                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 00-4771
GORDIE HOLMAN, III,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
              Terrence W. Boyle, Chief District Judge.
                            (CR-99-170)

                      Argued: September 28, 2001

                      Decided: December 18, 2001

      Before WILKINSON, Chief Judge, and WIDENER and
                 WILLIAMS, Circuit Judges.



Affirmed by unpublished per curiam opinion. Judge Widener wrote
a dissenting opinion.


                             COUNSEL

ARGUED: Joseph Edward Zeszotarski, Jr., POYNER & SPRUILL,
L.L.P., Raleigh, North Carolina, for Appellant. Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Janice McKenzie Cole, United States Attorney,
Raleigh, North Carolina, for Appellee.
2                      UNITED STATES v. HOLMAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Gordie Holman, III was convicted in the United States District
Court for the Eastern District of North Carolina of several charges
stemming from his participation in an automobile theft ring. Holman
claims that he is entitled to a new trial because of the district court’s
admission of an inculpatory statement by a non-testifying co-
defendant. Because we conclude that the error is harmless, we hold
that a new trial is not required and affirm Holman’s convictions.

                                   I.

   On October 19, 1999, a grand jury in the Eastern District of North
Carolina indicted Holman and Edward Earl Frazier for their involve-
ment in an automobile theft ring through which stolen cars were being
sold and transported from New York to North Carolina. Holman was
charged with fourteen counts, consisting of one count of conspiracy,
in violation of 18 U.S.C.A. § 371 (West 2000) (Count One); four
counts of tampering with and altering motor vehicle identification
numbers, in violation of 18 U.S.C.A. § 511 (West 2000) and 18
U.S.C.A. § 2 (West 2000) (Counts Two, Five, Eight, and Eleven);
four counts of interstate transportation of a stolen motor vehicle, in
violation of 18 U.S.C.A. § 2312 (West 2000) and 18 U.S.C.A. § 2
(Counts Three, Six, Nine, and Twelve); and five counts of possession
of a stolen motor vehicle transported in interstate commerce, in viola-
tion of 18 U.S.C.A. § 2313 (West 2000) and 18 U.S.C.A. § 2 (Counts
Four, Seven, Ten, Thirteen, and Fourteen). Frazier was charged with
Counts One through Thirteen. Counts Two, Three, and Four pertained
to a 1993 Acura Legend. Counts Five, Six, and Seven pertained to a
1993 Toyota Land Cruiser. Counts Eight, Nine, and Ten pertained to
a 1993 Mazda RX7. Counts Eleven, Twelve, and Thirteen pertained
to a 1994 Mercedes 500. Count Fourteen pertained to a 1994 Honda
Accord.
                       UNITED STATES v. HOLMAN                        3
   The jury trial against Holman and Frazier began on February 28
and lasted three days. Holman was found guilty of the conspiracy
offense and the transportation and possession offenses involving the
Acura Legend and the Mazda RX7 (Counts One, Three, Four, Nine,
and Ten). With respect to the Honda Accord, Holman was charged
only with a possession offense, and he was found guilty of that charge
(Count Fourteen). (J.A. at 461.) He was found not guilty of the
remaining counts.

   On October 6, 2000, the district court sentenced Holman to 21
months imprisonment on each count, to run concurrently, three years
supervised release, and restitution in the amount of $29,215.75. Hol-
man filed a timely notice of appeal to this Court on October 10, 2000.
On appeal, Holman contends that he is entitled to a new trial on those
charges for which he was found guilty because the district court
improperly admitted an out-of-court statement made by Frazier, who
did not testify, that directly implicated Holman, in violation of Bruton
v. United States, 391 U.S. 123 (1968).

                                  II.

   The key testimony constituting the alleged Bruton violation is that
of Mark Johnson, a North Carolina Motor Vehicles Inspector who
was in charge of investigating stolen vehicles. In the course of his
investigations, Johnson had determined that five stolen vehicles were
listed as having been registered in Frazier’s name and as having been
sold by Frazier. Johnson testified that after discovering Frazier’s link
with these stolen vehicles, he had an opportunity to speak to Frazier
when Frazier called Johnson to request information about applying
for a North Carolina automobile dealer’s license. During the Govern-
ment’s questioning of Johnson about his conversation with Frazier,
the following colloquy ensued:

      Q. Did you ask [Frazier] at any time during those conver-
      sations where he got those vehicles, particularly Exhibits,
      Government’s Exhibits 1 through — 1, 2, 4, 5, and 6?1
  1
   These exhibits correspond to the Mazda, the Acura, the Land Cruiser,
and the Mercedes for which Holman was charged and another Land
Cruiser for which Holman was not charged.
4                       UNITED STATES v. HOLMAN
        A. Yes.

