A recent decision by the Second Circuit Court of Appeals may provide guidance to criminal defense practitioners seeking to (1) suppress the involuntary confession of a client, and (2) limit the impact of a co-defendants’ redacted confession being admitted at trial. The Second Circuit, sitting en banc, affirmed a panel’s decision to vacate the convictions of three defendants found guilty of conspiring to commit a Hobbs Act robbery, among other things, and brandishing a firearm in furtherance of a crime of violence. The Court had been asked by the government to review a panel decision that had formerly held that the “confession” of one of the defendant’s was involuntary and should not have been admitted against the declarant at trial. The government also sought review of the panel’s determination that the admission of the “confession” was also prejudicial to the declarant’s co-defendants, requiring a new trial. United States v. Taylor, 736 F.3d 661 (2d Cir. 2013).
A panel of the Court had held that the defendant’s Miranda waiver was not knowing and voluntary, given that the defendant was clearly mentally incapacitated during his interview with federal agents. Id. at 669. The panel noted that the defendant had ingested a quantity of Xanax pills immediately before his arrest, and not long before the interrogation by the FBI had begun. The panel pointed out that the defendant was “in and out of consciousness while giving his statement, and in a trance or a stupor most of the time when not actually asleep.” Id. at 670. As such, the panel determined that “the officers’ persistent questioning took undue advantage of [the] [defendants’] diminished mental state, and ultimately overbore his will.” Id. The panel concluded that the admission of the defendant’s involuntary confessions was a critical part of the prosecution’s case, and could not be deemed “harmless error beyond a reasonable doubt.” Id. at 672.
Notably, the Second Circuit (en banc) withdrew the panel’s prior decision, and issued a superseding opinion. States v. Taylor, 2014 WL 814861, (2d Cir. 2014). It not only reaffirmed the panel’s prior decision in all respects, but further held that the admission of the defendant’s “confession” at trial violated the Confrontation Clause rights of the other co-defendants. The Court ruled that the redacted confession simply did not comply with Bruton, and made it obvious to jurors that the declarant had implicated his co-defendants in the crime. The Court explained that the redacted version of the defendant’s statement suggested that the original statements contained actual names.
The Court took observance of the fact that the redacted statement had contained both the declarant’s name and the name of the government’s cooperating witness (“Luana Miller”), while referencing the other co-defendants by “two other individuals” or “driver.” Id. The Court reasoned that the redacted confession allowed jurors to notice that “Miller is the one person involved who was cooperating, and  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.” Id. at *11. The Court noted that “[i]f the defendant 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.” Id.
The Court explained that “[o]nce it becomes obvious that names have been pruned from the text, the choice of implied identity is narrow. The unnamed persons correspond by number (two) and by role to the pair of co-defendants.” Id. at *12. The Court noted that the “obviously redacted confession … points directly to the defendant[s], and it accuses the defendant[s] in a manner similar to … a testifying codefendant’s accusatory finger.” Id. (quoting Gray, 523 U.S. at 194). The Court concluded that the “awkward circumlocution used to reference other participants, coupled with the overt naming of Luana Miller (only), is so unnatural, suggestive, and conspicuous as to offend Bruton, Gray, and Jass.” Id.
While the Second Circuit’s decision is applaudable, it may leave many criminal defense practitioners pondering over the slew of similar cases that have come before the Circuit in the past without any success on this issue. Both the language and form (identifying by name the declarant & cooperator(s), while others as “person/individual”) that the Court identified in Taylor appears to have been customarily approved by the Courts. Indeed, Federal prosecutors have routinely been able to utilize such redacted confessions, although the defense has routinely objected to its admission based upon the obvious nature of the redaction and the likelihood that the jury will infer that their client had been implicated by their cohort. Nevertheless, the Second Circuit has finally spoken against this once unfettered practice, and provided some much needed guidance on the issue.