                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-3-2008

USA v. Hardwick
Precedential or Non-Precedential: Precedential

Docket No. 06-2541




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                                PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT


Nos. 06-2541, 06-2571, 06-3061, and 06-5151


     UNITED STATES OF AMERICA

                    vs.

LORENZO HARDWICK, a/k/a “Fu Quan,”
                Appellant in No. 06-2541,

                 _______

     UNITED STATES OF AMERICA

                    vs.

          JOSE G. RODRIGUEZ,
                       Appellant in No. 06-2571,
               __________

     UNITED STATES OF AMERICA

                    vs.

  BERNARD MURRAY, a/k/a “B-Nice,”
                Appellant in No. 06-3061,
                         __________

             UNITED STATES OF AMERICA

                              vs.

             ALLEN RESTO, a/k/a “Tito Allen,”
                              Appellant in No. 06-5151.
                     __________

       Consolidated Appeals from the United States
         District Court for the District of New Jersey
                      (Crim. No. 02-684)
      District Court Judge: Honorable Robert B. Kugler
                         ___________

        Submitted Under Third Circuit L.A.R. 34.1(a)
                   September 23, 2008
                      ___________

  Before: BARRY, AMBRO and GARTH, Circuit Judges,
            (Opinion Filed: October 3, 2008)

Christopher J. Christie, United States Attorney
George S. Leone, Chief, Appeals Division
Eric H. Jaso, Assistant United States Attorney
970 Broad Street
Newark, New Jersey 07102-2535
       Counsel for Appellee
Jerome A. Ballarotto
143 Whitehorse Avenue
Trenton, New Jersey 08610
      Counsel for Appellant Lorenzo Hardwick

Catherine M. Brown
60 Washington Street
P.O. Box 9058
Morristown, New Jersey 07963-9058
      Counsel for Appellant Jose G. Rodriguez

Michael E. Riley
Law Offices of Michael E. Riley, LLC
The Washington House
100 High Street, Suite 103
Mount Holly, New Jersey 08060
      Counsel for Appellant Bernard Murray

Brian S. O’Malley
607 White Horse Pike
Haddon Heights, New Jersey 08035
       Counsel for Appellant Allen Resto
                       ___________

                         OPINION
                        ___________


GARTH, Circuit Judge:

                            -1-
       The four defendants in this case filed separate appeals
that were consolidated upon motion by the Government.
Although the defendants raise numerous arguments on appeal,
only two questions warrant discussion.1 We address whether a


       1
          Hardwick’s issues on appeal were: (1) acceptance of
Captain Joseph Bowen as an expert on the Sons of Malcolm X
was prejudicial error; (2) the Assistant United States Attorney’s
vouching statements during closing argument were reversible
error; (3) the late admission of pretrial statements of
co-defendant Bernard Murray violated the Confrontation Clause
and constitutes reversible error; (4) use of unproven, judicially
found facts to enhance defendant’s sentence beyond the
statutory maximum found by the jury was improper and requires
defendant’s sentence to be vacated.
       Rodriguez’s issues on appeal were: (1) submission of a
copy of the indictment to the jury is a structural defect in the
proceedings below requiring a new trial; (2) the trial court
improperly denied Jose Rodriguez’s motions for severance and
separate trial; (3) resentence is required because it is based upon
an incorrect guidelines analysis; (4) Mr. Rodriguez joins in the
merits arguments of the co-defendants.
       Murray’s issues on appeal were: (1) since defense
counsel offered no evidence or arguments during his cross-
examination of the Government witnesses contrary to the proffer
agreement, the Government breached the agreement and it was
error for the court to admit the defendant’s proffer statements;
(2) even if defense counsel inadvertently opened the door to the
admission of the defendant’s proffer statements, the failure of
the Government to contemporaneously object constituted a

                               -2-
waiver in a proffer agreement that allows the Government to use
a defendant’s proffer statements 2 as part of its case-in-chief at
trial is valid and enforceable. We also consider whether



waiver and the statements should not have been admitted; (3)
acceptance of Captain Joseph Bowen as expert on the Sons of
Malcolm X was prejudicial error; (4) prosecutor’s vouching
statements during closing argument was reversible error.
        Resto’s issues on appeal were: (1) acceptance of Captain
Joseph Bowen as an expert on the Sons of Malcolm X was
prejudicial error; (2) the court erred in permitting 404(b)
evidence regarding an alleged golf clubbing of an individual by
defendant Resto; (3) admission of the two incriminating proffer
statements of co-defendant Bernard Murray was constitutional
error requiring a new trial; (4) admission of the Murray
statements coupled with a failure to sever Allen Resto deprived
him of his constitutional right to confront this adverse witness
against him and, further, bolstered testimony of numerous other
witnesses previously presented at trial who were not cross-
examined based upon the Murray statements; (5) prosecutor’s
vouching statements during closing argument were reversible
error; (6) submission of a copy of the indictment to the jury is a
structural defect in the proceedings below requiring a new trial;
(7) Allen Resto was denied effective assistance of counsel in
this trial, and this denial coupled with other trial error deprived
him of due process requiring a new trial.
       2
            See Appendix A to this opinion where Murray’s
redacted proffer statements are reproduced as they were read
into the trial record.

