United States Court of Appeals
For the First Circuit
No. 07-1534
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL ZAMORA CRUZ-DÍAZ,
Defendant, Appellant.
No. 07-1535
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ ALFREDO AYALA-COLÓN,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Juan F. Matos De Juan for appellant José Alfredo Ayala-
Colón.
Raymond Rivera Esteves for appellant Angel Zamora Cruz-Díaz.
Mariana E. Bauzá, Assistant United States Attorney with whom
Rosa Emilia Rodriguez-Vélez, United States Attorney and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief for appellee.
December 18, 2008
HOWARD, Circuit Judge. After a six-day trial, a jury
convicted Angel Zamora Cruz-Díaz (Cruz) and José Alfredo Ayala-
Colón (Ayala) of conspiring to rob a federally insured bank, 18
U.S.C. § 371 (Count 1), aiding and abetting a bank robbery by use
of a dangerous weapon, 18 U.S.C. § 2113(a), (d) (Count 2), and
aiding and abetting the use of a firearm during and in relation to
a crime of violence, here, a bank robbery, 18 U.S.C. § 924(c)(1)(A)
(Count 3). The district court sentenced Cruz to 183 months'
imprisonment and Ayala to 168 months' imprisonment. Both Cruz and
Ayala appeal their convictions.
Cruz presents three claims. First, he argues that
insufficient evidence supported his conviction for aiding and
abetting the use of a firearm during a crime of violence. He
contends that the government failed to adduce evidence sufficient
to prove that he carried a "real" firearm as required by § 924(c).
Cruz's second and third claims allege prosecutorial misconduct and
erroneous jury instructions.
Ayala presents only one claim, arguing that the court
erred when it admitted his codefendant's out-of-court statement
into evidence. This error, he contends, violated his Sixth
Amendment Confrontation Clause rights. After review of these
claims, we affirm both convictions.
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I. Facts
The facts stated here, which are relevant to Cruz's
sufficiency claim, are presented in the light most favorable to the
jury's verdict. United States v. Cruz-Rodríguez, 541 F.3d 19, 25
(1st Cir. 2008). We add more facts where necessary to our
discussion of the other appellate claims.
On February 17, 2006, two armed men entered a bank in
Puerto Rico shouting, "This is a robbery!" One of the men, later
identified as Cruz, proceeded to the bank's front counter and
demanded the tellers put money in a large, black plastic bag. The
other man, later identified as Ayala, shepherded bank employees to
the front of the bank. Four bank employees testified that Cruz
carried a gun. Collectively, these four employees described the
gun as a "silver," "shiny," "nickel plated" "pistol." Two bank
employees testified that Ayala carried a gun as well, with one
describing it as a "nickel plated," "short barreled" "pistol" and
the other describing it as a "silver handgun."
The tellers complied with Cruz's demand, placing money
inside the bag. After receiving the money, Cruz and Ayala exited
the bank, having been inside between one and two minutes.
The police received information that Cruz and Ayala were
traveling in a red Mazda. Shortly thereafter, police officers
discovered an abandoned car matching this description. Near the
car, they found Cruz and Ayala. A search of the area yielded a
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black plastic bag containing money from the bank.1 A search of
the red Mazda produced a bullet casing on the passenger's seat.
The bullet casing corresponded with a nine-millimeter Luger brand
bullet or cartridge. No guns, however, were ever found.
At trial, in addition to introducing testimony from bank
employees and police officers, the government introduced a bank
surveillance video. The video showed Cruz and Ayala entering the
bank brandishing guns. The jury found both defendants guilty on
all three counts. We first address the claims presented by Cruz.
II. Discussion
A. Cruz
1. Sufficiency claim
Because Cruz failed to move for a judgment of acquittal
on Count 3 -- for aiding and abetting the use of a firearm during
a bank robbery -- we review his sufficiency claim for plain error
only. See United States v. Díaz, 519 F.3d 56, 63 (1st Cir. 2008).2
Under the plain error standard, we will not reverse unless the
allowing the conviction to stand would result in a "clear and gross
1
The bank's loss was estimated at $45,410.16.
