Conspicuous By Absence: Second Circuit Finds Neutral Pronoun Substitution Too Awkward to Satisfy Bruton Doctrine

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the introduction, at a joint jury trial of a nontestifying defendant's statement which facially incriminates another defendant. As I have note on this blog (see, e.g., here), many courts have found that prosecutors can avoid a Bruton doctrine by replacing the defendant's name with a neutral pronoun (e.g., "Dan and I robbed the bank" becomes "Someone and I robbed the bank."). I have long argued, though, that such substitution shouldn't be allowed when the replacement is clear/awkward (see, e.g., here). And that's exactly what the Second Circuit found in United States v. Taylor, 2014 WL 814861 (2nd Cir. 2014).

In Taylor, Curtis Taylor, Antonio Rosario, and Samuel Vasquez appealed judgments of conviction for conspiring to commit Hobbs Act robbery and brandishing a firearm during a crime of violence, among other offenses related to the robbery of a pharmacy in midtown Manhattan. Luana Miller was also apparently involved with these crimes by turned State's evidence and testified against the defendants at trial.

Taylor, however, did not testify, and yet his confession was admitted into evidence. And it was the admission of this confession that formed part of the basis for the appeal by Rosario and Vazquez. The two claimed that the confession was insufficiently redacted, prompting the Second Circuit to note that

Redactions and substitutions can avoid Bruton error if the altered statement uses words “that might actually have been said by a person admitting his own culpability in the charged conspiracy while shielding the specific identity of his confederate.”...Along these lines, we have previously allowed proper names to be replaced with the following terms (among others): “another person,”...“others,” “other people,” and “another person,”...the pronoun “he,”...“this guy,” “another guy,” and “similar language,”...and “friend....” We explicitly left open, however, “the possibility of a neutral-word substitution being so conspicuously awkward” that the alteration becomes obvious.

In Taylor, the Second Circuit then answered that open question, finding that

The redactions here suggest that Taylor's original statements contained actual names. Throughout, Luana Miller's name is used—without redaction—conjoined with reference to persons who are unnamed: “LUANA MILLER and two other individuals”; “The person waiting with LUANA MILLER and TAYLOR”; and “TAYLOR, LUANA MILLER, and the driver.” If Taylor had been trying to avoid naming his confederates, he would not have identified one of them-Miller-in the very phrase in which the names of the other confederates are omitted .FN5 The jurors would notice that Miller is the one person involved who was cooperating, and would infer that the obvious purpose of the meticulously crafted partial redaction was to corroborate Miller's testimony against the rest of the group, not to shield confederates.  

Moreover, the wording of the statement suffers from stilted circumlocutions: “The robbery was the idea of the person who waited with Luana Miller and Taylor at the gas station”; “Luana Miller and the other person who had waited with Taylor at the gas station came up with the plan”; “[A] ll four of them went to the house of the mother of one of the other individuals.” And reference to “two other individuals” is suspiciously closer to the speech of a prosecutor than that of a perpetrator.

Therefore, the court found a Bruton  violation and reversed the defendants' convcitions.

-CM