                               -3-
admission of that proffer statement violated the Confrontation
Clause rights of other defendants who were implicated in that
proffer statement. As discussed below, we find no reversible
error and affirm all four convictions.
                               I.
        This case involves various criminal acts related to drug
dealings in Camden, New Jersey. Without delving into the
details of each criminal act, it is enough to know that this case
concerns a gang called the Perez Organization. From January
1998 to September 2002, this gang was led by Enrique “Ricky”
Perez, a cooperating witness, and defendants Bernard “B-Nice”
Murray and Allen “Tito Allen” Resto. Defendant Lorenzo “Fu
Quan” Hardwick managed one of the drug corners (or “sets”)
controlled by the Perez Organization, and defendant Jose G.
Rodriguez was one of the primary “baggers” for the gang,
responsible for processing the drugs into individual bags for
street sale. Various disputes erupted between members of the
Perez Organization and competing drug dealers. Three
individuals were shot to death, and several others were badly
injured.
      On February 22, 2005, a federal grand jury in Camden,
New Jersey, issued an eight count Superseding Indictment
naming Murray, Resto, Hardwick, and Rodriguez as
defendants.3 The charges in the indictment included conspiracy



       3
          The Superseding Indictment also named Ramon
“Flaco” Saldana as a defendant. Saldana pled guilty to Count
One—the only count in which he was named—on March 21,

                              -4-
to distribute and possess narcotics, and possession and
brandishing of firearms while engaging in that conspiracy.4
Trial commenced on April 18, 2005, and on June 6, 2005, a jury
returned a guilty verdict on all counts. Rodriguez received a
360-month sentence; Hardwick, Murray, and Resto received life
sentences on the conspiracy count, and additional consecutive
sentences for their 18 U.S.C. § 924(c) convictions.




2005.
        4
           Specifically, Count One charged Defendants and
Saldana with conspiring to distribute, and possess with intent to
distribute, more than one kilo of heroin and more than 50 grams
of crack, contrary to 21 U.S.C. §§ 841(a)(1), (b)(1)(A), in
violation of 21 U.S.C. § 846. Count Two charged Murray with
being a felon in possession of a firearm , in violation of 18
U.S.C. §§ 922(g)(1) and 2. Counts Three through Five charged
Murray, Resto, and Hardwick, respectively, with possessing,
brandishing, discharging, and using a firearm during 1998 to
2002 in furtherance of the drug-trafficking conspiracy, in
violation of 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(C), and 2. Count
Six charged Murray, Resto, and Hardwick with possessing,
brandishing, discharging, and using firearms in furtherance of
the drug-trafficking conspiracy on February 19, 2001 in
violation of 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(C), and 2. Count
Seven charged Murray and Resto with the same violations on
March 11, 2001. Finally, Count Eight charged Murray and
Resto with the same violations on October 19, 2001.

                              -5-
        The defendants appealed on numerous grounds,5 the most
salient of which was whether the admission into evidence of a
redacted proffer statement, after the close of the Government’s
case-in-chief, violated defendants’ constitutional rights under
the Confrontation Clause. Because we find that the use of the
proffer statement was harmless error, and we find no merit in
the other issues brought on appeal, we affirm. The Government
concedes, however, that the sentences for Hardwick, Murray,
and Resto should be reduced to only one § 924(c) conviction
each; accordingly, we remand for appropriate resentencing of
these three defendants on their § 924(c) counts.
                                II.
         During the investigation before trial, Murray entered into
a proffer agreement with the Government. Under this proffer
agreement, Murray agreed to cooperate with the investigators by
answering questions truthfully and completely, and the
Government agreed not to use these statements against him at
trial in its case-in-chief. The proffer agreement provided for an
exception, however, if the Government needed “to rebut any
evidence or arguments offered on [Murray’s] behalf.” Murray
App. 89. Murray was interviewed under this agreement on
October 11, 2002, and October 23, 2002. During these
interviews, he admitted to planning and participating in the
slaying of two individuals, Hiram “Chubby” Rosa and Kenneth


       5
         The District Court had subject matter jurisdiction under
18 U.S.C. § 3231. We have jurisdiction over the challenges to
the convictions under 28 U.S.C. § 1291 and over the challenges
to the sentences imposed under 18 U.S.C. § 3742(a).