2
Cruz claims that he moved for a judgment of acquittal on Count 3
and that, as a result, the de novo standard of review applies. The
record, however, is clear that Cruz's Rule 29 motion was directed
at Counts 1 and 2. In any event, as our analysis below indicates,
Cruz's sufficiency claim would fail even under the more searching
de novo standard.
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injustice." United States v. Pratt, 496 F.3d 124, 127 (1st Cir.
2007) (internal quotations omitted).3
Cruz's sufficiency claim focuses on the definition of
"firearm." He starts with the premise that a conviction under 18
U.S.C. § 924(c), requires proof that the defendant used a "real"
firearm when committing the predicate offense. See United States
v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995) (noting that "a toy or
a replica will not do") (quotation omitted). For purposes of §
924(c), a firearm is defined as:
(A) any weapon (including a starter gun) which
will or is designed to or may readily be
converted to expel a projectile by the action
of an explosive; (B) the frame or receiver of
any such weapon; (C) any firearm muffler or
firearm silencer; or (D) any destructive
3
Where preserved, we review a sufficiency claim de novo. Under
that standard, we examine the evidence, both direct and
circumstantial, in the light most favorable to the prosecution and
decide whether that evidence, including all plausible inferences
drawn therefrom, would allow a rational factfinder to conclude
beyond a reasonable doubt that the defendant committed the charged
count or crime. See United States v. Fenton, 367 F.3d 14, 18 (1st
Cir. 2004).
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device.4 Such term does not include an antique
firearm."
18 U.S.C. § 921(a)(3).
Armed with this definition, Cruz argues that no
reasonable jury could conclude that he used a "real" firearm in the
robbery. He points to two pieces of evidence to support this
argument. First, one of the bank employees who testified that Cruz
carried a gun later testified on cross-examination that he was not
a "gun inspector" and admitted that he could not tell whether the
gun Cruz carried was real or a toy. Second, Cruz notes that he
confessed to an FBI agent that BB guns had been used in the
robbery.
4
Destructive device is further defined as:
(A) any explosive, incendiary, or poison gas -- (i) bomb,
(ii) grenade, (iii) rocket having a propellant charge of
more than four ounces, (iv) missile having an explosive
or incendiary charge of more than one-quarter ounce, (v)
mine, or (vi) device similar to any of the devices
described in the preceding clauses; (B) any type of
weapon (other than a shotgun or a shotgun shell which the
Attorney General finds is generally recognized as
particularly suitable for sporting purposes) by whatever
name known which will, or which may be readily converted
to, expel a projectile by the action of an explosive or
other propellant, and which has any barrel with a bore of
more than one-half inch in diameter; and (C) any
combination of parts either designed or intended for use
in converting any device into any destructive device
described in subparagraph (A) or (B) and from which a
destructive device may be readily assembled.
Id. § 921(a)(4).
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When analyzing Cruz's claim, we must keep certain
principles in mind. "Although § 924(c) requires proof that the gun
is real, the government's proof need not 'reach a level of
scientific certainty.'" United States v. Roberson, 459 F.3d 39, 47
(1st Cir. 2006) (citation omitted). Descriptive lay testimony can
be sufficient to prove that the defendant used a real gun. Id.
(citing United States v. Kirvan, 997 F.2d 963, 966-67 (1st Cir.
1993)); Taylor, 54 F.3d at 976 (concluding that the evidence was
sufficient to prove the gun was real where three eyewitnesses to a
bank robbery, who observed the object held by the defendant at
close range, testified that it was a gun).
We find no error at all here, much less plain error. The
record contains evidence, both direct and circumstantial,
sufficient to allow a reasonable jury to conclude that Cruz used a
real firearm during the robbery. The direct evidence included the
testimony of four bank employees. These employees testified that
Cruz held a gun, collectively describing the gun as a "silver,"
"shiny," "nickel plated" "pistol." These descriptions are
consistent with a conclusion that Cruz and Ayala used real guns.
