                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-2839
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *
      v.                                  * Appeal from the United States
                                          * District Court for the District
Benjamin Matthew Logan, Also              * of Minnesota.
Known as Matt Logan,                      *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: January 14, 2000

                                   Filed: April 24, 2000

                                     ___________

Before WOLLMAN, Chief Judge, and HEANEY, McMILLIAN, RICHARD S.
      ARNOLD, BOWMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD
      ARNOLD, and MURPHY, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Benjamin Matthew Logan appealed from convictions for conspiracy, see 18
U.S.C. § 371, selling firearms without a license, see 18 U.S.C. § 922(a)(1)(A),
§ 924(a)(1)(D), the interstate transportation of stolen firearms, see 18 U.S.C. § 922(j),
§ 924(a)(2), making false statements in firearms transaction records, see 18 U.S.C.
§ 924(a)(1)(A), armed robbery, see 18 U.S.C. § 1951, and using a firearm in a crime
of violence, see 18 U.S.C. § 924(c). A panel of our court affirmed all of the
convictions except those for armed robbery and using a firearm in a crime of violence;
the panel reversed the latter two convictions on the ground that Mr. Logan's sixth
amendment rights of confrontation were violated during his trial. See United States v.
Al-Muqsit, 191 F.3d 928, 941-45 (8th Cir. 1999), vacated, No. 98-2839 (8th Cir.
Nov. 23, 1999), cert. denied, 120 S. Ct. 548 (1999). We granted the government's
petition for rehearing en banc to consider a single point, viz., whether, in the
circumstances of this case, Mr. Logan was denied his rights under the confrontation
clause when a nontestifying codefendant's statement was admitted into evidence. We
conclude that Mr. Logan's rights were not violated and we therefore affirm the two
remaining convictions.

                                           I.
      Mr. Logan's complaint about the way that his trial was conducted centers on the
manner in which the trial court admitted the confession of Zachary Roan, Mr. Logan's
codefendant and alleged accomplice in an armed robbery and a murder. A detective
was allowed to testify that Mr. Roan said that he planned and committed the relevant
robbery with "another individual." Despite the fact that the trial court instructed the
jury not to use the statement as evidence of Mr. Logan's involvement, Mr. Logan
maintains that he was denied his sixth amendment rights of confrontation because
Mr. Roan did not testify.

       In support of his contention, Mr. Logan directs our attention to Bruton v. United
States, 391 U.S. 123, 126 (1968), which overturned a conviction because the trial court
admitted, over the defendant's objection, a codefendant's statement that he and the
defendant had committed an armed robbery. The Court held in that case that an
instruction to the jury to disregard the statement to the extent that it implicated the
defendant insufficiently safeguarded the defendant's confrontation rights. Id. at 135-36.
In Richardson v. Marsh, 481 U.S. 200, 208-09, 211 (1987), however, picking up on
a hint dropped in Bruton, the Court approved the admission of a nontestifying

                                          -2-
codefendant's confession that was redacted to eliminate any reference to the defendant's
existence. The Court held that so long as a proper cautionary instruction is given to the
jury, if the confession itself does not implicate the defendant, the fact that it might do
so in light of other evidence introduced at the trial is of no moment. See id. at 208.

       Here, Mr. Logan asserts that replacing his name with the phrase "another
individual" somehow ineluctably led the jury to conclude that he was the person meant.
He says this, evidently, for two reasons. The first is that another confession of
Mr. Roan's was admitted during the trial before the detective testified, and in it
Mr. Roan refused to name his accomplice. Mr. Logan maintains that because in the
redacted statement Mr. Roan said that he committed the crimes with "another
individual," and since there was no reference to a refusal to name the accomplice, the
jury would infer that a name (namely, Mr. Logan's) was purposely redacted from the
second statement.

      We are unable to follow the logic of this argument. There is no inconsistency
between a statement that includes a refusal to name an accomplice and a statement that
"another individual" committed a crime. A refusal to name an accomplice necessarily
presupposes the existence of "another individual." Since the two statements are
perfectly consistent, we see no reasonable possibility that a jury would infer that
Mr. Roan had named his accomplice in the second statement but that the name had
been redacted from that statement.

