antonio Lambert
wanted it to do. He managed to shoot her. Why? Because she
didn’t give up her pocketbook. She resisted it. And that’s
exactly what Mr. Garcia said in his statement.” As discussed
below, however, this second instance has not been a focus of
the post-trial litigation. As such, unless otherwise noted, all
references to comments by the prosecutor during closing
arguments pertain to the remarks about Lambert
accompanying Garcia home and pulling out the weapon.

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arguments. During deliberations, the jurors asked for a copy
of Garcia’s confession. Instead of giving it to them, the judge
had the court reporter read the redacted version. Ultimately,
the jury convicted Lambert on all counts. Meanwhile, it found
Garcia guilty of all charges except the weapon-related count.

C. Post-trial proceedings

Lambert appealed his conviction to the Pennsylvania
Superior Court. He argued that the trial judge erred by
denying the motion to sever and that, even if a joint trial were
proper, the comments in the closing arguments constituted
prosecutorial misconduct and deprived him of his
Confrontation Clause rights. A panel of the Court
unanimously agreed with both arguments and ordered a new
trial. The Commonwealth appealed to the Pennsylvania
Supreme Court, which reversed the Superior Court by a 3-2
vote.

In the Pennsylvania Supreme Court’s decision, the
majority rejected the argument that the trial judge was
required to grant Lambert’s motion to sever. It wrote that the
redactions obviated the need for separate trials because
Garcia’s confession “as redacted did not identify [Lambert],
or his role, at all.” Commonwealth v. Brown, 925 A.2d 147,
163 (Pa. 2007). On that basis, it determined that the jury
should be presumed to have obeyed the judge’s instructions to
use the confession as evidence only against Garcia.

Similarly, the majority disagreed with the Superior
Court’s conclusion that the prosecutor’s comments during
closing arguments made a new trial necessary. It agreed with
Lambert that “[t]here is no point in redacting and sanitizing
otherwise inculpatory statements of a non-testifying co-
defendant, to facilitate a joint trial, if that protective measure
approved by the [U.S. Supreme] Court to comport with the

10
Confrontation Clause could be deliberately and directly
undone by lawyer commentary.” Id. at 159. And the majority
stressed that it did “not condone the prosecutor’s
misstatement.” Id. at 160. However, it relied on the U.S.
Supreme Court’s decision in Frazier v. Cupp, 394 U.S. 731
(1969), to conclude that the trial judge’s instructions about
how the confession could (and could not be) used were
sufficient and that a new trial was not necessary. We discuss
Frazier, as well as the majority’s reliance on it, in detail in
Parts III and IV of this opinion.

In a dissent joined by then-Chief Justice Cappy, Justice
Baer wrote that the comments during closing arguments
violated the Confrontation Clause and that the jury should be
considered incapable of following the instructions not to use
the confession against Lambert. He wrote that a “defendant
is . . . deprived of his rights under the Confrontation Clause if
an otherwise effective redaction is corrupted by a
prosecutor’s comment[s].” Brown, 925 A.2d at 164 (Baer, J.,
dissenting). He noted that under Bruton Lambert would have
gotten a new trial (and the limiting instructions would have
been considered inadequate) if Garcia’s confession had been
read to the jury without redactions. Justice Baer concluded
that it would be anomalous to reach a different result when a
prosecutor undoes a redaction by revealing the identity of the
person whose name was removed. He admonished that “this
Court should not admit a violation of the fundamental right of
confrontation and cross-examination by means of a back-door
revelation, when Bruton so carefully guards the front door.”
Id. at 166.

After unsuccessfully seeking relief under
Pennsylvania’s Post Conviction Relief Act, Lambert filed a
pro se federal habeas petition in the District Court under 28
U.S.C. § 2254. He raised the severance and prosecutorial
misconduct arguments rejected by the Pennsylvania Supreme

11
Court, as well as a second prosecutorial misconduct claim and
certain claims of ineffective assistance of counsel. The Court
denied the petition. It rejected the arguments not presented to
the Pennsylvania Supreme Court (ineffectiveness of counsel
and the second claim of prosecutorial misconduct) on
procedural grounds. Meanwhile, it denied relief on the merits
on the two issues—severance and the first prosecutorial
misconduct claim—considered by the Pennsylvania Supreme
Court. We granted a certificate of appealability as to these
two claims and appointed counsel to represent Lambert.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.
§ 2254, and we have appellate jurisdiction per 28 U.S.C.
§§ 1291 and 2253. We exercise plenary review over the
District Court’s legal conclusions. Werts v. Vaughn, 228 F.3d
178, 191 (3d Cir. 2000).

