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


12-19-2008

Vazquez v. Wilson
Precedential or Non-Precedential: Precedential

Docket No. 07-2162




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                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 07-2162


               ANTONIO VAZQUEZ,

                                     Appellant

                          v.

HARRY WILSON; THE DISTRICT ATTORNEY OF THE
  COUNTY OF PHILADELPHIA; THE ATTORNEY
  GENERAL OF THE STATE OF PENNSYLVANIA


    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
              (D.C. Civ. No. 06-02665)
     Honorable Petrese B. Tucker, District Judge


               Argued October 27, 2008


BEFORE: SLOVITER and GREENBERG, Circuit Judges,

             and IRENAS, District Judge*
                 (Filed: December 19, 2008)


Steffen N. Johnson
Luke W. Goodrich (argued)
Winston & Strawn LLP
1700 K Street, N.W.
Washington, D.C. 20006

   Attorneys for Appellant

Susan E. Affronti (argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Law Division
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499




*Hon. Joseph Irenas, Senior Judge of the United States District
Court for the District of New Jersey, sitting by designation.
  Attorneys for Respondents

                               2
                 OPINION OF THE COURT


GREENBERG, Circuit Judge.


                     I. INTRODUCTION

       This matter comes on before this Court on Antonio
Vazquez’s appeal from a final order of the District Court
denying his petition for a writ of habeas corpus following
Pennsylvania state court proceedings. In July 2000 the Common
Pleas Court tried Vazquez jointly with Gilbert Santiago on first-
degree murder and certain other charges. The jury convicted
Vazquez on all of the charges against him, following which it
sentenced him to life in prison. 1 The jury, however, found


   1
     We find it ironical that both defendants asked for nonjury
trials but the prosecutor successfully objected to those requests,
for if this case had been tried to the court without a jury there
would have been no basis for federal habeas corpus relief on any
of the grounds that we delineated in the certificate of
appealability that we issued on this appeal. See Johnson v.
Tennis, No. 07-1968,       F.3d , 2008 WL 4925053 (Nov. 19,
2008). But the prosecutor had a strong basis for asking for a
jury trial because in Pennsylvania since 1998 the
Commonwealth has had by constitutional amendment the same

                                3
Santiago not guilty. Vazquez appealed but the Pennsylvania
Superior Court affirmed his conviction and sentence in an
unpublished opinion on February 22, 2002, that was the only
appellate state court opinion in this case dealing with the issues
that we consider on this appeal. Vazquez subsequently
unsuccessfully sought relief in the Supreme Court of
Pennsylvania and the Supreme Court of the United States.

       On May 14, 2003, Vazquez filed a petition in the
Common Pleas Court for post-conviction relief under
Pennsylvania’s Post Conviction Relief Act, 42 Pa. Cons. Stat.
Ann. § 9541 et seq. (West 1998), but that court denied the
petition on July 14, 2004. Vazquez appealed, but the
Pennsylvania Superior Court affirmed, and the Supreme Court
of Pennsylvania denied review on December 29, 2005.2

       On June 19, 2006, Vazquez filed a petition for a writ of
habeas corpus in the District Court under 28 U.S.C. § 2254.
After that Court denied the petition Vazquez appealed to this
Court and sought a certificate of appealability, which we granted



right to a jury trial in a criminal case as a defendant. See
Commonwealth v. Tharp, 754 A.2d 1251 (Pa. 2000).
  2
   In the post-conviction relief proceedings the Superior Court
did not address the issues Vazquez raises on this appeal, and the
Supreme Court of Pennsylvania denied review on both the direct
appeal and the post-conviction appeal by orders without
opinions. The Supreme Court of the United States denied
certiorari without an opinion.

                                4
on October 11, 2007. As we will explain, the outcome of this
case turns on the application of Bruton v. United States, 391
U.S. 123, 88 S.Ct. 1620 (1968), and subsequent Supreme Court
cases building on Bruton.




                         II. FACTS

       A. The Shooting and its Aftermath

       At about 3:00 a.m. on January 31, 1999, Melvin
Coleman, the murder victim, hired Matthew Caldwell, an
unlicensed taxicab driver, to drive him to the corner of Third
Street and Allegheny Avenue in Philadelphia. There, Coleman
spoke briefly with three men, Vazquez, Santiago, and George
Rivera, who were in a gray Buick LeSabre.

       After the three men in the Buick departed, Coleman
asked Caldwell to drive him to a different location in
Philadelphia. On the way to that location Coleman and
Caldwell saw the gray Buick parked near a payphone. Coleman
rolled down his window and asked the three men if there was
any “hydro around,” to which one of the men responded “in
about five minutes.” App. at 188. Caldwell and Coleman then
continued driving. When they stopped at a traffic light a few
blocks later, the gray Buick approached the taxi from behind
whereupon one or more of its occupants began shooting at the
taxi shattering its rear window. As Caldwell pulled his vehicle
around the corner, he heard another shot, following which
Coleman told him that he had been hit. After Caldwell heard

                              5
two more shots, he drove Coleman to Temple University
Hospital where he died of a single gunshot wound to the upper
back.3

