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Summary of Opinion: United States v. Leonardo Diaz Garcia, No. 86-5493 (8th Cir. Dec. 30, 1987)

Factual and Procedural Background

Leonardo Diaz Garcia was convicted of conspiracy to distribute heroin (21 U.S.C. § 846), unlawful distribution of heroin (21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2), and unlawful travel in interstate commerce to promote and facilitate unlawful distribution of heroin (18 U.S.C. § 1952(a)). The convictions arose from undercover DEA operations in which co-defendant Jose Chacon arranged and completed heroin sales with DEA agent Harold Baltzer in Minneapolis and Chicago. On April 26, 1986, Baltzer purchased a pound of heroin from Chacon in a Chicago hotel room; surveillance followed the Chacons, who met a man in an alley behind 6139 South Troy. Special Agent James Ragan later identified Diaz at trial as that man. On June 3, 1986, Diaz drove with the Chacons to Rochester, Minnesota, where he delivered two kilograms of heroin to Chacon, who then sold it to Baltzer; Diaz was arrested and charged in the indictment. Diaz appealed his convictions asserting (1) the absence of Mexican-Americans on the venire panel established purposeful discrimination and warranted striking the panel or an evidentiary hearing; and (2) admission of a redacted out-of-court statement by co-defendant Chacon, together with identification evidence, violated his Sixth Amendment confrontation rights and was compounded by prosecutorial misconduct in withholding identification information. The Court of Appeals affirmed the district court.

Legal Issues Presented

  1. Whether the total absence of Mexican-Americans from the venire panel established a prima facie showing of purposeful discrimination in violation of the Fourteenth Amendment such that the panel should be struck or an evidentiary hearing required.
  2. Whether admission of a redacted out-of-court statement by co-defendant Jose Chacon, combined with the government's identification evidence (including Ragan's in-court identification of Diaz), violated Diaz's Sixth Amendment right of confrontation under Bruton and related doctrines.
  3. Whether prosecutorial misconduct in failing to disclose the nature of the government's identification evidence prejudiced Diaz or otherwise required reversal.

Arguments of the Parties

Appellant's (Diaz's) Arguments

  • The absence of Mexican-Americans from the venire panel established a prima facie equal protection violation requiring the venire be stricken and an evidentiary hearing to determine purposeful discrimination.
  • Admission of Chacon's post-arrest statement—redacted to substitute a neutral pronoun for Diaz's name—combined with Ragan's identification of Diaz as the man who met Chacon in the alley, violated Diaz's Sixth Amendment confrontation rights under Bruton because the jury could infer the "someone" referred to Diaz.
  • The prosecutor misled the court by failing to inform it before admission of the redacted statement that Ragan would identify Diaz, and this nondisclosure constituted prosecutorial misconduct prejudicial to Diaz.