Like that Court, our task is to review a state court
decision. As such, the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) also bears on our analysis.
Under AEDPA’s deferential standard of review, if a claim
was “adjudicated on the merits in State court proceedings,”
we can grant relief only if the state court decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” or “was based on an
unreasonable determination of the facts in light of the
evidence presented” in state court. 28 U.S.C. § 2254(d). The
decision that gets AEDPA deference is the “last reasoned
[one] of the state courts on the petitioner’s claims.” Simmons
v. Beard, 590 F.3d 223, 231–32 (3d Cir. 2009) (internal
quotation marks omitted). Here that is the Pennsylvania
Supreme Court’s reversal of the Superior Court’s judgment.
Because no facts are in dispute, the Pennsylvania Supreme

12
Court’s decision must stand unless it was “contrary to” or an
“unreasonable application of” clearly established federal law.

We can grant relief under the “contrary to” standard
only if “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). Meanwhile, a
decision from a state court “is an unreasonable application of
[the Supreme Court’s] clearly established precedent if it
correctly identifies the governing legal rule but applies that
rule unreasonably to the facts of a particular prisoner’s case.”
White v. Woodall, 134 S. Ct. 1697, 1706 (2014). In this
context, an “unreasonable application . . . must be objectively
unreasonable, not merely wrong; even clear error will not
suffice.” Id. at 1702 (internal quotation marks omitted).

Additionally, a state court applying Supreme Court
cases has no obligation to extend their rationales. Id. at 1706.
At the same time, “AEDPA does not require state and federal
courts to wait for some nearly identical factual pattern before
a legal rule must be applied.” Panetti v. Quarterman, 551
U.S. 930, 953 (2007) (internal quotation marks omitted).
Rather, “state courts must reasonably apply the rules squarely
established by [the Supreme] Court’s holdings to the facts of
each case.” White, 134 S. Ct. at 1706 (internal quotation
marks omitted). In determining whether they have done so,
we are guided by the specificity of the Supreme Court rule
they are applying. Under that metric, the “more general the
rule, the more leeway [state] courts have in reaching
outcomes in case-by-case determinations.” Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004).

Even if we conclude that a state court decision is
improper under these standards, we must also examine

13
whether the error was harmless. An error-infected state court
conviction can stand on habeas review if the mistake did not
have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Bond v. Beard, 539 F.3d 256,
276 (3d Cir. 2008) (quoting Brecht v. Abrahamson, 507 U.S.
619, 637 (1993)) (internal quotation marks omitted). Because
the Pennsylvania Supreme Court denied relief on the merits
without addressing harmlessness, there is no ruling on that
subject to which we must defer. As a result, our harmlessness
review is plenary. See Davis v. Ayala, 135 S. Ct. 2187, 2198
(2015); Fry v. Pliler, 551 U.S. 112, 121–22 (2007).

III. Bruton and Its Progeny

The Sixth Amendment guarantees a criminal defendant
the right “to be confronted with the witnesses against him.”
U.S. Const. amend. VI. And a “major reason underlying [this]
rule is to give a defendant charged with [a] crime an
opportunity to cross-examine the witnesses against him.”
Pointer v. Texas, 380 U.S. 400, 406–07 (1965). Occasionally,
however, the right to cross-examine runs headlong into
another constitutional right: the Fifth Amendment’s
protection against self-incrimination. See U.S. Const. amend.
V (providing that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself”).6 A classic
example is our situation here. The Sixth Amendment gives
Lambert the right to cross-examine Garcia about his
confession, but the Fifth Amendment allows Garcia to refuse
to take the stand. The Supreme Court has dealt with different

6
The Confrontation Clause and the privilege against self-
incrimination both apply to proceedings in state courts. See
Cruz v. New York, 481 U.S. 186, 189 (1987) (Confrontation
Clause); Malloy v. Hogan, 378 U.S. 1, 6 (1964) (self-
incrimination).

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variations on this theme, and four of its decisions—Bruton;
Frazier; Richardson v. Marsh, 481 U.S. 200 (1987); and Gray
v. Maryland, 523 U.S. 185 (1998)—guide our analysis. We
discuss each in turn.