        A few minutes after the shooting two Philadelphia police
officers on routine patrol who were unaware of the shooting
spotted the gray Buick making an abrupt right turn onto Sixth
Street. The officers were concerned with the Buick’s operation
and consequently followed it. Then, when the officers
attempted to initiate a traffic stop, the driver of the Buick,
Santiago, ran a red light and its occupants fled. During the
ensuing pursuit, one of the Buick’s occupants, who Vazquez
later acknowledged had been he, threw a gun out of a window
of the car. At the trial there was evidence supporting a finding
that the gun, which the police recovered, was the murder
weapon. After the vehicle covered a few additional blocks
Vazquez jumped from it on the passenger side and rolled along
the ground. Following a brief stop during which one officer
took a good look at Vazquez, who escaped and avoided
apprehension on the night of the murder, the police continued to
pursue the Buick, but they lost track of it after a few more
turns.4


   3
    We have no idea why any of the men fired shots, and the
parties in their briefs do not give any explanation for the gunfire.
Moreover, we do not know if the shooter or shooters were firing
at Caldwell, Coleman, or simply the taxi.
  4
   Identification of defendants as occupants of the Buick was
demonstrated conclusively at the trial inasmuch as Santiago

                                 6
       About 20 minutes later different officers in another patrol
car spotted the Buick in which Santiago now was the sole
occupant. When Santiago saw the police he fled, first in the
vehicle and then on foot. Unlike Vazquez, however, he did not
escape as the police apprehended him shortly into his flight.

       Following his arrest, Santiago gave a statement to
Philadelphia Detective Will Egenlauf in which he admitted that
he had been the driver of the Buick at the time of the shooting
and identified Vazquez and Rivera as its other occupants at that
time. Santiago said that Vazquez was the shooter and that he
and Rivera were surprised when Vazquez opened fire. Santiago
explained that he fled from the police solely out of fear and
agreed to help them identify and apprehend Vazquez and Rivera.

        The appellees do not accept Santiago’s statement to
Egenlauf as having been completely accurate as they recite in
their brief that “[t]he ballistics evidence . . . indicated that two
different guns were fired at the cab [and] [t]he Commonwealth
argued that there was never an ‘innocent’ passenger in the car,
but instead that both Rivera and Vazquez were shooters.”
Appellees’ br. at 7. Thus appellees assert that the prosecutor
“effectively undermin[ed] both Santiago’s statement and
Vazquez’s testimony.” Id. Nevertheless, the prosecutor
partially accepted Santiago’s statement because she argued that
Vazquez fired the fatal shot.




admitted to the police that he had been its driver and Vazquez
testified that he had been in the car.

                                 7
        Notwithstanding Santiago’s identification and offer to
help in Vazquez’s apprehension, the police did not arrest
Vazquez for several months until they found him at his wife’s
house asleep next to a police scanner. For reasons that the
parties do not explain in their briefs or suggest are explained in
the record at a place to which they direct our attention, Rivera,
who was not a defendant at the trial, was not present at it.
Indeed, when we study the parties’ briefs we almost sense that
they do not want us to know why Rivera was not at the trial, for
appellees cryptically tell us only that “George Rivera, who was
also in the car at the time of the shooting, was not brought to
trial,” Appellee’s br. at 3, and Vazquez tells us only that “Mr.
Rivera was unavailable for trial.” Appellant’s br. at 11.

       B. The Trial

       A grand jury charged Vazquez and Santiago with first-
degree murder, aggravated assault, two firearms-related charges,
and conspiracy to commit the offenses, and they were the two
defendants in the Common Pleas Court at the trial in the
proceedings which we are now examining. Not surprisingly, the
identity of the person who fired the fatal shot was the critical
issue at the trial inasmuch as Caldwell did not identify the
shooter and no one present at the trial except for Vazquez, who
denied being a shooter, and Santiago, who did not testify, could
have seen any of the shots fired.

      The prosecutor, relying primarily on the fact that the
murder weapon had three fingerprints, two of which were too
smudged to identify but one of which on its barrel matched
Vazquez’s left ring finger, contended that Vazquez fired the

                                8
fatal shot. This fingerprint testimony, however, though
supporting a conclusion that Vazquez fired the murder weapon,
hardly was conclusive because Vazquez testified that Rivera
fired the weapon and then passed it to him in the back seat,
telling him to get rid of it, which he did. Accordingly,
Vazquez’s testimony could explain why his fingerprint was on
the weapon even if he had not fired it.5 Though Santiago did not
testify, the statement that he gave Detective Engenlauf which
contradicted Vazquez’s testimony on the critical question of
who was the shooter spoke for him. Thus, the jury if it did not
credit Santiago’s statement - though we can see no reason why
it would have discredited the statement to the extent that
Santiago said that he was not a shooter, unless it believed
Vazquez’s testimony that he, Vazquez, was not a shooter - could
have concluded that Santiago, Vazquez, or Rivera fired the fatal
shot. But if, as its verdict demonstrated apparently happened,
the jury accepted Santiago’s statement, at least to the extent that
it believed that he did not fire the fatal shot, then its choice for
the shooter was between Vazquez and Rivera.

       Inasmuch as the parties realized that there would not be
any direct evidence other than Santiago’s statement identifying
Vazquez as a shooter, they understood before the trial that the


    5
     The prosecutor presented evidence that, because of its
location on the weapon, Vazquez’s fingerprint established that
he had fired the weapon. The jury’s verdict suggests that it
might have believed this evidence, although it could have
predicated its verdict on Santiago’s statement and other
evidence.