Appellee's (Government's) Positions as Reflected in the Opinion

  • The government relied on Batson and related principles to require a defendant to make a prima facie showing with factual support; it highlighted the absence of factual proof from Diaz that Mexican-Americans were substantially underrepresented or that selection practices provided an opportunity for discrimination.
  • The government made an evidentiary record before admission of the redacted statement linking Diaz to the April 26 meeting (utility records tying Diaz to the Troy Street address, driver's license number on utility records, and notice that Ragan would give a description matching Diaz), and therefore the redacted statement's indirect inculpatory effect did not violate Bruton as construed by Richardson v. Marsh and related authority.
  • The district court found that Brady required disclosure of certain identification information (Ragan's failure to identify Diaz from a photocopy) but that the information was disclosed before the government rested, affording Diaz an opportunity to recall Ragan; the court concluded no Brady violation occurred because Diaz had the opportunity to cross-examine further but did not pursue it.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) Mexican-Americans constitute a cognizable group for equal protection purposes. The court presumed Diaz intended to refer to Mexican-Americans as the cognizable group when evaluating his equal protection claim.
Batson v. Kentucky, 476 U.S. 79, 93-96, 106 S.Ct. 1712, 1721-22, 90 L.Ed.2d 69 (1986) Criteria for establishing a prima facie case of discriminatory venire selection; burden on defendant to prove purposeful discrimination; disproportionate impact may establish prima facie case. The court applied Batson to conclude Diaz failed to make the requisite prima facie showing because he offered only speculation and no evidence of underrepresentation or of a selection practice giving rise to discrimination.
Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599 (1967) Quotation used to emphasize that the burden is on the defendant to prove purposeful discrimination. Quoted by the court (via Batson) to support the principle that Diaz bore the burden of proof on purposeful discrimination.
Brown v. Lockhart, 781 F.2d 654, 656 (8th Cir. 1986) No evidentiary hearing is necessary if the petition or motion fails to state allegations which, if true, could be a basis for relief. The court relied on this principle to hold the district court did not err in refusing to conduct an evidentiary hearing on Diaz's venire claim because Diaz did not allege facts that, if proved, would establish a prima facie case.
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) Out-of-court statements by a non-testifying co-defendant that incriminate the defendant are generally inadmissible; motivates redaction to avoid introducing testimony against a defendant who cannot cross-examine the co-defendant. The court described how Chacon's statement was redacted to remove Diaz's name to comply with Bruton concerns and examined whether linkage with identification evidence produced a Bruton problem.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) Prosecutor's duty to disclose exculpatory or impeachment information to the defense. The district court concluded Diaz was entitled to know that Ragan had failed to identify a photocopied photograph; but because the information was disclosed before the government rested and Diaz had an opportunity to recall Ragan, the court held there was no constitutional violation.
Richardson v. Marsh, ___ U.S. ___, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) Where a co-defendant's statement is not incriminating on its face and becomes so only when linked with evidence introduced later, the jury is presumed to follow a limiting instruction; Marsh declined to extend Bruton further. The court applied Marsh to hold that the indirect inculpatory effect from linking Chacon's redacted statement and the identification of Diaz did not violate Bruton.
United States v. Brierly, 501 F.2d 1024 (8th Cir.), cert. denied, 419 U.S. 1052, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974) Approval of redaction that eliminates reference to a defendant's name but not to his role in the crime. The court cited Brierly to support that the form of redaction used (replacing a name with a neutral pronoun while not eliminating reference to role) is permissible here because the testimony did not call attention to an omitted name.
Clark v. Maggio, 737 F.2d 471, 476-79 (5th Cir. 1984), cert. denied, 470 U.S. 1055, 105 S.Ct. 1761, 84 L.Ed.2d 823 (1985) Redacted statements can sometimes alert the jury that a name was omitted and thereby improperly lead the jury to infer the omitted name is the defendant's. The court acknowledged this concern but found the redaction here did not draw attention to the omission and thus did not produce that forbidden inference.
Parker v. Randolph, 442 U.S. 62, 77-81, 99 S.Ct. 2132, 2141-43, 60 L.Ed.2d 713 (1979) Discussion of harmless-error analysis and standard for determining whether error was harmless beyond a reasonable doubt (noting Blackmun, J., concurring). The court relied on the Parker discussion (and its approval in Cruz v. New York) to conclude that any error in admitting the redacted statement would have been harmless beyond a reasonable doubt given the overwhelming evidence linking Diaz to the conspiracy.
Cruz v. New York, ___ U.S. ___, 107 S.Ct. 1714, 1718, 95 L.Ed.2d 162 (1987) Cited with approval for the Parker harmless-error discussion. The court referenced Cruz as approving the Parker approach when concluding any error was harmless beyond a reasonable doubt.

Court's Reasoning and Analysis

The court addressed Diaz's claims in two main parts.

1. Equal protection/venire-selection claim (Batson framework)

The court applied Batson and related authority to determine whether Diaz had made a prima facie showing of purposeful discrimination in jury selection. Under Batson a defendant must present facts showing either prolonged absence of the cognizable group from venires or substantial underrepresentation on the venire combined with a selection practice creating an opportunity for discrimination. Diaz's motion merely observed that no venire members identified themselves as "of Mexican heritage" or Spanish-speaking and speculated—without statistical or factual support—that a proportionate number of Mexican-Americans should have been present. He neither alleged absence from prior venires nor offered evidence of the proportion of Mexican-Americans in the relevant community. The court noted (and in a footnote observed census figures reflecting a very small Mexican-American population in Minnesota) and found that Diaz's showing was speculative and insufficient under Batson. Because he did not make a prima facie showing or allege facts that, if proven, would establish a prima facie case, the district court did not err in refusing to strike the venire or to hold an evidentiary hearing (citing Brown v. Lockhart as analogous on the evidentiary-hearing point).

