The opinion of the court was delivered by: Baer, District Judge.
I referred this habeas corpus petition to Magistrate Judge Peck
on February 17, 1998. On August 4, 1998, Magistrate Judge Peck
issued a Report and Recommendation which recommended that
petitioner's request for habeas relief be denied on the grounds
that while the trial court violated petitioner's Sixth Amendment
Confrontation Clause Rights, the error was harmless and that the
trial judge's response to the jury's question was not erroneous
under New York law.
The Report and Recommendation advised the parties of their
obligation to file timely objections under 28 U.S.C. § 636(b)(1)
and Fed.R.Civ.P. 72(b). To date, no objections have been filed
and I have found no clear error in the Report and Recommendation
of Magistrate Judge Peck.
Therefore, I adopt the Report and Recommendation in all
respects. As petitioner has failed to make a substantial showing
of the denial of a constitutional right, a certificate of
appealability will not issue. See 28 U.S.C. § 2253, as amended
by the Anti-Terrorism and Effective Death Penalty Act of 1996.
The Clerk of the Court is directed to close this case.
Petitioner Jose Mercado was convicted of robbing Balducci's
Food Store along with five others. At trial, Oneal Serrano, the
Balducci's employee who masterminded the robbery, testified for
the prosecution; Serrano described the robbery, but he refused to
testify on direct or cross-examination as to whether Mercado was
involved in the robbery. Petitioner Mercado's present habeas
petition alleges that the trial court violated Mercado's Sixth
Amendment Confrontation Clause rights when Serrano's testimony
was not struck after he refused to answer as to whether Mercado
was involved in the robbery. (Petition ¶ 12(B).) Mercado also
claims that his due process rights were violated when he was
charged as a principal in the robbery, but in response to a jury
question during deliberations, the trial judge instructed the
jury that it could convict Mercado of robbery even if he was an
accomplice who remained outside the store. (Petition ¶ 12(A).)
For the reasons set forth below, I recommend that Mercado's
petition be denied on the merits of both grounds.
Mercado was indicted on eight counts of robbery in the first
degree and four counts of robbery in the second degree, for his
participation in the July 11, 1993 robbery of Balducci's and some
of its employees. (Affidavit of ADA Marisa Rieue, dated 6/5/98, ¶
8 & Ex. B: Indictment.)
Q. And do you still refuse to answer the question.
(Tr. 886, emphasis added.) The trial judge then instructed the
jury that Serrano's refusal to answer could not "in any way be
held against [Mercado]. It is information for you to use in
assessing [Serrano's] credibility and for no other purposes."
(Tr. 887.)*fn2 After the jury was excused, Mercado's counsel
moved to strike Serrano's entire testimony. (Tr. 887.) The trial
court denied the motion. (Tr. 887.)
On cross-examination, Serrano testified that he "planned and
orchestrated" and "put this whole robbery together." (Tr. 890.)
Mercado's counsel established that from where Serrano waited
outside Balducci's, Serrano could not see which of his group went
into the store and who stayed outside. (Tr. 895, 909.) Mercado's
counsel asked other questions to establish that all those
involved touched the handcuffs, money bags and other items, and
therefore fingerprints on those items would not show who actually
went into Balducci's. (Tr. 895-909.)
On Mercado's counsel's cross-examination, as on the
prosecutor's direct, Serrano refused to say whether Mercado was
involved in the robbery:
Q. Do you know my client, do you know my client?
A [SERRANO]: I refuse to answer that question.
A. I refuse to answer that question.
[SERRANO]: I understand that.
(Tr. 912-13, emphasis added.)
Mercado's counsel concluded his cross-examination by
establishing that part of Serrano's plea agreement with the
prosecutor involved sentencing consideration for his testifying.
After redirect, on re-cross, Mercado's counsel again asked
Serrano if Mercado was involved in the robbery:
A [SERRANO]: I refuse to answer that question.
Q. Again, your Honor.
[SERRANO]: I understand that, your Honor.
(Tr. 925-26, emphasis added.)
