UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

DICKERSON, MARK A.


97-3143a

D.C. Cir. 1999


*	*	*


Silberman, Circuit Judge: Appellant was convicted of pos- sessing a
firearm as a convicted felon in violation of 18 U.S.C.  s 922(g)(1)
(1994). He appeals his conviction on the ground  that the district
court erroneously denied his request for a  jury instruction that his
out-of-court statement could not be  used to convict him unless
corroborated by substantial inde- pendent evidence. We affirm the


I.


Appellant was driving his mother's minivan with two pas- sengers in
Southeast D.C. Officer John Cox noticed an  expired inspection sticker
on the minivan and pulled appellant  over. Cox smelled burned
marijuana when he approached  the minivan to ask for appellant's
license and registration,  and observed what appeared to be loose
marijuana on the  floorboard. Cox then called for back-up and ordered
all three  individuals from the minivan. The officers discovered a
gun,  within appellant's reach from the front seat, located in an 
opening in the left wall of the passenger compartment where  a panel
had been pried apart about two inches from the metal  frame of the
minivan. Appellant was then handcuffed and a  more extensive search of
the car uncovered next to the gun  an envelope addressed to "Mark"
containing a birthday card  and a photograph of appellant and a woman,
as well as  various correspondence marked for appellant in the "map 
pocket" on the back of the front passenger seat. As the  officers led
appellant from the scene, he asked why he had  been arrested. Upon
being told that it was because of the  gun, he said that he had been
"hijacked a couple of times,"  but also stated that he did not know


The district court denied appellant's motion for a judgment  of
acquittal at the close of the government's case. Before 


trial, appellant requested that the court give "Redbook"  instruction
2.49, which tells the jury that the defendant  cannot be convicted
solely on his own out-of-court statements  unless those statements are
corroborated by "substantial  independent evidence of facts or
circumstances which tend to  establish the trustworthiness of the
statement."1 The district  court declined. Appellant was convicted and
sentenced to 40  months of imprisonment.


Appellant challenges his conviction solely on the ground  that the
district court erred in rejecting his proposed jury  instruction. He
does not dispute that corroborative evidence  was presented--that
appellant was driving his mother's car  and that the gun was within
his reach and next to his  personal effects--but he claims that the
jury was entitled to  decide if the corroborative evidence was
sufficient. At cer- tain points in his brief, appellant argues as if
such an instruc- tion is necessary in all cases involving a
defendant's out-of- court statements. Yet, in other places appellant
asserts the  more narrow claim that where the evidence is so weak that
 the jury was likely to disregard that evidence and convict  solely on
the basis of an out-of-court statement, a corrobora- tion instruction
is required. The government responds that  there is no requirement to
give such an instruction in all  cases, and that the district court
properly exercised its discre- tion not to issue an instruction in
this case because there was  substantial independent evidence


II.


The Redbook instruction at issue in this appeal derives  from a trio of
Supreme Court cases setting forth the federal  rule governing the use
of a defendant's out-of-court state- ments to convict. The rule covers
both confessions and  admissions of facts that show essential elements
of the crime.  The Court held in pre-Miranda cases that a conviction
cannot  rest on a defendant's out-of-court statement made subsequent





__________

n 1 Instruction 2.49, Criminal Jury Instructions, Young Lawyers 
Section, The Bar Association of the District of Columbia (4th ed. 


to the crime, whether exculpatory or inculpatory, unless the 
government produces substantial independent evidence which  would tend
to establish the trustworthiness of the statement.  Opper v. United
States, 348 U.S. 84, 92-93 (1954); Smith v.  United States, 348 U.S.
147, 155-56 (1954); United States v.  Calderon, 348 U.S. 160 (1954).
The Court explained that the  purpose of the rule, which stemmed from
common law, is to  prevent "errors in convictions based upon untrue
confessions  alone," Smith, 348 U.S. at 153 (quoting Warszower v.
United  States, 312 U.S. 342, 347 (1942)), and that the rule is sup-
ported by a "long history of judicial experience with confes- sions
and [by] the realization that sound law enforcement  requires police
investigations which extend beyond the words  of the accused," id.
Confessions, it was thought, may be  unreliable because of coercion or
inducement and, although  involuntary confessions are excluded from
the jury, a sepa- rate corroboration rule is still necessary. That is
because  voluntary statements may be unreliable if "extracted from 
one who is under the pressure of a police investigation-- whose words
may reflect the strain and confusion attending  his predicament rather
than a clear reflection of his past."  The court noted empirical
evidence of "false confessions  voluntarily made." Smith, 348 U.S. at


