Thursday, December 5, 2013
Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. In Richardson v. Marsh, the Supreme Court found that there's no Bruton doctrine if the prosecution can redact such a statement to remove any reference to the other defendant, and some lower courts have found no problem with replacing the other defendant's name with a neutral pronoun. Sometimes, however, neither solution is viable. The recent opinion of the Northern District of Illinois in United States v. Montoya-Hernandez, 2013 WL 6080483 (N.D.Ill. 2013), gives us some good insight into how this process works.
In Montoya-Hernandez, Juan Montoya–Hernandez, J. Inez Rodriguez, and Shawn Johnson are charged in a four-count indictment with marijuana trafficking. After he was arrested,
Montoya spoke to agents for more than two hours about his involvement in marijuana distribution and with “Roger.” (Tr. 54–55.) Twice during the afternoon, agents dialed the number for “Rogelio,” and handed him the phone, but there was no answer. (Tr. 42–43.) Agents asked Mr. Montoya “how I know the guy and how long I have been selling drugs.” (Tr. 43.) Mr. Montoya acknowledged that he knew there were more than 900 pounds of marijuana belonging to Rodriguez in Montoya's garage and that he planned to distribute it to “the guy [who] said he would call me.” (Tr. 45, 59.) He acknowledged, further, that he had arranged for delivery of 25 pounds of marijuana from his garage to the same person just a few days earlier, on May 30. (Tr. 46–47.) He also admitted that he kept a .9 millimeter gun and ammunition in the closet of his bedroom. (Tr. 48.).
The prosecution planned to try Rodriuez and Montoya–Hernandez together at a joint jury trial, but Rodriguez filed a motion for severance because (1) Montoya–Hernandez does not plan to testify; and (2) the prosecution planned to admit his statement. In response, the court cited to Bruton but then note that
Severance is not required in every case in which co-defendant's confession is admitted, however. The Supreme Court has approved the practice of redacting a statement so as to eliminate any obvious reference to a defendant, and giving limiting instructions, as sufficient to protect a defendant's Confrontation Clause rights. In Richardson v. Marsh, 481 U.S. 200 (1987), the court found no Confrontation Clause violation where the co-defendant's confession was redacted to eliminate not only the defendant's name, but any reference to her existence. Id. at 211; see also Gray v. Maryland, 523 U.S. 185, 196 (1998) (approving, in dictum, replacement of names in a confession with “a few other guys” to avoid a Bruton problem); United States v. Benabe, 436 Fed. App'x 639, 647 (7th Cir.2011) (approving use of the expression “another gang member” rather than defendant's name); United States v. Green, 648 F.3d 569, 573, 574 (7th Cir.2011) (in what the court recognized as a “close case,” approving a redaction that referred to the defendant generically as the “straw buyer” though the jury could have “[p]ut[ ] ... pieces together” to conclude that appellant was the “straw buyer”); United States v. Sutton, 337 F.3d 792, 799 (7th Cir.2003) (approving the substitution of expressions like “another individual” or “other person” for the name of the defendant).
That said, the Northern District of Illinois in Montoya-Hernandez was not entirely convinced that such a solution would work, ultimately concluding that while
The government contends that Montoya's post-arrest statement can be effectively redacted to eliminate prejudice to Rodriguez,...the court is less certain. In its current form, Montoya's post-arrest statement makes extensive reference to Defendant Johnson and to Defendant Rodriguez. As this court understands the law, an acceptable redaction must eliminate any “one-to-one correspondence between the confession and easily identified figures sitting at the defense table.”...The individuals identified in Montoya's statement, it appears, will readily correspond to Johnson (who has pleaded guilty and may well testify at this trial) and to Rodriguez. Should the government elect to use the statement at trial, the court will require a proposed redacted version at least ten days before jury selection. Unless the redactions are so substantial as to eliminate any obvious identification of Defendant Rodriguez, the court will be inclined either to bar its admission or to grant Rodriguez's request for a double jury.
I find the last line especially interesting. Anecdotally, I've been seing more Bruton cases with double juries, wherein there are two separate juries, with one set of jurors excused from the courtroom when evidence on admissible against one defendant is introduced. I wonder whether this signals an actual, meaningful increase in their employment.