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(*Editor’s Note. Attorney Michael J. Petro represented Braziel at trial and on appeal.)

Alonzo Braziel first became involved in the scheme in 2004 as a buyer applying for mortgage loans at the direction of others. The indictment charged that Braziel participated in fraud surrounding the purchases of three residential properties in the Chicago area located at 1430 Portland Avenue, 14820-22 South Hoyne Street, and 7321 South Evans Avenue.

Braziel raises two issues on appeal. He argues that the district court erred by admitting a statement made by one of his co-defendants in which Braziel was implicated,in violation of Bruton v. United States, 391 U.S. 123 (1968).

The Bruton Issue

In Bruton v. United States, the Supreme Court held that a defendant’s Sixth Amendment right to confront witnesses against him is violated when the confession of a non testifying co-defendant implicating the defendant as a participant in the crime is admitted in a joint trial of both defendants. 391U.S. at 137. A Bruton violation may be avoided, however, by redacting the reference to the defendant and substituting a generic reference such as”another person” or “another member of the group.” The issue here is whether the redaction used by the government, substituting for Braziel’s name the words “straw buyer,” was sufficient to solve the Confrontation Clause problem. Braziel argues that, despite the redaction, the”straw buyer” reference still pointed to him as a participant in the crime. Although this is a close case, we conclude that the use of the edited statement with the “straw buyer” reference did not violate Bruton here.

The Co-Defendant’s Statement

The government sought a pretrial ruling on the admissibility of statements made by Braziel’s co-defendants, as well as an order to limit defense counsel from eliciting portions of these statements that would give rise to a violation of Bruton.It included a description of the property transaction, but it did not mention that Braziel was incriminated in that section, nor did it provide any description of the redaction that the government intended to use.

The day before Special Agent Kaiser’s testimony at trial, the government discussed with defense counsel and the court how it had redacted Thomas’ statement to conceal Braziel’s identity. The prosecutors noted that the original statement referred to Braziel as the purchaser of 14820-22 South Hoyne Avenue, but they had replaced his name with the term “straw buyer.”

Several minutes later, Braziel’s counsel objected and requested a mistrial, claiming that the jury could identify Braziel as the straw buyer, so that admitting Thomas’ incriminating statement without the opportunity to cross-examine him violated Braziel’s Confrontation Clause rights under Bruton.

The court deferred ruling on Braziel’s mistrial motion until later that day when it reviewed the transcript from the conference the day before. Acknowledging some potential confusion in their prior discussion, the court then denied the mistrial motion. Braziel renewed his motion at the close of the trial, and the court again denied the motion.


On appeal, Braziel maintains that the district court erred by denying his motion for a mistrial. We review the district court’s denial for an abuse of discretion, United States v. Tanner, 638 F.3d 890, 898 (7th Cir. 2010),but we begin by reviewing the court’s application of Bruton de novo. See United States v. McGowan, 590 F.3d 446, 453 (7th Cir. 2009).

After the Supreme Court’s further refinement of Bruton in Richardson v.Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185(1998), it is clear that a redacted confession of a non testifying co-defendant may be admitted as long as the redaction does not “obviously” referto the defendant. This determination, focusing on the minutiae of the substituted word or phrase and surrounding context, is not always easy to make.See Gray, 523 U.S. at 195-96.

A district court’s evaluation becomes especially difficult when the defendant’s identity can be established through other evidence offered at trial, as here. Statements that “despite redaction, obviously refer directly to someone, often obviously the defendant,and which involve inferences that a jury ordinarily could make immediately” are prohibited under Bruton. Id. at 196; see also United States v. Brooks, 125 F.3d 484, 501 (7th Cir. 1997) (describing the Richardson Court’s distinction between “specific testimony” identifying the defendant and an “inferential incrimination”).

This case falls close to that subtle line.

We have navigated these murky waters in several of our prior cases. In United States v. Stockheimer, 157 F.3d 1082, 1086-87 (7th Cir. 1998), we found no Bruton violation where the altered statement did not incriminate the nontestifying defendants by itself. In contrast, a more obvious one-to-one correspondence such as an alias or pseudonym is too transparent to pass muster. In contrast,in United States v. Hoover, 246 F.3d 1054, 1059 (7th Cir. 2001), we concluded that substituting “incarcerated leader” and”unincarcerated leader” for the names of the two defendants did not solve the Bruton problems because those were “obvious stand-ins”for the names of the defendants.

Here,we do not find the use of “straw buyer” in the Thomas confession tobe so obvious a reference to Braziel as to violate Bruton. First, unlike an alias or a pseudonym used to disguise a single individual, “straw buyer”is more similar to an anonymous reference such as “another person” or”an individual.”

We agree with Braziel that “straw buyer”is not neutral insofar as it connotes some illicit activity, but the substituted word or phrase need not be neutral. In context, the Thomas statement was describing a transaction with a straw buyer, so using the phrase was not much different from using “the buyer” or “the person.” The statement was highly incriminating to Thomas, but his statement was not used to show that Braziel was the buyer. Most important for our analysis, the use of “straw buyer” did not facially incriminate Braziel as clearly as the terms “incarcerated leader” and”unincarcerated leader” did in Hoover. The “strawbuyer” term could refer to anyone.

Taken alone, nothing in Thomas’ statement as told by Special Agent Kaiser suggests that Braziel was the strawbuyer.

Second,although a reasonable jury member could have concluded that Braziel was the straw buyer to which Thomas referred by comparing other evidence presented at trial, the evidence required to make that connection was farther removed from the redacted statement than the clear correspondences present in Gray and Hoover. The Supreme Court has distinguished this type of acceptable indirect inference from an unacceptable immediate inference. See Gray,523 U.S. at 195-96; Richardson, 481 U.S. at 208 (reiterating that only those statements that “expressly implicate” the defendant or are”powerfully incriminating” trigger Bruton).

Though the case came very close to the Bruton line, the district court did not run afoul of Bruton by admitting the statement and did not abuse its discretion by denying a mistrial.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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