2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-3-2008

USA v. Hardwick

Precedential or Non-Precedential: Precedential

Docket No. 06-2541

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 06-2541, 06-2571, 06-3061, and 06-5151

UNITED STATES OF AMERICA

vs.

LORENZO HARDWICK, a/k/a “Fu Quan,” 

Appellant in No. 06-2541,

_______

UNITED STATES OF AMERICA

vs.

JOSE G. RODRIGUEZ,

Appellant in No. 06-2571,

__________

UNITED STATES OF AMERICA

vs.

BERNARD MURRAY, a/k/a “B-Nice,”

Appellant in No. 06-3061,
__________

UNITED STATES OF AMERICA

vs.

ALLEN RESTO, a/k/a “Tito Allen,”

Appellant in No. 06-5151.

__________

Consolidated Appeals from the United States 

District Court for the District of New Jersey

(Crim. No. 02-684)

District Court Judge: Honorable Robert B. Kugler

___________

Submitted Under Third Circuit L.A.R. 34.1(a)

September 23, 2008

___________

Before: BARRY, AMBRO and GARTH, Circuit Judges,

(Opinion Filed: October 3, 2008)

Christopher J. Christie, United States Attorney

George S. Leone, Chief, Appeals Division

Eric H. Jaso, Assistant United States Attorney

970 Broad Street

Newark, New Jersey 07102-2535

Counsel for Appellee
-1-

Jerome A. Ballarotto

143 Whitehorse Avenue

Trenton, New Jersey 08610

Counsel for Appellant Lorenzo Hardwick

Catherine M. Brown

60 Washington Street

P.O. Box 9058

Morristown, New Jersey 07963-9058

Counsel for Appellant Jose G. Rodriguez

Michael E. Riley

Law Offices of Michael E. Riley, LLC

The Washington House

100 High Street, Suite 103

Mount Holly, New Jersey 08060

Counsel for Appellant Bernard Murray

Brian S. O’Malley

607 White Horse Pike

Haddon Heights, New Jersey 08035

Counsel for Appellant Allen Resto

___________

OPINION

___________

GARTH, Circuit Judge:
 Hardwick’s issues on appeal were: (1) acceptance of 1

Captain Joseph Bowen as an expert on the Sons of Malcolm X

was prejudicial error; (2) the Assistant United States Attorney’s

vouching statements during closing argument were reversible

error; (3) the late admission of pretrial statements of

co-defendant Bernard Murray violated the Confrontation Clause

and constitutes reversible error; (4) use of unproven, judicially

found facts to enhance defendant’s sentence beyond the

statutory maximum found by the jury was improper and requires

defendant’s sentence to be vacated. 

Rodriguez’s issues on appeal were: (1) submission of a

copy of the indictment to the jury is a structural defect in the

proceedings below requiring a new trial; (2) the trial court

improperly denied Jose Rodriguez’s motions for severance and

separate trial; (3) resentence is required because it is based upon

an incorrect guidelines analysis; (4) Mr. Rodriguez joins in the

merits arguments of the co-defendants.

Murray’s issues on appeal were: (1) since defense

counsel offered no evidence or arguments during his crossexamination of the Government witnesses contrary to the proffer

agreement, the Government breached the agreement and it was

error for the court to admit the defendant’s proffer statements;

(2) even if defense counsel inadvertently opened the door to the

admission of the defendant’s proffer statements, the failure of

the Government to contemporaneously object constituted a

-2-

The four defendants in this case filed separate appeals

that were consolidated upon motion by the Government.

Although the defendants raise numerous arguments on appeal,

only two questions warrant discussion. We address whether a 1
waiver and the statements should not have been admitted; (3)

acceptance of Captain Joseph Bowen as expert on the Sons of

Malcolm X was prejudicial error; (4) prosecutor’s vouching

statements during closing argument was reversible error.

Resto’s issues on appeal were: (1) acceptance of Captain

Joseph Bowen as an expert on the Sons of Malcolm X was

prejudicial error; (2) the court erred in permitting 404(b)

evidence regarding an alleged golf clubbing of an individual by

defendant Resto; (3) admission of the two incriminating proffer

statements of co-defendant Bernard Murray was constitutional

error requiring a new trial; (4) admission of the Murray

statements coupled with a failure to sever Allen Resto deprived

him of his constitutional right to confront this adverse witness

against him and, further, bolstered testimony of numerous other

witnesses previously presented at trial who were not crossexamined based upon the Murray statements; (5) prosecutor’s

vouching statements during closing argument were reversible

error; (6) submission of a copy of the indictment to the jury is a

structural defect in the proceedings below requiring a new trial;

(7) Allen Resto was denied effective assistance of counsel in

this trial, and this denial coupled with other trial error deprived

him of due process requiring a new trial.

