UNITED STATES of America v. Donald E. BELLE.
No. 77-1903.
United States Court of Appeals, Third Circuit.
Submitted Jan. 3, 1978. Argued En Banc Nov. 6, 1978. Decided Feb. 8, 1979. As Amended Feb. 28, 1979.
593 F.2d 487
IV.
The motion of the appellees to dismiss this appeal will be denied. The order of the district court denying appellant‘s motion for intervention will be affirmed.
Appeal of Donald BELLE.
David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, App. Section, Douglas B. Richardson, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Submitted Jan. 3, 1978.
Before ADAMS,* GIBBONS, and GARTH, Circuit Judges.
Argued Nov. 6, 1978 En Banc.
Before SEITZ, Chief Judge, and ALDISERT, GIBBONS, ROSENN, HUNTER, WEIS, GARTH and HIGGINBOTHAM, Circuit Judges.
* Judge Adams was unable to sit with the Court en banc because of injuries.
GARTH, Circuit Judge.
This is an appeal from a jury verdict finding appellant Donald E. Belle guilty of conspiracy to possess, and possession with intent to distribute, 60 ounces of uncut heroin, in violation of
I.
On Friday, April 30, 1976, at approximately 3:00 p. m. two agents (Wasyluk and Albright) of the Bureau of Alcohol, Tobacco and Firearms (ATF) were at the Hilton Inn Hotеl, Old Lincoln Highway, Trevose, Pennsylvania, to meet with their supervisor on a matter unrelated to the instant case. Trevose is virtually a suburb of Philadelphia and is also within a short distance from Bristol, Pennsylvania.
While awaiting the arrival of their supervisor, Agent Wasyluk observed two individuals, later identified as Belle and Munford, sitting in a late model, white Lincoln Continental Mark IV with California license plate 727-MPH, which was in the parking lot of the hotel. Shortly thereafter, while in the hotel lobby Munford was overheard inquiring about a suite and then was observed registering for a double room. Wasyluk became suspicious of the two men because of the colorful manner in which Munford and Belle were dressed, the California plates on the Lincoln Continental, and the fact that Munford and Belle were registering on a Friday evening at a hotel located in an area with little activity as opposed to the city attractions of downtown Philadelphia.
Their suspicions aroused, the agents checked on the Lincoln‘s registration and learned that it was registered to Edward Keefe O‘Neil, 1811 South Carmona Avenue, Los Angeles, California. With this information, they then called the Drug Enforcement Agency (DEA) in Philadelphia to inquire whether the DEA had any information concerning O‘Neil.
DEA Agent Kean with whom the ATF agents spoke was familiar with the name of Edward O‘Neil. Kean learned from the DEA files that two reports had been given eighteen and twenty-one months before by an informant familiar with heroin traffic whom Kean considered very reliable. The reports indicated that an Edward O‘Neil, of 1811 South Carolina Avenue, Los Angeles, was a major drug trafficker who dealt in brown Mexican heroin which he transported cross-country by car, stopping in various cities before reaching Bristol, Pennsylvania, his final stop and home town. According to the report, O‘Neil owned a late model Cadillac, bearing California plates with a false undercarriage in which he stored the heroin. The report also contained a description of O‘Neil which fit either of the occupants of the Lincoln.1 Because the Lincoln was registered to Edward Keefe O‘Neil at an address substantially similar to that in the report and the Lincoln had stopped in Trevose, Agent Kean assigned a team of DEA agents to conduct a surveillance of the Lincoln and its occupants. The ATF agents
At 7:30 p. m. as Munford and Belle left their room, DEA Agents Kean and Hobson drove their vehicle to the intersection of Old Lincoln Highway and Route 1, parking in the lot of the Krispy Kreme Donut Shop, from which vantage point they could observe the Hilton Inn Hotel and the movement of vehicles in all directions.
With Munford driving and Belle as a passenger, the Lincoln exited onto Old Lincoln Highway heading east toward Route 1, drove into the parking lot of the donut shop and parked in close proximity to the DEA agents. Hobson observed Belle get out of the Lincoln and make a hand signal in the direction of a 1973 silver colored Cadillac which was parked across the street, point back in the direction of the Lincoln, and then reenter the Lincoln. The Lincoln then left the parking lot of the donut shop, and proceeded west on Old Lincoln Highway followed by the Cadillac which had license plates indicating that the vehicle was owned or driven by a handicapped person.
Kean, having previously conducted a surveillance which involved the Cadillac, recognized the license plate and car, connecting them to O‘Neill Roberts. Kean was familiar with informants’ reports which indicated that Roberts was involved in the drug traffic in the Philadelphia area, that he bought narcotics from persons who came from Los Angeles, and that he had been shot in the back and crippled during one narcotics transaction. Reports from other government agencies also indicated Roberts’ involvement with narcotics.
Kean and Hobson followed the Lincoln and the Cadillac as they headed west on Old Lincoln Highway. The three cars turned onto Somerton Avenue, and the Lincoln followed by the Cadillac then turned onto Buffalo Avenue, a small residential street not far from the Hilton Inn. As Kean and Hobson continued past Buffalo Avenue, they observed the Lincoln stopped in the driveway of 2606 Buffalo Avenue and the Cadillac stopped at the mouth of the driveway. Hobson left the DEA vehicle and walked back toward Buffalo Avenue to a point where he could observe the Lincoln and the Cadillac. It was there he saw Belle talking to the occupant of the Cadillac. Belle then entered the Cadillac which turned around and retraced its path back to Old Lincoln Highway, followed by two DEA agents.
Kean and Hobson then drove slowly past the Lincoln. Kean observed Munford at the right front wheel of the Lincoln doing something under the Lincoln‘s hood. In total, Kean and Hobson drove past the Lincoln three times. The second and third times Kean observed Munford retrieving from somewhere under the hood of the Lincoln a number of small packets, each of which approximated in size a shotgun shell. The packets were tied together by strings. Based on his experience with narcotics, including his familiarity with the practice of packaging uncut heroin in either one-ounce packages or one-kilogram blocks, Kean believed the packets, which were roughly the size to contain one ounce of narcotics, contained heroin.
It was at that time that Kean directed the DEA agents who were following the Cadillac to stop it and identify the occupants. When the Cadillac was stopped on Old Lincoln Highway near Route 1, DEA Agent Malloy ordered the passenger to get out and identify himself. The passenger complied, giving his name as Donald Belle. Malloy after frisking Belle for weapons asked the driver, a handicapped individual, to identify himself. On learning that the driver was O‘Neill Roberts, Malloy handcuffed Belle. After a report by Malloy‘s partner, Kean ordered the return of the Cadillac and its occupants to the Buffalo Avenue address.