In Bruton, two defendants (Evans and Bruton) were
tried together for an armed postal robbery. Evans, who had
given a confession that also implicated Bruton, opted not to
take the stand, but the jury heard his confession in full,
unredacted form through a postal inspector’s testimony. The
trial judge instructed the jury that the confession could be
used against Evans but not against Bruton. The Supreme
Court held that the reading of the confession was a
Confrontation Clause violation and that limiting instructions
were incapable of curing it. 391 U.S. at 135–36.

It based its conclusion on the cognitive dissonance that
results from asking jurors to consider a confession only
against one defendant. It wrote that “there are some contexts
in which the risk that the jury will not, or cannot, follow
instructions is so great, and the consequences of failure so
vital to the defendant, that the practical and human limitations
of the jury system cannot be ignored.” Id. at 135. It
continued:

Such a context is presented here, where the
powerfully incriminating extrajudicial
statements of a codefendant, who stands
accused side-by-side with the defendant, are
deliberately spread before the jury in a joint
trial. Not only are the incriminations
devastating to the defendant but their credibility
is inevitably suspect, a fact recognized when
accomplices do take the stand and the jury is
instructed to weigh their testimony carefully
given the recognized motivation to shift blame

15
 onto others. The unreliability of such evidence
is intolerably compounded when the alleged
accomplice, as here, does not testify and cannot
be tested by cross-examination. It was against
such threats to a fair trial that the Confrontation
Clause was directed.

Id. at 135–36 (footnote omitted).

The next year, the Court decided Frazier, which
involved two cousins (Frazier and Rawls) who were jointly
indicted. Rawls pled guilty and gave a confession that also
incriminated Frazier, who elected to proceed to trial. Though
Frazier’s lawyer told the prosecutor that Rawls intended to
invoke the Fifth Amendment if called, the prosecutor believed
he would cooperate and previewed his expected testimony to
the jury. That “summary [of the expected testimony] was not
emphasized in any particular way,” and it “took only a few
minutes to recite.” 394 U.S. at 733. After Rawls eventually
asserted the Fifth Amendment, Frazier argued that there was a
Bruton violation because the substance of the incriminating
statement had been put in front of the jury without an
opportunity for cross-examination. The Court disagreed and
concluded that, unlike in Bruton, limiting instructions “were
sufficient to protect [Frazier’s] constitutional rights.” Id. at
735. Importantly, at no point during the trial was the jury read
Rawls’ confession. Rather, it only heard the outline of what
Rawls was expected to say if he testified.

In rejecting Frazier’s argument, the Court highlighted
four differences between that case and the typical Bruton
scenario. First, the jury was exposed to a paraphrased version
of Rawls’ account rather than a verbatim confession. Id.
Second, the account was introduced during opening
statements rather than through witness testimony. Id. Third,
only one defendant was on trial, so the “jury was not being

16
asked to perform the mental gymnastics of considering an
incriminating statement against only one of two defendants in
a joint trial.” Id. And finally, “Rawls’ statement was not a
vitally important part of the prosecution’s case.” Id.

The Court noted that it is common for a party not to be
able to produce all the evidence promised in an opening
statement and that “[c]ertainly not every variance between the
advance description and the actual presentation constitutes
reversible error . . . when a proper limiting instruction has
been given.” Id. at 736. However, it “may be that some
remarks included in an opening or closing statement could be
so prejudicial that a finding of error, or even constitutional
error, would be unavoidable.” Id.

Next up is Richardson. At a joint trial for co-
defendants Marsh and Williams, the prosecution introduced
the latter’s confession. Williams did not testify, and the judge
instructed the jury not to use his confession against Marsh.
The confession recounted, among other things, an
incriminating conversation that took place in a car carrying
Marsh, Williams, and Martin (who was charged alongside the
other two but was a fugitive at the time of trial). Unlike in
Bruton, however, the confession was redacted before being
read to the jury. The redactions did not, as did ours, merely
replace the other defendant’s name with generic terms.
Rather, the confession “was redacted to omit all reference” to
Marsh or her role in the crime. 481 U.S. at 203. Thus, the
version that the jury heard placed Martin and Williams in the
car but did not mention a third person being there.