        Q. Did he tell you?

        A. [Frazier] told me he bought them from — the very first
        one, the Land Cruiser, he said he had purchased that from
        a kid around the campus named Gordie, and it came from
        . . . a kid named Sid or Ced. He wasn’t sure of his name.

        Q. And in each of these instances — well, did he say any-
        thing about the other vehicles?

        A. Yes, [Frazier] said that they came from a guy from
        New York by the name of Cedric through a friend of his
        named Gordie.

(J.A. at 159-60.)

  Holman argues that admission of this testimony violated his Sixth
Amendment right to confrontation. We review Holman’s Sixth
Amendment challenge de novo. United States v. Williams, 977 F.2d
866, 869 (4th Cir. 1992).

   The Confrontation Clause of the Sixth Amendment guarantees the
right of a criminal defendant "to be confronted with the witnesses
against him." U.S. Const. amend. VI, cl. 3. The Supreme Court has
held that a defendant’s Sixth Amendment right to confront the wit-
nesses against him is violated when an out-of-court statement made
by his non-testifying co-defendant, which incriminates the defendant,
is admitted into evidence at their joint trial.2 Bruton, 391 U.S. at 127-
28.
    2
   The Supreme Court has recognized that Bruton is inapplicable where
the statement is admissible pursuant to a "firmly rooted hearsay excep-
tion." Lilly v. Virginia, 527 U.S. 116, 124 (1999). This Circuit has held
that Federal Rule of Evidence 801(d)(2)(E) is such a firmly rooted hear-
say exception. See United States v. Shores, 33 F.3d 438, 442 (4th Cir.
1994). Under Rule 801(d)(2)(E), a statement of the defendant’s co-
conspirator is admissible against the defendant if it was made "during the
                       UNITED STATES v. HOLMAN                           5
   The Government argues that Frazier’s statement does not violate
Bruton because Frazier’s statement cannot be characterized as a "confes-
sion."3 We need not resolve this issue because, to the extent the error
was a Bruton error, the error is harmless.4 See, e.g., Schneble v. Flor-
ida, 405 U.S. 427, 430 (1972) (applying harmless error analysis to a
Bruton violation); United States v. Clarke, 2 F.3d 81, 85 (4th Cir.

course and in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E).
Holman was charged and convicted of a conspiracy involving Frazier,
but the Government conceded at oral argument that Frazier’s statement
to Johnson was not made in the course of the conspiracy. Thus, by the
Government’s concession, Rule 801(d)(2)(E) does not apply to render
Bruton inapplicable.
   3
     There is some support in this and other circuits for the Government’s
position that Bruton is limited to confessions. See, e.g., United States v.
Locklear, 24 F.3d 641, 646 (4th Cir. 1994) (concluding that the co-
defendant’s statement, which was not a confession, did not violate Bru-
ton because Bruton is limited under Richardson v. Marsh, 481 U.S. 200,
208 (1987), to cases involving "facially incriminating confessions"); see
also Vincent v. Parke, 942 F.2d 989, 990 (6th Cir. 1991) (refusing to find
Bruton error because, inter alia, Bruton was inapplicable when the non-
testifying co-defendant’s statement cannot be characterized as a confes-
sion). But see United States v. Truslow, 530 F.2d 257, 263 (4th Cir.
1975) (rejecting the government’s argument that Bruton is strictly lim-
ited to confessions made to law enforcement officers).
   4
     Regardless of whether Frazier’s statement violated Bruton, it is clear
that Frazier’s statement was inadmissible against Holman as hearsay.
Thus, we have no doubt that Frazier’s statement was improperly admit-
ted; the only question is whether it was improperly admitted pursuant to
Bruton or pursuant to hearsay rules. Resolution of the nature of the error
is relevant only to the extent it governs whether we apply harmless error
review under Chapman v. California, 386 U.S. 18, 24 (1967) (holding
that a constitutional error must be harmless beyond a reasonable doubt),
or under Federal Rule of Criminal Procedure 52(a) (providing that "[a]ny
error, defect, irregularity or variance which does not affect substantial
rights shall be disregarded"). Because we conclude that the error was
harmless under either standard, we analyze the error under the Chapman
standard, which is more favorable to Holman. See United States v. Sei-
del, 620 F.2d 1006, 1013 (4th Cir. 1980) (noting that the standards under
Chapman and Rule 52(a) are different and that the former is more protec-
tive of the defendant’s rights than the latter).
6                     UNITED STATES v. HOLMAN
1993) (noting that the Court need not resolve an alleged Bruton viola-
tion when the alleged error is harmless).