Having learned that the driver of the Cadillac was indeed O‘Neill Roberts, all of the individuals who were by now at the Buffalo Avenue address were detained. Agent Wasyluk, one of the agents who had brought Belle back to Buffalo Avenue, in walking up the driveway and past the Lincoln noticed that the front door was open. Looking through the open door and into the
Belle who had remained in the ATF vehicle was advised of his constitutional rights as that vehicle proceeded to a local police station. Before arriving at the stationhouse Belle explained to Agent Wasyluk his involvement with Roberts. Wasyluk testified “[Belle] statеd that he didn‘t know [Roberts], that this man was a stranger to him and that he had been riding along with Mr. Munford when the stranger stopped him and asked him whether or not he would be good enough to get in his vehicle because he was a cripple and whether or not he could go to the store for him; that he wanted to drive to the store and Mr. Belle could run in and bring something out to him.” N.T. 85, Second Day. After Agent Wasyluk questioned Belle‘s recital, Belle then stated “Well, that‘s my story.”2 N.T. 90, Second Day.
After arriving at police headquarters, Agent Hobson interviewed Munford who volunteered the statement which is the subject of Belle‘s Bruton argument. See II, infra.
Both Munford and Belle were indicted in a two-count indictment which charged them with conspiracy to possess, and possession with intent to distribute, heroin.3 The district court denied Belle‘s pretrial motions to suppress the heroin which the DEA agents seized, as well as his motion to suppress his post-arrest statement which he made to Agent Wasyluk. Belle and Munford were jointly tried and the jury found them each guilty on both counts of the indictment on June 11, 1976. This appeal followed.4
II.
On this appeal, Belle‘s principal contention is that certain statements made by his codefendant Munford which were admitted into evidence at their joint trial violated his Sixth Amendment right of confrontation contrary to the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).5 Specifically, Agent Hobson testified that:
Mr. Munford stated that he had come from California and that he was going to deliver the heroin between 8:00 and 8:30 p. m. that evening of April 30th to a trash can located near the Krispy Kreme Donut Shop at Route 1 on Old Lincoln Highway. He further stated that approximately two or three times in the past he had
N.T. 46, Second Day.6
After objecting to the admission of this statement and moving for a mistrial which the court denied, Belle‘s counsel sought an instruction that the Munford admission be considered solely against Munford, and not against Belle. The district court agreed to give such an instruction at the end of Hobson‘s cross-examination. The instruction was not given at the end of Hobson‘s cross-examination,8 but it was given shortly thereafter, at the end of the redirect examination of the next Government witness. The district court at that time charged the jury that it should consider any statements made by Munford as evidence only against Munford, and not against Belle.
Belle‘s contention is that Munford‘s reference to prior meetings with Roberts, made in the context of a statement that he, Munford, had two or three times transported heroin into the Bristol area and that the heroin on this occasion was to be delivered to the Krispy Kreme Donut Shop were highly incriminating as to Belle as a result of other evidence introduced at trial and inferences which could be drawn therefrom. He argues that the jury would infer that the prior heroin transactions were with Roberts. He also argues that the jury would infer that he was involved in the present drug transaction because he was arrested in the company of Roberts and had been at the donut shop one hour before the scheduled time for delivery. Belle argues these inferences were inevitable and highly prejudicial to him.9
In Bruton two defendants—Evans and Bruton—were jointly tried. At trial, the district court admitted into evidence testimony by a postal inspector of Evans’ oral confession. That confession named Bruton as an accomplice. An instruction limiting the jury‘s use of the confession as against Evans only was given by the district court, relying on Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). In overruling Delli Paoli, the Supreme Court, reversing Bruton‘s conviction, held that Evans’ extrajudicial statement—which made reference to codefendant Bruton—was inadmissible as evidence at the joint trial and could not be cured by a limiting instruction.
The key to Bruton was that the extrajudicial statement by the nontestifying codefendant Evans was “powerfully incriminating” of Bruton in that it named Bruton as an accomplice. It was in such a circumstance—where the challenged statement (and we emphasize, the statement only) directly implicated the complaining defendant Bruton—that the Supreme Court held that the codefendant‘s statement could not be admitted into evidence at a joint trial. See United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977).
When a codefendant‘s extrajudicial statement does not directly implicate the defendant, however, the Bruton rule does not come into play. See United States v. Gerry, 515 F.2d 130 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975); Nelson v. Follette, 430 F.2d 1055, 1057 (2d Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 899, 27 L.Ed.2d 818 (1971). For example, courts—ours included—have consistently approved the use at joint trials of codefendants’ confessions where all references to the complaining defendant have been redacted, at least if the redacted versions do not explicitly suggest the participation10 of the complaining defendant. E. g., United States v. Stewart, 579 F.2d 356 (5th Cir. 1978); United States v. Holleman, 575 F.2d 139 (7th Cir. 1978); United States v. Dady, 536 F.2d 675 (6th Cir. 1976) (per curiam); United States v. Wingate, 520 F.2d 309 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976); United States v. Alvarez, 519 F.2d 1052 (3d Cir.), cert. denied, 423 U.S. 914, 96 S.Ct. 221, 46 L.Ed.2d 143 (1975); United States v. Panepinto, 430 F.2d 613 (3d Cir.), cert. denied, 400 U.S. 949, 91 S.Ct. 258, 27 L.Ed.2d 256 (1970); 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). See United States v. DiGilio, supra, at 982.
If a codefendant‘s confession or admission is admissible at a joint trial when the names of other joint defendants have
The situation here is quite similar to that in Wingate. Belle argues that Munford‘s statement inculpates him. But if it does, it does so only insofar as other evidence may connect Belle to Munford and to O‘Neill Roberts. In such a case, we do not believe that the statement qua statement can be said to be “powerfully incriminating” as to Belle, and thus inadmissible under Bruton. Other courts faced with similar claims have held that the admission of a codefendant‘s extrajudicial statement did not violate Bruton. See United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974); Nelson v. Follette, 430 F.2d 1055 (2d Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 899, 27 L.Ed.2d 818 (1971).