The potential problem arose when Marsh took the
stand and testified that she was in the car with Martin and
Williams. Her argument was that, although Williams’
redacted confession did not implicate her on its own, the
combination of the confession (which described an

17
incriminating conversation in the car) and her testimony
(which put her in the car) created an intolerable risk that the
jury would be unable to follow the limiting instruction. In
other words, the concern was that the jury impermissibly
would use the confession against her by determining that she
heard the conversation.

The Court rejected this argument, concluding that
when a “confession [is] not incriminating on its face” toward
a co-defendant and “bec[omes] so only when linked with
evidence introduced later at trial,” it is “a less valid
generalization that the jury will not likely obey the [limiting]
instruction.” Id. at 208. As a result, it is presumed able to
consider the confession to determine the speaker’s, but not
the co-defendant’s, guilt. The Court summarized its holding
as follows: “[T]he 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 his or her existence.” Id. at 211.

That holding, however, did not end the case. That is
because, during closing arguments, the prosecutor encouraged
the jury to do precisely what Marsh feared would happen and
what the limiting instruction was meant to avoid—to assume,
based on the combination of the confession and her
testimony, that she heard the incriminating conversation. The
Court described this as seeking “to undo the effect of the
limiting instruction” and called it an “error.” Id. Because
Marsh’s lawyer did not object to the prosecutor’s comments,
the Court remanded for a determination of whether they
nonetheless could serve as a basis for relief. Id.

The final piece of the puzzle is Gray, which falls
somewhere between Bruton and Richardson. As in
Richardson and unlike in Bruton, the confession was

18
redacted. But whereas the redactions in Richardson removed
all reference to the co-defendant’s existence, the co-
defendant’s name in Gray merely was replaced with a blank
space or the word “deleted.” For instance, the jury heard that
“Me, deleted, deleted, and a few other guys” committed a
crime. 523 U.S. at 196. The Court held that, when a name is
replaced “with an obvious indication of deletion,” Bruton
applies and no limiting instructions can be sufficient. Id. at
192.

It noted that, as in Richardson, the jury would need to
make inferences for the confession to become incriminating
(in Richardson by linking the confession to testimony and in
Gray by divining the identity of the blanked-out name).
However, it concluded that “inference pure and simple cannot
make the critical difference, for if it did, then Richardson
would also place outside Bruton’s scope confessions that use
shortened first names, nicknames, descriptions as unique as
the ‘red-haired, bearded, one-eyed man-with-a-limp,’ and
perhaps even full names of defendants who are always known
by a nickname.” Id. at 195 (citation omitted). Maintaining
that its approach was not overly burdensome, the Court
implied that it might have been permissible to replace “Me,
deleted, deleted, and a few other guys” (the example from
above) with “Me and a few other guys,” thereby making the
inference less obvious. Id. at 196.

In sum, there are some cases (Bruton and Gray) where
no limiting instruction can cure the harm that comes from the
jury’s exposure to an incriminating confession. Meanwhile, in
other situations (Frazier and Richardson) we can assume that
the jury is capable of following instructions. We must now
consider on which side of the line our case falls.

19
 IV. The Bruton Violation in Lambert’s Trial

Lambert has two arguments for why his trial violated
Bruton. First, he contends that it and its progeny required
severance of his trial from Garcia’s. He claims this is a
straightforward application of our Bruton-based decisions in
Vazquez v. Wilson, 550 F.3d 270 (3d Cir. 2008); Eley v.
Erickson, 712 F.3d 837 (3d Cir. 2013); and Washington v.
Sec’y Pa. Dep’t of Corr., 801 F.3d 160 (3d Cir. 2015). Next,
he asserts that, even assuming a joint trial was permissible, a
Bruton violation occurred during closing arguments because
of the prosecutor’s comments. He labels this a prosecutorial
misconduct claim.7 We agree with this second argument and
conclude, without deciding whether the denial of the
severance request was proper, that the comments during
closing arguments violated Bruton.

7
At the outset of this appeal, there appeared to be
disagreement about whether this claim is properly before us.
“Before a federal court may grant habeas relief to a state
prisoner, the prisoner must exhaust his remedies in state
court. In other words, the state prisoner must give the state
courts an opportunity to act on his claims before he presents
those claims to a federal court in a habeas petition.”
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To ensure
that state courts have this opportunity, the petitioner’s claims
must be “fairly presented” to them. Picard v. Connor, 404
U.S. 270, 275 (1971). This means that the petitioner must put
before the state courts the “substantial equivalent” of the
claims pursued in federal court. Id. at 278. In his brief,
Lambert, in addition to arguing that the prosecutor’s
comments violated Bruton, also invoked the Supreme Court’s
standards for prosecutorial misconduct from Donnelly v.
DeChristoforo, 416 U.S. 637 (1974), and Darden v.