                               -6-
“Smoochie” Allen.
        After the close of its case-in-chief, the Government filed
a motion in limine to introduce Murray’s proffer statements.
Although Murray did not testify at trial, the Government argued
that Murray had breached the proffer agreement by attempting
to elicit contradictory evidence (i.e., that Murray had a lesser
role in those killings) through cross-examination.
       The District Court granted the Government’s motion,
finding that the cross-examinations conducted by Murray’s
counsel contradicted the proffer statements and thus triggered
the waiver. To allay any Confrontation Clause concerns, the
District Court ordered that all references to Murray’s
co-defendants be redacted and replaced with neutral references
such as “others” or “another person.” In addition, the District
Court instructed the jury that it could consider the proffer
statements only to assess Murray’s guilt, and not the guilt of any
other defendant.
        Murray challenges the District Court’s ruling on two
grounds. First, he argues that he did not trigger the waiver
because his cross-examinations only impeached the credibility
of the Government’s cooperating witnesses, without
contradicting his proffer statements. Second, he contends that,
even if the waiver was triggered, the Government waived its
ability to introduce the proffer statements because it did not
object contemporaneously to the cross-examinations or make a
timely motion to admit rebuttal evidence. Additionally,
Hardwick, Resto, and Rodriguez complain that the admission of
Murray’s proffer statements after the close of the Government’s
case-in-chief violated their rights under the Confrontation

                               -7-
Clause of the Sixth Amendment.
                               A.
              The Enforceability of the Waiver
       As a threshold matter, we consider whether the waiver
clause in Murray’s proffer agreement was enforceable before
determining whether it was properly invoked. Ordinarily, the
Federal Rules of Evidence prohibit the use of statements made by
a defendant during plea negotiations. Specifically, Federal Rule
of Evidence 410 provides:
       Except as otherwise provided in this rule, evidence
       of the following is not, in any civil or criminal
       proceeding, admissible against the defendant who
       made the plea or was a participant in the plea
       discussions: . . . (4) any statement made in the
       course of plea discussions with an attorney for the
       prosecuting authority which do not result in a plea
       of guilty or which result in a plea of guilty later
       withdrawn.
See also Fed. R. Crim. P. 11(f) (providing that the admissibility
of any plea, plea discussion, or related statement is governed by
Rule 410).
       In United States v. Mezzanatto, 513 U.S. 196, 210 (1995),
the Supreme Court held that a defendant could waive his rights
under Rule 410 and Rule 11 as long as there is no “affirmative
indication that the agreement [to waive] was entered into
unknowingly or involuntarily.” But the Mezzanatto Court only
considered the enforceability of proffer waivers for impeachment
purposes, and five justices expressed doubt as to whether a

                              -8-
waiver could be used to admit the defendant’s statement in the
Government’s case-in-chief. Id. at 211 (Ginsburg, J., concurring)
(warning that “a waiver to use such statements in the case in
chief would more severely undermine a defendant’s incentive to
negotiate, and thereby inhibit plea bargaining”); id. at 218
(Souter, J., dissenting) (expressing concern that a defendant who
gives such a waiver “will be unable even to acknowledge his
desire to negotiate a guilty plea without furnishing admissible
evidence against himself then and there”).
         Nevertheless, circuit courts that subsequently have
considered the question have upheld the use of proffer waivers
at trial. See United States v. Velez, 354 F.3d 190, 196 (2d Cir.
2004); United States v. Krilich, 159 F.3d 1020, 1025-26 (7th Cir.
1998); see also United States v. Rebbe, 314 F.3d 402, 407 (9th
Cir. 2002) (upholding admission of proffer statements in
rebuttal); United States v. Burch, 156 F.3d 1315, 1321-22 (D.C.
Cir. 1998) (extending the majority opinion in Mezzanatto to
allow the admission of plea statements in the case-in-chief). We
are persuaded by the reasoning of these courts and find that the
waiver agreement at issue in this case was enforceable.
                               B.
                    Triggering the Waiver
       Determining whether Murray triggered the waiver requires
an analysis of the terms of the waiver. A proffer agreement is a
contract and its terms must be read to give effect to the parties’
intent. United States v. Barrow, 400 F.3d 109, 117 (2d Cir.
2005) (quoting United States v. Liranzo, 944 F.2d 73, 77 (2d Cir.
1991)); see also United States v. Williams, 510 F.3d 416, 421-22
(3d Cir. 2007) (stating that plea agreements are analyzed