In Nelson, a case with a fact pattern analogous to the one in this case, the complaining defendant Nelson and a codefend-
ant Biggins were jointly tried and convicted of felony murder in the course of a bar hold-up. Two confessions by Biggins were introduced into evidence, with an instruction that they be considered only with respect to Biggins. Biggins did not take the stand. Biggins’ statements did not directly identify Nelson, but rather referred to an “Oliver” who had a physical description more or less fitting Nelson. Biggins had also stated that he ran into “Oliver” at another bar earlier in the evening of the murder, and that they had proceeded together to the bar at which the murder took place. Nelson contended that these statements, when considered in light of testimony by the manager of the first bar to the effect that he had seen Nelson and Biggins together аt his bar on the evening in question, “necessarily implicated” him (Nelson).
The court rejected Nelson‘s contention. It noted that “for the Bruton rule to apply, the challenged statements must be clearly inculpatory.” 430 F.2d at 1057. The court held that since the jury would have to make substantial inferences to implicate Nelson in the crime by virtue of the testimony as to his mere presence at the first bar, Biggins’ statements were “not clearly inculpatory because they alone did not serve to connect Nelson with the crime.” Id. at 1058 (emphasis added). See United States v. Lipowitz, supra, at 602-03. The court also noted that the “connecting testimony” (i. e. the bar manager‘s testimony) was subject to cross-examination. Here, we observe that whatever connecting evidence there was, could have been tested by calling Roberts as a witness.
In United States v. Mulligan, supra, a defendant objected on Bruton grounds to the introduction of admissions by his two codefendants (who did not take the stand). There had been a limiting instruction. The admissions did not directly implicate the complaining defendant. The court rejected this contention, stating:
There is little danger that a jury in a joint trial, in weighing the evidence against A, will consider against A an admission by B concerning only B‘s activities. Following the appellants’ argument to its logiсal conclusion would require separate trials in every case where any defendant has made an admission. Such a holding is wholly unwarranted. 488 F.2d at 737.
We agree with the reasoning of Nelson and Mulligan and are satisfied that the rationale of those cases applies equally in this case. Munford‘s admissions directly implicate only Munford. Unlike Bruton, they do not shift responsibility to Belle. The challenged statements implicate Belle only to the extent that the jury may make inferences based on other clearly admissible evidence which may tend to connect Belle to Munford and Roberts. Accordingly, we are not persuaded that Munford‘s statements can be said to be “clearly inculpatory” or “powerfully incriminating” as to Belle.12 Moreover, all the “connecting testimony” was subject to cross-examination. Consequently, we are convinced that the introduction into evidence of Munford‘s statement did not contravene Bruton or violate Belle‘s right to confront witnesses against him.13
Indeed, in Bruton the Supreme Court was fully aware of the problems presented by the joint trial of more than one defendant, and took pains to discuss in some detail the provisions of
It is highly significant that neither the federal rule examined by the Court, nor Mr. Justice Brennan‘s majority opinion, made any reference to any judicial inspection of evidence other than the statements or confessions of the defendants. If linkage evidence was subsumed by the Court in its Bruton ruling, it is apparent that such linkаge evidence would be required to be subjected to judicial scrutiny together with the defendants’ statements or confessions. No such suggestion is even intimated by Bruton, and it is understandable why it was
We hold therefore that the district court properly admitted Munford‘s statement into evidence.
III.
A
Belle argues that there were no reasonable grounds for his detention on Old Lincoln Highway, that his detention constituted an arrest not based on probable cause, and that as a result the heroin, as well as his statement made to Agent Wasyluk, should have been suppressed as fruits of an illegal arrest. The district court concluded that there were reasonable grounds for Belle‘s detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1969) and that the agents in handcuffing and transporting Belle to Buffalo Avenue were merely maintaining the status quo of the Terry stop. The district court also held that (1) it was unnecessary to determine when the moment of arrest occurred as Belle‘s statement was not made until after the heroin was field tested; (2) that the seizure of the heroin was not the product of Belle‘s detention or arrest; and (3) that probable cause for Belle‘s arrest clearly existed once the heroin had been discovered. As a result, the district court determined that Belle‘s statement was not the fruit of any illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The district court also ruled that the heroin seized was in plain view and that any search of the Lincoln was based on probable cause under exigent circumstances.
We agree with the district court that there were ample grounds for a Terry stop of the Cadillac in which Belle was riding. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) permits an investigatory stop where the facts available to the officer at that moment “warrant a man of reasonable caution in the belief’ that the action was appropriate.” 392 U.S. at 22, 88 S.Ct. at 1880. Here, Kean, who had ordered the DEA agents to stop the Cadillac, had reason to believe the Cadillac was registered to a known drug dealer; that Munford and Belle were together; that Belle had some relationship to the Lincoln; that Belle was in the Cadillac with a then unidentified driver; and that the Lincoln which appeared in some way to have some connection with the Cadillac had just disgorged a number of packets which Kean reasonably believed to contain drugs. Under these circumstances the district court was clearly correct in holding that the agents’ action in stopping the Cadillac was appropriate. See also Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
Belle, however, complains not so much that the Terry stop was impermissible but that probable cause was lacking for his arrest and that when he was handcuffed and transported back to Buffalo Avenue in the ATF vehicle he was clearly under arrest. United States v. Lampkin, 464 F.2d 1093, 1095 (3d Cir. 1972).
While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental—i. e., constitutional—criteria established by this Court have been respected.
374 U.S. at 34, 83 S.Ct. at 1630.14
The record here reveals that at the moment that Belle was handcuffed the DEA and ATF agents15 were aware of the following information: (1) that the Lincoln was owned by Edward O‘Neil, reputed to be a major trafficker in heroin; (2) that the Lincoln reputedly had a secret compartment in which heroin could be hidden; (3) that the Lincoln was in the Bristol area, an area where O‘Neil normally made his last stop after cross-country travels; (4) that Belle and Munford fit O‘Neil‘s description; (5) that Belle and Munford met Roberts at
a prearranged rendezvous at a donut shop at which time Belle was observed signalling in the direction of Roberts’ car; (6) that Roberts in his Cadillac (which was known to Kean) followed the Lincoln to a Buffalo Avenue address; (7) that Kean, on the basis of various reports, believed Roberts to be involved in heroin traffic and to consort with known narcotics dealers; (8) that Kean was aware of informants’ reports which attributed Roberts’ source of supply to someone from Los Angeles, where O‘Neil resided; (9) that Belle had been observed conversing with Roberts and then entering Roberts’ car which headed back to the locale of the ostensible rendezvous; (10) that Munford was observed removing a large number of small packets thought to be heroin from under the hood of the Lincoln; and (11) that Roberts had been positively identified as the driver of the Cadillac.