20
 We start from the undisputed premise, stated by the
Pennsylvania Supreme Court, that “[t]here is no point in
redacting and sanitizing otherwise inculpatory statements of a
non-testifying co-defendant, to facilitate a joint trial, if that
protective measure approved by the [U.S. Supreme] Court to
comport with the Confrontation Clause could be deliberately
and directly undone by lawyer commentary.” Brown, 925
A.2d at 159. Indeed, the Pennsylvania Supreme Court
conceded that, under the right circumstances, there could be a
Bruton violation based on an “argument by counsel
concerning Bruton-redacted evidence.” Id. at 160. As an
example, it imagined a scenario where a prosecutor tells the
jury: “You heard the co-defendant’s confession, which also
described the actions of someone he identified only as ‘the
other guy;’ well, I’m here to tell you that ‘the other guy’ he
was speaking of was the defendant and we just changed the
wording of the statement.” Id. at 159 (internal quotation
marks omitted).

The Pennsylvania Supreme Court is correct, of course,
that those circumstances would violate Bruton. Were it

Wainwright, 477 U.S. 168 (1986). Those cases held that
improper comments by prosecutors result in constitutional
error when they “so infect[] the trial with unfairness as to
make the resulting conviction a denial of due process.”
Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643)
(internal quotation marks omitted). The Commonwealth
correctly notes that Lambert did not present an argument
based on this standard to the state courts. However, as
discussed below, we resolve this claim based only on Bruton
and its progeny. Because the Commonwealth agreed at oral
argument that a Bruton-based attack on the prosecutor’s
comments was in front of the state courts, the fair
presentation requirement does not create any obstacles here.

21
otherwise, Bruton would mean little. There would be no point
in redacting confessions only to have the identities of the co-
defendants blatantly unmasked. And we know from Gray that
Bruton is not so easily defeated. Otherwise, the Supreme
Court would not have gone out of its way to say that Bruton
cannot be circumvented by replacing somebody’s name with
an obvious identifier (such as the “red-haired, bearded, one-
eyed man-with-a-limp”). Gray, 523 U.S at 195 (internal
quotation marks omitted). Indeed, we discern no difference in
effect between the situation in Bruton, where the jury heard
an unredacted statement naming the co-defendant, and one
where the jury hears a redacted statement but is later told to
whom the redactions refer.

If there were any doubt as to the applicability of
Bruton to the Pennsylvania Supreme Court’s hypothetical,
Richardson eliminated it. On the one hand, Richardson made
clear that a properly redacted confession does not violate the
Confrontation Clause when linked with other admissible
evidence. Yet it also established that a prosecutor’s
inadmissible use of a confession during closing arguments
runs afoul of Bruton. That is because it is “error” for a
prosecutor “to undo the effect of the limiting instruction.” 481
U.S. at 211.
We part company, however, with the Pennsylvania
Supreme Court with regard to the three attempts it made to
distinguish our case from its hypothetical example. First, it
implied that a prosecutor’s unmasking of a co-defendant must
be done “deliberately” for Bruton to come into play. Brown,
925 A.2d at 159. Any such requirement of intentional conduct
would be contrary to clearly established Supreme Court law.
Specifically, the Court in Frazier said that “we do not believe
that the prosecutor’s good faith, or lack of it, is controlling in
determining whether a defendant has been deprived of the
right of confrontation.” 394 U.S. at 736. Here, though there is

22
no evidence that the prosecutor acted in bad faith, that is
irrelevant for constitutional purposes. Indeed, the
Commonwealth conceded (as it must) during oral argument
before us that the Pennsylvania Supreme Court erred by
suggesting that intent matters.