                                 9
question of how, if at all, the prosecutor could use the statement
at the trial would be of the utmost importance. Santiago
believed that it was vital to his defense to use an unredacted
version of the statement because it showed that when the police
arrested him he immediately fully cooperated by identifying
Rivera and Vazquez as occupants of the vehicle and by offering
to help the police apprehend them. On the other hand, Vazquez
believed that even a redacted form of the statement should not
be used at the trial because it plainly would identify him as the
shooter in violation of his Sixth Amendment right to cross-
examine Santiago who did not indicate that he would testify and,
in fact, did not do so. See Bruton v. United States, 391 U.S. at
135-36, 815 S.Ct. at 1627-28. Consequently, both defendants
moved for severance of their trials, but the court denied their
motions.

       The pretrial rulings did not put the question of how the
statement could be used to rest as it arose again at trial when the
prosecutor sought to use it. At that time the court, over
Vazquez’s strenuous objection, ruled that Detective Egenlauf
could read a redacted version of the statement to the jury,
substituting “my boy” or “the other guy” for the names of
Vazquez or Rivera. Nevertheless, both before and after
Egenlauf read the statement, which contained more than 20
substitutions of a generic term for Vazquez’s and Rivera’s
names, the court permitted Santiago’s attorney to emphasize that
Santiago had identified the two other men in the car and had
offered to take the police to their homes. Accordingly, the jury
almost certainly knew from the evidence at the trial that the
someone had redacted Santiago’s statement so as to excise the
names of the persons Santiago had identified. We think that this

                                10
point is clear beyond doubt as we can perceive of no reason why
the jury would have believed that Santiago had identified his
two passengers but nevertheless had used the generic terms in
his statement used at trial. Furthermore, as we explain below,
during its deliberations the jury asked the court a question that
included the jury’s conclusion that Santiago’s statement
identified Vazquez as the shooter.

       Santiago called his wife, Nancy Rosado, as a character
witness at the trial.         During her cross-examination,
notwithstanding her lack of personal knowledge of the details of
the crime, in response to a question of the prosecutor, Rosado
stated that Vazquez was “[t]he guy that murdered” Coleman.
App. at 533. Her expression of this view of the case
incriminating Vazquez understandably caused him to move for
a mistrial, but the court denied the motion, and, instead,
instructed the jury to disregard Rosado’s comments.

       At the closing argument, after Santiago’s counsel again
emphasized that his client had identified the other occupants of
the Buick, the prosecutor effectively eliminated the redaction of
Vazquez’s name and reinserted it in Santiago’s statement when
she referred to “Mr. Santiago’s statement that he and the other
man George, excuse me, the man who’s not the shooter, he said,
[had] jumped out of the car.” App. at 714. Obviously, the
prosecutor’s statement identified Vazquez as the shooter
because in his statement Santiago had claimed that neither he
nor “George,” a name that could mean only Rivera, had not been
the shooter. Thus, Santiago’s statement assigned that unwanted
role to Vazquez as he was the only person left to fill it. As
might be expected, the prosecutor’s comment led Vazquez to

                               11
move again for a mistrial, which the court denied, even though
the prosecutor admitted that “I clearly misspoke . . . and I did
say it, without question.” App. at 718.6

        Following closing arguments, the court instructed the jury
that it should not consider Santiago’s statement as evidence
against Vazquez. Clearly, however, this instruction was not
completely effective, if effective at all, because during its
deliberations the jury requested that the court have Santiago’s
statement read back and asked, “Are we supposed to not
consider Santiago’s statement that Vazquez was the shooter?”
App. at 805. After considering whether or not to declare a
mistrial in recognition of the reality that the jury had concluded
that Santiago’s statement had been redacted but originally had
named Vazquez as the shooter, the court read the statement to
the jury in its redacted form and repeated its instruction that it
was not to consider Santiago’s statement as evidence against
Vazquez.7

       The jury convicted Vazquez of first-degree murder,


  6
   The prosecutor claims that her mistake was inadvertent, and
we do not doubt that this was so. No reasonable person can
believe otherwise for, as we explain below, see infra note 14, by
making the statement she probably torpedoed her case and
surely at that time would have recognized that she was creating
major problems for the prosecution.
  7
   In fairness to the trial court we observe that it is difficult to
see that it could have done anything else to avoid a mistrial.

                                12
aggravated assault, and two firearms-related charges but
acquitted Santiago on all counts.8




  III. PROCEDURAL HISTORY, JURISDICTION, and
STANDARD OF REVIEW

        As we previously explained, following his conviction
Vazquez filed unsuccessful direct appellate and post-conviction
relief proceedings in the trial court, the Pennsylvania Superior
and Supreme Courts, and the Supreme Court of the United
States. Thereafter, he filed the habeas corpus petition in the
District Court, the denial of which we now review. The District
Court referred the case to a magistrate judge who, without
holding a hearing, made a Report and Recommendation dated
January 30, 2007, recommending that the Court deny the
petition.    The District Court adopted the Report and
Recommendation, and on March 20, 2007, executed an order
that was filed March 21, 2007, denying the petition.

