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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