In fact, they are nearly identical to the descriptions provided by
bank employees who testified in Kirvan. In that case in which one
of the witnesses described the item held by the defendant as a
"silver," "shiny," "handgun," we held that the government
introduced sufficient evidence that the gun used in the robbery was
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real. 997 F.2d at 966-67. Moreover, none of the witnesses in this
case, all of whom had ample time to view the gun, described it as
a BB or toy gun. See Taylor, 54 F.3d at 976. In addition to this
eyewitness testimony, the government also introduced a surveillance
video showing Ayala and Cruz entering the bank and holding what
appeared to be weapons. Although the videotape did not give the
jury the superior vantage point that the bank tellers had, this
additional evidence did allow the jurors to see for themselves what
the witnesses had observed.
Finally, the jury also had circumstantial evidence to
draw upon in concluding that Cruz possessed a real firearm. Two
pieces of evidence stand out. First, the bank employees all
responded as if the guns held by both Cruz and Ayala were real,
complying with the requests made by the robbers. The jury could
have reasonably inferred, based on the reactions from the employees
in combination with the eyewitness testimony, that Cruz and Ayala
carried real firearms. Second, the police discovered a bullet
casing in the vehicle used by Cruz and Ayala that corresponded with
a real firearm. In our view, this circumstantial evidence, taken
together with the direct evidence recounted above, supported the
jury's verdict on Count 3.
Our conclusion that sufficient evidence underlies Count
3 is not undermined by the evidence Cruz directs to our attention
-- a witness's expressed uncertainty regarding whether the gun Cruz
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held was real and Cruz's alleged confession to an FBI agent that BB
guns were used in the robbery. The wavering testimony of the one
bank teller must be placed in context. Three other bank tellers
expressed no such uncertainty. As for Cruz's statement to the FBI,
it does not merit overturning the verdict. In addition to being
self-serving, the statement was never admitted into evidence.
2. Prosecutorial Misconduct
Cruz claims that the government committed prosecutorial
misconduct during its closing argument, warranting a new trial.
Specifically, he maintains that the prosecutor inaccurately
recounted the facts in the record and therefore prejudiced the
outcome of the case.
Cruz focuses on the prosecutor's statement recapping the
testimony of various bank tellers. The prosecutor, Cruz notes,
told the jury that the bank tellers testified that Cruz and Ayala
carried "firearms."5 Cruz argues that this was inaccurate because
the tellers never used the term "firearms" in their testimony.
Rather, the tellers used the words "pistol" and "handgun" to
describe the objects held by Cruz and Ayala. The prosecutor's
5
The prosecutor stated:
And the evidence clearly shows on the video both
individuals were possessing firearms and the bank tellers
who they approached, as well as another person who
testified here said that without a doubt that those
individuals had firearms.
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paraphrasing was prejudicial, Cruz contends, because "[n]ot all
handguns are firearms."
Where an improper statement has been made, we typically
ask whether the statement "so poisoned the well" that a new trial
is merited. United States v. Carpenter, 494 F.3d 13, 23 (1st Cir.
2007). But because Cruz did not object to the prosecutor's
statement at trial, our review is only for plain error. United
States v. Vanvliet, 542 F.3d 259, 270 (1st Cir. 2008).6
We find no plain error. To begin, the prosecutor's
paraphrasing did not plainly result in a factual inaccuracy.
Although Cruz claims that "not all handguns are firearms," a
handgun, according to its dictionary definition, is "a firearm (as
a revolver or pistol) designed to be held and fired with one hand."
See Merriam-Webster's Collegiate Dictionary 525 (10th ed. 2001);
see also United States v. McKeeve, 131 F.3d 1, 14 (1st Cir. 1997)
("[A] comment by counsel in the course of jury summation that
merely recounts properly admitted testimony, accurately and without
embellishment or distortion, cannot constitute reversible error.")
(citation omitted)).
Moreover, the prosecutor's use of the word "firearm" did
not prejudice Cruz. The district court gave two instructions to
6
As was the case with his sufficiency claim, Cruz contends that he
preserved his claim of prosecutorial misconduct and that we should
review the prosecutor's statement de novo. After review of the
record, we disagree.