Closing Argument, the Jury Charge and the Trial Court's
Supplemental Jury Instructions
Mercado rested his case without calling any witnesses. (See
During the charge conference, the prosecutor noted that
"Christopher Romano identified this defendant as being one of the
three individuals who came into the store. And of course this
defendant [Mercado] is being charged both as an individual and
acting in concert with others." (Tr. 1038.) With respect to
acting in concert, in connection with the robbery of the
Balducci's employees, the trial judge stated that "if there was a
plan and they were all part of it to rob Balducci's, the fact
that somebody stayed in the car . . . doesn't absolve him from
the action of the person who actually took the money from
Balducci's." (Tr. 1040-41.)
In closing argument, Mercado's counsel stressed that, according
to Serrano's testimony, only three of the five people that
discussed the robbery with him entered the store, and there was
no evidence that the other two, who stayed outside, acted as
lookouts. (Tr. 1056-58.) Mercado's counsel told the jurors that
Serrano and two others pled guilty to the robbery (Tr. 1058-59),
and counsel questioned Mr. Romano's identification of Mercado as
the third robber in Balducci's. (Tr. 1059-64.) Mercado's counsel
explained that Mercado's fingerprints could have gotten on the
money and deposit slips in the car or at Serrano's parents'
house. (Tr. 1064-65.) He argued that Mercado's knowledge of the
crime and presence was not enough, and that the prosecution had
not proven Mercado guilty of the robbery beyond a reasonable
doubt. (Tr. 1065.)
The prosecution's summation stressed Romano's identification of
Mercado as one of the robbers who entered Balducci's, and the
fingerprint evidence. (Tr. 1065-70, 1072-81, 1085-86.)
(Tr. 1100-03, emphasis added.) Mercado's counsel did not object
to the acting in concert charge. (See Tr. 1132-40.)
During the jury's deliberations, the jury sent a note asking
for further instructions "`to help us answer this question. Under
what circumstances can we find guilty if we believe defendant was
not in store?'" Outside the jury's presence, the following
discussion took place:
(Tr. 1155-56.) The court also reiterated its original acting in
concert instruction. (Tr. 1157-61; see also Tr. 1186-90.)
Mercado claims that the trial court's answer to the jury's
question amounted to a constructive amendment of the indictment
because it allowed the jury to find Mercado guilty even if he
never entered the store. (Petition ¶ 12(A).) Mercado further
claims he was not given notice that he may be convicted as an
accomplice because the indictment charged him as a principal, and
throughout the trial, the prosecution pursued the theory that he
had actually entered the store. (Id.)
Verdict and Sentencing
The jury found Mercado guilty of one count each of robbery in
the first and second degrees. (Tr. 1191-92; see also Petition
¶¶ 1-4.) On June 24, 1994, Mercado was sentenced as a predicate
felon to ten to twenty years on the first degree robbery count
and a concurrent sentence of six to twelve years on the second
degree robbery count. (6/24/94 Sentencing Tr. at 4, 13; see
also Petition ¶¶ 2-3.)
State Court Appeals
The First Department affirmed Mercado's conviction, stating:
The trial court appropriately exercised its
discretion when it denied defendant's motion to
strike the entire direct testimony of a prosecution
witness who refused to answer one question posed by
the prosecutor regarding the identity of the
participants in the robbery, and when it instructed
the jury, with defendant's approval, that the
witness' refusal to answer could be considered in
assessing his credibility. There was no violation of
the Confrontation Clause because the defense was
given the opportunity to expose infirmities in the
witness' direct testimony through cross-examination.
Further, defendant utilized the witness' refusal to
answer to his benefit, and has not demonstrated that
he was prejudiced by the court's ruling.
The trial court's supplemental instructions
regarding accomplice liability did not alter the
theory of prosecution.
People v. Mercado, 237 A.D.2d 200, 200, 655 N.Y.S.2d 474, 474
(1st Dep't 1997) (citations omitted). The New York Court of
Appeals denied leave to appeal. People v. Mercado, 90 N.Y.2d 895,
662 N.Y.S.2d 438, 685 N.E.2d 219 (1997).
Mercado's Present Habeas Petition
Mercado's federal habeas petition was received by the Court's
Pro Se Office on January 7, 1998.*fn3 The petition raises two
issues. Mercado claims that he was denied his Sixth Amendment
right to confront Serrano when Serrano refused to answer
questions concerning whether Mercado was involved in the
Balducci's robbery, and the trial court declined to strike
Serrano's testimony. (Petition ¶ 12(B).) Mercado also alleges
that his constitutional rights were violated because he did not
have "fair notice" of the charge against him, i.e., the trial
court's response to the jury's question allowing him to be
convicted even without being inside Balducci's differed from the
indictment and the prosecution's theory of the case during trial.