Belle, however, argues that this collective knowledge was insufficient to establish probable cause for his arrest. He claims that the reports pertaining to Edward O‘Neil were too old to be relied upon and that none of the reports or informants had the indicia of reliability required by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1969). We need not decide here whether Belle is correct in this contention, for the Spinelli and Aguilar standards of reliability are applicable only when the reports are the sole basis for a finding of probable cause. Here, as we have noted, the agents by surveillance made personal observations of Belle, Roberts and Munford,
Belle also argues that each occurrence which we have detailed was consonant with innocent activity and thus could not give rise to the probable cause for his arrest. In so arguing, however, Belle loses sight of or downplays what we regard as the most critical fact of all, viz., the probable possession of heroin by Munford, Belle‘s associate. Belle‘s аctions became more consistent with criminal rather than with innocent behavior when viewed in the context of: (1) the information which the agents had previously received and (2) their observations of Munford who had been seen extracting suspicious packets from a hiding place in the Lincoln. We think it was quite reasonable for the agents to infer, based on prior information and the actions of Munford, Belle, and Roberts, that all three were involved in a drug transaction. Even if we were to assume arguendo that each of Belle‘s actions was susceptible of an innocent explanation, Belle‘s argument would nevertheless fail in light of the totality of the circumstances present here, just as a similar argument in an analogous situation was rejected by the Ninth Circuit in United States v. Patterson, 492 F.2d 995, 997 (9th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 82, 42 L.Ed.2d 75 (1974). The defendants there had asked border patrol agents for directions to San Diego but after receiving them, proceeded in the opposite direction; used the telephone before going to an area where smuggling was known to take place; were observed at a ranch house loading burlap bags into their car; and departed the ranch house early in the morning, many hours after they had arrived. After acknowledging that each of these events could be innocently explained, the court concluded that:
The succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.
492 F.2d at 997.
Indeed, the facts of the instant case seem strikingly akin to those which appear in United States v. Lampkin, 464 F.2d 1093 (3d Cir. 1972), where this court upheld the arrest of a person not yet identified, based upon his associations coupled with a behavior pattern which, as here, bespoke criminal complicity.17
B
Belle also complains that the heroin was improperly seized from the Lincoln in that the seizure did not fall within any of the exceptions to the Fourth Amendment warrant requirement, and that as a consequence the district court erred in refusing to suppress the introduction of the heroin into evidence.19 We cannot agree.
Although the district court confined its analysis primarily to the plain view doctrine as espoused in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), we cannot help but observe that under Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), as well as Coolidge v. New Hampshire, supra, the heroin was properly seized without a warrant.
Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968), states the long-settled rule that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” In Harris, a police officer had discovered the registration card which was sought to be suppressed not as the result of a search of the vehicle, but rather because he was complying with a valid regulation of the police department designed to protect automobiles and their contents when automobiles are taken into police custody. In implementing these protective measures, “[the police officer] saw the registration card, which lay face up on the metal stripping over which the door closes.” 390 U.S. at 235-36, 88 S.Ct. at 993. The Supreme Court held that the discovery of the card under these circumstances did not constitute an illegal search. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), decided by the Supreme Court subsequent to Harris, made explicit the requirement that the objects seen in plain view must be discovered through inadvertence. Coolidge v. New Hampshire, 403 U.S. at 469, 91 S.Ct. 2022.
Relying on the authority conferred upon police officers by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 829, 42 L.Ed.2d 839 (1975), 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976).
Moreover, although not necessary to its determination, the district court made additional findings substantiating its conclusion that exigent circumstances appeared which would authorize the warrantless seizure under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). These findings were as follows:
Given the speed with which the events had unfolded to that point, it would have been highly impracticable to secure a warrant. Despite the fact that Munford and Belle had been detained, the agents were faced with the possibility that the suspected contraband, which was not only incriminating but which had a high dollar value, might be retrieved by someone else. The risk of interference was greater than if the Lincoln had been stopped on a highway. As the officers knew, Munford had driven to this residence and obviously felt it to be a safe place because he immediately began to take the heroin from beneath the Lincoln‘s hood. The agents knew of the woman who had been observed with Belle at the motel. She had a car and had given some direction to Belle. For all the officers knew, there may have been a variety of confederates watching from the house or on call nearby, some or all of whom may have been armed.
Dist.Ct.Op. at 12-13. We cannot say these findings are clearly erroneous. Under either the plain view doctrine or the exigent circumstances analysis, the warrantless seizure of the heroin was justified. Belle‘s motion to suppress was therefore properly denied.
IV.
We have determined that the district court did not transgress the Bruton rule and thus did not err in admitting Munford‘s statements into evidence. We have also determined that the district court properly denied Belle‘s motion to suppress his post-arrest statements and Belle‘s motion to suppress the heroin.
Belle has contended on appeal before us that the district court should have granted his
We have examined the record with respect to each of these contentions and find they are without merit.
V.
The judgment of the district court will be affirmed.
GIBBONS, Circuit Judge, with whom ALDISERT, Circuit Judge, joins, dissenting:
Following his arrest for possession of heroin with intent to distribute, appellant‘s codefendant, Joe C. Munford, made a self-incriminatory statement to Agent Stephen Hobson. Subsequently, at the joint trial of Munford and appellant Donald E. Belle, the prosecuting attorney elicited from Hobson the following recitation of Munford‘s remarks:
Mr. Munford stated that he had come from California and that he was going to deliver the heroin between 8 and 8:30 P.M. that evening of April 30th to a trash can located near the Krispy Kreme Donut Shop at Route 1 on Old Lincoln Highway.
He further stated that approximately two or three times in the past he had transported heroin into the same area and on two occasions had met with O‘Neil Roberts.
N.T. 46, Second Day. Belle objected to the introduction of this testimony, urging that it constituted “the most incriminating piece of evidence in this case.” Id. at 49. He contended at trial, and asserts on appeal, that the introduction of Munford‘s statement, even with an instruction directing the jury to consider it exclusively against Munford, violates the Supreme Court‘s mandate in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). This is so, Belle argues, because despite the instruction, the jury might have inferred from Munford‘s admission that Roberts was generally involved in narcotics transactions and thus that Belle—who was arrested in Roberts’ company—was guilty as charged. Moreover, since the remaining circumstantial evidence linking Belle to an illicit narcotics arrangement was, at best, fragile, the use of this hearsay testimony, and the resulting violation of Belle‘s Confrontation Clause rights under Bruton, were not harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Accordingly, Belle urges, his conviction should be reversed.