       After Vazquez filed a timely appeal to this Court he
sought a certificate of appealability, which we granted on the
following issues:



  8
   As we indicated above, the jury sentenced Vazquez to life
imprisonment on the murder conviction. The court on the other
convictions sentenced Vazquez to shorter sentences to run
concurrently with the term of life imprisonment.

                              13
          (1) whether the District Court erred in denying
          Appellant’s claim that the trial court violated his
          right to a fair trial by admitting the statement of
          his non-testifying co-defendant, see Bruton v.
          United States, 391 U.S. 123 [88 S.Ct. 1620]
          (1968); (2) whether the District Court erred in
          denying Appellant’s claim that the trial court
          violated his right to a fair trial by denying his
          motion to sever; (3)(a) whether Appellant
          exhausted his prosecutorial misconduct claim as
          a federal constitutional claim before the state
          courts pursuant to 28 U.S.C. § 2254(b)(1)(A); and
          (3)(b) whether the District Court erred in denying
          Appellant’s prosecutorial misconduct claim on the
          merits.[9]




Inasmuch as we are granting Vazquez relief on his Bruton
contention, we need not decide the other issues that we set forth
in our certificate of appealability.


      9
       Appellees argue that Vazquez did not exhaust his
prosecutorial misconduct claim because he based his motion for
a mistrial by reason of the prosecutor’s misconduct “exclusively
on Pennsylvania’s rules of ethics and urged the state court to
exercise its supervisory powers.” Appellees’ br. at 11. As we
explain below, we do not decide whether Vazquez has preserved
his right to rely on his prosecutorial misconduct claim in these
habeas corpus proceedings.

                                  14
        The District Court had jurisdiction under 28 U.S.C. §
2254, and we have jurisdiction under 28 U.S.C. §§ 1291 and
2253. Insofar as we review the order of the District Court our
review is plenary. See Lambert v. Blackwell, 387 F.3d 210, 231
(3d Cir. 2004). But this case arises under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §
2254, and thus our standard of review is not simply plenary.
Under the AEDPA we must review the state court proceedings
and affirm the denial of the petition unless we are satisfied that
Vazquez has demonstrated that the Pennsylvania Superior Court,
the highest-level state court to review the admission into
evidence of Santiago’s statement on the merits, made a
determination that “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).10 We are aware that in
considering whether Vazquez met the AEDPA’s standards for
relief under 28 U.S.C. § 2254(e)(1), we must presume that the
state court’s factual determinations were correct. This rule of
deference, however, is not significant here because the outcome
of the appeal does not depend on state court factual
determinations. Vazquez contends in accordance with the
AEDPA’s dual bases for relief that the admission of Santiago’s
statement was both contrary to and an unreasonable application
of clearly established federal law. As we will explain, we agree


  10
    The AEDPA’s standard requiring a federal court to defer to
state court decisions setting out federal law, if not unique, is at
least unusual. Our approach usually is quite different. See, e.g.,
Gay v. Creditinform, 511 F.3d 369, 394-95 (3d Cir. 2007).

                                15
that he is entitled to relief on the unreasonable application basis,
though we doubt that the Superior Court’s decision was contrary
to “clearly established Federal law, as determined by the
Supreme Court of the United States.”




                       IV. DISCUSSION

        We start our analysis of the Superior Court’s
determination that the Common Pleas Court properly admitted
Santiago’s redacted statement by first deciding “what constitutes
‘clearly established Federal law, as determined by the Supreme
Court of the United States.’” Lockyer v. Andrade, 538 U.S. 63,
71, 123 S.Ct. 1166, 1172 (2003). Moreover, in making our
analysis of whether the Superior Court’s decision survives an
inquiry under 28 U.S.C. § 2254(d)(1) so that Vazquez is not
entitled to federal habeas corpus relief, we give its decision the
benefit of any doubt, Woodford v. Visciotti, 537 U.S. 19, 24,
123 S.Ct. 357, 360 (2002), even though the Superior Court
relied on three Pennsylvania Supreme and Superior Court cases
in reaching its result: Commonwealth v. Rivera, 773 A.2d 131
(Pa. 2001); Commonwealth v. Travers, 768 A.2d 845 (Pa.
2001); and Commonwealth v. McGlone, 716 A.2d 1280 (Pa.
Super. Ct. 1998). See Early v. Packer, 537 U.S. 3, 11, 123 S.Ct.
362, 366 (2002) (per curiam). Then, if we conclude that the
Superior Court’s decision was not contrary to “clearly
established Federal law as determined by the Supreme Court of
the United States,” we must determine if it was an unreasonable
application of that law.