 See Appendix A to this opinion where Murray’s 2

redacted proffer statements are reproduced as they were read

into the trial record.

-3-

waiver in a proffer agreement that allows the Government to use

a defendant’s proffer statements as part of its case-in-chief at

2

trial is valid and enforceable. We also consider whether
 The Superseding Indictment also named Ramon 3

“Flaco” Saldana as a defendant. Saldana pled guilty to Count

One—the only count in which he was named—on March 21,

-4-

admission of that proffer statement violated the Confrontation

Clause rights of other defendants who were implicated in that

proffer statement. As discussed below, we find no reversible

error and affirm all four convictions.

I.

This case involves various criminal acts related to drug

dealings in Camden, New Jersey. Without delving into the

details of each criminal act, it is enough to know that this case

concerns a gang called the Perez Organization. From January

1998 to September 2002, this gang was led by Enrique “Ricky”

Perez, a cooperating witness, and defendants Bernard “B-Nice”

Murray and Allen “Tito Allen” Resto. Defendant Lorenzo “Fu

Quan” Hardwick managed one of the drug corners (or “sets”)

controlled by the Perez Organization, and defendant Jose G.

Rodriguez was one of the primary “baggers” for the gang,

responsible for processing the drugs into individual bags for

street sale. Various disputes erupted between members of the

Perez Organization and competing drug dealers. Three

individuals were shot to death, and several others were badly

injured. 

On February 22, 2005, a federal grand jury in Camden,

New Jersey, issued an eight count Superseding Indictment

naming Murray, Resto, Hardwick, and Rodriguez as

defendants. The charges in the indictment included conspiracy 3
2005.

 Specifically, Count One charged Defendants and 4

Saldana with conspiring to distribute, and possess with intent to

distribute, more than one kilo of heroin and more than 50 grams

of crack, contrary to 21 U.S.C. §§ 841(a)(1), (b)(1)(A), in

violation of 21 U.S.C. § 846. Count Two charged Murray with

being a felon in possession of a firearm , in violation of 18

U.S.C. §§ 922(g)(1) and 2. Counts Three through Five charged

Murray, Resto, and Hardwick, respectively, with possessing,

brandishing, discharging, and using a firearm during 1998 to

2002 in furtherance of the drug-trafficking conspiracy, in

violation of 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(C), and 2. Count

Six charged Murray, Resto, and Hardwick with possessing,

brandishing, discharging, and using firearms in furtherance of

the drug-trafficking conspiracy on February 19, 2001 in

violation of 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(C), and 2. Count

Seven charged Murray and Resto with the same violations on

March 11, 2001. Finally, Count Eight charged Murray and

Resto with the same violations on October 19, 2001.

-5-

to distribute and possess narcotics, and possession and

brandishing of firearms while engaging in that conspiracy.4

Trial commenced on April 18, 2005, and on June 6, 2005, a jury

returned a guilty verdict on all counts. Rodriguez received a

360-month sentence; Hardwick, Murray, and Resto received life

sentences on the conspiracy count, and additional consecutive

sentences for their 18 U.S.C. § 924(c) convictions. 
 The District Court had subject matter jurisdiction under 5

18 U.S.C. § 3231. We have jurisdiction over the challenges to

the convictions under 28 U.S.C. § 1291 and over the challenges

to the sentences imposed under 18 U.S.C. § 3742(a).

-6-

The defendants appealed on numerous grounds, the most 5

salient of which was whether the admission into evidence of a

redacted proffer statement, after the close of the Government’s

case-in-chief, violated defendants’ constitutional rights under

the Confrontation Clause. Because we find that the use of the

proffer statement was harmless error, and we find no merit in

the other issues brought on appeal, we affirm. The Government

concedes, however, that the sentences for Hardwick, Murray,

and Resto should be reduced to only one § 924(c) conviction

each; accordingly, we remand for appropriate resentencing of

these three defendants on their § 924(c) counts. 

II.

During the investigation before trial, Murray entered into

a proffer agreement with the Government. Under this proffer

agreement, Murray agreed to cooperate with the investigators by

answering questions truthfully and completely, and the

Government agreed not to use these statements against him at

trial in its case-in-chief. The proffer agreement provided for an

exception, however, if the Government needed “to rebut any

evidence or arguments offered on [Murray’s] behalf.” Murray

App. 89. Murray was interviewed under this agreement on

October 11, 2002, and October 23, 2002. During these

interviews, he admitted to planning and participating in the

slaying of two individuals, Hiram “Chubby” Rosa and Kenneth
-7-

“Smoochie” Allen. 

