United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Before the Court is Defendants' Motion to Exclude Introduction of Codefendants' Testimonial Out-of-Court Statements (Dkt. 261) filed and briefed at the Court's request following the January 9, 2014 pretrial conference and hearing. Having considered the Motion, the Government's Response (Dkt. 265), Defendants' Reply (Dkt. 282), and the Government's Supplemental Response (Dkt. 313), the Court enters the following Order denying the Motion.
During the course of the hearing on Defendants' motion to exclude evidence or argument that DBSI was a "Ponzi" scheme, the issue arose as to whether the Government may introduce Defendant Ellison's statement to the FBI and Jeremy Swenson's statement to the DBSI bankruptcy examiner as statements of a party opponent under Federal Rule of Evidence 801(d)(2)(A). Defendants were concerned that such statements, coupled with their inability to cross examine their co-defendants, would violate their rights under Crawford v. Washington , 541 U.S. 36 (2004) and Bruton v. United States , 391 U.S. 123, 125-26 (1968). The parties agreed to brief the issue in lieu of having a hearing. Defendants jointly filed the pending Motion asking the Court to exclude "any testimonial, out-of-court statements made by any witness, including any co-defendant." Motion , at 1.
In its Response, the Government advised that it intends to introduce the following statements of Defendants which it recognizes are testimonial under Crawford:
1. Defendant Ellison's August 29, 2009 interview with representatives of the DBSI Bankruptcy Examiner.
2. Defendant Ellison's March 15, 2012 interview with criminal investigators and prosecutors at the U.S. Attorney's office.
3. Defendant Jeremy Swenson's June 19, 2009 interview with the Bankruptcy Examiner.
4. Defendant David Swenson's June 19, 2009 interview with the Bankruptcy Examiner.
STANDARD OF LAW
Federal Rule of Evidence 801(d)(2)(A) provides that a statement by an opposing party is not hearsay when it is "offered against an opposing party and... was made by the party in an individual or representative capacity...." In other words, the government may introduce a defendant's statement against him at trial. Constitutional concerns, however, must not be overlooked in deciding whether such a statement may be introduced in a multi-defendant trial.
The Sixth Amendment Confrontation Clause guarantees the right of a criminal defendant "to be confronted with the witnesses against him" and includes the right to cross-examine witnesses. Richardson v. Marsh , 481 U.S. 200, 206 (1987).
A defendant's Confrontation Clause rights are violated in a joint trial situation when a co-defendant's confession that facially incriminates the defendant is admitted even with a jury instruction that the confession was only to be considered against the co-defendant. Bruton v. United States , 391 U.S. 123, 125-26 (1968). The Court reasoned that a limiting jury instruction could not overcome the "powerfully incriminating extrajudicial statement" naming the defendant. Id. at 135-36. However, where a statement is redacted to omit all reference to the defendant and all reference to the fact that anyone other than the co-defendant and a third person committed the crime, and there is a limiting instruction, the defendant's Confrontation Clause rights are not violated. Richardson , 481 U.S. at 201-02. This is so even if the defendant is subsequently linked to the confession by other evidence against him. The Court found the distinction between a facially incriminating confession and a redacted confession to be significant.
The fact of redaction alone, however, is not sufficient to withstand a Bruton challenge. Rather, the manner and extent of redaction is determinative. For example, redaction of the confession of a non-testifying co-defendant by replacing the defendant's name with an obvious indication of deletion such as a blank space, the word "deleted, " or similar symbol violates Bruton. Gray v. Maryland , 523 U.S. 185, 192 (1998). The Supreme Court explained that Bruton applies where the inferences "involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at ...