                               -9-
“according to contract law principles”); United States v. Nolan-
Cooper, 155 F.3d 221, 236 (3d Cir. 1998) (“Plea agreements,
although arising in the criminal context, are analyzed under
contract law standards.”). Because the interpretation of a
contract generally is a question of law, we review the District
Court’s interpretation of the terms of the waiver de novo.
Barrow, 400 F.3d at 117; see also United States v. Bernard, 373
F.3d 339, 341 (3d Cir. 2004) (“We exercise plenary review over
the question of whether the terms of a plea agreement have been
violated.”). If the waiver applies to this case, we review the
District Court’s evidentiary rulings admitting Murray’s proffer
statements for abuse of discretion. Barrow, 400 F.3d at 117.
         The terms of the waiver here were expansive, allowing the
Government to use Murray’s proffer statements not only to cross-
examine him, but also “to rebut any evidence or arguments
offered on [his] behalf.” (emphasis added). Barrow, 400 F.3d at
118. Compare Krilich, 159 F.3d at 1024 (demonstrating more
narrowly tailored waiver terms). Moreover, upon reviewing the
trial transcripts, it is clear that Murray triggered the terms of the
waiver by attempting to shift the blame for ordering the deaths of
Rosa and Allen.
       Regarding Rosa’s death, Murray’s cross-examination 6
attempted to elicit testimony that another drug gang, led by Mark
Lee, had motive to kill Rosa. Murray elicited testimony that one
of Rosa’s associates was attempting to sell drugs in Lee’s


        6
        Murray did not testify. All our references to “Murray’s
cross-examination” refer to the cross-examinations conducted
by Murray’s counsel.

                                -10-
territory, leading to a loss in profits. Murray also attempted to
insinuate that the van in which Moore was arrested might have
been the same van used in Rosa’s killing. Murray pursued these
lines of questioning even though he had confessed in his proffer
statements that he ordered Rosa’s killing.
        Likewise, Murray attempted to show that Ricky Perez
gave the order and the gun to kill Allen. In cross-examining a
cooperating witness, David Lopez, who had admitted to shooting
Allen, Murray repeatedly asked whether Perez ordered Allen’s
death, even though Lopez had testified that he acted on Murray’s
orders. Murray also repeatedly questioned Perez whether he
ordered Lopez to kill Allen, and whether he gave Lopez the gun
used to shoot Allen. Murray also elicited testimony from Perez
that Allen was disrupting Perez’s drug sets and affecting his
profits, in an attempt to pin the motive on Perez.
       The testimony elicited from these witnesses on cross-
examination was aimed at inferring that Lee and Perez, rather
than Murray, were responsible for the murders of Rosa and
Allen, contrary to the statements Murray made under the proffer
agreement. See United States v. Frazier, 469 F.3d 85, 89 (3d Cir.
2006) (holding that, in certain circumstances, an attorney’s cross-
examination of a witness is tantamount to the assertion of an
argument).
       Murray’s explanations for these lines of questioning are
unavailing. According to Murray, his questioning was intended
only to impeach the credibility of the Government’s cooperating
witnesses and to challenge their recollections of certain events.
Nevertheless, the District Court felt Murray was also attempting
to challenge any recollections regarding Murray’s role in the

                               -11-
killings, thus opening the door for the Government to invoke the
waiver to rebut these attempts.7 Accordingly, we find that the
District Court did not abuse its discretion in admitting Murray’s
proffer statements.
                               C.
    Timeliness of Exercise of Rights Under the Waiver
         The record reflects that the Government waited seven days
before objecting to one of the cross-examinations conducted by
Murray, and waited twelve days before objecting to two other
cross-examinations. Murray argues that the Government’s
failure to make contemporaneous objections constituted a waiver
of its right to admit his proffer statements under Federal Rule of
Criminal Procedure 51 and Federal Rule of Evidence 103(a). We
disagree.
       Murray’s argument conflates the right to object to the
introduction of evidence with the right to enforce a contract. See


        7
        The District Court stated:
             I was struck during the course of this trial
             to some of the cross examination about the
             van and about the arguments that these
             other people may have had with the
             victims of the murder and I was struck that
             counsel may have been suggesting that
             someone else was responsible for these
             murders and not, in fact, Mr. Murray as he
             so allegedly told the F.B.I.
Appellee’s App. 215-16.