                                 III.

   In deciding whether a constitutional error was harmless, a review-
ing court must be satisfied that the error was harmless beyond a rea-
sonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967).
In applying the harmless error standard, "we must ask whether it is
clear beyond a reasonable doubt that the jury would have returned [a
guilty] verdict[ ]" against Holman even if Frazier’s statement had not
been introduced. United States v. Blevins, 960 F.2d 1252, 1263 (4th
Cir. 1992). This analysis "requires a quantitative assessment of the
likely impact of the error measured against the other evidence pre-
sented at trial." Id.

   The Government’s case against Holman was based almost entirely
upon the testimony of Cedric Kennedy, the leader of the automobile
theft ring. Kennedy testified at length regarding Holman’s involve-
ment with the stolen vehicles charged in Holman’s substantive
offenses. (J.A. at 238-44.) Specifically, Kennedy testified that Hol-
man was a "middleman" between Kennedy and Frazier with respect
to the sales of the Acura Legend and the Mazda RX7. (J.A. at 238,
249, 261-62, 279.) Kennedy further testified that Holman had "basi-
cally nothing to do" with either the sale of the Land Cruiser or the
Mercedes. (J.A. at 267, 279.)

   As compared with Kennedy’s testimony, which implicated Holman
only in the sales of the Acura and the Mazda, Frazier’s statement
implicated Holman as the middleman in the sales of the Acura, the
Mazda, the Mercedes, and the Land Cruiser. (J.A. at 160) (stating that
each of the vehicles "came from a guy from New York by the name
of Cedric through a friend of his named Gordie"). The jury, however,
did not convict Holman of the charged offenses relating to each of
these vehicles. Instead, it acquitted Holman of the substantive counts
relating to the Land Cruiser and the Mercedes and convicted Holman
of the possession and transportation counts relating to the Acura and
the Mazda. (J.A. at 20-26, 458, 461.) Therefore, the verdict demon-
strates that the jury credited Kennedy’s testimony and disregarded
Frazier’s out-of-court statement.
                       UNITED STATES v. HOLMAN                         7
   Moreover, Johnson’s testimony with respect to Frazier’s statement
played a very minor role in Holman’s trial. The testimony itself was
brief, lasting only a few minutes, and Frazier’s statement was not
mentioned in opening or closing arguments. By comparison, Kenne-
dy’s testimony lasted for several hours and constituted the crux of the
Government’s case against Holman.

   Viewing the trial as a whole, it is clear that the Government’s case
rose and fell on the jury’s assessment of Kennedy’s credibility, and
Holman had ample opportunity to test Kennedy’s credibility through
cross-examination. When Frazier’s statement is measured against
Kennedy’s testimony and the jury’s verdict, we are convinced beyond
a reasonable doubt that the jury’s verdict simply did not turn on John-
son’s minimal recitation of Frazier’s statement. Therefore, we do not
deem the error committed at trial to warrant reversal of Holman’s
convictions.

                                  IV.

   Because the admission of Frazier’s statement was harmless beyond
a reasonable doubt, Holman is not entitled to a new trial. Accordingly,
we affirm Holman’s convictions.

                                                            AFFIRMED

WIDENER, Circuit Judge, dissenting:

   The majority’s opinion finds that to the extent there was a Bruton
error, such error was harmless. Because I think the evidence remain-
ing after excluding the Bruton statements does not meet the high stan-
dard of Chapman v. California, I respectfully dissent.

