(concurring):
I concur in the result and in all of Judge Hays’ characteristically thorough and carefully considered opinion except that portion holding that Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), does not preclude the introduction of a defendant’s statement inculpating his co-defendant unless the identification of the co-defendant as the person inculpated appears on the face of the statement, without reference to any other evidence in the case. I believe the proper rule to be that if the statement, when viewed in the light of the other evidence in the case, clearly inculpates the co-defendant, it may not be received against him.
In the present case Special Agent Korniloff testified that upon arrest Smith
“said that he had met an individual earlier that evening at the Crotona Bar and that this individual had asked him to obtain some heroin for him for a customer who he intended to later meet at LaGuardia Airport.
“So they both got into Mr. Smith’s vehicle and went to LaGuardia Airport. . . (Emphasis supplied).
Other evidence established — indeed it was undisputed — that the only “individual” who arrived at LaGuardia Airport with Smith in his automobile to negotiate the narcotics deal was Wingate. Thus the jury was well aware that the “individual” referred to by Smith was Wingate, whom Smith’s statement inculpated just as clearly as if it had referred to Wingate by name.
Since the jury knew that the “individual” referred to by Smith was inevitably Wingate, Bruton cannot be avoided on the ground that Wingate was not referred to by name. Serio v. United States, 131 U.S.App.D.C. 38, 401 F.2d 989 (1968). Our decisions relied upon by Judge Hays do not point in the opposite direction. In United States v. Trudo, 449 F.2d 649 (2d Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 975, 30 L.Ed.2d 799 (1972), confessions were redacted so that they “only inculpated the person making the admission and in no way inculpated his co-defendants,” 449 F.2d at 652. Although there was some dispute about the inculpatory effect of the statement admitted in United States ex rel. 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), we concluded that the reference to one “Oliver” did not, because of conflicting evidence as to physical characteristics, clearly inculpate the co-defendant Nelson. In contrast, Smith’s statement, by inculpating the “individual,” clearly inculpates Wingate.
Although Smith’s statement inculpated Wingate on the conspiracy charge I agree, for the reasons stated by Judge-Hays, that the evidence was not vitally important to the government’s case against Wingate, in view of Wingate’s own admissions and the other incriminatory evidence introduced against him. Indeed, even if the admission of Smith’s statement against Wingate were considered to be error, it was harmless beyond a reasonable doubt. Accordingly, I join in affirming the judgments of conviction.