        Mr. Logan's second contention is equally meritless. He argues that because he
took the stand and admitted that he was present at the robbery and the murder but
maintained that he was coerced, the redacted confession took on added evidentiary
meaning and pointed a finger directly at him. We see the logic of the argument, but we
think that it is expressly foreclosed by Marsh. Although the Court in Marsh, 481 U.S.
at 211 n.5, reserved ruling on the case in which the defendant's existence is adverted
to in some anonymous way, as, for instance, by replacing "the defendant's name ... with

                                           -3-
a ... neutral pronoun," we think that the principles on which Marsh was decided provide
clear guidance on how to resolve the instant difficulty.

        In deciding Marsh, 481 U.S. at 209, the Court expressly rejected the proposition
that the admissibility of the relevant confession was to be judged by "assess[ing] [its]
'inculpatory value' by examining not only the face of the confession, but also all of the
evidence introduced at trial," id. at 205-06, quoting Marsh v. Richardson, 781 F.2d
1201, 1212 (6th Cir. 1986), rev'd, Marsh, 481 U.S. at 200. Indeed, the Court limited
the Bruton rule to "facially incriminating" confessions. Marsh, 481 U.S. at 211. We
think that the Court's comment that any other rule "obviously lends itself to
manipulation by the defense," id. at 209, effectively deals with Mr. Logan's complaint
that to accept the government's argument in this case would penalize him for raising the
defense of coercion and would deter others from doing the same.

        In holding that the admissibility of a confession under Bruton is to be determined
by viewing the redacted confession in isolation from the other evidence admitted at
trial, we simply adhere to a view that several of our cases have long since adopted.
See, e.g., United States v. Jones, 101 F.3d 1263, 1270 (8th Cir. 1996), where we
explained that "there is no violation where the confession implicates the defendant only
when linked to other evidence." Numerous opinions from our sister circuits support
this view of the law. See, e.g., United States v. Verduzco-Martinez, 186 F.3d 1208,
1212-15 (10th Cir. 1999); United States v. Lage, 183 F.3d 374, 387-88 (5th Cir. 1999),
cert. denied, 2000 WL 197669, 2000 WL 197670 (U.S. Feb. 22, 2000); United States
v. Sherlin, 67 F.3d 1208, 1215-17 (6th Cir. 1995), cert. denied, 516 U.S. 1082, 517
U.S. 1158 (1996); United States v. Hoac, 990 F.2d 1099, 1105-07 (9th Cir. 1993),
cert. denied, 510 U.S. 1120 (1994); United States v. Williams, 936 F.2d 698, 700-01
(2d Cir. 1991); and United States v. Vogt, 910 F.2d 1184, 1191-92 (4th Cir. 1990),
cert. denied, 498 U.S. 1083 (1991). We think that it is important to bear in mind that
Bruton turned on an uneasiness about the jury's ability to heed a cautionary instruction,
and we are not uneasy about the efficacy of such an instruction when the relevant

                                           -4-
confession itself does not implicate the defendant. We become more firmly attached
to this conviction when we recall that Bruton, 391 U.S. at 135-37, recognized that it
was establishing an exception to the general rule that courts presume that juries follow
the instructions that trial courts give them.

       We think, moreover, that the circumstances here serve to distinguish our case
significantly from Gray v. Maryland, 523 U.S. 185, 188 (1998), where the Court
reversed a conviction because a nontestifying codefendant's statement was admitted
after being redacted by substituting a blank or the word "deleted" for the defendant's
name. We see, first of all, a difference in kind. The confession in Gray, 523 U.S. at
194, had quite obviously been redacted, a circumstance that the Court found pointed
a finger directly at the defendant. In our case, by contrast, there was no indication
whatever that there had been a redaction: Mr. Roan's statement was an oral one, and
the detective simply testified that Mr. Roan said that "another individual" had been in
on the planning and commission of the offense. For all the jury knew, these were
Mr. Roan's actual words, not a modified version of them.