Second, we disagree that the statement needs to be as
conspicuous as the example presented by the Pennsylvania
Supreme Court, where the prosecutor tells the jury that the
confession had been redacted and had previously included the
co-defendant’s name. During closing arguments, the
prosecutor revealed that Garcia took Lambert to his house,
where the latter pulled out the murder weapon. Thus, the
prosecutor’s comments conveyed a message—that Lambert
was the person whose name was withheld in the redacted
confession—as clearly as would have been the case in the
example used by the Pennsylvania Supreme Court.8

8
If there had been other evidence that Lambert went home
with Garcia and took out the murder weapon, the prosecutor
properly could have relied on that in closing arguments as
long as she did not also encourage the jury to use the redacted
confession against Lambert. The Commonwealth argues that
this is the case here. It says that the prosecutor was not
undoing the redactions but instead was encouraging the jury
to draw inferences from other evidence in the record.
However, the Pennsylvania Supreme Court rejected this
argument and found that “Garcia’s statement was the only
source suggesting that Garcia took [Lambert] to his house.”
Brown, 925 A.2d at 156 n.5. Under AEDPA, this factual
determination is “presumed to be correct,” 28 U.S.C.
§ 2254(e)(1), and there is no reason here to set aside that
presumption.

23
 Moreover, Richardson forecloses the Pennsylvania
Supreme Court’s analysis. As discussed, a redacted
confession in that case described a conversation that took
place in a car, and Marsh admitted that she was in that same
car. The prosecutor put these two facts together in closing
arguments and asked the jury to draw the inference that
Marsh heard the conversation. That is much less direct than
our case, where the prosecutor did more than merely argue an
inference and instead recounted the confession as though
Lambert’s name had been in it all along. Though the
prosecutor in Richardson did not unmask Marsh as a
passenger in the car—Marsh did that herself through her
testimony—the Court nonetheless found a Confrontation
Clause error. 481 U.S. at 211. The only reason why the Court
remanded rather than granting relief directly was the failure
of defense counsel to object during closing arguments—a
failure not present here.

In terms of applying this clearly established Supreme
Court precedent, our opinion in Vazquez provides useful
guidance.9 There, as here, the prosecutor, without going so far
as telling the jury that the confession had been redacted to
omit the co-defendant’s name, “effectively eliminated the
redaction” through a slip of the tongue during closing

9
We do not rely on Vazquez as having created clearly
established law, as only Supreme Court cases can do that for
AEDPA purposes. Rather, we look to it to determine the
principles that we have determined previously to be clearly
defined by Supreme Court cases. Cf. Marshall v. Rodgers,
133 S. Ct. 1446, 1450 (2013) (noting that “an appellate panel
may, in accordance with its usual law-of-the-circuit
procedures, look to circuit precedent to ascertain whether it
has already held that the particular point in issue is clearly
established by Supreme Court precedent”).

24
arguments while paraphrasing the confession. 550 F.3d at
275. Though we granted relief on other grounds, we also
interpreted Bruton to leave “no doubt” that the comments
during closing arguments were “a grave and probably fatal
constitutional violation.” Id. at 283 n.14. There was “no
difference between the admission of [the] unredacted
statement” at the outset and a situation where the prosecutor
negates the redactions during arguments. Id.; see also Fowler
v. Ward, 200 F.3d 1302, 1311 (10th Cir. 2000) (noting that it
would “squarely violate[]” the Confrontation Clause even to
“suggest” that a redacted confession implicated a co-
defendant), overruled on other grounds by Slack v. McDaniel,
529 U.S. 473 (2000).

Finally, we disagree with the Pennsylvania Supreme
Court’s reliance on Frazier as a means of escaping Bruton’s
command. As discussed, the Court in Frazier gave four
reasons for its conclusion. None apply here. The first and
second factors are that the prosecutor in Frazier 1)
summarized a confession that 2) was never actually read—
redacted or otherwise—to the jury. Here the jury heard a full
reading of the redacted confession and then had the redactions
compromised during closing arguments. This difference is
critical. The task of the jury in Frazier was merely to pretend
that there was no confession. By contrast, the jury here was
asked to consider the confession, but only against Garcia,
when the prosecutor effectively said during closing arguments
that it also implicated Lambert. That is the situation Bruton
describes as “intolerabl[e].” 391 U.S. at 136.

Meanwhile, the third Frazier factor—that there was
only one defendant on trial, so the “jury was not being asked
to perform the mental gymnastics of considering an
incriminating statement against only one of two defendants in
a joint trial,” 394 U.S. at 735—is not present here because
there was a joint trial and jurors were told that they had to

25
limit their use of the confession to one defendant. Once again,
this places us squarely within Bruton and its warning that
“there are some contexts in which the risk that the jury will
not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored.” 391 U.S. at 135.