2. Confrontation/Bruton claim and related prosecutorial-misconduct/Brady issues

The court examined whether admission of Chacon's redacted out-of-court statement (which replaced a name with "someone") combined with government identification evidence (Ragan's in-court identification of Diaz as the man who met Chacon on April 26) violated Diaz's Sixth Amendment confrontation rights under Bruton.

- The court described the steps taken at trial: the prosecution redacted Chacon's statement to remove direct reference to Diaz and the court instructed the jury to consider the statement only against Chacon. Ragan then identified Diaz at trial as the man he observed in the alley.

- The court considered Richardson v. Marsh, concluding that where a co-defendant's statement is not incriminating on its face and becomes so only when linked to other evidence, the jury is presumed to follow a limiting instruction; Marsh therefore permits the indirect inculpatory effect in this circumstance. The court applied Marsh to hold that such evidentiary linkage did not violate Bruton here.

- The court considered distinctions urged by Diaz (that Chacon's statement used a neutral pronoun but still referred to Diaz's role), and relied on this circuit's precedent in Brierly approving redaction that eliminates a name but not a role, provided the redaction does not spotlight the omission. While acknowledging cases like Clark v. Maggio showing situations where redaction can improperly signal omission, the court found the language used here did not call attention to an omitted name and thus was permissible under Brierly.

- The court also addressed Diaz's contention that the prosecutor misled the court by not revealing before admission of the redacted statement that Ragan would identify Diaz. The district court had found that Brady required disclosure of Ragan's failure to identify a photocopy, but because that information was furnished before the government rested and Diaz had an opportunity to recall Ragan for further cross-examination (which Diaz did not pursue), the district court found no constitutional violation; Diaz did not press this Brady issue on appeal.

- Finally, the court evaluated prejudice. It found substantial independent evidence linking Diaz to the conspiracy and to the April 26 meeting: the June 3 transaction in which Diaz drove the Chacons to Rochester and carried the two kilograms of heroin; Ragan's observation and in-court identification of Diaz; utility records tying Diaz to 6139 South Troy; and testimony elicited by co-defendant's counsel connecting Diaz to the April 26 money. Given the strength of this evidence, the court held that even if admission of the redacted statement were error, the error would have been harmless beyond a reasonable doubt (citing Parker v. Randolph and its approval in Cruz v. New York).

Holding and Implications

Holding: The judgment of the district court is affirmed.

Implications:

  • The Eighth Circuit affirmed Diaz's convictions and upheld the district court's rulings denying a venire challenge and admitting the redacted co-defendant statement with limiting instructions and related identification evidence.
  • The court held that Diaz failed to satisfy Batson's requirement to make a prima facie showing of discriminatory venire selection and therefore was not entitled to a hearing or to have the panel struck on equal protection grounds.
  • The court concluded that the combination of the redacted statement and the government's identification evidence did not violate Bruton as interpreted in Richardson v. Marsh and related authority, and that any error would have been harmless beyond a reasonable doubt in light of overwhelming independent evidence.
  • No new rule of law was announced; the decision applied existing Supreme Court and circuit precedent to the record before the court.

UNITED STATES OF AMERICA, APPELLEE, v. LEONARDO DIAZ GARCIA, APPELLANT.

JOHN R. GIBSON, Circuit Judge.

Leonardo Diaz Garcia appeals his convictions of conspiracy to distribute heroin, 21 U.S.C. § 846 (1982); unlawful distribution of heroin, 21 U.S.C. § 841(a)(1) (1982) and 18 U.S.C. § 2 (1982); and unlawful travel in interstate commerce to promote and facilitate the unlawful distribution of heroin, 18 U.S.C. § 1952(a) (1982). On appeal he argues that the total absence of Mexican-Americans from the venire panel from which his jury was selected established a prima facie showing of purposeful discrimination and that the district court erred in denying an evidentiary hearing on this issue. He also argues that the district court erred in admitting evidence of statements by his co-defendant that, taken in combination with the government's identification evidence, inculpated Diaz, and that the district court's error was precipitated by the prosecutor's misconduct in withholding from the court the nature of the government's identification evidence. We affirm the judgment of the district court.

The Honorable Diana E. Murphy, United States District Judge for the District of Minnesota.