The majority rejects Belle‘s position, holding that the introduction of Munford‘s statement at the joint trial did not transgress appellant‘s rights under Bruton. “The key to Bruton,” the majority intones, “was that the extrajudicial statement by the nontestifying codefendant was ‘powerfully incriminating’ of Bruton in that it named Bruton as an accomplice. It was in such a circumstance—where the challenged statement (and we emphasize, the statement only) directly implicated the complaining defendant Bruton—that the Supreme Court held that the co-defendant‘s statement could not be admitted into evidence at a joint trial.” Opinion, supra at 493 (emphasis in the original). Because Munford‘s testimony inculpated Belle “only insofar as other evidence may connect Belle to Munford and to O‘Neil Roberts,” id. at 494, no Bruton violation was presented.
Unhappily, the majority reads Bruton as if it were construing the terms of a carefully drafted contract. At no point does it offer a theory of that case or refer, even casually, to the general purposes of the Confrontation Clause. Rather, it extracts from Bruton the phrase “powerfully incriminating,” and, citing to a litany of cases wrenched hopelessly out of context, concludes that Belle‘s predicament is not covered. I do not find the words “powerfully incriminating” to be magically self-explanatory, and I cannot accept an elucidation of
I. BRUTON v. UNITED STATES AND THE CONFRONTATION CLAUSE
From the majority opinion alone, one might suppose that the 1968 decision in Bruton was the Supreme Court‘s first and final word on the rights of criminal defendants under the Confrontation Clause.1 Of course, this is not the case. While courts have long struggled with the question of what substantive limitations, if any, are placed by the Confrontation Clause on the introduction of evidence, it was in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), that the Supreme Court began to delineate the precise relationship between the right of confrontation and the production of evidence at trial. Rejecting years of contrary precedent,2 the Pointer Court held that the Confrontation Clause is applicable to state criminal proceedings through the fourteenth amendment. In so ruling, it paved the way for a number of decisions scrutinizing the interplay between the hearsay rule and the Confrontation Clause.3
In Pointer petitioner and another defendant had robbed one Phillips. During a preliminary hearing at which the defendants were not represented by counsel, Phillips testified against both defendants. When the case was tried, however, Phillips had moved out of state. The prosecution therefore introduced, over petitioner‘s unsuccessful objection, the transcript of the preliminary hearing. Petitioner was convicted, and the Supreme Court granted certiorari. Writing for a unanimous Court, Justice
Black set aside petitioner‘s conviction. His opinion is noteworthy in that it suggests both the structure and the limitations of the right of confrontation. On the one hand, Black noted, the Confrontation Clause includes a right of cross-examination, a central purpose of which is to “expos[e] falsehood and bring . . . out the truth in the trial of a criminal case.” 380 U.S. at 404, 85 S.Ct. at 1068. Where, as in Pointer, the “statement offered against petitioner at his trial ha[s] not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity [for] cross-examin[ation] . . . its introduction . . . in a criminal case against [the petitioner] amount[s] to denial of the privilege of confrontation guaranteed by the Sixth Amendment.” Id. at 407, 85 S.Ct. at 1070. The Confrontation Clause thus serves an instrumental, truth gathering function insofar as it limits substantively the kinds of evidence that may be introduced against an accused. In addition, Black intimated that the Clause protects intrinsic, “fundamental” values, essential to due process and wholly separate from the more instrumental concern for truth gathering. Id. at 404-05, 85 S.Ct. 1065. On the other hand, Black observed, the dictates of the Clause are not absolute; some evidence, technically hearsay in nature, may nevertheless be admitted. Within this latter category, Justice Black included dying declarations and former trial testimony of a deceased witness. Id. at 407, 85 S.Ct. 1065.
Pointer provided an initial outline of the content of defendants’ Confrontation Clause rights. It isolated both the intrinsic interests of due process and fairness4 and
In Douglas two defendants were tried separately on charges of assault with intent to murder. After the first defendant, Loyd, was convicted, he was called to testify at the trial of the second. Because he planned to appeal his conviction, however, Loyd refused to answer any of the questions put to him. The prosecutor thereupon produced what purportedly was Loyd‘s confession, which he read aloud, in the presence of the jury, in the guise of cross-examination. The confession incriminated petitioner, who was subsequently convicted.
In reversing Douglas’ conviction, Justice Brennan, writing for a unanimous Court, picked up where Justice Black in Pointer had left off. While Black had made clear that the Confrontation Clause places substantive limits on the introduction of hearsay, he had had no occasion to specify in detail the kinds of hearsay that would violate the mandate of the Clause. Justice Brennan turned to this issue directly.
The statements from the document as read by the Solicitor recited in considerable detail the circumstances leading to and surrounding the alleged crime; of crucial importance, they named the petitioner as the person who fired the shotgun blast which wounded the victim. 380 U.S. at 417, 85 S.Ct. at 1076. Justice Brennan thus identified two kinds of hearsay statements which may unlawfully prejudice a defendant: (1) those that provide testimony substantially linking the defendant to the crime (hereinafter referred to as “linkage” testimony), and (2) those that name or identify the defendant as a participant. That Justice Brennan regarded both kinds of remarks as potentially impermissible is again reflected later in his opinion:
In the circumstances of this case, petitioner‘s inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. Loyd‘s alleged statement that the petitioner fired the shotgun constituted the only direct evidence that he had done so; coupled with the description of the circumstances surrounding the shooting, this formed a crucial link in the proof both of petitioner‘s act and of the requisite intent to murder.
Id. at 419, 85 S.Ct. at 1077.
But Douglas does not simply identify two kinds of testimony—directly accusatory and linkage—as potential violations of the Confrontation Clause. In addition, the case relates those forms of hearsay to a deeper, harm-focused theory of the Confrontation Clause. Though he did not abandon the willingness expressed in Pointer to permit some hearsay testimony, Justice Brennan regarded as a violation of the Clause the introduction of all substantially harmful testimony as to which no cross-examination was available. Naturally, what might constitute substantially harmful testimony would depend on the facts of each case and, in particular, on the totality of the evidence adduced by the prosecutor against a given defendant. Where the challenged evidence is essential to the prosecutor‘s case, however, and thus particularly prejudicial to the defendant, Justice Brennan left no doubt that Confrontation Clause values would be implicated.