                                16
        We also point out that there is precedent supporting a rule
that a reviewing court in later proceedings, when considering
whether a trial court erred in overruling a Bruton objection,
should review the state court proceedings from the perspective
of the state trial court on the record before the trial court when
it overruled an objecting defendant’s contention that a co-
defendant’s statement should have been excluded even in a
redacted form. This point seems evident because if a trial court
errs with respect to a statement’s admission it does so when it
makes its rulings. Thus, it is difficult to understand how the
events following the admission of Santiago’s statement, i.e.,
Rosado’s testimony identifying Vazquez as the shooter and the
prosecutor’s statement to the jury in her closing argument that
Rivera was not the shooter and, thus, by unmistakeable
inference, that Vazquez was the shooter, no matter how
prejudicial to Vazquez, could have any bearing on the question
of whether the trial court previously had erred in admitting the
statement or allowing its use in a redacted form. See United
States v. Sandini, 888 F.2d 300, 305-06 (3d Cir. 1989)
(distinguishing the question whether a court abused its
discretion in denying a motion for a severance and whether if
the court erred its ruling was prejudicial).11


   11
      Our focus on the time of the trial court’s rulings does not
mean that events after the redacted statement was admitted into
evidence or used at the trial cannot oblige us to grant Vazquez
relief under the AEDPA. In fact, our certificate of appealability
lists the prosecutor’s closing argument as such an event because
it permits Vazquez to contend on this appeal that “the District
Court erred in denying [Vazquez’s] prosecutorial misconduct

                                17
        As it happens, 19 years ago we set forth, though in a
dictum, the importance of viewing a Bruton determination on
the record before the trial court at the time when it made its
determination. In United States v. Sandini we entertained a
direct appeal from a conviction and sentence in a district court
in which the appellant argued that the court erred in denying his
pretrial motion for a severance. Id. at 304-05. In considering
the severance contention we explained that:

       It is important to recognize that there are two
       separate determinations to be made when a
       defendant on appeal urges that he is entitled to a
       reversal because the district court denied a pretrial
       severance motion. Since the district court acted
       on the basis of the record before it at the time of
       the motion, we must first determine from that
       record whether the court abused its discretion in
       denying the severance. Then, if there was an
       abuse of discretion, we must consider whether the
       defendant was prejudiced by the order denying
       severance.




Id. at 305. In support of the foregoing explanation we indicated


claim on the merits.” Moreover, events at a trial certainly can
be germane to a prejudice analysis if an appellate court
determines that a trial court erred under Bruton in its ruling
allowing use of a co-defendant’s statement.

                                18
by way of analogy that:

       The mere fact that the court errs in not granting
       severance does not mean that a defendant is
       prejudiced by the ruling. For example, the court
       might err in refusing to grant a severance as
       required by Bruton [citation omitted], but if the
       government then does not offer the co-
       defendant’s confession, there would be no
       prejudice.

Id. at 305 n.2 (citation partially omitted). The inverse also is
true. If a court does not err in denying an exclusion motion
under Bruton, then subsequent events should not render its
ruling retroactively erroneous.

       Yet we pause in considering how events after the Bruton
rulings should affect our analysis because we recognize that
United States v. Hardwick, 544 F.3d 565 (3d Cir. 2008), may be
germane in our consideration of this question. In Hardwick we
discussed Bruton and four other cases that we address below,
Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702 (1987);
Gray v. Maryland, 523 U.S. 185, 118 S.Ct 1151 (1988); United
States v. Richards, 241 F.3d 335 (3d Cir. 2001); and Priester v.
Vaughn, 382 F.3d 394 (3d Cir. 2004). We then indicated that
“[w]hat 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.” 544
F.3d at 573.


                              19
        Yet in Richardson the Supreme Court indicated that it
had granted certiorari because of a conflict between the decision
of the Court of Appeals for the Sixth Circuit in that case and
other courts of appeals’ decisions regarding the relationship of
a challenged statement and other testimony. Richardson said
that the court of appeals in the case it was reviewing believed
that a “court must assess the confession’s ‘inculpatory value’ by
examining not only the face of the confession, but also all of the
evidence introduced at trial,” 481 U.S. at 205-06, 107 S.Ct. at
1706, but that decisions “of other Courts of Appeals . . . have
declined to adopt the ‘evidentiary linkage’ or ‘contextual
implication’ approach to Bruton questions.” Id. at 206, 107
S.Ct. at 1706 (citation omitted).

        The Supreme Court referred to this Court as such another
court of appeals rejecting a “contextual implication” approach,
citing United States v. Belle, 593 F.2d 487 (3d Cir. 1979) (en
banc). In Belle we approved the approach of the Court of
Appeals for the Second Circuit that “evidentiary linkage or
contextual implication may not be utilized to convert a non-
Bruton admissible statement into a Bruton inadmissible
statement.” Id. at 494. Belle remains good law in this Court as
the Supreme Court reversed the decision of the Court of Appeals
for the Sixth Circuit on the appeal before it and in doing so
certainly did not overrule Belle, and we have not overruled it
either.12



  12
    In our dictum in Sandini we did not cite Belle, but there is
no doubt that Sandini was consistent with Belle.

                               20
       After it decided Richardson the Supreme Court decided
Gray, which we understand to read Richardson to hold that in
Richardson there had not been a Bruton violation because the
challenged statement incriminated the objecting defendant only
when linked with evidence introduced later at the trial. Gray,
523 U.S. at 191, 118 S.Ct. at 1154. Richardson and Gray
reinforce us in our conclusion that Belle remains good law
because our reading of those cases indicates that the correct
Bruton approach in considering evidence extrinsic to the
challenged statement is completely consistent with Belle.