       Then there is the matter of degree. In Gray, 523 U.S. at 188-89, 192, the
redacted written statement (with blanks for the defendant's name) was admitted into
evidence and a witness also read the statement into evidence, saying the word "deleted"
each of the four separate times that he encountered a blank. By contrast, in our case,
the allegedly offending phrase occurred only once, and then only in the mouth of a
witness, not in the less ephemeral and potentially more damaging form of a writing.
This is simply not the kind of statement that is so " 'powerfully incriminating,' " Marsh,
481 U.S. at 208, quoting Bruton, 391 U.S. at 135, that it requires us to abandon the
normal presumption, already alluded to, that juries follow their instructions. In so
holding, we remain faithful to the admonition in Gray, 523 U.S. at 196, that we must
consider "the kind of, not the simple fact of, inference" (emphasis deleted) that the
relevant statement might give rise to.


                                           -5-
       Finally, Mr. Logan urges us to hold that our case is controlled by the recent
Supreme Court decision of Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887 (1999).
We decline that invitation because that case involved the admissibility of a confession
of a nontestifying codefendant who implicated the defendant by name, and the Court
rejected the argument that the unredacted statement, admitted as a statement against the
declarant's penal interest, did not violate the defendant's confrontation rights. Id., 119
S. Ct. at 1896-99 (plurality opinion). Our case involves a redacted confession and its
admissibility or not continues to be determined by the principles outlined in Bruton, as
the Court itself noted in Lilly, 119 S. Ct. at 1896 (plurality opinion).

                                            II.
      For the reasons indicated, we affirm Mr. Logan's convictions for armed robbery
and for using a firearm in a crime of violence. We also reinstate the earlier panel
opinion to the extent that it is not inconsistent with this opinion.

HEANEY, Circuit Judge, with whom McMILLIAN, RICHARD S. ARNOLD, and
HANSEN, Circuit Judges, join, dissenting.

      I believe that this case presents a clear Bruton violation, that the error here is not
harmless, and, therefore, I would reverse the district court.

      Benjamin Matthew Logan was tried jointly with Zachary Aaron Roan,1 Karl
Kimpton, and Dennis Kermit Michels on federal charges2 of conspiracy, robbery, use
and carrying of a firearm during a crime of violence, unlicensed dealing in firearms, and


      1
       Subsequent to the trial, Roan changed his name to Abdul Wahid Al-Muqsit. For
the sake of clarity, I refer to him by the name he used during the crimes and trial.
      2
       It should be noted that Logan was previously tried for murder by the state of
Minnesota for the same course of conduct. He was acquitted. This federal prosecution
followed.

                                           -6-
transportation and receipt of stolen firearms. These charges arose out of the trafficking
of illegal guns from Minnesota to Chicago. Logan, with no prior criminal history, was
convicted and sentenced to 45 years of imprisonment, primarily for the robbery
conviction.

      At the defendants' trial, the district court permitted Detective Walsh to testify
that Roan had confessed to committing the robbery of Lloyd's Gun Shop with Logan.
Walsh substituted the words “another individual” or “the other individual” for Logan's
proper name when he testified to Roan's confession.

       On appeal, a panel of this court affirmed Logan's convictions for conspiracy,
unlicensed dealing in firearms, and transportation and receipt of stolen firearms. The
panel reversed his convictions for robbery and for use and carrying of a firearm in a
crime of violence, finding these convictions were based on evidence admitted in
violation of Logan's constitutional rights. See United States v. Al-Muqsit, 191 F.3d
928, 945 (8th Cir. 1999). The panel reviewed the United States Supreme Court's
opinions in Bruton v. United States, 391 U.S. 123 (1968), Richardson v. Marsh, 481
U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185 (1998), and held that Logan's
Sixth Amendment right to confrontation was violated because the minor redactions in
Roan's confession were entirely useless in protecting Logan's rights under the
Constitution. I see no reason to depart from the panel opinion. Indeed, upon further
review I am convinced the panel was correct.