After the close of its case-in-chief, the Government filed

a motion in limine to introduce Murray’s proffer statements.

Although Murray did not testify at trial, the Government argued

that Murray had breached the proffer agreement by attempting

to elicit contradictory evidence (i.e., that Murray had a lesser

role in those killings) through cross-examination. 

The District Court granted the Government’s motion,

finding that the cross-examinations conducted by Murray’s

counsel contradicted the proffer statements and thus triggered

the waiver. To allay any Confrontation Clause concerns, the

District Court ordered that all references to Murray’s

co-defendants be redacted and replaced with neutral references

such as “others” or “another person.” In addition, the District

Court instructed the jury that it could consider the proffer

statements only to assess Murray’s guilt, and not the guilt of any

other defendant. 

Murray challenges the District Court’s ruling on two

grounds. First, he argues that he did not trigger the waiver

because his cross-examinations only impeached the credibility

of the Government’s cooperating witnesses, without

contradicting his proffer statements. Second, he contends that,

even if the waiver was triggered, the Government waived its

ability to introduce the proffer statements because it did not

object contemporaneously to the cross-examinations or make a

timely motion to admit rebuttal evidence. Additionally,

Hardwick, Resto, and Rodriguez complain that the admission of

Murray’s proffer statements after the close of the Government’s

case-in-chief violated their rights under the Confrontation
-8-

Clause of the Sixth Amendment.

A.

The Enforceability of the Waiver

As a threshold matter, we consider whether the waiver

clause in Murray’s proffer agreement was enforceable before

determining whether it was properly invoked. Ordinarily, the

Federal Rules of Evidence prohibit the use of statements made by

a defendant during plea negotiations. Specifically, Federal Rule

of Evidence 410 provides:

Except as otherwise provided in this rule, evidence

of the following is not, in any civil or criminal

proceeding, admissible against the defendant who

made the plea or was a participant in the plea

discussions: . . . (4) any statement made in the

course of plea discussions with an attorney for the

prosecuting authority which do not result in a plea

of guilty or which result in a plea of guilty later

withdrawn.

See also Fed. R. Crim. P. 11(f) (providing that the admissibility

of any plea, plea discussion, or related statement is governed by

Rule 410). 

In United States v. Mezzanatto, 513 U.S. 196, 210 (1995),

the Supreme Court held that a defendant could waive his rights

under Rule 410 and Rule 11 as long as there is no “affirmative

indication that the agreement [to waive] was entered into

unknowingly or involuntarily.” But the Mezzanatto Court only

considered the enforceability of proffer waivers for impeachment

purposes, and five justices expressed doubt as to whether a
-9-

waiver could be used to admit the defendant’s statement in the

Government’s case-in-chief. Id. at 211 (Ginsburg, J., concurring)

(warning that “a waiver to use such statements in the case in

chief would more severely undermine a defendant’s incentive to

negotiate, and thereby inhibit plea bargaining”); id. at 218

(Souter, J., dissenting) (expressing concern that a defendant who

gives such a waiver “will be unable even to acknowledge his

desire to negotiate a guilty plea without furnishing admissible

evidence against himself then and there”). 

Nevertheless, circuit courts that subsequently have

considered the question have upheld the use of proffer waivers

at trial. See United States v. Velez, 354 F.3d 190, 196 (2d Cir.

2004); United States v. Krilich, 159 F.3d 1020, 1025-26 (7th Cir.

1998); see also United States v. Rebbe, 314 F.3d 402, 407 (9th

Cir. 2002) (upholding admission of proffer statements in

rebuttal); United States v. Burch, 156 F.3d 1315, 1321-22 (D.C.

Cir. 1998) (extending the majority opinion in Mezzanatto to

allow the admission of plea statements in the case-in-chief). We

are persuaded by the reasoning of these courts and find that the

waiver agreement at issue in this case was enforceable.

B.

Triggering the Waiver

Determining whether Murray triggered the waiver requires

an analysis of the terms of the waiver. A proffer agreement is a

contract and its terms must be read to give effect to the parties’

intent. United States v. Barrow, 400 F.3d 109, 117 (2d Cir.

2005) (quoting United States v. Liranzo, 944 F.2d 73, 77 (2d Cir.