   In Chapman, the Supreme Court explained that a constitutional
error is not harmless if "there is a reasonable possibility that the evi-
dence complained of might have contributed to the conviction."
Chapman v. California, 386 U.S. 18, 23 (1967) (quoting Fahy v. Con-
necticut, 375 U.S. 85 (1963)). In applying this standard, a court is to
determine on the basis of its "own reading of the record and on what
seems to [it] to have been the probable impact . . . on the minds of
8                      UNITED STATES v. HOLMAN
an average jury," whether the constitutionally objectionable evidence,
here the inculpatory statements of a non-testifying co-defendant, is
sufficiently prejudicial to require reversal. Schneble v. Florida, 405
U.S. 427, 432 (1972). If a court reads the record and finds that the
remaining evidence "overwhelmingly" establishes the defendant’s
guilt, then the constitutional error has not substantially prejudiced the
defendant. In other words, when compared to the remaining evidence,
the exclusion of the Bruton statement does not render the govern-
ment’s case less persuasive. 405 U.S. at 432.

   The majority argues that, by convicting on the counts to which
Cedric Kennedy’s testimony inculpated Holman and acquitting him
where the only evidence of guilt was contained in Frazier’s statement,
the jury disregarded the constitutionally impermissible evidence. The
majority further explains that Kennedy’s testimony lasted for several
hours while Frazier’s statement, introduced through Agent Mark
Johnson, "was brief, lasting only a few minutes." These two facts lead
the majority to conclude that admitting Frazier’s statement through
Johnson’s testimony was harmless beyond a reasonable doubt.

   As I read the record, I think there is simply too much uncertainty
in the majority’s divination of the jury’s mind to conclude that admis-
sion of the Bruton statement was harmless beyond a reasonable doubt.
To me, the more plausible reading of the evidence, and one that
instills in me a reasonable doubt, is that the jury only convicted Hol-
man on the counts where corroborative evidence was introduced. That
is to say, the jury convicted Holman only where the testimony given
by Kennedy and Frazier overlapped, or was corroborated in some
other way. For instance, Holman was convicted of the substantive
counts with respect to the Mazda and the Acura. On both of these
counts, both Kennedy’s testimony and Frazier’s statement implicated
Holman. See JA 238, 249, 262-62, 279. To the contrary, Holman was
acquitted on the counts pertaining to the Land Rover and the Mer-
cedes. In that respect, Kennedy testified that Holman had little if any-
thing to do with the transactions involving these automobiles, while
Frazier’s statement implicated Holman. See JA 160, 284. Monique
Johnson’s testimony was equivocal regarding Holman’s involvement.
See JA 340. So, the jury properly applied the reasonable doubt stan-
dard and acquitted Holman.
                      UNITED STATES v. HOLMAN                         9
   Even as to the gold Honda, there was evidence corroborating Ken-
nedy’s implication of Holman. Agent Johnson observed Holman driv-
ing the Honda and pulled him over, at which point Holman produced
forged registration documents. See JA 136. It is apparent that John-
son’s testimony as to this event took place in moments, and yet had
no less impact on the jury than Kennedy’s. Indeed, the fact that Fra-
zier’s statement was provided by a law enforcement officer may have
given it more credibility, and thus more corroborative impact, no mat-
ter how brief it was, in comparison to the length of Kennedy’s testi-
mony. Therefore, in the absence of a conviction where Kennedy alone
provided evidence, the record does not show, I think, that the jury dis-
regarded Johnson’s testimony as to Frazier’s statement.

   All of which leads me to the conclusion that there is "a reasonable
possibility," Chapman at 23, that the Bruton statements contributed to
the conviction.

   Bruton statements are strong medicine. In recognition of this, the
Supreme Court requires "overwhelming" evidence, Schneble, at 432,
to outweigh the prejudice presented by the constitutional error. In the
absence of Frazier’s statement, and in light of the jury’s conviction
only on counts where corroborating evidence was presented, I cannot
say that the remaining evidence was so overwhelming here as to viti-
ate the constitutional error. Certainly, to me, "there is a reasonable
possibility that the evidence complained of might have contributed to
the conversation." Chapman, at 23. (Italics added.)

  I would grant a new trial.