       The seminal case on the admissibility of a nontestifying defendant's confession
when it incriminates a codefendant is Bruton v. United States, 391 U.S. 123 (1968).
In Bruton, two defendants, Evans and Bruton, were tried jointly for armed postal
robbery. Although Evans did not testify at trial, a postal inspector testified that Evans
confessed that he and Bruton committed the robbery. At the end of the trial, the court
instructed the jury not to use Evans' confession as evidence of Bruton's guilt, despite
the fact that Evans named Bruton as his accomplice. See id. at 124-25, 134 n.10. The

                                          -7-
Court held that in a joint trial, the admission of a nontestifying defendant's confession
that inculpates a codefendant violates the codefendant's Confrontation Clause rights.
“Despite the concededly clear instructions to the jury to disregard Evans' inadmissible
hearsay evidence inculpating [Bruton], in the context of a joint trial we cannot accept
limiting instructions as an adequate substitute for [Bruton]'s constitutional right of
cross-examination. The effect is the same as if there had been no instruction at all.”
Id. at 137.

      In Richardson v. Marsh, 481 U.S. 200 (1987), the Court again took up the issue
of the admission of one defendant's confession in a joint trial. The defendant's
confession in Marsh did not facially incriminate the codefendant, as it had been
redacted to omit any reference to the codefendant. The Court recognized the difference
between the case before it and Bruton: where Bruton involved a confession that was
unredacted and facially incriminated a codefendant, in Marsh, nothing in the confession
even alluded to the codefendant's existence. It was only through other evidence
introduced by the codefendant that she was linked to the confession. See id. at 203-04.
Holding that no violation occurred, the Court intimated that the proper inquiry in
considering Bruton issues was whether a defendant's confession incriminated a
codefendant on its face. See id. at 211.

       Had Marsh been the last time the Court spoke on this issue, the majority's
opinion would be more persuasive. However, in concluding that “the admissibility of
a confession under Bruton is to be determined by viewing the redacted confession in
isolation from the other evidence admitted at trial,” ante at 4, the majority ignores the
tenets of Gray v. Maryland, 523 U.S. 185 (1998), a case with similar facts and the most
recent source of Supreme Court authority on this issue.

      In Gray, the issue was precisely the same one we take up, that is, whether a
nontestifying defendant's confession, redacted only to omit the codefendant's name, is
admissible in the joint trial of the defendant and the codefendant. The Gray Court held

                                          -8-
that such a redaction violated Bruton, backing away from the narrow, “four-corners”
analysis that the majority now endorses. See id. at 195-96. In Gray, the codefendant's
name was replaced with a blank space. See id. at 192. The Court acknowledged that
Marsh appeared to place “outside the scope of Bruton's rule those statements that
incriminate inferentially,” and that “the jury must use inference to connect the statement
in this redacted confession with the defendant.” Id. at 195. However, as further stated
by the Court:

      inference pure and simple cannot make the critical difference, for if it did,
      then [Marsh] 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. (citation and internal quotations omitted). Marsh did not indicate that inference
itself is the critical point; rather, we are directed to consider “the kind of, not the
simple fact of, inference.” Id. at 196. If the redacted confession still leads the jury,
making ordinary inferences, directly to the codefendant, a Bruton violation has
occurred. See id.; United States v. Gonzalez, 183 F.3d 1315, 1322-23 (11th Cir.
1999) (finding Bruton violation where government redacted defendant's confession to
refer to codefendant only by description, even though description could only be verified
through other evidence); see also United States v. Long, 900 F.2d 1270, 1279-80 (8th
Cir. 1990) (concluding Bruton violation occurred when defendant's redacted statement
referred to codefendant only as “someone” but other evidence “led the jury straight to
the conclusion that 'someone' referred to [the codefendant]”).

      In this case, there was an abundance of evidence linking Logan to Roan's
redacted confession. Unlike the defendant in Marsh, all reference to Logan was not
deleted. Rather, in relating the substance of Roan's confession, Detective Walsh



                                           -9-
consistently referred to Logan as “another individual” or “the other individual” instead
of using Logan's proper name.