                              -12-
Liranzo, 944 F.2d at 77 (“Pre-trial agreements, such as
cooperation agreements and proffer agreements, are interpreted
according to principles of contract law.”). The Government was
not lodging an objection to Murray’s line of cross-examination;
rather, it was exercising its contractual right under the proffer
agreement. The proffer agreement did not preclude Murray from
introducing evidence or making arguments contrary to the proffer
agreement, nor did it provide the Government with a right to
object when Murray did so. See Velez, 354 F.3d at 196 (“[A]
defendant remains free to present evidence inconsistent with his
proffer statements, with the fair consequence that, if he does, ‘the
Government [is] then . . . permitted to present the defendant’s
own words in rebuttal.’” (citation omitted)). Instead, it provided
the Government with the right to use the proffer statements to
rebut any arguments offered on Murray’s behalf. Thus, the
Government did not waive its right to introduce the proffer
statements by not objecting contemporaneously to the cross-
examinations.
                                D.
                     Confrontation Clause
       Hardwick, Resto, and Rodriguez argue that the admission
of Murray’s proffer statements violated their rights under the
Confrontation Clause of the Sixth Amendment. Although the
District Court ordered the statements to be redacted to replace
any references to Murray’s co-defendants with neutral terms such
as “others” or “another person,” they argue that they were
prejudiced even by these neutral terms, which strongly implicated
them in the killing of Rosa in light of earlier evidence placing
them in the van used in the shooting.

                               -13-
        The Confrontation Clause of the Sixth Amendment,
extended to the States by the Fourteenth Amendment, guarantees
a criminal defendant’s right “to be confronted with the witnesses
against him.” U.S. Const. amend. VI. This right includes the
ability to cross-examine witnesses. See Pointer v. Texas, 380
U.S. 400, 404, 406-07 (1965).
        In Bruton v. United States, 391 U.S. 123 (1968), the
Supreme Court held that the introduction of a non-testifying
defendant's out-of-court statement, which directly implicated his
co-defendant by name, violated the Confrontation Clause right of
the co-defendant. Even though the jury was given clear
instructions not to consider the confession in determining that
co-defendant’s guilt, the Supreme Court held that it could not
“accept limiting instructions as an adequate substitute for [the]
constitutional right of cross-examination.” Id. at 137. The
Supreme Court reasoned that “there are some contexts in which
the risk that the jury will not, or cannot, follow instructions is so
great . . . that the practical and human limitations of the jury
system cannot be ignored.” Id. at 135.
       Subsequently, the Supreme Court held in Richardson v.
Marsh that this problem could be cured by redacting the
confession “to eliminate not only the [co-defendant’s] name, but
any reference to his or her existence.” 481 U.S. 200, 211 (1987).
Critically, the confession in Richardson differed from the one in
Bruton because it had been redacted so completely that it was no
longer incriminating on its face, and became so only when linked
with other evidence introduced at trial. Id. at 208. The Supreme
Court declined to extend Bruton in that case because the risk of
potential prejudice to the co-defendant no longer outweighed the
pragmatic necessity of joint trials. “[N]o opinion” was expressed

                                -14-
“on the admissibility of a confession in which the defendant’s
name has been replaced with a symbol or neutral pronoun.” Id.
at 211 n.5.
        But the Supreme Court revisited that question in Gray v.
Maryland, 523 U.S. 185 (1998), holding that redactions that
substituted the co-defendant’s name with placeholders such as
blank spaces or the word “deleted” did not pass muster. Such
placeholders were problematic because they “refer[red] directly
to the ‘existence’ of the nonconfessing defendant.” Id. at 192.
In the Supreme Court’s view, the redacted statements in Gray “so
closely resemble[d] Bruton’s unredacted statements” that the law
required the same result. Id.
        Since Gray, we have considered the constitutionality of
redacted confessions in two cases: United States v. Richards,
241 F.3d 335 (3d Cir. 2001), and Priester v. Vaughn, 382 F.3d
394 (3d Cir. 2004). In Richards, the defendant’s confession
stated that he had planned the robbery at issue with a “friend.”
Other testimony showed that the two co-defendants were friends.
We held that this reference to the “friend” was “just as blatant
and incriminating . . . as the word ‘deleted’ in the Gray case.”
241 F.3d at 341.8
       In Priester, however, we found that substitutions such as
“the other guy,” “someone,” “someone else,” “the guy,” and
“another guy” did not violate the Confrontation Clause where

       8
         Although we concluded that a Bruton error occurred in
Richards, we found that the issue had not been preserved.
Consequently, under plain error review, we found that the error
was not so prejudicial as to require reversal. 241 F.3d at 341-42.

                              -15-
there were “at least fifteen perpetrators in various cars involved
in the shooting.” 382 F.3d at 399. Unlike Richards, where “the
word ‘friend’ unequivocally pointed to Richards,” the only other
co-defendant, Priester involved so many perpetrators that “the
phrases ‘the other guy’ or ‘another guy’ [were] bereft of any
innuendo that tie[d] them unavoidably to Priester.” Id. at 400-01.