This case cannot be characterized as one where the prejudice in the denial of the right of cross-examination constituted a mere minor lapse. The alleged statements clearly bore on a fundamental part of the State‘s case against petitioner. The circumstances are therefore such that “inferences from a witness’ refusal to answer added critical weight to the prosecution‘s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.” Id. at 420, 85 S.Ct. at 1077 (quoting Namet v. United States, 373 U.S. 179, 187 (1963)) (emphasis supplied).
The majority goes awry by failing to consider the limited context in which Justice Brennan made reference to the “powerfully incriminating” testimony. In Bruton, unlike in Douglas and Pointer, the lower court had instructed the jury to consider the challenged hearsay only against the declarant. Thus, the Bruton Court considered whether such an instruction could effectively erase the inadmissible statement from the jurors’ minds. Reversing prior case law to the contrary,5 the Court held that where, as in Bruton, the “powerfully incriminating extrajudicial statements of a codefendant, who stands side-by-side with the defendant, are deliberately spread before the jury in a joint trial,” id. at 135-36, 88 S.Ct. at 1628, the jury cannot be expected to ignore them in evaluating the case against the defendant. The Bruton Court thus acknowledged that hearsay statements which directly accuse, and thus devastatingly incriminate a defendant, cannot be erased by simple instructions to the jury. But Bruton did not hold that only such statements will receive scrutiny under the Confrontation Clause. Justice Brennan did not retreat an inch from his Douglas position on the prejudice arising from especially harmful linkage testimony.
Indeed, there are suggestions in Bruton which expressly affirm the harm-focused conception of Douglas. For example, Justice Brennan wrote, “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.” Id. at 135, 88 S.Ct. at 1627 (emphasis supplied). Brennan thus identified two considerations—the risk of improper jury use of testimony, and the harm to the defendant—both of which must be considered in deciding Confrontation Clause cases.6 Either or both could conceivably trigger constitutional concerns. Justice Brennan referred to “powerfully incriminating” testimony simply to establish why a high risk factor was present under the Bruton facts.7 Id. at 135-36, 88 S.Ct. 1620. As for harm, he left intact his earlier observation in Douglas that where the challenged statements are prejudicial, in that they “clearly bore on a fundamental part of the State‘s case against petitioner,“. 380 U.S. at 420, 85 S.Ct. at 1077 a confrontation right is violated. Plainly, linkage testimony is often of this sort, especially in cases built upon circumstantial evidence.8
II. THE RELIABILITY FACTOR AND POST-BRUTON DEVELOPMENTS
In the years following the Court‘s initial decisions under the Confrontation Clause, a good deal of critical commentary emerged. Much of it focused on the growing perception that the Court was constitutionalizing the hearsay rule аnd its current exceptions.12 As a result, it was said, efforts to “liberalize” the law of evidence would be measurably chilled.13 In apparent reaction to this criticism, the Supreme Court decided two cases, California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), and Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), which complicate somewhat the multi-factored model which had evolved by 1968.
The United States Supreme Court vacated the judgment. Writing for the majority, Justice White held that, while the Confrontation Clause and the hearsay rules “are generally designed to protect similar values,” there is not a complete “congruence” between them. 399 U.S. at 155, 90 S.Ct. at 1933. “[M]erely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.” Id. at 156, 90 S.Ct. at 1934. The “core” of the Confrontation Clause, Justice White reasoned, is the “literal right to ‘confront’ the witness at the time of trial . . . .” Id. at 157, 90 S.Ct. at 1934. Because Porter was available for cross-examination at trial, and because his preliminary hearing testimony was contemporaneously subject to cross-examination, Justice White found no constitutional infirmity in its introduction against Green. He remanded the case, however, to permit the state court to determine whether the cross-examination of Porter at the trial, during which time the witness flatly denied remembering the events in question, was sufficient to establish the reliability of Porter‘s statements to the police.
In isolating the opportunity for cross-examination—either at trial or at a preliminary hearing—as an adequate vindication of Confrontation Clause rights, Green establishes reliability as a prominent factor in the Confrontation Clause analysis. Justice White relied heavily on reliability and on the truth gathering function of confrontation in concluding that meaningful cross-examination at some point is sufficient. See 399 U.S. at 158, 90 S.Ct. 1930. He distinguished Pointer, Douglas and Bruton on the ground that the declarants in those cases were not available for cross-examination. Id. at 162-63, 90 S.Ct. 1930. He suggested, moreover, that even if a declarant is unavailable at trial, his statement may still be admitted if it was subject to cross-examination at the time it was made. Significantly, however, Justice White did not suggest that external indicia of reliability, in the absence of some opportunity for searching cross-examination, will also satisfy the truth gathering function of the Confrontation Clause in all cases. Id. at 161-62, 90 S.Ct. 1930.14
In Dutton v. Evans, however, the Court took that next step. Defendant Evans had been convicted of murder. At his trial, an accomplice testified against him, but because Georgia law required corroboration of the testimony of alleged accomplices, some nineteen other witnesses were called. One of these witnesses, Shaw, testified that a third culprit, Williams, had told him while they were both in prison that “If it hadn‘t been for that dirty son-of-a-bitch Alex Evans, we wouldn‘t be in this now.” Williams was not called to testify, and his remarks were admitted under a Georgia exception to the hearsay rule permitting the introduction of hearsay statements made during the “concealment” stage of the conspiracy. In a 5-4 decision, the Supreme Court reversed the Fifth Circuit‘s grant of a writ of habeas corpus, and remanded for consideration of other issues raised in Evans’ motion. There was no opinion of the Court.15
Besides these distinguishing features, Justice Stewart viewed the challenged evidence as having sufficient “indicia of reliability” to obviate the need specifically to confront the declarant. Id. at 89, 91 S.Ct. 210. Williams’ statement, he noted, was made under circumstances which would not give him a reason to misrepresent Evans’ involvement. Id. Moreover, Williams plainly knew whether Evans was involved; and the spontaneity of his remark, together with its adverseness to Williams’ penal interest, rendered “wholly unreal” the possibility “that cross-examination could conceivably have shown the jury that the statement, though made, might have been unreliable. . . .” Id.
For purposes of Belle‘s Confrontation Clause claim, Dutton identifies at least two critically important factors: (1) was the testimony sufficiently reliable to obviate the need for specific confrontation?16 and (2) was the testimony “crucial” or “devastating“?17 Of these factors, the first is in some respects novel; while Green had held that cross-examinаtion at some point satisfies the reliability concerns of the Sixth Amendment, Dutton was the first time since Pointer that an unexamined statement was found so intrinsically reliable as to pass constitutional muster. The second factor, however, the “crucialness” of the statement—had a long history, tracing back at least to the reference in Douglas to the “crucial link in the proof” against the defendant.18 380 U.S. at 419, 85 S.Ct. 1074. Thus, Dutton, to the extent that Justice Stewart spoke for the Court, refined, rather than displaced, prior Supreme Court decisions under the Confrontation Clause.
