The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:
On November 3, 1990, defendants Evelyn Rivera and Angel
Rodriguez were arrested by officers of the New York City Police
Department in an apartment located at 1920 Anthony Avenue, Bronx
New York, and transferred to the custody of Special Agents with
the Bureau of Alcohol, Tobacco and Firearms ("ATF"). Rivera and
Rodriguez were subsequently indicted and charged with possessing
with intent to distribute, and conspiring to do the same, a
Schedule II controlled substance, namely, cocaine base, in
violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), 845a(a)
and 18 U.S.C. § 2 (1988). In addition, Rivera and Rodriguez were
charged with using and carrying firearms, namely, a .44 magnum
revolver and a .25 caliber pistol, both of which were loaded at
the time of the arrest in violation of 21 U.S.C. § 812,
841(a)(1), 841(b)(1)(C), and 846 (1988). Both defendants had
previously been convicted of a crime punishable by imprisonment
for a term exceeding one year.
In a joint motion, counsel for Rivera and Rodriguez move
pursuant to Fed.R.Crim.P. 12 and 14, to suppress statements and
physical evidence and for an order directing that the trials of
the two defendants be severed and tried separately. A hearing in
this matter was conducted before me on March 8 and March 11,
1991.*fn1 The following constitutes my findings of fact and
conclusions of law.
On November 3, 1990, two undercover plainclothes officers with
the New York City Police Department went to 1920 Anthony Avenue,
apartment 8, in the Bronx, for the purpose of posing as
purchasers of drugs. Hearing Transcript ("Tr.") 7, 8. One of the
undercover officers knocked on the door of the apartment, which
Rivera opened, and asked whether Rivera had some drugs for sale.
Tr. 7. Rivera stated that she did not recognize the undercover.
She then asked who sent the undercover. Finding his response
unsatisfactory, she told him that she did not sell drugs. Rivera
then shut the door, not allowing the undercover entry into the
apartment. Tr. 9.
While the backup team waited in the hallway outside the
apartment, Roman knocked on the door and posed as someone from
the neighborhood. Tr. 10. Roman testified that she started a
conversation with Rivera, requesting assistance in finding a
neighbor in the building, and gained entry into the apartment
while speaking with Rivera. Tr. 11. The two walked about five
feet into the apartment when Roman spotted the yellow capped
vials on the wall unit; she then placed Rivera under arrest. Tr.
Within thirty seconds of the arrest, the backup team of
officers entered the apartment. Tr. 36. Roman and the officers
entered the living room where Angel and Hector Rodriguez*fn2
were arrested as well. On a table in the living room, Roman saw
two guns and a tinfoil package, which were seized. The crack
vials were also seized at that time. Tr. 14-15.
Subsequently, Roman left the apartment in order to obtain a
search warrant at the Bronx Criminal Court. Tr. 16. After the
search warrant was obtained, Roman returned to the apartment in
order to execute the warrant; she found no more contraband. Tr.
16. Roman then contacted Special Agent Richard Buggy at ATF and
gave him a report of the operation. Tr. 17.
Rivera and Rodriguez were transferred to ATF custody. Special
Agents with the ATF advised them of their constitutional rights,
and the defendants executed forms formally waiving their rights.
Rivera then told the ATF Special Agents that she was aware there
were drugs in the apartment. Rodriguez stated, in substance, that
"we" bought the .44 caliber magnum revolver from an unknown black
man for $200 approximately one month ago, and that "we" found the
.25 caliber pistol after a shooting on Walton Avenue
approximately one week ago. Rodriguez also stated, in substance,
that he sells drugs.
Defendant Rivera argues that, because of Rodriguez' post-arrest
admission concerning the firearms recovered in the search, she
must be tried separately. See Bruton v. United States,
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (severance warranted
where co-defendant's confession inculpates defendant and sixth
amendment right to confrontation and cross-examination are
impaired). In the alternative, Rivera argues that Rodriguez'
statement, that "we" bought the .44 magnum revolver, should be
redacted so as not to connect Rivera to Rodriguez' admission. It
is well settled that where a defendant makes a statement
incriminating both himself and his co-defendant, admission of a
redacted version of the statement which excludes the name of the
co-defendant is proper and does not violate the co-defendant's
constitutional rights. United States v. Tutino, 883 F.2d 1125,
1135 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct.
1139, 107 L.Ed.2d 1044 (1990). There is no reason to believe that
each of the defendants in the case at bar would not be afforded ...