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the jury that safeguarded against any potential prejudice. First,
the court emphasized that the prosecutor's closing argument was not
evidence. United States v. Bey, 188 F.3d 1, 8 (1st Cir. 1999)
(concluding that prosecutor's inaccurate recounting of evidence
during closing argument did not prejudice the defendant where "the
district court explicitly cautioned the jury that it could not
consider the arguments of counsel as evidence against [the
defendant]"); see also United States v. Brandao, 539 F.3d 44, 64
(1st Cir. 2008). And second, during jury instructions the court
related the legal definition of the word "firearm" to the jury.
So, however the prosecutor paraphrased the testimony of the bank
tellers, it was ultimately and clearly up to the jury to conclude
whether the guns used qualified as firearms.7
3. Jury instruction
Finally, Cruz claims that the court issued erroneous jury
instructions. Specifically, Cruz asserts that the court's failure
to define "dangerous weapon" when instructing the jury on Count 2
led the jury to believe that it could convict Cruz on Count 3 if it
found that Cruz used a "dangerous weapon" during the robbery. On
the contrary, he asserts, to convict him on Count 3 the jury had to
find that he used a "firearm." The difference between a "firearm"
7
We note that Cruz does not argue that the "without a doubt"
language in the prosecutor's closing argument was problematic.
Accordingly, this argument is waived. United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
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and a "dangerous weapon" is important, Cruz argues, because
although a BB gun or even a toy gun may qualify as a "dangerous
weapon" under 18 U.S.C. § 2113(d) (Count 2), neither would qualify
as a "firearm" under 18 U.S.C. § 924(c) (Count 3). Compare Kirvan,
997 F.2d at 966 (noting that, under § 924(c), "a toy or replica
will not do") (citation omitted) with United States v. Cannon, 903
F.2d 849, 854-55 (1st Cir. 1990) (concluding that, under § 2113(d),
a toy gun may qualify as a dangerous weapon).
Because Cruz did not object to the court's instructions
at trial, our review is again for plain error. United States v.
González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006) (observing that
this standard is "exceedingly difficult to satisfy in jury
instruction cases") (internal quotation marks omitted). In
assessing whether jury instructions were erroneous in the first
place, we review them as a whole to determine if they "adequately
explained the law or whether they tended to confuse or mislead the
jury on the controlling issues." Id.
We find no error in the court's instructions, much less
plain error. The court appropriately instructed the jury regarding
the definition of firearm. The court instructed the jury that, for
purposes of Count 3, the firearm count, it must find that Cruz used
a "firearm" during the robbery, and defined a firearm as "any
weapon which will or is designed to or may readily be converted to
expel a projectile by the actions of an explosive." In so doing,
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the court made plain to the jury that it could not convict Cruz on
Count 3 if it found that he used a toy gun or BB gun during the
robbery.
B. Ayala
We turn now to Ayala's sole claim. Ayala argues that the
court erred when it allowed an FBI agent to testify regarding an
out-of-court statement made to authorities by his codefendant,
Cruz. The court allowed the agent to testify about Cruz's
statement after Ayala's counsel, via cross-examination, questioned
a Puerto Rico police officer about the failure of the police to
pursue various investigatory options after it detained the two
defendants.
The agent, who was the "case agent" for the
investigation, explained that the FBI and Puerto Rico police failed
to pursue certain investigatory options because they believed they
had captured the right suspects. In doing so, the agent referred
to Cruz's out-of-court statement while testifying that:
I became aware at the time of the detention of
the two defendants that [Cruz] had stated to
[the officer] who gained custody of him, that
. . . 'the money is over there in a black bag,
we already threw away the weapons,' and
something to the effect of, 'we're screwed,
less than five minutes and they caught us.'
In Ayala's view, the court's decision to admit Cruz's
out-of-court statement into evidence violated his Confrontation
Clause rights as defined by the Supreme Court's decisions in
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Crawford v. Washington, 541 U.S. 36 (2004) and Bruton v. United
States, 391 U.S. 123 (1968). Ayala argues that the Court should
have avoided a Crawford or Bruton problem by either suppressing the
statement or severing his trial from Cruz's. We review this claim
de novo. United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir.
