United States v. Jass, No. 06-4899-cr (2d Cir. June 16, 2009) (Walker, Cabranes, Raggi, CJJ)
Marian Jass was jointly tried with her much older boyfriend, Kenneth Leight, on charges that they sexually exploited Leight’s daughter and one of her friends. Leight, but not Jass, was also charged with several child pornography counts, based on materials found in his home. The evidence of sexual exploitation consisted mainly of the testimony of the two girls. The government also relied on an agent’s testimony that Leight gave a detailed oral, unsigned and unacknowledged, confession about the episode involving the daughter’s friend. The statement, which incriminated Jass and referred to her seven times, was admitted over her objection after being redacted to substitute the phrase “another person” for each reference to her name. Leight did not testify and could not be cross-examined about the statement attributed to him. The court instructed the jury that it could not consider the statement against Jass. Jass was convicted along with Mr. Leight and was sentenced to 65 years imprisonment.
The opinion concerns the admissibility of the redacted statement and a sentencing guideline issue. The Court rejected in a summary order other evidentiary and sentencing arguments.
The Redacted Statement
The defendants’ activities came to light soon after the New Jersey trip, and both were arrested. Post-arrest, Leight gave a detailed statement about the New Jersey trip that implicated both him and Jass. At the defendants’ joint trial, Leight’s confession was admitted, but was redacted of its references to Jass, who was either referred to as “another person” or “the other person.” The district court also gave instructions limiting the jury’s use of the statement to Leight and prohibiting its use against Jass.
On appeal, Jass argued that the admission of Leight’s confession violated her confrontation right under Bruton because the use of neutral pronouns or phrases such as “another person” was inadequate under Gray v. Maryland, 523 U.S. 185 (1998), which held that replacing a defendant’s name with an obvious blank or a “deleted” reference was insufficient to avoid Bruton error. Jass claimed that the redaction here was insufficient because it still obviously implicated her, and that the circuit’s pre-Gray case law – which permitted the substitution of neutral words for a defendant’s name – had been abrogated by Gray.
The circuit disagreed. It first noted that it had already held, in a 2001 case, that this was not so and that there was no basis for reconsidering that case.
Nor did it matter that in Jass’ case the redacted confession implicated only one person other than the declarant and only the declarant and one other person were on trial. While Leight’s redacted confession alluded only to a single, presumably female, confederate, this circumstance is not analogous to Gray because the “another person” redaction effectively concealed from the jury the fact that Leight had referred directly to another person at all, let alone that the person he identified was Jass.
According to the circuit, this is the core element of the Bruton/Gray line of cases: a concern that juries not learn that a declarant defendant has “specifically identified a co-defendant as an accomplice in the charged crime,” because such “specific testimony” is “more vivid than inferential incrimination” and is thus “more difficult to thrust out of mind.” But the Bruton rule is “narrow,” confined to those situations where there will be an “overwhelming probability” that the jury cannot ignore one defendant’s specific implication of another. Where the redaction adequately conceals from the jury the specific identification of a co-defendant, there is no reason to fear that a jury will be unable to follow the court’s instruction that it should consider a confession only against its maker. The Confrontation Clause does not require that a “confession be redacted so as to permit no incriminating inference against the non-declarant defendant.”
Here, accordingly, the redaction was adequate. First, it did not indicate to the jury that Leight’s original statement contained actual names. The way the agent described the confession – e.g., “Mr. Leight told me that he and another person had taken [Victim 2] to … New Jersey” – in no way suggested that Leight had given the agent the actual name of his accomplice.
Nor did the redacted confession “immediately” inculpate Jass. Here, the inference that the jury would have had to make to connect Jass to the redacted statement was sufficiently attenuated, because the jury would have had to refer to other trial evidence to make the link. Viewing the statement in isolation, it would not have been immediately apparent that the references to “another person” must have meant Jass, even though some of the redactions made it fairly clear that the “other person” was a woman. A “simple gender reference … lacks the specificity necessary to permit a jury to draw an immediate inference that the defendant is the person identified in the confession.” This is true even though Jass was the only other person on trial with Leight. All a juror could infer from this was that the prosecution believed that Jass was the other person that Leight mentioned in his confession but who, as far as the jury knew, he did not identify further. Accordingly, there was no Confrontation Clause violation here.
The court concluded with a brief review of the evidence of Jass’ guilt apart from Leight’s statement, and found that that the testimony of the girls rendered any confrontation error harmless, although this review did not expressly discuss the corroborating effect of Leight’s statement.
The Sentencing Issue
Before the New Jersey trip, Leight used a computer, with Jass’ knowledge, to “groom” the daughter’s friend by showing her images of adults having sex with children so as to persuade her that such acts were normal. The district court subjected both defendants to the two-level enhancement under guideline section 2G2.1(b)(3)(B)(ii), which prescribes a two-level enhancement for the use of a computer to “solicit participation with a minor in sexually explicit conduct.” Jass argued that this enhancement did not apply, since it was the minor’s own participation – and not a third party’s – that had been solicited.
The circuit agreed. It would make no sense to say that there should be a two-level increase because Leight used a computer to “solicit [Victim 2’s] participation with [Victim 2] in sexually explicit conduct.” It is more natural to read this section as addressing a situation in which one person solicits another person to engage in sexual activities with a minor; otherwise the phrase “participation with” is rendered effectively meaningless. Accordingly, here, it was error to enhance Jass’ sentence under this provision.
But the error was harmless. The district court gave Jass a below-Guideline sentence of 65-years’ imprisonment – Leight got 115 years – and specifically indicated that it would have imposed the same sentence without the enhancement.