(Petition ¶ 12(A).)
I. WHILE THE TRIAL COURT VIOLATED MERCADO'S SIXTH AMENDMENT
CONFRONTATION CLAUSE RIGHTS, THE ERROR WAS HARMLESS
A. Mercado's Confrontation Clause Rights Were Violated
The Confrontation Clause of the Sixth Amendment affords the
accused the right "to be confronted with the witnesses
against him." U.S. Const. amend. VI. The Sixth Amendment's
Confrontation Clause is also applicable in state criminal trials.
E.g., Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074,
1076, 13 L.Ed.2d 934 (1965); Pointer v. Texas, 380 U.S. 400,
404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). The right to
confront witnesses has been interpreted as "securing an adequate
opportunity to cross-examine adverse witnesses." United States
v. Owens, 484 U.S. 554, 557, 108 S.Ct. 838, 841, 98 L.Ed.2d 951
(1988); see also, e.g., Pennsylvania v. Ritchie, 480 U.S. 39,
53, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987); Davis v. Alaska,
415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974);
Douglas v. Alabama, 380 U.S. at 418, 85 S.Ct. at 1076, 13
L.Ed.2d 934; Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir.
1991); Dunbar v. Harris, 612 F.2d 690, 692 (2d Cir. 1979);
United States v. Cardillo, 316 F.2d 606, 610-11 (2d Cir.),
cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963).
A witness who continuously refuses to answer relevant questions
on cross-examination may be punished for contempt of court. See,
e.g., Brown v. United States, 356 U.S. 148, 152, 78 S.Ct. 622,
625, 2 L.Ed.2d 589 (1958); United States v. Martin,
525 F.2d 703, 707-08 (2d Cir.), cert. denied, 423 U.S. 1035, 96 S.Ct.
570, 46 L.Ed.2d 410 (1975); N.Y. Penal Law § 215.50(4). However,
the witness' recalcitrance on cross-examination does not
necessarily require the direct testimony be struck to conform
with the Sixth Amendment. See, e.g., Bagby v. Kuhlman, 932 F.2d
at 135; Dunbar v. Harris, 612 F.2d at 692; United States v.
Cardillo, 316 F.2d at 611. Rather, the Second Circuit uses a
two-step analysis to determine whether the Confrontation Clause
is implicated by a witness' refusal to answer questions on
To reconcile a defendant's rights under the
confrontation clause with a witness' assertion of the
fifth amendment privilege, a court must initially
consider: (1) whether the matter about which the
witness refuses to testify is collateral to his or
her direct testimony, and (2) whether the assertion
of the privilege precludes inquiry into the details
of his or her direct testimony. See Dunbar [v.
Harris], 612 F.2d at 692, 693; see also Klein [v.
Harris], 667 F.2d  at 289 [(2d Cir. 1981)]. If
the court determines that the privilege has been
invoked with respect to a collateral matter, or that
the invocation does not preclude inquiry into the
witness' direct testimony, then the defendant's right
to cross-examine has not been impinged and no
corrective action is necessary. Conversely, the sixth
amendment is violated when a witness asserts the
privilege with respect to a non-collateral matter
and the defendant is deprived of a meaningful
opportunity to test the truth of the witness' direct
testimony. To remedy such a violation, . . . if the
witness simply refuses to testify, the witness'
direct testimony should be stricken in whole or in
Bagby v. Kuhlman, 932 F.2d at 135; see also e.g., United
States v. Zapata, 871 F.2d 616, 624 (7th Cir. 1989) ("a court's
resolution of [a conflict between a witness' Fifth Amendment
right against self-incrimination and a defendant's Sixth
Amendment right to confrontation] should focus on whether the
unanswered questions involved matters directly related to the
scope of the direct examination or to collateral matters")
(citing Cardillo); United States v. Nunez, 668 F.2d 1116,
1122 (10th Cir. 1981) (quoting Cardillo); Turner v. Fair,
617 F.2d 7, 10-11 (1st Cir. 1980) (quoting Cardillo); Dunbar v.
Harris, 612 F.2d at 692; United States v. Cardillo, 316 F.2d
at 611; Carmona v. State of New York, 96 Civ. 8045, 1997 WL
876737 at *12
(S.D.N.Y. Oct.7, 1997) (citing Bagby); United States v. Talco
Contractors, Inc., 153 F.R.D. 501, 506 (W.D.N.Y. 1994) (citing
Bagby and Cardillo).