        Yet the teaching of these cases dealing with the extrinsic
evidence issue culminating in Hardwick may be that there can
be a Bruton violation in either of two situations. The first basis
for a violation would be if the trial court erroneously admitted
into evidence or allowed the use at trial of a statement that on its
face incriminated the objecting defendant. The second basis for
a violation would be if the court admitted into evidence or
allowed the use at trial of a statement that became incriminating
when linked with other evidence in the case. Here, however,
whichever approach we take, i.e., limiting a Bruton violation
analysis to the statement itself or considering the asserted
Bruton violation in the context of the entire trial, our result
would be the same, and thus we need not decide which approach
is correct. Either way, there was a Bruton violation in this case.

       The parties are in agreement, and we concur with their
view on this point, that three Supreme Court cases, Bruton, 391
U.S. 123, 88 S.Ct. 1620; Richardson, 481 U.S. 200, 107 S.Ct.
1702; and Gray, 523 U.S. 185, 118 S.Ct. 1151, establish the
controlling precedent for this case for purposes of 28 U.S.C. §

                                21
2254(d)(1). Unquestionably, the leading case on the restrictions
on the use of a nontestifying co-defendant’s statement
incriminating another defendant is Bruton, and thereafter
Richardson and Gray dealt with refinements in Bruton’s
application.

        We sum up Bruton, Richardson, and Gray as follows. In
Bruton the Court held that a defendant is deprived of his rights
under the Sixth Amendment’s Confrontation Clause when the
nontestifying co-defendant’s statement naming him a participant
in the crime is introduced at their joint trial, even if the trial
court instructs the jury to consider the statement only against the
nontestifying co-defendant.

        The Court, however, limited Bruton in Richardson when
it held that “the Confrontation Clause is not violated by the
admission of a nontestifying codefendant’s confession with a
proper limiting instruction when . . . the confession is redacted
to eliminate not only the defendant’s name, but any reference to
his or her existence.” 481 U.S. at 211, 107 S.Ct. at 1709. Thus,
the Court distinguished the statement in Richardson from that
challenged in Bruton as the Bruton statement was “incriminating
on its face” with respect to the objecting defendant, whereas in
Richardson the statement did not implicate the objecting
defendant. Id. at 208, 107 S.Ct. at 1708. Richardson, however,
also had its limitations because in that case the Court
specifically indicated that it “express[ed] no opinion 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,
107 S.Ct. at 1709 n.5.


                                22
        Finally, in Gray the Court addressed the scope of
redactions, holding that “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
results.” 523 U.S. at 195, 118 S.Ct. at 1156.

        Applying Bruton, Richardson, and Gray, we cannot
escape from a conclusion that the Superior Court’s decision
upholding the use of Santiago’s statement, even as redacted and
subject to an instruction that the jury should not use it against
Vazquez, though probably not directly contrary to those cases,
plainly was “an unreasonable application” of them. In reaching
its result the Superior Court, citing the Pennsylvania cases of
Travers, Rivera, and McGlone, indicated that “the Pennsylvania
Supreme Court has held that a non-testifying co-defendant’s
statement in which a defendant’s name is replaced with the term
‘other guy’ or a similar term is admissible in a joint trial when
coupled with a cautionary instruction.” App. at 108. Of course,
the reference to a “cautionary instruction” relates to precluding
its use against the incriminated but objecting defendant. The
Superior Court then explained that Santiago’s statement was
redacted in accordance with those statements, the redaction was
neutral and did not facially implicate Vazquez, and on its face
the statement as redacted did not reveal that names had been
removed from the statement.

       The Superior Court then reached the heart of its Bruton
discussion:

       The manner in which the statement was redacted

                               23
       still leaves to the jury to decide which of the three
       men fired the shots. [Vazquez] also testified at
       trial and denied that he was the shooter; he
       claimed that Rivera fired the shots at the victim.
       Even if the jury credits Santiago’s statement that
       he was the driver, they still must decide whether
       Rivera or [Vazquez] fired the shots. Obviously
       Santiago could identify the shooter as the other
       passenger in the vehicle as he was admittedly
       present when the incident occurred.

App. at 108-09.

       We think that the problem with the Superior Court’s
conclusions under Bruton, Richardson, and Gray is quite clear.
To start with, the possibility that the jury could have disbelieved
Santiago’s statement entirely and concluded that he was the
shooter is immaterial. Certainly, the nature of the judicial
process allows a jury in a Bruton situation to reject an
incriminating statement, but that possibility does not eliminate
the chance that the jury will credit the statement and conclude
that the statement pointed to the objecting defendant as the
offender even though he could not cross-examine the declarant.
Indeed, the result at the trial in this case indicates that that is
what happened here because the jury acquitted Santiago but
convicted Vazquez. Thus, as far as admission or use of the
statement is concerned, this is and always has been a two-person
case involving Vazquez and Rivera, and the Superior Court’s
attempt to expand it into a three-person case was unavailing.

       In any event, even though our outcome does not depend

                                24
on the point, we can perceive of no way that the jury could have
failed to credit Santiago’s statement that he was the driver at the
time of the shooting as the statement on that point was
completely plausible, the prosecutor did not reject it, and there
was no contrary evidence suggesting that anyone else was the
driver. Moreover, when the police stopped the Buick, Santiago
was its sole occupant, though we acknowledge that because of
the time interval between the shooting and the stop it is
conceivable that there could have been different drivers at the
two times. Inasmuch as the Superior Court recognized that the
jury was likely to have concluded that Santiago had been the
driver, under the Superior Court’s analysis in reality there were
two possible factual candidates for the role of the shooter of the
fatal shot: Vazquez, identified in Santiago’s statement as a
shooter, and Rivera, as Vazquez testified.