Diaz's co-defendant Jose Chacon made contact with Drug Enforcement Administration undercover agent Harold W. Baltzer in Minneapolis and the two set up a number of heroin sales. Eventually, Baltzer and other officers flew to Chicago, where, on April 26, 1986, Baltzer purchased a pound of heroin from Chacon in a hotel room. Chacon left the room with the drug proceeds and entered a car driven by his wife, co-defendant Laurie Chacon. The Chacons drove to another part of Chicago, changing speeds, making many turns, slowing down, stopping by the side of the road, making U-turns and stopping for Chacon to make telephone calls. Surveillance officers were following the Chacons, and they described Laurie Chacon's driving patterns as counter-surveillance driving techniques. The Chacon vehicle stopped in an alley behind Troy Street. Special Agent James Ragan observed the Chacons from the end of the alley. Chacon got out of the car and met with a man in the alley. The two men walked out of Ragan's view for a while and then returned to the car and shook hands. The Chacons then left. Ragan drove into the alley and saw the man Chacon had met. Ragan drove around to Troy Street and saw the man again, this time walking toward the front of the house at 6139 South Troy. After viewing Diaz in the courtroom at trial, Ragan positively identified Diaz as the man in the alley.

Chacon later made more calls to Baltzer, which led to an agreement for Chacon to deliver two kilograms of heroin to Baltzer in Rochester, Minnesota. On June 3, 1986 government agents saw the Chacons driving into Minnesota from Wisconsin, followed by Diaz in another car. The two cars went to the motel in Rochester where Chacon was to meet Baltzer. Chacon went into the motel lounge and met with Baltzer. Diaz waited outside. Chacon told Baltzer that he had the two kilograms of heroin outside, but that he was not sure of the price. Chacon said the "man from Chicago had come along to get the money," and that Chacon would check on the price when he went out to get the heroin. Chacon left the motel and met with Diaz in the parking lot. Diaz went to the car he had been driving, opened the hood, untied some strings near the driver's side headlights, and lifted out a large white plastic bag. Diaz gave the bag to Chacon. Diaz then removed a coat from the trunk of his car, and he and Chacon wrapped the coat around the white plastic bag. Chacon took the package into the motel, and Chacon and Baltzer went to Baltzer's motel room. In the room, Chacon told Baltzer the price for the heroin would be $825 per ounce and handed him the white plastic bag. The bag contained two kilograms of heroin. The Chacons and Diaz were then arrested and charged in this indictment.

Diaz first argues that the fact that there were no Mexican-Americans on the venire from which his jury was drawn established a prima facie case of denial of his fourteenth amendment right to equal protection. He argues that the trial court therefore erred in refusing to strike the panel and also in refusing to conduct a hearing on whether the lack of Mexican-Americans was a result of intentional discrimination.

During voir dire, Diaz requested that the veniremen be asked whether any of them spoke Spanish fluently or were "of Mexican heritage." No one answered affirmatively. Diaz then filed a Motion to Discharge the Jury, arguing that his sixth amendment right to a jury trial and fourteenth amendment right to equal protection of the laws would be violated were he tried by a jury chosen from that venire. The only factual assertions stated in Diaz's motion were that none of the veniremen were "of hispanic origin or [were] Spanish speaking"; and that "[i]t can be reasonably inferred from the geographical size and demographers [sic] of the Fourth Division, that some statistically proportionate amount of a community (the Fourth Division) approximating one million people contains persons of hispanic origins, including mexicans [sic], mexican-americans [sic] and other members of a cognizable minority group." Diaz made no assertion about what proportion of the relevant population was Mexican-American, and indeed at trial his counsel admitted that the number of Mexican-Americans in the community might be negligible: "Now, with all due respect to the citizens of Minneapolis, I don't accuse them of — maybe there's only two Mexicans in the whole town."

Diaz did not pursue the sixth amendment argument on appeal.

In his appellate brief and district court papers, Diaz refers to "Mexicans," "Mexican-Americans," "Hispanics" and "Spanish-speaking" persons interchangeably, although those words have distinct meanings. We presume that Diaz means to refer to "Mexican-Americans," who were held to constitute a cognizable group for purposes of equal protection law in Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977).