The final factor in Frazier was that the evidence was
not “vitally important” to the prosecution’s case. 394 U.S. at
735. As discussed below in explaining why the error was not
harmless, the evidence here was crucial to the
Commonwealth’s case.

Properly understood, then, Frazier does not carry the
day for the Commonwealth. Frazier made clear that not all
mistakes in opening or closing statements are Bruton
violations. But it never said (or even implied) that Bruton has
a back door that allows prosecutors to do what the Supreme
Court has expressly forbidden—dangle an incriminating
statement in front of jurors, tell them it implicates a particular
defendant, and then expect that they will not use it against
that person.

We therefore hold, as a matter of clearly established
Supreme Court law, that the prosecutor’s comments violated
the Confrontation Clause. There are some circumstances
when the prosecution can commit what otherwise would be a
constitutional violation but nonetheless escape a mistrial
through limiting instructions. However, in cases falling within
the ambit of Bruton and its progeny, limiting instructions
cannot cure the error. See Bruton, 391 U.S. at 135–36. This is
such a case. In deciding otherwise, the Pennsylvania Supreme
Court acted contrary to U.S. Supreme Court law by
apparently requiring prosecutors to act in bad faith for

26
protections to arise, and it misapplied Bruton, Frazier,
Richardson, and Gray by not requiring a mistrial.

V. Harmlessness

Having found an error, we next consider whether it
was harmless. To determine whether the Bruton violation had
a “substantial and injurious effect or influence” on the
outcome, Bond, 539 F.3d at 276 (internal quotation marks
omitted), we must look at the evidence that the jury properly
could have considered against the defendant. Here the
Commonwealth’s case against Lambert rested almost entirely
on Cheatham’s testimony. Indeed, Cheatham was the only
witness with admissible testimony about what Lambert did at
the gas station. And, because Garcia had the gun at the time
of the arrest, Cheatham provided the only admissible link
between Lambert and the murder weapon. But, as noted
below, Cheatham had substantial flaws as a witness. Hence
we conclude that the Bruton error was not harmless.

Cheatham’s own testimony undercut his reliability and
usefulness as a witness. By his own admission, he was
impaired from marijuana and Xanax. As a result, he was
asleep shortly before the crime. And, more importantly, he
said he stayed in the back seat the whole time. His most
powerful statement is that he saw Lambert and Garcia get out
of the car and, when they got back in, Lambert pointed a gun
at Garcia and ordered him to drive. But Cheatham never
claimed to witness the robbery or the murder as they took
place.

Another red flag is that Cheatham added key details to
his narrative between when he gave a statement to the police
and when he testified. For instance, the part about Lambert
pointing the gun at Garcia emerged for the first time in court.
During cross-examination, Cheatham admitted that he had not

27
included that detail when talking to detectives the day after
the crime.

And Cheatham had a powerful motive to implicate
Lambert. The former escaped charges by convincing
detectives that he had remained in the car while Lambert and
Garcia got out. Garcia was telling an entirely different story
in which he was merely present for a crime committed by
Lambert and Cheatham. And Cheatham only gave his
statement after being told he would be charged with a crime if
he did not cooperate. This would give the jury reason to view
Cheatham’s testimony skeptically.

The Commonwealth admits that Cheatham is a flawed
witness but gives us three reasons why it thinks the error was
nonetheless harmless. They do not persuade us. First, it
argues that the convictions of both Lambert and Garcia mean
that the jury must have believed Cheatham (despite his
weaknesses) and disbelieved Garcia. The consequence, in the
Commonwealth’s view, is that it would not matter if it
became obvious that the redacted confession implicated
Lambert because the jury rejected Garcia’s narrative.
We agree that the jury, in convicting Garcia,
apparently credited Cheatham’s account that Lambert and
Garcia got out of the car rather than Garcia’s story that
Lambert and Cheatham did so. But it does not follow that the
jurors necessarily disbelieved the other portions of Garcia’s
confession that implicated Lambert as the shooter. These
parts, which the jury was not supposed to use against
Lambert, reinforced rather than contradicted Cheatham’s
spotty testimony. Hence we cannot say that the jury, once
aware during closing arguments that Garcia’s confession