1991)); see also United States v. Williams, 510 F.3d 416, 421-22

(3d Cir. 2007) (stating that plea agreements are analyzed
 Murray did not testify. All our references to “Murray’s 6

cross-examination” refer to the cross-examinations conducted

by Murray’s counsel.

-10-

“according to contract law principles”); United States v. NolanCooper, 155 F.3d 221, 236 (3d Cir. 1998) (“Plea agreements,

although arising in the criminal context, are analyzed under

contract law standards.”). Because the interpretation of a

contract generally is a question of law, we review the District

Court’s interpretation of the terms of the waiver de novo.

Barrow, 400 F.3d at 117; see also United States v. Bernard, 373

F.3d 339, 341 (3d Cir. 2004) (“We exercise plenary review over

the question of whether the terms of a plea agreement have been

violated.”). If the waiver applies to this case, we review the

District Court’s evidentiary rulings admitting Murray’s proffer

statements for abuse of discretion. Barrow, 400 F.3d at 117.

The terms of the waiver here were expansive, allowing the

Government to use Murray’s proffer statements not only to crossexamine him, but also “to rebut any evidence or arguments

offered on [his] behalf.” (emphasis added). Barrow, 400 F.3d at

118. Compare Krilich, 159 F.3d at 1024 (demonstrating more

narrowly tailored waiver terms). Moreover, upon reviewing the

trial transcripts, it is clear that Murray triggered the terms of the

waiver by attempting to shift the blame for ordering the deaths of

Rosa and Allen. 

Regarding Rosa’s death, Murray’s cross-examination6

attempted to elicit testimony that another drug gang, led by Mark

Lee, had motive to kill Rosa. Murray elicited testimony that one

of Rosa’s associates was attempting to sell drugs in Lee’s
-11-

territory, leading to a loss in profits. Murray also attempted to

insinuate that the van in which Moore was arrested might have

been the same van used in Rosa’s killing. Murray pursued these

lines of questioning even though he had confessed in his proffer

statements that he ordered Rosa’s killing.

Likewise, Murray attempted to show that Ricky Perez

gave the order and the gun to kill Allen. In cross-examining a

cooperating witness, David Lopez, who had admitted to shooting

Allen, Murray repeatedly asked whether Perez ordered Allen’s

death, even though Lopez had testified that he acted on Murray’s

orders. Murray also repeatedly questioned Perez whether he

ordered Lopez to kill Allen, and whether he gave Lopez the gun

used to shoot Allen. Murray also elicited testimony from Perez

that Allen was disrupting Perez’s drug sets and affecting his

profits, in an attempt to pin the motive on Perez.

The testimony elicited from these witnesses on crossexamination was aimed at inferring that Lee and Perez, rather

than Murray, were responsible for the murders of Rosa and

Allen, contrary to the statements Murray made under the proffer

agreement. See United States v. Frazier, 469 F.3d 85, 89 (3d Cir.

2006) (holding that, in certain circumstances, an attorney’s crossexamination of a witness is tantamount to the assertion of an

argument).

Murray’s explanations for these lines of questioning are

unavailing. According to Murray, his questioning was intended

only to impeach the credibility of the Government’s cooperating

witnesses and to challenge their recollections of certain events.

Nevertheless, the District Court felt Murray was also attempting

to challenge any recollections regarding Murray’s role in the
 The District Court stated: 7

I was struck during the course of this trial

to some of the cross examination about the

van and about the arguments that these

other people may have had with the

victims of the murder and I was struck that

counsel may have been suggesting that

someone else was responsible for these

murders and not, in fact, Mr. Murray as he

so allegedly told the F.B.I.

Appellee’s App. 215-16.

-12-

killings, thus opening the door for the Government to invoke the

waiver to rebut these attempts. Accordingly, we find that the 7

District Court did not abuse its discretion in admitting Murray’s

proffer statements.

C.

Timeliness of Exercise of Rights Under the Waiver

The record reflects that the Government waited seven days

before objecting to one of the cross-examinations conducted by

Murray, and waited twelve days before objecting to two other

cross-examinations. Murray argues that the Government’s

failure to make contemporaneous objections constituted a waiver

of its right to admit his proffer statements under Federal Rule of

Criminal Procedure 51 and Federal Rule of Evidence 103(a). We

disagree.