       What these decisions underscore is that the nature of the
linkage between the redacted statement and the other evidence in
the record is vitally important in determining whether a
defendant’s Confrontation Clause right has been violated. Even
redacted statements will present Confrontation Clause problems
unless the redactions are so thorough that the statement must be
linked to other evidence before it can incriminate the
co-defendant. See Richardson, 481 U.S. at 208; see also Gray,
523 U.S. at 196 (finding issue with redactions that leave
“inferences that a jury ordinarily could make immediately, even
were the confession the very first item introduced at trial”).
       Assessing the “kind” of inference present here, and not the
“simple fact of inference,” leads us to conclude that the
admission of Murray’s proffer statements violated the
Confrontation Clause rights of Murray’s co-defendants. Cf.
Gray, 523 U.S. at 196 (noting that redactions that leave over-
simplistic inferences do not satisfy the concerns of Bruton and
Richardson, which “must depend in significant part upon the kind
of, not the simple fact of, inference”). Although this trial
involved multiple co-defendants, only two—not including
Murray—were charged with killing Rosa. Redacted references
to “others in the van” referred directly to their existence, and the
unavoidable inference was that they were the ones who “exited

                               -16-
[the] vehicle and started firing their weapons at Rosa.” Murray
App. 99. The redacted version of the text explicitly excluded
Perez and Murray, the only other passengers, from the “others”
who left the van. Because Murray exercised his right not to
testify at trial, Hardwick and Resto were unable to confront him
and challenge his testimony. This violated the Confrontation
Clause.9
        Although we conclude that the District Court erred in
admitting the proffer statements, we will affirm “if we find the
error is harmless beyond a reasonable doubt.” Richards, 241
F.3d at 341. “An error is harmless if it ‘does not affect
substantial rights’ of the defendant.” United States v. Jimenez,
513 F.3d 62, 83 (3d Cir. 2008) (quoting Fed. R. Crim. P. 52(a)).
This occurs when the record shows “‘beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained.’” United States v. Fallon, 470 F.3d 542, 547 (3d Cir.
2006) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
As we have stated, an “‘otherwise valid conviction should not be
set aside if the reviewing court may confidently say, on the whole
record, that the . . . error was harmless beyond a reasonable

        9
          The Government also relies heavily on the District
Court’s limiting instruction, but it is clear that “certain
‘powerfully incriminating extrajudicial statements of a
codefendant’ . . . are so prejudicial that limiting instructions
cannot work. Unless the prosecutor wishes to hold separate
trials or to use separate juries or to abandon use of the
confession, he must redact the confession to reduce significantly
or to eliminate the special prejudice that the Bruton court
found.” Gray, 523 U.S. at 192 (citations omitted).

                              -17-
doubt.’” Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673,
681 (1986)).
        The evidence in this case was more than sufficient to
support the jury’s verdict, even without the offending proffer
statements.     At trial, several witnesses testified to the
participation of Hardwick and Resto in the murders of Rosa and
Allen. Ricky Perez detailed the roles played by himself, Resto,
Murray, and Hardwick in the killings of Rosa and Allen.
Another witness named Arnaldo Gomez described the escalating
dispute between Rosa and Hardwick. David Lopez, who
admitted that he personally shot Allen, testified that he, Perez,
Murray, and Resto planned the killing. The prosecution also
offered testimony of a New Jersey Police ballistics expert that
AK-47 shell casings from the Rosa murder scene matched those
found at the murder scene of the third victim, Troy James,
coupled with testimony from Ricky Perez that Murray admitted
killing James with the same AK-47 that Resto used to kill Rosa.


         The overwhelming evidence convinces us that the District
Court’s error was harmless beyond a reasonable doubt. See
Monachelli v. Warden, SCI Graterford, 884 F.2d 749, 753 (3d
Cir. 1989) (“[A] Bruton violation will not result in a reversal
where the independent, ‘properly admitted evidence of [the
defendant’s] guilt is so overwhelming, and the prejudicial effect
of the co-defendant’s admission so insignificant by comparison,
that it is clear beyond a reasonable doubt that the improper use of




                               -18-
the admission was harmless error.’” (quoting Schneble v. Florida,
405 U.S. 427, 430 (1972))). Accordingly, we will affirm.10
                                III.
       The defendants raise a host of additional arguments on
appeal, see note 1, supra, none of which has merit. The
Government, though, has agreed that the multiple consecutive
sentences imposed on Hardwick, Murray, and Resto under
§ 924(c) should be remanded with instructions to vacate all but
one § 924(c) conviction each, in compliance with a Justice
Department policy memorandum requiring a separate predicate
offense for each § 924(c) charge.11