Diaz's bare observation that there were no Mexican-Americans on his venire panel does not make a prima facie case of denial of equal protection. In Batson v. Kentucky, 476 U.S. 79, 93-96, 106 S.Ct. 1712, 1721-22, 90 L.Ed.2d 69 (1986), the Supreme Court recently reviewed the criteria for establishing a prima facie case of denial of equal protection in venire selection. The court reiterated that the burden is on a defendant alleging discriminatory venire selection "`to prove the existence of purposeful discrimination.'" Id. 106 S.Ct. at 1721 (quoting Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599 (1967)). A defendant may seek to prove purposeful discrimination, as in this case, by "proof of disproportionate impact." Batson, 476 U.S. at 93, 106 S.Ct. at 1721. Disproportionate impact may be demonstrated either by showing that the defendant's cognizable racial group has not been summoned for jury service over an extended period of time; or that his group is substantially underrepresented on his venire and that the venire was chosen under a practice providing the opportunity for discrimination. Batson, 476 U.S. at 95, 106 S.Ct. at 1722.

Diaz made no assertion and produced no evidence either that Mexican-Americans had been absent from any venire other than his own or that the proportion of Mexican-Americans in the community from which the venire was drawn was substantially different from the proportion of Mexican-Americans on his venire. Diaz gave the court no reason to conclude that the lack of Mexican-Americans on his venire was anything other than the innocent result of a lack of a significant number of Mexican-Americans in the community from which the venire was drawn.

Diaz's motion did no more than express a guess that there were enough Mexican-Americans in the district that some should have been present on the venire. This speculative argument falls far short of presenting proof that Mexican-Americans were substantially underrepresented on the venire from which the jury was drawn and that the venire was selected under a practice providing the opportunity for discrimination. We need not concern ourselves with the proof that Diaz might have presented, such as census data, in an effort to confirm the mere speculation he has presented to the court. Suffice it to say, Diaz simply argued the probability that such statistics would show unconstitutional lack of representation, but failed to present any sort of statistics to show his argument had any basis in fact. The record made by Diaz therefore fails to meet the Batson requirements for a prima facie case of denial of equal protection.

We may not find facts, but we observe that United States Census figures for 1980 show that persons identifying themselves as having at least some Mexican ancestry account for approximately .4% of the Minnesota population. United States Department of Commerce, Bureau of Census, Ancestry of Population by State: 1980 48, 66 (1983); United States Department of Commerce, Bureau of the Census, Statistical Abstract of the United States 1987 20 (1987) (1980 figures). The district court commented that it was "familiar with the nature of the population in this district, and there is a very small Mexican-American population. So I don't believe that this motion has merit under the circumstances that exist here."

Since Diaz neither made a prima facie case nor even alleged facts which, if proved, would have established a prima facie case, the court did not err in refusing to hold an evidentiary hearing on Diaz's motion. Cf. Brown v. Lockhart, 781 F.2d 654, 656 (8th Cir. 1986) (no evidentiary hearing necessary if habeas corpus petition fails to state allegations which, if true, could be basis for relief).

Diaz's equal protection argument is without merit.

Diaz's second argument is that his sixth amendment right to confrontation was violated by the combined effect of a post-arrest statement by Chacon that he was instructed to deliver heroin sale proceeds to "someone" on April 26 and Ragan's identification of Diaz as the man who met Chacon in the alley that day.

In an out-of-court statement to Baltzer, Chacon recounted that a person called Jaime had instructed Chacon to go to a residence and give the money from the April 26, 1986 pound sale to Diaz. Under the principles of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), Chacon's statement was redacted to remove references to Diaz by name, in order to avoid introducing testimony against Diaz by a witness he could not cross-examine at trial. Baltzer testified to Chacon's statement as redacted, and the court charged the jury to consider the statement only against Chacon. Chacon did not testify at trial.

Baltzer testified:

Q: Did he [Chacon] make any statement to you about the events of April 26, 1986 in Chicago?

A: Yes, sir.
Q: What did he say?
A: He said that after delivering the heroin to myself and after my paying him for it, he made several phone calls from pay phones and was then directed to a residence where he was directed to pay the money to someone.




After the redacted statement had been introduced at trial, the government called DEA Agent Ragan to testify. Ragan testified that he followed Chacon after the April 26 sale and that he saw Chacon meet with a man in the alley behind 6139 South Troy. The two walked out of Ragan's sight. When he could see them again, they shook hands and the Chacons left. Ragan then drove through the alley and saw the man standing on a ladder. Shortly afterwards, he saw the man walking on the sidewalk next to 6139 South Troy. At trial, Ragan identified Diaz as the person whom he saw Chacon meet.