Murray’s argument conflates the right to object to the

introduction of evidence with the right to enforce a contract. See
-13-

Liranzo, 944 F.2d at 77 (“Pre-trial agreements, such as

cooperation agreements and proffer agreements, are interpreted

according to principles of contract law.”). The Government was

not lodging an objection to Murray’s line of cross-examination;

rather, it was exercising its contractual right under the proffer

agreement. The proffer agreement did not preclude Murray from

introducing evidence or making arguments contrary to the proffer

agreement, nor did it provide the Government with a right to

object when Murray did so. See Velez, 354 F.3d at 196 (“[A]

defendant remains free to present evidence inconsistent with his

proffer statements, with the fair consequence that, if he does, ‘the

Government [is] then . . . permitted to present the defendant’s

own words in rebuttal.’” (citation omitted)). Instead, it provided

the Government with the right to use the proffer statements to

rebut any arguments offered on Murray’s behalf. Thus, the

Government did not waive its right to introduce the proffer

statements by not objecting contemporaneously to the crossexaminations.

D.

Confrontation Clause

Hardwick, Resto, and Rodriguez argue that the admission

of Murray’s proffer statements violated their rights under the

Confrontation Clause of the Sixth Amendment. Although the

District Court ordered the statements to be redacted to replace

any references to Murray’s co-defendants with neutral terms such

as “others” or “another person,” they argue that they were

prejudiced even by these neutral terms, which strongly implicated

them in the killing of Rosa in light of earlier evidence placing

them in the van used in the shooting. 
-14-

The Confrontation Clause of the Sixth Amendment,

extended to the States by the Fourteenth Amendment, guarantees

a criminal defendant’s right “to be confronted with the witnesses

against him.” U.S. Const. amend. VI. This right includes the

ability to cross-examine witnesses. See Pointer v. Texas, 380

U.S. 400, 404, 406-07 (1965).

In Bruton v. United States, 391 U.S. 123 (1968), the

Supreme Court held that the introduction of a non-testifying

defendant's out-of-court statement, which directly implicated his

co-defendant by name, violated the Confrontation Clause right of

the co-defendant. Even though the jury was given clear

instructions not to consider the confession in determining that

co-defendant’s guilt, the Supreme Court held that it could not

“accept limiting instructions as an adequate substitute for [the]

constitutional right of cross-examination.” Id. at 137. The

Supreme Court reasoned that “there are some contexts in which

the risk that the jury will not, or cannot, follow instructions is so

great . . . that the practical and human limitations of the jury

system cannot be ignored.” Id. at 135.

Subsequently, the Supreme Court held in Richardson v.

Marsh that this problem could be cured by redacting the

confession “to eliminate not only the [co-defendant’s] name, but

any reference to his or her existence.” 481 U.S. 200, 211 (1987).

Critically, the confession in Richardson differed from the one in

Bruton because it had been redacted so completely that it was no

longer incriminating on its face, and became so only when linked

with other evidence introduced at trial. Id. at 208. The Supreme

Court declined to extend Bruton in that case because the risk of

potential prejudice to the co-defendant no longer outweighed the

pragmatic necessity of joint trials. “[N]o opinion” was expressed
 Although we concluded that a Bruton error occurred in 8

Richards, we found that the issue had not been preserved.

Consequently, under plain error review, we found that the error

was not so prejudicial as to require reversal. 241 F.3d at 341-42.

-15-

“on the admissibility of a confession in which the defendant’s

name has been replaced with a symbol or neutral pronoun.” Id.

at 211 n.5.

But the Supreme Court revisited that question in Gray v.

Maryland, 523 U.S. 185 (1998), holding that redactions that

substituted the co-defendant’s name with placeholders such as

blank spaces or the word “deleted” did not pass muster. Such

placeholders were problematic because they “refer[red] directly

to the ‘existence’ of the nonconfessing defendant.” Id. at 192.

In the Supreme Court’s view, the redacted statements in Gray “so

closely resemble[d] Bruton’s unredacted statements” that the law

required the same result. Id. 

Since Gray, we have considered the constitutionality of

redacted confessions in two cases: United States v. Richards,

241 F.3d 335 (3d Cir. 2001), and Priester v. Vaughn, 382 F.3d

394 (3d Cir. 2004). In Richards, the defendant’s confession

stated that he had planned the robbery at issue with a “friend.”

Other testimony showed that the two co-defendants were friends.

We held that this reference to the “friend” was “just as blatant

and incriminating . . . as the word ‘deleted’ in the Gray case.”

241 F.3d at 341.8

In Priester, however, we found that substitutions such as

“the other guy,” “someone,” “someone else,” “the guy,” and

“another guy” did not violate the Confrontation Clause where
-16-

there were “at least fifteen perpetrators in various cars involved

in the shooting.” 382 F.3d at 399. Unlike Richards, where “the

word ‘friend’ unequivocally pointed to Richards,” the only other

co-defendant, Priester involved so many perpetrators that “the

phrases ‘the other guy’ or ‘another guy’ [were] bereft of any

innuendo that tie[d] them unavoidably to Priester.” Id. at 400-01.