        10
           The defendants also argue that admitting Murray’s
proffer statements was unduly prejudicial and therefore the
District Court abused its discretion under Federal Rule of
Evidence 403 by admitting this evidence. Resto also argues that
he was entitled to severance based on the admission of Murray’s
proffer statements. Even if the District Court erred, any error
was harmless given the tremendous amount of evidence in the
record supporting the jury’s verdict.
        11
             On page 28 of its brief, the Government represents:
                Accordingly, the United States requests
                that this Court remand these three
                Defendants’ cases to the district court,
                with instructions to vacate the sentences
                imposed for all but one § 924(c)
                conviction each; that conviction should be
                chosen by the Government, and to comport
                with the intent of Congress, should reflect

                               -19-
       For the foregoing reasons, we will affirm the jury’s verdict
as to all four defendants, and remand only for resentencing of
Murray, Resto, and Hardwick consistent with the Justice
Department policy memorandum.




             the highest mandatory penalty supported
             by the evidence.
Appellee’s Br. 28.

                               -20-
                        Appendix A

I. Redacted Proffer Statement (October 11, 2002)
MR. SWEENEY 1 :    Murray advised that he had an ongoing
                   dispute with individuals by the name of
                   Gerard Jackson and Shaheed Wilson. This
                   dispute originated from Mark Lee a/k/a
                   Moe being upset that Gerard Jackson
                   opened a crack cocaine house flow at 728
                   Vine Street. This house flow directly
                   conflicted with his flow and the cocaine
                   and marijuana flow at 7th and Vine Street
                   Camden, New Jersey. This altercation
                   became physical when Wilson fought Lee
                   in a fist fight with Lee losing the fight.
                   This dispute continued with Alvin
                   Coleman, friend of Gerard Jackson and
                   Shyeve [sic] Wilson when Coleman got
                   into a fight with Michael Moore a/k/a
                   Snook, a friend of Moe. Coleman punched
                   Moore who had had a weapon on his person
                   and he shot Coleman in the leg area.
                   Jackson continued to sell crack cocaine
                   from his mother’s house on Vine Street
                   when Arnaldo Gomez a/k/a Nandito
                   complained that the money slash drug flow
       1
          Sweeney was the government agent who interviewed
Murray on October 11, 2002, and October 23, 2002, pursuant
to the proffer agreement. He took the stand on May 25, 2005,
to read the redacted proffer statements into the record.

                            -1-
     Appendix A

was being messed up by Jackson’s drug
operation. Nandito was the manager of the
7th and Vine Street crack cocaine flow.
Jackson was approached and advised that
he couldn’t sell drugs in the area. B-Nice
advised he was supplying with cocaine and
the flow was being slowed down by
Jackson’s drug set. B-Nice advised at some
point he told Wilson that he and Jackson
had to leave the block. Approximately one
week later, Enrique Perez a/k/a/ Rick and
B-Nice talked to Nandito who advised that
Jackson was continuing to sell crack from
the house. Both men traveled to Jackson’s
house on Vine Street and waited out in
front of his house.        Jackson.     [sic]
According to B-Nice, he called Jackson’s
name who was located in the house and
Jackson advised them to weight [sic] a
minute. B-Nice entered his black Honda
Accord Station Wagon which he drove to
Jackson’s house. Rick Perez drove his
green vehicle and parked directly in front of
Jackson’s house next to Murray’s vehicle.
According to Murray, Jackson started firing
his weapon out of the house and in their
direction attempting to kill them. Both
Murray and Perez fled the area on foot. B-
Nice fled towards 8th and State Streets

         -2-
    Appendix A

while with [sic] Perez running toward
Linden Street Camden, New Jersey.
B-Nice recalled that the incident happened
during the weekday and [sic] the time of
1300 hours. B-Nice advised he ran to
Yamilee Coffigny’s house on State Street
who eventually drove him home to his
Dayton Street address. B-Nice advised that
he grabbed his 9 millimeter handgun with
Rick Perez grabbing his 380 caliber
handgun from his residence on 34th Street,
Camden, New Jersey.         Together both
Murray and Perez traveled around the area
looking for Gerard Jackson and Shaheed
Wilson. Murray advised that both Perez
and Murray obtained a vehicle from
Anthony Perez that was white in color.
Both Perez and Murray, and [sic] observed
Wilson on State Street around 1600 hours.
They displayed their weapon [sic] to
Wilson and demanded to know where
Gerard Jackson was located. Wilson was
able to break away from Murray and fled
the scene. Wilson called the police and
signed complaints against Murray. Several
days went by and an incident occurred
where Hiram Rosa shouted threats in the
direction of Murray and Perez while they
were standing on the 500 block of Vine