       When Walsh referred to this “other individual,” it was clear he was talking about
Logan. At the very outset of Logan's joint trial, the district court informed the jury of
the nature of the indictments. Roan and Logan were the only defendants charged with
the robbery of Lloyd's Gun Shop. Therefore, when Walsh referred to “another
individual” who helped in the robbery, it was apparent even without other inferential
evidence3 that the mystery person was Logan; he was the only other person charged
with robbery. As such, a juror who “wonders to whom the [redaction] might refer need
only lift his eyes to [the codefendant] sitting at counsel table, to find what will seem the
obvious answer.” Gray, 523 U.S. at 193.

       I find the redaction in Logan's case to be different from those we have
recognized as acceptable in the past. We have allowed the admission of a defendant's
confession in a joint trial where references to numerous actors were replaced by “we”
or “they.” See United States v. Edwards, 159 F.3d 1117, 1125-26 (8th Cir. 1998). In
Edwards, the redactions did not “lead the jury directly to a nontestifying declarant's
codefendant.” Id. at 1125. A similar situation was presented in United States v. Jones,
101 F.3d 1263 (8th Cir. 1996), where a codefendant's name was replaced with “we”
and “they.” There, we recognized that replacing proper names with pronouns may be
acceptable where the pronouns “could have referred to anyone or any group of
individuals acting with [the defendant],” and did not lead the jury directly to the
codefendant. Id. at 1270. Terms such as “we” or “they” are terms of indefinite number




       3
        Indictments, of course, are not evidence. Thus, when the indictment linked
Logan to the confession, he was not being linked by other trial evidence, but rather by
the ordinary inferences a juror would be expected to make immediately upon hearing
the redacted confession. See Gray, 523 U.S. at 196.

                                           -10-
and are more ambiguous than terms such as “another individual” or “the other
individual.”

       Further, the majority's reliance on Jones, United States v. Williams, 936 F.2d 698
(2d Cir. 1991), United States v. Vogt, 910 F.2d 1184 (4th Cir. 1990), United States v.
Sherlin, 67 F.3d 1208 (6th Cir. 1995), and United States v. Hoac, 990 F.2d 1099 (9th
Cir. 1993), is misplaced. Each case was decided before the Supreme Court's decision
in Gray. To the extent that they stand for the proposition that a Bruton violation occurs
only when a nontestifying defendant's confession facially incriminates a codefendant,
Gray forecloses such a narrow analysis.

       Finding a Bruton violation where Roan's confession was redacted to refer to
Logan as “another individual” or “the other individual” is consistent with recent
decisions of other circuits. “Clearly, the use of [the defendant]'s confession with the
word 'another' in place of [the codefendant]'s name falls within the class of statements
described in Gray as violative of Bruton.” United States v. Eskridge, 164 F.3d 1042,
1044 (7th Cir. 1998); see also United States v. Peterson, 140 F.3d 819, 822 (9th Cir.
1998) (holding Bruton violation occurred where defendant's confession was redacted
to refer to codefendant as “person X” because defendant was clearly “pointing an
accusatory finger at someone and it was not difficult for the jury to determine that that
person was the other defendant on trial”).

       Marsh teaches that when Bruton issues loom, an acceptable way to reconcile
preference for joint trials with Bruton's constitutional mandate is to simply remove all
reference to the codefendant in the defendant's confession. See Marsh, 481 U.S. at
211. I adhere to this approach.4


      4
       The government argues that such a policy would inevitably result in skewed
evidence. However, it must be remembered that but for the joint trial, the evidence
would not be admitted in the codefendant's trial at all. Thus, to the extent the evidence

                                          -11-
      This case presents a clear Bruton violation. I continue to believe that the error
in admitting Roan's confession was not harmless, for the reasons stated in the panel
opinion. See United States v. Al-Muqsit, 191 F.3d 928, 943-45. I would reverse
Logan's convictions for robbery and for use and carrying of a firearm in a crime of
violence and remand for resentencing on the remaining convictions. Accordingly, I
respectfully dissent.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




is skewed, it is skewed so as to remain constitutionally admissible. If the government
finds such a circumstance untenable, it can opt to try the defendants separately. The
preference for judicial efficiency may not extend so far as to trample a defendant's
constitutional right to confront his accusers.

                                         -12-