Thus, although Chacon's statement was redacted to avoid reference to Diaz by name, the identification of Diaz as the person in the alley would give the jury grounds to infer that Diaz was the "someone" to whom Chacon referred.

Diaz argues that the prosecution misled the court by failing to inform it before admission of the redacted statement that Ragan would directly identify Diaz as the man in the alley.

Though Diaz complains he was prejudiced by prosecutorial misconduct, he does not argue that introduction of Ragan's identification was unfair because Diaz was entitled to disclosure of Ragan's proposed testimony during discovery. Rather, Diaz argues that if the court had known the prosecution would introduce such an identification, it would have forbidden introduction of Jose Chacon's out-of-court statement on the grounds that the jury would perceive that Chacon's statement implicated Diaz. According to Diaz, the court would have ruled that making it possible for the jury to connect him with Chacon's statement violated Diaz's sixth amendment right to confront the witnesses against him because Chacon was a non-testifying co-defendant, not subject to cross-examination. See generally Bruton v. United States.

Although Diaz's appeal is founded on his Bruton argument, rather than his claim of prosecutorial misconduct, in light of Diaz's vigorous arguments that he was misled by the government about Baltzer's identification testimony, a few preliminary comments on the claim of prosecutorial misconduct are appropriate. At trial Diaz argued that he was not informed before trial that Ragan had failed to identify Diaz when Ragan viewed a xeroxed photograph of Diaz. The district court ruled that Diaz was entitled to know this fact under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and should have been furnished this information before Ragan testified. However, the court concluded that since the information had been furnished before the government rested, there was still opportunity for Diaz to cross-examine Officer Ragan further and argue the fact of Ragan's failure to identify the photograph to the jury; accordingly, the court held there had been no violation of constitutional rights. Diaz chose not to take advantage of the district court's decision to permit recall of Ragan for further cross-examination. Diaz does not assert this issue on appeal.

Diaz limits his appellate argument to his assertion that the district court should not have admitted the redacted statement of Chacon had it known Ragan would make a direct identification of Diaz. However, the government made a lengthy record before the introduction of the redacted statement linking Diaz to the April 26, 1986 meeting. Utility records showed that Diaz maintained an account for gas for the house where the meeting took place. The utility records also had a driver's license number printed on them that was the same as the number on Diaz's driver's license, which was seized at the time of his arrest.

Furthermore, Diaz knew before trial that Ragan would give a description of the person he saw in the alley on April 26, which description would fit Diaz's characteristics, and Diaz's attorney told the court during the argument over admissibility of Chacon's statements that he expected the government to produce "evidence of a surveillance officer that's going to attempt to give a physical description of a person that's going to match the physical description of Defendant Diaz or there's going to be a positive identification of Defendant Diaz" (emphasis added).

Counsel later backed away from this statement, saying that he did not believe anyone could positively identify Diaz from the meeting on April 26, because "[o]ur contention is that he wasn't there and didn't receive any $14,400."

While the evidence that ultimately came in established direct identification of Diaz by Ragan rather than a description by Ragan that fit Diaz, we cannot conclude that this difference should mandate a different determination of the admissibility of the redacted Chacon statement. Nor can we conclude that the combined effect of admitting Chacon's statement and Baltzer's identification violate Diaz's rights to confront the witnesses against him.

The Supreme Court has recently treated the permissibility under Bruton of "evidentiary linkage" connecting a defendant with a co-defendant's statement, so that the co-defendant's statement indirectly implicates the defendant. See Richardson v. Marsh, ___ U.S. ___, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). In Marsh, the Court held that where a co-defendant's statement "was not incriminating [to the defendant] on its face, and became so only when linked with evidence introduced later at trial," the court was entitled to presume that the jury would follow a limiting instruction to consider the co-defendant's statement only against the co-defendant. Id. 107 S.Ct. at 1707. Marsh explicitly declined to further extend Bruton. Id. at 1709. Under the Marsh rule, the indirect inculpatory effect from linking Chacon's statements and the identification of Diaz as the person in the alley does not violate Bruton.