III. THE APPLICABILITY OF THE CONFRONTATION CLAUSE TO BELLE‘S CONTENTIONS
Because the majority is content to focus simply on Munford‘s failure to accuse Belle directly in his statement to the police, little if any consideration is paid to the other factors relevant to Belle‘s confrontation right. When these factors are surveyed, however, there can be no question that Belle has suffered a substantial sixth amendment violation.
First, the challenged statement, though obviously linkage testimony, was certainly “crucial” or “devastating.” Munford‘s claim that he had twice before engaged in narcotics dealings with Roberts was the only evidence that seriously cast doubt on the legitimacy of Roberts’ appearance on the scene. It was, in addition, the only plainly inculpating evidence against Belle. To be sure, the prosecution attempted to implicate Roberts by drawing attention to the $1300 found on Roberts’ person on the evening of Belle‘s arrest. But there is evidence in the record suggesting the equally plausible possibility that these funds were simply the proceeds from Roberts’ restaurant business. N.T. 73, Second Day. The prosecutor further contended that Belle‘s guilt is otherwise established by his implausible explanation, after his arrest, for being in Roberts’ company. N.T. 144-45, Second Day. But without any admissible, concrete evidence that there was any reason why he should not be, this explanation, such as it was, is hardly substantive proof of Belle‘s participation in the crime.
Second, the risk was substantial that the jury would improperly use the hearsay evidence against Belle. Munford‘s statement was testified to by a government agent, a factor which had convinced Justice Brennan that Bruton presented an even stronger example of prejudice than Douglas, wherе the evidence was introduced in the face of a witness’ fifth amendment claim. See 391 U.S. at 127, 88 S.Ct. 1620. Moreover, the fact that the statement was seemingly against Munford‘s penal interest, though not providing a strong reason in this instance to find the statement reliable,20 would nonetheless tend to give it an artificially high salience in the jurors’ minds. Finally, the great significance of the evidence in the prosecution‘s case, noted above, would also increase the risk of its being used against Belle despite the trial court‘s cautionary instructions.
Fourth, the statement was made in police custody. As noted above, the Dutton Court cited the absence of police custody as a basis for distinguishing Bruton. The reliability of evidence offered while the declarant is in police custody must inevitably be viewed with some measure of suspicion.21
Finally, the challenged evidence was neither so cumulative nor so reliable that cross-examination would have been superfluous. The Munford statement was vital to the prosecution‘s case against Belle. It was not cumulative. Neither was its reliability so untarnished that effective cross-examination would have been “wholly unreal.” Dutton, supra, at 89, 91 S.Ct. 210. That Munford gave his statement in police custody, at a time when he had a distinct interest in cooperating—having been caught so plainly “redhanded“—is surely reason to question his reliability. Moreover, his statement named another individual, O‘Neil Roberts, as a joint venturer in his narcotics exploits. The majority apparently agrees that the reliability of a declarant‘s statement will depend, in part, on whether it reflects an attempt to shift blame to “an accomplice.” Opinion, supra at 495 n. 12. It asserts, however, that “Munford‘s statements in no way shift blame to Belle or to anyone else, and there is consequently no reason to suspect their reliability.” Id. This is flatly mistaken. The inculpation of Roberts is self-evident.
The combination of these considerations persuades me that Belle was denied his Confrontation Clause rights. Yet the majority suggests that this conclusion is foreclosed by various circuit court cases which have, in one fashion or another, wrestled with the doctrines announced in Bruton. As an initial matter, I note my reluctance to engage in the search for a “case in point” as a substitute for reasoned analysis, particularly in an area where the decisions are, and must be, so inevitably ad hoc.22 Moreover, virtually none of the cases cited by the majority attempts to account for the wide-ranging concerns which the Supreme Court has articulated in its Confrontation Clause decisions. Nonetheless, the majority also cites no cases that undermine the approach I have endorsed.
Thus, for example, in United States v. Wingate, 520 F.2d 309 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976), a case upon which the majority prominently relies, the court rejected a Confrontation Clause challenge to linkage testimony. It expressly noted, however, that the remaining unchallenged evidence “amply established Wingate‘s guilt. . . .” 520 F.2d at 314. Where evidence is plainly cumulative in nature, I agree that a Confrontation Clause violation may not have occurred.
Finally, the majority cites the Ninth Circuit‘s decision in United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974). It is true that the Mulligan court required that a challenged statement “directly implicate a co-defendant” before a Bruton violation will be recognized. 488 F.2d at 737. But, in so ruling, the court properly focused on the danger that the jury would improperly use codefendant evidence against the defendant. Id. Given the already extensive evidence against the defendant apart from the codefendants’ hearsay remarks, see, e. g., id. at 734-35, 736-37, it is hardly surprising that the court rejected defendant‘s Confrontation Clаuse contention.23
IV. CONCLUSION
This is a case in which the prosecution‘s evidence against one particular defendant was wholly circumstantial in nature. More critically, the only solid evidence on one link in that circumstantial chain consisted of an extrajudicial statement by a codefendant. Not only is there “a reasonable possibility that the . . . evidence contributed to the conviction,” Schneble v. Florida, supra, 405 U.S. at 432, 92 S.Ct. at 1060, but there is, in my judgment, no possibility that it did not. Such an error, and error it surely was, can thus in no sense be deemed harmless. The majority does not otherwise contend. Instead, it eludes the difficulties of the case at the constitutional threshold.25 It extracts a single phrase—“powerfully incriminating“—and expects that to do the work of many years of Supreme Court case law. Its holding, confining the Confrontation Clause to direct accusations and placing circumstantial evidence outside the ambit of the Clause, cannot be reconciled with that case law. A harmless error analysis, while unjustified on this record, would, since it would have fewer future consequences, be less offensive. Instead, the majority has chosen to give the Confrontation Clause the narrowest possible reading it could devise, and thus to maximize the government‘s opportunity for exposing defendants to the risk that juries will use devastating hearsay against them. I would grant a new trial.
UNITED STATES of America v. Joe Chatman MUNFORD, Appellant.
No. 77-1902.
United States Court of Appeals, Third Circuit.
