United States v. Vejar-Urias

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-50990
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

MANUELA VEJAR-URIAS,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
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January 15, 1999

Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Manuela Vejar-Urias appeals from a conviction in the district

court for importation of marijuana and for possession of marijuana

with intent to distribute. Vejar argues on appeal that the

district court violated her Sixth Amendment right to confront

adverse witnesses by admitting hearsay testimony regarding her non-

testifying co-defendant’s post-arrest statements. Although we

agree that the district court erred by admitting evidence of the

statements, we find that error harmless and AFFIRM Vejar’s

conviction.

BACKGROUND
 Vejar and her sister, Benita Torres, were arrested on April

11, 1997 at the Ysleta port of entry in El Paso, Texas. United

States Customs Inspector George Hernandez became suspicious that

the two women were attempting to distract him during routine

questioning and inspection of the station wagon in which they were

traveling. After Hernandez asked Vejar, who was driving, to open

the tailgate, he noticed that the screws on a sidewall panel of the

cargo area had been tampered with. Pulling back the panel, he

observed several plastic-wrapped bundles. Hernandez asked Vejar if

the station wagon was her car, and she replied that it was. A

further search of the vehicle revealed 125 pounds of marijuana

concealed above the ceiling panel and behind the interior walls on

both sides of the cargo area.

Vejar and Torres were taken into custody and questioned

separately regarding their trip to Mexico. Initially, both women

claimed that they had taken a car owned by Torres to Mexico to have

it repaired and that two men at the repair station, “Ruben” and

“Chato,” had loaned them the station wagon. Eventually, however,

Torres confessed that she and Vejar had gone to Mexico specifically

to pick up the drug-laden vehicle.

At their joint trial for importation of a controlled substance

under 21 U.S.C. §§ 952(a) and 960(a)(1) and possession with intent

to distribute under 21 U.S.C. § 841(a)(1), both Vejar and Torres

elected not to testify. Because Torres could therefore not be

cross-examined, Vejar argued that Bruton v. United States, 391 U.S.

123 (1968), precluded the admission of hearsay testimony regarding

any inculpatory statements made by Torres to customs agents that
also implicated Vejar. The district court overruled Vejar’s

objections and permitted the government to adduce testimony at

trial concerning Torres’s statements. Vejar now appeals that

decision by the district court.

At issue is evidence regarding three statements made by

Torres. At trial, Customs Agent Ramon Torrez testified on direct

examination that Torres had admitted that she was “told by someone

to lie about the story about going to get the vehicle fixed”

(emphasis added) and that she had not met “Ruben” and “Chato” but

“she was told by someone what their names were” (emphasis added).

In both instances, Agent Torrez substituted the word “someone” for

Vejar’s name. On redirect, however, Vejar’s name was mentioned

when Agent Torrez testified that Torres had been hesitant to put

her responses in writing because “[s]he didn’t want her sister,

Defendant Vejar, to know what she was saying about her.” The jury

was not given any limiting instructions concerning this testimony.

In addition, the Government was permitted to present evidence

at trial that one month before her arrest at the Ysleta port of

entry, Vejar had been detained at an immigration checkpoint in

connection with a seizure of more than forty pounds of marijuana

from a car driven by her son.

The jury found Vejar and Torres guilty of both drug offenses.

DISCUSSION

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme

Court held that the right to confront adverse witnesses guaranteed

by the Sixth Amendment bars the admission of statements made by a

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nontestifying codefendant that implicate the nonconfessing

defendant. See id. at 137. The specific evidence at issue in

Bruton was a postal inspector’s hearsay testimony that Bruton’s

codefendant had confessed both his own and Bruton’s involvement in

an armed postal robbery. The Court ruled that the admission of the

testimony violated Bruton’s right to confrontation despite the

district court’s limiting instruction to the jury to refrain from

using the codefendant’s admission as evidence against Bruton.

Subsequent to Bruton, this Court held that a trial court’s

evidentiary rulings relying on Bruton are reviewed for abuse of

discretion. See United States v. Walker, 148 F.3d 518, 522 (5th

Cir. 1998).

The Supreme Court’s subsequent cases have not specifically

addressed the situation in this case, where the codefendant’s

confession was redacted by substituting the name of the defendant

with a neutral pronoun. The Court has, however, explicated the

degree to which a defendant must be inculpated by a nontestifying

codefendant’s statements before a Bruton violation has occurred.

In Richardson v. Marsh, 481 U.S. 200 (1987), for example, the

Court found that there was no Bruton violation where the

codefendant’s statement was redacted to eliminate both the

defendant’s name and all reference to his existence and the jury

was given a proper limiting instruction. See id. at 211. Although

the codefendant confession at issue in Richardson inculpated the

defendant when considered in light of other evidence presented in

the case, the Court found its admission did not violate Bruton

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because “the confession was not incriminating on its face, and

became so only when linked with evidence introduced later at

trial.” Id. at 208. Enlarging upon that holding, this court has

found on several occasions that admitting redacted confessions in

which a pronoun was substituted for the defendant’s name did not

violate Bruton. See, e.g., United States v. Fletcher, 121 F.3d

187, 197-98 (5th Cir. 1997) (finding that substitution of “he” for

defendant’s name in codefendant’s confession did not violate

Bruton).

More recently, the Supreme Court in Gray v. Maryland, 118 S.

Ct. 1151 (1998), found that the admission of a codefendant’s

confession did violate Bruton where the confession was redacted by

replacing the defendant’s name with a blank in the written

statement and with the word “deleted” in oral testimony.

