U.S. v. Alvarez

• Decision Date: 11 June 1975
• Docket Number: No. 74-1932,74-1932
• Parties: UNITED STATES of America v. Wilfredo ALVAREZ et al. Appeal of Jose Antonio HERNANDEZ.
• Court: U.S. Court of Appeals — Third Circuit

Page 1052

519 F.2d 1052

UNITED STATES of America v. Wilfredo ALVAREZ et al. Appeal of Jose Antonio HERNANDEZ.

No. 74-1932.

United States Court of Appeals Third Circuit.

Argued Feb. 25, 1975.

Decided June 11, 1975.

Stephen M. Greenberg, Newark, N. J., for appellant.

Jonathan L. Goldstein, U. S. Atty., John J. Barry, Asst. U. S. Atty., Newark, N. J., for appellee.

Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal seeks reversal of the judgment and commitment entered on a jury conviction for kidnapping and conspiracy to kidnap in violation of 18 U.S.C.A. § 1201(a) and (c) (1975 Supp.). The defendant-appellant confines his arguments to various asserted trial errors which will be described in the course of this opinion and the Not for Publication Memorandum being filed with this opinion; other aspects of the case are described in the opinion of this court reversing the conviction of a co-defendant, John (a/k/a Jorge) Martinez, 519 F.2d 1036 (1975), being filed on this date. As to defendant Hernandez, we will affirm.

The defendant would have us find reversible error in the district court's admission of a redacted version of a confession of the co-defendant, John Martinez. While acknowledging that this court has allowed the use of a "redacted confession" (page 14 of appellant's brief) of a co-defendant in United States v. Lipowitz, 407 F.2d 597 (3d Cir.), cert. denied, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466 (1969), the defendant argues that error occurred in this case because, in his summation, the prosecutor used the confession to corroborate the testimony of the chief Government witness, Merida.

We are not persuaded that error was committed. We have read the redacted version of John Martinez's testimony, see A223-25, and find that it nowhere mentions any of Martinez's co-defendants, including Hernandez, the appellant now before us. In fact, the only allusion to other participants in the kidnapping was to Merida, who had confessed and testified for the Government. All reference to actions taken by the co-defendants was in the passive voice. Of course, a reasonably intelligent reader could determine that two persons (John Martinez and Merida) could not possibly have done all the things recounted in the redacted confession, but the confession did not disclose whether the other participants were male or female or even how many others there were. Because the confession does not, in its redacted form, so much as hint that Hernandez, the appellant herein, was involved in the crime, we find that the confession did not "inculpate" Hernandez within the meaning of Bruton v. United States, 391 U.S. 123 123-24, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See Lipowitz, supra 407 F.2d at 602.

While the redacted confession, standing alone, does not inculpate Hernandez, we are concerned about the prosecutor's use of the confession to corroborate the testimony of Merida, the chief Government witness against Hernandez. It should be noted at the outset that the district court repeatedly admonished the jury to consider the confession only in regard to John Martinez. N.T. 2938-39 (A130-31); 2974 (A166). The court also warned the prosecutor not to use the confession against John Martinez's co-defendants and eventually forbade the prosecutor ever to mention the confession in any context again. N.T. 2971-72 (A163-64); 2985 (A177). We have carefully reviewed the record in this case and have concluded that there was no abuse of discretion in refusal to grant a mistrial in view of the cautionary instructions of the trial judge.

The Supreme Court has cautioned against reliance solely on limiting instructions where "a substantial threat" to a defendant's right to confront the witnesses against him is involved. Bruton, supra at 137, 88 S.Ct. 1620. In Bruton, the Court pointed out at pages 135-36, 88 S.Ct. at page 1627:

" . . . there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. (Citing cases.) Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is...