         -3-
     Appendix A

street [sic], Camden, New Jersey. As a
result they decided to kill Rosa. Another
person rented a gray blue van from a rental
agency and provided it, an AK47 and 45
caliber handgun. Another person advised
that he got word that Rosa and Gerard
Jackson were located at Cooper Hospital.
Perez and Murray and others drove around
and attempted to locate both individuals.
B-Nice stated that Perez had the
9 millimeter and he had a 38 caliber
handgun that is, as they [sic], as they were
driving around. Murray described the
vehicle as a white Ford Tarusus [sic]. They
followed the vehicle onto Broadway Street
in Camden and into the Rutgers Campus.
They temporarily lost the vehicle an [sic]
found it on a dark street. B-Nice advised
that he was located in the very back of the
vehicle when they drove past Rosa’s
vehicle because he was driving slow. Rosa
pulled his vehicle to the side and the others
in the van neither Perez nor Murray exited
their vehicle and started firing their
weapons at Rosa. After the shooting, they
left in a hurry in the direction of North
Camden. They decided to split up with
Perez an [sic] B-Nice traveling to Perez’s
residence on 34th Street Camden, New

         -4-
                         Appendix A

                    Jersey. Murray advised he recalled that
                    night of the shooting he and Perez had a
                    lengthy discussion about not being involved
                    with the shooting.
(Appellee’s App. 223)
II. Redacted Proffer Statement (October 23, 2002)
MR. SWEENEY:        Murray advised that he wanted to change
                    some details about the Rosa homicide.
                    Murray advised that during the actual
                    shooting of Hiram Rosa, Rick Perez had the
                    AK47 assault rifle and another had the 45
                    caliber handgun. Murray also advised that
                    Hiram Rosa was very agitated with the
                    events that unfolded and made over [sic]
                    threats towards them. Murray recalled on
                    one occasion that Rosa shouted “It ain’t
                    over.”     When the shooting incident
                    occurred, Murray advised he had a 380
                    caliber weapon. Murray advised the AK47
                    and 45 caliber handgun were used in the
                    Rosa homicide. Murray state [sic] that
                    Perez and another person were the actual
                    shooters of Rosa. Murray advised that
                    another person rented a gray colored Dodge
                    Caravan that was utilized to do the murder.
                    Murray did not know what happened to the
                    vehicle after the incident. Pertaining to the


                             -5-
    Appendix A

Kenneth Allen a/k/a Smooch murder,
Murray advised that David Lopez was the
manager of the 9th and Cedar Street heroin
set [sic] according to Murray the bundles
and money kept coming up short by about
1500 to 2000 dollars. Lopez wanted to
show someone that [sic] stealing the
bundles; therefore he placed a stash in the
area where he could observe it. Lopez
observed Allen steal the stash. Lopez
called Rick Perez and Murray and another
person. They responded to the area of 9th
and Cedar Streets, Camden, New Jersey.
While at Lopez’s residence on Cedar Street,
they discussed the situation on whether or
not to kill or beat up Kenneth Allen.
During that conversation, it was decided
that Allen would be killed. Specifically
Murray advised that he instruct [sic] the
other person to handle the situation with
David Lopez. B-Nice advised he drove
David Lopez to the area of 9th and Vine
Streets, Camden New Jersey.           They
observed Kenneth Allen during the
altercation Smooch started to win the fight
against David Lopez. I’m sorry. During
that altercation, Smooch started to win the
fight causing David Lopez to exit Murray’s
vehicle and approach the situation.

         -6-
                   Smooch started to runaway [sic] from the
                   area causing David Lopez to fire his
                   weapon at Smooch. Murray advised he
                   observed Smooch stumble and continue to
                   run as he was being fired at. Murray
                   advised Lopez caught up to Smooch and
                   finished him off. Murray advised that the
                   other person who was firing at Smooch at
                   the same time was David Lopez [sic].
                   Murray recalled approximately ten to 16
                   shots were fired during the incident.
                   Murray advised that the shooting, that after
                   the shooting was over, he picked up Lopez
                   and the other person on 10th Street and
                   drove over to Rick Perez’s house. At
                   Perez’s house Murray advised both this
                   other person and David Lopez were both
                   amped up about the situation and David
                   Lopez volunteered to do the other shootings
                   in the future. Murray advised he stated to
                   Perez Dave and the other person handle
                   their business. After the conversation, all
                   guns used in the shooting were given to
                   Rick Perez while located in his residence.
(Appellee’s App. 224)