The first issue, therefore, is whether the questions Serrano
refused to answer were collateral to his direct testimony.
Collateral matters are those that bear solely on the witness'
credibility. See, e.g., United States v. Calvente,
722 F.2d 1019, 1024 (2d Cir. 1983); United States v. Humphrey,
696 F.2d 72, 75 (8th Cir. 1982); Dunbar v. Harris, 612 F.2d at 693-94;
United States v. Cardillo, 316 F.2d at 611; Carmona v. State
of New York, 1997 WL 876737 at *12. "If the purpose of
cross-examination is to explore more than general credibility,
the subject of inquiry is not collateral." Dunbar v. Harris,
612 F.2d at 693; see also, e.g., United States v. Badalamenti,
84 Cr. 236, 1985 WL 3844 at *1 (S.D.N.Y. Nov. 25, 1985) (citing
Cardillo). Questions regarding Mercado's involvement in the
robbery tests more than Serrano's credibility and goes to the
very heart of whether a jury could find Mercado guilty of the
crime charged. Such subject matter, therefore, is not collateral.
Thus, the Court must address the second prong: Whether
Serrano's refusal to answer questions concerning Mercado's
involvement in the robbery "preclud[ed] inquiry into the details
of [Serrano's] . . . direct testimony." Bagby v. Kuhlman, 932
F.2d at 135; see also, e.g., Dunbar v. Harris, 612 F.2d at 693;
United States v. Berrio-Londono, 946 F.2d 158, 160 (1st Cir.
1991) (quoting Turner v. Fair, 617 F.2d at 10); United States
v. Zapata, 871 F.2d at 623 ("`When a witness' refusal to answer
prevents defendant from directly assailing the truth of the
witness' testimony, the court should strike at least the relevant
portion of the testimony.'") (quoting United States v.
Humphrey, 696 F.2d at 75); United States v. Nunez, 668 F.2d at
1122 (10th Cir. 1981) (quoting Cardillo); United States v.
Gould, 536 F.2d 216, 222 (8th Cir. 1976) (citing Cardillo);
United States v. Cardillo, 316 F.2d at 611; Carmona v. State
of New York, 1997 WL 876737 at *12 (quoting Bagby); United
States v. Badalamenti, 1985 WL 3960 at *1. As the Second Circuit
has explained, "a `witness' invocation of the fifth amendment
will not violate a defendant's right to confrontation unless
`the refusal precludes the defendant from testing the truth of
the witness' prior testimony.'" Bagby v. Kuhlman, 932 F.2d at
137; see also, e.g., United States v. Brooks, 82 F.3d 50, 54
(2d Cir. 1996). Thus, where the witness' refusal to answer
questions on cross-examination does not shield his direct
testimony from scrutiny, the Sixth Amendment does not require
that the direct testimony be struck.
In the instant case, defense counsel had free reign to ask
questions on cross-examination to challenge Serrano's account of
the events leading up to the robbery, the robbery itself and the
number of people involved.*fn5 Defense counsel used his
cross-examination of Serrano to advance the defense theme that
Mercado was not inside Balducci's during the robbery, and that
there was another explanation for Mercado's fingerprints being
found on the robbery proceeds.
Nevertheless, the unanswered questions concerning whether
Mercado was one of the robbers go to the very heart of Serrano's
direct testimony, which described the events of the robbery, and
implicitly assisted the prosecution in proving Mercado's guilt.
The most effective cross-examination of Serrano would have been
to get him to testify that Mercado was not one of the robbers.
Mercado's main argument (indeed, only argument) is that "[h]ad
Serrano stated that petitioner was not a participant, the
damaging effect of his other testimony would have been
undermined." (Petition ¶ 12(B), at supp. p. 5; see also id. at
6; Rieue Aff.Ex. D: Mercado 1st Dep't Br. at 32.) Without an
answer to the question of Mercado's involvement in the crime,
Mercado was deprived of a meaningful opportunity to test the
truth of Serrano's testimony. This certainly is a case where "the
answer would have been so closely related to the commission of
the crime that the entire testimony of the witness should be
stricken." United States v. Cardillo, 316 F.2d at 613.