Submitted Jan. 3, 1978. Decided May 30, 1978. Certiorari Denied Oct. 30, 1978. Refiled as Amended March 1, 1979.*
593 F.2d 512
David R. Morrison, Stassen Kostos and Mason, Philadelphia, Pa., David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, for appellant.
David W. Marston, U. S. Atty., Walter S. Batty, Jr., Chief Appellate Section, Douglas B. Richardson, Asst. U. S. Attys., Philadelphia, Pa., for appellee.
Before ADAMS, GIBBONS and GARTH, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
Joe Chatman Munford appeals from a judgment of sentence after a jury found him guilty of violating
The judgment appealed from will be affirmed.
UNITED STATES of America ex rel. John SULLIVAN, Appellant, v. Julius T. CUYLER, Superintendent, State Correctional Institution, Graterford, Pennsylvania, and the District Attorney of Philadelphia County, Appellees.
No. 78-1411.
United States Court of Appeals, Third Circuit.
Argued Nov. 16, 1978. Decided Feb. 14, 1979. Rehearing Denied March 12, 1979.
Notes
QUESTION: Was Mr. Belle‘s name mentioned аt all in your discussion with Mr. Munford?
ANSWER: Yes, it was.
QUESTION: Did you ask Mr. Munford any questions about Mr. Belle?
ANSWER: No, he just stated that he and Mr. Belle came out from California. I recall that. Now, that may not have been his exact words but that‘s what he inferred, the sense of his statement.
QUESTION: Did he tell you why they had come out from California?
ANSWER: Well, he came out to deliver the dope. They came out to deliver the dope.
QUESTION: All right. Now, you see, in your answer now you have given two different things. You said he and —
ANSWER: I will say they came out to deliver the heroin.
QUESTION: I don‘t want you to tell me —
ANSWER: I thought you —
QUESTION: Well, you tell me what you remember him saying, not what you think you would like to testify to now, all right?
ANSWER: Certainly.
QUESTION: Good. Now, tell me what Mr. Munford said about them coming out from California or he coming out from California.
ANSWER: I recall Mr. Munford stating that he and Mr. Belle came out from California.
QUESTION: And what else?
ANSWER: And the purpose of the trip was to deliver the heroin at the Krispy Kreme Donut Shop between 8 and 8:30.
N.S.H. 289-90, Third Day.
It is highly significant that when Hobson testified at trial he eliminated all reference to Belle and to the fact that “they (Munford and Belle) came out [from California] to deliver the dope.” While these deletions from Munford‘s statement (made to Hobson) would appear to be nothing less than a redaction, it is not necessary to our disposition that we regard Munford‘s statement as having been informally “redacted.” See The Supreme Court, 1967 Term, 82 Harv. L.Rev. 63, 234 (1968).
We are not impressed with Belle‘s argument or his claimed prejudice. First, the report in question was prepared by Agent Kean, not Agent Hobson, and Hobson in his pretrial testimony stated that not everything he told Kean was placed in the report. N.T. 51, Second Day. Moreover, in his pretrial testimony Agent Hobson testified that Munford had said that he (Munford) had met with Roberts twice in the past. N.S.H. 282, Third Day; N.T. 57, Second Day (statement by trial court as to its recollection and notes of Hobson‘s pretrial testimony). Thus, Belle‘s counsel was well aware before trial of the contents of Munford‘s admission to Hobson, just as he had to have been alerted to the fact that Kean‘s report was incomplete. Even if Justice Brennan‘s reference to “powerfully incriminating” testimony were intended to limit the protections of the Confrontation Clause, instead of simply describing one circumstance when the risk of improper jury consideration is high, it would not follow that to be “powerfully incriminating” the evidence would by itself have to directly accuse the defendant. Certainly Justice Brennan‘s description of the impermissible evidence in Douglas suggests that he was aware of the many ways in which evidence may disadvantage a defendant. See 380 U.S. at 417, 419, 85 S.Ct. 1074. Linkage testimony, no less than inherently accusatory testimony, may be “powerfully incriminating” in a given case. Other than its arid exegesis of Bruton, the majority has adduced no policy, principle, or purpose served by its narrow construction of Justice Brennan‘s language.
I would suppose that it will be necessary to exclude all extrajudicial confessions unless all portions of them which implicate defendants other than the declarant are effectively deleted. Effective deletion will probably require not only omission of all direct and indirect inculpations of codefendants but also of any statement that could be employed against those defendants once their identity is otherwise established.
391 U.S. at 143, 88 S.Ct. at 1632 (White, J., dissenting). Obviously, Justice White read Bruton, as I do, to cover linkage testimony.
There were far too many interrelated factors to have been the result of pure coincidence. First of all, the former undercover agent recognized one of the occupants of the car and associated the car itself with his previous undercover narcotics work. Other pertinent elements were that the auto was registered to one whose name had previously been linked with wrongful narcotics activities; that those activities seemed to center between Pittsburgh and New York; that this suspect‘s flight was going to the New York area; and that he was interested in an immediate return. Appellant‘s outward journey actually ended in Harlem in close proximity to a store run by a man already suspected of drug trafficking between New York and Pittsburgh, and a return flight to Pittsburgh took place early that same day. A further reason for the agent‘s actions was the police report (which is now thought to have been seemingly erroneous) that there was a state warrant existing for Lampkin to whom the car was registered. Considering all these factors, it is obvious that each incident corroborated the existing belief of the agent. There were too many factors which “fell into place” and thus probable cause in such circumstances seems readily existent.
464 F.2d at 1096. See Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L.Rev. 1378, 1380 n.11 (1972); The Supreme Court, 1970 Term, supra note 16, at 192.
Here, defendants argue that the discovery of the heroin in the open shopping bag was not inadvertent but the facts related convinced me to hold otherwise. Agent Wasyluk, who first saw the bag and its silver packets, had not observed Munford removing them from their hiding place. Rather, Wasyluk was one of the officers who had brought Belle back to Buffalo Avenue. On arrival, Wasyluk got out of the car and started down the drive toward Munford who was close to the Lincoln. Its door was open and Wasyluk looked into the vehicle to see if anyone was there. On the floor at the front of the passenger‘s seat, he saw the open shopping bag and its contents. This occurred while Agent Kean was pursuing another suspect. When Kean returned, Wasyluk told him about the bag and its parcels and both men looked at them. Having seen these objects being pulled from the car by Munford, Agent Kean arrested him.
Dist.Ct.Op. at 10-11. See Davenport, supra note 17, at 1395-96 (arguing that a declaration ostensibly against the declarant‘s penal interest but uttered under conditions of possible duress should be inadmissible).