U.S. v. Dady, s. 75-2458

• Decision Date: 10 June 1976
• Docket Number: 75-2459,Nos. 75-2458,s. 75-2458
• Citation: 536 F.2d 675
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Keith DADY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Andrew RANSOM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 675

536 F.2d 675

UNITED STATES of America, Plaintiff-Appellee, v. Richard Keith DADY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William Andrew RANSOM, Defendant-Appellant.

Nos. 75-2458, 75-2459.

United States Court of Appeals Sixth Circuit.

Decided June 10, 1976.

Argued April 12, 1976.

Doug Thoresen, Nashville, Tenn. (Court-appointed CJA), for defendant-appellant.

Charles H. Anderson, U.S. Atty., Irvin H. Kilcrease, Jr., Nashville, Tenn., for plaintiff-appellee.

Before WEICK, LIVELY and ENGEL, Circuit Judges.

PER CURIAM.

Appellants Dady and Ransom were indicted and convicted on one count of conspiracy to rob the Harpeth National Bank at Nolensville, Tennessee, 18 U.S.C. §§ 371, 2113(a). A third defendant, Lawrence Harrison, was convicted, but has not appealed his conviction. In their appeals Dady and Ransom assert that the introduction into evidence at their joint trial of a redacted oral confession of co-defendant Harrison violated their constitutional rights to confrontation under the Sixth Amendment, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). They also claim that there was insufficient evidence, particularly on the element of an agreement on their part to commit the robbery, to support the verdict of the jury. In addition, in his appeal, Dady alleges as part of the Bruton issue, that the government in its closing argument improperly argued the facts brought out in Harrison's confession, to Dady's further prejudice.

Briefly summarized, the proofs show that on May 15, 1975, Dady, Harrison and one Richard Steele met in Nashville, at which time Harrison stated that he knew of a bank to rob in the country and offered to split the proceeds of the robbery with Steele and Dady if they would take him there. The following day, May 16, Dady picked up Steele, Harrison and Ransom and the four men went to the apartment of William Cross. Thereafter the group drove to Nolensville to the Harpeth National Bank, where Steele went inside to check it out while the others remained in the car. Steele felt someone was watching him as he left the bank, and the group returned to Nashville and split up.

Dady, Steele, Harrison and Cross met again on May 19, but Ransom was unable to meet them as he could not obtain a pass from the Work Release Center where he was incarcerated. On May 20, Dady, Ransom, Harrison and Steele returned to Nolensville. Because they thought they had been seen, the men went back to Nashville, changed cars, and returned to Nolensville in a blue Pontiac. Prior thereto, at Ransom's request, Steele had obtained two pistols. Meanwhile Steele notified the police of the planned robbery and obtained a promise of a $400 reward for his cooperation.

The group discussed what they should do and it was finally decided that only Dady and Harrison would go to the bank while Ransom and Steele waited nearby at a Dairy Queen drive-in. Accordingly, Dady and Harrison went to the bank where they were arrested by FBI agents.

Neither Steele nor Cross was indicted, although Steele was named in the indictment as a co-conspirator. Both testified freely at the trial and we conclude that their testimony alone fully established the existence of the conspiracy, including the agreement and the commitment of Dady, Harrison and Ransom to it. Testifying also at the trial was FBI agent Laverne Moore. Moore was permitted to testify concerning a confession given to him by Harrison, but only after the district judge had heard the proposed testimony out of the presence of the jury during an evidentiary hearing, and ordered that any reference to defendants other than Harrison be redacted. The testimony so redacted was finally given by Moore in the presence of a jury. ¹

Appellants contend that admission of the confession even as redacted, was inculpatory to them and thus violated their Sixth Amendment right to confrontation, since they had no opportunity to cross-examine Harrison. Specifically, they contend that while the confession made no mention of Dady and Ransom by name, other evidence showed that these defendants had accompanied Harrison to the bank several times. Since Harrison admitted he had gone to the bank with the intent to rob it, the only possible inference the jury could draw was that Dady and Ransom also had gone to the bank with the same intent.

In Bruton v. United States, supra, the Supreme Court held that introduction of the confession of a defendant in a joint trial which incriminates his co-defendant may violate the latter's right of confrontation under the Sixth Amendment, where there is no opportunity to cross-examine the defendant who has confessed. In a footnote, the Supreme Court noted the practice of some lower courts of curing the potential prejudice by deleting or redacting from the confession any reference to the co-defendants. Bruton v. United States, 391 U.S. 123, 134 n. 10, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Since Bruton courts have generally approved this practice as a useful alternative to ordering separate trials of co-defendants, but have subjected its employment to close scrutiny for potential unfairness and collision with the principles of Bruton, supra. See e.g. United States v. Hicks, 524 F.2d 1001 (5th Cir. 1975), United States v. Alvarez, 519 F.2d 1052 (3rd Cir.), cert. denied 423 U.S. 914, 96 S.Ct. 221, 46 L.Ed.2d 143 (1975), United States v. Wingate, 520 F.2d 309 (2nd Cir.), cert. denied,--- U.S. ----, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976), United States v. English, 501 F.2d 1254 (7th Cir.), cert. denied 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975), United States v. Jenkins, 496 F.2d 57 (2nd Cir.), cert. denied, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975), United States v. Trudo, 449 F.2d 649 (2nd Cir.), cert. denied 405 U.S. 926, 92 S.Ct. 975, 30 L.Ed.2d 799 (1972), United States v. Gregg, 414 F.2d 943 (7th Cir.), cert. denied 399 U.S. 934, 90 S.Ct. 2251, 26 L.Ed.2d 806 (1970).

In United States v. Trudo, supra, three defendants were tried jointly for bank robbery. At trial, the government introduced testimony concerning confessions of two defendants made to an agent, but in each instance the trial judge instructed the witness to omit reference to any defendant except the declarant when testifying. On appeal, the defendant who made no statement and one co-defendant argued that the Bruton rule was nevertheless violated. Since two of the men had made statements indicating their own guilt, and independent evidence showed that three men robbed the bank and that the three co-defendants were seen together at the time of the robbery, defendants argued that the only logical inference the jury could draw was that all three men, including the defendant who made no statement, had robbed the bank. The Second Circuit rejected the contention:

Bruton is clearly not...