The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge:
The six defendants in this case have moved to set aside the guilty verdict. Five counts of the superseding indictment were before the jury: (1) conspiracy to possess cocaine with intent to distribute it, (2) conspiracy to commit robberies affecting interstate commerce, (3) attempt to possess cocaine with intent to distribute it, (4) carrying and using firearms in relation to the offenses described in Counts One and Two, (5) carrying firearms in relation to the offense described in Count Three.
The jury found all six defendants guilty on Counts Three and Five, and defendants Ryan Cambrelen, Joel Vasquez, Jose Rivera, and Eddie Brown, but not defendants Jesus Colon and Ottoniel Cambrelen, guilty on Counts One, Two, and Four.
The evidence showed, in substance, the following. All the defendants except Colon and Ottoniel Cambrelen participated during 1994 through 1996 in various robberies in New York City, primarily of apartments where they expected to find drugs. In addition, in October 1996 all the defendants attempted to rob a warehouse they had been told contained cocaine.
On October 29, 1996 two confidential informants posing as drug dealers met with defendants Ryan Cambrelen and Jose Rivera. The meeting was captured on a videotape played for the jury. The videotape showed the informants telling the two defendants that some 70 kilograms of cocaine would arrive in New York shortly, that the informants would alert the defendants as to when the drugs would arrive and where they would be stashed, and that the defendants could then enter the stash location (which in fact was an undercover warehouse) and rob the drugs. The two defendants voiced their readiness to undertake the crime and agreed to bring weapons and other men to assist.
On November 8, 1996, one of the confidential informants had a second meeting with Ryan Cambrelen and Rivera, a meeting also recorded on a videotape played at trial. At the meeting the informant said that the cocaine would arrive early the next morning, that there might be one or more persons inside the warehouse, that he did not know if weapons would be there, and that he would beep Ryan Cambrelen at 4:30 A.M. Ryan Cambrelen, and Rivera said they would go prepare and would have six persons to carry out the robbery.
On the morning of November 9, 1996 one of the confidential informants met Ryan Cambrelen and gave him a key to the warehouse. The informant had been instructed to tell Ryan Cambrelen that no one was inside the warehouse at that time.
In the meantime the government agents had placed in the warehouse five kilograms of real cocaine and about 65 kilograms of fake cocaine, and had installed video cameras both inside and outside the warehouse.
Later that morning the six defendants arrived at the warehouse, three in a van and three in a car. Ryan Cambrelen and Brown went inside. The other four defendants remained in the van and the car. The videotapes show Ryan Cambrelen and Brown beginning to place loose kilogram packages of fake cocaine in boxes while the agents arrived on the scene and soon arrested Ryan Cambrelen and Brown inside the warehouse and Rivera and Colon outside. Vasquez and Ottoniel Cambrelen sped off in the van but were arrested after a chase.
All the defendants have moved for a new trial because the court received in evidence redacted statements by Vasquez and Brown. The defendants, citing Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), claim a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. Rivera, represented by new counsel, says also that he is entitled to a new trial because his trial counsel was ineffective. In addition Colon and Ottoniel Cambrelen move to dismiss Count Five of the indictment on which the jury found them guilty of carrying firearms. They claim the evidence as to carrying was insufficient.
The Sixth Amendment to the Constitution of the United States provides in pertinent part that an accused in a criminal prosecution "shall enjoy the right" to a trial by jury and "to be confronted with the witnesses against him," thereby assuring the accused the opportunity to cross-examine.
In Bruton the Supreme Court of the United States considered a case involving a joint trial of two defendants accused of participating in the same crime. The trial judge admitted one defendant's confession naming and incriminating the other. The judge told the jury that it could consider the confession only against the defendant who made it and not against the co-defendant. The Supreme Court held that "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining" the co-defendant's guilt, admission of the confession violated the co-defendant's "right of cross-examination secured by the Confrontation Clause of the Sixth Amendment." 391 U.S. at 126, 88 S. Ct. at 1622.
Bruton was distinguished by the Supreme Court in Richardson v. Marsh, 481 U.S. 200, 208, 107 S. Ct. 1702, 1707, 95 L. Ed. 2d 176 (1987). In that case a nontestifying defendant's confession did not incriminate the co-defendant "on its face" but did so "only when linked with evidence introduced later at trial." Id. The Court held that admission of such a confession did not violate the Confrontation Clause provided the trial judge gave a proper limiting instruction and the confession ...