B. The Violation of Mercado's Confrontation Clause Rights
Was Harmless Error
The finding that Mercado's Sixth Amendment right to confront
Serrano was violated, however, does not end the inquiry. It is
settled law that "violations of the confrontation clause may, in
an appropriate case, be declared harmless" error. Klein v.
Harris, 667 F.2d 274, 290 (2d Cir. 1981), overruled on other
grounds by Daye v. Attorney General, 696 F.2d 186, 195 (2d Cir.
1982); see also, e.g., Delaware v. Van Arsdall, 475 U.S. 673,
684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986) (harmless error
applies to Confrontation Clause issue); Yarborough v. Keane,
101 F.3d 894, 896 (2d Cir. 1996) (citing Arizona v. Fulminante,
499 U.S. 279, 307, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302 (1991));
United States v. Aulicino, 44 F.3d 1102, 1109 (2d Cir. 1995)
("Testimony admitted over a defendant's valid Confrontation
Clause objection, however, is subject to harmless-error
analysis," citing Delaware v. Van Arsdall); Tinsley v.
Kuhlmann, 973 F.2d 163, 165-66 (2d Cir. 1992) (holding that any
violation of defendant's confrontation rights was harmless);
Ojeda v. Artuz, 96 Civ. 5900, 1997 WL 283398 at *5 (S.D.N Y
May 29, 1997) ("Confrontation Clause violations are subject to
harmless-error analysis.") (citing Delaware v. Van Arsdall).
In Brecht v. Abrahamson, the Supreme Court held that the
appropriate harmless error standard to apply on habeas corpus
review of trial errors is whether the error "`had substantial and
injurious effect or influence in determining the jury's
verdict.'" 507 U.S. 619, 638, 113 S.Ct. 1710, 1722, 123 L.Ed.2d
353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,
776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); see also, e.g.,
O'Neal v. McAninch, 513 U.S. 432, 439, 115 S.Ct. 992, 996, 130
L.Ed.2d 947 (1995); Agard v. Portuondo, 117 F.3d 696, 714 (2d
Cir. 1997); Peck v. United States, 106 F.3d 450, 454 (2d Cir.
1997); Peck v. United States, 102 F.3d 1319, 1320 (2d Cir.
1996) (en banc) (Newman, C.J., concurring); Glenn v. Bartlett,
98 F.3d 721, 729 (2d Cir. 1996), cert. denied, 520 U.S. 1108,
117 S.Ct. 1116, 137 L.Ed.2d 317 (1997); Brewer v. Reynolds,
51 F.3d 1519, 1529-30 (10th Cir. 1995), cert. denied,
516 U.S. 1123, 116 S.Ct. 936, 133 L.Ed.2d 862 (1996); Tyson v. Keane,
991 F. Supp. 314, 316 (S.D.N.Y. 1998) (Scheindlin, D.J. & Peck,
M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *9
(S.D.N.Y. April 29, 1998) (Cote, D.J. & Peck, M.J.); Boyd v.
Hawk, 965 F. Supp. 443, 445 (S.D.N.Y. 1997).
In conducting a confrontation clause harmless error analysis,
the Supreme Court and the Second Circuit have set forth the
appropriate factors to consider:
In conducting this analysis, we must consider (1) how
important the witness' testimony was to the
prosecution's case, (2) whether the testimony was
cumulative, (3) whether other evidence in the record
corroborated or contradicted the witness on relevant
matters, (4) whether other cross-examination of the
witness was permitted and the extent of it, and
(5) what effect the testimony would have on proof
defendant's guilt. See Van Arsdall, 475 U.S. at 684,
106 S.Ct. at 1438, 89 L.Ed.2d 674.
Tinsley v. Kuhlmann, 973 F.2d at 166 (emphasis added); see
also, e.g., Ojeda v. Artuz, 1997 WL 283398 at *5.
The Court's finding of Confrontation Clause error in Point I.A.
above was premised on the fact that if Serrano had responded that
Mercado was not involved in the robbery, that would have
significantly aided Mercado's defense. The fact is, however, that
while the jury did not know how Serrano would have answered the
questions about Mercado's involvement, the colloquy outside the
jury's presence made clear that if he had answered, Serrano would
have identified Mercado as one of the robbers. This is clear
because Serrano's counsel repeatedly told the trial judge that
Serrano would not "implicate" Mercado. (Tr. 775, 783, 865.)