What these decisions underscore is that the nature of the

linkage between the redacted statement and the other evidence in

the record is vitally important in determining whether a

defendant’s Confrontation Clause right has been violated. Even

redacted statements will present Confrontation Clause problems

unless the redactions are so thorough that the statement must be

linked to other evidence before it can incriminate the

co-defendant. See Richardson, 481 U.S. at 208; see also Gray,

523 U.S. at 196 (finding issue with redactions that leave

“inferences that a jury ordinarily could make immediately, even

were the confession the very first item introduced at trial”).

Assessing the “kind” of inference present here, and not the

“simple fact of inference,” leads us to conclude that the

admission of Murray’s proffer statements violated the

Confrontation Clause rights of Murray’s co-defendants. Cf.

Gray, 523 U.S. at 196 (noting that redactions that leave oversimplistic inferences do not satisfy the concerns of Bruton and

Richardson, which “must depend in significant part upon the kind

of, not the simple fact of, inference”). Although this trial

involved multiple co-defendants, only two—not including

Murray—were charged with killing Rosa. Redacted references

to “others in the van” referred directly to their existence, and the

unavoidable inference was that they were the ones who “exited
 The Government also relies heavily on the District 9

Court’s limiting instruction, but it is clear that “certain

‘powerfully incriminating extrajudicial statements of a

codefendant’ . . . are so prejudicial that limiting instructions

cannot work. Unless the prosecutor wishes to hold separate

trials or to use separate juries or to abandon use of the

confession, he must redact the confession to reduce significantly

or to eliminate the special prejudice that the Bruton court

found.” Gray, 523 U.S. at 192 (citations omitted).

-17-

[the] vehicle and started firing their weapons at Rosa.” Murray

App. 99. The redacted version of the text explicitly excluded

Perez and Murray, the only other passengers, from the “others”

who left the van. Because Murray exercised his right not to

testify at trial, Hardwick and Resto were unable to confront him

and challenge his testimony. This violated the Confrontation

Clause.9

Although we conclude that the District Court erred in

admitting the proffer statements, we will affirm “if we find the

error is harmless beyond a reasonable doubt.” Richards, 241

F.3d at 341. “An error is harmless if it ‘does not affect

substantial rights’ of the defendant.” United States v. Jimenez,

513 F.3d 62, 83 (3d Cir. 2008) (quoting Fed. R. Crim. P. 52(a)).

This occurs when the record shows “‘beyond a reasonable doubt

that the error complained of did not contribute to the verdict

obtained.’” United States v. Fallon, 470 F.3d 542, 547 (3d Cir.

2006) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).

As we have stated, an “‘otherwise valid conviction should not be

set aside if the reviewing court may confidently say, on the whole

record, that the . . . error was harmless beyond a reasonable
-18-

doubt.’” Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673,

681 (1986)).

The evidence in this case was more than sufficient to

support the jury’s verdict, even without the offending proffer

statements. At trial, several witnesses testified to the

participation of Hardwick and Resto in the murders of Rosa and

Allen. Ricky Perez detailed the roles played by himself, Resto,

Murray, and Hardwick in the killings of Rosa and Allen.

Another witness named Arnaldo Gomez described the escalating

dispute between Rosa and Hardwick. David Lopez, who

admitted that he personally shot Allen, testified that he, Perez,

Murray, and Resto planned the killing. The prosecution also

offered testimony of a New Jersey Police ballistics expert that

AK-47 shell casings from the Rosa murder scene matched those

found at the murder scene of the third victim, Troy James,

coupled with testimony from Ricky Perez that Murray admitted

killing James with the same AK-47 that Resto used to kill Rosa.

The overwhelming evidence convinces usthat the District

Court’s error was harmless beyond a reasonable doubt. See

Monachelli v. Warden, SCI Graterford, 884 F.2d 749, 753 (3d

Cir. 1989) (“[A] Bruton violation will not result in a reversal

where the independent, ‘properly admitted evidence of [the

defendant’s] guilt is so overwhelming, and the prejudicial effect

of the co-defendant’s admission so insignificant by comparison,

that it is clear beyond a reasonable doubt that the improper use of
 The defendants also argue that admitting Murray’s 10

proffer statements was unduly prejudicial and therefore the

District Court abused its discretion under Federal Rule of

Evidence 403 by admitting this evidence. Resto also argues that

he was entitled to severance based on the admission of Murray’s

proffer statements. Even if the District Court erred, any error

was harmless given the tremendous amount of evidence in the

record supporting the jury’s verdict.