2008).
"The Confrontation Clause guarantees a criminal defendant
the right 'to be confronted with the witnesses against him.'"
United States v. Rodríguez-Duran, 507 F.3d 749, 768 (1st Cir. 2007)
(quoting U.S. Const. amend. VI). Ayala says that his right of
confrontation has been infringed under both Crawford and Bruton.
As we explain more fully below, however, the admission of Cruz's
out-of-court statement offended neither Crawford nor Bruton for two
reasons. First, the statement was not offered for its truth --
that is, to prove that the money was in the bag, that they were
"screwed" or even that the defendants were the true culprits -- but
rather to explain why the FBI and police did not pursue other
investigatory options after apprehending the defendants. And
second, Ayala's trial strategy opened the door to the statement's
admission.
1. Crawford
We start with the Supreme Court's decision in Crawford,
which held that the Confrontation Clause prohibits the admission of
testimonial hearsay into evidence against the defendant unless the
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declarant is unavailable to testify at trial and the defendant had
a prior opportunity to cross-examine him. United States v. Earle,
488 F.3d 537, 542 (1st Cir. 2007) (citing Crawford, 541 U.S. at
68). It follows, then, that even where a declarant's out-of-court
statement is testimonial,8 the statement may nevertheless be
admitted into evidence if one of the following three circumstances
exists: (1) the statement is not hearsay in that it is being
admitted for a purpose other than establishing the truth of the
matter asserted; (2) the declarant testifies at trial; or (3) the
defendant had a prior opportunity to cross-examine the declarant
and the declarant is unavailable. United States v. Maher, 454 F.3d
13, 19-20 (1st Cir. 2006); see also Crawford, 541 U.S. at 53-54, 59
n.9.
In his Crawford-based confrontation clause argument,
Ayala presses two points: that the testimony was hearsay and, even
if the government offered a non-hearsay basis for admitting the
statement, that basis was pretextual.
First, Ayala contends that the court violated Crawford
because none of the circumstances noted above existed. The
government argues the contrary, contending that Cruz's statement
was not hearsay because it was not admitted to prove the truth of
the matter asserted.
8
Both parties agree that Cruz's statement is "testimonial" in
nature.
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We agree that Cruz's confession was not hearsay. As
Federal Rule of Evidence 801(c) provides: "[h]earsay is a
statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the
matter asserted." Fed. R. Evid. 801(c). Out-of-court statements
offered not to prove the truth of the matter asserted but merely to
show context -- such as a statement offered for the limited purpose
of showing what effect the statement had on the listener -- are not
hearsay. United States v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001)
(noting a statement "offered to show the effect of the words spoken
on the listener (e.g., to supply a motive for the listener's
action)" is not hearsay) (citation omitted); see also United States
v. Castro-Lara, 970 F.2d 976, 981 (1st Cir. 1992); 4 Stephen A.
Saltzburg et al., Federal Rules of Evidence Manual § 801.02[1][f]
(9th ed. 2006) ("If a statement is offered for its effect on the
listener, in order to explain the listener's conduct, it does not
matter whether the declarant is telling the truth.").
Here, the government introduced Cruz's confession to
explain why the authorities cut short their investigation into the
robbery, specifically, why they did not take fingerprints or DNA
evidence from the red Mazda. The district court drove this point
home to the jury on two separate occasions. Prior to admitting the
statement, the court told the jury:
[The FBI agent] is going to testify as to
actions he took in his investigation of this
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case, based upon information he received. And
what I'm going to instruct you is that his
testimony concerning what he did, the actions
he took, because of information [he] had, is
not being presented to you to consider the
truthfulness of the defendant's statement in
any way whatsoever. You're instructed not to
consider the statement he's going to testify
about as evidence on any of the counts or
against the defendants of any of the counts
charged in the indictment.