It is in the reasoning of these cases that appellant locates  an
entitlement to a jury instruction as to the necessity of 




__________

n 2 Judge Learned Hand doubted as early as 1918 whether the 
corroboration rule "has in fact any substantial necessity in justice."
 Daeche v. United States, 250 F. 566, 571 (2d Cir. 1918). Suffice it
to  say that, post-Miranda, the need for the rule, especially insofar
as  it protects against involuntary confessions, is even more
questiona- ble. See, e.g., 1 McCormick on Evidence s 145, at 563 &
n.49 (4th  ed. 1992); Thomas A. Mullen, Rule Without Reason: Requiring
 Independent Proof of the Corpus Delicti As a Condition of Admit- ting
An Extrajudicial Confession, 27 U.S.F. L. Rev. 385, 401-07  (1993)
(discussing various rationales for rule and concluding that  "[i]n
every case, the rationale proves too much while the ... rule  delivers
too little"). Of course, doubtful though we are that the  Supreme
Court would today rule as it did in 1954, we are bound by  those


corroborating that he had asserted what could be thought a  purpose in
possessing the gun--to protect against hijacking-- which of course
suggests that he actually possessed the gun.  We begin by dispensing
with both appellant's and the govern- ment's suggestion that there is
a meaningful distinction be- tween requiring a corroboration
instruction in all cases and  requiring such an instruction in some,
or "close," cases.3 As  we read the governing Supreme Court opinions,
no defendant  can be convicted on the basis of an uncorroborated
out-of- court statement, whether that statement is used by the 
prosecution to prove a formal element of the crime charged or  a fact
subsidiary to proving an element of the crime. See  Smith, 348 U.S. at
155 ("It is the practical relation of the  statement to the
Government's case which is crucial, not its  theoretical relation to
the definition of the offense."). And if  the requested jury
instruction tracks the corroboration re- quirement, as appellant
contends, an instruction theoretically  would be necessary in every
case in which the prosecution  relies on a defendant's out-of-court


Implicit in appellant's argument is his contention that,  whatever the
judge's role in determining the admissibility of  such a statement,
the jury must ultimately decide whether  the statement is corroborated
as if corroboration were a  separate element of the crime. Although we
have decided a  number of corroboration cases without confronting this
argu- ment, see, e.g., United States v. Johnson, 589 F.2d 716, 718- 19
(D.C. Cir. 1978); Smoot v. United States, 312 F.2d 881,  884-85 (D.C.
Cir. 1962); Bray v. United States, 306 F.2d 743,  746 (D.C. Cir.
1962), appellant is not the first to advance it.  One of the leading
evidence treatises advocates the same  position, see 7 John Henry
Wigmore, Evidence in Trials at  Common Law s 2073, at 530-31 (James H.
Chadbourn rev. 




__________

n 3 In this connection, we reject the government's argument that  the
standard of review for the latter position is abuse of discretion.  We
review all alleged failures to submit a jury instruction de novo,  see
Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 
1993), and review for abuse of discretion only when the challenge is 
to the language of the instruction.


1978) ("The judge's ruling [is] provisional only, preliminary to 
allowing the case to go to the jury; they in their turn must 
conclude, without reference to the judge's ruling, whether the 
corroboration exists to satisfy them.") (emphasis in original),  and
it has been adopted by one of our sister circuits, see  United States
v. Marshall, 863 F.2d 1285, 1288 (6th Cir.  1988), a former member of
this court in dissent, see Bowles v.  United States, 439 F.2d 536, 545
n.8 (D.C. Cir. 1970) (Bazelon,  C.J., dissenting) (noting that
"[c]onsideration of the 'confes- sion' is complicated by the fact that
the trial judge failed to  instruct the jury" pursuant to the Redbook
corroboration  instruction), and state supreme courts applying the
common  law rule which Opper and Smith adopted and modified, see, 
e.g., People v. Reade, 191 N.E.2d 891, 893-94 (N.Y. 1963).