 On page 28 of its brief, the Government represents: 11

Accordingly, the United States requests

that this Court remand these three

Defendants’ cases to the district court,

with instructions to vacate the sentences

imposed for all but one § 924(c)

conviction each; that conviction should be

chosen by the Government, and to comport

with the intent of Congress, should reflect

-19-

the admission was harmless error.’” (quoting Schneble v. Florida,

405 U.S. 427, 430 (1972))). Accordingly, we will affirm.10

III.

The defendants raise a host of additional arguments on

appeal, see note 1, supra, none of which has merit. The

Government, though, has agreed that the multiple consecutive

sentences imposed on Hardwick, Murray, and Resto under

§ 924(c) should be remanded with instructions to vacate all but

one § 924(c) conviction each, in compliance with a Justice

Department policy memorandum requiring a separate predicate

offense for each § 924(c) charge.11
the highest mandatory penalty supported

by the evidence.

Appellee’s Br. 28.

-20-

For the foregoing reasons, we will affirm the jury’s verdict

as to all four defendants, and remand only for resentencing of

Murray, Resto, and Hardwick consistent with the Justice

Department policy memorandum.
Appendix A

 Sweeney was the government agent who interviewed 1

Murray on October 11, 2002, and October 23, 2002, pursuant

to the proffer agreement. He took the stand on May 25, 2005,

to read the redacted proffer statements into the record.

-1-

I. Redacted Proffer Statement (October 11, 2002)

MR. SWEENEY : Murray advised that he had an ongoing 1

dispute with individuals by the name of

Gerard Jackson and Shaheed Wilson. This

dispute originated from Mark Lee a/k/a

Moe being upset that Gerard Jackson

opened a crack cocaine house flow at 728

Vine Street. This house flow directly

conflicted with his flow and the cocaine

and marijuana flow at 7th and Vine Street

Camden, New Jersey. This altercation

became physical when Wilson fought Lee

in a fist fight with Lee losing the fight.

This dispute continued with Alvin

Coleman, friend of Gerard Jackson and

Shyeve [sic] Wilson when Coleman got

into a fight with Michael Moore a/k/a

Snook, a friend of Moe. Coleman punched

Moore who had had a weapon on his person

and he shot Coleman in the leg area.

Jackson continued to sell crack cocaine

from his mother’s house on Vine Street

when Arnaldo Gomez a/k/a Nandito

complained that the money slash drug flow
Appendix A

-2-

was being messed up by Jackson’s drug

operation. Nandito was the manager of the

7th and Vine Street crack cocaine flow.

Jackson was approached and advised that

he couldn’t sell drugs in the area. B-Nice

advised he was supplying with cocaine and

the flow was being slowed down by

Jackson’s drug set. B-Nice advised at some

point he told Wilson that he and Jackson

had to leave the block. Approximately one

week later, Enrique Perez a/k/a/ Rick and

B-Nice talked to Nandito who advised that

Jackson was continuing to sell crack from

the house. Both men traveled to Jackson’s

house on Vine Street and waited out in

front of his house. Jackson. [sic]

According to B-Nice, he called Jackson’s

name who was located in the house and

Jackson advised them to weight [sic] a

minute. B-Nice entered his black Honda

Accord Station Wagon which he drove to

Jackson’s house. Rick Perez drove his

green vehicle and parked directly in front of

Jackson’s house next to Murray’s vehicle.

According to Murray, Jackson started firing

his weapon out of the house and in their

direction attempting to kill them. Both

Murray and Perez fled the area on foot. BNice fled towards 8th and State Streets
Appendix A

-3-

while with [sic] Perez running toward

Linden Street Camden, New Jersey.

B-Nice recalled that the incident happened

during the weekday and [sic] the time of

1300 hours. B-Nice advised he ran to

Yamilee Coffigny’s house on State Street

who eventually drove him home to his

Dayton Street address. B-Nice advised that

he grabbed his 9 millimeter handgun with

Rick Perez grabbing his 380 caliber

handgun from his residence on 34th Street,

Camden, New Jersey. Together both

Murray and Perez traveled around the area

looking for Gerard Jackson and Shaheed

Wilson. Murray advised that both Perez

and Murray obtained a vehicle from

Anthony Perez that was white in color.

Both Perez and Murray, and [sic] observed

Wilson on State Street around 1600 hours.