28
incriminated Lambert, did not make significant use of that
information.10

Next, the Commonwealth notes that the unmasking of
Lambert happened during a part of the closing arguments
when the prosecutor was asking the jury to find Garcia guilty.
Specifically, she was discussing Garcia’s story that Lambert
and Cheatham committed the crime. If that were true, the
prosecutor asked, why did Garcia bring one of the criminals
to his home afterward rather than dropping him off and
calling the police? It was in this context that she used
Lambert’s name, rather than a generic identifier, and revealed
that he was the one who went home with Garcia. Essentially,
the Commonwealth’s argument is that, based on the structure
of the closing arguments, the jury would not have been
tempted to use the information against Lambert. However, as
discussed below, the information was quite harmful to
Lambert, and we cannot realistically assume that the jury
ignored it.

The Commonwealth’s final argument is that the
details that the prosecutor improperly revealed—Lambert
accompanying Garcia home and pulling out the gun—did not
add much to the case against Lambert because they related to
events after the shooting. That misses the point. If the
redactions were ever effective—a question we do not
decide—it would be because they effectively encrypted the
confession by obscuring from the jury part of its meaning.
During closing arguments, the prosecutor essentially gave the

10
The jury’s request to see the confession during
deliberations also lends possible support to the notion that
jurors relied on it to convict Lambert. Nonetheless, we do not
know what motivated the request, and we need not give it any
particular import in reaching our conclusion.

29
jury the key to break the encryption. And, in doing so, she
revealed far more to the jury than Garcia’s statement that
Lambert came home with him.

As noted above but repeated here for convenience, the
key portion of the confession (with the replacements shown in
italics) is:

Q: What happened next?

A: They got in the car and I said what the fuck
happened. One of the guys said I banged the
bitch . . . . She wouldn’t give up her pocketbook
or nothing, so I banged her. . . . I told the first
guy what the fuck, you didn’t tell me you had a
burner.

Q: What is a burner?

A: A gun.

Q: What kind of gun did the first guy have?

A: A .38. He showed it to me in my house after
he shot the lady. After he shot the lady we went
to my house and we went inside. He pulled it
out in the kitchen. I told him to put it away
because my peoples was [sic] there. My mom
told me to get the guy out of her house. We left
my house and drove down North Philly.

Once the jury knew that Lambert was the person who
went to Garcia’s house, it could follow the story
backward to learn that Lambert was the one with the
“burner” and was therefore the person who shot the
victim. We are thus unconvinced by the

30
Commonwealth’s attempt to minimize the importance
of the unmasking.

Lambert has argued in federal court that the
harmfulness of the error was compounded by the
prosecutor’s flouting of the redactions at another point
in her closing arguments. As discussed, see supra n.5,
apart from the comments about Lambert
accompanying Garcia home, she also told the jury:
“It’s an old ugly gun, but it worked. It killed Mary
Edmond. It did just what Antonio Lambert wanted it to
do. He managed to shoot her. Why? Because she
didn’t give up her pocketbook. She resisted it. And
that’s exactly what Mr. Garcia said in his statement.”
The Commonwealth says that this argument is
procedurally defaulted because Lambert did not
explicitly reference these other remarks in state court.
However, we need not weigh in because, for the
reasons we have explained above, we conclude that the
error would not have been harmless even if the
prosecutor had not made these other comments.
Ultimately, given the significance of Garcia’s
confession to the Commonwealth’s case, Cheatham’s
potential unreliability, and the absence of other
evidence identifying Lambert as the shooter, we
believe that the prosecutor’s unmasking of him as “the
other guy” had a “substantial and injurious effect” and
that relief is therefore warranted. Bond, 539 F.3d at
276 (internal quotation marks omitted).

VI. Conclusion

We expect that this case will be the exception
rather than the norm. The potential for constitutional
error could have been mitigated at the outset by

31
granting the motion to sever the trials. After settling on
a joint trial, the Commonwealth could have, during
closing arguments, guarded more carefully against the
special risks posed by redacted confessions. Having
failed to do so, it nonetheless could have avoided a
mistrial had the mistake been of the variety that
Frazier says can be cured through limiting
instructions. And even after missing these first three
safety valves, the Commonwealth could have escaped
this result had the error been harmless.

Here, however, the prosecutor’s comments
created a Bruton violation that was not harmless. We
therefore reverse the order of the District Court and
remand with instructions for it to grant Lambert’s
petition and require the Commonwealth either to
release him or retry him within a specified and
reasonable time period.

32