         Moreover, and this would be a crucial point if we
accepted rather than rejected the Superior Court’s approach that
we are dealing with a three-person case, if we view the case in
its status when the trial court ruled when making both its pretrial
and trial rulings with respect to the admission or use of
Santiago’s statement, the trial court knew or surely should have
known that it was likely that the jury would conclude that
Santiago was the driver and that if the jury accepted the
statement at least to that extent, as it clearly did, no one other
than Vazquez or Rivera could have fired the fatal shot. In this
regard, we point out that when the trial court ruled it was aware
of the contents of Santiago’s statement.

       The fact that there were only two possible shooters under
Santiago’s statement should have made clear to the trial court

                                25
that, whether or not the jury credited the statement in its entirety,
it was almost certain to conclude that the individual Santiago
described in his redacted statement as “my boy” or “the other
guy” as the shooter was Vazquez because Rivera was not on
trial and the Commonwealth argued that Vazquez fired the fatal
shot. See Hardwick, 544 F.3d at 573. Thus, we are constrained
to reverse the order of the District Court and grant habeas
corpus relief for if this case does not involve “an unreasonable
application[ ] of clearly established Federal law, as determined
by the Supreme Court of the United States,” it is difficult to
conceive of any case that could meet that admittedly exacting
standard.

        We emphasize that because of the deference and respect
that we give the Pennsylvania state courts, not only because of
the requirements of the AEDPA but in general, we reach our
result reluctantly. Yet we are compelled to recognize, though
appellees contest this point, that the Supreme Court of
Pennsylvania in Travers and Rivera came close to endorsing a
bright-line rule that when terms like “my boy,” the “other guy,”
or the “other man” are used to substitute for an actual name in
a statement admitted at trial there cannot be a Bruton violation.
Thus, in Travers that court indicated that:

       This case . . . involves [the] question [of] the
       viability of a redaction that substitutes a neutral
       pronoun . . . for the defendant’s name.
       Specifically, the co-defendant’s statement here
       was redacted to replace references to appellant by
       name with the term ‘the other man.’ Although
       this was not the type of redaction at issue in Gray,

                                 26
       the Gray Court’s reasoning, including its
       distinction of Richardson, leaves little question
       that this sort of redaction is appropriate under the
       Sixth Amendment. At a minimum, as one Circuit
       Court has noted, the Supreme Court ‘strongly
       implied’ in Gray that a redaction employing a
       neutral pronoun such as ‘the other guy’ does not
       offend the Sixth Amendment.

Travers, 768 A.2d at 850-51 (citation omitted). Then the
Supreme Court of Pennsylvania indicated in Rivera:

       In Commonwealth v. Travers, 768 A.2d 845 (Pa.
       2001), this Court held that the redaction of a
       nontestifying co-defendant’s confession, which
       replaced any direct reference to the defendant
       with the words ‘other man,’ when accompanied
       with the appropriate cautionary change,
       sufficiently protected a defendant’s confrontation
       clause rights. We held that this method of
       redaction not only eliminated the name of the
       defendant, but also eliminated any suggestion of
       alteration, and thus, eliminated the incriminating
       nature of the obvious deletion or blank method of
       redaction used in Gray.

Rivera, 713 A.2d at 138.

       Courts and attorneys cherish bright-line rules as such
rules simplify their tasks and lay out clear paths for them to
follow. Furthermore, it certainly is true that ordinarily the use

                               27
of a term like “the other guy” will satisfy Bruton. Nevertheless,
it is an unreasonable application “of clearly established Federal
law under the decisions of the Supreme Court of the United
States” to hold that their use always will be sufficient for that
purpose. Here, regardless of whether the Pennsylvania Supreme
Court established the bright line that we discern in its opinions,
the use of a generic name in place of an actual name plainly was
not sufficient to satisfy Bruton without regard for whether we
view this case in accordance with the confined Belle or
expansive Hardwick approach.

       In reaching our result we, of course, have not overlooked
our opinions under Bruton, even though we have indicated that
“court of appeals precedent is irrelevant to the ultimate issue . .
. .” Wilkerson v. Klem, 412 F.3d 449, 455 (3d Cir. 2005). In
Wilkerson we regarded our opinions as being cabined because
we are obliged to ascertain whether the state court decision
being examined “was contrary to, or involved an unreasonable
application of clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1). Nevertheless, we address United States v. Richards,
241 F.3d 335, and Priester v. Vaughn, 382 F.3d 394, dealing
with Bruton. In Richards we found that the substitution of “my
friend” and “inside man” to be facially obvious with respect to
the person identified. 241 F.3d at 341. Thus, in Richards we
held that the use of the those terms in place of the co-
perpetrators’ names violated the Sixth Amendment because it
“was just as blatant and incriminating” as the word “deleted” in
Gray. 241 F.3d at 341. The situation in Richards insofar as it
considered whether there had been a Bruton violation, cannot be


                                28
distinguished from that here.13

       On the other hand, in Priester we emphasized that in a
Gray analysis the number of persons involved is significant. In
Priester at least 15 persons were involved, so that the use of the
terms “the other guy” or “another guy” did not point to any
person. 382 F.3d at 399-400. Thus, in Priester we distinguished
Richards by pointing out that because Richards involved only
three people, in Richards the redactions were “tantamount to an
explicit reference to the co-defendant.” 241 F.3d at 401.