They displayed their weapon [sic] to

Wilson and demanded to know where

Gerard Jackson was located. Wilson was

able to break away from Murray and fled

the scene. Wilson called the police and

signed complaints against Murray. Several

days went by and an incident occurred

where Hiram Rosa shouted threats in the

direction of Murray and Perez while they

were standing on the 500 block of Vine
Appendix A

-4-

street [sic], Camden, New Jersey. As a

result they decided to kill Rosa. Another

person rented a gray blue van from a rental

agency and provided it, an AK47 and 45

caliber handgun. Another person advised

that he got word that Rosa and Gerard

Jackson were located at Cooper Hospital.

Perez and Murray and others drove around

and attempted to locate both individuals.

B-Nice stated that Perez had the

9 millimeter and he had a 38 caliber

handgun that is, as they [sic], as they were

driving around. Murray described the

vehicle as a white Ford Tarusus [sic]. They

followed the vehicle onto Broadway Street

in Camden and into the Rutgers Campus.

They temporarily lost the vehicle an [sic]

found it on a dark street. B-Nice advised

that he was located in the very back of the

vehicle when they drove past Rosa’s

vehicle because he was driving slow. Rosa

pulled his vehicle to the side and the others

in the van neither Perez nor Murray exited

their vehicle and started firing their

weapons at Rosa. After the shooting, they

left in a hurry in the direction of North

Camden. They decided to split up with

Perez an [sic] B-Nice traveling to Perez’s

residence on 34th Street Camden, New
Appendix A

-5-

Jersey. Murray advised he recalled that

night of the shooting he and Perez had a

lengthy discussion about not being involved

with the shooting.

(Appellee’s App. 223)

II. Redacted Proffer Statement (October 23, 2002)

MR. SWEENEY: Murray advised that he wanted to change

some details about the Rosa homicide.

Murray advised that during the actual

shooting of Hiram Rosa, Rick Perez had the

AK47 assault rifle and another had the 45

caliber handgun. Murray also advised that

Hiram Rosa was very agitated with the

events that unfolded and made over [sic]

threats towards them. Murray recalled on

one occasion that Rosa shouted “It ain’t

over.” When the shooting incident

occurred, Murray advised he had a 380

caliber weapon. Murray advised the AK47

and 45 caliber handgun were used in the

Rosa homicide. Murray state [sic] that

Perez and another person were the actual

shooters of Rosa. Murray advised that

another person rented a gray colored Dodge

Caravan that was utilized to do the murder.

Murray did not know what happened to the

vehicle after the incident. Pertaining to the
Appendix A

-6-

Kenneth Allen a/k/a Smooch murder,

Murray advised that David Lopez was the

manager of the 9th and Cedar Street heroin

set [sic] according to Murray the bundles

and money kept coming up short by about

1500 to 2000 dollars. Lopez wanted to

show someone that [sic] stealing the

bundles; therefore he placed a stash in the

area where he could observe it. Lopez

observed Allen steal the stash. Lopez

called Rick Perez and Murray and another

person. They responded to the area of 9th

and Cedar Streets, Camden, New Jersey.

While at Lopez’s residence on Cedar Street,

they discussed the situation on whether or

not to kill or beat up Kenneth Allen.

During that conversation, it was decided

that Allen would be killed. Specifically

Murray advised that he instruct [sic] the

other person to handle the situation with

David Lopez. B-Nice advised he drove

David Lopez to the area of 9th and Vine

Streets, Camden New Jersey. They

observed Kenneth Allen during the

altercation Smooch started to win the fight

against David Lopez. I’m sorry. During

that altercation, Smooch started to win the

fight causing David Lopez to exit Murray’s

vehicle and approach the situation.
Smooch started to runaway [sic] from the

area causing David Lopez to fire his

weapon at Smooch. Murray advised he

observed Smooch stumble and continue to

run as he was being fired at. Murray

advised Lopez caught up to Smooch and

finished him off. Murray advised that the

other person who was firing at Smooch at

the same time was David Lopez [sic].

Murray recalled approximately ten to 16

shots were fired during the incident.

Murray advised that the shooting, that after

the shooting was over, he picked up Lopez

and the other person on 10th Street and

drove over to Rick Perez’s house. At

Perez’s house Murray advised both this

other person and David Lopez were both

amped up about the situation and David

Lopez volunteered to do the other shootings

in the future. Murray advised he stated to

Perez Dave and the other person handle

their business. After the conversation, all

guns used in the shooting were given to

Rick Perez while located in his residence.

(Appellee’s App. 224)