Additionally, when issuing the final jury instructions,
the court emphasized that the jury was not to consider Cruz's
statement "for the truth of the matter asserted therein and . . .
must only consider it for the limited purpose of providing a
context for [the] decision not to send the fingerprint evidence to
the laboratory for processing."
We now turn to the second part of Ayala's Crawford
argument. He contends, citing Maher, 454 F.3d 13, that the
Crawford inquiry does not end merely because the government
advances a non-hearsay based justification for offering the
declarant's statement. Rather, we must satisfy ourselves that the
government's justification for offering the declarant's statement
is not pretextual. Pursuing this further, Ayala argues that the
record indicates that the government's purported non-hearsay based
justification for offering Cruz's confession masked an attempt to
circumvent Crawford.
In Maher, we acknowledged that if the government needs
only to identify a non-hearsay based reason for introducing the
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statement it could circumvent Crawford's constitutional rule as
well as the hearsay rule. 454 F.3d at 22; see also United States
v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) ("Allowing agents to
narrate the course of their investigations, and thus spread before
juries damning information that is not subject to cross-
examination, would go far toward abrogating the defendant's rights
under the sixth amendment and the hearsay rule."). Therefore, as
was the case in Maher, when an out-of-court statement is
purportedly offered into evidence as non-hearsay -- for example, to
provide context for police action or inaction -- we are concerned
about whether the stated purpose for introducing the evidence masks
an attempt to evade Crawford and the normal restrictions on
hearsay. Maher, 454 F.3d at 22-23 (noting that "[t]he dividing
line often will not be clear between what is true background to
explain police conduct (and thus an exception to the hearsay rule
and thus an exception to Crawford) and what is an attempt to evade
Crawford and the normal restrictions on hearsay" and warning
prosecutors against "back-door attempts" to get statements by non-
testifying declarants before a jury).
In this case, after analyzing how Cruz's confession came
to be admitted into evidence, we are satisfied that no pretext was
afoot and that the government did not attempt an end-run around
Crawford and the hearsay rules.
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Cruz's confession was the subject of a suppression
hearing held in the midst of the trial. During this hearing,
Ayala sought to suppress the admission of Cruz's confession,
arguing that it created a potential Bruton problem. The prosecutor
informed both the court and the defendant that he did not intend to
introduce Cruz's confession in the government's case-in-chief. The
government did, however, reserve the right to present the
confession for purposes of rebuttal.
At trial, Ayala's counsel opened the door to the FBI
agent's testimony, pointedly cross-examining a police officer about
the decision not to pursue certain investigatory opportunities
after apprehending the defendants. Counsel focused on potential
fingerprint and DNA evidence the police could have gathered from
the red Mazda and sent for analysis. In total, Ayala's counsel
identified "eleven missed opportunities" to tie Cruz to the red
Mazda. Faced with this line of questioning, the government sought
to introduce the FBI agent's testimony to explain why the FBI and
police did not lift forensic evidence from the car.
Ayala argues that the government's true motive in
admitting the agent's testimony was to march out Cruz's confession,
making Ayala guilty by association in the process. In support of
this argument, Ayala relies heavily on the fact that the government
introduced the substance of the confession rather then constructing
a less-prejudicial narrative. Specifically, he suggests that if
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the government merely wanted to explain why the FBI and police
failed to conduct a more thorough investigation it could have had
the agent testify in a manner that entirely avoided referencing
Cruz's confession. As an example, Ayala argues that the agent
could have testified that the government chose to truncate the
investigation "because of information [the agent had]."
We do not think the government's failure to present a
more sanitized narrative reveals a motive to undercut Crawford.
Given the tenor of Ayala's cross-examination about the authorities'
failure to investigate further, the use of the generalized
narrative Ayala suggests would have come at an unjustified cost to
the government. During cross-examination, Ayala's counsel painted
a picture of police and FBI ineptitude, observing that the
government missed eleven opportunities to tie Ayala to the car, and
thus, to the crime. Generalized testimony limited to an
explanation such as "we stopped investigating because of
information received," without any context, would not have
sufficiently rebutted Ayala's line of questioning. While there can
be circumstances under which Confrontation Clause concerns prevent
the admission of the substance of a declarant's out-of-court
statement where a less prejudicial narrative would suffice in its
place, this is not such a case.