"Implicate" is not a neutral term. The dictionary defines it as
"[t]o involve intimately or incriminatingly."*fn6 Significantly,
moreover, the prosecutor advised the trial court during colloquy
that in testifying before the grand jury, Serrano identified
Mercado as one of the robbers. (Tr. 866-68.)
Mercado's case would have been hurt, not helped, if Serrano had
answered the unanswered questions. Thus, the fifth Tinsley
factor — "what effect the testimony would have on proof of
defendant's guilt" — is the key factor. If Serrano had answered
the questions as to Mercado's involvement, he would have
testified that Mercado was one of the robbers, significantly
increasing the likelihood the jury would find Mercado guilty. In
other words, Mercado was better off, not hurt, by Serrano's
refusal to answer the questions. On the peculiar facts of this
case, the Confrontation Clause violation was harmless error.
II. THE TRIAL JUDGE'S RESPONSE TO THE JURY'S QUESTION WAS NOT
ERRONEOUS UNDER NEW YORK LAW
Mercado also alleges that he was denied his right to fair
notice of the charges pending against him and the right to be
prosecuted only by grand jury indictment when, in response to a
jury question, the trial judge allowed the jury to convict
Mercado even if it concluded that he did not enter the store.
(Petition ¶ 12(A).)
In New York, the "fact that an indictment accuses a defendant
as a principal does not preclude his conviction as an accessory
and a [jury] charge based on accessorial conduct is not grounds
for reversal." People v. Kimbrough, 155 A.D.2d 935,
547 N.Y.S.2d 756, 756 (4th Dep't 1989); see also e.g., People v.
McEachin, 188 A.D.2d 433, 591 N.Y.S.2d 1023, 1024 (1st Dep't
1992) (same); People v. Duncan, 46 N.Y.2d 74, 79-80,
412 N.Y.S.2d 833, 837, 385 N.E.2d 572 (New York law makes "no
distinction between liability as a principal and criminal
culpability as an accessory and the status for which the
defendant is convicted has no bearing upon the theory of the
prosecution."), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61
L.Ed.2d 275 (1979).. Therefore, even if the prosecution's
original theory was that defendant was a principal, "there is no
infirmity in defendant's conviction as an accomplice." People v.
Doles, 165 A.D.2d 689, 564 N.Y.S.2d 15, 16 (1st Dep't 1990);
see also, e.g., People v. Liccione, 63 A.D.2d 305, 407 N.Y.S.2d 753,
756-57 (4th Dep't 1978), aff'd, 50 N.Y.2d 850,
430 N.Y.S.2d 36, 407 N.E.2d 1333 (1980).*fn7 Thus, the trial court's
instruction was consistent with New York law and did not violate
defendant's right to a fair trial. See, e.g., Brown v. Collins,
937 F.2d 175, 182 (5th Cir. 1991) ("we consistently have held in
the context of federal trials that `one who has been indicted as
a principal may, on proper instructions, be convicted on evidence
showing only that he aided and abetted the commission of the
offense'"); Tapia v. Tansy, 926 F.2d 1554, 1560 (10th Cir.
1991) ("The `sufficiency of an indictment or information is
primarily a question of state law.' . . . Under [state] law,
[defendant] had sufficient notice to be convicted on the
accessory theory, even though the information did not charge him
as an accessory. . . . [T]rial counsel's failure to argue lack of
notice or to request a continuance to meet the allegedly new
theory of liability at the time of the instruction's submission
suggests that he was not surprised by the instruction . . .").
For the reasons set forth above, I recommend that Mercado's
petition should be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from receipt of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable Harold
Baer, Jr., 500 Pearl Street, Room 2230, and to the chambers of
the undersigned, 500 Pearl Street, Room 1370. Any requests for an
extension of time for filing objections must be directed to Judge
Baer. Failure to file objections will result in a waiver of those
objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL — CIO Pension Fund
v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied,
513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct.
825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health &
Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v.
Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v.
Manson, 714 F.2d 234, 237-38 (2d Cir. 1983);
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).