F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 4 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-2087
vs. (D.C. No. CR 95-488)
(D.N.M.)
RODOLFO BENSOR GOMEZ,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRORBY, EBEL, and KELLY, Circuit Judges.**
Mr. Gomez was convicted by a jury of possession with intent to distribute more
than 50 kilograms of marijuana, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2,
for which he was sentenced to 33 months imprisonment and three years supervised
release. He appeals contending that the trial court erred in admitting the incriminating
statements of a non-testifying codefendant (Victoria Jean Garcia) made to government
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
agents. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.
In Bruton v. United States, 391 U.S. 123 (1968), the Court held that, despite a
limiting instruction, a defendant’s Sixth Amendment right to confrontation is violated
when a confession of a non-testifying codefendant implicates the defendant and the
confession is introduced in a joint trial. Id. at 126. A proper limiting instruction and
redaction of the confession to eliminate the defendant’s name or any reference to his
existence will solve the Confrontation Clause problem. Richardson v. Marsh, 481 U.S.
200, 211 (1987). According to Mr. Gomez, while his name was redacted, his existence
was not because the codefendant’s statements linked him to the vehicle containing the
contraband. A similar argument (inferential incrimination based upon other evidence in
the case) was rejected in United States v. Chatman, 994 F.2d 1510, 1513 (10th Cir.), cert.
denied, 510 U.S. 883 (1993). The redaction and limiting instruction solved any Bruton
problem.
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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