concurring in part and dissenting in part:
Two of the trial judge’s instructions to the jury in this ease were inconsistent with one another. We must decide whether this inconsistency precludes affirmance of the convictions of Barnes and Carrero.
The judge instructed the jury that the statements of Akins and Taper to the police were admitted only against Akins, Taper, and Davis. See maj. op. at 1027 n. 8. This *1038limiting instruction, standing alone, directed the jury not to consider these statements as evidence against Barnes and Carrero. See also id. at 1027 n. 10.
In his final instructions, however, the judge charged the jury, in conformity with Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946), that evidence of one conspirator’s guilt was admissible against all members of the conspiracy. See maj. op. at 1027 n. 9. There was ample evidence that Barnes and Carrero were among the conspirators. Under this “Pinkerton instruction,” therefore, the statements of Akins and Taper to the police were evidence against Barnes and Car-rero.
On their face, the “limiting” instruction and the “Pinkerton instruction” cannot be reconciled with one another. The codefend-ants’ statements to the police could not simultaneously be (1) receivable only against Akins, Taper and Davis, but (2) a part of the evidence against Barnes and Carrero. The jurors were thus instructed to follow both the affirmative and the negative of the same proposition.
There was, however, a significant contextual difference between the two inconsistent instructions. In the limiting instruction, the judge told the jurors the purposes for which they could consider the codefendants’ statements to the police. That instruction dealt explicitly with the evidence here in question, and only with that evidence. In the Pinkerton instruction, on the other hand, the judge apprised the jurors of a general principle, without specific application. In my opinion, the proposition that the particular governs the general is consistent with common sense, and the jurors are likely to have applied it here.
Let us suppose that the trial judge had given the jury the same limiting instruction, and that the judge had then specified, in the Pinkerton instruction, that the principle of vicarious liability articulated therein applied to the record as a whole with the exception of the statements to the police by Akins and Taper. It would then have been clear that the limiting instruction trumped the Pinkerton instruction.
Surely, in my hypothetical, there would have been no reversible error. I would not be inclined to extend the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), to a situation in which the codefendants’ statements did not identify the appellants, where those statements have incriminated the appellants only derivatively, and where the jurors have been instructed, unambiguously and without qualification, not to consider those statements against the appellants at all.
In the present case, the conflict between the two instructions was not so explicitly resolved for the jurors. Because the limiting instruction would have been altogether superfluous if it did not trump the Pinkerton instruction, however, the jurors can hardly have ignored it. From the perspective of a reasonable jury, the difference between my hypothetical charge and the instruction actually given is, in my opinion, very slight. I discern no appreciable possibility that a jury which convicted Barnes and Carrero after having been instructed as this jury was instructed would have failed to convict them if my hypothetical instruction had been given instead.
Moreover, I agree with the government that
even if Bruton were extended to include nonidentification evidence and even if the instruction was inadequate, admission of the codefendants’ statements in this case was harmless beyond a reasonable doubt. First, there was extensive other evidence that Lawson’s credit card was taken. There was the plan to rob, the videotape showing Akins going through Lawson’s pockets on two occasions and removing some object from them, Lawson’s testimony that when he came into the block he had a credit card and cash, the officer’s testimony that when Lawson arrived at the hospital a short time later the credit card and money were missing, and the videotape’s portrayal of a person, identified by location as Barnes, telling Carrero that they had gotten the credit card from Lawson. In addition, Akins’ statement was that he did not take the credit card but *1039merely looked at it and threw it back. Thus, on its face it did not implicate anyone in a robbery. Similarly, Taper’s statement merely claimed that the wallet was tossed around. From Lawson’s testimony it was clear that Lawson got the wallet back and nothing in Taper’s statement demonstrated that anything was removed from it before Lawson retrieved it. Finally, the contested issues for Carrero and Barnes were whether they joined the conspiracy and/or aided and abetted the robberies, not whether robberies occurred[1] Therefore, this court can confidently conclude that the admission of Akins’ and Taper’s statements did not in any way affect the jury’s verdicts against Barnes and Carrero.
For the foregoing reasons, I would affirm the convictions of Barnes and Carrero.2 In all other respects, I join the opinion of the court.
1. In her opening statement, Barnes’ attorney stated:
The Government has charged Mr. Barnes with armed robberies. How will we know that he didn't commit any armed robberies?
Well, you will know for that first incident that Mr. Barnes was not even there. You will know that he didn't commit that armed robbery. And what about the second one, ladies and gentlemen? Look at the videotape. Mr. Barnes does not punch Mr. Lawson, Mr. Barnes does not go through Mr. Lawson's pockets, Mr. Barnes does not take anything from Mr. Lawson.
The videotape will show you that Mr. Barnes did not commit any robbery.
In his opening statement, Carrero's attorney took a similar tack:
The Government says well, these men went out and robbed someone. The Government talks about going through anyone’s pockets. Joel Carrero never went through anyone’s pock-ets_ Joel Carrero did not try to rob any-
body. ... So, in all these instances, the punching, the urinating, kicking, robbing, the shooting, Joel Carrero did not do any of those acts on that night....
The closing arguments presented by both attorneys were consistent with their opening statements. Neither counsel ever suggested to the jury that the prosecution had failed to prove the commission of any robbery at all.
. My vote for affirmance makes it unnecessary for me to reach the question whether the challenged evidence was admissible against Barnes and Carrero under the hearsay exception for statements against penal interest.