Recognizing that a jury could easily and immediately infer that the

deletions in the inculpatory confession were references to the

defendant, the Court held that “considered as a class, redactions

that replace a proper name with an obvious blank, the word

‘delete,’ a symbol, or similarly notify the jury that a name has

been deleted are similar enough to Bruton’s unredacted confessions

as to warrant the same legal result.” Id. at 1156.

Although neither Richardson nor Gray directly addresses the

scenario in this case, we believe controlling rules may be derived

from synthesizing the principles enunciated by the Court in those

cases. We find that where a defendant’s name is replaced with a

neutral pronoun, as long as identification of the defendant is

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clear or inculpatory only by reference to evidence other than the

redacted confession, and a limiting instruction is given to the

jury, there is no Bruton violation. Cf. Walker, 148 F.3d at 523

(finding that references to the defendant as “home boy” in his

codefendant’s confession did not violate Bruton because the

confession was not facially implicating). Where, however, it is

obvious from consideration of the confession as a whole that the

redacted term was a reference to the defendant, then admission of

a codefendant’s confession that also inculpates the defendant does

violate Bruton, regardless of whether the redaction was

accomplished by use of a neutral pronoun or otherwise. Other

circuits which have considered this issue have reached similar

conclusions. See United States v. Edwards, 159 F.3d 1117, 1124-26

(8th Cir. 1998) (finding that use of pronouns in redacted

inculpatory confession did not violate Bruton where it was not

obvious who pronouns referred to and limiting instruction was

given); United States v. Peterson, 140 F.3d 819, 821-22 (9th Cir.

1998) (finding that admission of codefendant’s confession with

“person X” substituted for defendant’s name was a Bruton violation

because reference of redacted text was obvious and there was no

limiting instruction given).

Applying those rules to this case, we find that the district

court’s admission of Torres’s redacted confession was a Bruton

violation. First, it was obvious from Torrez’s testimony that

Torres “did not want her sister Vejar to know what she was saying

about her” that the previous uses of the pronoun “someone” were

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actually redacted references to Vejar. That “someone” meant Vejar

was thus clear from a consideration of Torres’s out of court

inculpatory statements, i.e. her confession, without reference to

other evidence. Second, with the pronoun “someone” understood as

referring to Vejar, Torres’s confession that she “was told by

someone to lie about the about the story about going to get the

vehicle fixed” plainly incriminated Vejar in the drug smuggling

illegality. Third, there was no limiting instruction given to the

jury. Therefore, because Vejar had no opportunity to cross-examine

Torres, the admission of Torres’s confession violated Vejar’s Sixth

Amendment rights.

Despite the district court’s error in admitting Torres’s

confession, however, we affirm Vejar’s conviction because we find

that the error was harmless. It is well established that a “Bruton

error may be considered harmless when, disregarding the

codefendant’s confession, there is otherwise ample evidence against

a defendant.” United States v. Hickman, 151 F.3d 446, 457 (5th

Cir. 1998); see also Schneble v. Florida, 405 U.S. 427, 432 (1972).

For an appellate court to find that a violation of a federal

constitutional right is harmless, it must be convinced beyond a

reasonable doubt that the error was harmless in light of the other

evidence presented at trial. See Chapman v. California, 386 U.S.

18, 24 (1967). An error is not harmless if the court determines

that “absent the Bruton-tainted confession, there was a reasonable

probability that the defendants would be acquitted.” Hickman, 151

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F.3d at 458 (citing United States v. Lewis, 786 F.2d 1278, 1286

n.11 (5th Cir. 1986)).

Vejar claims that the Bruton error was not harmless because it

severely hampered her defense claim that she lacked knowledge of

the marijuana concealed in the station wagon. We disagree and find

that the substantial independent evidence inculpating Vejar

precludes any reasonable probability that, absent the Bruton

violation, the jury would have found she lacked knowledge and

acquitted her. That evidence included: (1) the evidence that only

one month prior to her arrest in this case, Vejar had lied to

customs officials at a different port of entry when she was

apprehended while following her son who was driving a car

containing more than forty pounds of marijuana; (2) the testimony

of Inspector Hernandez that Vejar and Torres acted suspiciously

during the inspection; (3) the testimony of INS Special Agent

Tapia-Rodriguez that during the search of the vehicle, Vejar stated

that “those terrible men had put something in my car”; (4) the

testimony of Special Agent Timney that Vejar could not be connected

with recorded history of the ownership of the car while Vejar

indicated during the inspection that she owned the vehicle; and (5)

the testimony of Customs Inspector Gonzalez, which revealed that

the stories told by Vejar and Torres as to why they had been in

Mexico were inconsistent in several respects.

In sum, although the district court erred by admitting into

evidence an insufficiently redacted confession of Vejar’s

codefendant, we find that error harmless beyond a reasonable doubt

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in light of the overwhelming weight of the other evidence against

Vejar. The district court’s judgment is AFFIRMED.

RHESA HAWKINS BARKSDALE, specially concurring:

I concur in all but the conclusion that there was a

Bruton error. On this point, and as partially covered by the

majority opinion, there are significant factual differences between

the case at hand and Gray v. Maryland, ___ U.S. ___, 118 S. Ct.

1151 (1998). The principal difference, not directly brought to

light by the majority, is that, unlike in Gray, no written/redacted

confession was given the jury to examine. Accordingly, and in that

the Bruton error, if any, was harmless, I would instead only assume

Bruton error and would then apply a harmless error analysis.

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