        Finally, in concluding that there was a prejudicial Bruton
violation in this case, we have not overlooked appellees’
argument that Vazquez cannot demonstrate that the Bruton error
had a “substantial and injurious effect” on the trial. See Fry v.
Pliler, 127 S.Ct. 2321, 2328 (2007); Bond v. Beard, 539 F.3d
256, 275-76 (3d Cir. 2008). Therefore, we have considered their
contentions that Vazquez’s own testimony “greatly benefitted
the Commonwealth,” Vazquez made “repeated attempts to flee
police,” thus implicating himself, and Vazquez told Santiago
that the crime should have been covered up. Appellees’ br. at
26. Moreover, we recognize that fingerprint evidence pointed
to Vazquez as the shooter.

       In considering this case under the “substantial and


  13
    In Richards we did not grant relief because, unlike in this
case, in that case we were making a plain error analysis, and
other evidence pointing to the incriminated defendant was
compelling. 241 F.3d at 342.

                               29
injurious effect” standard it is helpful to compare this case to
Bond. In that case the prosecution did not deny that there had
been a Bruton Confrontation Clause violation but argued,
instead, that the error had been harmless. But in Bond there was
an eyewitness who testified at the trial and identified the
petitioner as the shooter. Furthermore, the petitioner had
confessed to the commission of the crime. Here, Vazquez never
confessed to being a shooter, and there was no witness at the
trial who said that he saw Vazquez fire a weapon. In a narrative
or descriptive sense, laying aside ballistic evidence, only
Santiago’s statement directly identified Vazquez as the shooter,
and, of course, the use of the statement is the problem in this
case rather than its solution. Moreover, although there was
evidence at the trial incriminating Vazquez beyond Santiago’s
statement, it was not so compelling that it overcame the Bruton
error under the “substantial and injurious effect” standard.

        In view of our result under Bruton, we need not reach
Vazquez’s other points relating to the denial of his motion to
sever and the prosecutor’s alleged misconduct attributable to her
identification of Vazquez as the person that Santiago said was
the shooter. Clearly, inasmuch as Santiago was acquitted the
severance issue cannot arise again, and we see no reason to
believe that the prosecutor at a new trial will repeat the
prosecutor’s closing argument.14


   14
    Though we do not predicate our result on an affirmative
answer to the question in our certificate of appealability,
“whether the District Court erred in denying Appellant’s
prosecutorial misconduct claim on the merits,” and, indeed,

                               30
could not do so without first determining whether this claim had
been exhausted as a federal constitutional claim in the state
courts, there can be no doubt that there was a grave and
probably fatal constitutional violation here when the prosecutor
made her comment. As we indicated above, the prosecutor by
stating that “George,” i.e., Rivera, was not the shooter identified
Vazquez as the shooter. Under Bruton if Santiago’s statement
expressly had identified Vazquez it could not have been
admitted without redaction of the references to Vazquez even if
the court gave the jury a limiting instruction that the statement
could not be used against him. Bruton made this principle clear
when it explained:

       [T]here are some contexts in which the risk that
       the jury will not, or cannot, follow instructions is
       so great, and the consequences of failure so vital
       to the defendant, that the practical and human
       limitations of the jury system cannot be ignored.
       Such a context is presented here, where the
       powerfully incriminating extrajudicial statements
       of a codefendant, who stands accused side-by-side
       with the defendant, are deliberately spread before
       the jury in a joint trial.

Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28 (citations
omitted).

       Once the prosecutor made it clear to the jury that
Santiago had identified Vazquez as the shooter the situation was

                                31
                       V. CONCLUSION

       We note that the attorneys representing Vazquez on this
appeal have done so on a pro bono basis and we thank them for
these services, which have been in the highest tradition of the
bar. For the foregoing reasons we will reverse the order of the
District Court of March 21. 2007, and will remand the case to
that Court for further proceedings consistent with this opinion.
In particular, the District Court should order that the state
authorities free Vazquez from custody unless he is retried in the


no different than it would have been if Santiago’s unredacted
statement directly implicating Vazquez as the shooter had been
admitted into evidence or used from the outset of the case.
Thus, it must follow that the court’s repetition, after the
prosecutor advised the jury that Santiago had identified Vazquez
as the shooter, of its earlier instruction that Santiago’s statement
could not be used against Vazquez could not salvage the case.
In short, we see no difference between the admission of
Santiago’s unredacted statement identifying Vazquez as the
shooter and the prosecutor’s comment that Rivera was not the
shooter and thus, by unmistakeable inference, that Vazquez was
the shooter. This is not a case in which there was “such
extensive evidence” of Vazquez’s guilt that the prosecutor’s
failure “to respect [Vazquez’s] rights under the Confrontation
Clause” “could have not had a substantial and injurious effect or
influence in determining the jury’s verdict.” Bond, 539 F.3d at
276 (citation and quotation marks omitted).

                                32
state courts with the trial to start within a period of time the
District Court fixes.




                              33