We disagree with appellant. We agree generally with the  First Circuit,
see United States v. Singleterry, 29 F.3d 733,  736 (1st Cir. 1994),
that the jury need not be separately  instructed on the issue for it
is akin to other admissibility  issues, and therefore the trial judge
alone decides whether  the corroboration test has been met. The
corroboration rule  is undeniably, in part, a rule governing the
admissibility of a  defendant's out-of-court statements, see Opper,
348 U.S. at 90  (comparing out-of-court statements to hearsay because
nei- ther have the "compulsion of the oath nor the test of cross-
examination"); Singleterry, 29 F.3d at 737; Smoot, 312 F.2d  at 884.
And it is well settled that preliminary facts relating  to the
admissibility of evidence are questions for the court  and not for the
jury. See Lego v. Twomey, 404 U.S. 477, 489- 90 (1972). There is,
moreover, nothing exceptional about a  court deciding a question such
as corroboration or trustwor- thiness without the jury, and in other
contexts such decisions  are routine. See, e.g., United States v.
Laing, 889 F.2d 281,  287 (D.C. Cir. 1989) (cautionary accomplice
instruction unnec- essary where court first concludes that the
accomplice testi- mony is materially corroborated); Fed. R. Evid.
804(b)(3)  (confession by non-accused that exculpates the accused is
not  admissible unless "corroborating circumstances clearly indi- cate
the trustworthiness of the statement"). There is no  reason to think


the "substantial independent evidence" necessary for corrobo-


To be sure, the corroboration requirement has also been  described as a
rule governing the sufficiency of the evidence.  See Warszower, 312
U.S. at 347-48; Singleterry, 29 F.3d at  738; United States v.
Bukowski, 435 F.2d 1094, 1106 n.7 (7th  Cir. 1970). Although the Opper
Court did liken the rule to an  admissibility requirement, see Opper,
348 U.S at 90, it also  noted that the statement--without
corroboration--was com- petent evidence. And in the two companion
cases the Court  assumed that the statements without corroboration
were ad- missible, see Smith, 348 U.S. at 155; Calderon, 348 U.S. at 
161. The Court's treatment of the issue has caused some  confusion,
but we think the Court created something of a  hybrid rule having
elements both of admissibility and suffi- ciency. Although the
statement would normally be admissi- ble under rules of evidence,
because of ancient common law  concerns, more is required before the
trial judge can allow  the case to go to the jury. Still, that does


We think it telling that in each of the Supreme Court's  principal
corroboration cases, the Court resolved the corrobo- ration question
on its own without any mention at all of the  necessity of jury
reconsideration. See Opper, 348 U.S. at 92- 94; Smith, 348 U.S. at
150-59; Calderon, 348 U.S. at 161-69.  The Court treated corroboration
essentially as a duty im- posed upon courts to ensure that the
defendant is not convict- ed on the basis of an uncorroborated
out-of-court-statement.4  If the Court thought the jury played a




__________

n 4 The court in Singleterry did note however that an otherwise 
admissible out-of-court statement under Opper may be inadmissible 
under Fed. R. Evid. 403 if its probative value is substantially 
outweighed by the danger of unfair prejudice. See Singleterry, 29 
F.3d at 738-39. We agree with the First Circuit that the district 
court may have a "continuing duty to police the jury's consideration 
of a confession's probative value," a duty that is discharged by the 
court's own reconsideration of its corroboration decision or through 
a cautionary instruction to the jury to treat even a corroborated 


tary role in making the corroboration determination, the  Court
certainly could not have affirmed the convictions based  solely on its
own judgment that sufficient corroborative evi- dence existed, without
first considering whether the jury had  been instructed to do the
same. In this light, appellant's  observation that the Court described
the rule as a "restriction  on the power of the jury to convict,"
Smith, 348 U.S. at 153, is  hardly persuasive. After all, the
requirement for sufficient  evidence to convict is itself a limitation
on the jury's power,  but no one thinks it follows from this that the
jury must be  given an opportunity to reconsider for itself the
judge's  decision on a motion for judgment of acquittal.