However, at oral argument Diaz attempted to distinguish his case from Marsh by pointing out that the Marsh statement was edited to eliminate all reference to the defendant's existence, whereas Chacon's statement still referred to Diaz, but was redacted by replacing Diaz's name with the neutral pronoun "someone." The Supreme Court in Marsh expressly declined to opine on "the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." 107 S.Ct. at 1709 fn. 5.

This court has in the past approved redaction by eliminating reference to the defendant's name, but not to his role in the crime. United States v. Brierly, 501 F.2d 1024 (8th Cir.), cert. denied, 419 U.S. 1052, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974). Cases sometimes arise in which the redacted statement alerts the jury to the fact that a name available to the prosecution has been purposely omitted, and this may improperly lead the jury to infer that the omitted name must be the defendant's. See, e.g., Clark v. Maggio, 737 F.2d 471, 476-79 (5th Cir. 1984), cert. denied, 470 U.S. 1055, 105 S.Ct. 1761, 84 L.Ed.2d 823 (1985). In this case, however, the language in the statement as testified to did not draw attention to the fact that the prosecution had the name available to it and purposely omitted it from the statement. Therefore, the holding in Brierly permits the sort of redaction used in this case.

Finally, even if the reference to Diaz's role were to take this case out of the rule in Marsh, introduction of the statement was beyond a reasonable doubt only harmless error. See Parker v. Randolph, 442 U.S. 62, 77-81, 99 S.Ct. 2132, 2141-43, 60 L.Ed.2d 713 (1979) (Blackmun, J., concurring), cited with approval in Cruz v. New York, ___ U.S. ___, 107 S.Ct. 1714, 1718, 95 L.Ed.2d 162 (1987).

The conspiracy conviction on which the evidence from the confession would be relevant is firmly supported by direct evidence of Diaz's involvement in the June 3 sale. Diaz drove with the Chacons from Chicago to Rochester, Minnesota on June 3, 1986, carrying the two kilograms of heroin in his car. Diaz unloaded the heroin sold to Baltzer and waited outside while Chacon went inside the motel to deliver the heroin. Chacon told Baltzer that "the man from Chicago" had come to collect the sale proceeds, and Chacon checked on the price of the heroin by going outside where Diaz was waiting.

Moreover, even without Chacon's statement to Baltzer, Diaz was firmly linked to the April 26, 1986 transaction. Ragan saw Diaz meet Chacon in the alley behind 6139 South Troy shortly after the April 26, 1986 sale. Ragan saw Diaz and Chacon confer and shake hands. Ragan then saw Diaz approaching the house at 6139 South Troy. The government introduced utility records showing an account for Diaz at 6139 South Troy.

Diaz's counsel also allowed Chacon's counsel to elicit testimony from Ragan linking Diaz to the money from the April 26, 1986 sale:

Q (By Chacon's counsel): You were aware that that money [from the April 26 sale] had been given to Jose Chacon?

A: That is correct.

Q: And you're further aware that he was to take that money and give it to somebody before noontime?

A: That's correct.

Q: And that was one of the reasons for your following or surveiling Mr. Chacon, is that right?

A: That is correct.

Q: You wanted, in effect, to follow the money in the chain, is that right?

A: That is correct.

* * * * * *

Q: [Y]ou knew that a sale had just gone down, and you were trying to find out who Mr. Chacon would have contacts with?

A: That is correct.

Q: And this [the man in the alley], then would have been the first person that he was observed having contact with since the drug transaction had occurred, is that right?
A: It's the first person I have knowledge of [sic] having contact with.

This line of questioning connects Diaz to the April 26, 1986 money far more cogently than the chain of inferences Diaz complains of, and it does so without reference to any information gained from Chacon's confession. Diaz did not object to this line of questioning, though it makes any possible error from admission of Chacon's confession entirely harmless.

In the face of the overwhelming evidence against Diaz on the conspiracy count, we are able to conclude beyond a reasonable doubt that, even if admission of Chacon's redacted statement had been error, it would have been harmless. See Parker v. Randolph, 442 U.S. at 77, 99 S.Ct. at 2141 (Blackmun, J. concurring).

Diaz's sixth amendment right to confrontation argument has no merit.

The judgment of the district court is affirmed.

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U.S. v. GARCIA
(Dec 30, 1987)