Waterman, Friendly and Hays, Circuit Judges.
Alvin Nelson appeals from an order of the United States District Court for the Southern District of New York denying his application for a writ of habeas corpus.
Appellant and one Isiah Biggins (indicted as Isiah Pitman) were jointly tried and convicted in Supreme Court, New York County, State of New York, of murder in the first degree, for the felony murder of Anthony Merlo during the course of the robbery of his bar, the Uptown Bar and Grill, in Manhattan. Appellant was sentenced to life imprisonment. The judgment of conviction was affirmed by the Appellate Division, People v. Pitman, 25 A.D.2d 637, 268 N.Y.S.2d 83 (1st Dept. 1966), and by the New York Court of Appeals, 18 N.Y.2d 919, 276 N.Y.S.2d 1001, 223 N.E.2d 494 (1966).
Appellant claims that his conviction was obtained in violation of his Sixth and Fourteenth Amendment rights in that (1) the confessions of his co-defendant Biggins were introduced at their joint trial without an opportunity for cross-examination, in violation of the rule of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and (2) he was denied the right to compulsory process with respect to a subpoenaed witness.
Having exhausted his state remedies with respect to these claims, appellant sought federal habeas relief. The district court concluded that the admission of co-defendant Biggins' statements was harmless error under Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969), and that appellant's second claim was totally without merit. Accordingly the court denied appellant's petition though it subsequently granted a certificate of probable cause.
We affirm the judgment of the district court.
In formulating the rule announced in Bruton, and made retroactive in Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968) (per curiam), the Supreme Court stressed the "substantial risk that the jury, despite instructions to the contrary," will rely on "powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant" in determining the defendant's guilt. 391 U.S. at 126, 135-136, 88 S. Ct. at 1627. Consequently, for the Bruton rule to apply, the challenged statements must be clearly inculpatory. See United States v. Persico, 425 F.2d 1375 (2d Cir. 1970); United States v. Carella, 411 F.2d 729, 732 (2d Cir.), cert. denied sub nom. Erhart v. United States, 396 U.S. 860, 90 S. Ct. 131, 24 L. Ed. 2d 112 (1969); United States v. Rizzo, 418 F.2d 71, 79 (7th Cir. 1969); United States v. Davis, 418 F.2d 59, 63 (9th Cir. 1969); White v. United States, 415 F.2d 292, 294 (5th Cir. 1969); Slawek v. United States, 413 F.2d 957, 960-964 (8th Cir. 1969); United States v. Lipowitz, 407 F.2d 597, 602-603 (3d Cir.), cert. denied sub nom. Smith v. United States, 395 U.S. 946, 89 S. Ct. 2026, 23 L. Ed. 2d 466 (1969).
Two confessions made by Biggins, one an oral statement given to an investigating police officer and the other a question and answer statement taken by an Assistant District Attorney, were intoduced at the joint trial of Biggins and Nelson. Biggins did not take the stand.
Biggins' statements did not identify Nelson as his colleague in the robbery of the Uptown Bar, but referred instead to a man known only as "Oliver," who was described as being "about six feet two, about 175 pounds, 170 pounds, wearing a goatee, turtle neck sweater." Although Nelson more or less fit this physical description at the time of trial,*fn1 the jury was not thereby bound to infer that Nelson was in fact "Oliver," since there was other evidence as to the physical characteristics of the second robber of a contradictory nature. The most distinguishing physical feature of "Oliver" was his goatee, and although Nelson had a goatee during his trial, he was not wearing a goatee when arrested, and both he and Biggins called a number of witnesses to show that they did not have goatees or beards at the time the crime was committed. Moreover, the testimony of the eyewitnesses tended, if anything, to establish that it was Biggins, and not the robber they identified as Nelson, who wore a goatee on the night of the robbery.*fn2 Under the circumstances we do not believe Nelson was clearly inculpated by his general resemblance to "Oliver" at the time of trial.
Appellant's claim of a Bruton violation, however, is more directly addressed to Biggins' statement that he ran into "Oliver" earlier in the evening at the Garden of Eden Bar, a bar not far from the Uptown Bar, and that they proceeded from there to the Uptown Bar where the robbery and murder occurred. Appellant contends that this information, when considered in the light of testimony given by Aaron Ruff, the manager of the Garden of Eden Bar, who testified that he saw both Biggins and Nelson in his bar between 9:30 and 10:30 p.m. on the evening of the robbery, necessarily implicated him in the commission of the crime. We do not agree. Although Nelson and Biggins had come into the Garden of Eden Bar together on several previous occasions, Ruff did not observe that the two men were together on the night of the crime. The jury would have had to make a substantial inference to implicate Nelson in the crime by virtue of his mere presence in the bar where Biggins said he ran into "Oliver." Nor, for the reasons discussed above, do we believe the jury would have more readily made this inference simply because of Nelson's general resemblance at the time of trial to the description of "Oliver" given by Biggins. Most significantly, to make the inference at all involved the use of Ruff's testimony placing Nelson in the same bar with Biggins earlier in the evening, and the truth of his testimony was independently subject to verification by cross-examination. In short, Biggins' statements were not clearly inculpatory because they alone did not serve to connect Nelson with the crime. See United States v. Rizzo, supra, 418 F.2d at 77-79; Slawek v. United States, supra, 413 F.2d at 960-962; United States v. Lipowitz, supra, 407 F.2d at 602-603 (no inculpation where defendant's fingerprints were found in car used by codefendant who had confessed that "other fellows" had aided him in the commission of the crime). Accordingly we conclude that Biggins' statements were not the type of "powerfully incriminating" statements to which the Court had reference in Bruton.
Assuming, however, that the jury might have taken Biggins' statements about "Oliver" to refer to Nelson, this case still does not present the kind of circumstances to which the rule of Bruton was directed. In Bruton, the Court recognized that "not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions." That decision applies only where "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." 391 U.S. at 135, 88 S. Ct. at 1627. See Roberts v. Russell, supra, 392 U.S. at 294-295, 88 S. Ct. 1921. The confession at issue in Bruton was found by the Court to add "substantial, perhaps even critical, weight to the Government's case." Id. at 128, 88 S. Ct. at 1623.
In this case, two eyewitnesses, Levis Freeman, the bartender at the Uptown Bar, and Margo Alicia, the deceased bar owner's girl friend, positively identified Biggins and Nelson, both at trial and at pre-trial line-ups, as the perpetrators of the robbery and murder at the Uptown Bar.*fn3 A New York City policeman, as well as these two eyewitnesses to the crime, also saw the two ...