Although we think the Court's actual application of the rule  in the
Opper trio is decisive, we note that none of the  authorities cited
above in support of jury reconsideration  attempt to justify that
position. We agree with the First  Circuit that no persuasive
justification exists. See Singleter- ry, 29 F.3d at 738; see also
D'Aquino v. United States, 192  F.2d 338, 357 (9th Cir. 1951); State
v. Weller, 644 A.2d 839,  841-42 (Vt. 1994); Watkins v. Commonwealth,
385 S.E.2d 50,  55 (Va. 1989); McCormick s 145, at 564. Indeed, the
Su- preme Court rejected a similar argument for jury reconsider- ation
even where a constitutional right (the Fifth Amendment  right not to
be convicted based on an involuntary confession)  was at stake,
dispensing with the notion that juries are  somehow better suited than
judges to make the determina- tion. See Lego, 404 U.S. at 489-90. It
follows a fortiori that  jury reconsideration is not required where
the protection  stems from a judicially created evidentiary rule. We
think it  also fairly obvious that one of the main purposes of the 
corroboration rule, upon which appellant relies heavily in his 
brief--protecting the defendant from a jury too credulous to  evaluate
confessions objectively, see Smith, 348 U.S. at 153-- is ill-served,
indeed disserved, by asking the jury to deter-




__________

n out-of-court statement critically. Id. We emphasize, however, that 
these kinds of supervisory decisions lie within the district court's 
discretion. See United States v. Lee, 506 F.2d 111, 120 (D.C. Cir. 
1974).


mine for itself whether a confession is trustworthy enough to 
consider. See Corey J. Ayling, Comment, Corroborating  Confessions: An
Empirical Analysis of Legal Safeguards  Against False Confessions,
1984 Wis. L. Rev. 1121, 1140-41;  Developments in the
Law--Confessions, 79 Harv. L. Rev. 938,  1081-82 (1966).5


None of this precludes the jury from independently assess- ing the
weight it wishes to attribute to the out-of-court  statement. See
Lego, 404 U.S. at 486 ("[J]uries [are] at  liberty to disregard
confessions that are insufficiently corrob- orated or otherwise deemed
unworthy of belief."); Singleter- ry, 29 F.3d at 739. The jury's role
is not to reconsider the  judge's corroboration determination under
Opper, but rather  to determine for itself whether an out-of-court
statement,  though meeting Opper's requirement, is sufficiently
trustwor- thy to convince the jury, in conjunction with any other 
evidence, of the defendant's guilt beyond a reasonable doubt.  We
think that the standard reasonable doubt instruction is  adequate to
inform the jury of this role. See id.; D'Aquino,  192 F.2d at 357. In
so holding, we follow the Court's  cautionary advice that "application
[of the rule] should be  scrutinized lest the restrictions it imposes
surpass the dan- gers which gave rise to them." Smith, 348 U.S. at




__________

n 5 The proposed corroboration instruction is quite different, 
therefore, from the cautionary instruction sometimes required in 
cases involving accomplice testimony. A defendant can be convict- ed
solely on the basis of an uncorroborated accomplice's testimony.  Lee,
506 F.2d at 118. We have held that, in certain circumstances,  it may
be error for a district court to decline to instruct the jury to 
treat that kind of uncorroborated testimony with caution and to 
scrutinize it with care. See id. Although there is a justifiable 
worry that without such an instruction the jury will not consider the 
possibility that the accomplice is trying to secure lenient treatment 
through his testimony, see id. at 119, we do not ask the jury to 
determine for itself whether it should be allowed to convict based on 


6 It is true that in the voluntariness context, Congress now  requires
the district court, after concluding that a confession is  voluntary,
to "permit the jury to hear relevant evidence on the issue 


* * * *


For the foregoing reasons, the judgment of the district  court is
affirmed.


So ordered.




__________

n of voluntariness and [to] instruct the jury to give such weight to
the  confession as the jury feels it deserves under all the
circumstances."  18 U.S.C. s 3501(a) (1994); Lego, 404 U.S. at 486
n.14. And courts  have held that it can be reversible error for a
district court not to  give such an instruction. See United States v.
Bernett, 495 F.2d  943, 962 (D.C. Cir. 1974); see also United States
v. Iwegbu, 6 F.3d  272, 274 (5th Cir. 1993). We think the federal
statute mandating an  instruction to the jury sufficiently
distinguishes this situation from  the one at issue in this case. In
any event, we note that such an  instruction is more akin to a
credibility or cautionary instruction  than it is to the