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2. Bruton
A Bruton claim arises in a narrower set of circumstances
than does a Crawford claim, specifically, involving the admission
of a non-testifying codefendant's out-of-court statement during a
joint trial for the purpose of proving the truth of the matter
asserted. See Tennessee v. Street, 471 U.S. 409, 413 (1985).
It is well established that a codefendant's out-of-court
statement is admissible against that codefendant as a "party
admission." Fed. R. Evid. 801(d)(2); United States v. Vega Molina,
407 F.3d 511, 519 (1st Cir. 2005). But that same statement is
inadmissible hearsay and raises Confrontation Clause concerns with
respect to another defendant being prosecuted in a joint trial.
Id. (citing Crawford, 541 U.S. at 51-52, 68).
A trial judge may attempt to avoid any hearsay or
Confrontation Clause problems by instructing the jury not to
consider the statements against any defendant other than the
codefendant-declarant. Vega Molina, 407 F.3d at 510; see also
Richardson v. Marsh, 481 U.S. 200, 206 (1987) ("Ordinarily, a
witness whose testimony is introduced at a joint trial is not
considered to be a witness 'against' a defendant if the jury is
instructed to consider that testimony only against a codefendant.
This accords with the almost invariable assumption of the law that
jurors follow their instructions.") (citation omitted). As Bruton
holds, however, such a limiting instruction will not effectively
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remedy hearsay and Confrontation Clause problems if the
codefendant's statement is "so powerfully inculpating of the other
defendants that there would be substantial doubt as to whether the
jury could abide by a limiting instruction." Vega Molina, 407 F.3d
at 519 (explaining further that a statement is "powerfully
inculpating" where it is "inculpatory on its face") (citing Bruton,
391 U.S. at 135-37).9
Importantly though, Bruton's conditional bar on the
admission of a codefendant's statement during a joint trial
operates on a key premise -- that the statement is being offered to
prove the truth of the matter asserted. See Street, 471 U.S. at
413. Where the codefendant's statement is not being offered to
prove the truth of the matter asserted, a court may, in certain
circumstances, admit the statement provided it gives a limiting
instruction explaining the limited purpose the statement serves.
Id. at 414; Furr v. Brady, 440 F.3d 34, 39 (1st Cir. 2006).
The Supreme Court's post-Bruton decision in Street is the
exemplar. In that case, the Court held that the district court's
admission of a non-testifying codefendant's out-of-court confession
did not raise a Confrontation Clause problem because of "[t]he
nonhearsay aspect of [the codefendant's] confession." Street, 471
9
Typically, courts allowing introduction of the co-defendant's
out-of-court statement seek to mitigate its inculpatory impact by
redacting from the statement "the [defendant's] name and any
reference, direct or indirect, to his or her existence." Molina,
407 F.3d at 519 (citing Marsh, 481 U.S. at 211).
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U.S. at 414. The Court noted that the government offered the
confession "not to prove what happened at the murder scene but to
prove what happened when [Street, the defendant, later]
confessed."). Id. The Court went on to observe that the
government introduced the codefendant's confession to rebut
Street's testimony that his own confession was coerced and,
importantly, that no alternative short of admitting the
codefendant's statement along with the limiting instruction would
have served the government's interest. Id. at 415 (noting that the
confession could not be "edited to reduce the risk of jury misuse
without detracting from the alleged purpose for which the
confession was introduced") (quotation omitted).
This case fits comfortably within the rule of Street.
Here, as explained above, the district court admitted Cruz's out-
of-court statement not to prove the truth of the matter asserted
but to rebut Ayala's attempt to cast doubt on the integrity of the
government's investigatory efforts. The district court instructed
the jury as to the limited nature of the statement's admission.
And the government's interest in introducing the substance of the
confession, rather than a more sanitized narrative, was both
legitimate and strong.
III. Conclusion
For the reasons provided above, the convictions are
affirmed.
AFFIRMED.
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