decided: March 13, 1980.
ALEXANDER ENGLISH, PETITIONER-APPELLANT,
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S 77-C-207 -- Robert A. Grant, Judge.
Before Fairchild, Chief Judge, and Swygert and Sprecher, Circuit Judges.
Author: Per Curiam
In this appeal from denial of his motion to vacate sentence, 28 U.S.C. § 2255, Alexander English raises two issues. He argues that he was denied effective assistance of counsel when the attorney who had initially represented him represented his co-defendant at trial. He also argues that the Bruton rule was violated by the introduction of his co-defendant's confession, from which all reference to English had been excised, because in context the statement still implicated him.
English, along with Sam Hubbard, Jr. and Rufus Gaines, was convicted of bank robbery and murder. See United States v. English, 501 F.2d 1254 (7th Cir. 1974), cert. denied sub nom. Hubbard v. United States, 419 U.S. 1114, 95 S. Ct. 791, 42 L. Ed. 2d 811 (1975). In the course of this prosecution Eisenberg, the attorney representing English and Hubbard, took over the representation of Gaines, leaving his co-counsel Anderson to represent English and Hubbard. We subsequently reversed Gaines' conviction, finding that his attorney's residual "duty to refrain from taking any action adverse to" the interests of English and Hubbard created a conflict of interests which denied him effective assistance of counsel. United States v. Gaines, 529 F.2d 1038, 1042 (7th Cir. 1976). Gaines had given a statement implicating English and Hubbard. The possibility that the interests of Hubbard and English in suppressing the references to themselves influenced the decision of Gaines' attorney to not call him as a witness was enough we said, to establish prejudice.
English now argues that Eisenberg could not fulfill his residual duty to him because of his conflicting duty to Gaines, and that this denied him effective assistance of counsel. Reversing the reasoning in Gaines, English claims that he was actually prejudiced by his former attorney's decision to keep Gaines off the stand.*fn1 That decision would not, however, demonstrate a denial of effective assistance of counsel.*fn2 English after all is not impugning the effectiveness of his own counsel Anderson, but his former counsel, Eisenberg. As we have said, Eisenberg had a duty to "refrain from taking any action adverse to (English's) interests in a matter in which he had represented (him)." 529 F.2d at 1042. More precisely, Eisenberg was obligated to not take advantage of his former representation of English, to the benefit of his current client Gaines and the detriment of his former client English.*fn3 The decision, allegedly made on behalf of Gaines and to the detriment of English, is not alleged to have been based on any considerations other than those which would have influenced wholly independent counsel. Eisenberg was under no duty to act contrary to the interests of his current client. In acting for Gaines he may not have done all he could have for English, but this does not mean that he did less for English than he should have.*fn4
English argues that he was not independently represented at all. In Gaines, 529 F.2d at 1042-43, we noted that Gaines' attorney acted after trial as if he had represented all three defendants, and that Hubbard and English believed they had been represented by both attorneys. However, neither our discussion there, nor the record below, suggests that Anderson acted on behalf of anyone other than his clients Hubbard and English. Gaines' attorney may have had divided loyalties, but nothing suggests that Anderson did too.
English's second claim is that the introduction at trial of Gaines' confession violated the rule of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and requires reversal. F.B.I. Agent Whitaker, testifying as to the confession of Gaines, suppressed all specific references to the other participants in the crime, and referred to them only as "two other individuals." He reported Gaines as having said that after the crime they all stopped at the Holiday Inn in Gary, Indiana, and "one of them registered there." This testimony regarding the registration at the Holiday Inn was introduced over the objection of counsel for English. Whitaker was followed on the stand by the manager of the Holiday Inn, who testified regarding a registration form filled out about an hour after the crime, and bearing the name of Alex English. English argues that given the evidence of the registration form, the reference in the confession to the Holiday Inn was directly and inevitably inculpating, and therefore violated his Sixth Amendment confrontation rights.*fn5
The introduction of a confession from which the names of co-defendants have been excised may violate the Bruton rule if in context the statement is clearly inculpating of a co-defendant, and vitally important to the Government's case. United States v. Knuckles, 581 F.2d 305, 313 (2d Cir.), cert. denied, 439 U.S. 986, 99 S. Ct. 581, 58 L. Ed. 2d 659 (1978). The clearest example of such a case is United States v. Gonzalez, 555 F.2d 308 (2d Cir. 1977). There was testimony that Costano said that keys found in his pocket belonged to the person who gave him the cocaine. Other evidence indicated that those keys fit the mail box and apartment door of Gonzalez. The inference was inevitable and compelled that the keys belonged to Gonzalez, and that it was therefore he who gave the cocaine to Costano. The statement was thus directly and clearly inculpating. The court emphasized that the only other evidence against Gonzalez was circumstantial, and that despite contrary rulings by the trial court the prosecutor sought to link Gonzalez to the cocaine via his ownership of the keys.*fn6
Where the context may permit an inculpating inference, but does not compel it, no Bruton violation exists. In United States ex rel. Nelson v. Follette, 430 F.2d 1055 (2d Cir. 1970), cert. denied, 401 U.S. 917, 91 S. Ct. 899, 27 L. Ed. 2d 818 (1971), Biggins was reported to have confessed that he met his fellow participant in the robbery and murder at a certain bar. Other testimony indicated that Biggins and Nelson had been in that bar at the same time. Biggins' statement was not a Bruton violation, however, because "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.' " Id. at 1058.*fn7 English, similarly, is not necessarily implicated just because he was present in the motel where Gaines said he and his accomplices went after their crime. There was therefore no Bruton violation.*fn8
For the foregoing reasons, the judgment of the district court dismissing this petition is affirmed.